In America, free speech, disrespect, and dissent are criminal

A lawsuit filed recently by the parents of Allen Kephart alleges Mr. Kephart was killed by police after he honked at a patrol car. Mr. Kephart’s parents have filed claims of assault, battery and negligence against three deputies of the San Bernadino County Seriff’s Department.

The suit indicates Mr. Kephart honked when a patrol vehicle turned in front of him. The sheriff’s deputy circled his patrol car behind Mr. Kephart, and proceeded to pull him over. Kephart was ordered out of his car at gunpoint, forced to the ground, and another sergeant and deputy joined in on the gang murder.

The three officers repeatedly Tasered Kephart for about 10 minutes, according to the lawsuit. The victim was heard screaming for help as he was killed by Deputies Ismael Diaz and Michael Gardea, and Sergeant Bryan Lane. A member of the gang department issued a statement claiming Kephart “became combative and uncooperative” (because obviously, if someone is uncooperative, they deserve to die – more here).

This story clearly demonstrates that from time to time, in the land of the free and the home of the brave, the punishment for disrespecting authority is death. Well, let’s be fair. At least one news article claims Kephart had possibly run a stop sign. At any rate, no one, not even the police, claim the appropriate punishment for running a stop sign is death, so it’s fair to conclude Kephart was killed at least in part because of his unfortunate failure to kiss the ring kiss ass suck cock show respect to the relevant authorities.

Yet, for anyone who has briefly perused the criminal code, this should come as no surprise. The act of punishing people for mere disrespect is not only alive in practice, it is deeply enshrined in American law. Thoughtcrime is not just a looming threat predicted by Orwell; it is an everyday reality of American criminal law.

The California criminal code for example, is rife with Wobblers. These are crimes that could either fall under the category of a misdemeanor or a felony. Similarly, a Wobblette is a crime that could either fall under the category of infraction or a misdemeanor. With both Wobblers and Wobblettes, the sole determining factor of what someone is charged with is prosecutorial discretion.

This means the prosecutor, who was not there at the scene of the crime, and who witnessed nothing, gets to decide how someone is charged. Many times, this is based off of whether (according to the cop’s report) the defendant properly groveled was respectful, nice or polite – or whether they were “uncooperative” or “combative,” as Mr. Kephart perhaps was. In effect, a defendant is judged and punished according to the manner in which they conducted themselves in relation to the police, even though that conduct is entirely irrelevant to criminality.

For instance, this attorney describes laws regulating yard sales in San Bernadino County. Yard sales are allowed only on the third weekend of each month, and signs are not allowed on public property. These laws are purportedly wobblettes. If you are having a garage sale (god forbid!) on the second weekend of a month instead of the third, and the police catch you, and you apologize profusely and beg forgiveness for your severe transgression, you will probably be charged with an infraction. But if you are angry that you aren’t allowed to conduct a goddamn garage sale in your own goddamn property in the so-called land of the free, and tell the officer to fuck off, you might be charged with a misdemeanor instead.

Such is also the case for urinating in public. If a person urinates in public, gets caught, but obediently grovels at the feet of police, an infraction will likely be in order. But if the unfortunate defendant instead has unkind words for the arresting officer, he or she may be charged with a misdemeanor.

Violating yard sale laws is usually an infraction. Urinating in public is usually an infraction. But after examining the other circumstances that may exist – such as  failing to show respect for an officer, or telling an officer to fuck off, prosecutors frequently decide these infractions are to be misdemeanors, even though the acts of disrespect and saying “fuck off” are not themselves crimes.

Prosecutors will claim that they take a variety of circumstances into consideration, such as the defendant’s past criminal history, when deciding on such charges. There are two problems with this kind of reasoning. Either someone committed a certain offense or they did not. Pointing to offenses of the past, which the defendant purportedly already paid his debt for, is not a logical reason for more severe punishment. Either a defendant peed in public or he didn’t. Either he stole $500 or he didn’t. Either he conducted an illegal garage sale, or he didn’t.

The fact that the defendant may have peed in public, stolen, or conducted illegal garage sales on prior occasions, doesn’t alter the amount of damage or the harm done in this particular instance. Any way you twist it, when it comes to wobblers/wobblettes, prosecutors have the power to charge a defendant with the worse offense based completely on hatred, prejudice, or just because the defendant said something unpleasant.

The effect is the law punishes failure to grovel, and penalizes free speech with criminal sanctions. These are characteristics we have been told are only found in monarchies, dictatorships, tyrannies and other forms of government allegedly less free than the American brand. Yet it is difficult to imagine what kind of free society can tolerate the criminalization of bad attitudes, rude behavior, and disrespect.


Georgia Sand

Georgia (George) Sand is an attorney located in sunny California. She enjoys beer, jogging, the beach, music, and chatting with her cats in her spare time.