Funneling Trump Rally Attendees Directly Into A Violent Anti-Trump Crowd Costs Officers Their Qualified Immunity
from the DO-NOT-CONGRATULATE dept
Law enforcement officers have no duty to protect citizens. So many offer up "protect and serve" as a credo, but the Supreme Court ruled cops have no obligation to uphold the first half of that saying and law enforcement agencies have made it pretty clear the second half isn't going to be getting much attention either.
While officers may have no obligation to protect citizens, they do have to ensure they don't make things worse for those they're serving. The line isn't drawn especially clearly, but if you're policing the denizens of a frying pan, you definitely shouldn't push them into the fire. (h/t Volokh Conspiracy)
The frying pan in this Ninth Circuit Appeals Court decision [PDF] was a June 2016 Trump rally held in San Jose, California. The fire was the anti-Trump protesters gathered outside the arena. Aware that Trump rallies tended to produce violent clashes (of ideologies, but mainly fists and other thrown objects), 250 officers were sent to patrol the scene.
Things started to go badly quickly. According to the plaintiffs, the city instructed officers to stand back and let pro- and anti-Trump forces work it out between themselves. The rationale? "Intervention might cause a riot." There is some pragmatism to this statement, but not a whole lot of wisdom. Either way, it does clearly show the city understands officers have no duty to protect. If beatings were going to occur on their watch, they weren't going to jump in the middle of it and possibly become part of the problem.
But it was clear to officers anti-Trump protests tended to include violent acts directed at pro-Trump rally attendees. It was even more clear in this case, as officers witnessed violent acts (or had acts reported to them) but refused to intervene. In fact, the 250 officers racked up only three arrests between them -- and every one of those included an "assaulting an officer" charge.
The only time the officers appeared to step up was to "assist" pro-Trump rally attendees make their way out of the arena… and directly into the crowd of violent protesters.
Two Attendees—Hernandez and Haines-Scrodin—claim that San Jose police “directed [them] to walk through the antiTrump protesters, rather than . . . allow[ing] [them] to turn south, in the direction of safety.” “Soon after following the[se] directions . . . , [they] were struck repeatedly in their faces and heads by anti-Trump protester, Victor Gasca.” “Several other anti-Trump protesters also battered Hernandez and Haines-Scrodin, while Gasca kept up his assault.” As a result, “Hernandez suffered a broken nose [and several] abrasions,” and “Haines-Scrodin . . . suffered [various] bodily injuries.”
Another Attendee, I.P., claims he experienced similar violence due to the City Defendants’ poorly conceived crowd-control plan. Just like Hernandez and Haines-Scrodin, he “exited the east-northeast exit of the . . . Convention Center, where a line of police officers prevented [him] from turning right, to safety” and instead “directed [him] to turn left, into the anti-Trump protesters.” “I.P. was struck in the back of his head” by one protester and “tackled . . . to the ground” by another.” “After being attacked, I.P. made his way [back] to [the] police skirmish line, and was only later allowed to cross the line to safety.”
These allegations are sufficient to survive a qualified immunity defense… twice. The district court found the officers' actions could not be excused under two theories. First, it could be credibly alleged the department did not adequately plan for the event, eventually resulting in this debacle. Alternately, it could be argued the officers increased the risk of harm by funneling rally attendees directly into a crowd that meant to do them harm. Either way, officers created this danger to leaving attendees and that particular Constitutional point has been settled for more than a decade.
The officers argued they created no more danger than already existed. Their defense was basically this: anti-Trump protesters would have beaten up pro-Trump rally attendees whether or not we showed up to "police" the event. The appeals court vehemently disagrees.
The argument proves too much. If the Officers could avoid liability because the Rally was already dangerous and the Attendees were bound to be hurt, so too could the officer in Wood on grounds that the plaintiff was traveling through a high-crime area, the officers in Penilla because the plaintiff was already severely ill, and the officer in Kennedy on grounds that the plaintiff’s neighbor was known to be unstable and violent. Under the Officers’ theory, liability would only attach when an official does “more than simply expose the plaintiff to a danger that already existed.”
What happened here, the court reminds the defendants, is that officers refused to let attendees steer away from the protesters to find other ways to exit the rally. Indeed, officers directed exiting attendees directly into the anti-Trump crowd. The danger may have already existed, but officers ensured attendees would have to face that danger head on.
Attendees allege here they would have made it “to safety” had the Officers not affirmatively directed them into the crowd of protesters. Accordingly, they have alleged sufficiently this prong of their state-created danger claim.
Not only does the state-created danger claim survive, but so do the plaintiffs' allegations of deliberate indifference.
Like the officers in Wood, Munger, and Kennedy, the Officers here were aware of the danger to the plaintiffs—they knew the anti-Trump protesters posed an immediate threat to the Attendees. According to the FAC, “as early as [6 p.m.] the day of the Rally, the San Jose police warned all officers deployed around [the] Rally that assaults had already been reported outside the [Convention Center].” And throughout the Rally, the Officers “witnessed the many violent criminal acts perpetrated by dozens of anti-Trump protesters” and yet continued to “direct[] [the Attendees] into the mob.” The allegations here, if true, demonstrate the Officers “act[ed] with deliberate indifference to a known [and] obvious danger.” Patel, 648 F.3d at 971–72 (citation and internal quotation marks omitted).
Indeed, the Officers’ actions are in some ways even more culpable than those of the officer in Kennedy. The Court there found the officer was deliberately indifferent because he was aware of Michael’s past acts of violence—that he “had . . . beaten [his girlfriend] with a baseball bat” and had once “li[t] a cat on fire.” Kennedy, 439 F.3d at 1064. Here, the Officers were not only aware that Trump rallies had drawn violent crowds in the past but had also received reports of violence on the day of the Rally and witnessed the violence firsthand during the Rally.
This is what happens when officers read the 2005 Supreme Court decision on "protect and serve" and decide it means they can do the exact opposite ("ignore and endanger?") and still escape liability. They can't, not when the violations are this blatantly obvious. There were other exit paths available to rally attendees. Officers decided they had only one -- one that ran right through people just waiting to take a swing at people whose politics they disagreed with. And for that, they'll be forced to defend themselves against these allegations and possibly allow San Jose taxpayers to find out exactly how expensive deliberate indifference is.
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Filed Under: police, qualified immunity, trump rally
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If it were the other way around, if the police were bringing individual anti-Trump protesters over to the peaceful Trump rally, I would have said that maybe they were trying https://www.xkcd.com/438/ .
(Weird; I would have thought it'd be the pro-Trump crowd who would be violent and the anti-Trump who would be 'good guys'. Why were the violent ones violent and why were they in the same place as a peaceful rally?)
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Intelligent discourse is all but dead in politics. Violence is the new form of "debate".
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Are we talking about the pro-Trump and anti-Trump sides, or police and non-police?
(Were things reversed and people were forcing police to go somewhere they don't want to, the trial would already be done.)
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In a situation where mental midgets meet to determine who is more dumber, we attempt to extract political affiliation in the ever ill fated blame game.
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Antifa is the logical outcome of the right-wing 2nd amendment nutjobs showing up everywhere with their guns, just daring someone to challenge them. Short-sighted dipshits that thought everyone else was a snowflake and wouldn't *also* exercise their 2nd amendment rights.
You reap what you sow. If you go out looking for a fight, expect that at some point someone will take you up on it.
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To the man with a hammer, everything is a nail. To the bully motivated by antifascism, everything is fascism.
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The Second Amendment does not empower aggressors to shoot down people they don't like, and NRA types have not been doing so
They're getting what they're advocating for - an armed society looking to protect their own interests. It's not like Antifa is any different than the NRA. They both share a common love for the second amendment - surely we don't think one side should be able to show up armed while the other should not, do we?
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I also find it hilarious that you ignore the last 200 years of history so you can pretend that something that hasn't changed at all is somehow the cause of this wave of violence.
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People choosing to act violently and people choosing to own guns have absolutely nothing to do with each other and both of those conditions exist completely independent of the other all over the place as proof of that.
Sure. But the point you're missing is that the people advocating for carrying weapons everywhere because they might need to "stop a robbery in progress" (or insert your favorite NRA excuse) seem to be the ones shitting in their MAGA-drawers over Antifa doing exactly that.
I just find it funny that so many badass 2A folks are so scared shitless of Antifa. I thought libs were snowflakes?
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Antifa are a bunch of pasty white, skinny-jean wearing cunts living in their parents basement, that hide behind their women when people fight back and only attack when they have numerical advantage and when their opponents are unarmed.
If the "badass 2A folks" were actually there with their weapons, Antifa wouldn't stand a chance. You notice they (Antifa) never show up in open-carry or concealed carry states, because they know as soon as they started assaulting people, they'd be cannon fodder. They like to show up in pussified left-coast towns like Berkeley and assault unarmed people going to hear someone speak, because they know that no one will be armed and the police will stand around and watch. They are gutless, spineless, nut-less turds and hopefully people will get fed up and start kicking the shit out of them ASAP.
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They were in Charlottesville.
Tough talk for a guy on an Internet comments section.
Is "Constantine" your real name?
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How many anti-trump protesters have run over people with their vehicles?
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Just an "isolated incident" involving a "few bad apples"
And no one had better mention feeling less safe at the sight of a cop, either. That is the /real/ crime, not trusting the police to keep you safe.
Not a mob of 250 cops sending innocent people into another violent mob, to meet whatever fate had in store for them there. That's ok, because #Bluelivesmatter (more than yours), and #Backtheblue, as well, because if you don't, fine, upstanding police might not be protected enough by all the special protections they have.
Playgrounds and suburbs are already a war zone, the police remind us, although where the craters and mangled corpses in jumbled wreckage are, I have no idea.
Back the Blue; it's good for them, and okay for you.
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Re: Just an "isolated incident" involving a "few bad apples"
Why not? If people have had bad experiences with cops, or follow the various websites that depict the many bad acts by cops feel less safe around cops, why is that wrong?
Right, you believe that cops are good, and our country right or wrong. Well, not all of us feel that way, and it is perfectly normal to love ones country, but dislike when they do wrong.
Or what?
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And that one is *not* the example for Poe's Law.
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However, I can't help but wonder how you came to conclude that a Blubacker would call any group of police a "mob", let alone admit that #bluelivesmatter does indicate that their lives matter more.
And how the hell did everyone miss the nod to the Stallone Dredd?
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ACC may rest assured that I am not viewing the world through brand-new BluBackers.
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Re: Just an "isolated incident" involving a "few bad apples"
Chicago
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Re: Just an "isolated incident" involving a "few bad apples"
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Same as when forced through Techdirt's gauntlet of rabid dogs.
As I've mentioned once or twice, dissent is not treated fairly here, but has comments censored, while the fanboy-pirate-trolls are allowed to write whatever wish without any ever being hidden, let alone reprimanded.
Sure, it's a less risky gauntlet but still exact analogy.
Oh, spare me that I don't have to write here, as the principle is clear: UNFAIR HIDDEN EXERCISE OF PARTISAN POWER.
And it's always done by those who most often claims open to discussion and love the First Amendment.
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Moderation is a platform operator saying “we don’t do that here”. Discretion is you saying “I won’t do that there”. Censorship is a government agent saying “you can’t do that anywhere”.
(BTW: I now have that entire spiel on a text expander macro just for comments like yours. Get used to seeing it.)
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Incidentally...
The terms of service on InfoWars, of all sites, spells this concept out:
(Note: The link goes to an archived version of the TOS page. I am not about to give InfoWars any traffic.)
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That's your opinion, not a fact. dictionary.com, Merriam Webster, Wiktionary all have definitions covering non-government actions. Dictionary.com calls a censor "any person who supervises the manners or morality of others."
In other words, keep that macro ready, because you're walking against the crowd with your definition. You can declare success when the phrase "government censorship" is agreed as redundant.
(That said, I'm laughing at the irony of that Infowars quote. It's fair to use their definition against them.)
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Oh, cool, I’m a radical now. When do I get to kick the asses of Courtney Love and Marilyn Manson?
But references to late-’90s alt-rock aside, I stand by what I said. Moderation and discretion, as outlined in my spiel, could technically be referred to as “censorship” if you really want to get anal about it. True censorship—the kind that the First Amendment was written to protect—is neither moderation nor discretion.
You have the choice to act like an asshole on a platform that hosts your speech. If you choose to do it and the platform boots you, that is moderation. If you choose not to do it, that is discretion. If you choose to do it and the government/legal system tries to punish you for it so you never do it ever again, that is (attempted) censorship.
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Geez, I was so busy planning out things for my new radical status that I left out the most important word in that sentence. That’ll teach me to avoid the dreamer’s disease.
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You're welcome to your own definition, but the non-government defintions referenced are not some obscure archaic things included as footnotes for completeness; it's not "anal" to say non-government actions can qualify. Of course the First Amendment won't protect us from such (so far it's been the opposite—platforms have a First Amendment right to moderate). It specifically limits congress, not all of us.
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A bookstore refusing to sell a certain book can be a form of censorship, but it is also moderation—a platform (the bookstore) choosing to say that a specific form of expression (the book) is not welcome on, and will not be associated with, that platform. I can refuse to spout obscenities here on Techdirt, which can be a form of censorship, but it is also discretion—my choosing not to use certain words on a platform so that I look like less of a fucking asshole than I really am. (…shit, there goes my discretion.)
Government intervention in the publication and distribution of protected speech and expression is censorship and nothing else. The force of law preventing speech from being shared or even made cannot be euphemised away, and it sure as hell cannot be called “discretion” or “moderation”. I stand by my spiel and I will continue to use it until Mike puts it in the spamfilter with Blue’s ramblings and Hamilton’s insanity.
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defining censorship
My high school definitely censored the yearbook and school newspaper.
And we definitely talk about critics self-censoring.
I'd also call the ban on live hyperlinks in Techdirt's comments censorship, but not in a pejorative sense. I've seen my half-completed comments disappear when I'm all thumbs, thank you for censoring those, Techdirt. Another website I know shadow-bans the famous seven curse words of the FCC; we call it auto-nanny, but it's really censorship.
But most of what is happening is really moderation... readers flag stuff as bad, and it sits largely unread. That's even more true with the "first word" and "last word" flags, which promote some stuff.
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Re: defining censorship
I would call that an edge case in re: the difference between “censorship” and “moderation”. While it can be seen as both, the position of a school as a state institution makes figuring out which side to put it on a challenge. Does the school have a right to moderate the school newspaper? I would guess there are legal rulings on the matter, but I am too damn exhausted to look that up right now.
Again, that is discretion. However, I am willing to break out of my prior orthodoxy on this point and admit to an exception: discretion caused by threats of violence. That shit is censorship, pure and simple. (See? I can change my mind!)
LOLwut.
Again: LOLwut.
That is the platform operator moderating what speech is acceptable under the rules of the platform. You are free to post those words anywhere else that would host them—including Techdirt, if’n you have the guts.
See? Now you get it.
And thanks to that bit up there about threats of violence, I’ve altered my little spiel:
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Re: Re: defining censorship
Most 'self-censorship' is really "Oh we didn't know people would take it that way" and make changes to things to get back to their true intent.
An artist who bleeps himself in a radio edit is 'self-censoring' as it's clear they want to use the words in their original work but 'keeping it clean' for a wider audience.
An artist that redraws or retracts a character that was accidentally supporting some racist, sexist or other unintended message is just making a correction.
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Re: Re: Re: defining censorship
Like I said, discretion. “I won’t do that there” can mean any of the examples you listed above: “I won’t say this stupid thing on Twitter”; “I won’t say these words on the radio”; “I won’t write this character in that way again”.
If discretion is triggered by threats of violence, however—“I won’t say this stupid thing on Twitter because I’ll get death threats from assholes”—it becomes flat-out censorship.
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Re: Re: defining censorship
You seem hesitant to fully accept that something can be both, though you've said it a few times. Your example is censorship, and perhaps also "moderation" (depending on the details... something like a public financial report wouldn't count because it would already be "moderate", even if the administration doesn't want that information easily accessible).
I'll leave it to the courts to determine whether your example is illegal censorship, and to the public to determine whether it's acceptable. It's not relevant to this discussion.
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No, I am not hesitant. The position of a public school as a government institution makes harder the determination of whether a refusal to run content in a school newspaper is censorship alone or can also be considered moderation. Such a situation is complicated and, admittedly, a bit over my head.
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That said: I do appreciate people taking my shit to task here, as it has given me the chance to better articulate, inform, and alter my views as I consider new perspectives and information. 👍
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Re: Re: defining censorship
My school was public, but there are plenty of private ones, too... the example I have in mind is one day the school newspaper printed a bit of sexual innuendo, and we all knew about it because of the black magic marker line through it on all the copies, effectively Streisanding it. The legality of this never crossed anyone's mind; the kids involved were in trouble over it and that was what we all expected.
There's definitely some overlap between moderation and censorship; I still quibble with your definitions.
Moderation includes "we don't do that here", but also includes the comment voting system, replies from the site owners, and *can* include censoring (completely removing) content, such as Techdirt never showing spam and my all thumbs ill-formed submissions. Censorship is completely removing content, involuntarily, usually with at least the threat of consequences. Recall we had network censors in the 1960s.
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All of those things are still moderation/“light” censorship. Our usual goatfucking trolls can go print their same comments anywhere else that would host them, if they had the guts and the brains to do it. I view censorship in a much stricter light—that is, as an attempt to prevent others from being able to speak their mind anywhere as opposed to a single platform.
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Censorship is a problem when it's your government doing it because you can't easily just click a back button and go live under a different government.
If TechDirt, Facebook, or YouTube is your life and you are having conniptions over your ability to speak freely in someone else's 'house' how about you turn off your computer for a while and live in the real world.
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I think you're misunderstanding. We're talking about the definition of censorship, not the acceptability of such. Sure, those sites are free to censor, unlike the government (of course, when they make bad decisions we can still bitch about it elsewhere; their freedom to censor shouldn't free them from criticism).
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But this discussion isn't in a vacuum, it wasn't triggered by a level headed discussion about the merits of censorship.
This is a frothing at the mouth troll or mentally stunted man-child yelling about censorship as if it's their god given right to spew shit everywhere and everyone else is forced to eat it.
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Both of those groups can go suck eggs.
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Re: Same as when forced through Techdirt's gauntlet of rabid dogs.
*We don't treat you fair
*Mike doesn't treat you fair
*Mike has no right to moderate
*We have no right to downvote your off topic comments
*We are all reading the constitution wrong and you have a sovereign right to do... something?
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Different lyrics same tune.
Papa was a copper, and her mama was a hippy
In Alabama she would swing a hammer
Price you got to pay when you break the panorama
She never knew that there was anything more than poor
What in the world does your company take me for?
Black bandanna, sweet Louisiana
Robbing on a bank in the state of Indiana
She's a runner
Rebel, and a stunner
On her merry way saying baby, watcha gonna?
Looking down the barrel of a hot metal forty-five
Just another way to survive
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Re: Different lyrics same tune.
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Re: Same as when forced through Techdirt's gauntlet of rabid dogs.
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Re: Same as when forced through Techdirt's gauntlet of rabid dogs.
And I know you say stupid things, because you said this stupid thing in a tone that suggests that you believed it was an intelligent argument. It was not.
If TD users were to flag this comment of mine into oblivion because they thought it was stupid, I am not going on a crusade against Masnick about it. Besides, he's yours to arch, and I don't want to get you into trouble with the Guild. You don't need PL showing up on some dark night, to have a discussion with you.
But please let me know if your one-man crusade ever reaches the Promised Land, and you are granted immunity from flagging. I want to be around to sell popcorn for that.
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Re: Same as when forced through Techdirt's gauntlet of rabid dogs.
I don't see why you're so worked up about this. If Mike wants to run a site that caters to 'fan-boy-pirate-trolls' is that not his right? Or is there some set of laws that tell us which topics each website is legally mandated to cover? Because I thought private meant private.
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you
And it's always done by those who most often claims open to discussion and love the First Amendment.
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The left could regain a lot of their lost high ground if they would do something about their own violence against others.
But I thought the left was full of snowflakes?
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'Now you and them fight.'
In this case it seems it was actually worse than that, as they deliberately steered people into what the lawsuit claims the police knew was a hostile situation.
That's not just 'let em tear each other to pieces', it's '... and if they don't do so on their own, let's make sure that they do.'
'Reckless endangerment of the safety of others' would seem to be the least of their crimes in the situation described if the lawsuit is at all accurate.
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Well, good
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arresting a bunch of THUG Anti-Trump criminals
Thug?
You mean snowflakes, right?
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But, but we're supposed to be snowflakes!
What's with these trump supporters? Didn't they all wear their guns? Weak on 2nd amendment for sure....
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Seeds of civil war
The protestors in this story and those in Charlotte should think about that... and commentors defending such behavior might want to consider that too.
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