But where does the lying stop? Does it stop after the bust? After the offense report? After taking an oath to tell the truth on the stand? Or after the trial is over?
Melissa Walthall of Mesquite, Texas, had a friend who was upset at the testimony of an undercover narcotics officer. And, when Ms. Walthall came across a picture of the officer on a flyer, she posted it on Facebook with the caption "Anyone know this b****?"
Mesquite Police weren't amused. Investigators decided that Ms. Walthall's message posed a "viable threat to the officer's safety" so they charged her with felony retaliation.
Sec. 36.06. OBSTRUCTION OR RETALIATION. (a) [amended 9/1/97] A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.
(b) For purposes of this section, "informant" means a person who has communicated information to the government in connection with any governmental function.
(c) An offense under this section is a felony of the third degree.
But what exactly did Ms. Walthall do wrong? She didn't harm the officer. She didn't threaten to harm the officer. She didn't ask anyone else to harm the officer. She just posted a picture she saw on a flyer and called the officer a bad name.
Yes, she busted the officer's cover. But so freaking what? He works undercover - that's one of the hazards of his job.
In order to convict Ms. Walthall, the government must first prove that she meant to harm or threaten to harm the officer. The government must then prove that she meant to harm or cause harm through an unlawful act.
I don't think the government can even prove the mens rea of the crime. She posted a picture with a derogatory caption. There was no threat in the caption. Moreover, there was no unlawful act. It's not against the law to post the picture of an undercover officer. Nor should it be against the law.
Ms. Walthall has a right under the First Amendment to speak freely. Her posting of the picture with the caption is clearly an act of speech. That act of speech is protected under the Bill of Rights. The actions of the Mesquite Police Department were clearly retaliatory.
The police are using their badges and guns to quell speech with which they don't agree. She was arrested for constitutionally protected activity by officers acting under color of law. That sounds like official oppression to me.
§ 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office
or employment commits an offense if he: (1) intentionally subjects another tomistreatment or to arrest, detention, search, seizure, dispossession, assessment,
or lien that he knows is unlawful; (2) intentionally denies or impedes another in
the exercise or enjoyment of any right, privilege, power, or immunity, knowing
his conduct is unlawful; or (3) intentionally subjects another to sexual
harassment.
But what's the likelihood that anyone up there is going to have the guts to do the right thing and charge the officers with the crime?
The investigators are aware that we all enjoy the right to speech free from government restriction under the First Amendment. The act of arresting Ms. Walthall impeded her ability to enjoy her right to free speech. What could be clearer? The action could also set the department up for a civil rights lawsuit under Chapter 1983.
The actions of the police in Mesquite were illegal and thuggish and were designed to discourage people from exercising their right to free speech. Thuggery is always the last resort for those who know they can't make a logical argument in defense of their actions.
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