Constitutional Rights Were Violated in Keene
Filed under: Hypocrisy, Issues, Keene, Laugh at the Aggressors, Living Free, News, Noncooperation, Outreach, Personal Freedom, Police, Response, Thuggery
It is no surprise to those of us who write here at FreeKeene.com that we have many readers from the Keene community and beyond that firmly disagree with various things that we advocate. If you happen to be one of the aforementioned, chances are that you’re a supporter of the state and the constitutions that define how it can behave. Hopefully, I can appeal to you through this brief article.
Two nights ago two of Free Keene’s contributors had their constitutional rights violated by government employees that they both are forced to fund. The argument of whether Ian Freeman and Sam Dodson were looking for a confrontation is irrelevant and no excuse for the behavior of government officials that was initiated by government officials. In this state and country the government is prohibited from interfering with peaceful free speech and protest. The onus is on government employees to comply with the entirety of the state and federal constitutions, at all times… even when confronted by people peacefully expressing their displeasure at the continued enforcement of a government policy.
Especially when confronted by people peacefully expressing their displeasure at the continued enforcement of a government policy.
It was well publicized here on the blog that there would be a gathering of people at the Keene City Council meeting and that those people would be drinking from containers that could have alcohol in them. From all accounts I’ve read, witnessed through video, and learned from speaking to the individuals involved, not a single disruption was caused at this particular meeting by the protesters. The disruption ensued when the government employees and officials felt that the protesters were deflating their ego’s by mocking the way they choose to wield violence to control other people’s lives.
Facts:
1. The mayor, city manager, and police chief were aware that individuals may be consuming alcohol at the particular meeting they were attending on Thursday night.
2. Once at the meeting the mayor, city manager, and police chief identified several individuals who were quietly drinking out of bottles that might contain alcohol.
3. Drinking of non-alcoholic beverages from containers that appear to contain alcohol is not against state law or Keene ordinance.
4. The police chief embarked on an investigation to determine what was within the bottles in the possession of the protesters.
5. One protester waived her Part I, Article 19 and US Amendment 4 rights and consented to a search of the contents of her bottle. The contents of the bottle revealed that she was only drinking water. She was allowed to remain.
6. Ian Freeman and Sam Dodson invoked their rights under Part I, Article 19 and US Amendment 4 and refused the police chief’s request to search in the contents of their bottle.
7. As a result of the police chief’s inability to develop probable cause that Ian and Sam were breaking the law (or not breaking the law) they were ordered to leave.
8. Ian and Sam refused to comply with the order to leave.
The culmination of #1 and #2 would give the police reasonable suspicion that anyone present with a bottle mimicking a bottle for an alcoholic beverage was violating the town’s open container ordinance. Reasonable suspicion only authorizes the police to conduct a brief detention and interrogation for the purpose of determining if probable cause exists to take enforcement action. No citation can be issued, no property seized, and no arrest can be made absent probable cause.
The police chief’s actions in #5 have a direct nexus with his enforcement action taken against Ian and Sam in #7 and #8. This clearly shows that if Ian and Sam had waived their constitutional rights that they too would have been allowed to remain present in a public meeting. The issue with this though is that it flips the entire constitutional system upside down: you must waive two constitutional rights when “asked” by the police chief if you want to enjoy a third.
The New Hampshire Constitution in Part I, Article 8 states the following:
[Art.] 8. [Accountability of Magistrates and Officers; Public’s Right to Know.] All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.
I’d be interested if anyone can make an argument supporting the notion that the police being unable to make a case that someone is violating the law, because the police are hampered by an individual choosing to assert their constitutional rights of privacy, constitutes a “reasonable” restriction and justification on stripping Ian and Sam of their clearly codified right to be present at the public meeting.
The law Ian and Sam were charged with violating states the following:
644:2 Disorderly Conduct. – A person is guilty of disorderly conduct if:
II. He or she:
(b) Disrupting the orderly conduct of business in any public or governmental facility;
Going on the facts as we know them… can someone please tell me the difference in what Ian and Sam did versus the protester I mentioned in #5, OTHER than the fact that they refused to waive constitutional rights?
See where I’m going with this?
The police chief had absolutely no evidence that Ian or Sam were breaking the open container law. In fact, they were not breaking the open container law. Their invoking their rights pissed off the police chief and he retaliated by ordering them to leave. Whether or not you agree with how Ian and Sam chose to protest this victimless law… hopefully the patently unconstitutional way that the government officials in Keene conducted themselves causes you concern.
Comments
49 Comments on Constitutional Rights Were Violated in Keene
Magical script and enhanchantments does not yield significant defense against thugs carrying firearms.
Embarrassing them for their hasty police work on the stand in court and plastering the video of their testimony all over the internet surely will serve as a deterrant for future silly actions I believe, Lord.
Heroic actions by Sam and Ian!
Hopefully you are right Brad. Nevertheless the outcome, people will have a good laugh on behalf of the ridiculed thugs. Though I wish there was another way that can preserve the face and honor of all parties involved. A more loving way so not to alienate the very people that have yet to realize the immorality of the actions of the coerced governence.
Brad, while I think you were an excellent cop, I’d hesitate to hire you as my lawyer.
You have a logical error in the above:
Heika’s compliance is multifaceted: her waiving of her rights (Part 1, 19 and 4th) is not why she was allowed to stay, directly. Indirectly, yes. Directly though, she was no longer being even potentially disorderly, she clearly wasn’t violating an open container law, consuming alcohol. She was cooperating with the investigation. Asking _her_ to leave at that point would have violated her right to attend the proceedings. If she had been forced to leave, SHE would have had a case for being unreasonably restricted. By flipping your logic, you are ignoring the overall situation, and making Ian and Sam into the victims you wish them to be and not the instigators they are.
When lan and Sam refused to cooperate, while they were within their rights, being at that point under suspicion of “Disrupting the orderly conduct of business in any public or governmental facility” by posting the Keene Drinking Game notice,bringing the bottles, and then drinking from them… seems like an open and shut case of _reasonably_ restricting access to those who seek to disrupt the proceedings by their own publically and pre-planned admission.
If they had voluntarily shown they weren’t drinking alcoholic drinks, and then were still asked to leave, when Heika was allowed to stay for the same circumstance, perhaps they’d have a case of discrimination and unreasonable restriction to the proceedings then…. but they didn’t.
IANAL, but seems obvious to me.
Brad, while I think you were an excellent cop, I’d hesitate to hire you as my lawyer.
Well, thanks man.. I don’t know if I was an “excellent cop” … I really don’t know if it is possible to be an excellent cop in the world today.
Heika’s compliance is multifaceted: her waiving of her rights (Part 1, 19 and 4th) is not why she was allowed to stay, directly. Indirectly, yes. Directly though, she was no longer being even potentially disorderly, she clearly wasn’t violating an open container law, consuming alcohol.
I understand what you’re saying… but what you’re suggesting is that one needs to PROVE that they are not being disorderly. Being disorderly is something that is readily apparent and the state needs to be able to prove it within the confines of the state and federal constitution.
By flipping your logic, you are ignoring the overall situation, and making Ian and Sam into the victims you wish them to be and not the instigators they are.
They were not the ones who started this confrontation. If the government employees had conducted themselves in the manner that they were supposed to and did not go looking for trouble, there would have been no trouble.
When lan and Sam refused to cooperate, while they were within their rights, being at that point under suspicion of “Disrupting the orderly conduct of business in any public or governmental facility” by posting the Keene Drinking Game notice,bringing the bottles, and then drinking from them… seems like an open and shut case of _reasonably_ restricting access to those who seek to disrupt the proceedings by their own publically and pre-planned admission.
They didn’t disrupt anything or violate any laws, though.
I could write publicly that I am going to go to the Keene meeting with a pound of marijuana in my pocket… and that I was holding it in my pocket in protest of marijuana laws.
If the police approached me and asked me for consent to search my pockets…. and I refused, how am I being disorderly?
If they had voluntarily shown they weren’t drinking alcoholic drinks, and asked to leave, when Heika was allowed to stay, perhaps they’d have a case of discrimination then…. but they didn’t.
The government actors here presumed, with evidence to back it up, that Ian and Sam MAY be violating the law. It is THEIR responsibility to comply with constitutional safeguards while making the determination that someone actually IS breaking the law. When the police chief was unable to determine that a law violation was occurring, absent some other form of disturbance, he needed to back off. He didn’t.
The system is not designed to work in the manner you are suggesting it does: “prove to me you’re not doing something illegal that I think you are if you want to continue enjoying your Part I, Article 8 rights.”
Brad, you’re ignoring that posting your carrying marijuana in and of itself is NOT necessarily disruptive to a meeting taking place…unless you make it so…
If you posted you were carrying a bomb, or let’s say a firecracker and a lighter, that certainly would be, and if you (lawfully) refused to be searched, asking you to leave (and arresting you if you refused to leave) seems like a reasonable restriction to me (and to an average person).
I consider posting the Keene Drinking Game to be a notice of planned potential disruption. So will the average person. A judge certainly will.
So the system isn’t saying “prove to me you’re not doing something illegal that I think you are if you want to continue enjoying your Part I, Article 8 rights.”, it’s saying “prove that you aren’t planning to be disruptive, contrary to your previously stated intentions, or else you’ve put yourself into the reasonable restriction area of Article 8 by your own hands, and we will ask you to leave because we can now.”
If FreeKeeners weren’t so public, they’d be arrested less. But when you plan it all in public, it’s quite a different story, and Ian and everyone else knows it. It’s part of the method to their madness. They want to be arrested, and if they aren’t they still claim it as a victory (See, they were scared of us!) – so confrontation is sought out. It’s a recipe for eventual disaster.
Brad, you’re ignoring that posting your carrying marijuana in and of itself is NOT necessarily disruptive to a meeting taking place…unless you make it so…
Carrying a container which appears to possibly contain alcohol is not necessarily disruptive to a meeting taking place… until the Keene government people made it so.
If you posted you were carrying a bomb, or let’s say a firecracker and a lighter, that certainly would be, and if you (lawfully) refused to be searched, asking you to leave (and arresting you if you refused to leave) seems like a reasonable restriction to me (and to an average person).
That is completely different. That would be a serious security risk to any public member who was there.
I consider posting the Keene Drinking Game to be a notice of planned potential disruption. So will the average person. A judge certainly will.
I consider the posting of the drinking game a notice of a peaceful protest in a publicly funded area at a public meeting. No one ever claimed that people would be definitely drinking alcohol.
So the system isn’t saying “prove to me you’re not doing something illegal that I think you are if you want to continue enjoying your Part I, Article 8 rights.”, it’s saying “prove that you aren’t planning to be disruptive, contrary to your previously stated intentions, or else you’ve put yourself into the reasonable restriction area of Article 8 by your own hands, and we will ask you to leave because we can now.”
I understand your argument… it is a good one.
If FreeKeeners weren’t so public, they’d be arrested less. But when you plan it all in public, it’s quite a different story, and Ian and everyone else knows it. It’s part of the method to their madness. They want to be arrested, and if they aren’t they still claim it as a victory (See, they were scared of us!) – so confrontation is sought out. It’s a recipe for eventual disaster.
I, obviously, am a vocal supporter of the flavor of activism that FK bloggers tend to support.
I still maintain, though, that a “potential” for a disruption is insufficient in this case to warrant kicking people out for failing to waive their constitutional right to privacy.
Thank you for sharing that argument with me… It has given me a new perspective on this ordeal.
“I still maintain, though, that a ‘potential’ for a disruption is insufficient in this case to warrant kicking people out for failing to waive their constitutional right to privacy.”
But it’s not up to you, nor me, Brad. The question of whether it was a violation of Article 8 will fall to a NH judge (potentially even the NH Supreme Court).
I’ll argue that you might even be _correct_ that, right now, there is no case law defining that a ‘potential’ disruption is enough to trigger the ‘reasonable’ exception clause. (Might be, I dunno, IANAL.) But if this case CREATES that case law, then we’ve all lost a bit more of our freedom to the exceptional clause, because of poor activism – or let’s call it what it really is, IMHO – negative activism – Activism AGAINST Freedom, because the end result will be less freedom.
Maybe CD Evolution Fund should be paying for a lawyer to research that, BEFORE someone ends up creating case law making us all lose more of our freedoms.
Maybe CD Evolution Fund should be paying for a lawyer to research that, BEFORE someone ends up creating case law making us all lose more of our freedoms.
That is a good suggestion… however it could end an attorney into a great deal of bureaucratic red tape. It seems to be touching the third rail of lawyer ethics.
There are people who show up on the Free Keene forum every day saying that they love the activism that is happening in Keene. You may not like the style of it… but tons of people do.
The Keene City Council will be having a real hard time when there is an army of peace loving activists who show up demanding their freedom.
Seth, a question for you sir.
If I posted on this blog “I’m going to the Keene City Council meeting and I’m going to cause probelms” … do you believe I can be barred from attending?
Brad, the popularity on an online forum is irrelevant. The only people who count are locals, because it’s all about local control… So how many _local_ FreeKeeners show up to things? a few dozen, tops?
And while I am sure there are locals who like it, until I see a scientific poll or an election result showing otherwise, I\’m going to say that the negatives far far far outweigh the positives.
Brad, I’m having deja vu… I recall we had almost this _exact_ conversation a year or more ago. I can’t recall the context, but I know we did… because I remember posting a similar answer. I think it was something involving Ian and the Council… do you recall it?
“If I posted on this blog “I’m going to the Keene City Council meeting and I’m going to cause problems” … do you believe I can be barred from attending?”
Depends on the definition of ‘problem’:
I’m going to KCC and I’m going to raise hell about the tax they instituted, I won’t take no for an answer to my questions about it. – NO, you can’t be barred.
I’m going to KCC and I’m going to scream at the top of my lungs until they listen to me – Maybe – if you have a habit of screaming, ignoring the rules of decorum and have been disruptive in the past in that manner.
I’m going to KCC, and will tie myself to a chair there, and refuse to leave until they vote to do what I want – Yes, you can be barred.
I’m going to KCC and I’m bringing my gun, because they won’t get away with this, you’ll get yours, KCC – Yes, you can and should be barred.
I’m going to KCC and I’m bringing my 18×24 sign calling for the resignation of the Mayor – No, you can’t be barred.
I’m going to KCC and I plan on being topless. – Maybe… if it’s disruptive. I suspect it’ll depend on what else happens. Good way to get a ordinance passed to ban toplessness – wag it in their faces and dare them.
I’m going to KCC and I plan on violating laws in their presence – Yes, openly seeking to break a law is disruptive by definition, if you are announcing your intention to do it publicly and thus get attention for doing it. The manicure arrest proved that – you can get yourself arrested for it, if you send notice and wave the red flag.
Again, IANAL. But I think the above is common sense, and what I suspect the average person would say.
Thoughtful response… I appreciate it.
How about this:
“I am going to a Keene City Council meeting and I might be breaking a town ordinance in peaceful protest of my disgreement of said ordinance’s existence and enforcement.
The breaking of this ordinance will cause no visual or audible disruption in the decorum of the meeting. The only reason you will know that I may be doing something illegal is because I am pointing it out here. To any person not familiar with my writing here I will simply be another face in the crowd.
At the meeting, the only way for anyone to have evidence that I was actually doing something illegal would be if I waived various constitutional protections and provided you with evidence that you could use to incriminate me.
I assert here and now that I will not waive any constitutional protections.”
I think that your confessional would be used to get a court order, if you gave enough details.
I think it’d be as pointless a protest as possible. With no visible proof, if you admit you did it after the fact, it’s then usable against you, so you could never admit if you did or not.
This falls into the fake weed/fake alcohol/etc category of ”I’m not touching you… my finger is so close, but I’m not touching you’ school of annoyances, and is only going to annoy people. Unless you don’t care about other people’s opinions, and want to be looked at only as annoying irresponsible children who need to grow up, in which case, WIN!
I think that your confessional would be used to get a court order, if you gave enough details.
No court can compel you to incriminate yourself.
I think it’d be as pointless a protest as possible. With no visible proof, if you admit you did it after the fact, it’s then usable against you, so you could never admit if you did or not.
It would be a pointless protest… unless the city officials/bureaucrats behaved precisely as they did two nights ago.
You most definitely could admit to what you did after…. and be unconvictable.
The police charge you with having an open container because you admit in a blog that you drank vodka from a flask in a council meeting.
You go to court…………. plead not-guilty. How do you win? Easy. One question: “Officer, is it possible I was lying when I said I broke that law?”
Answer: “Yes.”
Case closed.
“I got raped last night”
well you instigated it, you look hot. You even posted online that you wanted to have sex. You’re the one in the wrong. You’ll get a fair trial, we’ll get every jock fraternity member to be on the jury.
or maybe the onus is still on people not to harm others. It’s one helluva idea, the whole non aggression thing. Why would they stop aggressing if everyone supports their aggression because the girl looks hot.
Amen, brother.
I said “I think that your confessional would be used to get a court order, if you gave enough details. ”
Brad said “No court can compel you to incriminate yourself.”
Brad, that is not what I meant. If you posted that you were going to have a pocket full of drugs and attend KCC, how hard would it be for a cop to take that before a judge, and get a warrant to search you when you showed up at KCC on your voluntarily self-produced confession that you planned on having drugs there that night?
[Art.] 19. [Searches and Seizures Regulated.] Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. Therefore, all warrants to search suspected places, or arrest a person for examination or trial in prosecutions for criminal matters, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order, in a warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued; but in cases and with the formalities, prescribed by law.
You were the cop, what would you do?
Brad, that is not what I meant. If you posted that you were going to have a pocket full of drugs and attend KCC, how hard would it be for a cop to take that before a judge, and get a warrant to search you when you showed up at KCC on your voluntarily self-produced confession that you planned on having drugs there that night?
Oh, I see. Apologies, sir. Yes, the police could do that. My point is, though, that absent probable cause they really can’t do anything. Just because you MIGHT be breaking a law or MIGHT cause a problem I do not believe justifies booting someone out of a public proceeding.
Why is it that these police and officials don’t know how to play this game of chess better? Why didn’t they wait until Ian or Sam ACTUALLY did something disruptive?
You were the cop, what would you do?
What would I do? I would IGNORE the liberty activists… unless they actually did something to disrupt the meeting. Going out of the way to try and screw with the activists is falling precisely into the trap that the activists lay for them.
This issue now has huge national publicity because the bureaucrats couldn’t handle being mocked in a way that they really couldn’t do anything about.
I don’t think many people would be defending Ian or Sam if they went to the meeting and started yelling and acting disorderly. I actually might support such controversial activism though because interfering with the city council’s “business” could actually delay their hurting someone with a sign three inches too wide.
I agree with you, Brad.
In all of the CD style activism over the last 5+ years, CDers have had the luck that I attribute to the old saying “God protects fools, drunks and children”
Ridley used to visit all sorts of offices, and get thrown out and get great footage, and then he started hitting places that just ignored him… boring footage, a waste of time.
If KCC, the Keene cops, etc and others would learn to not to play in the hands of Keeniacs, I suspect 90% of the footage would become quite boring.
If the city cops were trained to answer Ian’s “what is the ‘city of keene’?” with a stock answer that is factual, he’d eventually stop asking the silly question…
I’d suggest the answer it as follows (IANAL), and keep repeating it until Ian has it memorized…
The “City of Keene” is the state chartered body politic and municipal corporation comprised of all inhabitants within the designated city limits.
(Whether Ian agrees or not, that is true and factual, and this state is NOT a home rule state, all towns/cities get their legal power(s) from the capital). It’s why they own the ‘public’ land… it’s the contract with the state granting them the local control. If he attempts to argue, they can just repeat themselves, and tell him to discuss the situation with his fellow citizens and his state representatives and state senator, if he wishes to change this contract.
From the charter
http://www.ci.keene.nh.us/government/city-keene-charter#1
SECTION 1. INCORPORATION. The inhabitants of the City of Keene shall continue to be a body politic and corporate under the name of the “City of Keene,” hereinafter sometimes referred to as “the City,” and as such to enjoy all the rights, immunities, powers, and privileges and be subject to all the duties and liabilities now appertaining to or incumbent upon them as a municipal corporation. All existing property of the City shall remain vested in it, and all its existing debts and obligations shall remain obligatory upon it, under this revised Charter.
“If you posted you were carrying a bomb, or let’s say a firecracker and a lighter, that certainly would be, and if you (lawfully) refused to be searched, asking you to leave (and arresting you if you refused to leave) seems like a reasonable restriction to me (and to an average person).”
Then the average person is a willing slave. There’s a difference between an assertion and a credible threat. Someone with common sense should know the difference. It would have to appear to be a lighter and a bomb. From my reading of two accounts, the bottles were clearly marked otherwise.
Seth, in your initial disagreement with Brad\’s assessment you seem to conflate the Council having the perception of disruption with actual disruption. The Keene Police Chief and the Mayor are the ones who made what Ian and Sam did disruptive. The mayor was the one who stopped the meeting and then recessed it. At the point of the recess, Ian and Sam were not doing anything disruptive. The police chief was unable to determine whether or not Ian and Sam were violating the open container ordinance because they didn’t consent to a search, while Heika did. At that point the determination was made that Ian and Sam were disrupting the meeting, except they weren’t doing anything but sitting there with their bottles. The chief then decided to arrest them, but what had changed?
Nothing, except that they likely perceived that Ian and Sam were drinking alcohol, but didn’t know if Ian and Sam were. If the chief or mayor really thought that Sam and Ian really had alcohol they could have applied for a warrant with a judge over phone. But did they do that? No. Why? Because they likely thought that Ian and Sam were mocking them and should be removed.
Oh, and Sam and Ian knew where the line was and walked right up to it and thumbed their nose at the city. The city employees didn’t like that and resorted to punishing Sam and Ian for their disobedience, not for any actual disruption.
Oh, and Sam and Ian knew where the line was and walked right up to it and thumbed their nose at the city. The city employees didn’t like that and resorted to punishing Sam and Ian for their disobedience, not for any actual disruption.
Exactly.
What Ian and Sam are REALLY guilty of is mocking the “authority” of the “officials” present.
I already answered this above, Andrew: perception of disruption might be enough, and a judge will have to decide if it was or not, if the case is pushed forward.
Andrew: perception of disruption might be enough, and a judge will have to decide if it was or not, if the case is pushed forward.
Do you realize the huge pandora’s box you’re advocating with that position?
I already answered this above, Andrew: perception of disruption might be enough, and a judge will have to decide if it was or not, if the case is pushed forward.
Perception of disruption is definitely not enough, unless Judge Lane and the Keene Police Chief can’t read the statute under which Ian was charged (RSA 644:2), or the compliant itself which requires that Ian and Sam’s conduct had to be “purposefully” “breach the peace” of the “lawful assembly or meeting” without “lawful authority.”
If we followed your logic then people who open carry could be arrested for simply walking down the sidewalk because someone had a perception that the person with a gun was trying to threaten people. Ridiculous. Granted the judge may ignore what the statute says, but there is no way that perception of a disruption even remotely translates into a purposeful disruptive act by someone without the legal authority.
I would be so bold as to say that Ian and Sam had the lawful authority to engage in their stunt by virtue of their Constitutional rights to Redress Grievances, Free Speech, Holding government bureaucrats accountable, etc.
I would be so bold as to say that Ian and Sam had the lawful authority to engage in their stunt by virtue of their Constitutional rights to Redress Grievances, Free Speech, Holding government bureaucrats accountable, etc.
Absolutely.
Not to be an oversimplistic jerk but I say let the market decide. On one hand you have the activists, and yes I think of late things have got a bit over the top, but, the activists do their thing and the political people do their thing, people help out who they want to help out, stop bitching about each other, see what group gets liberated first, my money is on the activists. I think Ian and Sam, and Heika are stepping it up a notch, taking it up to the next level, it’s going to be very uncomfortable to watch and yes, a lot of people are going to have a shit fit, oh well, to bad, like I said, let the market decide. For years I always thought if I would just ignore the state and people ignored it with me that it would go away, well, it won’t, it is still here and it just grows. I personally think the only way to end this quickly is to stop paying all taxes, starve the beast, if people didn’t pay any taxes at all the whole bloody thing would go away, but that’s a very hard thing to do. Although I think with the coming depression government is going to be rolled back a lot, the NYT did a recent article:
http://www.nytimes.com/2010/08/07/us/07cutbacksWEB.html?_r=1&scp=1&sq=no%20bus%20service&st=cse
Andrew, you need to learn to read better, I saw it right away:
644:2 Disorderly Conduct. – A person is guilty of disorderly conduct if:
…
III. He *purposely causes* a breach of the peace, public inconvenience, *annoyance* or alarm, or *recklessly creates a risk thereof*, by:
(a) Making loud or unreasonable noises in a public place, or making loud or unreasonable noises in a private place which can be heard in a public place or other private places, which noises would disturb a person of average sensibilities; or
(b) *Disrupting the orderly conduct of business in any public or governmental facility; or
(c) Disrupting any lawful assembly or meeting of persons without lawful authority.*
I see no reason that a judge wouldn’t say that “posting the Keene Drinking Game and the online discussion that followed, and then showing up with said (mock?) beers in a (pseudo?)-violation of the Open Container ordinance” wasn’t close enough to “purposely causing annoyance or recklessly creating such a risk by disrupting the business and/or meeting”
As soon as they walked into the room, and took the ‘beer’ out, they went from a potential act, to a real physical act (whether you found it disruptive is irrelevant, cause the council did, and in causing _annoyance_, that is enough to trigger the entire charge, and even the risk of annoyance is enough to trigger the charge.
Again, IANAL. But I’d take a bet that a judge, especially any judge looking at the history of the defendants’ ‘disruptive’ behavior in court(s), would uphold the charge as valid.
Open Carry wouldn’t meet that standard, BTW, because your open carry isn’t _purposely_ intended to cause alarm. The postings for Keene Drinking Game clearly show purpose to ‘annoy’ at a bare minimum.
Seth, you are mistaken because Heika, who was also drinking a container was not arrested. If Ian and Sam were being disruptive then Heika should have been arrested as well because she was equally being disruptive. But she wasn’t and they weren’t. But was were Ian and Sam arrest? Oh that’s right, they didn’t consent to a search. They didn’t cave to give up rights supposed to be protected from government aggression and they were penalized.
FYI, I can read. I read the forum post in which Ian wrote the text of the complaint that provides the charge, and it reads the as follows:
purposely causes a breach of the peace, by disrupting the orderly conduct of business in any public facility, to wit, disrupting a public forum and refused to leave, after a request by Chief Meola to desist and leave.
Merely sitting in the audience drinking from what someone could believe is a beer bottle doesn’t constitute a purposeful disruption that would be illegal. I suggest that you read State v. McCooey, 148 N.H. 86 (2002). The Court found in that case that possible disruption cannot constitute disorderly conduct under the same paragraph Ian and Sam were charged under. Further, the Court ruled:
We will not presume that a defendant’s conduct caused a disruption when such a charge is unsupported by evidence. Cf. State v. Murray, 135 N.H. 369, 373, 605 A.2d 676 (1992) (court [***4] will not presume persons were inconvenienced, annoyed or alarmed by defendant’s conduct)
“Close enough” to be disorderly conduct doesn’t equate to sufficient evidence. You actually need the conduct to match was is prohibited by the statute. Pseudo violations and mock containers just don’t cut it. Even passively mocking people doesn’t cut it either. I can mock or have someone believe that I am mocking them at a meeting and do so in a manner that doesn’t disrupt the meeting. It appears that Ian and Sam did just that. The only reason they were arrested was for protected speech and their presence in the chambers drinking from a brown bottle that said “not a beer” on it. Its not like they actually drank water from a Budweiser bottle.
Further worth pointing out that the complaint doesn’t actually say what the disruption is. That is kind of important since its the entire case! When you don’t put something in the complaint, its going to be awfully hard to prove that in Court. Notice the wording of the complaint references a “disruption” that has no specificity. Merely sitting in the audience under that language could constitute a disruption under their esteemed logic.
Something that would have been more persuasive would have been:
purposely causes a breach of the peace, by disrupting the orderly conduct of business in any public facility, to wit, disrupting a public forum by frequently making burping noises, clinking glass bottles, laughing loud enough for the entire room to hear, etc. and refused to leave, after a request by Chief Meola to desist and leave.
That would have been something to count as a disruption. Sitting quietly, drinking from a bottle… not so much.
I come back to the fact that Ian and Sam were arrested but Heika was not. This case is not about disruption, it is about obedience and beverage containers. The fact that the Mayor read off a pre-printed script about alcoholic beverages means someone knew there was a possibility that people may have beverages. But, when Ian and Sam asked the Mayor who he was referring to the Mayor didn’t respond and took a recess. Just because the Mayor and/or Police Chief thinks you are breaking the law, your actions don’t translate into disruption – unless you are actually causing a disruption. Sitting in the audience, drinking from a bottle surely doesn’t count. Just because people may have assumed or thought what was in the bottle or that Ian and Sam may be mocking the Council. That doesn’t mean that they were, or that their actions were purposeful to breach the peace.
Further, a judge shouldn’t be taking into account previous actions when making decisions on an unrelated manner. Any such references you may be referring to would never make it into evidence. Or if they did Sam and Ian would have an easy time winning their case on appeal.
Open carry is the same as Ian and Sam’s case because open carrying has the potential to cause alarm and is constitutionally protected activity. Especially if you know that if you walk down Main Street in Town X the police are going to be called because you’ve done it five times in a week.
There is no difference here, Ian and Sam have made it perfectly clear that they didn’t have a purpose to disrupt the proceedings. Rather they wanted to point out the absurdity of the open container ordinance and have fun at the Council’s expense. In my opinion, the Mayor and Police Chief overreacted and overplayed their hand; allowing Ian and Sam to make their point that the open container ordinance is unenforceable when people know their rights and stand up for them.
Andrew, having read both cases, I don’t think either applies.
1) There are people who claim they were annoyed, besides arresting officers.
2) There is evidence not of only of that (on video), but of the intentional planning of that disruption. I’ll refrain from doing the job of the prosecutor for him by listing them, but if at even one post is damning, and show intent, this is going to be a cakewalk for him.
Let’s agree to disagree… IANAL, and frankly, I don’t _want_ to see Ian and Sam jailed, but I replied because Brad’s post was quite wrong IMHO.
Seth…. you don’t have to keep calling yourself anal on my account of thinking you’re wrong. 
1) There are people who claim they were annoyed, besides arresting officers.
Just “claiming to be annoyed” does not equal a disruption. What ACT did they actually do IN THE MEETING which could possibly be considered to have disrupted the meeting?
2) There is evidence not of only of that (on video), but of the intentional planning of that disruption. I’ll refrain from doing the job of the prosecutor for him by listing them, but if at even one post is damning, and show intent, this is going to be a cakewalk for him.
The plan could have claimed to ACTUALLY disrupt the meeting… but the reality is that the activism did NOT disrupt the meeting.
Just because some government officials THOUGHT there was alcohol being consumed does NOT mean there was alcohol being consumed.
Just because some government officials were unable to ascertain if alcohol was being consumed due to the restrictions on searches in the constitution does NOT mean that there was a disruption.
No one can point to anything that Ian or Sam actually did at the meeting that changed the actual proceedings. Everything there would have been exactly the same if they had not showed up.
It was the choice of the mayor, police chief, and city manager to start an investigation into possible illegal conduct. Just because Ian and Sam asserted their rights does not mean there was a disruption.
Bradley –
What is “Part I, Article 19″ of the Constitution?
My understanding is that the Constitution is first separated into seven Articles. Then, each Article is further separated into Sections, and then Clauses.
Assuming you meant “Article 1, Section 19″, Article 1 does not have 19 Sections.
Assuming you meant “Part 1″ is the original document (not counting later amendments) and “Article 19″ of this original piece, the document does not contain 19 Articles.
So, can you help me understand what part you are making reference to?
Thanks!
So, can you help me understand what part you are making reference to?
I apologize sir, I was referring to the New Hampshire Constitution. I should have been more specific about that.
Part I, Article 19 of the New Hampshire Constitution is the equivalent to the US Constitution’s 4th Amendment.
it is also far more restrictive than the 4th Amendment.
No, I’m the one who owes an apology. Re-reading what you originally wrote, I see that you specifically mention “US Amendment 4″, and the implied distinction is that the previous thing mentioned was not part of the “US” Constitution.
Sorry for the confusion, thanks for clarifying.
Culmination of this post:
slave 1-”yea, da massa, he jus ain’t right”
slave 2- “yup.”
slave 1- “so wat tyme u gittin up to plow da fields?”
slave 2 – fo in da monin.”
slave 1 – “goo nite.”
slave 2 – “goo nite.”
Greetings,
If I may make a suggestion…
Run for Keene City Council.
Pressure from the outside may not bring the changes that you want to see in your city nearly as quickly as pressure from within.
Pick a leader from your ranks. Dress them for success. Find out the election rules and requirements. Do what needs to be done. Go door-to-door, business-to-business and practice listening to what is important to them. You may not agree with them, but you are willing to listen, which is a LOT more than the current local leadership.
This is a long process for change. But it will be a change for a better Keene.
It’s time to get involved…
JJ Swiontek
Denver, CO
Hi JJ,
There are a lot of people in NH taking this approach, and some even in Keene. Most of the activists in Keene, however, favor more of an “outside the system” approach.
My opinion is that we need both kinds of activism to achieve success.
I encourage you to come to NH and get involved in the political process — there are great pro-liberty organizations here, like the NH liberty alliance, which you can learn more about at nhliberty.org
In addition, NH politics is fundamentally more accessible and responsive than just about any other in the country. Did you know that the NH legislature is the third largest body of representatives in the western world, after the US congress and Parliament? Reps get less than $200 a year, work part time, have no offices, and represent only a few thousand people each.
This site is not focused mainly on inside the system activism, but if that’s what you’re interested in, I encourage you to come to NH asap 
Seth,
It appears you posted and then removed it… I wont re-quote what you posted out of respect for whatever reason you had for deleting it…
BUT, I will assert in response to it that the “City of Keene” doesn’t exist. There is no such thing.
It is neither a person, place, or thing. I am fairly sure this is Ian’s position… so I would agree with Ian on this issue and I think this is what he is trying to point out to KPD officers by repeatedly asking them what the City of Keene is.
Wouldn’t this be a case of violating their First Amendment Rights to free speech? It would seem that this would be considered protected expression since they were protesting a government policy. Would they have been thrown out if they had t-shirts protesting the policy? Or if they had a protest sign? Instead these guys chose to protest the policy by drinking from a bottle that looked like a beer bottle. They did not violate the law because they did not have alcohol. It was the clown of a counsel member that interrupted a government meeting by stopping it an calling in the police.
Wouldn’t this be a case of violating their First Amendment Rights to free speech?
Absolutely… that too.
I am no attorney, but I am fairly skilled at legal research and am also quite knowledgeable about case law pertaining to 42 USC 1983. There are numerous 1st Circuit Court of Appeals cases that I’ve found that support the position I take in my blog.
What Ian and Sam did is a clearly protect right: American citizens quietly, peacefully, and lawfully protesting a government policy they disagree with. Your comparison with wearing a t-shirt and holding a sign is right on.
Not only were they NOT breaking the law… but the protest was planned and the beer bottle was labeled “NOT A BEER.”
I think that this case will embarrass the City of Keene.
Brad, not sure what you are talking about, I didn’t remove or delete anything.
And like it or not, the City of Keene certainly _does_ exist. It’s a legal entity created by the State, with real boundaries, and given certain legal abilities to regulate and control, via the power of the State of New Hampshire.
You can _believe_ it shouldn’t exist, but it does exist.
The first step to ending the power is admitting it exists.
Listening to the audio that was added, I remain convinced that Ian and Sam were actually disruptive, but not because of the bottles, but because they started talking and arguing with the Mayor during the meeting.
Monica might have a legit case of rights violation, as she was asked to leave solely because she had a bottle, and refused to be searched…
Heika gives up her bottle, and is allowed to stay, because it’s just water, and the cops defend her right to stay to the Mayor… The guy with the can is allowed to stay (I believe), so it’s clearly over the bottles that are the issue with those who are silent.
I wish Sam had captioned the section with him and Ian sitting under arrest talking to the official (Jim McLean?) What was discussed? That is the big mystery…
Being what I am, I feel the need to don the mask of ObviamNero. This act of civil disobedience, boys, is not a poor ploy, however, it is childish and as such creates a reasonable lack of urgency to those who do not feel as you do. You are wasting your potential and reputation on stunts that will in the end, have little effect.
Seth, you are quite wrong on nearly every count, however, you bring forth a fair point. The officer did have probable cause. To detain both Ian and Sam. The officer himself was informed that there were individuals with alcoholic beverages or containers by a government official. The officer then moved forward, based upon this information, and proceeded to ask permission to search the property of the three. He cleared the female, but the two men invoked their right to deny search and seizure.
The officer had several things to work off of here:
1) The officer was acting upon the word of the government official.
2) The officer saw the labels “not a beer”.
3) The female’s bottle contained only water.
4) The meeting was in an unusual recess, where a government official refused to continue without the removal of the suspected beverages.
5) The officer may presumably have seen the flier sent to the council?
1 gives probable cause.
2 does not remove probable cause. A bottle can be relabeled, refilled, etc.
3 does not remove probable cause. The other two may still be consuming alcohol.
4 could imply disruption depending upon the perspective of the officer.
5 does not give probable cause to search everyone with a beverage, but the peculiar behavior (the deliberate swigging and playing along to the drinking game, and the acting of events occurring within drinking culture) gives the officer probable cause to investigate further and detain an individual until he can determine whether a crime has been committed.
There are also numerous arguments against individual probable cause:
The government official did at no point indicate whom he was referring to.
If there was no odor of alcohol, there is in all likelihood no alcohol consumption occurring. It is an obvious odor the officer should be aware of. A sensitive nose can smell it off the breath of an individual within three paces, as the officer clearly was for the majority of the detention.
Since the smell of alcohol can’t be admitted as evidence, however, it is still evidence of probable cause for arrest.
I will point something else out. You have no right to the Fourth Amendment where “The individual has no reasonable right to expect privacy”. It was previously stated that you were all in a public location with brown glass containers. It was quite reasonable that these were alcoholic containers, and the inside of an open container does not fall into the category of “reasonable privacy”, given the actions of those in possession of it.
In the end, this boils down to a reasonable arrest.
I agree with your overall message, but have not seen injustice. Your acts of Civil Disobedience are over petty non-issues that in the end, will not help fulfill your goals because they will not create such public acclaim and outrage as to make a difference, all the while, you create a trail of deliberate acts of petty provocation of officials that so damages your reputations that when you do find yourself suffering from injustice, you will have zero credibility or dignity left in the eyes of the mass media that you will need to spread your cause.
I want to have it known that I am a civil dissident, much like yourselves, and share many of your viewpoints, but I will argue that revolution for the sake of individuals using the law in abusive ways is not going to solve anything.
We need a cultural revolution, and ideological revolution, where information is shared, and ideas are judged not based upon the standing, education, or lack of lapel pins, but based upon the merit of the idea itself.
Education, involvement, and the challenging of old ideas with new ones is what we need. But we cannot tear down what does work just because of some dings here and there.
Share your ideas, challenge others to think for themselves! In the end, our actions have no consequence without someone to benefit from them. It’s the next generation that is important. It’s not your rights you have to defend, it’s your childrens’. In the end, however, all that is important, is what we teach to others so that it may reach the next generation. That is all that matters, because their actions will matter.
So, boys, I’m not telling you to work within the system. I’m telling you to openly, and candidly challenge it logically. Jamming wrenches in the gears only demonstrates that you have broken some gears. Pointing it out after you do so makes you an asshole. Complaining about the fact that the gears are broken makes you an idiot. Spreading public outcry through demonstrated, and not manufactured cases is a better way.
Yes, our law isn’t perfect, but there’s no sense wasting your credibility demonstrating something that everyone is already aware of. Get in there and help. It’s a lot easier to criticize from without than to improve from within.
And had this been a traffic stop based on a motorist flying by (on the maximum but legal speed limit needle) with a bumper sticker stating, “Turn Signals are for Pussies, Cowards, and small appendaged Cops with nothing worthwhile to prove, down thar’ “, what would have been the outcome should the motorist have merely indicated a turn with their outstretched arm outside their window, according to whatever law in their locality?
Same thing really.
Taking authority to task for the fine print will always deliver the same results.
But it’s a fight well worth fighting.
Hats off, fellows.
You punked self obsessed authority.
There’s a little Boston Tea Party in all of us, but you again had the bags and strings to dunk them.
PS: Remember to treat the public official and the person holding the same office with two distinct approaches. One is a machine of their environment, one is a reasoning person like everyone else… two persons. Help them to be a happy singular entity. That’s where great government starts.
For a brief investigatory detention, an officer needs a “reasonable suspicion” that the person(s) to be detained was/were breaking the law or is/are about to act on a plan to break the law at the time the detention begins. These types of detentions are commonly called “Terry stops, and they must be brief and focused. They may not last longer than the time it reasonably would take an average officer to ask enough questions or make enough visual observations to either confirm or dispel the initial suspicion. A reasonable suspicion is less than probable cause but must be more than mere hunch and is evaluated by reviewing courts on a “totality of the circumstances” test..
If an officer develops probable cause during a Terry stop, i.e., finds out enough information to give the officer more than merely a reason to suspect wrongdoing, then depending on the circumstances, the officer can continue the detention while seeking an arrest warrant or a search warrant. Or, if there are exigent (emergency) circumstances, the officer can move straight to arrest or search mode. If there is time to get a warrant with no danger that suspects will escape, that confederates could be warned or that evidence might be destroyed, then a warrant must be sought.
I’m not certain from what I’ve read, but it seems as though Sam’s and Ian’s beverages were not alcoholic beverages, but looked kinda-sorta like they could have been. if that’s true, then I would agree that the men were tossed from the meeting because of their attitude of noncooperation. I also agree with the earlier comment that brought up the odor of alcohol. If the chief got within a few feet of these guys and failed to detect any odor of alcohol, then the reasonable suspicion that allowed the detention had been dispelled and the detention needed to end, and in no way was there probable cause for an arrest and no valid reason for ejection.
It would be an interesting test to post to the site prior to the next meeting that the same activists plan to attend but they will under no circumstances be carrying alcohol or have access to any alcohol. Then, at the meeting, every time one of the drinking game triggers is observed, have the activists shout in a boozy gang-voice: “Ho!!!” and take big swigs of kool-aid or soda from clear glass or plastic containers that make it clear that the beverages do not resemble any known wine, beer or liquor. Would they be arrested, ejected or harassed then for disrupting the meeting? (BTW, I guess the council must be too stupid to figure out that all it needed to do to avoid this whole issue was to post a sign at the door stating: “No beverages of any kind allowed in council chambers during council sessions.”
What if activists attended a meeting, or every meeting, and booed loudly every time they heard something with which they disagreed. The United States Supreme Court has ruled that public acts of public officials are at the very core of the first amendment — we’re not talking about your right to advertise a product you’re selling, we’re talking about who controls the government and how they go about doing so and how much say each person has in the answers to those questions. For government to restrict the very core of a citizen’s first amendment right requires that the government interest to be served by the restriction of rights be compelling, i.e., a matter nearly of life and death. And the measures taken by government must be restrictive of citizens’ rights to the least degree possible to bring about or promote the compelling government interest that justifies the restriction.
The Keene council and local gendarme were in no way serving a compelling government interest, absent an actual disruption. (BTW, disruption does not include asking pointed questions of local authorities — particularly when those authorities are making noises about throwing people out of meetings without legitimate cause. And while I’m on this subject – disturbing the peace statutes ordinarily are interpreted without reference to whether the so-called victims actually believed themselves to have had their peace disturbed. That kind of subjective standard would lead to all kinds of disparate outcomes and it would be impossible for one to predict whether, for example, one’s planned borderline behavior at a public place would cross the line into disruptive behavior or not. Instead, these issues usually are decided on the basis of a “reasonable person standard.” The question becomes: “Would a reasonable person who was exposed to the behavior in question feel that his or her peace had been disturbed?” There are cases, however, that import just a bit of the subjective standard back into these kinds of cases by holding that police and public officials ought to be considered to have a higher tolerance for verbal abuse and vague, inchoate threats than would the average person). [Related point: the justification for punishing those who disturb the peace is not because society deems as bad all loud or obstreperous behavior, per se; the justification for criminalizing disturbing the peace of (an)other citizen(s) is because of the danger that disruptive behavior poses of causing tempers to flare and for fights to break out. To be guilty of disturbing the peace, one should provably have been close to inciting riot].
As one who fairly often orders take-out pizza and then eats a picnic near whatever pizza place I order from, and as one who enjoys a good beer with my pizza, I agree that open container laws are absurd. They certainly don’t stop one from getting ripping drunk indoors and then going out and becoming a general nuisance around town. I think these laws harken to a time when it was not considered genteel to allow a lady to see one imbibing. And since one is likely to encounter ladies out of doors … (Ironic that smokers are being pushed out of doors while drinkers are confined to indoors).
That being said, this particular protest seems to be developing its own life force and that life force seems, as many have argued, out of proportion to the problem these laws cause. Here in Phoenix, I’ve had cops drive right past me and my open container nearly every single time I’ve arranged a picnic for myself and not once has any of them stopped to talk to me, to cite me or to arrest me.
I highly recommend Season 4 (I think; or was it Season 3?) of “The Wire.” A police division commander in Baltimore decides to create a de facto drug legalization zone in his district — quickly dubbed by street cops “Hamsterdam.” But before making that decision, sort of on the way to making the decision, the commander (“Bunny”) talks to some officers at a daily briefing and begins reminiscing about the terrible problem Baltimore police used to have with open container laws. They got endless shit from even the good people on their beats if they enforced the law, but endless shit from supervisors if the supervisors could drive around a beat and see men openly drinking alcohol in public.
Bunny wraps up his story by reminding his officers that the solution finally hit upon — one that satisfied everyone — was to let it be known on the streets that if you just keep your bottle inside a paper bag that hides the bottle, you will never be arrested or cited for open container.
So, yeah, it’s a stupid law that shouldn’t be on the books. Is it really being enforced strictly in Keene? Here in Arizona, there’s a law on the books against committing adultery. No one’s been charged under that law, though, for many decades — if anyone ever was. So, if open container laws aren’t being vigorously enforced in Keene, why not focus these tactics and this kind of intelligence, chutzpah and energy on bullshit laws that are being enforced. (For example your marijuana CD events. Bravo)!
BTW, I’m a criminal defense lawyer and a proud libertarian, and I just stumbled upon this website today. I’m damned glad to see folks out there taking real risks to demand real freedom. It’s a delightful movement you’ve got going on, and I hope it snowballs into an unstoppable force!
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