February 6, 2012
Re: Legal Condom Tossing
Commenting to Monique's post on the topic, Matt writes:
There is no question this conduct was criminal in nature (whether it should be is another issue) and the AG prosecutes for this kind of stuff all the time. See e.g. State v. Cardona, 969 A. 2d 667, 675 (Battery is defined as "an act that was intended to cause, and does cause, an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault." Id. (quoting Fenwick v. Oberman, 847 A.2d 852, 855 (R.I.2004)).
He expanded the citations for me, via email:
Section 11-5-3, entitled "Simple assault or battery," provides:"(a) Except as otherwise provided in § 11-5-2, every person who shall make an assault or battery or both shall be imprisoned not exceeding one year or fined not exceeding one thousand dollars ($1,000), or both.
"(b) Where the provisions of `The Domestic Violence Prevention Act,' chapter 29 of title 12, are applicable, the penalties for violation of this section shall also include the penalties as provided in § 12-29-5."
Assault and battery are both chargeable under § 11-5-3.[4] Assault is "a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." Broadley, 939 A.2d at 1021 (quoting Hennessey, 694 A.2d at 696). Battery is defined as "an act that was intended to cause, and does cause, an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault." Id. (quoting Fenwick v. Oberman, 847 A.2d 852, 855 (R.I.2004)). As this definition reflects, these two crimes, although independent and distinct from each other, are closely related and often arise from a single incident. See Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.1983) (emphasizing that "assault and battery are separate and different acts, each with independent significance," that often arise out 676*676 of the same incident); see also State v. Messa, 594 A.2d 882, 884 (R.I.1991).
All this, of course, is in addition to other possible charges that I came across while perusing the General Laws over the weekend. (What, you don't do that?) There's this:
11-11-1 Disturbance of public assemblies generally. — Every person who shall willfully interrupt or disturb any town or ward meeting, any assembly of people met for religious worship, any military funeral or memorial service, any public or private school, any meeting lawfully and peaceably held for purposes of moral, literary or scientific improvement, or any other lawful meeting, exhibition or entertainment, either within or without the place where the meeting or school is held, shall be imprisoned not exceeding one year or be fined not exceeding five hundred dollars ($500).
And this:
11-11-2 Use of dangerous or offensive instruments or substances to disturb public assemblies. — Any person who shall willfully place in, on, about, or upon any theater, motion picture house, hall, or other building or place where people are assembled for the purpose of entertainment or instruction, any substance or thing that does or is liable to interrupt and disturb the peace and order of that place, or is liable to interrupt, disturb, or throw into confusion or endanger the life and limb of persons assembled in that place, or which is liable to or does cause injury to the property of the owner, lessee, tenant, or other occupant of the theater, motion picture house, hall, or other building or place, or whoever willfully throws into, against or upon, or puts, places, and explodes or causes to be placed or exploded in or upon any theater, motion picture house, hall, or any other building or place of public assemblage, any bomb, torpedo, or other instrument or package loaded or filled with any explosive or offensive substance with intent unlawfully to destroy or injure the theater, motion picture house, hall, or other building or place of public assemblage, shall be imprisoned not exceeding five (5) years, or shall be fined not exceeding one thousand dollars ($1,000), or both.
And especially this:
11-45-1 Disorderly conduct. — (a) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly: ... (1) Engages in fighting or threatening, or in violent or tumultuous behavior; ... (3) Directs at another person in a public place offensive words which are likely to provoke a violent reaction on the part of the average person so addressed; ... (5) Engages in conduct which obstructs or interferes physically with a lawful meeting, procession, or gathering
Clearly, there's room to suggest that throwing objects during a political assault on such a gathering as the pro-life rally is illegal... unless, of course, the judiciary has effectively nullified these sections of the law or the AG's office just wants pesky right-leaning bloggers to go away like the mainstream reporters do.
No question their free speech rights end when they toss the condoms. But, there should be some sort of punishment that doesn't rise to the level allowed in the cited statute. Perhaps we need to bring back dunce caps and public shaming. Let them wear signs proclaiming their mean-spiritedness and give them a bag and stick to pick up street litter. Repeat for a few weekends so the inconvenience teaches the lesson.
Posted by: chuckr at February 6, 2012 10:41 AMSeriously, folks? You want this type of thing to be criminalized? Surely there are a few actual libertarians out there who cringe as much as I do at those so eager to forfeit their First Amendment rights.
If anything, perhaps that was littering. But for political speech, let's err on the side of the Bill of Rights.
Posted by: Russ at February 6, 2012 3:01 PMRuss, where's the line on this? Dumping a box of condoms on a rally or shooting confetti cannons on a rally or maybe letting a group of pigs loose in the middle of a rally, or maybe having an impromptu death metal concert in the middle of a rally...
Where's the line? If someone wants to have a protest or rally at the State House, let them have it and then the other group can have theirs at another time.
We do have other groups who rally at the State House who would not have handled this as well as the Right to Life group did, and it could have quickly escalated to violence or a riot. How about we use some common sense and common decency to stop it before it gets that far.
Posted by: Patrick at February 6, 2012 3:09 PMAs usual, you're missing the point, Russ. Given your radical friends' affinity for escalating attempts to silence those with whom they disagree, particularly around the RI State House, it would have been more responsible of the AG's office to say that, yes, there are a number of criminal offenses that bear on threatening behavior, but that a complaint would have to be filed and an investigation conducted to determine whether this incident reached that threshold. Instead, as Patrick suggests, we get a blanket statement that encourages escalation.
But really, I suspect nobody here really believes that your opinion on the matter in any way transcends political disagreement.
Posted by: Justin Katz at February 6, 2012 6:11 PMRidiculous, Russ. The First Amendment doesn't grant the right to throw things at people. You really are shameless.
Posted by: Dan at February 6, 2012 6:36 PMwhere were the Capitol Police when all this was going on?
Posted by: Kathy at February 6, 2012 6:59 PMAt least they weren't throwing Coney Island Whitefish. (couldn't resist, a few years ago I stumbled upon a used condom near the Providence waterfront, one of the people I was with told me to "look out for the Coney Island Whitefish!) Funniest thing I had heard in a while, i guess it's a common slang, never heard it till then.
Posted by: michael at February 6, 2012 7:34 PMWhere are the condoms? Were the condoms in question previously used? It can be safely assumed that the condoms could be used as evidence going forward and that's where the rubber hits the road.
Posted by: Phil at February 6, 2012 7:38 PMWhere are the condoms? Were the condoms in question previously used? It can be safely assumed that the condoms could be used as evidence going forward and that's where the rubber hits the road.
Posted by Phil at February 6, 2012 7:38 PM
Hey Phil-when I think of you and the subject matter of this post why does the word scum-bag stay in my head?????
LOL.
"Seriously, folks? You want this type of thing to be criminalized?"
Um, Earth to Russ, it already is.
Posted by: Max D at February 6, 2012 9:10 PMSo let me get this straight, you folks think I should be able to have fire fighters arrested for assault for throwing candy from trucks during parades? That you folks don't see where this nonsense would lead is truly puzzling.
Posted by: Russ at February 7, 2012 11:23 AMAwhile back,there were competng demonstrations at the Statehouse regarding in state tuition for illegal aliens.
First,the race pimps(Roberto Gonzales &Co.)paraded a bunch of children around,probably hoping for some untoward behavior by anti-free tuition people.It didn't happen,because hopefully that was not the mindset of anyone on our side of the issue.
When we had our demonstration,there were a group of "clowns",mainly,I'd suspect Brown students,who did their best to disrupt the speakers.In this case the scumbags weren't thrown,they were on two legs.
The left has decided since way back that they wre the only ones with a right to protest and the media and our piece of crap president seem to agree.
Reading the comments and anecdotes here re-enforces my opinion that the proper solution is not legal. "the people" have to decide this is unacceptable behavior.
PS, a recent Gallup poll determined that Rhode Island is first in the nation as regards the number of voters who self describe as "liberal"
Posted by: Warrington Faust at February 7, 2012 12:44 PM"The left has decided since way back that they wre the only ones with a right to protest"
Yes, it's interesting to see how certain groups ... embrace free speech and tolerance and dialogue.
Leave it to Russ to have no idea about context:
"So let me get this straight, you folks think I should be able to have fire fighters arrested for assault for throwing candy from trucks during parades? "
Russ, Should I be allowed to hit someone in the face with a heavy object at a very fast speed? If I go outside the mall and do that, it's a crime. If I do it in the context of a hockey game, it's perfectly fine.
How about tackling? Can I get a full head of steam and knock someone to the ground, wait til the get up and do it again a few seconds later? This was done a whole bunch on Sunday night on international tv. But if I do that on a Providence street to a person, it's very illegal.
Context makes a huge difference. Throwing candy to children is acceptable in that context. Interrupting a peaceful assembly during a scheduled rally at the State House by throwing unwanted objects on unsuspecting people is not ok.
Posted by: Patrick at February 7, 2012 4:10 PMRuss - The circumstances are *clearly* distinguishable. Even a child can understand that an action appropriate in one context would be inappropriate in another. People who attend parades understand and implicitly consent to the fact that light celebratory items might be thrown from the floats or the buildings. Attending a political event at the state house does not imply consent to being touched or having things thrown at you, and especially where children are present and the object is as offensive as a condom. It is at least a civil tort and could easily be criminal conduct. Calling it a "free speech" issue only saps what little credibility you have left.
Posted by: Dan at February 7, 2012 4:14 PMRuss' insinuations are sickening. that's the only user-friendly word for it.
Firefighters throwing candy during a parade? Come on, man!!
I'm sure that if there was a pro-choice rally and I threw 2 oz leaflets describing abortion alternatives at the protestors, Russ would be the last guy in line to defend my right to free speech and the first guy to start typing up musings on 'the fringe right assaults protestors'.
Posted by: Don Roach at February 7, 2012 11:39 PMClearly, there's room to suggest that throwing objects during a political assault on such a gathering as the pro-life rally is illegal
So Justin refers to a counter demonstration as assault. The theme of many of his earlier posts has been to equate big robust government with the lost of liberty. Now he seems to be calling for that big robust judicial arm of Government to be used against those who have done what was objectionable to him. He wants swift legal retaliation against those who threw condoms during a political gathering at the State House. Not just condemnation (pardon the pun) but full legal sanction. So which Justin do we have here now...the one who equates less Government with more liberty or just another partisan looking for a pound of flesh.
Look, I know everyone believes only what they hear and read, but nobody threw condoms at anyone.
Barth Bracy embellished. He wasn't outright lying, but this is the kind of poo-flinging nonsense that marks all crappy, in-the-weeds political arguing. You're wasting your time.
Both sides of the protest were totally stupid.
Posted by: Mike at February 9, 2012 5:14 AMMike,
It's pretty well established that condoms were either thrown or dropped (the accounts from the police on the scene have confirmed that much). Whether anyone was directly hit and, if so, if the contact rose to the level of battery isn't 100% clear.
Those defending the activities of the Occupiers don't understand the definition of battery that has been used for centuries in common law, i.e. *any* contact that is not consented to. There's no "free speech" exception for battery. In fact, it's quite the opposite; battery is a limit on what is protected under free speech.
As Dan and Patrick pointed out above, a main issue is did an individual consent to the contact. Again, for centuries, common law has offered a reasonably wide definition of consent that prevents jostling on the subway or a Bernard Pollard tackle in an NFL game from being considered battery.
Here are two hypotheticals that probably didn't play out at the statehouse rally exactly as described and include some unambiguous verbal statements. Verbal statements aren't needed to prove/disprove battery, but in the hypothetical they help clarify what would be battery and what wouldn't:
1) An Occupier gets set to dump condoms off of a balcony, where he sees people standing below. As he's getting set, a person in the crowd looks up and shouts out "do not dump those objects on me". The Occupier dumps the condoms anyway and they hit the person who objected. This is clearly battery.
2) An Occupier carefully picks a spot to dump condoms off of a balcony, where no one is standing below. After he's already dumped them, a person who was not visible to him steps out from underneath the balcony. The occupier shouts out "look out below". The person below responds "It's alright. I don't mind if whatever you've dumped hits me". (They talk really fast). This is probably not battery. (For the legal-eagles, I say probably here, because this example could involve negligence or something like that, but let's set that aside for now)
The state's Attorney General should be aware of such distinctions. The fact that his office doesn't acknowledge the possibility of unconsented contact when objects are thrown into a pro-life crowd at the statehouse suggests that Rhode Island has an Attorney General who sees being a progressive policy enforcer as part of his job, which I guess shouldn't be terribly surprising.
"Look, I know everyone believes only what they hear and read, but nobody threw condoms at anyone.
Barth Bracy embellished."
Really? Did the State Trooper who compelled the young man to pick up the condoms and then to immediately leave the building also embellish?
Posted by: Monique at February 9, 2012 9:39 PM