Judge Dumps Iowa Prosecutors' Attempt To Jail An Activist For Sharing A Law Enforcement Document With Journalists

from the setting-fire-to-the-first-amendment-like-it's-just-an-american-flag dept

Polk County, Iowa prosecutors are making a name for themselves. And that name is "Enemy of the First Amendment." Earlier this year, Polk County prosecutor John Sarcone tried and failed to convict a Des Moines Register journalist for attending a protest and attempting to comply with conflicting orders from law enforcement.

According to the prosecutor, journalist Andrea Sahouri failed to disperse when ordered to, even though other cops at the same scene were simply telling people to "protest peacefully." Sahouri was attempting to document the protest and was arrested as she was moving away from the epicenter of the protest. This attempt to turn First Amendment protected activity into a crime failed and the prosecutor took a rather humiliating loss in a very public fashion.

Another prosecutor from the same office -- Thomas Miller -- has just suffered a similar, very public loss. Activist Viet Tran was arrested last summer after he shared a Des Moines Police Department bulletin with journalists during a televised interview. The PD claimed the document was super-secret and not shareable without committing a crime. The bulletin contained information about protesters targeted by the PD, including some who had vandalized a police car.

The prosecutor (along with the PD) attempted to turn the sharing of public interest info with journalists into a felony charge: unauthorized dissemination of intelligence data. Normally, that sort of charge would only be leveled at the person who had shared it with someone who did not have authorization to view it, like whoever leaked it to Tran. Tran isn't a police officer, so his acquisition and sharing shouldn't be a crime. But that's not how the prosecutor's office saw it. And, in keeping with the First Amendment shredding vindictiveness of this whole debacle, the PD never asked the journalist Tran shared the document with to remove it from her Twitter feed.

Following a failed attempt to keep Tran locked up until his trial by spiking his bail to $20,000 (rather than the usual $3,000 for Class D felonies), the prosecutors' office has earned its second straight loss in the same case. The court said that even if the government was right about this seeming misuse of "unauthorized dissemination" charges, it was wrong about the document's contents.

On Wednesday, the court agreed that the bulletin didn't meet the definition of intelligence data, which is defined by the Iowa Code as "information on identifiable individuals compiled in an effort to anticipate, prevent or monitor possible criminal activity."

"It was not compiled in an effort to anticipate, prevent or monitor possible criminal activity. The bulletin was prepared because the police department had concluded that criminal acts had already occurred," Fifth Judicial District Judge Jeffery Farrell wrote Wednesday in his order to dismiss the charge against Tran.

Making this loss even more of an embarrassment for the rightfully maligned prosecutors office (feel free to continue maligning in the comments) was the prosecutor's best argument for jailing Tran:

Assistant Polk County Attorney Thomas Miller argued in a court document that the "court is not constrained by this limited prior use of this statute." Anyone who disseminated intelligence information, including journalists, could be charged, he wrote.

Ah, but what about the journalist who posted the same document to Twitter? (Oh, and let's not forget the First Amendment.)

Andersen, the journalist Tran shared the bulletin with, was not charged because "the police have the ability to use discretion when deciding whom to recommend for criminal charges," Miller wrote.

There it is. That's the prosecutor admitting the government will abuse laws to punish people they think they can get away with punishing. Some troublemaking minority advocating on behalf of black victims of police violence? That's a felony. A journalist likely backed by her employer's legal team? That's a free pass.

Nice work there, Mr. Miller. Not only did you blow this case but you made it clear law enforcement isn't about enforcing laws. It's about keeping certain people in line. This is how prosecutorial "discretion" almost always works. It goes after the weakest, least protected members of our society and ignores anyone too rich, too white, or perhaps just too lawyered-up to push around.

Filed Under: 1st amendment, andrea sahouri, des moines police department, intimidation, iowa, john sarcone, journalism, polk county, thomas miller, viet tran