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Entries in Civil Disobedience (103)

Wednesday
Feb032016

FreeKeeneNews - Judge Dismisses "Free the Nipple" Charges on Technicality

 

 

 

 

 

Free the Nipple Hampton Beach

In the Summer of 2015, Heidi Lilley and B. Liz MacKinnon were ticketed on Gilford beach in alleged violation of the town's ordinances. In late December, they went to trial at Laconia district court and Free State Project early mover and attorney Dan Hynes put on an excellent defense. Judge James M. Carroll took the case under advisement and has now issued his six-page order: both cases are dismissed!

That's the news - read further for analysis of the order:

Don't get too excited. If you read the order, you'll find that Judge Carroll is no hero of constitutional rights or equality. Page three of his order ridiculously cites the private Motion Picture Association of America's ratings system as evidence of a supposed "societal desire" to regulate female toplessness. Carroll argues that because the state's three prudish witnesses (the three snitches) don't appreciate female toplessness and because the town gave notice of the existence of the ordinance, that somehow means the town ordinance doesn't violate the Equal Protection Clause of the US Constitution or Article 1 of the NH Constitution's Bill of Rights.

Given that Article 1 only mentions men when it says, "All men are born equally free and independent", is it Judge Carroll's opinion that only men were born free and that women can be told what to wear, for the good of "society"? He's not foolish enough to come right out and say that, but his order does make excuse after outrageous excuse for the town's ordinance, claiming it's constitutionally sound:

The township's compelling interest is met in maintaining the beach as a natural resource to be enjoyed by young and old , men and women, families and single persons while preserving appropriate standards that allow the township to maintain their local values and mores...The Court does not find that the prohibition violates any constitutionally protected right...the movement "does not have 'a right to impose one's lifestyle on other who have an equal right to be left alone.

So, if the social mores were that all women must wear burqas, because seeing any skin at all bothered people, it sounds like Carroll would consider that mandate constitutional as well.

Though Carroll defends the right to marry either gender, he says that such marriage is a protected right, while toplessness is not. On the final page, he claims the toplessness in this case had no artistic value, while on page three he acknowledges the female nipple "has been the subject of great beauty in art". Apparently Carroll is an art critic now, too.

Ultimately, Carroll decides the case in the favor of the defendants, but not on the excellent constitutional or equal protection arguments made by attorney Hynes, but simply on a technicality of the system:

Finally, the Defendants argue that the township is without authority to criminalize the actions of the Defendants as it is beyond the jurisdiction granted in RSA 41:11 . The Court finds that the township has the authority to "regulate" the use of the real property owned by the town.

RSA 41:11 says that towns can regulate town-owned property, but Carroll says that without specific state statutes authorizing towns to criminalize toplessness, it can't be considered a "violation" for the women to be toplessness, even though he claims the ordinance is constitutional. Carroll cites RSA 625:6&9V to justify his position that since the "indecent exposure" statute, RSA 645:1, doesn't outlaw female toplessness, the cases must be dismissed.

MacKinnon said in a post on the "Free The Nipple" facebook group, "This is, to be clear, the ruling we DID NOT want" and is already planning this Summer's topless activism in Gilford. Hynes stated in an interview for Free Keene that he's disappointed the judge found the ordinance constitutional and is considering what the next steps will be.

While Lilley and MacKinnon's cases are over due to the dismissal (meaning the judge's ridiculous decisions on constitutionality can't be appealed, as I understand it), the prudes in the legislature are looking to turn female toplessness into a misdemeanor, which could be punished by up to a year in jail. Hopefully the horrific bill will go down in flames. We'll keep you in the loop here at Free Keene.

Besides the good news of the dismissal, the other news here is that Carroll may have created case law that could help overturn other illegal ordinances on the town level with his decision. That's really the only good thing his order does, upholding the idea that NH does not have "home rule". Home rule would allow towns and cities to create any ordinances they wanted, supposedly within constitutional bounds, which helps keep local government from growing out-of-control, and in this case, resulted in these cases being booted. It's a win, but not the one the ladies were hoping for.

 

 

Tuesday
Dec222015

FreeKeeneNews - City of Keene Appeals Robin Hood Case AGAIN 

 

 

 

 

City of Keene Files Last-Minute Appeal of Recent Robin Hood Court Decision

After the city's latest failure at the superior court, once again the city has given us an early Christmas present by deciding to appeal the most recent decision to the NH Supreme court.tumblr_inline_ngqf7uCZsU1t12dsj

The city's expensive attorneys from Gallagher, Callahan & Gartrell waited until the LAST possible day they could file to legally file the appeal (PDF). The city has already spent countless dollars on this case and this latest appeal is a further waste of taxpayer funds.

The appeal is for the Supreme court to look ONLY at the lower court's ruling regarding the request for the “buffer zone” injunction. The NH Supreme court has already decided the allegations of “tortious interference”, “civil conspiracy”, “negligence”, and the demand for financial compensation were unfounded and the activities engaged in by the Robin Hooders are protected by the first amendment.

Once again the Robin Hooders will be represented by the NH Civil Liberties Union's Jon Meyer who expects the case to be heard sometime in the summer of 2016, three years after the case was first filed in 2013. We will keep you up-to-date on any further developments.

Friday
Dec182015

FreeKeeneNews - James Cleaveland Jury Verdicts are In! 

 

 

 

 

 

James Cleaveland found NOT GUILTY of “Resisting”; Jury Deadlocked on “Disorderly” 6-6, Mistrial Declared

James Cleaveland Victory 2015!In a clear victory today, Free State Project early mover James Cleaveland was found not guilty of "resisting arrest" and six of twelve jurors voted not guilty on the "disorderly conduct" charge! Judge John C Kissinger spoke with the attorneys after the verdict and relayed that the jurors were locked 6-6 on the disorderly charge for all five hours of their deliberation. As a result, a mistrial was declared on the "disorderly" charge, meaning it may go to retrial.

Earlier this year in a bench trial for the same charges, Keene district court judge Edward J Burke found James guilty of both counts. As is his right, James appealed the two class-A misdemeanor charges to a jury trial, even though the sentence from Burke was suspended on condition of good behavior. Ultimately James said he was glad he went to jury trial, as he's now been vindicated completely on the "resisting" charge, where state police officer Phillip Gaiser lied, claiming James lunged at him and also stepped back 3-4 steps when he tried to cuff him, a claim that was proven false by the video and audio evidence in the case.

In post-trial comments for Free Keene, James said that the video and audio he recorded was critical to his success. Otherwise it would be several cops' word versus his word, and jurors generally believe police to be honest. Though it was costly in time, stress, and thousands of dollars in legal fees, James is glad he stood up for the right of free press.

Jury Outreach Activists @ Cheshire Superior Court 2015-12-17Kissinger allegedly said that James choosing to testify made a good impression on jurors, but that having a larger camera would somehow have given him better credibility. All jurors refused activists' offers of $60 for a post-trial interview.

This is the biggest jury trial success of any liberty activist thus far tried in New Hampshire. Major thanks to all the stellar activists who braved the cold to hand out NHJury.com trifolds to the jurors and also hold signage reflecting the amount of time James was facing (two years in prison), a detail never allowed to be revealed in a criminal trial.

Full video of the trial is still to come to Free Keene. Stay tuned!

 

Tuesday
Dec152015

FreeKeeneNews - Activists Hold Signs in Preparation for James Cleaveland's Trial

NH Jury Outreach Activists Bring Message to Potential Jurors for James Cleaveland’s Recording Cops Trial

NH Jury Activists Outside Cheshire Superior Court NH Jury activists gathered this morning outside Cheshire superior court in Keene to perform jury outreach prior to jury selection for the trial of James Cleaveland which begins tomorrow morning (Tuesday 12/15) at 9am.

James is facing two "Class A" misdemeanor charges with a possibility of up to two years in prison for being arrested while recording video of police at the scene of a suicidal man in the summer of 2014. The charges are "disorderly conduct" (the state's favorite catch-all charge) and "resisting arrest".

James has already had a bench trial at Keene district court, the video of which can be seen here, and was found guilty. District court judge Edward J Burke sentenced him to 1.5 years in jail, suspended, plus a $625 fine. After sentencing, James opted for his right to a jury trial "de novo", which means, "from the beginning". So now, not quite a year later, he is being given that trial.

This morning was jury selection. Nearly all of the jury pool of about 58 people had received the NH Jury trifold last month. (In Cheshire county, petit juries are empaneled for two months.) Usually the jury outreach process involves handing out flyers and opening the door for folks, but in addition today it included activists holding signs featuring phrases like, "2 Years 4 Filming?", and "Filming the police is not a crime!"

More activists are expected to be on-the-scene tomorrow morning at 8am for further sign-holding, with the trial starting at 9am and expected to last two days. If you can't make it in person, live tweets will be available here at FreeKeene.com and later the full trial video will be posted. 

Tuesday
Nov242015

FreeKeeneNews - Robin Hooders Victorious in Court AGAIN - City Denied Injunction 

Court DENIES City of Keene’s Injunction Request Against Robin Hooders

Robin Hood of KeeneIt has been a long road, but thanks to free speech attorney Jon Meyer and judge John C Kissinger of the Cheshire superior court, Keene's Robin Hooders are again victorious! Nearly two years ago, the same court dismissed the two cases brought against the charitable meter-feeders, alleging we were "threatening, intimidating, and harassing" their parking enforcement officers and demanding a 50ft floating, constitution-free buffer zone to protect them.

The city appealed to the NH supreme court which ultimately upheld the superior court's dismissal except for one part. They affirmed the lower court's ruling to dismiss based on free speech grounds, but said the superior court needed to look at the request for the "buffer zone" injunction separately from the allegations of "tortious interference", "civil conspiracy", "negligence", and the demand for financial compensation, all of which the city failed to prove to the court's satisfaction.

Thankfully, the superior court agreed with attorney Meyer's arguments and denied the city's request for any injunction against us whatsoever! This effectively kills their case, unless they decide to continue spending ridiculous amounts of taxpayer money to appeal this latest failure to the NH supreme court.

James Cleaveland, Attorney Jon Meyer, Ian FreemanThe city, which had originally wanted a 50 foot floating buffer zone around each enforcer that would prevent all speech and recording by the Robin Hooders, had whittled that down over the 2.5 years this has been in court to a 5-10ft zone that would only be temporary and only if the parking enforcer requested said distance from the Robin Hooder. Mind you, we generally do not wish to be so close to them - it's best to fill meters at a greater distance, so as to have enough time to fill the meter and leave the Robin Hood calling card on the windshield, BEFORE the parking enforcer catches up to us and gets ahead. That would mean she could successfully write a ticket if she gets ahead, so having distance is my goal, but the enforcer is constantly trying to close that gap, so sometimes we do get within ten feet. That would mean that such an injunction (besides being unconstitutional) would also prevent us from Robin Hooding, as anytime the enforcer managed to close the gap, we'd be subject to arrest for "contempt of court".

In a fifteen-page order issued on 11/20, Kissinger writes of the city's request for injunction:

The Court cannot conceive of any more narrow or alternative relief that would provide any meaningful protection to the PEOs without running afoul of the Respondents' First Amendment rights...the government interests here are not sufficient to warrant an infringement on the Respondents' First Amendment rights. Any injunction requiring a buffer zone of any meaningful distance would require a significant change in the method used by the Respondents to disseminate their protected speech.

So, despite the city's interests in their parking enforcement continuing unabated, their significantly-reduced proposal for injunction is still beyond what is constitutionally permissible, and further, the court could not think of any lesser restrictions that would pass constitutional muster.

Kissinger, in his conclusion, does remind the city that if Robin Hooders' conduct is rising to the level of violating criminal statutes, that they can bring such charges. Of course, the reason they never have brought criminal harassment or assault charges is because Robin Hooders are peaceful. There is zero evidence of "harassment, threatening, or intimidating" - the claims the city has long libeled us with throughout this lawsuit.

Sheriff of NottinghamIn a classic case of projection, the people in this who are actually harassing, threatening, and intimidating others are the parking enforcers. They harass, threaten, and intimidate the good motorists of Keene six days a week by giving them threatening tickets for just trying to do some business downtown. Those tickets threaten, intimidate, and harass their victims into paying their fines so as to avoid the threat of having their car stolen. Talk about intimidation! This is why Robin Hood of Keene exists - we are here to save people from having to deal with the city's threats. That's always been the primary motivation, at least for me. I certainly don't speak for everyone.

If the parking enforcers don't like being called out for their threatening, intimidating, and harassing behavior, they should get jobs in the productive economy. Until the city council ends the parking department and turns over the spaces to downtown businesses to decide how to administer, per market forces, Robin Hooding will continue to rescue peaceful motorists from the threats of the city government. The city has 30 days to appeal this latest failure. Stay tuned here to Free Keene for the latest.