THE GROWING POLICE STATE – FREEDOM FADING

THE GROWING POLICE STATE – FREEDOM FADING
Editorial Opinion – Freedom Works Foundation 1-27-2013

Chris Hawkins is one of a number of protesters who charged with trespass on the Virginia capitol grounds in violation of 18.2-119 and unlawful assembly in violation of 18.2-406 on March 3, 2012 while protesting legislation.  His story did not end on May 25, 2012 when the unlawful assembly charge was dismissed or on September 21, 2012 when the trespass charge was dismissed.

The bizarre twist began earlier when somebody using Hawkins’ laptop computer read the March 13, 2012 article in Style Weekly (fn1) critical of the excessive show of force aimed at stifling expression of these protesters   The creative satirist using Style Weekly’s public site  on March 13, 2012 at approximately 6:48:23 PM EST at the Student Commons area of VCU, using that laptop, forwarded the article to the Richmond City Commonwealth Attorney Michael Herring, and satirically identifying the “sender” as the chief of the capitol police, Colonel A.S. Pike, asking that the charges be dropped.  The addresses for the chief of the capitol police and the Commonwealth Attorney were also available online, as michael.herring@richmondgov.com and chiefsoffice@dcp.virginia.gov.  The message read, “We’re getting clobbered in the court of public perception.  Let’s end all this and drop all the charges.” While most who have heard of the incident have howled with laughter at the satire, unfortunately law enforcement did not.

A special agent with the Virginia State Police was assigned to address this satire.  By diligent and skillful computer forensics (simply looking at the header information contained in all emails) the officer tracked the email to VCU, and then with the assistance of VCU’s IT folks determined that the IP address had been assigned to a laptop logged onto the internet at VCU Student Commons by Chris Hawkins.  A search warrant was issued on April 17, 2012, in relationship to offenses described on the search warrant as “18.2-172- Forge and Utter; 18.2-174 – Impersonating an Officer; 18.2-460 – Obstructing Justice.”

However, “forgery” as defined by Virginia courts (fn2) is the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.  Here the spoofed email has no legal efficacy–even if it had come from the capitol police.  (The capitol police have no right to direct the Commonwealth Attorney to drop the charges.)  In short, citing this charge as a basis for the search warrant is almost as big a joke as the spoofed email–the only difference, in light of the protections of the First Amendment, the criminal charge would itself be unlawful.

Similarly the search warrant would not be properly based on the charge of impersonating an officer under Virginia Code § 18.2-174.  That statute reads § 18.2-174.  Impersonating officer. “Any person who shall falsely assume or exercise the functions, powers, duties and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or who shall falsely assume or pretend to be any such officer, shall be deemed guilty of a Class 1 misdemeanor.”  A federal court examining the application of this statute, found it significant that the mislead party was not a civilian, but an experienced police officer.  The court also noted that convictions of impersonation statute violations are few in Virginia.  In Englis v. Commonwealth, one of the few cases supporting a conviction, a civilian pulled over a vehicle and with a badger around his neck and identified himself as a special agent to civilians demanding identification from the driver.   Sending an email with comments about the beating the Commonwealth was receiving in the press is simply not one of the “functions, powers, duties and privileges incident to the officer of sheriff, police officer, marshal, or other peace officer.”  Once again, in my opinion, the criminal charge is targeted at punishing this young man for his comical satire.

Finally, the charge of obstructing justice under Virginia Code § 18.2-460 would be ridiculous.  Unfortunately, this charge is routinely and improperly levied against individuals who manage to irritate law enforcement.  The statute reads in pertinent part, § 18.2-460.  Obstructing justice; penalty “A. If any person without just cause knowingly obstructs a … attorney for the Commonwealth, …in the performance of his duties as such … he shall be guilty of a Class 1 misdemeanor.” Virginia courts have repeatedly made it clear that this section requires “actual hindrance or obstruction of the officer,” “opposition or resistance by direct action.” (fn3) “Obstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person’s conduct merely renders the officer’s task more difficult” or “frustrates [his or her] investigation.” (fn4)  A conviction for violation of the statute requires proof of “‘acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by direct action. . . . It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.'” (fn5)

Nevertheless the search was conducted on April 19, 2012.  In addition to all of his electronics the police recovered marijuana for which he was charged as a first time offender.  The marijuana charges were dismissed on November 14, 2012.

Chris Hawkins must have sighed a sigh of relief that the twilight zone repercussions of exercising his First Amendment right to speech had finally ended–only the sigh came too soon.  On December 13, 2012 he received an early Christmas present — he was arrested on three charges:  violation of § 18.2-174 impersonation of law enforcement; violation of § 18.2-152.4 making unauthorized copy of computer data; and violation of §18.2-186.3 identity theft, all stemming from the satire of March 13, 2012. (fn6)

As previously described the impersonation charge is not well founded.  The charge for violating § 18.2-152.4 making an unlawful copy is simply ridiculous.  In pertinent part, Virginia Code § 18.2-152.4 states “It shall be unlawful for any person, with malicious intent, to …use a computer or computer network to make or cause to be made an unauthorized copy, in any form, including, but not limited to, any printed or electronic form of computer data …communicated by, or produced by a computer or computer network.”   Presumably this charge is in connection with either copying the emails from the capitol police or the commonwealth attorney.    Yes, this sort of draconian charge against Chris Hawkins makes me wonder if I’m next.   It most certainly chills speech.   As applied to Chris Hawkins it violates his First Amendment rights and is unconstitutionally overly broad.  There is nothing to support the notion that Chris Hawkins deprived anybody of computer files or records. (fn7)  Any theory by the Commonwealth that the use of the email addresses exceeded the right or permission of the public to use the published emails for the satirical First Amendment expression is truly more ridiculous than the satire. (fn8)

Finally, Chris Hawkins was charged with violation of § 18.2-186.3, Identify Theft.  Under Virginia Code § 18.2-186.3, “It shall be unlawful for any person to use …identifying information of another person…to avoid … prosecution or to impede a criminal investigation.”  It would be a far stretch to suggest that the use of the name and email of the chief of the capitol police in this satire was not protected by the First Amendment or that it was used “to avoid…prosecution” or to “impede a criminal investigation.”   By definition “impede” means more than a few chuckles.  It means to prevent movement.  The Commonwealth Attorney was free to do whatever he wanted—he was not prevented from pursuing any criminal investigation.

Under the threat of unrelenting weight of the government prosecution, it appears Chris Hawkins’ knees buckled on January 22, 2013, causing him to accept a plea bargain by pleading guilty to violation of §18.2-174, impersonating a law enforcement officer for which he was sentenced to 6 months in jail with 5 months and 22 days of that sentence suspended for 3 years with the other two charges dropped on the motion to nolle prosequi.  However, it also appears that he mustered the courage to rise from his knees with defiance against the tyrant and appealed on January 23, 2013 to the Circuit Court.

He faces an uncertain future.    It is likely that the Commonwealth will again charge him with the two charges dropped under the plea agreement.  This case exemplifies the danger to all citizens of the Commonwealth where a growing police state looms against complacent citizens.

Your have the right under the First Amendment to petition the government.  You are encouraged to petition the government for redress of these grievances.  You may wish to email both michael.herring@richmondgov.com and chiefsoffice@dcp.virginia.gov.

Those who do, may wish to familiarize themselves with Cohen v. California, 403 U.S. 15, 16, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (holding that defendant had a First Amendment right to wear a jacket reading “Fuck the Draft” in a municipal courthouse although there were “women and children present”).

First Amendment to United States Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Virginia Constitution, Article 1, Declaration of Rights, Section 12. Freedom of speech and of the press; right peaceably to assemble, and to petition.

That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.

FREEDOM WORKS FOUNDATION

NOTE:

1) http://www.styleweekly.com/richmond/crimes-of-expression/Content?oid=1685831

2) Bullock v. Commonwealth, 205 Va. 558, 138 S.E.2d 261 (1964); Bateman v. Commonwealth, 205 Va. 595, 139 S.E.2d 102 (1964); Moore v. Commonwealth, 207 Va. 838, 153 S.E.2d 231 (1967); Fitzgerald v. Commonwealth, 227 Va. 171, 313 S.E.2d 394 (1984).

3) Polk v. Commonwealth, 4 Va. App. 590, 358 S.E.2d 770, 772-73 (Va. App. 1987).

4) Ruckman v. Commonwealth, 28 Va. App. 428, 505 S.E.2d 388, 389-390 (Va. App. 1998).Rogers v. Pendleton, 249 F.3d 279, 291 (4th Cir. Va. 2001)

5) Ruckman, 505 S.E.2d at 389 (quoting Jones v. Commonwealth, 141 Va. 471, 126 S.E. 74, 77 (Va. 1925)).

6) 18.2-174 – impersonation: Law Enforcement – 6 months with 5 months 22 days suspended for 3 years on 1/22/2013.   The case was appealed to the Circuit Court on 1/23/2013. (Brown, R.J. VSP) arrest date 12/13/2012

18.2-152.4 – Make unauthorized copy of computer data – offense date 3/13/2012 – nolle prosequi on 1/22/2013 (Brown, R.J. VSP) – arrest date 12/13/2012

18.2-186.3 – Identity Theft: Use to Avoid – offense date 3/13/2012 – Nolle Prosequi on 1/22/2013.  (Brown, R.J. VSP) arrest date 12/13/2012

7) See Tryco, Inc. v. United States Med. Source, 80 Va. Cir. 619 (2010)

8) See McGladrey & Pullen, L.L.P. v. Shrader, 62 Va. Cir. 401, 410 (Va. Cir. Ct. 2003)