Furry Potato Shooting – Guard Charge Evaluation Sheet

[RogueRivered]

The one common theme that I do see throughout most "auditing" videos is the term "education."

I see a lot of education taking place, and I believe some people will decide to look it up themselves when they get home after an interaction with an auditor. This is a civil rights issue. I don't think calm education and dialog with the public would have done much good in ending segregation duirng the 1960s. And I can't picture how to get the point across that filming is legal unless you do it.

 

[RogueRivered]

By the way, finding case law (which I've never alluded to the fact that there is any) in regard to the FP situation would likely be quite difficult if not impossible. I have never referred to "case law similar to this situation" as you claim I have. I consistently referred to the California Penal Code that the DA is citing. The reason I say it would be difficult to find case law specific to those circumstances is that you have to look at all the surrounding factors. Private citizen, public sidewalk, security guard, shots fired.......this was such an aberrant and divergent situation, it's probably never happened before. If FP takes this to the Federal level, it would probably be a first, and maybe set precedent.

True, it would be difficult to find something directly on point, but I am referring to this statement made by you: "I'm stating what the precedent case law has established. The ruling of the DA in the Furry Potato case is sound and has a proper legal foundation." And all I'm asking is WHAT precedent case law?

 

[RogueRivered]

That's something that would have to be addressed by a Federal Court. As it stands, the State ruled that it was not Constitutionally protected speech or assembly and that FP violated certain State laws with her presence and actions. Whether those assertions will meet Constitutional muster would have to be determined at a later date and in a higher arena of law.

No, the State didn't. The DA decided he didn't want to take the case against the security guard forward. That is far from "ruling" that FP did anything wrong. The State did not make any sort of ruling about the Constitutionality of Furry's actions, and why would they? She isn't being accused of any crimes.

 

[RogueRivered]

I WAS a cop for 20 years and a POST instructor in Constitutional Law.

So you must be the one teaching cops about the Constitution. A cop teaching cops a subject that cops don't seem to understand. I think I see a problem here.

 

[observer]

I don't think calm education and dialog with the public would have done much good in ending segregation duirng the 1960s. And I can't picture how to get the point across that filming is legal unless you do it.

Sorry, I do not equate filming in public to racial segregation and discrimination of the 1960s. Recognizing our differing viewpoints on many issues I will agree to disagree with you on this issue too.

 

[observer]

The DA decided he didn't want to take the case against the security guard forward. That is far from "ruling" that FP did anything wrong. The State did not make any sort of ruling about the Constitutionality of Furry's actions, and why would they? She isn't being accused of any crimes.

In our dialogue regarding News Now Patrick, you were adamant that the DA had an obligation to dismiss the case of obstruction against NNP. You predicated your argument that there was no state law for failure to ID, which is not what the charge was for NNP. Now in the case of Furry Potato, you are IMO equally adamant that the DA should not have dismissed the charges against the security guard.

I have explained in detail what I believe are critical factors in the NNP case so I will not repeat them here. However, in the Furry Potato case a key factor in the decision making to not move forward with prosecution lies in California Penal Code section 626.8, which reads (in part):

(a) Any person who comes into any school building or upon any school ground, or street, sidewalk, or public way adjacent thereto, without lawful business thereon, and whose presence or acts interfere with the peaceful conduct of the activities of the school or disrupt the school or its pupils or school activities, is guilty of a misdemeanor if he or she does any of the following:​

(1) Remains there after being asked to leave by the chief administrative official of that school or his or her designated representative, or by a person employed as a member of a security or police department of a school district pursuant to Chapter 1 (commencing with Section 38000) of Part 23 of Division 3 of Title 2 of the Education Code , or a city police officer, or sheriff or deputy sheriff, or a Department of the California Highway Patrol peace officer.​

This statue creates a high likelihood of a not guilty verdict if the security guard was prosecuted as according to the DA report and the video, the guard on more than one occasion instructed furry to leave.

The question of whether this violates Furry Potato's rights is an issue that needs to be answered but it will not be answered by prosecuting the security guard as it appears to have been operating within the confines of existing state law. The issue of the possible violation of protected rights does need to be challenged but IMP this was not the correct forum. However, it is the correct case to make the challenge and whether Furry chooses to make it a state or federal case, IMO the facts and case law supports that section 626.8 of the penal code does violate the right to be present on a sidewalk (which is considered a traditional public forum).

On March 31, I posted the following comment and I reiterate it again as I feel that the unanswered questions continue to plague the understanding and acceptance of the process.

Do any of us have access to all the reports, interviews, etc. to make a truly informed opinion on the totality of the circumstances? Or are we second-guessing decisions based upon our own biases and opinions? IMO no one has access to make a fully informed decision as to the validity of any decisions that have been made or will be made in the future. Even after discovery in the civil suit, I would speculate there would remain unanswered questions and speculation as to why certain decisions were made.​

 

[RogueRivered]

In our dialogue regarding News Now Patrick, you were adamant that the DA had an obligation to dismiss the case of obstruction against NNP. You predicated your argument that there was no state law for failure to ID, which is not what the charge was for NNP. Now in the case of Furry Potato, you are IMO equally adamant that the DA should not have dismissed the charges against the security guard.

I think you are making this way too complicated. Also, I'm not adamant about any "obligation" of the DAs. I think the DA in NNP's case would be wise to drop the case, because there is no crime.
In FP's situation, I simply think the security guard is guilty of an illegal or reckless discharge of his weapon (which I believe to be by accident. He clearly looked surprised when it went off).

The constitutionality of being on a sidewalk in front of a school when filming and being asked to leave is an interesting issue. However, Furry is not being charged with anything. I didn't know that security guards were allowed to shoot people who trespass in front of schools, even if accidentally. But Furry wasn't trespassing nor guilty of that CA statute. Hint: Read the definition of "lawful business." That statute was mainly meant to control irate parents, but I digress.

 

[observer]

That statute was mainly meant to control irate parents, but I digress.

I have not researched the statutory intent of the legislation, have you? Care to share the link?

 

[Cassano]

So you must be the one teaching cops about the Constitution. A cop teaching cops a subject that cops don't seem to understand. I think I see a problem here.

You missed the part where I joined the criminal defense side. If the cops weren't paying attention when I taught them Constitutional law in the academy, they certainly did when I defeated them in court, which I did quite frequently.

Why is it just because I was a cop for 20 years, you view me as the enemy? I am 100% behind what auditors do, with some exception. My take on things is looking at both sides of the issue and not being blinded by my loyalty to one point of view, like many of you seem to do.

 

[observer]

I think you are making this way too complicated.

I am not making it anything. I am attempting to demonstrate the process and legalities that a case goes through from the initial complaint to verdict, and appeal if necessary. It is a common misconception in many videos and comments in chats of what "the law is" and how it operates. There needs to be less acceptance of the "armchair" legal advisors and more legal research.

Borrowing from a quote in many of Eric Brandt's videos "You need to spend less time on the gun range and more time in the law library, while auditors need to follow that advise and spend less time behind the camera and more time doing legal research.

I am not a lawyer and I am not always right, but I am willing to share and join in healthy discussions to learn and explore opposing views.

 

[observer]

My take on things is looking at both sides of the issue and not being blinded by my loyalty to one point of view, like many of you seem to do.

There are far to many activists that have become blinded not only with loyalty but also hatred and refuse to accept for a minute that perhaps I am wrong and maybe they are trying to help.

 

[RogueRivered]

This statue creates a high likelihood of a not guilty verdict if the security guard was prosecuted as according to the DA report and the video, the guard on more than one occasion instructed furry to leave.

The question of whether this violates Furry Potato's rights is an issue that needs to be answered but it will not be answered by prosecuting the security guard as it appears to have been operating within the confines of existing state law.

This is what I mean by making it complicated. What does any of this have to do with illegally discharging a weapon? If you want to talk about how the security guard's behavior was reasonable OTHER THAN firing his weapon, you have a reasonable case. But I would argue that 626.8 does not apply here for several reasons anyway. Let me know if you want to have that discussion.

 

[RogueRivered]

You missed the part where I joined the criminal defense side. If the cops weren't paying attention when I taught them Constitutional law in the academy, they certainly did when I defeated them in court, which I did quite frequently.

Why is it just because I was a cop for 20 years, you view me as the enemy? I am 100% behind what auditors do, with some exception. My take on things is looking at both sides of the issue and not being blinded by my loyalty to one point of view, like many of you seem to do.

You and silent.observer seem to think that my opinions are less valuable than yours. I assure you, I read every bit of case law I can find or be directed to on all these issues. Everything I say about the law can be backed up. I often find others who claim they have read the law make glaring errors in their interpretations to the point I don't really believe they read it. These are the people who have the closed minds, in my opinion. I'm not taking sides, either.

And I don't consider you an enemy other than for the fact that you purposely insulted me in your fist couple of messages. I don't tend to work that way, but if I'm giving you a hard time, you kind of deserve it. I don't have anything against anybody as long as they follow the law and the Constitution.

 

[observer]

Let me know if you want to have that discussion.

Am I missing something? I thought the numerous posts, comments, and replies have been a discussion.

You and silent.observer seem to think that my opinions are less valuable than yours

You have every right to comment and express your opinion as does anyone else. If you feel that I have said anything that makes your opinion less valuable, please feel free to share what I said. If I disagree with you position for whatever reason does not make it less valuable. I will be the first to admit that I enjoy healthy discussions regardless of the position and sometimes the issue.

What does any of this have to do with illegally discharging a weapon?

The DA documented the decision not to charge the security guard, whether it would have been an assault or illegally discharging a weapon. The records indicated that the DA sent the case back to the police for additional investigation and still elected not to file charges.

But I would argue that 626.8 does not apply here for several reasons anyway. Let me know if you want to have that discussion.

Please expand on why section 626.8 does not apply in this case. The DA felt it did and my reading of the section(s) posted above led me to believe it applies as currently written. I will gladly discuss the law and how it applies to this case.

 

[RogueRivered]

Am I missing something? I thought the numerous posts, comments, and replies have been a discussion.
Please expand on why section 626.8 does not apply in this case. The DA felt it did and my reading of the section(s) posted above led me to believe it applies as currently written. I will gladly discuss the law and how it applies to this case.

Yes, the discussion about whether 626.8 applies. I felt that that was a side issue of our other discussions. I wasn't sure if you wanted to talk about it at length. I'll write something a bit later.

 

[observer]

I'll write something a bit later.

Fine, I will wait. Please keep it professional and based on facts, law, and opinion based on common sense, which you have previously. I look forward to the dialogue and hope others will join it and not just be by-standers and read without making their own comments.

 

[RogueRivered]

Of course. I'm still learning about California gun crimes and hates crimes to see if any of those apply.

 

[observer]

The idea of "hate" crimes as it relates to speech is a challenge to come to grips with whose rights prevail. Hate crimes as a result of physical activity requires access to the mind of the alleged defendant to determine what their intent was. Just because the alleged victim comes from a "protected" class does not equate to a hate crime in all situations. IMO the Furry case is a classic example of a perceived crime being turned into a hate crime (added enhancement) that fails.

 

[RogueRivered]

OK, there's a lot here to consider, but let me start with the part about 626.8 not being meant to impinge on First Amendment activity. Since filming in public is "expressive activity," this statute should not apply to someone filming a school from the sidewalk, even if asked to leave.

Next is the "lawful business" clause. Lawful business is defined as follows: "“Lawful business” means a reason for being present upon school property which is not otherwise prohibited by statute, by ordinance, or by any regulation adopted pursuant to statute or ordinance." Nothing otherwise prohibited Furry from being on the public sidewalk, so again that would nullify this statute as applied to her.

Interestingly, this statute is supposed to be a modification from a previous statute that was ruled unconstitutional by the 9th Circuit in CENTER FOR BIO ETHICAL REFORM INC v. LOS ANGELES COUNTY SHERIFF DEPARTMENT FindLaw's United States Ninth Circuit case and opinions.
That case involved a group protesting abortion by driving a truck plastered with photos of abortions around schools.

It appears to me like the legislative intent of the current version was to bring the previous law into constitutionality. The main part, it seems to me, that was proposed to be added was specific intent to threaten harm to the students. However, the final version only made the intent clause one of the ways someone could break the law (subsection 4). I don't understand why it was changed in the final draft, or how it actually solves the constitutional question. If you notice the law as enacted is not the same as the one discussed throughout the legislative process.
http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_123&sess=1112&house=B&author=mendoza
Opinions?

 

[RogueRivered]

http://mycharterlaw.com/pdf/Managing-Disruptive-Parents-100713-JAR.PDF