A Soldier's Perspective

Texas Cops Continue Violating First Amendment in How They Enforce 42.01(a)(1)

I’m writing this after viewing this video by James Freeman.

This kind of stuff is why I’m in law school. In Texas, there is a statute still the books that makes it a “crime” to use “abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace” (Penal Code Section 42.01(a)(1)).

In Cohen v California (403 U.S. 15), the Supreme Court addressed a nearly identical California statute where a man was prosecuted for wearing a shirt that said “Fuck the Draft” and “Stop War.” The court held in that 1971 case that it

“cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

“It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.”

And yet, in 1993, when the state of Texas restructured it’s penal code, it failed to remove or clarify this statute that had already been essentially nullified by common law.

While 42.01(a)(1) hasn’t been deemed unconstitutional as a whole, it has been determined via several cases to only apply to the narrowly constricted “fighting words” exception. In S v. Hazlewood, 2007 U.S. Dist. LEXIS 50983 the district court heard a case involving a dispute between a husband and wife in which the wife was telling cops to “fuck you” and calling them “motherfucker.” The cops arrested her for disorderly conduct. The state argued that because “bank employees and passersby were disrupted from their daily routines because of Mrs. Hazlewood’s behavior,” was was in violation of 42.01(a)(1). The court found differently under the “fighting words” requirement. Several court findings have limited the scope of this section to “fighting words.” See Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778; Jimmerson v. State, 561 S.W.2d 5; and Estes, 660 S.W.2d at 875. Hazelwood specifically found that the use of “fuck” does not invite the public (nor officers, who are held to a higher standard) to violence as required by the statute (though not specifically stated in the plain language).The language uttered must specifically do that.

Yet, the officer himself said this isn’t the case. He specifically said that, “when you’re displaying these signs and people are calling because that is offensive to them, that is a crime.” Actually no it’s not. The cases above make that perfectly clear. Offensive speech is specifically protected as shown in Cohen above unless it incites the public to violence. Obviously, this wasn’t the case here because merely called allegedly because they were offended.

In this video, the initial cop even makes a statement that “I’ve already heard you say a cussword [sic] once, so…” as if using profanity in the presence of a cop were also a crime. The police fall under a much higher standard than the public for what constitutes disorderly conduct and “fighting words.” They are expected to take a higher level of verbal abuse than the general public by the nature of their jobs. “The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston, Tex. v. Hill, 482 U.S. 451, 461. The 5th Circuit endorsed Hill by highlighting that “[A] properly trained police officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'” Enlow v. Tishomingo County, 962 F.2d 501, 509 (5th Cir. 1992). See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974), which quoted Hill affirming yet another case.

The problem we have in Texas is (1) a lack of training and (2) a lack of attention by the Texas legislature to incorporate Court ruling into a revised and unimplied statute. In the Estes case mentioned above, the court found that “[t]he generally accepted definition of breach of the peace, and the one used by the court in this case, includes the admonition to the jury that cactual or threatened violence is an essential element of a breach of the peace.'” Quoting Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685 (1948). The “fighting words” exception to the 1st Amendment was adopted in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). Then, in Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685, 687 (1948) the court held that “actual or threatened violence is an essential element of a breach of the peace.” Using these cases, the Estes court didn’t completely invalidate 42.01(a)(1), but instead simply clarified that only “fighting words” and “actual or threatened violence” constituted a violation of the statute, not mere profanity or the existence of an offended person in public. The Hazelwood court applied these standards to speech against cops and added the element that cops are held to an even higher standard. So, the fact that Otto uttered a profanity in the presence of the cop is irrelevant.

Cops aren’t generally very intelligent about the law. They don’t concern themselves with precedents and what courts are doing until their higher powers drill it into their heads or the legislature changes the plain language of the law. They are not paid to understand the law; they’re paid to read it. They subscribe to the philosophy not of doing the right thing, but “you may beat the rap, but you won’t beat the ride.” They cannot stomach being offended, the law be damned. They will use their power to get you one way or the other.

The solution is simple here. The state needs to fix the disorderly conduct statute in many ways and also the failure to ID statute. The other solution is that CLEAT (Combined Law Enforcement Association of Texas), those utterly despicable excuses for humanity, needs to train law enforcement departments about the common law related to 42.01(a)(1).

School Violence: Causes and The Impact of Uniforms

“Every year, 3 million young people in the United States fall victim to crimes at school. Almost 2 million of these incidents involve violence.”1 As early as the 1950’s and 1960’s, the idea of school uniforms was batted around as a possible solution to “juvenile delinquency” in public schools.2 In the late 1980’s, uniforms began to gain momentum as a way to stem violence in school as designer clothing gave students a reason to attack each other. Almost weekly, late night news reports aired stories about students being beaten for their name brand Nike shoes or Gucci leather jackets and purses. Parents and educators increased their demands for uniforms during the 90’s as gang violence became more institutional and widespread.

Fifty years ago our children were extremely limited in how they could dress in the school house. Teachers and parents were very concerned and proactive in ensuring that students were appropriately dressed for their education. Our fathers’ generation required males to cut their hair so that it did not touch the collars of their shirts. Boys wore shirts that prevented them from flaunting their muscles. No one knew what kind of underwear the boys were wearing unless they were seen changing into their gym clothes in the locker room. Girls’ skirts could not be any shorter than their knees. They rarely wore dresses and never allowed their cleavage to be displayed for public consumption. Tight, form-fitted clothing was taboo. It was much more conservative and, as a result, school violence was virtually non-existent.6

Today’s children are free to choose just about anything they want to wear to school. It’s not uncommon to see boys and girls with exotically colored hair, multiple body piercings, and heavy makeup. Clothing defines the individual. Along with the continuing relaxation of clothing standards, schools are increasingly expected to take greater roles in educating and raising our children. Parents are moving away from their responsibilities in raising children that will respect authority.

In 1996, President William J. Clinton challenged schools to teach more “character education” in their classrooms. He also made the issue of uniforms a specific Presidential issue. “…if it means that teenagers will stop killing each other over designer jackets, then our public schools should be able to require their students to wear school uniforms,” Clinton said during his State of the Union address.3 Presidents don’t normally speak in terms so precise during these addresses. Rather, they tend to use broad generalities when addressing the nation.

Our children are under more pressure to wear brand name clothing now than ever before. Clothing has become a central issue in schools whether we want to believe it or not. As the years go on, more and more advertisements targeting children have attempted to convince them that they need designer clothing. As a matter of fact, based upon personal observation there are fewer commercials and ads for school supplies than school clothing. With celebrity role models increasingly touting their personal lines of clothing, the trend will likely continue.

The reasons both for and against uniforms are about as varied as the number of schools themselves. Some claim that uniforms will improve student behavior. Some claim that uniforms violate students’ First Amendment rights to free speech and expression. Yet others claim that uniforms stifle individuality and are meant to be another form of control, while some believe that uniforms will foster more individuality and creativity in finding ways to stand out.

In Prince George’s County, Maryland alone, one hundred thirty-one schools have reverted to a mandatory school uniform policy with another seven schools adopting a “voluntary” program of school uniforms. At a recent Board of Education meeting to discuss various issues affecting schools, the topic of uniforms was at the forefront. Debate was very heated and seemed to be divided along adult and student lines. Students spoke out against uniforms almost unanimously, while parents and teachers were mostly in favor of it. There were, however, some parents who were strongly against uniforms. The main reasons for their disapproval of uniforms were that it takes away their child’s individuality and will cost them too much money.

School uniforms are not unique to the United States. I grew up as a Navy brat and attended school in many states and countries. I attended school in Japan for four years where you can’t find a school that didn’t have uniforms. Possibly as a result, Japan enjoys one of the lowest school violence levels in the world. In the UK, uniforms have been a part of school life for more than a century. Lately, strong debate has convinced some schools to abandon their school uniform policies.

Uniforms tend to cost more than normal clothing would cost. This price increase in school clothing affects families differently depending on their social status and tends to sway some parents against supporting the issue. Here in Maryland, uniforms tend to be expensive. Using the baseline of a shirt, slacks, and shoes I compared how much it would cost on average to purchase these items at a department store versus the local uniform outfitter. The average price of one day’s non-uniform clothing from a department store is $72 for a white shirt, slacks and shoes. The same white shirt, slacks and shoes for a school uniform would cost $98 if purchased at a specialty uniform outlet.

Violence in schools was largely hidden from the public conscious as a serious issue until the Columbine, Colorado school shooting in 1999. Since then, adolescents have committed copycat shootings and similar violence all over America. School violence isn’t something that most students will ever have to deal with personally. Of the 48 students from eight different schools in my local area, only seven had personally been involved in some sort of in school or near school violence. Oddly enough, this is directly in line with a 1999 study by the Center for Disease Control (CDC) which concluded that 14% of students had been involved in a fight.4

As the number of schools requiring uniforms has increased, the instances of violence in schools have decreased. Unfortunately, no one has yet to make a direct connection between the two. According to the US Department of Education, violence in schools has been cut in half since 1992. In 2005, the latest year figures are available, violence was at its lowest level in the past 13 years.5 The report states that only 8% of students reported being bullied in school.

Professional opinions run the gamut about the causes of this reduction in school violence. Some credit more student involvement and character training that every US school must include in its curriculum. Others believe that more law enforcement presence in the schools is the cause. When I asked 15 teachers if they thought that uniforms deserved the praise for a decrease in violence in their school, 9 told me yes, while only 5 said no. The remaining teacher wasn’t sure. I also spoke with parents and asked for their opinions on this issue. Of the 22 parents I spoke with, 16 told me that uniforms were the answer to this problem. They believe that violence can only be beaten through education at school and in the home.

Schools with high instances of parental involvement in their children’s education enjoy a lower level of school violence. Parents are the single largest factor in preventing violence in schools with or without uniforms. It’s important that parents support the educational system and teach children by example and by enforcing school rules. They can also talk with their children about how to avoid and prevent violent behavior. When students, teachers, and parents participate in their communities and local schools in a violence prevention initiative, schools are more than 30% safer. 7

After studying the facts and conducting my own polling and research at nearby schools, one can easily come to the conclusion that while uniforms may alleviate some of the violence that seems to plague our educational system, it is not the be-all-end-all. Educators must continue to pursue other strategies in combating this problem. Schools with full time security and/or law enforcement presence tended to have a lower rate of violence than the ones void of it. Many teachers believe that character training, a direct result of President Clinton’s address, seems to be helping as well. School uniforms definitely haven’t been shown to increase violence in schools, which is never a bad thing.

1. W.M. Keck Foundation; The Challenge of School Violence; http://www.crf-usa.org/violence/school.html
2. Anderson, Wendell; College of Education, University of Oregon; School Dress Codes and Uniform Policies; http://eric.uoregon.edu/publications/policy_reports/dress_codes/intro.html
3. Clinton, William J.; State of the Union Address; January 23, 2006; http://clinton2.nara.gov/WH/New/other/sotu.html
4. Center For Disease Control; Just the Facts: Violent Behavior at School; http://www.cdc.gov/ncipc/fact_book/23_School_Violence.htm
5. US Department of Education; Indicators of School Crime and Safety: 2005; http://www.ed.gov/news/pressreleases/2005/11/11202005.html
6. Eppinger, Russell E.; Widener University; School Uniforms: Does What Students Wear Really Make A Difference? 9 March 2001; http://muse.widener.edu/~egrozyck/EDControversy/Eppinger.html
7. National Crime Prevention Counsel; http://www.pta.org/archive_article_details_1117811527812.html

Letters From War

I love history, especially military history. And even more especially, World War II history. My grandfather fought in WWII over Germany as a bombardier in B17 and B24 bombers.

The other day, I was at my uncle’s house and he said he had something that might interest me. He opened up a box full of old papers from the 40s and 50s. My great aunt was apparently quite the looker in her day and there were a lot of letters from GIs to her. I came across one letter that I thought was too good to pass up and just had to share.

This letter is from a PFC Wayne L. Williamson who served in a medical detachment, I believe. I’ll put the transcript below the images for those that can’t read the letter.

Temple, Texas
March 28, 1944

Dear Mae,

Enclosed you will find the pictures that Bernard and I took the Sunday we ran into you. The only once enclosed are those of you because we got mad at ours and threw them away. I would of liked a couple more of you.

I was planning on bringing them in to you but you ruined that by moving back to Troy and so I’ll have to be contented this way.

And now there is a question that I have been wanting to ask you for a long time.

I have tried time after time to lead up to this matter but somehow I’ve never been able to; even though it’s been on my mind for weeks.

As you know, when I first met you my feelings toward you were those of a normal friendship; but after a while they developed into something more beautiful & sincere for that I want to thank you very much.

I don’t know whether or not it is proper to ask you this question since you and I have had a little misunderstanding; but I believe that you can forgive me for doing it.

Please promise me that you will never show this letter to anyone else and just keep it between the two of us. This is very important and personal to me and I hope that I don’t over step my self and hurt your feelings. What I want to know Mae is “do you think that Superman & Lois Lane will ever get married?”

I must close to get ready for guard duty tonight.

Please answer soon.

Your friend forever,
Wayne Williamson

Beto O’Rourke Is Offensive to Gun Rights

Here in Texas, a major fight is at hand for Texas senator. Hoping for a second term, Senator Ted Cruz is being challenged by El Paso US Representative Robert “Beto” O’Rourke. While the media has definitely made it seem as if this is going to be a close race, I don’t buy it. Beto touts his accomplishment of visiting all 254 Texas counties as somehow a basis for defeating Cruz, but he refuses to recognize that nearly all of his policies are completely out of line with most Texans. What works in a liberal, border town like El Paso, doesn’t work in the rest of the state.

Perhaps his most abhorrent ideology is his disdain for the second amendment. Now, Beto isn’t a huge idiot and recognizes that Texas is a gun friendly state, so he’s having to craft his anti-gun messaging in a way that he thinks will fool most Texans come November 6th. You can always tell when a politician doesn’t support gun rights because they begin their discussion on the topic with, “I support the second amendment, but…” or “I’m a gun owner, but…” I call these kinds of 2A supporters as “butters.”

One only need look at his own website (which I refuse to link to – Google is your friend) to see his absolute and total disdain for the 2A. Nowhere on his page does he say or push anything that would PROTECT your right to keep and bear arms. Every single policy agenda he lists is, in fact, a restriction on some aspect of the 2A.

Texas has a proud and honorable tradition of responsible gun ownership for hunting, sport, self-defense, and collecting. Like so many Texans, Beto learned to safely handle and shoot a gun at a young age — taught by his Uncle Raymond who was a sheriff’s deputy and a jail captain. That shared heritage — that uniquely Texas experience — means that our state should lead the way in preserving the Second Amendment while working together to ensure people can live without fear of gun violence in their communities.

We should:

Require background checks for all gun sales to ensure that firearms only get into the hands of responsible, law-abiding individuals.
This means finally closing the gun show, online, and boyfriend loopholes.
Stop selling weapons of war and high-capacity magazines to ensure that firearms designed to kill as effectively and efficiently as possible on the battlefield aren’t used in our schools, our streets, our churches, and our concerts.
Block the erosion of Texas’ license to carry standards by opposing Concealed Carry Reciprocity, which would force Texas to allow anyone from states with weak to nonexistent conceal carry laws to disregard our own public safety requirements.
Fully support federal research on gun violence so that we can better understand and address its root causes.

Let’s break this down in a constitutional sense. First of all, Beto is running for a FEDERAL, senatorial position. So, the federal law and constitution applies. The 2A is clear that the right to keep and bear arms “shall not be infringed.” Every law in any way altering or restriction firearms is an infringement.

First of all, Beto says that “our state should lead the way in preserving the Second Amendment while working together to ensure people can live without fear of gun violence in their communities.” There is no authority whatsoever in the constitution that allows for Congress to infringe on the right to keep and bear arms except to protect someone’s irrational fear of “gun violence.” This line of thinking is baseless when applied to literally any other form of emotional advocacy. If it’s the governments job to help alleviate people’s “fears,” then why do aren’t we severely restricting 18-wheelers. I would like to not live in fear of being run off the road every time I have to pass a big truck on the highway, especially while it’s raining. I would like to not live in fear of being murdered by a cop or dying as a result of medical malpractice. Should we ban 18-wheelers, cops, and doctors be banned because there are people who fear them? Traffic accidents are the leading cause of death in this state by a wide margin. And exponentially more people die from medical malpractice!

Gun violence is a false term. It’s invented to push an agenda. There is no such thing as “gun violence.” There is only violence. The means to engage in that violence may vary, but violence is violence. It’s no difference being murdered or assaulted with a gun than with a fist, hammer, or knife. Violence is violence. The problem with these big government statists is that they recognize that controlling guns is the only way to truly control the people. This is obvious when you consider that every single gun control law conveniently exempts government officials from its grasp. Why is it okay for a cop to carry into a bar or courtroom, but no other law abiding citizen especially considering that licensed gun owners are 7 times less likely to commit a crime than cops are? Why is okay for a cop, active or retired, to carry in all 50 states, but not you? Because government wants a monopoly on the use of force and they realize that as long as you possess the means to resist their tyranny they can’t be tyrannical.

Next, Beto wants to “require background checks for all gun sales to ensure that firearms only get into the hands of responsible, law-abiding individuals.” We have background checks and we have laws that already prevent firearms from getting into the hands of irresponsible, law-breaking individuals. Felons aren’t allowed to have guns and they don’t purchase their guns legally. Criminals won’t suddenly start performing background checks on each other before each transaction. They certainly won’t undergo a background check before stealing a firearm. That said, I oppose background checks anyway. When we give government the power to determine who is “responsible,” what’s to stop them from determining no one is responsible – except government officials? If you want to disarm “law abiding” citizens, all they need to do is create more laws that turn law-abiding citizens into criminal out of thin air. For example, should UBC laws pass and two law-abiding citizens buy a gun from each other without a background check, those two people are now magically criminals. States have created felons out of thin air by merely passing laws regulating what types of guns or accessories the citizens can possess that previously they owned without a single issue. All background checks do is identify who is buying guns so that when the government is ready to ban them, they know who to go after. We’ve already seen it happen in California, New Jersey, Maryland, and New York. You don’t make society safer by making it harder for law abiding citizens to keep and bear arms in self-defense.

“This means finally closing the gun show, online, and boyfriend loopholes.” This is where Beto should be immediately disqualified from public office. He isn’t even intelligent enough to understand the very topic he has a position on. It’s illegal to purchase a gun online. Firearms cannot be shipped to a home under any circumstances “legally.” The “gun show loophole” is another farce and is simply the argument statists make to push for more control. The government doesn’t like when it can’t track who has a gun and frankly the government SHOULDN’T know who has a gun. I prefer to keep the government guessing so that they don’t get froggy although the fact that they do know there are over 310 million firearms in the hands of Americans is surely one reason government keeps itself largely in check. A Bureau of Justice Statistics – which the gun grabbers love to quote – survey of prison inmates found that less than one percent of the firearms used by felons were acquired at gun shows. Only about 1 our to 122 background checks, far less than 1 percent, are denied a purchase. If our government was serious about “ensuring people can live without fear of gun violence in their communities,” then of the approximately 80,000 applications denied annually, why are only about 40 of them prosecuted? Don’t even get me started on what the “boyfriend loophole” is.

“Stop selling weapons of war and high-capacity magazines to ensure that firearms designed to kill as effectively and efficiently as possible on the battlefield aren’t used in our schools, our streets, our churches, and our concerts.” Once again, Beto displays his ignorance about the purpose of the 2nd amendment with this statement on many different levels. First, he fails to define what a “weapon of war” or “high-capacity magazine” is. There’s a reason for this. Muskets are weapons of war; or they were once. The M1 Garand and Mossberg shotgun are weapons used in war, but so are the Beretta and 1911 handguns. The evolution of firearms has always followed along the lines of military technology and one person’s “weapon of war” is another person’s hunting or sporting weapon. But, that’s all irrelevant distraction. “Weapons of war” are explicitly what the 2A protects. The “right of the people to keep and bear arms” is a direct qualifier to the right to “a well-regulated militia.” You can’t have one without the other. A militia is designed for times of war and the people who comprise the militia (“all men capable of bearing arms“) should have access to the kinds of firearms needed to fight it. Tench Coxe in 1788 answered the question about “who are the militia?” this way: “Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the People.” When the government is the only entity with access to “weapons of war” what do the people do when/if the government goes to war with them?! That’s the exact question Beto hopes you never hear or have to answer. He’s counting on your ignorance. Couldn’t we also argue that starvation, taxation, tariffs, and words are also “weapons of war?”

“Block the erosion of Texas’ license to carry standards by opposing Concealed Carry Reciprocity, which would force Texas to allow anyone from states with weak to nonexistent conceal carry laws to disregard our own public safety requirements.” This is about the dumbest thing I’ve heard Beto say. The problem with this line of thinking is that it treats the 2nd amendment as a second class right. I doubt very much that Beto would support states putting greater restrictions on free speech or religion, but he would agree that those rights are universal throughout the nation. Likewise, my right to be free from having troops quartered in my home; being secure in my person, papers, and effects; afforded due process; the ability to vote; and other rights covered in the Constitution are uniformly accepted throughout the country, so why not the 2A right to keep and bear arms. Setting aside the unconstitutional nature of licensing to begin with, do I not have the same right to self-defense in Florida as I do in California or Alaska? Is the Constitutional not the same one in each state? I can’t imagine Beto supporting states requiring out-of-state visitors to only visit certain churches (or not attend church at all), but that’s literally the equivalent of his line of thinking here. He believes that states should be allowed to discriminate against people’s 2A rights geographically, but no other right. Can you imagine if Georgia banned any out of state protesters from exercising their 1st amendment rights? To these statists, the 2A is a subordinate and, therefore, expendable right when compared to others. I don’t hear him complaining that every state in the Union is required to recognize every other states’ driver licenses despite different requirements among to acquiring one. So, while I don’t believe licenses should be required in any capacity, the fact they are should be accepted by every state. I have just as much of a right to defend myself in Austin, Texas, as I do in New York, New York, so why shouldn’t my Texas license be recognized just because they have more infringements on obtaining one?

“Fully support federal research on gun violence so that we can better understand and address its root causes.” I can’t find this authority anywhere in Article I of our constitution. Besides, we don’t need to spend tax money on this research. There are already organizations that do this. The problem is that statists don’t like the findings which inevitably fail to support their agendas. They can’t control the narrative as long as they don’t control the research. This is what Beto really wants: to control the data so he can manipulate it to push his anti-gun agenda.

Look, owning a gun or growing up with a gun doesn’t make you pro-gun or pro-gun rights. It just means that you support YOUR right to own a gun, but no one else’s. It means you support the right to own what YOU own, not what the rest of feel comfortable with. The root problem with most liberal statists is that they project their own insecurities on everyone else. They don’t trust themselves with guns, so they can’t trust everyone else. They assume that the rest of society is as unhinged as they are and that is why they want to control them. Liberals are violent, so they assume everyone else is violent as well. When you’re a criminal yourself, you assume everyone else is just as bad as you are to a liberal. It all boils down to projection; not safety.