Author Topic: Arrests and political speech  (Read 682 times)

LetterRip

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Arrests and political speech
« on: November 20, 2017, 02:31:00 PM »
Karen Fonseca, a woman in Texas, had "*censored* Trump and *censored* you for voting for him" as a laminate on the rear window of her truck in Texas.  The local sheriff took offense, and posted a partial photo to track the truck down.

https://www.washingtonpost.com/news/politics/wp/2017/11/16/texas-sheriff-is-on-the-hunt-for-driver-with-profane-anti-trump-window-sticker/

She was then arrested "on an outstanding fraud warrant issued from a nearby town".

http://www.thestranger.com/slog/2017/11/17/25571694/texas-woman-arrested-after-*censored*-trump-decal-debacle

Since it was clear from his facebook posting that his intent was to retaliate for political speech - what implication does that have, even though the arrest is for a valid outstanding warrant?
« Last Edit: November 20, 2017, 02:34:30 PM by LetterRip »

D.W.

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Re: Arrests and political speech
« Reply #1 on: November 20, 2017, 02:48:41 PM »
It shows that our "law enforcers" don't know the law.
It shows that our "criminals" don't either.  (or they would lay low)

The whole story is an idiot buffet.

Fenring

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Re: Arrests and political speech
« Reply #2 on: November 20, 2017, 03:07:15 PM »
It means that in the age of mass surveillance, metadata, Google, and other technologies, it is increasingly easy to mess with someone remotely. That doesn't just go for law enforcement but also for Twitter mobs, online harassment, doxing, and other forms of going in on someone for whatever reason. I think the whole thing is a problem from the top-down. Until the laws are changed to create some very strict privacy regulation it's going to be a bit of a free-for-all in terms of your data being used against you if you piss off the wrong people. In this case it was for political speech, which is problematic, but that's hardly the full extent of the larger problem.

D.W.

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Re: Arrests and political speech
« Reply #3 on: November 20, 2017, 03:17:12 PM »
So you think this is a clear cut case of, "Let's work together to find a way to legitimize some much needed payback for an action I disagree with."?

Fenring

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Re: Arrests and political speech
« Reply #4 on: November 20, 2017, 03:31:35 PM »
So you think this is a clear cut case of, "Let's work together to find a way to legitimize some much needed payback for an action I disagree with."?

No, I don't. The articles don't have enough information to even guess at that kind of conclusion, but my point was that it would be easily possible for anyone who felt like it to find ways to retaliate against inflammatory speech. If the driver was squeaky clean then maybe it wouldn't be possible ultimately, but that's not really the point. Who can claim to be perfect?

Based on the original article it does actually sound to me like the Sheriff had a decent intention, because, despite what the ACLU has argued on the subject, I actually do think that making speech that will potentially cause a civil disturbance should be dealt with by the law. That doesn't mean banning the speech, but if the Sheriff is to be believed his intention was to find the owner of the vehicle to discuss how to handle the situation before people got angry and something bad happened. I think that's a plausible concern, as I have no doubt that there are people around who would vandalize such a vehicle, or worse - take it to the owner's home and harass them there or online. There is a certain extent to which locating the person could even have been an issue of their own protection.

That being said, by publicizing the sticker (which may have been a mistake) it opened the gates for many more people to become aware of it than otherwise might have been, and so maybe as a result someone elsewhere decided to 'do something about it.' The Sheriff's complicity isn't a necessary conclusion to draw for such a thing, especially since I'm not at all surprised that someone should be pissed off enough at that sticker to take action. The ACLU's position is also based on a curse word used in regard to a government policy, which strikes me as very different from issuing the curse word in regard to the President and a large percentage of the population. It seems like a bad comparison to me in practice, even though 'in theory' the free speech issue is the same.

My point is that the problem is the facility with which people can find out about other people and 'do thing' to them anonymously, and that's what I would guess happened here.

D.W.

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Re: Arrests and political speech
« Reply #5 on: November 20, 2017, 03:44:18 PM »
Welcome to the age of social media vigilantism and reprisals.  The torches and pitchforks may be digital, but they are still dangerous!

Crunch

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Re: Arrests and political speech
« Reply #6 on: November 27, 2017, 09:20:13 AM »
Man, this thread. Let’s walk through it.

First off, the title.  It’s grossly deceptive and intentionally misleading. There was no arrest for political speech. Fonseca was arrested for fraud.  Conflating her arrest for fraud with her first amendment rights is dishonest.

Second, it’s not the sheriff that was offended but the local citizens. The sheriff was responding to multiple complaints. Kind of the sheriff’s job.  Well, not kind of but exactly the sheriff’s job.

Third, it’s the sheriff’s job because there’s a concept called “fighting words”. Look it up. Driving around and telling everyone “fvck you” is covered under that concept.  If anyone on this forum used those words, they’d be suspended and I doubt anyone else would get into a first amendment tizzy.

Fourth, there was no attempted retaliation except in the fevered imagination on display in the OP and subsequent comments. Sheriff investigated complaints,  talked to person, found outstanding warrants. 




D.W.

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Re: Arrests and political speech
« Reply #7 on: November 27, 2017, 02:13:50 PM »
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Second, it’s not the sheriff that was offended but the local citizens.
While it may be relevant to point out this is the claim of the sheriff, it seems equally misleading to state this as a fact.  I find the whole, “post has subsequently been taken down” routine to be an acknowledgement that someone stepped in it.  Maybe this was a sheriff concerned that this driver would eventually instigate a situation that was his job to deal with, and maybe he was exactly the quarry the bait was set for. 

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If anyone on this forum used those words, they’d be suspended and I doubt anyone else would get into a first amendment tizzy
Assuming you are a unique user, I'll let you in on an open secret.  Moderation and suspension thresholds vary wildly depending on who’s at the wheel and how often they check in and probably also the weather and how well life in general is going for that person or persons.  Oh and if they like you and feel you  contribute frequently and in a way they like often enough to let you slide when you break “the rules.” 

Second, we do still get people going into a tizzy about first amendment rights despite; third, the code of conduct here is of course perfectly acceptable to be whatever the host/moderator wants it to be so the first amendment doesn’t apply.  Tizzies notwithstanding.  ;)

Other than those… 
Good points.

Crunch

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Re: Arrests and political speech
« Reply #8 on: November 27, 2017, 05:26:40 PM »
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Second, it’s not the sheriff that was offended but the local citizens.
While it may be relevant to point out this is the claim of the sheriff, it seems equally misleading to state this as a fact.  I find the whole, “post has subsequently been taken down” routine to be an acknowledgement that someone stepped in it.  Maybe this was a sheriff concerned that this driver would eventually instigate a situation that was his job to deal with, and maybe he was exactly the quarry the bait was set for.

Similar from multiple sources:
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This is what Sheriff Nehls wrote in the now deleted Facebook post that included a picture of the truck: “I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 359. If you know who owns this truck or it is yours, I would like to discuss it with you. Our Prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification to it.” According to KHOU, Nehls also posted the disorderly conduct statute from Texas. It reads, partly, “”Uses abusive, indecent, profane or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of peace.”
He received numerous calls, you can google up reports quoting people that support that claim. I find no reason for you to imply the sheriff is a liar at this point.

The post was removed because the sheriff found the person. Why find that in any way an acknowledgment that “someone stepped in it”? Most likely it was taken down so it didn’t continue to circulate on social media and create more issues around the community  and calls to the sheriff with now unneeded information - pretty reasonable.


D.W.

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Re: Arrests and political speech
« Reply #9 on: November 27, 2017, 06:45:55 PM »
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The post was removed because the sheriff found the person. Why find that in any way an acknowledgment that “someone stepped in it”?
The first is possible, the second is what I have observed since "social media" became "a thing". 

But as you point out, this is TX.  I don't know the age of the sheriff either.  Maybe A:  he had no idea this would blow up and be seen as a big deal and a flash point because of the current political climate.  That someone with outstanding warrants would have this decal on their truck goes a long way towards this line of thinking. And B:  removed the post, not because it got a large reaction (I would say fast, but don't want to "step in it" myself incase this sat around for some time until national media caught onto the story) but only because this person makes a point to delete resolved items.  Which I will point out is contrary to how anyone I know uses social media.  (but possible)

If granting the benefit of the doubt, taking down a blurred out, but still obvious, "obscene" decal does make sense.  The short version is, that even though this may be business as usual for TX, I don't consider it worth brushing off as no big deal.

But as I indicated in my first post to this topic, everyone is getting the negative attention they deserve. 

LetterRip

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Re: Arrests and political speech
« Reply #10 on: November 27, 2017, 10:01:37 PM »
First off, the title.  It’s grossly deceptive and intentionally misleading.

It is neither deceptive nor misleading - I didn't say "women arrested for political speech". The political speech resulted in the sherriff targeting her and seeking her out.  Which then, as a result of citizens doing surveilance and turning her in because of her political speech, led to a discovery of an unrelated crime, for which she was arrested.  If not for the sherriff, possibly illegally, targeting her for her political speech, then the arrest likely wouldn't have occurred.

This seems like a 'fruit of the poisoned tree' - he did something that was likely illegal that resulted in knowledge that resulted in her arrest.

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There was no arrest for political speech. Fonseca was arrested for fraud.  Conflating her arrest for fraud with her first amendment rights is dishonest.

She was arrested as a result of an investigation into her based on her political speech and evidence gathered as a part of investigating her for political speech.  I presented those facts.


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Second, it’s not the sheriff that was offended but the local citizens. The sheriff was responding to multiple complaints. Kind of the sheriff’s job.  Well, not kind of but exactly the sheriff’s job.

No, it isn't the sheriffs job.  The sheriffs job is to enforce the law.  Harrassment of citizens for exercising their free speech rights is against the law, and not part of his job.

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Third, it’s the sheriff’s job because there’s a concept called “fighting words”. Look it up. Driving around and telling everyone “fvck you” is covered under that concept. 

She isn't telling everyone 'fvck you' she is saying that only to those who voted for Trump.  And there is a later ruling https://en.wikipedia.org/wiki/Cohen_v._California - that suggests that political speech using 'fvck' is protected speech.

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If anyone on this forum used those words, they’d be suspended and I doubt anyone else would get into a first amendment tizzy.

You have confused a private organization that can enforce its own rules on its own property, with government action.  Free speech applies to government actors, and to government contractors in some cases.  It doesn't apply to corporations that aren't acting on the behalf of the government.

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Fourth, there was no attempted retaliation except in the fevered imagination on display in the OP and subsequent comments. Sheriff investigated complaints,  talked to person, found outstanding warrants.

He contacted the prosecutor to see if he could get charges against her for her political speech.  After the ACLU stepped in he deleted his post discussing that.  Then he arrested her on an unrelated matter.  So while you don't think it is retaliatory, I think a good attorney could certainly make the case successfully.

They are selling the stickers now (including a new one specifically target at the sherriff), and she isn't being arrested and charged for that - which makes it pretty clear that the sheriff knows it is legally protected speech.

https://www.salon.com/2017/11/22/you-can-now-buy-that-fk-trump-truck-decal-for-your-own-car/

So yeah, your BS rationalization that it was illegal speech fails.

Crunch

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Re: Arrests and political speech
« Reply #11 on: November 28, 2017, 02:01:57 PM »
Alright, let's break this down again.

First off, the title.  It’s grossly deceptive and intentionally misleading.

It is neither deceptive nor misleading - I didn't say "women arrested for political speech". The political speech resulted in the sherriff targeting her and seeking her out.  Which then, as a result of citizens doing surveilance and turning her in because of her political speech, led to a discovery of an unrelated crime, for which she was arrested.  If not for the sherriff, possibly illegally, targeting her for her political speech, then the arrest likely wouldn't have occurred.

This seems like a 'fruit of the poisoned tree' - he did something that was likely illegal that resulted in knowledge that resulted in her arrest.
You called it "Arrests and political speech". Word games after the fact are pretty weak and the fact that you've doubled down on conflating the two only exposes your original intent. And that 'fruit of the poisoned tree' bizarreness only further demonstrates you're trying to conflate her arrest with political speech (and don't truly understand the meaning of that phrase). Her arrest has nothing to do with her decal. The warrant for her arrest was issued several months prior, Fonseca was getting arrested sooner or later regardless of anything else she said or did. The two events are not connected no matter how much you want to make out they are, there was no knowledge gained that led to her arrest.


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There was no arrest for political speech. Fonseca was arrested for fraud.  Conflating her arrest for fraud with her first amendment rights is dishonest.

She was arrested as a result of an investigation into her based on her political speech and evidence gathered as a part of investigating her for political speech.  I presented those facts.
You presented them in a very misleading way. She was arrested for committing fraud (actually identity theft) and would have been arrested the next time she had any interaction with police or the state regardless of what she said.

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Second, it’s not the sheriff that was offended but the local citizens. The sheriff was responding to multiple complaints. Kind of the sheriff’s job.  Well, not kind of but exactly the sheriff’s job.

No, it isn't the sheriffs job.  The sheriffs job is to enforce the law.  Harrassment of citizens for exercising their free speech rights is against the law, and not part of his job.
It is the sheriff's job to respond to complaints and enforce the law. That's what he did and that's all he did. I'll note that, once again, you are trying to make out that she was arrested because of the decal and that's not true.  Now, here's the law from Texas Penal Code - PENAL § 42.01 Disorderly Conduct: A person commits an offense if he intentionally or knowingly: (1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace. Obviously Fonseca was using profane and vulgar language in a public place. That's indisputable. Let's get to the "tends to incite part as we go along (keep holding on to that part)

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Third, it’s the sheriff’s job because there’s a concept called “fighting words”. Look it up. Driving around and telling everyone “fvck you” is covered under that concept. 
She isn't telling everyone 'fvck you' she is saying that only to those who voted for Trump.  And there is a later ruling https://en.wikipedia.org/wiki/Cohen_v._California - that suggests that political speech using 'fvck' is protected speech.
So here's your biggest mistake, you didn't read the entire rationale for the case you're citing. You got to fvck being OK and just ran with it devoid of furhter critical thought.  Check it out: "..., Harlan and the Court refused to categorize the speech at issue as a "fighting word" under Chaplinsky v. New Hampshire, because no "individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult." See that? Directed at someone as a personal insult is the key. As you very clearly, and rightly, note, this was in fact directed at certain people as a personal insult so what you thought was a get out of jail free card is actually just the opposite. Add that into the part about incitement mentioned above.

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If anyone on this forum used those words, they’d be suspended and I doubt anyone else would get into a first amendment tizzy.

You have confused a private organization that can enforce its own rules on its own property, with government action.  Free speech applies to government actors, and to government contractors in some cases.  It doesn't apply to corporations that aren't acting on the behalf of the government.
No, you've missed my point. My point was that we would all know, without reservation, that it was designed to target a specific person. We wouldn't have to go through the gyrations you are to twist it into some kind of alternate reality where saying "fvck you" to someone is not incitement. I hope that clears up your confusion.

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Fourth, there was no attempted retaliation except in the fevered imagination on display in the OP and subsequent comments. Sheriff investigated complaints,  talked to person, found outstanding warrants.

He contacted the prosecutor to see if he could get charges against her for her political speech.  After the ACLU stepped in he deleted his post discussing that.  Then he arrested her on an unrelated matter.  So while you don't think it is retaliatory, I think a good attorney could certainly make the case successfully.
A good attorney would laugh you out of his office. A bad attorney might take a whack at it as a way to generate some publicity for himself. Yes, he contacted the prosecutor to see if he could get charges against her for her sticker. But, once again, you try to make it about a political speech when it was about breaking the laws on obscene and vulgar language and the sheriff got clarification on that - why you think that's unreasonable is a true mystery. And saying the post was taken down after the ACLU commented is just more dishonest conflating of disjointed facts. There's a clear and reasonable reason that has been supplied for taking it down and only in the fevered imaginations of anti-Trumpers is there anything unusual here.


They are selling the stickers now (including a new one specifically target at the sherriff), and she isn't being arrested and charged for that - which makes it pretty clear that the sheriff knows it is legally protected speech.
Perhaps he does see it that way now, I've not seen anything supporting it. But, if he does, aren't you glad he checked with the prosecution to verify such? Seems like some pretty damn good law enforcement to get clarity on the law don't you think?

https://www.salon.com/2017/11/22/you-can-now-buy-that-fk-trump-truck-decal-for-your-own-car/

So yeah, your BS rationalization that it was illegal speech fails.
OK, so we've seen how you were wrong from top to bottom, and quite misleading with your "facts",  so maybe you should stop depending on places like Salon and Mother Jones for your analysis. ;)

D.W.

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Re: Arrests and political speech
« Reply #12 on: November 28, 2017, 02:23:54 PM »
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Word games after the fact are pretty weak and the fact that you've doubled down on conflating the two only exposes your original intent.
I took it as the link between the two WAS the assertion.  Not sure if it was a word game or not, but I had read about the incident before seeing this topic name.  So maybe coming in cold this looks more misleading?
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Her arrest has nothing to do with her decal.
Your assertion, (and the Sheriff’s public position) not fact.
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The two events are not connected no matter how much you want to make out they are, there was no knowledge gained that led to her arrest.
And this is strait up factually incorrect. 

I think you are being willfully ignorant of how cause and effect works.  Nobody is saying she was arrested BECAUSE of the decal.  We are saying that “sooner or later” happened “sooner” BECAUSE she was scrutinized due to the decal. 

That doesn’t excuse the fraud.  Nobody says it did. 
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And saying the post was taken down after the ACLU commented is just more dishonest conflating of disjointed facts.
I’m loath to consider myself some social media authority, but it fits a pattern.  It’s possible they are disjointed facts.  It’s very likely they are not.  You really need to stop preaching your opinion in a way that suggests you KNOW it’s true.  Believe whatever you want Crunch.  Argue whatever you want.  Just… learn to do it better.  When you stick to the facts your arguments are fairly persuasive.  Given what you’ve cited so far, it is far more plausible he was checking to see if laws were broken than if the case happened… well somewhere not Texas.


TheDrake

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Re: Arrests and political speech
« Reply #13 on: November 28, 2017, 03:08:46 PM »
You _might_ be able to think of this as a kind of profiling.

He's wearing a hoodie, I better check him out.
He's hanging out near home depot, I better check him out.
He's got an offensive anti-Trump sticker, I better check him out.

Relatively few argue that profiling leads to innocent people being found guilty of things, they mostly talk about how it creates hassles that waste their time and make them angry or how disproportionate scrutiny leads to disproportionate enforcement.

Like in such cases, the excuse is that the scrutiny had nothing whatever to do with "the thing" that would be considered unfair.

D.W.

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Re: Arrests and political speech
« Reply #14 on: November 28, 2017, 03:13:16 PM »
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Like in such cases, the excuse is that the scrutiny had nothing whatever to do with "the thing" that would be considered unfair.
Well, it would be wrong.  In this case I don't know about "unfair".  :P

Seriati

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Re: Arrests and political speech
« Reply #15 on: November 28, 2017, 04:24:09 PM »
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The two events are not connected no matter how much you want to make out they are, there was no knowledge gained that led to her arrest.
And this is strait up factually incorrect. 

I think you are being willfully ignorant of how cause and effect works.  Nobody is saying she was arrested BECAUSE of the decal.  We are saying that “sooner or later” happened “sooner” BECAUSE she was scrutinized due to the decal.

Crunch seemed to be referring to LR's rather odd claim that this was fruit of the poisoned tree.  That's a particular doctrine that has pretty nothing to do with this set of facts (that's related to evidence not arrests).  The police are entitled to seek out interactions with people, and they are entitled to prosecute unrelated crimes of which they become aware during those interactions.

If someone is arrested at a protest, even if that arrest gets dropped or thrown out, they can still be charged for the cocaine they were carrying when booked.

He's right, her arrest had nothing to do with her speech, even if the only reason the police tracked her down was because of her speech.

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That doesn’t excuse the fraud.  Nobody says it did.

That's exactly what LR is implying by reference to the fruit of the poisoned tree.  That's a standard to disallow legitimate evidence that only comes to the police's attention because of illegally obtained evidence (e.g. disallowing the murder weapon because the police only found it after they interviewed the suspect without reading them their rights). 

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You really need to stop preaching your opinion in a way that suggests you KNOW it’s true.  Believe whatever you want Crunch.

Aren't they both doing that?

D.W.

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Re: Arrests and political speech
« Reply #16 on: November 28, 2017, 04:30:47 PM »
I didn't have enough legal background to comment on that.  What you say makes sense to me Seriati but with them both spouting off leagalese (some state specific) I figured I'd leave that part to them.  :)

LetterRip

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Re: Arrests and political speech
« Reply #17 on: November 28, 2017, 07:50:45 PM »
You called it "Arrests and political speech".

Yes, because I was interested in the broader issue of pursing someone for their political speech - resulting in their arrest for an unrelated matter - exactly what appears to have happened in this case.  He posted her political speech, made claims that he intended to arrest and get charges brought against her for her political speech, asked people to identify the individual based on her political speech.

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Word games after the fact are pretty weak and the fact that you've doubled down on conflating the two only exposes your original intent.

Your further misconstruing and false allegations are annoying.  I wrote what I meant, and didn't write what you stated.

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And that 'fruit of the poisoned tree' bizarreness only further demonstrates you're trying to conflate her arrest with political speech (and don't truly understand the meaning of that phrase)

Her arrest was the result of an investigation into her political speech.  If he had never investigated her for her political speech, the arrest would have never happened.

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Her arrest has nothing to do with her decal. The warrant for her arrest was issued several months prior, Fonseca was getting arrested sooner or later regardless of anything else she said or did. The two events are not connected no matter how much you want to make out they are, there was no knowledge gained that led to her arrest.

Her arrest was a direct result of an illegal investigation and public call for information about her.  Without the illegal investigation, he never becomes aware of the warrant (he claims that he was told about the warrant by someone who was responding to his posting).

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You presented them in a very misleading way.

No I didn't.  I quoted the material directly, and I linked to further information.  Learn to read more thoroughly.  Of four sentences of my initial posting this is one of the four,

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She was then arrested "on an outstanding fraud warrant issued from a nearby town".

How the fvck is that 'misleading'?  Quit making false accusations against me.

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She was arrested for committing fraud (actually identity theft) and would have been arrested the next time she had any interaction with police or the state regardless of what she said.

Incorrect, she had in fact had numerous interactions with the police who had pulled her over for her speech, and they let her go.  The sheriff only found out about the warrant from a tip due to his illegal investigation.  There is no evidence she would have ever have been arrested prior to the statute of limitations expiring without his illegal actions.

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It is the sheriff's job to respond to complaints and enforce the law.

His legal response to such complaints would be - I'm sorry that you are offended, but it is a free speech issue, and their speech is protected by the US Constitution - you may wish to contact your legislature if you want the Constitution changed.

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That's what he did and that's all he did.

No, what he did was unlawfully pursue someone for their political speech.

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I'll note that, once again, you are trying to make out that she was arrested because of the decal and that's not true.

I'm saying that the illegal actions of sheriff resulted in him discovering her identity and being made aware of the warrant.  That he had a retaliatory intent against her free speech, in his pursuit based on his posting.

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Now, here's the law from Texas Penal Code - PENAL § 42.01 Disorderly Conduct: A person commits an offense if he intentionally or knowingly: (1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace. Obviously Fonseca was using profane and vulgar language in a public place. That's indisputable. Let's get to the "tends to incite part as we go along (keep holding on to that part)

Precendent is well established that unless actual violence has occurred as a result of the speech, then it is in fact not 'fighting words'.  There isn't a legal ability to limit speech as fighting words in advance, they can only be fighting words if and only if - they have resulted in an actual fight. 

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As you very clearly, and rightly, note, this was in fact directed at certain people as a personal insult so what you thought was a get out of jail free card is actually just the opposite. Add that into the part about incitement mentioned above.

Yeah so you seem to have not understood some words there.  The "Fvck Trump" - if Trump weren't a public figure then their might be something, but nope.  The 'fvck you for voting for him' - that isn't a direct personal insult.  It isn't "Fvck you Bob Jones for voting for him" - it is a generic "fvck you" to any Trump supporter, but not to a specific Trump supporter, even if a specific Trump supporter happens to read it and be offended.

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No, you've missed my point. My point was that we would all know, without reservation, that it was designed to target a specific person. We wouldn't have to go through the gyrations you are to twist it into some kind of alternate reality where saying "fvck you" to someone is not incitement. I hope that clears up your confusion.

I wasn't confused.  You wrote one thing, and expected people to interpret as something else.  Learn to write what you actually intend to convey. Regardless, a generic "fvck you" targeted at those who did X is not what the law regulates or is allowed to regulate.  Again private corporations can do what they want, governments are constrained by the Constitution.

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A good attorney would laugh you out of his office.

You clearly have zero expertise in anything related to law.  So it is pointless to respond to your claim.

LetterRip

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Re: Arrests and political speech
« Reply #18 on: November 29, 2017, 12:37:35 AM »

Crunch seemed to be referring to LR's rather odd claim that this was fruit of the poisoned tree.  That's a particular doctrine that has pretty nothing to do with this set of facts (that's related to evidence not arrests).  The police are entitled to seek out interactions with people, and they are entitled to prosecute unrelated crimes of which they become aware during those interactions.

As a result of his public posting, someone turned in a tip regarding her fraud.  It wasn't as a result of his interaction with her that he became aware of it, it was as a result if his illegal pursuit of her for her public speech.

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If someone is arrested at a protest, even if that arrest gets dropped or thrown out, they can still be charged for the cocaine they were carrying when booked.

Here is what I suspect is the most relevant Supreme Court ruling, it has a 3 part test, of which the circumstances fail 2.

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The Court restated the three-part attenuation test articulated in Brown v. Illinois (422 U.S. 590 (1975)). A court reviewing a claim of attenuation between an alleged illegal stop and seizure of evidence should first consider the temporal proximity between the initially unlawful stop and the search. Here, the officer discovered the warrant and the contraband within moments of the initial stop. Next, the court looks at “the presence of intervening circumstances.” This factor also favored admission of the evidence because the valid warrant for Strieff predated the investigation and was entirely unconnected with the stop. The final factor is “the purpose and flagrancy of the official misconduct.” At most, the Court said, “the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house.”

1) temporal proximity - it was a more than a few days between the sheriffs behavior and the resultant discovery of who it was and that she had a warrant. - fail
2) presence of intervening circumstances - it required individuals to report her name and individuals to bring it to the sheriffs attention, but the warrant was preexisting - could go either way.
3) purpose and flagrancy of the misconduct - the officers purpose was not as part of a legitimate investigation - fail

So if likely fails on all 3, and fails on at least 2 parts.

http://www.lexipol.com/news/evidence-admitted-unlawful-detention-leads-discovery-arrest-warrant/

That said - as the courts point out - the remedy isn't necessarily going to be suppression or dismissal, it might be instead a civil suit against the officer/sheriff.

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That's exactly what LR is implying by reference to the fruit of the poisoned tree.  That's a standard to disallow legitimate evidence that only comes to the police's attention because of illegally obtained evidence (e.g. disallowing the murder weapon because the police only found it after they interviewed the suspect without reading them their rights).

No that isn't what I'm saying.  I'm not 'excusing' her fraud, but the higher purpose of preventing government suppression of free speech might have to result in the government losing the ability to bring a fraud case as a result of the sheriffs misconduct.  That isn't "excusing" - it is an unfortunate possible result of police misconduct, in order to avoid future politicians from using the power of the state to suppress free speech.

Just as when a murderer or drug dealer goes free due to police misconduct such as planting evidence, it isn't excusing the acts of the murder or dealer, it is seeking to serve the higher cause of justice, by discouraging illegal behavior by the police.

Fenring

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Re: Arrests and political speech
« Reply #19 on: November 29, 2017, 01:06:57 AM »
LR, your entire position - and indeed, the implication of your OP - seems to hinge on the Sheriff taking the action he did strictly to suppress free speech. Simply put, I don't know how you can draw that conclusion. I think it's valid to wonder whether that was happening, as I certainly wouldn't like to think that police officers can conduct fishing expeditions by publicly issuing veiled threats and calling the populace to arms against someone controversial. But on the other hand there's a completely legitimate explanation that also fits the facts, which is the Sheriff's own statement of intent. And given how reasonable that statement is, I think it ought to take quite a piece of evidence to cast a shadow on it. If you could show a history of the Sheriff harassing others in a similar way then I might well be swayed to agree with you that his statement is dubious. Based strictly on the case as-is I see no reason to make that conclusion, and I'll remind you as I say this that in general I'm extremely suspicious of the conduct of law enforcement in regard to bullying people.

If you really want to argue the free speech aspect, mind you, I can't help but feel there's a strong case that the sticker could very well have been legally considered to be incitement, or a public disturbance. I think the law has a lot of leeway about what is and isn't a public disturbance, and since on a case-by-case basis that can change depending on where the speech is being delivered and to whom, something that would get a chuckle in Vermont might result in a fight or worse in Texas. I also notice that Texas (along with Florida) has a funny way of enforcing its laws and engaging in prosecution, so I wouldn't be as quick as you are to conclude what would and wouldn't be considered legal there. Calling out over half the state using curse words may be protected under free speech in terms of the fact that it uses naughty words, but that wouldn't prevent it falling under other categories of speech that are prohibited - not because they involve swearing, but because they could create a dangerous situation. If the Sheriff was legitimately receiving many complaints, and maybe even off the record hearing about threats and so forth, I think it's totally reasonable to try to nip the danger in the bud before someone were to get hurt. If that was his real intention then the issue is a public safety issue rather than a free speech issue, and the entire debate about the supreme court would be beside the point.

I'd like to address one point you make that I think is somewhat erroneous, though. When you say that the Sheriff's illegal investigation is what led to her arrest after the fact, you're asserting that the Sheriff was, in fact, investigating her for her speech. Do we know that for certain? The story as I read it was that the Sheriff posted online asking about her identity, whether or not you believe his intent in so doing, and that as a result someone elsewhere noticed her outstanding warrant. So it wasn't even the Sheriff himself who arrested her, which therefore causes the case to diverge significantly from the supreme court case you're citing: it's not an unlawful traffic stop that led to noticing another crime, it was an online post that led to someone else noticing a crime. So that's one detail. Another detail is that if what you say is accurate then even posting about the driver would be illegal. But where in the law does it say that making a Facebook post about someone is against the law, even for law enforcement? It was, after all, not the Sheriff's supposed investigation into her background that led to others noticing the warrant, but rather a simple post that they read which presumably alerted them to it. Well, anyone frankly could have posted about it and caused those same people to notice her and search around. Who's to say it was the fact that a Sheriff was the one doing the posting that it elicited that reaction? You have to jump directly to the conspiracy theory I mentioned above that the Sheriff directly solicited others to catch her on something, using his initial post as...a pretext to rile them up? It just doesn't really add up to me, and requires a lot of bad faith to make that theory work. It's possible, and I do believe law enforcement conspires all the time, but in this case there was so much motive all around for someone to target her that making the assumption that it must have been the Sheriff seems unreasonable. She was no doubt doing such a good job pissing people off that it's a wonder it took so long for someone to find  a way to get back at her. The regular population had more of a motive to do so than the Sheriff did in this instance, although then again maybe the Sheriff was one of the Trump voters...
« Last Edit: November 29, 2017, 01:09:02 AM by Fenring »

D.W.

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Re: Arrests and political speech
« Reply #20 on: November 29, 2017, 09:45:28 AM »
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Another detail is that if what you say is accurate then even posting about the driver would be illegal. But where in the law does it say that making a Facebook post about someone is against the law, even for law enforcement?
This is probably the most interesting part of the whole situation to me. 

We are in an age where allegations spread like wild fire.  Sometimes justice is served when the mechanisms of law enforcement stall, or seem indifferent.  Sometimes the innocent get swept up by mistake, sometimes lives are ruined disproportionately to how our legal system outlines how someone is to be punished.

Given how our system works now (largely playing catch-up to modern society) one needs only to consider prejudicing jurors to wonder if a sheriff should think twice about using social media in this manner.  There's a reason things are/were kept vague.  You say "person of interest" or "wanted for questioning" specifically to avoid vigilantism and insinuating someone is guilty before their day in court.

Using social media through an official outlet (not personal account) can indeed be a  useful tool for law enforcement.  This however, was a mistake.  And I stand by my conclusion that the removal of the post is most likely because the sheriff, his lawyer or someone on staff pointed out that it was a mistake.

P.S. Fenring, I think it's more profiling than conspiracy theory.  Doesn't make it a better practice, but they are different places on the plausibility scale.  ;)

Crunch

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Re: Arrests and political speech
« Reply #21 on: November 29, 2017, 10:07:37 AM »

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Word games after the fact are pretty weak and the fact that you've doubled down on conflating the two only exposes your original intent.

Your further misconstruing and false allegations are annoying.  I wrote what I meant, and didn't write what you stated.

Right. And then your very next paragraph:
Her arrest was the result of an investigation into her political speech.

It's bizarre. You get upset I say you conflated the two things and then you continue to say the arrest stems directly from the event. You really need to be aware that the warrant for her arrest was not issued after Fonseca's interaction with the sheriff - how do you not know that? The warrant was issued months prior for a completely unrelated case (identify theft).

If he had never investigated her for her political speech, the arrest would have never happened.
Yes it would. Do you even know what an arrest warrant is or how they work? A warrant was issued for her arrest, sooner or later Fonseca was going to get arrested. That's kind of the point of the arrest warrant. :o

His legal response to such complaints would be - I'm sorry that you are offended, but it is a free speech issue, and their speech is protected by the US Constitution - you may wish to contact your legislature if you want the Constitution changed.
OK, so you do understand the timeline right? The sheriff did consult with prosecutors and, with their guidance had a reasonable expectation that this was not a free speech issue - and the case law you site shows that it's not or at the very least highly questionable and worth exploring. I mean, do you read anything besides Mother Jones? You really ought to broaden your information net, dude, seriously.

You clearly have zero expertise in anything related to law.  So it is pointless to respond to your claim.
For a guy that keeps insisting he never says what he said and then says it again while demonstrating a complete lack of understanding on how arrest warrants work, I'd say I have quite the leg up on your legal expertise there, Perry Mason.


Calling out over half the state using curse words may be protected under free speech in terms of the fact that it uses naughty words, but that wouldn't prevent it falling under other categories of speech that are prohibited - not because they involve swearing, but because they could create a dangerous situation.
That is precisely the point of the sheriff. The sheriff's original post:
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“I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 359. If you know who owns this truck or it is yours, I would like to discuss it with you. Our Prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification to it.”
All the sheriff is saying is that this could be inflammatory and a potential violation of the law, let's talk about it and see if we can address it in a way that works for all of us before anyone gets upset and it goes too far.  This is a reasonable and fair approach because if this does not violate Texas law it's certainly right at the line and lots of people are justifiably offended by it - and that has to have been Fonseca's intent. Go anywhere in the USA and make an obscene gesture and tell someone "fvck you", what is the expectation you have? Yeah, we all know, you're picking a fight.

At some point, Fonseca will give the finger and a "fvck you" to just the right person at the right time and get precisely the reaction she's fishing for. When she does, don't expect a lot of sympathy. When you play stupid games, you win stupid prizes.

D.W.

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Re: Arrests and political speech
« Reply #22 on: November 29, 2017, 10:23:36 AM »
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Her arrest was the result of an investigation into her political speech.
I want to try something.

Does the following mean something different to you Crunch?

"This opportunity to arrest her (for the outstanding warrant) was the result of an investigation into her political speech."

It just dawned on me that MAYBE you are reading the original quote as her arrest was on the grounds of the speech, THEN she was charged for something else?

Crunch

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Re: Arrests and political speech
« Reply #23 on: November 29, 2017, 10:34:56 AM »
Quote
Her arrest was the result of an investigation into her political speech.
I want to try something.

Does the following mean something different to you Crunch?

"This opportunity to arrest her (for the outstanding warrant) was the result of an investigation into her political speech."

It just dawned on me that MAYBE you are reading the original quote as her arrest was on the grounds of the speech, THEN she was charged for something else?

No, it really doesn't. It is far from uncommon to have an interaction with law enforcement and find out a warrant has been issued for something unrelated to the current interaction. If you got pulled over for doing 60 in a 55 mph zone and the officer discovered you had a warrant for your your arrest for a crime you committed last year, what were you arrested for? Speeding or the other crime? If it came out the speed gun was out of calibration and reading 5 mph over the limit so your ticket was invalidated and dismissed, is your arrest then invalid as well (i.e. "fruit of a poisoned tree").

When a warrant is issued for you arrest, you will be arrested sooner or later. That's the way these things work. At some point, you'll have an interaction with the state and it will come out that you should be arrested. The reason for that most recent interaction does not change the fact that a warrant was issued nor does it connect the two events for purposed of invalidating the arrest. This idea that Fonseca would have *never* been arrested is so ludicrous that it's, if you'll pardon me, just stupid. Of course she was going to be arrested.

D.W.

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Re: Arrests and political speech
« Reply #24 on: November 29, 2017, 10:47:12 AM »
Quote
If you got pulled over for doing 60 in a 55 mph zone and the officer discovered you had a warrant for your your arrest for a crime you committed last year, what were you arrested for?

But you do understand that WHAT you were arrested for is different from WHY you were arrested, right?

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This idea that Fonseca would have *never* been arrested is so ludicrous that it's, if you'll pardon me, just stupid. Of course she was going to be arrested.
Agreed.  Equally stupid is being actively inflammatory while having outstanding warrants.  But I don't think anyone argued against either of these points.

Crunch

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Re: Arrests and political speech
« Reply #25 on: November 29, 2017, 11:09:32 AM »
Quote
If you got pulled over for doing 60 in a 55 mph zone and the officer discovered you had a warrant for your your arrest for a crime you committed last year, what were you arrested for?

But you do understand that WHAT you were arrested for is different from WHY you were arrested, right?
Were you arrested for speeding or the other crime? If you're in the cell and they ask you, "what are you in for?" what are you gonna say? Speeding? People in Texas have to go to the DPS to renew their driver's license and, at that time, get a check for warrants and can be arrested. Are they being arrested because they tried to renew their license? Renewing your license is not even a crime, kind of the opposite in fact. But nobody gets arrested for renewing their license and saying they never would have been arrested if not for the renewal is just as incorrect as saying they were arrested for it.

D.W.

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Re: Arrests and political speech
« Reply #26 on: November 29, 2017, 11:21:34 AM »
Quote
Were you arrested for speeding or the other crime? If you're in the cell and they ask you, "what are you in for?" what are you gonna say? Speeding?
You are correct.  You are also missing the point that is being made.  Just had to make sure you were hung up on what I thought you were, rather than contesting the point being made.

Talking past each other.

Fenring

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Re: Arrests and political speech
« Reply #27 on: November 29, 2017, 11:34:48 AM »
I'd just like to mention I can't believe this fvck trick gets by the software...lul.

Crunch

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Re: Arrests and political speech
« Reply #28 on: November 29, 2017, 12:19:25 PM »
Quote
Were you arrested for speeding or the other crime? If you're in the cell and they ask you, "what are you in for?" what are you gonna say? Speeding?
You are correct.  You are also missing the point that is being made.  Just had to make sure you were hung up on what I thought you were, rather than contesting the point being made.

Talking past each other.
I'm not missing it, I'm dismissing it. It's just not relevant to the crime she was arrested for. It's just an attempt to make out that she was arrested for political speech by connecting the events and the reality is her decal and the interaction with law enforcement it created is only coincidental to her arrest. Despite LR's assertion that she would have never been arrested, she would have sooner or later and the arrest could have been coincidental to some other interaction with the state.

LetterRip

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Re: Arrests and political speech
« Reply #29 on: November 29, 2017, 12:40:34 PM »
I haven't claimed "she would not have been arrested" - I'm claiming "she may not have been arrested".  We can't predict the future, but you seem to think you can.  There are plenty of people who are never arrested prior to the statute of limitations expiring.

Fenring

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Re: Arrests and political speech
« Reply #30 on: November 29, 2017, 01:01:42 PM »
I haven't claimed "she would not have been arrested" - I'm claiming "she may not have been arrested".  We can't predict the future, but you seem to think you can.  There are plenty of people who are never arrested prior to the statute of limitations expiring.

But you still haven't addressed whether you think there's a difference between the Sheriff bringing attention to someone for reasons other than wanting to arrest them, versus 'investigating' that person in an attempt to arrest/prosecute. I would be more inclined to agree with you if I knew for certain the Sheriff was fishing for something to snag her with and this is what stuck. But on the other hand if the Sheriff's outreach was specifically intended to avoid possible prosecution or legal recourse then both your analogy and your court ruling would seem to be inapplicable as an analogy.

LetterRip

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Re: Arrests and political speech
« Reply #31 on: November 29, 2017, 01:39:05 PM »
Fenring,

Quote
“If you know who owns this truck or it is yours, I would like to discuss it with you,” the sheriff wrote. “Our Prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification.”

So he threatened that he would either bring charges or force her to change her speech in his Facebook posting that was subsequently deleted after the ACLU pointed out that it was illegal for him to do either of those.
« Last Edit: November 29, 2017, 01:41:22 PM by LetterRip »

Fenring

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Re: Arrests and political speech
« Reply #32 on: November 29, 2017, 02:26:03 PM »
So he threatened that he would either bring charges or force her to change her speech in his Facebook posting that was subsequently deleted after the ACLU pointed out that it was illegal for him to do either of those.

None of this is in evidence. I've asked a few times how you come to this definite conclusion. It's possible that your narrative is what happened, but as I mentioned you'd need some strong evidence of this. I'll go through it point by point in case I'm being unclear, but first, here's his original message:

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"Our Prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification to it," Nehls wrote.

I'll go through your post now:

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So he threatened

Where is the definite threat in his message? He isn't necessarily saying "do X or else", although again you could conceivably read that into the message as an interpretation.

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that he would either bring charges or force her to change her speech

Neither of these is accurate. He doesn't say he would bring charges, he said that there was sufficient ground to bring charges. And likewise he doesn't say he'd force her to do anything, but rather said he thinks they could come to an agreement. This doesn't mean he guarantees they can come to an agreement, and likewise doesn't necessarily mean that charges would follow if she didn't agree. It seems at minimum to simply be saying that he could be taking forceful measures if he saw fit but that he in fact doesn't want to do that and prefers a civil discussion about it. Assuming this isn't a veiled threat hidden between the lines, the actual message seems to be saying that he would like to address the matter but without resorting to legal action.

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his Facebook posting that was subsequently deleted after the ACLU pointed out that it was illegal for him to do either of those

That isn't what the ACLU pointed out. In fact as far as I can tell their message to him seemed like an inappropriate response to what he actually said. What he said was that the person could be charged with disorderly conduct, and the ACLU responded that the person couldn't legally be charged due to political speech, which is in fact a non sequitur response. The Sheriff's post never mentioned any illegality in the form of the speech - either being a sticker, or containing a swear word - but was about the public nature of the speech and its intended targets. In fact disorderly conduct can be charged for all sorts of reasons. Surely you've heard of the silly cases where someone yells out a swear word in public when his canoe tips over and is arrested for it? Certain kinds of obscenity are not protected by the 1st due to their public nature, regardless of whether the use of swear words in political speech is protected.

Also, the case the ACLU cites in their Tweet is completely irrelevant as well. So to infer that because of the ACLU the Sheriff backed off (which is exactly what you're implying) and that therefore the Sheriff was in the wrong, implies that the Sheriff recognized his wrongness and that the ACLU was right, and withdrew the post because of that. Where is that in evidence? I don't even think they were right and I'm a big civil rights advocate. So why should you assume the Sheriff not only believed they were right but also flinched? It seems far more likely that he (a) already found the person and so the post was irrelevant beyond that points, and (b) that he and his family were receiving hate mail and he wanted that to stop. Neither of these explanations requires us to assume that the ACLU scared him off, thereby incriminating him in a wrongful action.
« Last Edit: November 29, 2017, 02:29:03 PM by Fenring »

Crunch

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Re: Arrests and political speech
« Reply #33 on: November 29, 2017, 03:59:12 PM »
I haven't claimed "she would not have been arrested" - I'm claiming "she may not have been arrested".
From just upthread:
If he had never investigated her for her political speech, the arrest would have never happened.
So, yeah. There's that.

Crunch

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Re: Arrests and political speech
« Reply #34 on: November 29, 2017, 04:21:20 PM »
Let's also address this:
There are plenty of people who are never arrested prior to the statute of limitations expiring.
For those wondering if an arrest warrant expires:
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The simple answer to this question is no, there are no statutes of limitations on arrest or bench warrants. When an arrest or bench warrant has been issued, it remains in force regardless of the amount of time that has passed. The state has determined that sufficient evidence exists to pursue a case against that defendant, thus, when it issues an arrest warrant then that warrant is considered valid regardless of the time that has elapsed since the warrant's issuance.

There are statute of limitations issues and rights to speedy trials that could complicate the case but the warrant will always remain in effect, never expiring. The accused will have to sort it all out after his arrest.

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When an arrest warrant is issued, the suspect named on the warrant can be arrested at anytime, anywhere an officer notices them. It doesn’t matter what they are doing at the time. An arrest warrant is not always served by law enforcement officials right away. Outstanding arrest warrants are arrest warrants that have yet to be served by law enforcement officials. There are hundreds of thousands of outstanding arrest warrants across the country today.



It's complicated so anyone interested should read the provided link as it's kind of interesting. Obviously, it does not apply to this case though.




Seriati

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Re: Arrests and political speech
« Reply #35 on: November 29, 2017, 04:30:59 PM »
Quote
That's exactly what LR is implying by reference to the fruit of the poisoned tree.  That's a standard to disallow legitimate evidence that only comes to the police's attention because of illegally obtained evidence (e.g. disallowing the murder weapon because the police only found it after they interviewed the suspect without reading them their rights).

No that isn't what I'm saying.  I'm not 'excusing' her fraud, but the higher purpose of preventing government suppression of free speech might have to result in the government losing the ability to bring a fraud case as a result of the sheriffs misconduct.  That isn't "excusing" - it is an unfortunate possible result of police misconduct, in order to avoid future politicians from using the power of the state to suppress free speech.

I'm not sure you're clearly reading what you are saying.  You can not tell me you are not advocating excusing the conduct and then in the same paragraph write that the government should lose the ability to "bring a fraud case."  That's literally what excusing means.

There is no police "misconduct" here.  There is just police conduct.  If the police come to your house because the neighbors call in a false noise complaint and catch you burying a body, you don't get a pass on the murder.  Fact is, whether she could be charged or not (and I don't think it's a clear cut as you'd like it to be, that this is an open and shut case of political speak that cant' be constrained) there is nothing at all improper about the police seeking her out.  If for no other reason to convey to her the risk to her safety that is apparently present from the level of community offense being generated.

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Just as when a murderer or drug dealer goes free due to police misconduct such as planting evidence, it isn't excusing the acts of the murder or dealer, it is seeking to serve the higher cause of justice, by discouraging illegal behavior by the police.

It's literally excusing the murder.  But there's limits on the doctrine in those situations that you apparently don't know or see a need to respect.  For example, the evidence isn't excluded if its deemed that it would have been discovered in any event (so for example, getting an illegal confession that points out the location of the gun in your house, doesn't prevent the gun from coming in if the police would have found it anyway). 

And I've never heard of this extension you seem to be advocating, that the police have to ignore a valid warrant that comes to their attention.  In fact, its seems to be settled, and clearly, that the opposite is the case.

LetterRip

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Re: Arrests and political speech
« Reply #36 on: December 01, 2017, 11:46:38 PM »
Seriati,

you are using words entirely different from their typical and standard usage.  If I condemn something as wrong and illegal I'm not 'excusing' it - I'm doing the opposite - I'm condemning it.  If I think the government should not prosecute something because the illegal action of government officials that doesn't excuse the unlawful behavior that shouldn't be prosecuted.  I think the long term interests of justice are better served by not allowing government officials to engage in illegal behavior - or to allow them benefit when they do so.  Here is was trying to suppress free speech.  Allowing the warrant discovered as a result of his attempts to suppress such speech to be prosecuted rewards him for his illegal behavior - thus the greater good might be served by not pursuing it.

Quote
There is no police "misconduct" here.  There is just police conduct.  If the police come to your house because the neighbors call in a false noise complaint and catch you burying a body, you don't get a pass on the murder.  Fact is, whether she could be charged or not (and I don't think it's a clear cut as you'd like it to be, that this is an open and shut case of political speak that cant' be constrained) there is nothing at all improper about the police seeking her out.  If for no other reason to convey to her the risk to her safety that is apparently present from the level of community offense being generated.

No, he was not just investigating.  He also engaged in a threat to coerce her to change her speech.  You seem to have ignored that part, it is rather critical to whether it was illegal behavior on his action.  Without the announcement of his intent to coerce her to change her speech it might not have been unlawful.  With the coercive threat, it clearly was.

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It's literally excusing the murder.

That word, you keep using that word, but it does not mean what you think it means.

Quote
But there's limits on the doctrine in those situations that you apparently don't know or see a need to respect.  For example, the evidence isn't excluded if its deemed that it would have been discovered in any event (so for example, getting an illegal confession that points out the location of the gun in your house, doesn't prevent the gun from coming in if the police would have found it anyway).

There are indeed limits on the exclusion doctrine.  There is no evidence that she would have been discovered, there were numerous police stops while she was driving - police who stopped her over the sign and once she explained her position let her go, that didn't result in such discovery - which is strong evidence against the claim that her warrant would have been discovered without his illegal actions. If you find a relevant exclusion - feel free to suggest it.

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And I've never heard of this extension you seem to be advocating, that the police have to ignore a valid warrant that comes to their attention.  In fact, its seems to be settled, and clearly, that the opposite is the case.

I'm not sure what 'extension' you are referring to here.  I'm not claiming that the police need to ignore a valid warrant that comes to their attention.  I'm saying that it was the illegal action of the government that led to the discovery of the warrant, that the goal of the illegal action was to suppress politically protected speech, that enforcing this warrant achieves the goal sought to be achieved in by the illegal action, and as such, should result in the case being dismissed.

LetterRip

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Re: Arrests and political speech
« Reply #37 on: December 01, 2017, 11:50:50 PM »
Deleted at poster's request. -OrneryMod
« Last Edit: December 04, 2017, 01:23:14 PM by OrneryMod »

DJQuag

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Re: Arrests and political speech
« Reply #38 on: December 02, 2017, 05:35:08 AM »
While I agree in principle with what you're saying, LetterRip, I think the Sheriff is pretty well covered here.

What he basically said was "We live in Redneck, Texas, and I'd like to explain to her face to face that this sticker could cause violence. It could get her hurt."

I'm with you on being cynical and assuming that it was really an attempt to lead a social media lynch mob. But the man went about it the right way and covered himself. There's nothing to be done here except to wail, gnash teeth, and tear clothes.

Crunch

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Re: Arrests and political speech
« Reply #39 on: December 02, 2017, 08:47:59 AM »
Crunch,

Quote
So, yeah. There's that.

So much less time would be wasted if you would take a basic reading comprehension course.  The context was clearly that the sheriff would likely have never discovered her warrant had it not been for his illegal actions.
If you’d stop playing word games and just making up things, this would probably go easier. It was “never”, now it’s “likely have never”. See how you’re trying to change it as you get proven wrong again and again? You tried ridiculing me upthread about predictions of the future yet here you are doing precisely the thing you ridicule. Your efforts at spinning your string of mistaken understandings has you all over the place.


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There are statute of limitations issues and rights to speedy trials that could complicate the case but the warrant will always remain in effect, never expiring. The accused will have to sort it all out after his arrest.

The statute of limitations were for her crime.  Again, reading comprehension fail.  No one said anything about 'warrants' expiring.
Niw you’re trying to divorce your comments from context, you’re kind of batting a thousand with accusing people of doing the things you do.  I think you can do better, please try.

LetterRip

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Re: Arrests and political speech
« Reply #40 on: December 02, 2017, 10:40:22 AM »
If you’d stop playing word games and just making up things, this would probably go easier. It was “never”, now it’s “likely have never”.

Unless we are in a court of law, engaged in a scientific publication, or writing contracts, the avoidance of 'hedge words' when writing is correct english language usage - if something is beyond the 'practically plausible or possible' - the word never is appropriately used, even if there is a theoretical possibility.  Again, I should not have to teach you the basics of english language usage and comprehension. Get a teacher to help you with comprehension if you have difficulty.


LetterRip

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Re: Arrests and political speech
« Reply #41 on: December 02, 2017, 10:45:14 AM »
While I agree in principle with what you're saying, LetterRip, I think the Sheriff is pretty well covered here.

What he basically said was "We live in Redneck, Texas, and I'd like to explain to her face to face that this sticker could cause violence. It could get her hurt."

If he had offered that, and only that, it might have been legal.  The threat of legal consequences if she didn't change her speech is where he broke the law.

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I'm with you on being cynical and assuming that it was really an attempt to lead a social media lynch mob. But the man went about it the right way and covered himself. There's nothing to be done here except to wail, gnash teeth, and tear clothes.

Nope he didn't - his stated intent to force her to change her speech was illegal.  He went about it unlawfully.

Fenring

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Re: Arrests and political speech
« Reply #42 on: December 02, 2017, 12:25:17 PM »
If he had offered that, and only that, it might have been legal.  The threat of legal consequences if she didn't change her speech is where he broke the law.

You've still not demonstrated any direct threat. You had to assert the Sheriff's bad faith a priori in order to be able to then read his statement as a veiled threat. Reading it just on its own I really don't think it reads that way, and even reading between the lines I don't see evidence of a direct threat.

LetterRip

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Re: Arrests and political speech
« Reply #43 on: December 02, 2017, 12:52:11 PM »

You've still not demonstrated any direct threat. You had to assert the Sheriff's bad faith a priori in order to be able to then read his statement as a veiled threat.

The threat is obvious - he mentioned potential legal action followed by offering a way to avoid it through compliance.  That is lawfully a threat regardless of how much you deny it.  Bribes, extortion, threats, blackmail, etc. don't have to be 'on the nose' to be illegal.
 Allusion to a criminal prosecution or criminal penalties, or even the use of criminal law labels to describe conduct is sufficient to qualify as a unlawful veiled threat.  The question is - is there any reasonable explanation for him to mention it, other than to influence her decision of whether or not to change her speech.

Fenring

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Re: Arrests and political speech
« Reply #44 on: December 02, 2017, 01:31:06 PM »
Allusion to a criminal prosecution or criminal penalties, or even the use of criminal law labels to describe conduct is sufficient to qualify as a unlawful veiled threat.  The question is - is there any reasonable explanation for him to mention it, other than to influence her decision of whether or not to change her speech.

This is really the question, so let's address it. Why mention the possibility of prosecution if this wasn't a threat by him. I can think of a few possible reasons, so maybe we can assess whether they're realistic or not.

1) The Sheriff isn't the only one who can decide to arrest/prosecute someone, and perhaps the idea of prosecuting her wasn't even his was he was merely reporting it to her publicly.
1b) Maybe he mentioned it because when he realized some others were intent on trying to prosecute he was trying to avoid that and so tried to get her contact info.
1c) Maybe he mentioned it in the hopes she would take seriously that she could get in trouble for her actions, rather than to brush off his attempt to get in touch with her.

2) Maybe the 'disorderly conduct' charge would have been completely legit, despite the ACLU's claims, and in fact maybe she was straight-up guilty of that charge within the law. If that was the case then offering to let her off without charges would have been a token of good faith on his part rather than a threat, i.e. 'we could do this but I don't want to, help me out here.'

3) Maybe he wrote that in order to alert the rest of the public that this was being taken seriously, i.e. 'we've investigated the possibility of charges so everyone stop freaking out.' So maybe that message wasn't entirely meant for her alone.

4) Maybe the idea of pressing charges wasn't him being tyrannical but rather responding to public pressure. Assuming the charge would have been within the law (or at least contentious) I do think the Sheriff representing the wishes of the community makes sense, so his warning could have been a form of representation of the will of the public that had contacted his office. This possibility changes nothing if the charges would have been totally bogus either way, but if legit then your theory that this was the Sheriff trying to coerce her would be wrong. It might have just been him relaying what the public was pushing for, as it would indeed look bad for the Sheriff's office *to not* arrest someone who is in fact breaking the law and creating a public disturbance, over the objections of the public. Imagine if someone was vandalizing public buildings and the Sheriff refused to do anything about it; that would hurt public morale considerably. In this case it's another kind of public display in question, but the sentiment of "how can you allow a criminal to do this to our town" might be similar.

In short, if you desist momentarily in assuming bad faith I think there are a lot of possible reasons to post what he did. It doesn't mean you're wrong in your interpretation, but I see no reason to conclude that your interpretation is the correct one. Not enough data.

TheDrake

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Re: Arrests and political speech
« Reply #45 on: December 04, 2017, 09:05:55 AM »
Maybe the morals of the story are:

1. Don't commit fraud.
2. If you are falsely accused of fraud, show up and dispute the charges.
3. If you don't accomplish 1 or 2, maybe you should avoid drawing attention to yourself - politically or otherwise.
4. You shouldn't go through life attempting to piss people off as much as possible.


Seriati

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Re: Arrests and political speech
« Reply #46 on: December 04, 2017, 11:22:10 AM »
Seriati,

you are using words entirely different from their typical and standard usage.  If I condemn something as wrong and illegal I'm not 'excusing' it - I'm doing the opposite - I'm condemning it.  If I think the government should not prosecute something because the illegal action of government officials that doesn't excuse the unlawful behavior that shouldn't be prosecuted.

LetterRip, I'm not the one confusing things.  You're mixing up morality and legality.  Condemn something all you want and morally you may not be excusing it, but when you claim that an illegal action should not be prosecutable because of someone else's conduct you are in fact excusing it.  Period end of story.  When a murderer gets off on a technicality it doesn't make the murder morally correct.

You are literally arguing that trying to talk with this woman is so violative of free speech (a standard, that as far as I can tell, no one on earth has ever followed), that she gets a free ticket on any prior criminal conduct cause she "wouldn't have been found".  That's an excuse of conduct, a particularly absurd one.

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I think the long term interests of justice are better served by not allowing government officials to engage in illegal behavior - or to allow them benefit when they do so.

Well first, you haven't identified an illegal behavior, but second, there's no benefit here.  This is not "discovered evidence" that would not have otherwise been discovered.  There is no legal basis to ignore a valid warrant or to "declare it wouldn't have been  found."  There just isn't.  This woman was literally on borrowed time with respect to such warrant. 

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Here is was trying to suppress free speech.

So you keep saying, though you ignore that your precedents were is a far more limited context and I am not sure that you are correctly applying them to the current situation.  In any event, it's not clear enough to make any sheriff's actions in such a context an exercise of bad faith, which pretty much completely wipes out the argument that you are trying to make.

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Allowing the warrant discovered as a result of his attempts to suppress such speech to be prosecuted rewards him for his illegal behavior - thus the greater good might be served by not pursuing it.

Again, you've made a mistake.  The warrant wasn't "discovered" it was enforced.  Evidence is discovered, ie it only comes to knowledge of the state by operation of an investigation.  Your logically in error to think that a warrant that the government has knowledge of - as a matter of law - is "discovered" in any real sense.  In fact, it's completely contrary to the idea of law as we know it to try and force the government to establish some kind of probable cause in such a circumstance, effectively, the government is entitled to treat anything any part of it knows as something every part knows (though the contrary proposition is not the case).

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There is no police "misconduct" here.  There is just police conduct.

No, he was not just investigating.  He also engaged in a threat to coerce her to change her speech.  You seem to have ignored that part, it is rather critical to whether it was illegal behavior on his action.

I didn't ignore anything.  You haven't established any case to believe that your opinion is accurate.  In the first instance, if everything you say is true, she still would not be entitled to be let off.  But if any part of anything you say is untrue the entire argument you are making fails completely, and there is every reason to dispute numerous parts.

If the case isn't as settled as you believe (and I doubt the translation from having that word on your jacket in court, to having it on the back of a pick up truck, where among other things children will see it, is as clear as you want it to be, notwithstanding the ACLU would like it to be), then the bad faith disappears and you're left with a Sheriff doing their job legitimately.  If you're completely wrong then she can be charged with disturbing the peace as well. 

If any part of what the sheriff said is true about what he was doing then your argument falls apart again, because he is entitled to interact with people engaging in speech for other reasons.  A sheriff is completely entitled to show up at a protest to ensure the public safety and to arrest every one there smoking pot or engaging in public urination, notwithstanding that they never would have been there without the exercise of free speech.

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Without the announcement of his intent to coerce her to change her speech it might not have been unlawful.  With the coercive threat, it clearly was.

Talk about words not meaning what they think you mean, I think you're using "clearly" to mean really unclear but something you want to be true.

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It's literally excusing the murder.

That word, you keep using that word, but it does not mean what you think it means.

If you're going to conflate legal liability with moral liability, it's on you to recognize that words are not limited to a single context.

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There are indeed limits on the exclusion doctrine.  There is no evidence that she would have been discovered, there were numerous police stops while she was driving - police who stopped her over the sign and once she explained her position let her go, that didn't result in such discovery - which is strong evidence against the claim that her warrant would have been discovered without his illegal actions. If you find a relevant exclusion - feel free to suggest it.

None of which applies, because a warrant is NOT EVIDENCE. 

Your entire claim is based on an argument by analogy, because we do something specific in context A we should also do it in context B, but you have a special burden to meet there, you have to show that in context B we are serving the same goals as in context A and that there are not factors that should also be considered.  You're going to fail that here. 
« Last Edit: December 04, 2017, 11:26:30 AM by Seriati »

D.W.

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Re: Arrests and political speech
« Reply #47 on: December 04, 2017, 01:44:54 PM »
Maybe the morals of the story are:

1. Don't commit fraud.
2. If you are falsely accused of fraud, show up and dispute the charges.
3. If you don't accomplish 1 or 2, maybe you should avoid drawing attention to yourself - politically or otherwise.
4. You shouldn't go through life attempting to piss people off as much as possible.
Or...

When you find yourself unable to pay for the legal fees and sentence related to your fraudulent activities, see if you can become internet-famous!  This way, when you do eventually go to trial, you can do so with the benefit of some sweet SJW cash via a GoFundMe or similar scheme. 

I mean it's not like this reaction was unforeseeable in TX.  Maybe I shouldn't just assume the decal displaying driver is a tool?

LetterRip

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Re: Arrests and political speech
« Reply #48 on: December 04, 2017, 03:43:38 PM »
Seriati,

we are not in a court of law - it is decietful to use a 'term of art' in a discussion that has a normal meaning drastically different from that in a legal context.  I am not excusing her conduct, because excuse in normal discourse is utterly divorced from its usage in a legal conduct.

Also even the legal meaning doesn't apply here.  An excuse in the legal sense is illegal behavior that should not be prosecuted due to circumstances surrounding the behavior.  Such as 'It is true that my client stole a bike, but it was the only way that he could reach the police in time to prevent a murder'.  Stealing a bike is illegal, but because it was to prevent the greater crime of a murder it is excusable.

In this case, the actions of the individual should not be prosecuted, not because of the circumstances surrounding her actions, but the circumstances that resulted in her discovery after the fact.  Thus you are mistaken in referring to this as 'excusing', it is odd that you as a lawyer are misusing a term of art in your own field, though I suppose that your area of practice result in you having had little call to use the word since law school.

Forgoing prosecution due to police misconduct doesn't have a legal term of art (Just confirmed this with a retired municipal court judge and a retired lawyer).

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Well first, you haven't identified an illegal behavior, but second, there's no benefit here.  This is not "discovered evidence" that would not have otherwise been discovered.  There is no legal basis to ignore a valid warrant or to "declare it wouldn't have been  found."  There just isn't.  This woman was literally on borrowed time with respect to such warrant.

We have no evidence of that, and substantial evidence to the contrary.  She had been stopped a number of times over her sign by police, and the warrant wasn't discovered.  Suggesting that without specific effort it wouldn't have been discovered. There is no evidence she would have had contact with the law that would result in discovery of the warrant.  About 7% of warrants that are openned in a year are open after 3 years.

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So you keep saying, though you ignore that your precedents were is a far more limited context and I am not sure that you are correctly applying them to the current situation.  In any event, it's not clear enough to make any sheriff's actions in such a context an exercise of bad faith, which pretty much completely wipes out the argument that you are trying to make.

"Any Sheriff's actions" you are correct; his specific actions - you are incorrect.  You keep ignoring his actual behavior, and focus on some hypothetical behavior.  It was a specific threat to coerce her to change her political speech.

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Again, you've made a mistake.  The warrant wasn't "discovered" it was enforced.

The warrant wasn't in the information he had, it was discovered.  He received knowledge of the warrant via a tip, it wasn't information that he was privy to without his illegal investigation.

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None of which applies, because a warrant is NOT EVIDENCE.

I never claimed it was evidence.  I was pointing out that the claim that she would inevitably have been arrested due to the warrant was false.

Seriati

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Re: Arrests and political speech
« Reply #49 on: December 04, 2017, 05:21:17 PM »
Seriati,

we are not in a court of law - it is decietful to use a 'term of art' in a discussion that has a normal meaning drastically different from that in a legal context.

You're being awfully pedantic here.  I wasn't using a term of art, I was calling attention to what you are actually demanding.  You are demanding that her illegal actions be excused, because of an unrelated perceived harm that she suffered.  That's literally what you are asking for.  If you want a legal term of art for the concept, I doubt there is one, cause I've never heard of the concept - anywhere - that someone should be exempted from arrest for prior criminal conduct on the theory they wouldn't have been caught.  In fact, pretty sure you can find cases that stand for the opposite proposition. 

This part of law may come up in the near future though, as it's highly relevant to the illegal immigration arrests that ICE is doing at court houses.  You can probably find better arguments than the ones that you are making if you look at those situations.  The better arguments are going to be policy arguments and due process arguments, rather than abuse of evidence rules.

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I am not excusing her conduct, because excuse in normal discourse is utterly divorced from its usage in a legal conduct.

Assuming she is guilty of fraud, you think she should be forever immune to that prosecution, again because of perceived injustice.  In all forms of the English language you are asking that she be excused from the criminal penalty she is due.  The only thing you are not doing is freeing her from moral culpability.

What if the victim of her fraud sees the news and tracks her down and sues her civilly, where they never would have found her otherwise.  Also immune from that claim?

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Also even the legal meaning doesn't apply here.  An excuse in the legal sense is illegal behavior that should not be prosecuted due to circumstances surrounding the behavior.  Such as 'It is true that my client stole a bike, but it was the only way that he could reach the police in time to prevent a murder'.  Stealing a bike is illegal, but because it was to prevent the greater crime of a murder it is excusable.

If you want to misuse something you think is a term of art feel free.  The only reason we are discussing legal rights is because you are demanding that she be free of consequence for her prior  conduct.

There's literally no legal basis for the what you are asking to occur here, so I thought you wanted to argue about whether its good policy.

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In this case, the actions of the individual should not be prosecuted, not because of the circumstances surrounding her actions, but the circumstances that resulted in her discovery after the fact.

If a murderer that's been on the run for 20 years shows up at a protest can the police that showed up arrest her?  Does it make a difference if they showed up because they hate the protesters and want to catch them on any foot fault they can find?  Does it make a difference if they love the group and are only there to ensure their safety?  What if the protesters are on private property, with permission, and the police enter in response to a fake bomb threat?

What's the bounds of your new right?  You know the right to be immune from prosecution if the police are interacting with you because of your exercise of your free speech rights?

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Thus you are mistaken in referring to this as 'excusing', it is odd that you as a lawyer are misusing a term of art in your own field, though I suppose that your area of practice result in you having had little call to use the word since law school.

It would be odd if I was using a legal term of art, or if we were talking about a real legal doctrine instead of an attempt at a new one.

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Forgoing prosecution due to police misconduct doesn't have a legal term of art (Just confirmed this with a retired municipal court judge and a retired lawyer).

Which shows you a universal truth, if you ask a lawyer a poor question you get misleading advice.  Why don't you ask your friend if the police can arrest someone for an unrelated warrant if they are erroneously interacting with a person (to give you a hint, this happens all the time in traffic stops), but you'll have to separate out the chaff (ie the cases where the police find evidence of a new crime during the traffic stop).

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Well first, you haven't identified an illegal behavior, but second, there's no benefit here.  This is not "discovered evidence" that would not have otherwise been discovered.  There is no legal basis to ignore a valid warrant or to "declare it wouldn't have been  found."  There just isn't.  This woman was literally on borrowed time with respect to such warrant.

We have no evidence of that, and substantial evidence to the contrary.

You literally do not need evidence.  Evasion of a warrant does not create a presumption for freedom.

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She had been stopped a number of times over her sign by police, and the warrant wasn't discovered.  Suggesting that without specific effort it wouldn't have been discovered. There is no evidence she would have had contact with the law that would result in discovery of the warrant.  About 7% of warrants that are openned in a year are open after 3 years.

Which is a fun digression but not remotely related to the strong public policy factors in favor of allowing the police to act on warrants regardless of the reason for the interaction.

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"Any Sheriff's actions" you are correct; his specific actions - you are incorrect.  You keep ignoring his actual behavior, and focus on some hypothetical behavior.  It was a specific threat to coerce her to change her political speech.

No one is ignoring anything.  You've not proven - at all - that there was coercion.  In fact, the actual facts literally point to the opposite, unless you have some evidence she was forced to remove the sticker or charged that you are not sharing?

But my point, was that even assuming your facts are true, I'm not sure you have a winning case.  She'd win if they brought charges, she could probably make a strong defense if they found her pot stash when they arrested her (but even that may not be a winner - as it was probably still found during a legitimate interaction), but there's no rule of law that gets her out of warrants that she gets arrested for during her interaction with the police.

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Again, you've made a mistake.  The warrant wasn't "discovered" it was enforced.

The warrant wasn't in the information he had, it was discovered.  He received knowledge of the warrant via a tip, it wasn't information that he was privy to without his illegal investigation.

The warrant was in the knowledge of the government.  It makes no difference whether he personally knew it, its not new knowledge to the government and can't be excluded.

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None of which applies, because a warrant is NOT EVIDENCE.

I never claimed it was evidence.  I was pointing out that the claim that she would inevitably have been arrested due to the warrant was false.

I didn't claim her arrest was inevitable. 

Let's go further, would you argue that if she was an escaped convict they'd have to let her go?  Why or why not?