Law Trivia and Discussions

[tvc184]

A pastor decides to start preaching from a sidewalk in public. He is using his First Amendment rights of freedom of speech, freedom of religion and freedom of assembly.

Some people don’t like what he is saying (remembering that the very intent of freedom of speech is to be able to offend people). They start yelling at him and he starts calling all organized religion a racket. People get angry and call the police. They hear the man say that they are a bunch of damned fascists. He accuses the people in the crowd as being damned racketeers.

The police get tired of his nonsense and arrest him for disturbing the peace.

Is it freedom of speech, assembly and religion therefore a violation of First Amendment rights or a lawful arrest? 

[rupert3]

That's a good one.  Not sure how to answer it other than maybe he is inciting a riot.  You say the police get tired of his nonsense.  Not sure if it's their decision to decide if his nonsense is breaking the law.

[tvc184]

1 hour ago, rupert3 said:

That's a good one.  Not sure how to answer it other than maybe he is inciting a riot.  You say the police get tired of his nonsense.  Not sure if it's their decision to decide if his nonsense is breaking the law.

What if he is not arrested for inciting a riot but for disturbing the peace for the words he used and location?

The Supreme Court has stated that no words can be banned. Situations can be. Both state and federal courts have ruled that flipping the bird at the police for example, is free speech. In a recent case from 2021 the US Supreme Court ruled that a student going on an F bomb rant on social media had her rights violated when she was kicked off the cheerleading squad. She was on the JV squad but missed the varsity squad so she did her snapchat tirade saying to xxxx school, softball, cheerleading, etc. She was kicked off of the JV squad for violating school rules. SCOTUS in Mahanoy v. BL in an 8-1 decision said that her free speech was violated because although she said her comments about “school”, “softball”, etc., she never demeaned her school, teachers and so on . It was just a non-specific screw everybody rant.

This is the hidden content, please

• Sign In
• or
• Sign Up

So under inciting, what if it was a pro Trump supporter who was simply standing there in public saying that Trump is great?  A crowd gathers and starts throwing rocks.  Does the Trump supporter go to jail for inciting?

If so, any free speech can be negated simply by causing violence against the free speaker.

So, I am not saying that you are wrong but wanted to make those legal positions known.

Any reconsidering or anyone else want to comment? 

 

[LumRaiderFan]

Doesn’t look like either group did anything that called for an arrest to me.  No one had gotten violent, simply an elevated argument.

[tvc184]

26 minutes ago, LumRaiderFan said:

Doesn’t look like either group did anything that called for an arrest to me.  No one had gotten violent, simply an elevated argument.

That is an interesting take on it.

 The question then becomes, does violence have to occur before any disturbing the peace or (as Rupert suggested), inciting a riot?

Again, not saying that you are right or wrong but these types of questions come up in cases and in fact in front of the Supreme Court. If you ever listen to the arguments, sometimes you were hear a justice ask something like…. well if that is true does that mean blah blah? 

[LumRaiderFan]

9 hours ago, tvc184 said:

That is an interesting take on it.

 The question then becomes, does violence have to occur before any disturbing the peace or (as Rupert suggested), inciting a riot?

Again, not saying that you are right or wrong but these types of questions come up in cases and in fact in front of the Supreme Court. If you ever listen to the arguments, sometimes you were hear a justice ask something like…. well if that is true does that mean blah blah? 

What I took from your original post was that the police "got tired of his nonsense".  In this story I would have been tired of the other side's nonsense, but I wouldn't consider either a reason to be arrested.  I can appreciate the situation police are in when they come upon a scene like this...nothing has been done that would be illegal but common sense tells them that if they don't intervene, something bad is going to happen, if they don't, then come the "why didn't they do something" critics.

[baddog]

On 3/22/2023 at 11:21 PM, tvc184 said:

Right has ROW at intersections. Left has ROW when vehicles are moving into the same lane. 

Someone needs to inform the drivers. lol. I can’t tell you how often people pull up to a four way blinking red signal and have no clue who is next. 

[SmashMouth]

11 hours ago, tvc184 said:

What if he is not arrested for inciting a riot but for disturbing the peace for the words he used and location?

The Supreme Court has stated that no words can be banned. Situations can be. Both state and federal courts have ruled that flipping the bird at the police for example, is free speech. In a recent case from 2021 the US Supreme Court ruled that a student going on an F bomb rant on social media had her rights violated when she was kicked off the cheerleading squad. She was on the JV squad but missed the varsity squad so she did her snapchat tirade saying to xxxx school, softball, cheerleading, etc. She was kicked off of the JV squad for violating school rules. SCOTUS in Mahanoy v. BL in an 8-1 decision said that her free speech was violated because although she said her comments about “school”, “softball”, etc., she never demeaned her school, teachers and so on . It was just a non-specific screw everybody rant.

This is the hidden content, please

• Sign In
• or
• Sign Up

So under inciting, what if it was a pro Trump supporter who was simply standing there in public saying that Trump is great?  A crowd gathers and starts throwing rocks.  Does the Trump supporter go to jail for inciting?

If so, any free speech can be negated simply by causing violence against the free speaker.

So, I am not saying that you are wrong but wanted to make those legal positions known.

Any reconsidering or anyone else want to comment? 

 

The only thing that comes to mind would be disorderly conduct. Not sure though...

[thetragichippy]

12 hours ago, tvc184 said:

What if he is not arrested for inciting a riot but for disturbing the peace for the words he used and location?

The Supreme Court has stated that no words can be banned. Situations can be. Both state and federal courts have ruled that flipping the bird at the police for example, is free speech. In a recent case from 2021 the US Supreme Court ruled that a student going on an F bomb rant on social media had her rights violated when she was kicked off the cheerleading squad. She was on the JV squad but missed the varsity squad so she did her snapchat tirade saying to xxxx school, softball, cheerleading, etc. She was kicked off of the JV squad for violating school rules. SCOTUS in Mahanoy v. BL in an 8-1 decision said that her free speech was violated because although she said her comments about “school”, “softball”, etc., she never demeaned her school, teachers and so on . It was just a non-specific screw everybody rant.

This is the hidden content, please

• Sign In
• or
• Sign Up

So under inciting, what if it was a pro Trump supporter who was simply standing there in public saying that Trump is great?  A crowd gathers and starts throwing rocks.  Does the Trump supporter go to jail for inciting?

If so, any free speech can be negated simply by causing violence against the free speaker.

So, I am not saying that you are wrong but wanted to make those legal positions known.

Any reconsidering or anyone else want to comment? 

 

My guess is disorderly conduct. If he is on a sidewalk (don't you need a permit to "assemble"?) and he may make an unsafe atmosphere by gathering a crowd near building entrances and roadway......but I honestly have no idea....

[tvc184]

5 hours ago, LumRaiderFan said:

What I took from your original post was that the police "got tired of his nonsense".  In this story I would have been tired of the other side's nonsense, but I wouldn't consider either a reason to be arrested.  I can appreciate the situation police are in when they come upon a scene like this...nothing has been done that would be illegal but common sense tells them that if they don't intervene, something bad is going to happen, if they don't, then come the "why didn't they do something" critics.

It is somewhat correct (I am assuming from experience) that the police were tired of his nonsense. They used a criminal charge to end the disturbance. That is fairly common actually.

Discretion is a major part of law enforcement and criminal justice which is okay as long as it is legal. This case of disturbing the peace (disorderly conduct) went all the way to the Supreme Court.

Read on…

[tvc184]

2 hours ago, thetragichippy said:

My guess is disorderly conduct. If he is on a sidewalk (don't you need a permit to "assemble"?) and he may make an unsafe atmosphere by gathering a crowd near building entrances and roadway......but I honestly have no idea....

No permit is required to be assemble for a protest. That would be a violation of the First Amendment in my opinion. Cities can require a permit for things like a parade if a march would block the road.

This particular case is Chaplinsky v. New Hampshire. The US Supreme Court decisión was unanimous.

 The criminal charges were upheld and he was not protected by the First Amendment.

This is the hidden content, please

• Sign In
• or
• Sign Up

 

 

[tvc184]

The Chaplinsky decision gave us “fighting words” or words that would cause an immediate breach of the peace. That is why I said in another comment, words cannot be banned but situation may be.

 This is a quote from the several pages of the decision:

…… "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument."

 Then this quote:

 . . The English language has a number of words and expressions which, by general consent, are 'fighting words' when said without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a fight.

And:

The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker -- including 'classical fighting words,' words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats."

It is not the words but the kind of in your face provocation that incites a breach of the peace or tends to start a fight.

 There is a line to be drawn on what is free speech and what may be a crime.

So it is a protected right to get on a podium and say that Trump, Biden or any other public person is an idiot, should be jailed, is a low life piece of crap or whatever. While it will certainly make some people very angry, those are not funny words. It’s the same guy, giving a public speech, jumped off the podium and got in your face and started pointing his finger and saying, “YOU are a $&/£€ and your family is !-@%¥!!!!”…. those would likely be fighting words.

Think of two guys on a corner in public chatting amongst themselves. They are using a racial slur towards each other in casual conversation. So they for example, calling each other Bob for the most offensive word you can think of for any particular group. It goes like….

“Hey Bob”   
“What’s up my Bob”

Are they offended? Hardly or as we have heard, it’s a friendly word of endearment.

But along comes a guy, typically from another culture, who points a finger and says…

“Hey Bob! You are causing problems in our neighborhood”

Would the same word(s) tend to be seen as harmless in one situation and fighting words in the other?

Or a person gets on a loud speaker at 2:00am and starts yelling Vote Democrat! The whole neighborhood is now awake. Would that seem to cause an immediate breach of the peace? In that case it is not profanity, not slurs, not directed at anyone in particular and a purely protected political opinion. Breach of the peace?

In my example in the first comment I made was about Chaplinsky preaching and giving an opinion publicly. It was not at 2:00am and probably on a busy street. People could simply ignore him and go about their business or engage him likewise . He is absolutely has that right. It goes south however when he starts shouting at people and starts calling them an offensive names such as damned fascists. Especially think of the time frame and the political atmosphere (I think 1940)  with WWII having begun with the nazis and fascists trying to take over the world.

All rights have limitations. The Supreme Court has unanimously decided that fighting words cross that line.

[tvc184]

I would not speak for other police officers but I would believe that some (Most? All?) tend to be humored when people are standing in the middle of the street shouting, cursing, etc. and when told to be quiet… follow up with, “It’s my right!!”.

The SCOTUS disagrees……

[tvc184]

4 hours ago, SmashMouth said:

The only thing that comes to mind would be disorderly conduct. Not sure though...

Disorderly Conduct might definitely be an issue face to face. It is not on a social media rant. 

[tvc184]

6 hours ago, LumRaiderFan said:

What I took from your original post was that the police "got tired of his nonsense".  In this story I would have been tired of the other side's nonsense, but I wouldn't consider either a reason to be arrested.  I can appreciate the situation police are in when they come upon a scene like this...nothing has been done that would be illegal but common sense tells them that if they don't intervene, something bad is going to happen, if they don't, then come the "why didn't they do something" critics.

This was exactly Chaplinsky. What you call correctly, something is going to happen…. SCOTUS and state laws call a breach of the peace.

 And yes, the police got tired of his nonsense but used a lawful city ordinance to end it.

Probably thousands of times every day police officers in this country are called to situations such as this. The most common response from the officers is, leave or shut up. There is no required warning to enforce the law yet I see (and have done) on hundreds of occasions where officers are demanding or practically begging people to stop. Just leave or just be quiet. Sometimes they don’t heed the warning.

The police in Chaplinsky didn’t run in with handcuffs. They simply said be quiet and move on. They already had a valid criminal charge on him but like 99.8% of the time, they tried to end it without action.

Chaplinsky wasn’t about to get his rights be stopped! 

[LumRaiderFan]

Interesting stuff, enjoying the forum.

[thetragichippy]

me too

[tvc184]

An easy one….

Lex specialis derogat legi generali

Using that Latin phrase as a guideline for this discussion:

Texas has 30+ codes. Probably the most well known for most people is the Penal Code. That is most crimes that we normally think of like murder, theft, assault, cruelty to animals, DWI, trespassing, etc. There are other fairly common criminal offenses that are not in the Penal Code. Most traffic laws are in the Transportation Code. Possession of drugs like cocaine or marijuana are in the Health and Safety Code. While juveniles can be charged with any of those crimes just like an adult, how to handle them is in the Family Code, etc.

For the police and prosecutors, probably the most important code is the Code of Criminal Procedure(CCP). While those other codes define what is a crime, there is nothing in those codes that say a person can be arrested, charged in a crime, how or when arrests can be made (particularly without a warrant), how charges are brought to court against a person, how much force can be used, what is allowed as evidence, when and how are confessions made and so on.

So while the Penal Code says that it is a crime to assault a person, okay, then what? For that we have the CCP.

Back to Lex specialis….

 In the CCP in Chapter 14 is where it gives the circumstances to make a lawful arrest without a warrant. Right at the beginning we have the first section (14.01) which says:

CHAPTER 14. ARREST WITHOUT WARRANT

Art. 14.01. OFFENSE WITHIN VIEW.  
(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

In (a) it says that “any” person may arrest for an offense (crime) within his presence or view if it is a felony. That is the citizen’s arrest law. If any person witnesses a felony, he can lawfully make an arrest just as if a police officer. Presence or view in this case means that you don’t have to see it. View means that you actually saw a crime happen. But what if you didn’t actually see it? You heard glass break at 2:00am and looked around the corner of a closed business and saw a man with a hammer in his hand and broken glass on a store and getting ready to step inside to commit a burglary. Was it in your view? No. Was it in your presence? Yes. So in that case an arrest would likely be lawful. There was probable cause to make a reasonable person believe that a burglary was in progress, which is a felony, and it was within your presence. You were close enough to know that a crime happened. Also note that under citizen’s arrest is it lawful to make an arrest for a misdemeanor within a person’s view or presence if it’s a breach of the peace. That kind of goes back to the discussion on Chaplinsky but several crimes such as DWI have been ruled by courts as a breach of the peace. I am not suggesting by any imagination that people should go out and start trying to arrest other people. There are certainly certain circumstances that make it lawful, however. If you see an assault in progress feel compelled to step in,   a citizen arrest might be lawful. 

But that wasn’t the question or comment that I had in mind.

In (b) you can see that police (peace) officers can arrest for ANY offense within presence or view. So if an officer sees you driving a motor vehicle at night on a public roadway and your license plate light is out, he can arrest you without warning and take you to the county jail. In Port Arthur there is a city ordinance that if you cross a street not at a crosswalk, it must be straight across the road (crossing the roadway at less than 90°). So if you walk like a 45° angle across the street, you can be arrested even though it’s not a state crime but only a city ordinance. 

 That is clear enough. If a cop, witnesses a crime, even the most minor of crimes, he can make an arrest.

Right?

 

 

 

 

[tvc184]

Since there are no comments….

No, it is not correct that an officer can arrest for any crime witnessed even though there is a law that clearly says an officer can arrest for any crime within his presence or view.

Lex specialis derogat legi generali means the specific over the general.

You can translate that to mean that if there is a law (or part of a contract) that appears to conflict with another, the specific law is to be followed, not the general law.

In this case you have a law that says an officer can arrest for any offense but in the Transportation Code (traffic laws are in that code) we have this:

Sec. 543.004. NOTICE TO APPEAR REQUIRED: CERTAIN OFFENSES.  
(a) An officer shall issue a written notice to appear if:   
(1) the offense charged is:   
   (A) speeding;   
   (B) the use of a wireless communication device under Section 545.4251; or   
   (C) a violation of the open container law, Section 49.031, Penal Code; and

(2) the person makes a written promise to appear in court as provided by Section 543.005.

So an officer cannot make an arrest for speeding, texting or open container of alcohol as long as the person agrees to sign the citation which is an arrest (on Texas) but a promise to appear in court to plea guilty or not guilty and ask for a trial. It has the effect of being arrested and signing yourself out of jail on your own recognizance since all traffic citations in Texas are considered an arrest.

Another example of lex specialis is Trespassing in Texas is usually a B misdemeanor that carries up to 6 months in jail and/or up to a $2,000 fine. But if on school grounds, in the Education Code there is this:

Sec. 37.107. TRESPASS ON SCHOOL GROUNDS. An unauthorized person who trespasses on the grounds of any school district of this state commits an offense. An offense under this section is a Class C misdemeanor.
 

So trespassing on school grounds is only a C misdemeanor, carrying a maximum fine of $500 and no jail time. I am assuming this is like the angry momma law. A parent (or any person) is causing a disturbance at school because of an issue with a child and is asked to leave but stays to keep arguing. The problem has to be solved but do we really think that momma needs to spend 6 months in jail. Or perhaps an angry parent/person at a high school baseball game that refuses to leave after being thrown out by an umpire. 

So under the concept of lex specialis, trespassing at a business would be the B misdemeanor but there is a specific law for trespassing on school district grounds of a C misdemeanor and a fine only. 

[SmashMouth]

45 minutes ago, tvc184 said:

So under the concept of lex specialis, trespassing at a business would be the B misdemeanor but there is a specific law for trespassing on school district grounds of a C misdemeanor and a fine only. 

Very interesting.

[WOSdrummer99]

42 minutes ago, SmashMouth said:

Very interesting.

That may need to change. I'd assume there are stiffer penalties for trespassers with previous convictions and/or ones with intent to harm.

What you say @tvc184

[tvc184]

34 minutes ago, WOSdrummer99 said:

That may need to change. I'd assume there are stiffer penalties for trespassers with previous convictions and/or ones with intent to harm.

What you say @tvc184

There is  no enhancement for C misdemeanors in general and none for trespassing on school grounds. If there was then it would be listed in the same section that I posted. Usually the law is phrase something like… It is a C misdemeanor, however with a prior conviction, will become a B misdemeanor.

A C misdemeanor by law usually carries no future burden however… (remember lex specialis) there are specific laws such as any degree of theft can be enhanced to a felony. So, if a person steals a television from Walmart and gets convicted of a class B misdemeanor and then a couple of years later gets caught doing the same thing. That is two prior convictions. If the person then gets caught stealing a $1 pack of gum after that, the district attorney has the option of filing felony charges for the $1. It is technically not a class C misdemeanor being enhanced  but the theft law, which says any theft can become a felony with two prior convictions. 

With what you mentioned, if there is intent to commit another crime then it would likely be another and more serious crime. Stalking, Assault, weapons on school property, etc.

Even in the trespassing situation at a school, according to what happened, an officer might have additional charges as options. Examples would be if the person is yelling profanities then it could be disruption of a class or disorderly conduct such as discussed under the Chaplinsky case. Those are still both C misdemeanors however just as an example, there are often more than one law violated. If the person is on school grounds doing something more serious than just yelling then there’s a good chance of a more serious crime.

An example of that would be if a guy beats up his ex girlfriend. Under Texas law that would be covered under Family Violence (called “Domestic Violence” in most states). In such a case, the victim could get a Protective Order (people often call it a restraining order which is incorrect) on the suspect. The Protective Order could restrict the suspect from being on school grounds where the victim attends school. In that case to go on school grounds would not be a trespass, but Violation of Protective Order.

I could be up to a year in jail and a $4,000 fine. What may be interesting in a Protective Order is that it is a mandatory arrest for the violation if it occurs in the presence of a police officer. An officer is not required to make an arrest even in a murder but is absolutely required to make an arrest for the violation of a protective order if he witnesses the violation. Also a Protective Order can not be negated  by the victim. If the girlfriend/victim makes up with her ex boyfriend but he has a Protective Order and is found to violate the order (such as being at a school) the victim cannot stop the mandatory arrest. If an officer fails to make the mandatory arrest, he violates the law and can personally be sued.

That is just a single example but in such cases where the person is on school property to cause a problem, the class C misdemeanor trespass is probably the least of his worries. 

[WOSdrummer99]

12 minutes ago, tvc184 said:

There is  no enhancement for C misdemeanors in general and none for trespassing on school grounds. If there was then it would be listed in the same section that I posted. Usually the law is phrase something like… It is a C misdemeanor, however with a prior conviction, will become a B misdemeanor.

A C misdemeanor by law usually carries no future burden however… (remember lex specialis) there are specific laws such as any degree of theft can be enhanced to a felony. So, if a person steals a television from Walmart and gets convicted of a class B misdemeanor and then a couple of years later gets caught doing the same thing. That is two prior convictions. If the person then gets caught stealing a $1 pack of gum after that, the district attorney has the option of filing felony charges for the $1. It is technically not a class C misdemeanor being enhanced  but the theft law, which says any theft can become a felony with two prior convictions. 

With what you mentioned, if there is intent to commit another crime then it would likely be another and more serious crime. Stalking, Assault, weapons on school property, etc.

Even in the trespassing situation at a school, according to what happened, an officer might have additional charges as options. Examples would be if the person is yelling profanities then it could be disruption of a class or disorderly conduct such as discussed under the Chaplinsky case. Those are still both C misdemeanors however just as an example, there are often more than one law violated. If the person is on school grounds doing something more serious than just yelling then there’s a good chance of a more serious crime.

An example of that would be if a guy beats up his ex girlfriend. Under Texas law that would be covered under Family Violence (called “Domestic Violence” in most states). In such a case, the victim could get a Protective Order (people often call it a restraining order which is incorrect) on the suspect. The Protective Order could restrict the suspect from being on school grounds where the victim attends school. In that case to go on school grounds would not be a trespass, but Violation of Protective Order.

I could be up to a year in jail and a $4,000 fine. What may be interesting in a Protective Order is that it is a mandatory arrest for the violation if it occurs in the presence of a police officer. An officer is not required to make an arrest even in a murder but is absolutely required to make an arrest for the violation of a protective order if he witnesses the violation. Also a Protective Order can not be negated  by the victim. If the girlfriend/victim makes up with her ex boyfriend but he has a Protective Order and is found to violate the order (such as being at a school) the victim cannot stop the mandatory arrest. If an officer fails to make the mandatory arrest, he violates the law and can personally be sued.

That is just a single example but in such cases where the person is on school property to cause a problem, the class C misdemeanor trespass is probably the least of his worries. 

My take from that.

Law does not try to keep criminals away from elementary schools unless previously stated in some other form. Such as registered sex offenders not being allowed within so many feet. And relys more on other laws, such as no guns or drugs on campus, to arrest and prosecute.

Just think it's strange with all the incidents at schools. There should be more restraints on who can be on campus during school hours at elementary schools.

[SmashMouth]

3 hours ago, WOSdrummer99 said:

My take from that.

Law does not try to keep criminals away from elementary schools unless previously stated in some other form.

I can definitely appreciate where you're coming from, but looking at a wide profile of a school shooter, it's not usually a "criminal" necessarily:

Male

Caucasian

Withdrawn (pulls back from school activities)

Isolated or rejected from peers

Living in a rural community

Have easy access to weapons

Bullied repeatedly from a young age (there is a point when the bullied child flips roles and becomes the bully)

From a troubled home

Often times it is a student/former student that fits the characteristics above.

[tvc184]

44 minutes ago, SmashMouth said:

I can definitely appreciate where you're coming from, but looking at a wide profile of a school shooter, it's not usually a "criminal" necessarily:

Male

Caucasian

Withdrawn (pulls back from school activities)

Isolated or rejected from peers

Living in a rural community

Have easy access to weapons

Bullied repeatedly from a young age (there is a point when the bullied child flips roles and becomes the bully)

From a troubled home

Often times it is a student/former student that fits the characteristics above.

Okay. When I was talking about trespassing, I didn’t know that you were implying an active shooter.

 There is nothing in criminal law that I am aware of that can stop a person with an obsession and the time to plan.