California man faces 13 years in jail for scribbling anti-bank messages in chalk
rt.com
rt.com
Here's the statute:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&gr...
In refusing to hear the First Amendment arguments of Olson's attorney, the judge is presumably just reading the statute narrowly; there is no "political speech" exemption to the vandalism statute, nor should there be, since we're talking about private property.
But it's hard to believe that any sane jury would recognize more than a few dollars damage from water-soluble chalk, and equally hard to believe anyone would receive a custodial sentence --- which would surely cost the city vastly more to defend at its near-certain appeal --- for chalking a bank with a political message.
Don't get your news from RT.
I hope you're right.
Hear. Hear. From an earlier comment thread about the unreliability of rt.com as a source:
> The source of the submitted article, rt.com, is not known for careful journalism.
Understatement of the year.
Whether he ends up being sentenced this harshly doesn't alter the fact that it is absurd, and immoral, that it's possible and at the discretion of a prosecutor who has a vested interest in putting people in jail for a long time.
That the state is taking the bank's word that washable children's chalk caused $6000 worth of damage is also absurd. There's a lot of absurdity and unethical behavior in this story, and I think outrage is justified.
The RT story is still ridiculous.
From the article:
"[Olsen] eventually got a call from San Diego's Gang Unit in August 2012, when he gave up the artistic protests. The Reader reports that Freeman aggressively pressured city attorneys to bring charges against Olson until they announced that they would do so in April"
I wonder if there's a public choice/political economy theory on prosecutorial overreach and how to discourage it other than on a case-by-case basis (which is very difficult, generally).
http://www.10news.com/news/jeff-olson-man-who-used-chalk-to-...
http://www.huffingtonpost.com/2012/07/23/alexander-schaefer-...
The story is being accurately reported, so your criticism of the source has no merit. Here is the exact same story from other sources.
http://www.sandiegoreader.com/weblogs/news-ticker/2013/jun/2...
http://www.huffingtonpost.com/2013/06/25/jeff-olson-californ...
http://www.10news.com/news/jeff-olson-man-who-used-chalk-to-...
This prosecution of an activist for writing slogans critical of a bank, on a public sidewalk, and using sidewalk chalk that disappears with a small amount of rain, or a light hosing, has absolutely no merit, and is an abomination to humanity, human rights, and sanity. Justifying it and claiming it is a reasonable prosecution and the judge is being fair as you are doing is absolutely inexcusable.
And you're a misinformed fool. Quoting other sensationalist and equally inaccurate sources does not validate your point. The jury in a common law trial is a trier of fact, not of law. The proper place for defense counsel to make his first amendment argument is in the appeals court.
These procedural niceties, as much as you dislike them, are what underpin the rights of criminal defendants in the first place, by providing a mechanism for challenging the law itself.
I'm not that hot on jury nullifaction, since it has the potential to systematically disenfranchise victims. Of course there's also the questions of victimless crimes, but like any good fence-sitter I can make an argument for the existence of a collective injury.
Where does it end? If you recognize anti-human's rights, then they'll want to get anti-human married, and what happens if an anti-human wants to marry a human? A catastrophic release of kinetic energy, that's what.
We need to avoid this slippery slope! It's Protons and Electrons, not AntiProtons and Positrons! (I'll be Kickstarting bumper stickers for the cause later this week).
I don't think a felony conviction or any kind of jail sentence is appropriate here due to no property damage being done and lack of intent to intimidate, but this is not a free speech issue. This is "prosecutors being douche bags" issue (still a very serious problem).
I am not in any way saying that property rights should always trump free speech right: California, for example, extends free speech to private spaces open to the public ( http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Ro... ). I could even tangibly see a case if, e.g., wall of a privately owned building in a busy area has been set aside as a public chalkboard (for any kind of messages), but certain (otherwise protected) speech was excluded.
Defacement of property that isn't yours and to which you've not been granted access, however, isn't exercise of free speech.
I also find it ironic that most of the posters here disagree with ACLU on Citizens United: apparently showing a political film before an election is not free speech, but vandalism is...
I think I do too, but I'm not sure.
However, I just find it silly that many HNers claim to be unequivocally for political speech, when they're clearly willing to restrict certain kinds of political speech. The latter is an understandable position: I have plenty of concerns about money in politics leading to electioneering, I just personally think the cure has potential to be worse the decease. I'm all in favor of campaign finance regulations that do not restrict free speech, but I'll acknowledge that they may be less effective comparatively[1].
In general, I think it's important to acknowledge that there are trade-offs between liberty, safety, and equality and state which trade-offs one is willing to make. Equivocation or wishful thinking just makes one look dishonest ("will you buy my 100,000 node commodity-hardware distributed database that has 0.00001 ms latency, read-committed transaction isolation, and 100% uptime?")
[1] That said I doubt restrictions on speech will fix the problem of rent-seeking by moneyed interests -- it will continue through other channels; however, now these moneyed interests will have another tool at their disposal: politicians' ability to restrict political speech, e.g., MPAA lobbying congress to restrict the ability of ACLU/EFF to oppose parts of the DMCA.
Just wondering who, exactly, will be going to jail, and how much time they'll be serving to account for the various mortgage fraud & other abusive practices BoA has been engaged in systematically over the years, e.g.:
- http://www.usatoday.com/story/money/business/2012/10/24/bank...
- http://www.nakedcapitalism.com/2013/01/bank-of-america-forec...
The answer, of course, is almost certainly no one.
People need to stop this practice of listing the maximum possible under best (worst) possible conditions sentence.
If he doesn't have a criminal history he'll get a month of probation and that's all.
The restriction to being able to exercise his freedom of speech is another issue entirely.
But probably someone did tell him, and his suicide was because of other things.
Oh, and the fact some stuffed shirt from a major bank can basically order the local police department to go and arrest this guy. Like you or I might order a pizza.
The last time I called the cops it was because a bum was in my backyard, next to my livingroom window, dumping out my trash and going through it. They never sent anybody. Am I to expect they will care when I complain about a hippie with chalk?
That being said, I don't even know that I'd consider writing with washable chalk to be vandalism. Maybe "littering" or something, considering how easy it is to wash off. Certainly nothing that should warrant any jail time (unless you're talking about a habitual repeat offender or something).
Why not? The court doesn't have to agree that your claim is valid. To prohibit you from even making that claim seems preposterous.
Arguments over what the law means or what's constitutional take place in front of judges, not juries. That's why ajuries are sometimes asked to leave the courtroom temporarily in the middle of a trial, or the judge orders attorneys into chambers - one side objects to something the other is doing as a matter of law, and the argument takes place out of hearing of the jury, because there jury is not there to decide the legal question, only the factual one.
How this works: defense counsel files a motion claiming a free-speech exception for D's actions. Judge looks at vandalism statute, finds that it doesn't conflict with First Amendment (and i should note here in passing that the First Amendment right is not unlimited; if you think it is, please give me your address so I can spray graffiti on your house). Now that the judge has issued his ruling on the law, he's disposed of the question and Defense counsel is forbidden to bring it up again.
In criminal trials, the judge makes decisions about what are matters of law. The jury makes decisions about matters of fact, because the jury members are typically not trained in law, whereas judges are. If you lose a case and appeal, then in the appeal court you must make your argument to the appelate judges on points of law - there is no jury in an appeal court. So the appellant argues that in a case like this, the trial judge misread the law. On the other hand, you can't bring up issues of fact at appeal, absent new evidence; if the judge conducted the trial properly but a jury rendered a verdict you don't like, too bad - there are some exceptions to this, but they're highly unusual.
Now, I don't know that I agree with the judge's decision in this case, because I'm not sure that an impermanent thing like a chalk writing ought to count as vandalism (although I haven't researched this or read the judge's decision onthat). But even though I may disagree with the judge's conclusion on law, the fact is that he's made his decision and now he wants to get on with the trial. The proper place to dispute that decision is in the court of appeals. defense counsel knows this perfectly well and probably has the appeal paperwork already written and ready to file, but it's easier to put on his shocked face for the public and hope that it raises awareness of his client's case.
You're Free.
Really Free.
As long as you're not Brave enough to criticize the rich in chalk.
Good night, and good luck.
AFTER EDIT: I'm fully serious in the suggestion "try the same experiment in Russia." Let's be empirical here. Once we know how a lot of actual cases turn out, we have something to talk about that is more informative than one anecdote.
P.S. The pattern of upvotes and downvotes on this comment is especially interesting in light of the replies it has received.
You're doing the same thing as comparing your sports team to the one on the bottom of the ladder - of course your team looks fine compared to the one at the bottom.
Why not look up and notice all the teams always above you?
Aim higher, aim for improvement.
An American tells a Russian that there's free speech in American; that anyone is free to just go infront of a government building and yell "American president is an idiot." The Russian responds that this is no big deal -- in Russia anyone is also free to go in front of a government building and yell "American president is an idiot."
For the record, I strongly support the bill of rights (I also hold the fanatical and extremist belief that there's another integer between the integers 1 and 3...) and am very much opposed to the surveillance state, hounding of whistle blowers, cruel treatment of prisoners, war on drugs, and so forth. I also understand reasons for Snowden to travel to/through those states (he does not want to go to prison and no one else is willing to have him).
However, I'll say this unequivocally: from a world-wide perspective, United States is far ahead of rest of the world (including many other liberal democracies) in terms of value put on civil liberties. Most countries are far more communitarian -- there are simply far more exceptions to free speech, privacy, etc... rights and (unlike in the US) many of those exceptions aren't even rooted in protection from a "clear and present danger."
(Related: http://en.wikipedia.org/wiki/And_you_are_lynching_Negroes )
I think you are categorically misinformed on this matter. I urge to look into the human rights legislations that have been enacted in many Latin American countries to see real progress in that area (and I say this as a person who opposes a large number of measures such governments have been taking).
Actually, in many ways I'd say that the EU has better privacy rights than the US. The Data Protection Directive covers a lot more privacy stuff than is covered by US law.
You're right about "free speech", more things are legal to say in the USA than in EU countries, however that's (I think) at the expense of other human rights. If you give more free speech rights, you take away other rights (e.g. the free speech rights of the Westboro Baptist church to picket funerals takes away the right to privacy and happiness for the family who are burying a family member. The free speech rights to say "$PERSON has erectile disfunction" takes away the right to privacy of $PERSON, etc.). It all depends on how much you value some things. (How much do you value privacy, how much do you value free speech, how much do you value right to life of marginalized groups etc)
(I'm using EU because I'm more familiar with it)
I was feeling for the guy until I read this. He spent half a year writing disparaging messages outside of a business, that's an unstable guy. If I worked in that bank, seeing some guy writing crap that I have to clean up day after day for six months, I would certainly consider him a vandal. If this were a private residence or a family owned business, it would be harassment and they would probably be able to get a restraining order.
This is a clear-cut vandalism case. Your first amendment rights don't extend to defacing others' property, even if the defacement only lasts a few days, and even if the property you're defacing belongs to criminals. Two wrongs don't make a right.
Under existing constitutional law, he would've had a right to spend every day for six months standing on the sidewalk outside the bank holding the "Stop big banks" message on a picket sign. That isn't harassment, even if it were a family-owned business (though residences are a murkier area), unless he were doing things like attempting to block the entrance, or shouting intimidating stuff at customers. Sidewalks are a traditional public forum, and picketing on them is protected, including picketing against the business located there.
So there's nothing illegal with the content part: disparaging the business on a daily basis, right on the sidewalk outside their business. The method, writing it in chalk on the sidewalk, I'll agree, is not allowed. But it does not seem much worse than standing on the sidewalk with a picket, when it comes to what you seem to find offensive about the conduct.
So, the reason why his maximum sentence is 13 years is because, the maximum sentence for a single act of vandalism of damages over $400 (see subsection b) is 1 year in a county jail. He is being charged with 13 counts of vandalism (presumably because they caught him vandalising 13 times).
Now, the Bank of America is claiming that it cost them $6000 to clean up all the vandalism (which is conveniently just over 450 dollars per act).
So, for all the people outraged over 13 years for chalk, keep in mind in california, vandalism charges are based on damages, not the means (which really makes sense). That it stacks up to 13 years is kinda ridiculous, but also pretty logical. It's not like its "oh, you vanadalized once and now you're going to jail for 13 years", its "you vandalized 13 times, and now a judge gets to decide how much cumulative punishment you're going to get".
You can point out all sorts of unfortunate points in how the law, damages, and punishment is structured, but the whole point of the law is to leave room for human discretion. The $400 dollar barrier seems kinda low, and that's really I guess where the issue is... I guess and combined with Bank of America's damages claims.
- I'm sure, if convicted, it's unlikely that he will get maximum penalty (13 years), sensationalist headers and all.
- If someone was writing whatever (political speech, gang signs, etc) on my property I sure would like them to be arrested and given a good punishment so they won't do it again.
Still why will someone have to pay/do the work to clean up the mess that this guy was doing (for six months, 13 times!), just because it's a "political message" it's ok to make a mess and have other people clean it up?
If we're talking community service, repaying the cost of cleanup, or that sort of thing I agree with you... if we're talking about taking away years of someone's life I'm really confused.
1. It sounds like GP thinks jail is reasonable based on "I sure would like them to be arrested and given a good punishment so they won't do it again."
2. He actually didn't say that 13 years was unreasonable, he just said that it was unlikely
I don't any prison time would be fair time at this point. Maybe paying for cleaning all the damage and doing some community service (he did it 13 times in a lapse of 6months).
Then if he goes and does it again, maybe prison time will discourage him for doing it again?
I don't see him as a political protester, but as equal to someone painting gang signs.
Really? Even though his message is quite political? The idea that huge banks are destructive to our economy certainly seems to be a political idea to me.
http://www.sandiego.gov/street-div/services/roadways/sidewal...
By CA law the property owner is usually responsible for the upkeep of the sidewalk on their property. However, if someone falls and breaks their face on a broken sidewalk the city is liable.
http://www.yolo.courts.ca.gov/forms/Sent%20Guideline%20-%20V...
The problem is, if he violates probation through additional activities, he will then face escalated penalties.
I appreciate your optimism. I really hope it works out well for this guy. I am seriously glad I'm not the one facing these charges though.
If you think this case is an unreasonable waste of resources, please contact Goldsmith and let him know.
Jan Goldsmith can be reached at 619-236-6220 or cityattorney@sandiego.gov
People vs. Olson is case #M153987
However, it serves as a funny sort of schadenfreude whenever there is plain evidence that that state is not some mythical civil liberty land of milk and honey, especially when one of the most common things I see talking about Texas is how evil and republican it is and how there are no sex shops and all kinds of damn fool other things.
At least headlines like this help people maybe reconsider where they want to end up. :)
(If this were a federal decision, I'd be raging. Since it's just a state or city being dumb, it's darkly funny.)
This really is my only gripe. I can actually understand the reason why it would be considered vandalism, but the purpose of the case I think is to oppress the message he was sending (he pissed off the bank obviously...that's where I'm happy). This is why we have rights to protests, even though it is chalk, if everyone did it, it still is graffiti.
[0] http://www.huffingtonpost.com/2013/06/25/jeff-olson-californ...
No it isn't. The jury is not competent to examine constitutional arguments. The correct place for that debate is the Court of Appeals.
If that's the case, it will come down to plea bargaining. Disappointing. Too bad it didn't rain away the evidence (even though it was caught on camera).
These are all true.
There is something terribly wrong here, anyway. The fact that he's facing up to 13 years in prison for what amounts to graffiti or very-low-level harassment (the article made no mention of threats, e.g.) is a very bad sign.
When the government, or private interests directing the government, can threaten a dissenter with a decade or more in squalid[1], overcrowded[2], deadly[3] prisons for minor nuisances, we are all endangered.
[1]: https://www.wsws.org/en/articles/2013/05/29/cali-m29.html
[2]: https://en.wikipedia.org/wiki/Prisons_in_California#Prison_g...
[3]: http://solitarywatch.com/2013/03/15/california-prison-condit...
I'm not sure how a judge can exclude the constitution from a court case?
Choosing to commit a crime that closely mimics the details of previous criminal activity by others (or yourself) is not the brightest idea. That is a kind stupidity that I am not sure we need special consideration for.
Please do us all a favor and stop linking to it. If the story is real - a credible source will talk about it; find and link to it.
http://www.sandiegoreader.com/weblogs/news-ticker/2013/jun/2...
http://www.cnn.com/2013/06/20/justice/california-prison-over...
Juries are exposed to carefully controlled subsets of all possible facts. What does this guy's mom do? What kind of cars do the people working at the bank drive? The answers to those questions are true facts but not relevant to the court.
Jury decides facts, jury findings are (generally) not subject to appeal.
It seems to me that what happened is that the argument (which is one of law, not of fact) has already been made in court prior to the trial. The judge has rejected it, and prohibited it from being raised in the trial (and thus, to the jury) as it is immaterial to the questions of fact the jury is to decide.
Of course, if there is a conviction, the judge's rejection of the argument can be challenged as legal error on appeal.
Americans need to start protesting, big time, right now!
Things are going down hill, fast.
How is it just to charge him with more than one count of vandalism? He may have only written in chalk once if they would have charged him immediately after the first incident.