LegalMatch: Criminal Law

Snowball Fight Leads to Arrest for Criminal Possession of a Weapon

Snowball fights are a welcome sign of winter.  The sight of kids (and adults) throwing balls of freshly fallen snow at each other is always featured in new stories that winter has finally arrived.   A popular commercial for the Vancouver Olympic Games even featured a multi-country snowball fight.  Unfortunately, playtime can turn to jail time if you start throwing snowballs at police officers.  

Four friends from the Bronx are discovering that the local police are not taking snowballs lightly.  The friends claim that an errant snowball hit an off duty cop in the leg when they were throwing snowballs at each other after a late February storm.  The cop remembers the incident a little different, claiming that he was barraged with snowballs and taunts in a threatening manner.  Pretty soon, the cop had pulled out a gun and calling for backup.

The charge:  criminal possession of a weapon.  And yes, the weapon is the now melted snowballs.

A recent LegalMatch study revealed the major concerns surrounding a charge of possession of a weapon.  Although LegalMatch has never had a case or question surrounding snowballs, convictions of criminal possession of a weapon are often charged as a felony.  Unfortunately, in the case of the Bronx snowball defendants, three of the four individuals charged have previous convictions on their records, which allows the prosecutors in the case to seek a longer punishment.

When I first read this story I had a really hard time equating a snowball to the more commonly charged weapons such as guns and knives.  If a snowball can be classified and charged as a weapon, what else is next?

By: Violet Petran

Is The Threat Of Being Sprayed With Breast Milk Assault? Yes, Yes It Is

No one likes listening to authority.  Whether you’re an 8 year-old being forced by your parents to clean your room or a 38 year-old being forced by your boss to review Excel spreadsheets until the wee hours of the night, no one wants to do what they’re told.  But you know why you have to do it?  Because, like your mommy always told you, because they said so.  And nowhere is this all encompassing authoritative reason better illustrated than when you’re in jail.

Apparently a women from Kentucky (or as they’re known locally, a Kentuckian and not a Kentuckinite as I’ve been saying for years) who was in jail for alcohol intoxication allegedly assaulted a deputy by squirting breast milk in the deputy’s face.

You’re probably thinking, “What?” for a couple of reasons: 1) How was the inmate able to whip her mammary glands without the guards becoming suspicious?  2) Breast milk can go that far?  3) Is spraying breast milk really assault?  And 4) Kentuckian?

The answers: 1) The inmate was changing into her uniform so whipping out said mammary glands wasn’t so unusual. 2) Apparently yes, but who knows how close she was.  3) Yes, more on this later.  And 4) I know, huh?!?

The notion that spraying liquid on someone can be assault may seem a little foreign or (using every lawyer’s favorite word) attenuated.  But in this case it probably seems a little more understandable since it’s a bodily fluid – especially because it’s breast milk.  Though I’m sure many of you can think of a few more disgusting human fluids to toss at someone, human milk is just weird to me.  I mean the whole process of pregnancy, shooting out a baby, and then producing milk just seems too … cow-ish to me. 

Anyway, yes spraying liquid on another person can not only be assault, but you may be surprised that it can also be battery.  Actually the more I think about it, most people who haven’t subjected themselves to the useless study of law will probably be surprised by a lot of the distinctions made in it.

First, to understand why this is a legal issue, a clarification about the difference between assault and battery is in order.  In regular English, the two words are synonyms for each other with no real distinguishable differences.  But in the legal world, assault means the attempt or threat of inflicting harm onto another.  Whereas the battery means when one actually physical harms another person.  The two are treated as two different crimes, meaning assault can occur without battery if the attacker doesn’t actually hurt the victim and even stranger, battery can occur without assault.  The latter situation can occur when a victim gets attacked from behind, the victim doesn’t see the attack coming and therefore cannot perceive the threat of harm and thus the attacker is only guilty of battery.

However, the question here is whether spraying milk on someone can really cause actual harm to them.  Well, maybe in most cases it can’t cause physical harm aside from when it lands on a person who has some sort of rare skin disease that causes them bleed out if lactose touches them.  But seriously, in the criminal law world actual physical harm isn’t as big of an issue.  What matters is the attempt and physical contact itself.  Assault and battery laws are designed to prevent people from freely being able to touch and threaten other people without consequence.  What the law does in most states is typically create different degrees of punishments based on the severity of each assault and battery, usually with the first degree denoting the highest level of severity and so forth.  Hence terms such as first degree assault and third degree battery.

Anyway, the lesson here is an old one: Keep your hands, feet, elbows, breast milk, flying shoes, etc. to yourself.

By: Andrew Dat

The Law of The Middle Finger

“The Bird,” “The Finger,” “Half of a Peace Sign,” “The Freeway Salute.” Whatever you call it, it’s a strange thing. It’s nothing more than the raising of a finger in somebody else’s general direction, yet, for almost everyone, it immediately expresses a huge range of emotions, including hatred, contempt, and anger. In that respect, it’s pretty useful as a tool for quick non-verbal communication, even though it rarely communicates anything pleasant.

Likewise, being the target of this gesture can elicit rage, sorrow, and just about any other negative emotion you can think up.

There’s no denying that this simple hand gesture has a significant emotional impact. But can it ever be prohibited by law? A lighthearted but exhaustively-researched article argues that the answer is almost always “no,” arguing that, in most circumstances, giving the finger would be considered protected speech under the First Amendment.

While the act of giving the finger does not involve “speech,” in that it is entirely non-verbal, it is considered “expressive conduct,” which the U.S. Supreme Court has ruled is entitled to the same protection as verbal expression.

Recently, a man in Oregon has filed a lawsuit against his local sheriff’s department, alleging that they had no reason to arrest him when he displayed the gesture to some sheriff’s deputies. Indeed, he was arrested for that gesture, but was released without being charged with a crime. The lawsuit is still underway, but it is likely that the U.S. District Court will rule that the gesture is protected speech, though it may not award the plaintiff all of the remedies he is requesting, which include damages and injunctions – remedies not usually granted in First Amendment cases.

Of course, most of us intuitively know that not all speech or expressive conduct is protected by the First Amendment. The Supreme Court has repeatedly ruled that states can prohibit so-called “fighting words” – speech that, by its very nature, would provoke violence in a normal person. However, it’s not likely that the middle finger would meet that standard in most circumstances. After all, most of us have been the target of this gesture at least once in our lives, and the vast majority of people don’t respond to it with violence – they either give the finger right back, utter an insult, or (so I’ve heard, but I’m skeptical) realize the error of their ways and apologize for provoking the gesture in the first place.

It seems that this general assumption that insulting gestures are constitutionally protected is a positive good. In general, Americans place a huge premium on free expression of virtually all emotions and ideas, with the attitude that if some people are offended or insulted by non-violent expressive conduct, so be it. While the middle finger isn’t the most versatile or tactful mode of expression, it is certainly a powerful one. Furthermore, while flipping a police officer the bird may be disrespectful and ill-advised (after all, what if the police officer is having a bad day and isn’t up to speed on the Supreme Court’s 1^st Amendment jurisprudence?), it should not, without more, be criminally punishable.

By: Rusty Shackleford

Belong to a Terrorist Organization? Please Register with the Secretary of State

State legislatures have passed silly and nonsensical laws before. There have also been jokes about governments attempting to subject activity which is inherently criminal to non-criminal regulations (sort of like an airline imposing a “bomb fee”), as if a criminal organization which has no trouble committing repeated acts of theft and murder will be deterred by a bureaucratic nonsense.

Well, it seems that, in South Carolina, according to Raw Story, life is imitating satire. Last year, South Carolina passed a law (which is now officially on the books) requiring “subversive organizations” whose express mission is the violent overthrow of the U.S. government to register with the Secretary of State. Also, they have to pay a $5 filing fee. After all, if there’s one thing that violent anti-government groups won’t do, it’s lying to the government.

I can see it now: an underground, ultra right-wing organization determined to destroy the federal government assembles in Idaho (for example). After years of preparation and stockpiling weapons, their plan to storm the capital is nearly complete. They just need to branch out to every other corner of the country, and recruit more people to their cause. Then their in-house counsel comes rushing into the commander’s bunker, or whatever, a printed copy of this statute in hand and exclaims “this whole thing is off! South Carolina will require us to register, or we’ll be fined! Pack it in, we’re done.”

Just in case you’re thinking of forming a subversive organization, the official registration form can be found here, for your convenience.

I really have to wonder what the person who drafted this statute was thinking. Clearly, no one could seriously think that a terrorist organization would bother to follow this law.

Maybe this means that real terrorist groups aren’t the target. Perhaps this is simply a money-grab, or an attempt to chill the expression of groups with very extreme views, but which are mostly non-violent. Under this law, the government could try and make a case that such groups are “subversive organizations,” and that they failed to register. It’s an easy way to collect a $25,000 fine.

It’s also probably unconstitutional, if this is the true intent of the law. At the very least, it would probably be unconstitutional as applied to groups which aren’t really subversive, especially if it could be shown that it chilled their constitutionally-protected activities in South Carolina (such as giving speeches, distributing literature, holding meetings, etc.). This law could be a very effective way to do this.

Suppose an extreme right wing organization, which believes that the current federal government is illegitimate, wants to protest somewhere in South Carolina. Also suppose that this group, while pining for the fall of the federal government, does not in any way advocate violence, nor has it taken any affirmative steps to that end.

They would have to weigh the options of registering as a “subversive organization” – even though they don’t believe themselves to be one, which would seriously discredit their message (assuming anyone outside the organization actually took them seriously), or they could go in, and fail to register, risking the state declaring them a subversive organization, and imposing a large fine. This might discourage them from going to South Carolina (or any other state with similar laws, if this catches on) altogether.

For most people, this is not a big deal. After all, who wants to listen to the ravings of a bunch of paranoid wingnuts, or neo-Nazis, or extreme leftists, or any other fringe group? But it is sometimes forgotten that that the right to free speech, if it means anything, must protect unpopular views. After all, it wasn’t so long ago that ideas like equal rights for African-Americans, or women’s suffrage were considered pretty far out there. It’s entirely possible that groups advocating these positions would have been punished by laws such as this one, had they existed at the time.

BY: Rusty Shackleford