Judge Dumps Iowa Prosecutors' Attempt To Jail An Activist For Sharing A Law Enforcement Document With Journalists

from the setting-fire-to-the-first-amendment-like-it's-just-an-american-flag dept

Polk County, Iowa prosecutors are making a name for themselves. And that name is "Enemy of the First Amendment." Earlier this year, Polk County prosecutor John Sarcone tried and failed to convict a Des Moines Register journalist for attending a protest and attempting to comply with conflicting orders from law enforcement.

According to the prosecutor, journalist Andrea Sahouri failed to disperse when ordered to, even though other cops at the same scene were simply telling people to "protest peacefully." Sahouri was attempting to document the protest and was arrested as she was moving away from the epicenter of the protest. This attempt to turn First Amendment protected activity into a crime failed and the prosecutor took a rather humiliating loss in a very public fashion.

Another prosecutor from the same office -- Thomas Miller -- has just suffered a similar, very public loss. Activist Viet Tran was arrested last summer after he shared a Des Moines Police Department bulletin with journalists during a televised interview. The PD claimed the document was super-secret and not shareable without committing a crime. The bulletin contained information about protesters targeted by the PD, including some who had vandalized a police car.

The prosecutor (along with the PD) attempted to turn the sharing of public interest info with journalists into a felony charge: unauthorized dissemination of intelligence data. Normally, that sort of charge would only be leveled at the person who had shared it with someone who did not have authorization to view it, like whoever leaked it to Tran. Tran isn't a police officer, so his acquisition and sharing shouldn't be a crime. But that's not how the prosecutor's office saw it. And, in keeping with the First Amendment shredding vindictiveness of this whole debacle, the PD never asked the journalist Tran shared the document with to remove it from her Twitter feed.

Following a failed attempt to keep Tran locked up until his trial by spiking his bail to $20,000 (rather than the usual $3,000 for Class D felonies), the prosecutors' office has earned its second straight loss in the same case. The court said that even if the government was right about this seeming misuse of "unauthorized dissemination" charges, it was wrong about the document's contents.

On Wednesday, the court agreed that the bulletin didn't meet the definition of intelligence data, which is defined by the Iowa Code as "information on identifiable individuals compiled in an effort to anticipate, prevent or monitor possible criminal activity."

"It was not compiled in an effort to anticipate, prevent or monitor possible criminal activity. The bulletin was prepared because the police department had concluded that criminal acts had already occurred," Fifth Judicial District Judge Jeffery Farrell wrote Wednesday in his order to dismiss the charge against Tran.

Making this loss even more of an embarrassment for the rightfully maligned prosecutors office (feel free to continue maligning in the comments) was the prosecutor's best argument for jailing Tran:

Assistant Polk County Attorney Thomas Miller argued in a court document that the "court is not constrained by this limited prior use of this statute." Anyone who disseminated intelligence information, including journalists, could be charged, he wrote.

Ah, but what about the journalist who posted the same document to Twitter? (Oh, and let's not forget the First Amendment.)

Andersen, the journalist Tran shared the bulletin with, was not charged because "the police have the ability to use discretion when deciding whom to recommend for criminal charges," Miller wrote.

There it is. That's the prosecutor admitting the government will abuse laws to punish people they think they can get away with punishing. Some troublemaking minority advocating on behalf of black victims of police violence? That's a felony. A journalist likely backed by her employer's legal team? That's a free pass.

Nice work there, Mr. Miller. Not only did you blow this case but you made it clear law enforcement isn't about enforcing laws. It's about keeping certain people in line. This is how prosecutorial "discretion" almost always works. It goes after the weakest, least protected members of our society and ignores anyone too rich, too white, or perhaps just too lawyered-up to push around.

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Filed Under: 1st amendment, andrea sahouri, des moines police department, intimidation, iowa, john sarcone, journalism, polk county, thomas miller, viet tran


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  • icon
    That One Guy (profile), 1 Jun 2021 @ 10:30am

    'Oh noes, a loss. Well, time to harass more people, later.'

    While it's nice that they've been slapped down twice the fact remains that they still put those two people through the meatgrinder with at least one of them spending time in a cell because of it, so unless they face an actual punishment for weaponizing the court system to crack down on first amendment activity they not only have no incentive to stop they're still succeeding in sending the message that you make the local police look bad at your own risk.

    reply to this | link to this | view in chronology ]

  • icon
    Flakbait (profile), 1 Jun 2021 @ 11:04am

    <malign>MALIGN MALIGN MALIGN MALIGN MALIGN MALIGN MALIGN MALIGN MALIGN MALIGN</malign>

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 1 Jun 2021 @ 11:17am

    Those prosecutors need to ask for refund from their law schools.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2021 @ 11:21am

    like so much else, the whole Constitution, not just the First Amendment will be thrown under the bus 'in the name of National Security' or some other bullshit reason, simply because SOME prosecutors not only have to win, but have to win every case they're involved with, regardless of the evidence, the law, the Constitution and the consequences!!

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 1 Jun 2021 @ 11:44am

    To everyone who thinks moderation is censorship:

    No, this situation is attempted censorship. Hell, it might even be a successful attempt — after all, if Viet Tran knows he has police and prosecutors watching him closely after his humiliating-to-the-state victory in court, he might think twice before sharing any documents in the future if he has the absolute legal right to share those documents.

    Y’all want to talk about censorship? Here’s your opportunity. But know that you won’t be taken even the least bit seriously if you conflate this situation — this attempt at using governmental power as a way to shut someone up — with Twitter banning someone for posting, say, anti-queer slurs.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 1 Jun 2021 @ 11:59am

    "Andersen, the journalist Tran shared the bulletin with, was not charged because "the police have the ability to use discretion when deciding whom to recommend for criminal charges," Miller wrote."

    Something something the law doesn't apply to everyone equally, we only go after those we think we can crush under our bootheels.

    Someone should be looking for a new job, he is unfit the the office he holds. He has shown he is willing to use the office to intimidate and harass citizens, with no basis in law. This is not someone who should have power over peoples lives after proving he is a vindictive asshole.

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan, 1 Jun 2021 @ 12:05pm

    Prosecutors

    I am 100% convinced most prosecutors have zero interest in justice and just want 'wins'.

    Remember the prosecutor from the Duke Lacrosse case?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 1 Jun 2021 @ 2:21pm

      Re: Prosecutors

      The problem is the people.

      The FBI arrests 30 "terrorism" suspects & everyone cheers.
      No one asks how they got that many men with IQ's in the 60s together.

      We think a 15 and 16 yr old dating is okay, but cheer on the headline that the older boy who had photos of a young girl is going to be a sex offender for life.

      The world burned in the mortgage bubble collapse. Despite clear evidence none of the big banks got charged, because they coudl afford to fight back. (Well and the asshole in charge now works inhouse a GoldmanSachs color me shocked).
      The only bank they went after was Abacus. A tiny tiny bank serving those of Chinese descent. After roasting them over the coals for wrongdoing... they found 2 things. The bank did things in a traditional way that didn't meet the fed standard... meanwhile the bank did better than the big banks without people defaulting.

      We reward them for the headline, then move onto the next thing.
      There are still people out there, even after a Judge spanked the FBI and an AUSA for luring an impressionable man into supporting terrorism by loaning him the $20 so he could send ISIS an apple gift card, that thinks the FBI is protecting us.

      We deserve better, but no one has the will to demand it assuming the system works perfectly, there is oversight, and the 15th time someone gets caught violating a citizens rights that this time it'll be different.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 1 Jun 2021 @ 2:38pm

        We think a 15 and 16 yr old dating is okay, but cheer on the headline that the older boy who had photos of a young girl is going to be a sex offender for life.

        I wouldn’t cheer that headline without context. The sex offender label should mean something other than “had sex with someone a couple years younger than me when I was a kid” or “pissed in public”. It should be reserved for sex crimes of the worst variety — rape, child porn (distribution and creation), and the like — committed by adults. Marking at least one dumb teenager with that branding for life because they had sex with another dumb teenager or took a nude pic of their slightly younger lover isn’t something anyone should be celebrating.

        Now, if we’re talking about someone like convicted rapist Brock Turner…yeah, label fuckers like that all the live-long day. They fuckin’ deserve it.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 1 Jun 2021 @ 11:49pm

          Re:

          Despite telling everyone a child is kidnapped and raped every 2 seconds... its not happening that often.
          So the sex offender label needed to be expanded so they could get good headlines.

          The headline is Older boy arrested for photographs of young female, CP charges debated.
          Most people stop reading there.

          The DA needs a good win to keep his name in the press so he can win reelection & whats good press? Stopping a child molester.

          Mooned from a school bus as a prank... On the list.

          Drunk & pissed in an alley... On the list.

          The guy who was accidentally seen naked (he was in his house getting coffee without pants/curtains open) by a mom walking her kid to school. They were ready to charge him and do all sorts of horrible things to him... because mom was screaming how horrible it was her male child saw another mans penis at the range of sidewalk to a house. He wasn't jerking it, chasing the child, remotely aroused but the idea a child is permanently scarred by seeing the same parts they have is the level of stupid in this world.

          They feel they have to keep winning cases to show they are working hard, so they take on cases that are slamdunks (or can be turned into one with enough pressure) & funny I still think the Walmart Heiress is still driving around after her multiple drunk driving accidents injuring people...

          The system is not fair, its rigged to show wins even at the expense of the innocent. The system then pulls out all the stops to protect the record even if it means executing an innocent man.

          One wonders how safe people would feel if they actually saw the truth, that many of these cases are fabrications to get headlines while they are skipping over the hard things that might not go their way.

          reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 4 Jun 2021 @ 9:20am

    A while ago, some right-wing show host got accused of defamation. He got away with it because his lawyers convinced the judge that nobody should take him seriously given that he generally doesn't state facts, just random unfounded opinions. (I barely exaggerate here.)

    It seems we're going to have to do the same with cops and prosecutors. They don't deal with actual laws, so nobody should take them seriously. There was even a case when a cop's lawyer was seriously arguing that they didn't even need to know the law and they could arrest someone based on what they think the law is. Can't quite remember if he got away with it though, but the attempt itself was outrageous.

    Next to this, "prosecutorial discretion" is just in the "awful but lawful" category. They can prosecute anyone they want and, more importantly, not prosecute anyone they don't want. The US legal system is basically a game where winning a case is more important than upholding the law. Actual facts and laws are less important than getting a win and avoiding a loss.

    (Also, people have been "educated" by years of TV shows where police and prosecutors are always the good guys, even when they use dirty tactics that should never hold in court. I get that it makes for good entertainment, but it also establishes a bad culture where "police is always right". Even a real judge actually cited the TV series "24" in court when talking about how to treat terrorist suspects. Facts and fiction are getting mixed up in the worst way possible.)

    reply to this | link to this | view in chronology ]


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