Thursday, December 01, 2005

Semi-Legal Stuff

Stop by Begging the Question and wish Milbarge and Fitzhume a happy second blogoversary.

Random Mentality has been taken down. I'm really gonna miss it. From the email: As some of you already know, I've decided that I'm moving to Chicago once I can find gainful employment in the area. Prospective employers don't need this kind of ammunition information. . . . PPS: Yes, I'll still come to the parties. . . .

Of course, then there's this excerpt from last week's Urban Legends Reference pages:
A Chicago man dies and goes to hell.

When he gets there, the devil comes over to welcome him. The devil then says, "Sometimes it gets pretty uncomfortable down here."

The man says, "No problem. I'm from Chicago."

So the devil goes over to the thermostat, turns the temperature up to 100, and the humidity up to 80. He then goes back to the Chicago man to see how he's doing. To the devil's surprise, the man is doing just fine.

"No problem...just like Chicago in June," the man says.

So the devil goes back over to the thermostat, and turns the temperature up to 150, and the humidity up to 90. He then goes back over to see how the Chicago man is doing. The man is sweating a little, but overall looks comfortable.

"No problem. Just like Chicago in July," the man says.

So now the devil goes over to the thermostat, turns the temperature up to 200, and the humidity up to 100. When he goes back to see how the man is doing, the man is sweating profusely, and has taken his shirt off. Otherwise, he seems OK.

He says, "No problem. Just like Chicago in August."

Now the devil is really perplexed. So he goes back to the thermostat, and turns the temperature down to MINUS 150 DEGREES. Immediately, all the humidity in the air freezes up, and the whole place (meaning Hell) becomes a frigid, barren, frozen, deathly cold wasteland.

When he goes back now to see how the Chicago man is doing, he is shocked to discover the man is jumping up and down, and cheering in obvious delight. The devil immediately asks the man what's going on. To which the Chicago man replies.....


In the overkill department, State 29 notes this:
"STRONGHURST, Ill. — An eighth–grader at West Central Junior High has been removed from school and may face a charge of disorderly conduct after school officials learned last week about a list that named students and school staff the boy considered irritating...

There was no indication any other students at the school were involved in creation of the list, which Grimm said contained the names of people the boy found "annoying."

Henderson County Sheriff Mark Lumbeck was to meet with school officials Tuesday as part of his office's investigation of the incident.

He said findings from the investigation would go to the state juvenile probation office and to the Henderson County state's attorney's office. An investigative report should be in the hands of State's Attorney Ray Cavanaugh by week's end, Lumbeck said.

Because no action was taken beyond compiling a list of names, Lumbeck said the only crime the boy could be charged with is disorderly conduct for disrupting the school environment.

Zero tolerance can be slipped past the first amendment, as you can see in this nice summary of the caselaw:
In 1999 when Adam was 14, he sketched a drawing of his school, East Ascension High, under attack by a missile launcher, armed individuals and explosives. The drawing also contained disparaging remarks about his principal and a racial epithet.

Adam showed the drawing to his mother, Mary LeBlanc. “I remember when Adam sketched the drawing in his bedroom,” she said. “I asked him what he was doing and he said he was ‘just playing.’ I found it humorous, not a serious thing. I talked with him about it. He had no violent intent at all when he made the drawing. In fact, I forgot about it until two years later.”

Adam’s mother forgot about the drawing in part because the sketchpad was thrown into a family closet, where it remained for two years until Adam’s younger brother, Andrew Breen, discovered it in March 2001. Andrew drew a picture of an animal on it. Then he took the sketchpad on the school bus to show one of his teachers. On the bus, Andrew showed his drawing to a fellow student. Flipping through the pad, that student noticed Adam’s 2-year-old drawing. The student showed the school bus driver and the cycle of overreaction began.

The result was that Andrew received a three-day suspension for bringing an inappropriate drawing to Galvez Middle School. Meanwhile, officials were contacted at the high school and informed of Adam’s drawing. School officials searched Adam at school and found a box cutter. They then removed him from school.

Adam worked at a local grocery store and used the box cutter for his job. School officials thought differently, believing him to be a serious security risk.

“Adam spent four nights in jail,” his mother recalls. “It was unbelievable. Adam never had discipline problems in school. The only complaint I ever received about him was that he sometimes made the other kids laugh, sort of like a class clown. He was one of the most docile kids in school.”

Adam was allowed to re-enroll at an alternative school after his mother waived his right to a hearing on the expulsion proceedings. His mother signed the waiver after being told by a school hearing officer that such school proceedings are regularly decided in the school’s favor. Adam attended the alternative school, later re-enrolled at Ascension and dropped out in March 2002.

At that time, Adam Porter and his brother sued Ascension Parish School Board, alleging numerous constitutional violations. Among their claims, the brothers asserted that school officials had violated their First Amendment rights by punishing them for the content of a drawing. . . .

In Porter v. Ascension Parish School Board, the 5th Circuit disagreed with the lower court that Adam’s speech was a true threat or that it constituted a substantial disruption under Tinker.

“Given the unique facts of this case, we decline to find that Adam’s drawing constitutes student speech on school premises,” Judge Patrick Higginbotham wrote for the panel. “Adam’s drawing was completed in his home, stored for two years, and never intended by him to be brought to campus.”

“Private writings made and kept in one’s home enjoy the protections of the First Amendment, as well as the Fourth,” the panel wrote. “For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place.”

However, the 5th Circuit still ruled in favor of the school officials by granting them qualified immunity. Qualified immunity is a doctrine that protects government officials from liability in civil rights actions when they do not violate clearly established principles of law.

The panel wrote that a reasonable school official “facing this question for the first time would find no pre-existing body of law from which he could draw clear guidance and certain conclusions.”

Because of the “unsettled nature of First Amendment law as applied to off-campus student speech inadvertently brought on campus by others,” the court determined that the school officials did not violate clearly established constitutional rights.
My issue: at least with the drawing they could find some facial argument that it was a threat. But a list of "annoying" people? And unless that list was circulated by the author, how are they finding it disorderly conduct? It appears each municipality in IL has its own disorderly conduct ordinance, and I can't find Stronghurst's online, but the gist of most of them requires some sort of inciting a breach of the peace. Galena's, for example, goes like this:
A person commits disorderly conduct when he knowingly:
(A) Does any act in such unreasonable manner as to provoke, make, or aid in making a breach of the peace; or
(B) Does or makes any unreasonable or offensive act, utterance, gesture or display that under the circumstances creates a clear and present danger of a breach of peace or imminent threat of violence; or
(C) Fails to obey a lawful order of disbursal by a person known by him to be a peace officer under circumstances under which three or more persons are committing acts of disorderly conduct in the immediate vicinity that are likely to cause substantial harm or serious inconvenience, annoyance or alarm; or
(D) Assembles with three or more persons for the purpose of using force or violence to disturb the public peace; or
(E) Engages in any violent, tumultuous, offensive, or disorderly conduct by threatening, traducing, quarreling, challenging to fight or fighting, or uses obscene, offensive, profane or unseemly language to the annoyance, disturbance, or vexation of another, or is guilty of any conduct calculated to breach the peace.
('69 Code, § 13-16) (Am. Ord. O-93-27, passed 2-22-93; Am. Ord. 0-96-13, passed 8-26-96)Penalty, see § 133.99
Catch all that language about "knowingly" doing "unreasonable" acts that make a breach of the peace? A personal list of annoying people is juvenile (a kid being juvenile? go figure) but not unreasonable, nor reasonably calculated to be an imminent threat of any kind. Yikes. The thought police are among us.

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