Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, April 25, 2005

Internet hate crimes

Reader Tip: Harvard Westlake litigation articles are here in the archive.

How good kids tunred bad. How a great institution failed.

The story unfolds at Harvard-Westlake.Harvard-Westlake School faces $100M lawsuit. LAPD/FBI investigating death threats.

Good thing the victim has a civil lawyer -- FBI agents are lame.

Convenient Lawsuit Archive

To help you find other interesting content, there is an archive for the Harvard-Westlake lawsuit. [Click this button: ]

Thoughts and questions for discussion

California Statutes

What is your view on the California Hate Crimes statutes? [Here are some words in re CALIFORNIA CODES PENAL CODE SECTION 422.6]

California School Legal Advisory

Here is a copy of a memoranda issued in 2004 in re Hate Crimes and CA Schools. What is your view: Does this memoranda apply in this private school?

Note the following language in the 2004 memoranda: QUOTE: "Penal Code section 422.6 states as follows, and must be read together with the categories stated above: No person, whether or not acting under color of law, shall by force or threat of force . . . "
Where does it say in the memoranda that the "threat of force" must be linked with actual intent?

Appellate Review

Page 4 states that the threat is a function of having been communicated electronically, and it is a function of what is in the mind of the target. From USA v Reynolds, 5th Circuit:
Blacks Dictionary defines a “threat” as “[a] communicatedintent to inflict harm or loss on another or on another’sproperty[.]”Blacks Law Dictionary (8th ed. 2004). Webster’sdefines a “threat” as “[a]n expression of an intention to inflict something harmful.”Webster’s II, New Riverside UniversityDictionary (Anne H. Soukhanov ed., Houghton Mifflin Company 1984). Furthermore, we have defined the term “threat” in 18 U.S.C. §875, which prohibits threatening communications made through interstatecommerce. We held under § 875(c) that a communication is a threat if “in its context [it] would have a reasonable tendency to create apprehension that its originator will act according to its tenor.” United States v. Meyers, 104 F.3d 76, 79 (5th Cir. 1997); see also United States v. Redden, 81 Fed.Appx. 96, 2003 WL 22682457 (9thCir. 2003) (unpublished)(defining “threat” under 18 U.S.C. § 175).We have found no credible support for a definition of “threat” thatrequires reference to a future act. We therefore conclude that the proper definition of “threaten” in §2332a is that adopted by this court in Meyers: a communication that has a reasonable tendency to create apprehension that originator of the communication will act as represented.
Blacks law dictionary in re "Intent"

When arriving at a decision over whether an individual "intended" to do something, the courts often review Blacks Law Dictionary. In this situation, the dictionary is quoted as saying in re "intent."

In this case, is the crime a future event; or is the crime the threat of a crime? How does your conclusion square with the 2004 memoranda on what is prohibited? Did the school officials, in light of the 2004 memoranda and the definition of intent properly respond to the facts as they knew them?

A layman's view of Hate crime

Let's put aside the CA legal jargon for the moment, and look at the plain language of what is a "hate crime." One unofficial view of hate crime is that involves harassment.

In this case, does the internet posting quality as 'harassment'; however, does the CA statute at section 422.4 properly cover this more general/non-legal notion of harassment; and is the public's perception of harassment [and the concept of hate crime] not consistent with the plain language of 422.4?

Hate crimes legislation: Pros and Cons

Here are some arguments for and against Hate Crime legislation. What are your views: Is the legislation needed; is there too much; does the incident at the school indicate that the laws are fine, they just need to be enforced; or are there gaps in the statutes that need repair?

Threat Management Units: Writings as a basis for increased alerts

TMU personnel are assigned to respond to reasonable concerns by high profile celebrities when there are allegations of stalking.

Recall that the TMU training does use as an indicator someone's writings to a celebrity as evidence of their potential threat. Does the TMU in LA plan to approach similar statements and incidents in such a manner, and should the public reasonably expect that the TMU will not respond the similar written statements and notices?

If true, this would have a chilling effect on the decision to reside in California; and would be a material decision for high profile celebrities in to engage in continued association with the State of California. That tax revenue might have a better return-on-investment [ROI] in neighboring states like Nevada, Arizona, and Oregon.

Absence of forethought implies educational experience wanting

One element in re Hate Crimes is forethought. Does the act of writing on the internet presume forethought; conversely, if individuals in the school are writing without forethought, should the school allow unsupervised access to the internet?

The LA DA asserted there was no intent. However, this raises questions about the ROI for those parents paying for the education at this school. Specifically, if this school is for "well established youth," could it not be argued that, despite the education, those who are products of this educational system access the internet and do not make reasoned use of the internet?

CA AG guidance on hate crimes. Where these procedures clear, and how did the DA's decisions square with the guidance?

Someone needs to explain how someone who voluntarily writes a statement on the web cannot be found to have intended to carry that out. Why did they write the statement, unless they actually intended it to be true; or are we saying there is a discipline problem despite the high fees parents pay for "high class education"?

More broadly, are young adults at American schools getting "high class education" about not being accountable for their actions?

If this is the intent, then there are well suited for jobs on Wall Street and the Federal Government in re White Collar Crime and War Crimes in Abu Ghraib and Guantanamo.

Perhaps they would like to apply for some jobs in the state and local governments. I hear that American government officials like people who are blind sheep, unwilling to take responsibility.

  • Is the declination to prosecute actionable?

  • What was the basis for the LA DA's office to conclude that a "willful, voluntary statement about future action" was not related to some intent to carry out that threat?

  • Why do people get to say, "the defendants were not under duress to make the statement, therefore they have not intent to carry it out," but then turn around and say "the lack of physical harm means there was no duress for the plaintiff--victim"?

  • Are there any improvements or revisions needed in the LAPD officer manual?

  • Is the conduct not a crime, but a civil tort such as "intentional infliction of emotional distress"?

  • How do countries like Canada approach internet hate crimes; and is the US approach lacking?

  • California schools have issued guidance on school bullying. However, Harvard-Westlake is a private school. Should the public reasonably expect that students attending private schools should put up with bullying on the internet?

    Other links

    Harvard-Westlake webpage.

    Other LA private schools [Link index, narrative in Japanese]

    Blogs mentioning the school. Note the number of students who are complaining about the school.

    My views

    That the FBI and LAPD are investigating tends to substantially undermine the DA’s position.

    Further, the intent-element requires only that there be intent to harass, not intent to carry out overt assaults.

    Thus, I’m not persuaded that the DA correctly handled this situation.

    Yet, I’m not surprised that the prosecutor essentially declined to prosecute. Let us look broadly at the apparently rising tolerance for abuse.

    The US Prisons system and abuses in Abu Ghraib and Guantanamo are often explained away as collateral damage.

    America’s actions speak volumes: It has an appalling record of human rights abuses and criminal torture committed at the hands of US troops abroad.

    At home, there’s a reasonable basis to question who is actually holding the judicial branch of government accountable.

    I’m most troubled that the prosecutor in this case, despite the clearly promulgated CA statute in re hate crimes, threw the case out on the apparent basis of linking the students’ actions to a speculative future event.

    That misses point.

    The intent of public statutes is to combat abusive conduct. The goal is not to form a foundation in which to selectively cherry pick high profile cases.

    Rather, the purpose of the law is to guide public behavior. Not explain it away.

    Indeed, that the family needs to bring this case in Civil court is most troubling. The purpose for having a public prosecutor is so that the public [in this case, called “the state”] has its business done for them.

    In other words, the reason that a public prosecutor commands a high salary is not based on his academic and career accomplishments in the rear-view-mirror; but it is based on service and the potential that that experience would be applied, not ignored, on the road ahead.

    The future has arrived.

    To be clear, this is not to suggest that the prosecutor was somehow negligent in the conduct of his affairs. This remains a matter for the courts to decide.

    However, I would hope that the CA state bar take a careful look at the DA’s actions in light of the Prosecutors’ ethics. Is the DA so overwhelmed and overworked that his office is unable to manage the workload?

    The DA needs to explain what happened. But there needs to be an outside review. The DA has a problem.

    Another view

    Let’s put aside the public policy issues for the moment and focus on the real problem. There’s a young adult, in a school, who has a problem.

    The young adult has been threatened with death.

    That is a problem.

    But the problem doesn't stop there.

    Nor is the problem just for the young adult. But also for the parents.

    At every juncture, the system, to which the adult parents pay taxes to support, has done nothing, but for the private civil action.

    Does the public require the catalyst of major disasters for it to respond? We’ve already had the disaster in Guantanamo and Abu Ghraib.

    The abuses in the US prisons are already history. Not a hypothetical-potential-speculative-future-possibility.

    It already happened.

    One cannot throw their hands up in the air and credibly ask the public to believe, “The DA carefully reviewed the matters and made the decision.”

    No. A prosecutor doesn’t make a decision about the law. That is up for the court to decide.

    A prosecutor’s role is to gather the evidence which law enforcement collects and present the case. We need to understand why, despite the evidence of webpage writing, that this wasn’t sufficient to act.

    To intervene. And to send a clear signal, “This type of behavior, these threats of violence, does have consequences.”

    Rather, the public must come to an understanding of what the public officials are hoping to provide.

    Or not provide. And why.

    Recall, under the theory of the state, the people give up some of their rights to self-defense in exchange for the state, in return, promising to provide some sort of security in return.

    In this case, the parents have given to the school the power to educate their child in a suitable environment.

    Yet, despite the 2004 memo, we see nothing other than words that would demonstrate that anything was actually done, but for the civil lawsuit.

    Why does it take so much work on behalf of private citizens to get the local, state, and federal governments to respond?

    It should not require Herculean efforts on behalf of the victim and the victim’s guardians to ensure that the system works.

    No. The purpose of a constitution is to provide the guidelines so that the state, not the individual, takes on this burden.

    Yet, in this day and age, we have the opposite. The public, and in this case the parents, are doubly burdened with taxes to pay for public schools, yet in order to get the education they think they need, choose to spend additional money on a private school.

    Did the school provide that extra security and protection which the parents paid for?

    Are there substantial benefits to engaging in a private transaction for a private education?

    On the surface, I’m appalled that the parents have been failed in this situation not just once, not just twice, but countless times.

    The public education system has fallen down. The school administrators issued a memorandum in 2004 calling for there to be close scrutiny of the situations related to hate crimes.

    And then, when the publication of that inappropriate threat was communicated, what did the public servant do?

    On all counts, those the citizenry freely chooses to engage in a government-sovereign transaction were let down.

    Yet, who is to be held accountable? Surely, we will hear many claims of immunity. That the children’s conduct was so unexpected that no reasonable person could possibly do anything to stop it.

    Yet, who will suffer? The young adults, whose parents pay for this education, will be asked, because of the transgressions of a few, to undergo greater scrutiny.

    Will they be asked to give up their personal privacy so that they have to sign in before using the internet?

    The answer isn’t to require the disciplined to be disciplined. The answer is to discipline the undisciplined.

    The answer isn’t to celebrate the American system, all the while doing nothing to stand by the parents in their time of need.

    Those parents are the one doing the public’s bidding. And for that, at the very least, they deserve more than simply kudos and spots on the television.

    At the very least they deserve to be compensated justly for the grief that they have been put through. Again, the purpose of the prosecutors’ office is to do the public’s business.

    When the DA refuses to act, or asserts that an act isn’t a problem, or there is some sort of legal impediment to action, then the DA needs to get out of their office and come before the legislature and say “We have a problem and this is what needs to be done to fix it.”

    Yet, I see nothing of that sort. I see a DA that throws up their hands and says, “Not my job. Not going to hold these kids accountable for their threatening words. We’re going to rely on what the students say and then make the problem go away.”

    That’s not leadership. That’s not public service. That’s something the ABA needs to look into: Did the DA recklessly ignore the overwhelming evidence on the website and, without fair basis, knowingly refuse to prosecute something that deservedly requires some action, and that a reasonable attorney would know required some action?

    But let’s not stop there. Let us recall the situation in LA. The police have regularly been under close scrutiny for their misconduct.

    Is it not strange that the very police force that commits abuses on innocent civilians, is now one of the investigating agencies looking into this matter? Not just the LAPD, but also the FBI.

    They’ve already demonstrated their own institutional arrogance toward the weak with their abuse, threats, and overt acts of violence.

    Let us be clear. The FBI agents were the ones in Guantanamo who were actively in discussions with the US NAVY IG in how to get out of this mess. FBI and DOJ aren’t credible in getting to the bottom of a mess. They create messes.

    The US prison system as evidenced by the abuses committed in Abu Ghraib and Guantanamo has a problem. We should not expect either the FBI or the LAPD to be sensitive to some “idle discussion” on the internet.

    Surely, the public will not lose the outrage of this. Surely someone will stand up and say what is self-evident: Those who are entrusted to protect the public are abusive; and they have no credibility in investigating something that they do every day.

    Thus, it is an outrage, yet also understandable that the only way forward is through a civil action.

    Yet, that is the outrage. That government failed. That the private citizen, not government, is the one that brings order and understanding.

    But it is growing far too common. How far they drift when not bound by the oath to which they freely took an oath.

  • What is the United States to even suggest that it is for the rule of law, or fair treatment, when its own school children are subjected to threats of abuse?

  • That the only way forward is not through the criminal system, but a private cause of action?

    Recall, the President of the United States used the same charges of abuse against Saddam Hussein to justify invading Iraq.

    Time and time again, the President claimed that Saddam was not responding.

    The President went to the Congress and claimed that Saddam was not cooperating.

    Yet, do we not have the same at Westlake? Are there not credible reports of abuse that the leadership is not responding to; that the leadership is not cooperating to resolve?

    I see no difference between the allegations of misconduct leveled against Saddam and the hollow attempts by the United States to justify actions; and the similarly hollow excuses to do nothing when there is real evidence of similar threats on a public website.

    In both cases: Hot air, moral indignation, and actions at odds with principle.

    That is an integrity issue. And what forms the basis for international contempt for the United States. That it parades itself as the standard bearer for one set of standards, while its actions and deviations are above remark.

    This divergence the downfall for both the British and Roman Empires. One by land. The other by elephants.

    We might wonder: What are the students at Westlake learning?

    If the DA is correct, that the students didn’t intend to do anything, then I ask you, “Why are parents paying a premium to send their children to such an institution?”

    What will they learn? Apparently the stuff that Americans learn around the globe: That it is permissible to threaten death and have no consequences?

    Such is the arrogance to which the Americans mobilized when waging war on the Germans and Japanese during WWII.

    It was the standard of evidence which McNamara self-admittedly said justified the firebombing on Tokyo.

    Has America, in the vacuum of the Cold War’s end, become that enemy?

    Look around you. Look into the eyes you see. Ask yourself if your nation, your leadership, and your fellow citizens have not lost something since 9-11.

    Yes, America was attacked. And it will face troubles again, as war is not a history lesson, but an option.

    But recall the words at the national cathedral. Let us not let the enemy bait us to be as abusive.

    These are the words which the Americans must remind themselves. For in the wake of 9-11, it appears as though the level of callousness and arrogance has reached a new watermark.

    To the point where abuse inflicted on the youth is considered a right of passage.

    As if threats of death are not actionable.

    If that is true, then what basis was there to take any action in Iraq?

    To the extent that public officials now throw their hands up in the air saying, “Things are fine; the problem is with those who dare point out the obvious.”

    America is a sick country. It needs to be brought back into good health.

    Let us hope that American will pause during this time. That it will realize that its own children are now throwing around threats of death will full expectation that their conduct face no consequences.

    This is alarming. For it is a sign that America’s leadership is having a direct, negative, and adverse impact on the youth.

    This is no different than what was happening in Nazi Germany. With the Hitler Youth. S

    It began with innuendo and threats. The leadership got away with invading countries. The youth then took it upon themselves to act.

    Is this the path America wants to take?

    The time to correct and adjust is now, not when it is self-evidently intolerable. For there have already been threats of death that were actively carried out in Red Lake in Minnesota.

    Yet, what did we hear? “Nobody did anything.” Well, once gain, we have threats of death, nobody doing anything.

    Except for the Parents. Was the tragedy at Columbine and Red Lake lost?

    Was the fact that youths spoke about their plans to commit criminal acts not something that sunk into the minds of the country?

    Part of the responsibility for this callous disregard for bullying lies in the White House. It also rests with the Los Angeles DA’s office. And the time to set the example has long overdue.

    The rule of law is all the America has. And when that fails, America and its youth have shown a tendency to resort to threats and actual violence.

    Apparently the DA was hoping for dead bodies and then maybe does something? Just as we saw in Abu Ghraib and Guantanamo, the dead bodies can be hidden. And the evidence destroyed.

    What was the DA hoping for? Was the DA hoping for another Eye on LA exclusive coverage from a roving ABC chopper, catching the youths in the act?

    That is too late. It was too late in Columbine. It was too late in Red Lake. And it’s too late for those who have been tortured to death in Guantanamo and Abu Ghraib.

    Or is America saying that it is OK to threaten abuse against those it randomly decides to target?

    For if that is the new standard, and then America is asking the world to assent to the rule of law as America defines it, but do nothing when America violates those rules.

    Such an approach is reckless. And such a double standard is what sparked the souls of those who acted on 9-11.

    America cannot descend down that path while expecting the world to do nothing.

    At home, such momentum is an abandonment of the notion of civil society, public service, and the notion that a nation has a representative form of government.

    The DA has some explaining to do. To the Bar, to the peers in the ABA, and to the legal community.

  • What standard of evidence do you require?

  • If that standard of evidence is so high, why are you even there?

    It appears in the DA’s universe, that anything short of overwhelming evidence and massive killings, there’s no problem.

    Huh? Where did the DA get this silly idea? From Mr. Gonzalez in DoJ? How many students at Red Lake in Minnesota was it that was killed, and this DA in LA says that there wasn’t anything done?

    There’s something missing here. The idea is for things to be nipped in the bud, not let the problem then become so out of control that the DA then throws their hands up in the air and says, again, “We can’t do anything.”

    See that: They don’t do anything when the problem is small; and then when the problem occurs, they say it again: We can’t do anything.”

    Interesting. No matter what happens, the DA’s response is, “We can’t do anything.”

    Brilliant. Why do we not show the DA the door? Find a new DA. One that can do something.

    Because if the answer is “we can’t do anything” why do we have a government? Why is it there? What does it do?

    Other than collect taxes and make up excuses for hiring incompetent people who like to violate the law with impunity and not be held accountable for these war crimes, I’m not clear that the government necessarily does provide what it promised to do back in 1776.

    Remember: That thing called the constitution. It is an agreement.

    The founding fathers spoke well of this nation’s prospects. They reminded us that when the government fails to abide by that agreement, it no longer has legitimacy. Nor does it deserve trust.

    This was the basis for a new nation.

    So where have we come in these last few centuries?

    Why is it that on the eve of this civil trial, we are once again reminded of the arrogance to which this nation holds itself, and why do we find once again that the leadership failures to lead, and that the citizenry is the one that has to do the real work?

    If the citizens have to do the work in a civil trial, then there’s really no reason to have a prosecutor.

    Surely, we can’t have that. All chaos would arrive. I argue the chaos already here. Not just at the doorstep. But everywhere.

    The problem is not hypothetical. Rather, the government uses the threat of chaos as the excuse to command obedience; and in exchange, what do we get? Chaos.

    Unresponsive government. Excuses. Inaction. And a chorus of people asserting that things are just fine.

    Baloney. A young adult was in school, and was threatened with death.

    Does it get any worse?

    America has overstayed its welcome on the stage of moral authority. Indeed, we should not be surprised why the President continues to stick by his man Bolton.

    No longer should parents trust their schools to make informed decisions. They like to issue legal memoranda, but the teachers are incapable of ensuring the students are adequately supervised. Even at a private school.

    What is to be done? Pull your kids out of school. The state funding is based on attendance. That will be a wakeup.

    Those parents deserve your support. Keep your kids at home.

    What is to be done about America?

    There’s no reason to engage in any transactions with American corporations. Their firms are actively supporting military operations despite no lawful authority.

    Congress has self-appointed itself as being immune to international law.

    There is no reason to trust Americans. They will lie, betray, threatened, and intimidate because they face no prospect of being held accountable for their abusive conduct.

    What is to be done about America? America will survive, not because it has the moral authority, but because it has the financial capital to overwhelm anyone.

    But those days are no longer ensured. America, as we have seen with the competition from oversas, will not be able to compete.

    American workers are lazy, arrogant, not all that bright, and are not reliable. But despite their flaws, they like to suggest that they deserve something.

    Yet, I see nothing on the horizon deserving much respect about America. It is one nation whose President likes to say that it is the shining beacon of hope.

    For whom? Those who are naïve to believe that a dream is possible, despite the overwhelming evidence that law enforcement uses that dream as bait to entice and blackmail people to become informants?

    But to the future. Where will American go?

    That is for America to decide. The same people, who did nothing about Abu Ghraib and Guantanamo, are the same ones who will ultimately decide whether DoJ will do anything about this egregious conduct.

    These threats. Against a young adult. Who simply was going to school. Just as the young Iraqi children desire to go to school.

    So let's hear it. Is America fighting in Iraq for a safe future for children? Because I'm not seeing it at Westlake.

    Rest assured America’s youth and the world watch closely. If there are not measurable sanctions against the students for these threats of death, then there will be no sympathy for those who are drafted into the armed services and face real threats on the battle field.

    For every time that America refuses to stand for the rule of law, is yet another catalyst for the enemy to further sacrifice to defeat something they perceive to be a cancer.

    If you do not fight this intolerance at home, then on the battlefields in Iraq, rest assured your youth, when they are drafted, will be asked to account.

    Recall, that if your DA refuses to hold your youth to be accountable, then surely anyone could make the same idle threats against anyone?

    Is that the standard to which you wish the rest of the world to be held?

    For if idle chatter is not basis to act, then there was no basis to invade Iraq; nor are any public statements by an enemy without real WMD any basis to do anything.

    Choose your argument. If your DA wants to command the world to believe that there was nothing there, then you must hold your own President to that same standard when it comes to Saddam Hussein.

    Pick. Will you hold your youth or your President accountable?

    You must choose. Otherwise, you remain a land of inconsistent, arrogant, hypocrites.

    This is not surprise. Nor new.

    The actions and inaction in Los Angeles are things that the world will watch closely. Secretary Rice argued that Byelorussia is not a vacuum. The world is watching.

    So too is the world watching how America really stands for principles and stands up to abuses when that abuse smacks them in the face.

    America’s legacy will not be measured just in terms of battle field victories. Nor just in the number of oil wells it secures.

    Rather, America’s legacy will be measured in terms of the safety it brings to its own citizens, not just the youth in Iraq.

    On both fronts, we see there is much room for improvement.

    Avoid waving your hands as if holding a flag of freedom, when you simply mean to shoo away flies that follow your stench.

    America is becoming a deeper cess pool. And there should be no surprise why the world cares a little less for whether America remains a shining light.

    The American light is flickering. Again.

    The answer is not to create another diversion. But to focus on the poor example for its youth. And to require accountability, not excuses, for misconduct.

    A civil society commands nothing less. Indeed, a free citizenry deserves no less.

  • Stickers here:

    I've included these terms because some search engines do distinguish between "lawsuit" and "law suit"; and some are searching with/without the hyphen:

  • harvard-westlake school law suit
  • Harvard-Westlake law suit

  • Harvard Westlake law suit

  • law suit against harvard westlake school