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

Mon, May 7th 2018 3:23am — Tim Cushing

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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Filed Under: arrests, complaints, intimidation, intimidation of a public official, louisiana, police

52 Comments

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Reader Comments

The First Word

“

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.

—John Snape

”

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Annonymouse, 7 May 2018 @ 4:43am

So when will all involved be punished for their behaviour.
What do people have to do?
Tar feathers and even the stocks seem too good.
Candle Jack says we are going to need a whole lot more rope.
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Anonymous Coward, 7 May 2018 @ 4:44am

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?
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Anonymous Coward, 7 May 2018 @ 4:46am

Bad laws equal bad communities
Lousiana has a reputation for corrupt cops and officials. This just adds credibility to it.
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carlb, 7 May 2018 @ 4:50am

It's not just Louisiana
Georgia just arrested someone a month ago for driving while Canadian... and she wasn't even black:

http://www.cbc.ca/news/canada/toronto/ontario-woman-arrested-jailed-in-u-s-for-driving-with-a- canadian-licence-1.4648561
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Anonymous Coward, 7 May 2018 @ 5:05am

ah! nothing like living in 'the Police State' especially when it's backed by the law!
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I.T. Guy, 7 May 2018 @ 5:35am

Re:
https://www.youtube.com/watch?v=B3RJUMm-hd0
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cryophallion (profile), 7 May 2018 @ 5:52am

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.
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John Snape (profile), 7 May 2018 @ 6:25am

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.
[ link to this | view in thread ]
norahc (profile), 7 May 2018 @ 6:26am

"Police officers aren't legal experts. No court expects them to know the intricacies of the laws they're paid to enforce."

Ignorance of the law is no excuse, unless you wear a badge and have been trained on the law.
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Anonymous Coward, 7 May 2018 @ 7:38am

Re: Liability Insurance
Their insurance is taxpayer funds. They act like it is unlimited and as if their conduct had nothing to do with how much was spent this year.
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Anonymous Coward, 7 May 2018 @ 7:41am

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?
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Roger Strong (profile), 7 May 2018 @ 7:44am

Attempting to solve overcrowding in Paris prisons in 1719, France offered freedom to prisoners if they agreed to marry a prostitute and move to Louisiana.

I mention this in hope that one thing will lead to another, and a Louisiana politician has Ancestry.com charged with "intimidation of a public official."
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Rich, 7 May 2018 @ 7:45am

How come the courts always give cops a break when it comes to know the laws they are suppose to enforce, but when it comes to citizens, ignorance of the law is no excuse?
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Anonymous Coward, 7 May 2018 @ 8:00am

Re:

How come the courts always…

The system is rigged.

It's a structural problem. The judges are not really bad people for perpetuating a rigged system. But while they're powerless to change it, judges lack the moral courage to resign in protest.
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Anonymous Coward, 7 May 2018 @ 8:14am

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.
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stderric, 7 May 2018 @ 8:21am

Well, they may be using an 'intimidation of a public official' law to intimidate the public, but at least they know how irony works.
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Anonymous Coward, 7 May 2018 @ 8:30am

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 ....
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Anonymous Coward, 7 May 2018 @ 8:42am

Re:
Plus, the law avoids a faux pas by using 'public official' instead of 'public servant'... because that would've crossed the line.
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Anonymous Coward, 7 May 2018 @ 9:34am

Re: Liability Insurance
Sure why not give the insurance industry their own police force.
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Docrailgun, 7 May 2018 @ 9:45am

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?
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Killercool (profile), 7 May 2018 @ 9:54am

Re: Hardly "filing a complaint"
...It was the DEPUTY calling the RESIDENT a pussy.

But, yes, self-control was definitely in order.
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Anonymous Coward, 7 May 2018 @ 9:59am

Re: Hardly "filing a complaint"
Read again. Aubin is the victim here, the civilian being verbally and physically assaulted by the thug Durkin. And, since the law in question is designed for abuse, of course you can engineer any conduct as intimidation.
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Anonymous Coward, 7 May 2018 @ 10:20am

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!
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Anonymous Coward, 7 May 2018 @ 10:23am

Re: Re: Hardly "filing a complaint"
At least the DEPUTY waited until the William Aubin Jr. gave him a very flimsy excuse to make the arrest, and maintained enough self control not to shoot William out of hand.
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Anonymous Coward, 7 May 2018 @ 10:35am

Re: Re: Re: Liability Insurance
"That's because taxpayer money literally is unlimited."

Obviously, this is incorrect.
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Anonymous Coward, 7 May 2018 @ 10:36am

Re: Re: Re: Re: Liability Insurance
You are conflating government with rich greedy asshole
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Anonymous Coward, 7 May 2018 @ 10:37am

Re: Confused cop
"So he charged Aubin with "intimidation of a public official " for threatening to report misconduct to a supervisor."

Is it illegal to not report a violation of the law?
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Anonymous Coward, 7 May 2018 @ 10:40am

Re: Re:
"The judges are not really bad people for perpetuating a rigged system."

Some of them are, that one juvenile court guy hopefully is still in jail.

Moral courage as opposed to financial courage?
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Anonymous Coward, 7 May 2018 @ 10:42am

Re: probably useless advice
Agreed. And do not think tv shows and movies provide good rational, experience or guidance as they are hilariously wrong almost all the time.
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Anonymous Coward, 7 May 2018 @ 10:52am

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.

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That One Guy (profile), 7 May 2018 @ 10:52am

"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.
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That One Guy (profile), 7 May 2018 @ 10:57am

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.
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Anonymous Coward, 7 May 2018 @ 11:10am

Re: Re: Re: Re: Re: 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...
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Anonymous Coward, 7 May 2018 @ 11:26am

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.
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tin-foil-hat, 7 May 2018 @ 11:48am

Re: Re: Confused cop
Everything is illegal in the US. The Oligarchy are exempt.
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Anonymous Coward, 7 May 2018 @ 11:51am

Re: Re: Re: Re: Liability Insurance
"That's because taxpayer money literally is unlimited."

Obviously, this is incorrect.

If its treated as if its unlimited - then whats the difference?
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tin-foil-hat, 7 May 2018 @ 11:53am

Re: Liability Insurance
It's hard to imform on your coworkers. This is true of any job. This is a good way to give a voice job performance alone. It's a good idea. hence it will never happen.
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Anonymous Coward, 7 May 2018 @ 11:56am

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.
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Anonymous Coward, 7 May 2018 @ 12:05pm

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.
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Anonymous Coward, 7 May 2018 @ 12:21pm

Re: Re: probably useless advice
TV poker tournament shows might be the most fitting, as in "never show your cards until you play your hand."
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Anonymous Coward, 7 May 2018 @ 1:07pm

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

I'm not too sure if you're just being cynic.

Neither am I, and that says a lot about the image that US cops are creating for themselves.
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Bruce C., 7 May 2018 @ 3:18pm

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.
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Bruce C., 7 May 2018 @ 3:25pm

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.
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Valkor, 7 May 2018 @ 4:33pm

Re: Re: Re: Liability Insurance
That's the point.
If premiums were paid by an individual, and that individual had to keep up that coverage, there would be incentive for reasonable behavior.

It works for doctors and contractors...
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Anonymous Coward, 7 May 2018 @ 6:39pm

Re: Re: Re: Re: Re: Liability Insurance
What's the diff? --- The fact that it is not.
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Anonymous Coward, 7 May 2018 @ 8:29pm

Re: Re: Re: Re: Re: Re: 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.
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Anonymous Coward, 7 May 2018 @ 11:39pm

Re: Re: Re: Re: Re: Re: Liability Insurance
Computer memory is also treated as unlimited, otherwise applications would have to take care not to exhaust the memory. Operating systems take care for them. It's a form of resource management. The same principle applies to tax payers money
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Adonai222 (profile), 8 May 2018 @ 6:31pm

Re: Re: Re: Re: Re: Re: Re: Liability Insurance
Tell that to the city of Bell, Ca. They are bankrupt and can't pay pensions because their leaders thought that "Taxpayer money" was unlimited.
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Gentry E Newsom, 13 May 2018 @ 8:08pm

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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WC_TN, 22 May 2018 @ 7:10pm

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.
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WC_TN, 22 May 2018 @ 7:19pm

Re: Re: Hardly "filing a complaint"
This same scenario plays out in prisons. Whenever a guard metaphorically drops his or her drawers and craps all over you and you tell that officer you're going to file a grievance against him or her, you get written up for "intimidating".
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Matthew zugsberger, 17 Jul 2018 @ 9:52pm

Dirty cops
Every cop in America needs to be hog-tied while we service there wives in front of them before we shoot them in the face
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