Posted on 07/16/2015 6:01:23 PM PDT by Elderberry
If probable cause exists for all of them, there is no legal difference, at time of arrest, between "those who did possibly conspire in a felonious manner from those who obviously did." The government has no duty to distinguish between those two groups. All that's needed is probable cause. Your position is that the complaint is sufficient, and that there is probable cause of a felony offense for all accused.
A million dollars bail is legal, you say. Stupid, but stupid isn't illegal.
If the police have probable cause for a felony offense, one can and should be arrested. The time it takes to sort out the bail amount doesn't matter (within the time window we are dealing with so far) if the bail is set legally in the first place.
I'm just not seeing the civil rights claim under your propositions. No violation of due process for want of probable cause, and no violation in setting bail at a million dollars. If one is justifiably under arrest, and can't make justified bail, then there is no deprivation of rights by being held in jail.
It's often smartest to write it off and leave the legal system behind. Take your losses.
I think most of those who were swept up, who are truly and in fact innocent, will simply walk away, wiser for the experience. The time and effort and emotion involved in prosecuting a case, even when you are 100% in the right, is not worth the effort; and as you point out, those who are 100% in the right often lose in court.
The government is going to fight any claims made in this case, tooth and nail. The courts have a vested interest in supporting the local police, the deck is stacked against 1983 claimants. I'd walk away, I'll tell you that.
There are only 3 in jail. Most have been out for two to five weeks. The three who remain in jail have cases pending in other jurisdictions.
Hell, if they let me out, I would run like hell and never go near Waco again. And if was a citizen of Waco, I would be nervous because sooner or later the police are going to run out of motorcycle riders to kill and they will move the next notch up the food chain. Sooner or later they will be included on the target list.
Under your propositions, I don't see anything actionable. The state has probable cause, the complaint states probable cause, all the accused have probable cause of committing a felony (no difference between them, on the face of the complaint), all were afforded access to hearing on bail amount, most had bail reduced, most are out on bail.
All accused were brought before a magistrate within the 48 hours prescribed by law, the 90 days to "must reduce bail or release from custody without bail" deadline is in the future.
Where's the beef?
Walk away: If only 3 left incarcerated, totally agree.
re; Where’s the beef.
Sorry, but I’m “consulting” in SWA and have little if any ‘net available. Had false assumption most were still incarcerated. My bad.
Totally agree with you: Dead issue.
With 98% of them all out of jail, unless some lawyer wants to “grandstand” (Surprise, Surprise, Surprise!) with some civil action, it dies.
Agree that any smart lawyer, looking out for client’s interests, not his fees, will tell any potential litigant, “Why put yourself back on the state’s radar again?” “Shut up, go away, and find a less violent “club, and the time in the Waco jail ‘ll get you street creds.”
Had most still been incarcerated, as I thought they were, my argument would have been.
“Arrest them, sweep everyone up? Ok.
But it took you 30? 60? 90 days to know my clients were totally innocent? That’s simply wrong.”
I would have argued, like in Nifong, at some time, very early in case, LEOs knew Defs were not guilty, and Nifong knew it too, but as an agent of the state kept going.
Even worse, in this Tx case, State kept them in jail, etc. But with almost all out of jail, that fails as an argument for big $amages.
No new fur for Ms. CPE !
So sad. :)
Just to be clear for the readers, you and I are in harsh disagreement with regard to this case. What we agree on is that if your propositions are correct, there is no beef. I think we also agree that most of the accused will walk away. We differ slightly there, but not on the outcome. I say they walk away from valid claims; and it seems you have abandoned the position that there is any valid due process / deprivation of right claim.
I maintain a view that probable cause is absent for most of the accused; that the complaint is deficient on its face for ALL of the accused, and that bail was set unlawfully.
None of that touches on whether or not Petersen has committed the misdemeanor crime of official oppression.
re: PC for arrest?
What would you have had LEO’s do? Kiss all and tell to drive safely on way home?
Think I know your answer, and think it is one viable possibility, but not the one I would have chosen under circumstances.
Would seriously like to hear your on-scene recommended POA to LEOs and reasoning.
Think issues now are:
#1; Is Peterson guilty of CRIME for continuing arrest/incarceration/setting bail if at the time he believed PC existed, regardless of whether or not final ruling was that PC did or did not exist?
(Of course, were getting into the very slippery area of “thought crime” here.)
#2; Is Peterson guilty of CRIME for setting $1m bail when charge was serious felony, although felony charge might have later been held to be invalid?
Your thoughts?
I'll answer that after you tell me what you think I'm going to say.
I'll try to answer with some fairly "hard and fast" examples, some of which may be hypothetical. One example, and I don't believe it is hypothetical, is at least two people who witnessed the entire incident from Don Carlos, inside, eating. They were arrested and charged with the same felony that the other 180 were (182 arrested, minus 5 unarrested the next morning gives us the 177 most often referred to).
There is no sense exploring the question of crime official oppression, until there is agreement (at least for talking purposes) that a due process violation exists. As I said on an earlier post, the test for "knowing" under the official oppression statute is a (subjective) good faith belief, so ignorance is a defense (except the court doesn't label it ignorance). I'd have to see more of Petersen's work to get a handle on this; but you and I are going to come out on opposite ends regardless. I see the complaint as clearly deficient, you see it as clearly sufficient.
Anyway, I have more to say, but await the results of your mind reading test.
Ping to later
Your answer (my guess), It was an illegal sweep arrest of all bystanders and there was no evidence they were involved, as evidenced by the fact that Doe, Roe and Blow, who were actually Lutheran monks driving to see the mysterious lights at Marfa, Texas were also arrested, etc. yadda, yadda, yadda.
My clients were simply at a perfectly legal public meeting when persons unknown to LE and unknown to them, without any knowledge of my clients, opened fire and ....
It is certainly arguable.
My argument. (Some cites will be left out, as will some nomenclature, but you’ll get the idea) .
Those arrested were arrested for “participation in an ongoing criminal enterprise.” The XXXX Motorcycle Club, the YYYY Motorcycle Club and the ZZZZ Motorcycle Club are all identified by the State of Texas Dedpartment of XXXX as Ongoing Criminal ENterprises. The Texas State Department of XXX is authorized to designate organizations as Ongoing Criminal Enterprises pursuant to Section XXXXX of the XXXXX.
Defendants, are, by information and belief, members of the Ongoing Criminal Enterprise XXXXXX as established by their wearing the uniform of that OCE, such wearing which is strictly policed by Club members and restricted to members of that OCE / MC.
Other non-official members of that OCE / MC, spouses of members, prospective members, etc, were there at XXXXX on XXXX in support of the activities of that OCE / MC and willing did participate in those activities of the OCE.
The OCE publicly announced they were going to have an organized activity, and Def Doe chose to attend.
At that activity of that OCE / MC, 9 people where shot and killed. They were killed because of their association with rival OCEs / MCs.
It is not necessary to establish that Def Doe knew shooting would occur to arrest on a charge of participation in an OCE, nor it is a defense that OCE / MS was not at that instant before the shooting not engaging in a crime, or was ever involved in any crime on that day/time/place other than being a designated OCE. Simple participation in an event organized by an OCE is enough to sustain this charge.
The event was Organized, by multiple Criminal Enterprises, and Def Doe participated in that event simply by choosing to be there, in violatiomn of XXXXX
In addition, on information and belief, Def Doe knew or should have known that other members of the OCE were armed and were likely to employ deadly physical force at that event. Therefore, a charge of Murder in Felonious Consort (sic) in violation of XXXX may well be brought.
As identification confirmation of all Defs and legal searches for outstanding warrants, some of which have been found, have been hampered by the overwhelming number of Defs, further holding outside the normal time strictures is called for.
I certainly have PC on participation in an OCE, and on the Morder by Consort too, I can easily win conviction for P/OCE if I chose to follow up on OCE charges. The MBC charge would be harder to prove, but I certainly had PC to detain and then arrest for it.
Defs may not like the OCE law, but TS. Quit the club, challenge it in court, or elect new reps.
They had to be the same if all charged with same crime.
No agreement there was a due process violation! What was the vio?
Innocent / False arrest? That's a matter for a jury to decide.
Same charging instrument? Already covered
Some un-arrested? That cuts the 5 loose, not the 177, and validates no claim that the 177 were falsely arrested.
All can make claim / defense at trial / prelim / GJ that
they were not involved, but when state shown some have a Harley, wear colors, were from 200 miles away, have admitted on ‘net that they are members, they are AFU.
Some may be acquitted, but that is an acquittal, not proof of a denial of due process.
Problem for bikers here is that there is a rarely enforced law prohibiting OCE. Now, with 9 dead, it's being enforced. Selective enforcement is not a defense
The fact that you were doing 3, 2, 1 mile over the speed limit, and everyone does it, is not a defense against a speeding vio.
I once saw a 2 MPH over ticket. Def plead not guilty. Judge was about to cut him loose when DA asked “What drew your attention to the Def’s car?”
Ans: The first thing I noticed about the car was the 6 inch high letters on the trunk of the car that said “Fuck All Cops”, then I saw she was speeding.
The “Fuck All Cops” was certainly allowable under Free Speech... but the speeding cost her $168.
Your Complaint has the same defect the actual complaint has. It is guilt by association. You have not alleged that [named person] agreed or conspired to commit murder, capital murder, or assault.
If "Simple participation in an event organized by an OCE is enough to sustain this charge.," then you are effectively predicting indictments for all members of OCE in attendance, regardless of their participation in violence. You don't even need a trial, because THOSE facts (presence at TP, member of OCE) are uncontested.
Actually, their attendance there was not necessary for the arrest. Simply their being a member of such a OCE was the crime, not the attendance.
Their attendance simply made the round-up easier, and very legal.
Heh. I suggested the same thing to others who see the complaint as sufficient. Why not round up all the Crips, MS-13, etc. simply for being members of an OCE? I asked.
Heck, no need for a mass round up, just arrest them as they pop up in small groups or as individuals.
Muted need for a trial too, as membership in an OCE is apt to be uncontested. If defendant denies it, proof of membership is trivially easy, and as membership is the only element in the crime, trials should be short, verdicts simple.
We are now in agreement that membership in an OGE is a chargeable crime in itself. It’s like crime of living off proceeds of prostition. Certain otherwise non-criminal activities are criminalized in order to try to control an activity that is very detrimental to society, but not tied to one specific, short term act.
The shootings focused attention on the availability of a rarely used law. Ergo arrests were legal.
Cops work headline to headline. When Art Linkletter’s daughter died of drug abuse, cops rousted every dealer within 50 mules.
Call Your next case.... :)
Negative, we are not in agreement on that point. I was describing the ramifications of adopting your point of view and the hypothetical rarely used law that you propose to put before the courts.
We disagree on many items, I think on all of the substantive law that attaches to this case.
Texas Penal Code Chapter 71 and following.
Banditos and others profit from drug sales / delivery, and have been so convicted.
End of discussion.
Seriously, after this any further discussion is simply your failure to read law and accept reality.
A respectful good night
Can the imagine the fun far-left lib lawyers would have suing FR and JR if such an act happened and some innocent was killed, and the shooter said,,... “Well, I read it was the smart and legal thing to do on Free Republic!”
Suggest one thinks before they shoot.... or posts.
Here in Ohio it's perfectly legal for a citizen to use deadly force to stop a felony in progress....such as an armed robbery
But that is some mighty fine concern trolling there....a solid 7.5 on the BS meter.
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