South Carolina Criminal Defense Blog

Judges in Bay Minette, Alabama, are now giving people convicted of misdemeanors the choice of going to jail, paying a fine, or attending church every Sunday for a year. If the person attends church every day for a year their charges are dismissed.

"It violates one basic tenet of the Constitution, namely that government can’t force participation in religious activity," Olivia Turner, executive director for the ACLU of Alabama told the paper.

Rowland acknowledged there were concerns about separation of church and state complaints but said he didn't see it as too big of a problem because offenders weren't being forced to attend church, they are just being given the option.

There you have it. So long as there is the option of going to jail, clearly there is no constitutional problem because no one is forcing them to attend church. I have no doubt that well meaning Christians working in courts across the South are now wondering why they did not think of it first. Back in June I blogged about Courts forcing religion on people - a judge in Mississippi was suspended for requiring church attendance as a condition of bail, there is ongoing litigation against the Berkeley County jail for denying access to any literature except the King James version of the Bible, and, in Horry County, one of the conditions of juvenile arbitration is that the juvenile attend church.

An Aiken County deputy shot and killed a 15 year old, arthritic german shepherd with no teeth. Clearly in self defense. "The deputy has to come home safe and the dog had to be stopped," said Cpt. Troy Elwell with the Aiken County Sheriff's Office."

A Cottageville police officer who shot and killed the town's former mayor has been laid off from his job . . . due to budget constraints. The officer apparently has been fired from four prior law enforcement jobs, for unsafe driving, domestic violence, insubordination, and for using excessive force.

A Hartsville police officer was arrested for threatening the lives of a state senator and the chief of police.

City of Rock Hill's unconstitutional resisting/interfering law comes under fire from the NAACP:

But the head of Rock Hill's NAACP claims police are using the law to unfairly arrest black men for either walking down the street or not answering when police order them to "stop."

"Their only crime is being black," Poole told Rock Hill City Council earlier this month. "This has got to stop."

Statistics released last week show that more than 75 percent of the people charged with resisting police in the last 12 months are black. Of the 130 people arrested during the period, 99 were African American.

The statue says that "No person shall oppose, resist or interfere with any police officer in the discharge of the police officer's official duties." This type of statute is fairly common, and the United States Supreme Court as well as the South Carolina Supreme Court have held repeatedly that any statute that criminalizes verbal conduct, other than that which arises to the level of fighting words, violates the First Amendment. Both Supreme Courts have also repeatedly stated that this especially applies to police officers, who are expected to take a certain amount of verbal abuse in their line of work and who are expected to have a thicker skin than the average citizen.

As the U.S. Supreme Court stated in City of Houston v. Hill: "the freedom of individuals to verbally oppose police action without risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."

H/T Injustice Newsfeed

A judge in Mississippi has received a public reprimand and 30 day suspension for, among other things, requiring church attendance as a condition of release on bail (H/T Legal Profession Blog). In one case, a defendant was re-arrested and held without bond twice for not attending church, which was a condition of his release.

A lawsuit against the Berkeley County Jail is still pending, brought by the ACLU on behalf of Prison Legal News and joined by the U.S. Attorney's office, alleging that the jail denies access to any literature except for the King James version of the bible.

In Horry County, when a juvenile enters the juvenile arbitration program, one of their conditions is that they attend church - to my knowledge, no one has challenged this yet. Arbitration is a good program - it is a way to avoid court for minor offenders, and serves the purposes of the juvenile system better than incarceration or other punitive measures. According to the DJJ's overview of the program, requirements may include:

• Paying monetary restitution.
• Performing a community service.
• Making a charitable donation.
• Attending educational programs.
• Participating in counseling.
• Writing topical essays.
• Apologizing to the victim(s).
• Attending substance abuse programs.
• Participating in victim impact panels.
• Visiting correctional institutions or making other appropriate field trips.

Nowhere in the list does it say, "attend church services," yet when a child enters the program in Horry County it appears in their requirements. No parent is going to risk their child being expelled from or not accepted into the program by challenging this requirement, and failure to complete the program is not appealable, so it is not capable of judicial review. The First Amendment states that "Congress shall make no law respecting an establishment of religion . . ." I am pretty sure this also prohibits the endorsement of any particular religion by forcing children to attend church services through the court system.

I am curious as to whether this is the practice statewide, or if it is only in Horry County, and if anyone has further information on how Horry County handles a juvenile who says no to attending church services. Leave a comment or send me an email.

The city attorney for Surfside, Florida, speaks out against evil bloggers who threaten the good name of herself and her local government. I don't really have anything to say about local government in Surfside, Florida - if you are interested, Scott Greenfield lays it out at Simple Justice, the South Florida Lawyers Blog has a bit about it, and the blog she is complaining about, Save Surfside, can be found here.

I am, however, fascinated with the vocabulary lesson contained in Ms. Dannheisser's amazing speech, which contains new words I have not heard before, and which takes familiar phrases and uses them in new, intriguing ways. Parts of the speech are poetry, pure and simple. For example, in describing the bloggers at issue, she says:

- they are "purveyors of irresponsible lies and distortions"

- "cyberbullies" who "plague the Town of Surfside"

- they are "persistent and purposefully uninformed"

- they are "cyber-swaggerers" (love it)

- she defines "truthiness," giving credit where it is due (to Stephen Colbert)

- "blogs have turned into kangaroo courts"

- and my favorite quote: "with the click of a send button, cyber-bullies throw proverbial rocks through your window and burn crosses on your lawn" Wow.

A lawsuit has been filed against the Berkeley County jail (in Monck's Corner, S.C.), alleging that the jail denies inmates access to any religious texts or literature other than the King James version of the bible. The lawsuit was filed by the ACLU on behalf of Prison Legal News, and now the U.S. Attorney has requested to join the lawsuit, agreeing that the policy violates the U.S. Constitution and other federal laws. The complaint can be found here, and the DOJ's motion to intervene can be found here. From the DOJ's motion to intervene:

Defendants enacted and enforce BCDC’s prohibition on inmates’ receipt and possession of virtually all forms of expressive materials. According to BCDC policies and practices, inmates may not receive books, magazines, newspapers or other expressive materials through the mail, regardless of whether the materials are routed directly from commercial publishers or sent by friends or family members. Defendants have repeatedly denied inmate requests for a variety of publications, including educational materials needed for a correspondence education course, more than a dozen legal newsletters, and copies of religious texts such as the Koran and Torah. Defendants exacerbate these restrictions by not operating a library or providing any other resource for inmates seeking access to expressive material at BCDC.

Indeed, the only book, magazine or newspaper that Defendants consistently permit inmates to possess is the Bible.

Lack of access to reading material in jails across S.C. is a problem - it has bothered me for some time that I cannot provide Narcotics Anonymous or Alcoholics Anonymous texts to inmates who ask for them, considering the number of people who are arrested on drug charges or who are arrested for conduct that stems from drug use and addiction.

The FBI is upset that Wikipedia included it's seal on its online encyclopedia entry:

(CNN) -- The U.S. Federal Bureau of Investigation has threatened Wikipedia with legal action if the online encyclopedia doesn't remove the FBI's seal from its site.

The seal is featured in an encyclopedia entry about the FBI.

Wikipedia isn't backing down, however. The online encyclopedia -- which is run by a nonprofit group and is edited by the public -- sent a chiding letter to the FBI, explaining why, in its view, the FBI is off its legal rocker.

It makes sense for an online encyclopedia to include an agency's official seal along with the other information about the agency. In case anyone was wondering what this top secret government seal looks like:

H/T Popehat, Bennett, Greenfield, Gideon, Gamso, Coleman, and Windypundit .

People are regularly charged with public disorderly conduct, breach of peace, or interference with a police officer and arrested and imprisoned by police officers for questioning their authority, asking questions, using profanity, or doing anything in general that pisses off the cop. Many people may not realize that all of the above is protected conduct under the First Amendment, unless the person's conduct arises to the level of "fighting words," which is defined by the U.S. and S.C. Supreme Courts as conduct or words that would tend to immediately incite violence.

This has been the law according to the United States and South Carolina Supreme Courts for over 30 years, and it is well established. The police know that this is the law - they are specifically trained on First Amendment law at the academy and they are told that they cannot arrest a person for speech unless the person speaking is causing violence.

Despite this, they also know that most people can not afford to retain an attorney - that they will plead guilty to the misdemeanor charge in the morning and most likely pay a fine. They know that they have made their point - piss me off and you will spend the night in jail. Attorneys call it "contempt of cop" - analogizing to "contempt of court," where a judge can put you in jail if you disrupt the courtroom. Police are not judges, and they have no such power.

This widespread practice of police is an abuse of power. The problem is a lack of training, a lack of supervision, a lack of discipline in the police departments that allow it to happen. Horry County Police Department is among those agencies with a systemic problem that allows this to happen - in a recent case an officer testified that there was nothing wrong with arresting and jailing a person if they questioned his authority, did not listen to him, or cursed in front of him. When they were sued, Chief of Police Johnny Morgan sat in the courtroom for the entire trial and watched. He said nothing. He offered nothing. He did not admit that what happened was wrong, there was no apology, and there was no discipline for the officer. They laughed at the breaks, when the jury was out of the courtroom, and they joked about what had happened. That same officer is or was a part of a group of officers who continue to arrest and jail people for protected speech, when a citizen makes them angry. It is an institutional problem which begins at the top of the chain.

Being overpowered, handcuffed, made helpless, sometimes physically hurt in the process, humiliated, and then locked in a cell overnight or longer is no small slight - it is a terrifying experience, more so when you know that you have done nothing wrong and that the person doing it to you is not following the rules.

It goes unnoticed because most people have the nagging feeling that maybe they did something wrong. Maybe it was my fault. We want to trust the police. After a night in a cage they appear before a judge and agree to pay a fine so that they can go home.

Last October three police in Columbia, S.C. arrested a man named Jonathan McCoy for contempt of cop - they didn't know who he was - as far as they knew it was just some asshole who had the nerve to walk up and ask them why they were arresting his friend. I don't know why they were arresting Jonathan's friend, only that Jonathan says he did nothing more than question the officers when he was taken to the ground, handcuffed, arrested, and jailed. While in jail he witnessed another inmate commit suicide by hanging himself.

Jonathan is not just another helpless person walking down the street who does not know their rights - he is a lawyer from Myrtle Beach, S.C. The incident was captured on a video camera in Five Points, S.C. - video footage which shows that the officers lied in their incident reports:

In the police incident report, officers said McCoy "grabbed an officer by the arm and asked what was happening." Officers asked McCoy to step back but he continued to intervene, getting in officers' faces, according to the incident report.

WMBF has the video - Jonathan walks up to the officers and appears to be questioning them; he is almost immediately pushed violently by an officer and then he is shoved almost off camera by two officers before he is handcuffed.

A federal judge in South Carolina ruled today that it is unconstitutional for the state to issue the controversial "I Believe" license tags, which feature a picture of a cross over a stained glass window along with the phrase "I Believe."

Lt. Gov. Andre Bauer had pushed for the legislation authorizing the plates, and the Court noted in it's ruling that Bauer was attempting to accomplish

legislative approval of a specialty plate promoting the majority religion: Christianity. Whether motivated by sincerely held Christian beliefs or an effort to purchase political capital with religious coin, the result is the same. The statute is clearly unconstitutional and defense of its implementation has embroiled the state in unnecessary (and expensive) litigation.

Bauer is quoted as responding by saying:

"I don't expect anything different from a liberal judge who was appointed by Bill Clinton," Bauer said. "If she wants to single me out, so be it."

Bauer said it "once again shows how liberal judges are not just interpreting the law but making legislation."

The cliche "liberal judges legislating from the bench" is old and tired. The First Amendment to the Constitution says what it says, like it or not:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is true that Christianity is the predominant religion in our country, and there is nothing wrong with that. The fact is that many provisions in the Constitution were put there specifically to protect those who are not in power - in this case, religions other than Christianity are decidedly a minority. Imagine the outcry if the state issued license tags promoting Islam. Our system of government is prohibited from endorsing any particular religion, including and especially the dominant one. Bauer, like the legislators who voted for this legislation, took an oath to uphold our Constitution - like many in government, they either are breaking that oath or they are demonstrating that they have not read the document they swore to uphold.

Using religion to grandstand and garner votes is reprehensible in my opinion and it is no different than legislators who lobby for harsher and harsher penalties for X criminal offense - it provides a platform to get attention, but it does nothing to serve the public interest.