Louisiana Law Enforcement Has Been Abusing An Unconstitutional Law To Arrest People For Trying To File Complaints

from the very-convenient-knowledge-of-the-law dept

Police officers aren’t legal experts. No court expects them to know the intricacies of the laws they’re paid to enforce. Close enough is good enough when it comes to pretextual stops, street-level friskings, and other assorted Constitutional skirtings.

But no one but a cop would know the ins and outs of stupid laws left on the books by careless legislators or how to wield them like weapons against those who dare to start hassling The Man. Got a criminal defamation law still laying around? Why not use it to arrest and charge critics gathering a few too many eyeballs to their personal blogs. Any number of charges, from disorderly conduct to “assaulting an officer” can be made to cover “contempt of cop” arrests. And every stupid “Blue Lives Matter” law has been abused at least once, with the oversensitive cops of New Orleans leading the way.

Given that two-thirds of the links above direct you to Louisiana law enforcement officers and officials, it should come as no surprise Louisiana officers are using another bad law to bring criminal charges against people who aren’t absolutely enthralled with their law enforcement experience. (via The Watch)

On April 30, 2015, William Aubin Jr. was at home with his wife in Livingston Parish, Louisiana when a patrol car from the sheriff’s office pulled onto his street. The deputy, William Durkin, was there to investigate a reckless driving complaint. Aubin wasn’t involved in the incident but he knew about it and went outside of his home to speak with Durkin. During a vulgar and combative conversation, according to Aubin, Durkin repeatedly called Aubin a “pussy.”

“I’m calling your supervisor,” Aubin said. “I’m gonna get you fired.” Aubin took out his cell phone, called the sheriff’s department, and started walking back towards his house. But before he made it inside, Durkin arrested him. The charge: intimidation of a public official?—?a felony that in Louisiana carries a maximum penalty of five years’ imprisonment.

This isn’t the first time the law’s been used to charge someone for attempting to file a complaint. Michael Stein of In Justice Today points out the same charge was leveled against Travis Seals, an arrestee seeking to file a complaint after he was pepper sprayed despite already being handcuffed. Seals got another charge added to his docket: public intimidation.

In both cases, the state DA showed up in court to defend the use of the law to charge citizens looking to file complaints.This law should have been tossed in the legislative trash last year when a federal judge had this to say about it:

In a September 2017 ruling, Chief Judge Brian A. Jackson of the United States District Court for the Middle District of Louisiana pilloried the application of the statute in the Aubin case. “The right to criticize the police without risk of arrest distinguishes a democracy from a police state,” he wrote.

The same thing happened in the Seals case. Another federal judge took a look at the law and found it egregiously unconstitutional, considering it could be deployed to arrest people complaining about cops, filing lawsuits against government officials, or voting for the “wrong” public officials.

Anything a public employee could possibly takes offense to can be construed as “intimidation.” ANYTHING.

In August 2017, the ACLU condemned the statute after it was used in the case of a Northern Louisiana man who raised his middle finger to a state trooper.

Despite the law’s clear lack of constitutionality, the state District Attorney continues to fight for the law’s continued existence. So do law enforcement officials. Sheriff Ard — a defendant in the Aubin lawsuit — claimed the law was necessary to prevent “threats” from “influencing the behavior of police officers.” Seems like better training and better officers would take care of this problem — especially when the “threat” consists of curse words, extended fingers, and filing complaints.

Despite the legal challenges, the law lingers. It will continue to be abused until it’s rewritten or stricken. State prosecutors have already shown their willingness to treat these as criminal violations, rather than law enforcement abusing the law and their position to shut down criticism of police officers.

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Comments on “Louisiana Law Enforcement Has Been Abusing An Unconstitutional Law To Arrest People For Trying To File Complaints”

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52 Comments
Anonymous Coward says:

claimed the law was necessary to prevent "threats" from "influencing the behavior of police officers"

What influence? It’s already been known for a while that officers don’t need to actually be intimidated or threatened; they just need to "think" their life "might" be in (a little) "danger". You could be injured, unarmed, innocent, a child, the family pet, holding a cellphone or a Wiimote, and that’s enough to give the cop free reign over your civilian ass.

If having to interact with mean people makes these cops piss their pants, what business do they have being figures of authority?

Bruce C. says:

Re: Threats

Not to mention that credible threats of violence should get you arrested under more broadly applicable laws that protect us all from threats, not just government officials. Louisiana is playing the same game ISPs do: get away with whatever you can, and if someone has the balls to take you to court over it, try to prolong the case until they’re driven into bankruptcy. At least they haven’t introduced a binding arbitration clause in their jailhouse paperwork…yet.

Anonymous Coward says:

Re: Bad laws equal bad communities

There’s no good cops. The Blue Line is the biggest GANG in the U.S. They’re all bad and corrupt. If so-called good one didn’t stand there watching the corrupt cops do their thing and then defend them later on, or says they didn’t see anything wrong. They are just as bad and guilty as the rest.

cryophallion (profile) says:

Enabling/Prosecutorial Discretion

Let me preamble this by saying that what the officers in this case are doing is absolutely wrong and is a clear abuse of power.

That being said, I blame the prosecutors as much as the cops. They seem to want it both ways. They will justify their showing up in court and arguing for these laws because “they have to use the laws that are on the books”. Then, when they don’t want to throw the book at someone (and the book keeps getting bigger and heavier), or if it becomes a pr scandal, suddenly they can claim “prosecutorial discretion”.

I like to call it “enabling”, and not taking a stand for what they should. People talk about jury nullification as a way to stand up against bad laws – prosecutors can just choose not to pursue those charges.

There are some nasty realities out there now:
1. The desire for winning means throwing as many charges as they can to see what will stick (see Aaron Schwartz, among many others). If they were caught, they are guilty, and their job is to argue that side. The person’s defense attorney is the only one that’s supposed to advocate for their client. It’s all about getting as many wins as they can, with no moral regard.

2. The cozy relationship police have with too many trades has become an issue. Reporters don’t want to lose sources, so they don’t report bad things, or spin things (note: this is also true in politics and sports reporting – all too many journalists now are part of the machine they report on). And prosecutors are too indoctrinated into the us vs them philosophy. See Ken’s post over at reason: http://reason.com/archives/2016/06/23/confessions-of-an-ex-prosecutor

But I blame the prosecutors for not having a chat with the cop in a back room somewhere saying this isn’t ok. They are supposed to be a parent here in a way, as a safeguard. They are failing.

John Snape (profile) says:

Liability Insurance

Surgeons have liability insurance, so if they mess up they can compensate their patients. If they mess up too much, they are no longer surgeons, since their premiums will skyrocket.

It’s time for all law enforcement officers to get the same. Instead of government entities paying out settlements, the insurance for the officers will pay out. When their behavior is too egregious, they will no longer be able to afford insurance and they’ll no longer be a police officer. And if they’re shunted off to a different department a few counties over, their premiums will follow.

Good police officers will keep their low premiums and keep their jobs.

Anonymous Coward says:

Re: Re: Liability Insurance

That’s because taxpayer money literally is unlimited. It’s only when a tiny town gets hit with a multi-million dollar payout that it even becomes an issue. Most cities (and all big ones) have a budget set aside for police brutality and similar liability lawsuits, which they happily cut checks from (and in fact they might be under pressure to use up rather than risk getting pared down from the budget in future years). Yes, it’s always much easier to spend someone else’s money.

Anonymous Coward says:

Re: Re: Re: Liability Insurance

“Yes, it’s always much easier to spend someone else’s money.”

Don’t worry, the government has heard the cries of the people telling them to raise taxes so that they can pay for more stuff.

What if I told you that government can save you from everything? Would you vote to give it that power?

What if I told you that when you do, they will only use it against you? Would you even care?

Government is the greatest proof of Stockholm Syndrome. People are constantly assaulted by government and yet they ask for more!

Anonymous Coward says:

Re: Re: Re:3 Liability Insurance

its funny how you can think they are not one and the same.

A rich and greedy asshole might not have been the one that set up your government but a rich and greedy asshole will soon be along to take it from you… usually with your undying affection and permission too.

We all know how to take candy from babies… and rich people know how to take all of your liberties away under the guise of protecting you.

You are still free to, not understand how or why, the entire time it happens to you though…

Anonymous Coward says:

Re: Re: Re:4 Liability Insurance

Understanding it, and attempting to vote those rich assholes out, clearly hasn’t stopped you from whinging to us about it though.

Even on articles where Techdirt complains about the government you complain about it. It’s obvious that short of every person on the planet giving you a blowjob, nothing will satisfy you.

Bruce C. says:

Re: Re: Liability Insurance

Actually, the taxpayer funds are normally used to buy liability insurance for the whole police force (and probably the fire dept and other services as well).

The taxpayers only get involved in the payout when the insurance company is able to show that the cops behavior was so far outside the norm that it isn’t covered under the liability policy. Or alternatively, the insurance premiums go up if there are enough claimable cases in proportion to the premiums.

WC_TN says:

Re: Liability Insurance

The same should go for prosecutors. All immunity should be stripped away. When they know they can be left without so much as a pot to piss in for abusing their authority they’ll be much more careful to ensure they have the right person and are relying on what is legitimately best evidence.

Anonymous Coward says:

Confused cop

So he charged Aubin with “intimidation of a public official ” for threatening to report misconduct to a supervisor. But we all know the supervisor will not care, and would be well above average even to record the complaint at all. Nothing will come of filing it. Doesn’t the cop know the report is meaningless? If he does (meaning, he’s totally safe from reprimand), why is he intimidated? If he doesn’t (meaning, he expects the report to lead to a reprimand), why is he giving the department more demerits to hold against him?

That One Guy (profile) says:

Re: Re: Confused cop

Ah, see that’s where you’re confused. You see much like when a president does it it’s not a crime, when a cop does it it’s also not a crime, no matter what ‘it’ happens to be. As such it’s flat out impossible to report a cop violating the law because their actions are, by definition, always within the law.

… I wish this was entirely sarcastic rather than all too true in far too many courts.

Anonymous Coward says:

Re: Re: Re: Re:

…that one juvenile court guy hopefully is still in jail.

Ciavarella ?

If that’s who you’re talking about, Wikipedia points to a story from earlier this year, “Judge rules in Ciavarella’s favor in kids-for-cash appeal” (Jan 9, 2018).

Ciavarella is six years into a 28-year prison sentence that he is serving at Federal Correctional Institution-Ashland in Kentucky.

Anonymous Coward says:

Re: Re: Re: Re:

Moral courage as opposed to financial courage?

Judge Mark W. Bennett “assumed senior status on June 4, 2015.” It doesn’t look to me, though, like he’s staying on just for the full salary.

In his recent article, “Addicted to Incarceration: A Federal Judge Reveals Shocking Truths About Federal Sentencing and Fleeting Hopes for Reform”, Judge Bennett wrote:

I have sentenced more than 4000 offenders to federal prison. Federal sentences, especially in drug
cases, are all too often bone-crushingly severe.

And that article left me with one over-arching question. If the system —or a large part of it— — the federal sentencing system— if the system so shocked Judge Bennett’s conscience, then why? why did he do it? why didn’t he just quit?

I don’t really think the salary is the motivation.

Anonymous Coward says:

probably useless advice

Never threaten to complain.

Anyone who threatens to file a complaint against a cop or sue the police department, while still under arrest or detention … is either very naïve, recklessly brave, or just a complete idiot. Best option is to put your ego aside and get down on your knees whenever up against a cop, record the whole thing, then quietly file your complaint (or hire a lawyer and sue) later when you’re far enough away to safely do so.

Likewise, never threaten to murder ….

Docrailgun says:

Hardly "filing a complaint"

as much as I think “intimadidation of a LEO” is bullshit, if the law is on the books and an idiot tells a cop he’s going to get the cop fired that’s pretty much intimidtion of a LEO, isn’t it?

Also, the guy probably should have asked himself if it was a good idea to engage with the deputy at all, considering his temperment. Someone who’s willing to call a deputy a pussy and chew them out probably has a pretty short temper to begin with. Maybe a little self-control was in order?

Anonymous Coward says:

Re: Re: Re: Hardly "filing a complaint"

I’m not too sure if you’re just being cynic. But given the history of unwarranted force deployed by law enforcement, I’ll assume that you are being serious in that LEOs can’t be expected to be trusted to handle their weapon with care, just like a bear or any other wild animal can’t be trusted not to attack you.

That One Guy (profile) says:

"We must protect our delicate feelings."

So do law enforcement officials. Sheriff Ard — a defendant in the Aubin lawsuit — claimed the law was necessary to prevent "threats" from "influencing the behavior of police officers."

This of course does not work both ways, threats by the police against the public are very much protected and will be defended by their buddies in blue and the courts.

If ‘you’ve been abusive and therefor I’m going to report you to your supervisors’ counts as a ‘threat’, then pulling a gun, placing a hand on a gun, even implying that non-compliance might results in unpleasant circumstances for the non-cop should damn well count as well, yet I suspect you wouldn’t see a prosecutor taking that case.

Gentry E Newsom says:

Civil Rights Violators

File Suit against these sssobs you need a lawyer with internal fortitude from another state..file in federal court
and hurt those pussy’s in the purse. They are walking all over you folks…and refuse to talk to any Pussy with a badge that should make it a lot tougher to fuck citizens around.Take the 5th don’t give them any ammo.

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