ATTENTION: DETECTIVE MURPHY, ORANGE POLICE DEPT 9/22/15 FYI: re OUR CONVERSATION ON 9/21/15 . I just wanted to provide you with some reading material and legal statutes (& related links) re aspects of freedom of speech. I thought you overly-simplified the matter too much in favor of the 7-eleven clerk & accomplice in terms of what the law allows, or forbids. Clearly, there are certain EXCEPTIONS to “freedom of speech” and the 1st Amendment. I think you KNOW this but for some reason chose to overly-simplify the matter totally in favor of the 7-eleven clerk. Even when I said the words “emotional distress” you objected and seemed to try to suggest that there was no such law whatsoever against “intentional infliction of emotional distress” . I beg to differ and have provided some reading material for you below. Sure, these may be matters governed by a civil court more so than a criminal court, but that does not make them any less “against the law.” To repeatedly emphasize the absolute 100% “legal right” of a person to use profanity and intimidating/abusive language towards a person seems to be not only contrary to the various exceptions to “freedom of speech” but could be an encouragement to such persons to continue to engage in what is clearly contrary to all aspects of good, civil, citizenship about which there is no argument. I don’t know what agenda there may be by the Orange PD, or specific persons employed by the Orange PD, to repeatedly emphasize the possibility of “trespassing” charges against me while minimizing the abusive behavior of the clerk, but it is clearly an “agenda” more so than based on rule of law. I have no long-term agenda to pursue this as a matter of “infliction of emotional distress”, nor did I have any pre-meditated agenda. But if it did go to court, it would be a matter decided by a judge and jury, not by a few police officers or detectives. Certainly, the detectives and police officers are entitled to their legal opinion, but ultimately it is a matter decided by the judicial process, not by the individual officers or detectives. I think you know that, but I have included the following reading material in case it is a matter of ignorance about the law: 1
‘Certain categories of speech are not entitled to First Amendment protection, including fighting words, true threats and incitement to imminent lawless action. If a person engages in profane fighting words or utters a true threat with profanity, those words may not be protected speech….” http://www.firstamendmentcenter.org/remember-profanity-isntalways-protected-speech
re “FIGHTING WORDS” “What does it mean for words to be "inherently like to provoke an immediate violent reaction"? It means that: 1.
The speaker said something reasonably likely to provoke someone else to react violently, AND
2.
When s/he made the statement, there was a clear and present danger that the other person would immediately erupt into violence. It doesn't matter whether the defendant intended to provoke a violent response from someone.” http://www.shouselaw.com/disturbing-peace.html#1.3 “This makes it difficult to prohibit catcalls and other types of verbal street harassment. But the First Amendment is intended to protect our rights in the context of political discourse and democratic debate. It
doesn’t mean that we have the right to use profanity or insult each other whenever we feel like it…” [emphasis added] Lawmakers can’t broadly prohibit speech, even when it is insulting or offensive to some. However, U.S. courts have ruled that the First Amendment does not protect speech that is likely to incite violence because “fighting words” do not contribute to democratic discourse and because society has a collective interest in reducing violence. As such, words or language that would incite a reasonable person to react violently may be legally prohibited. Many of the verbal harassment laws included in this guide either refer specifically to fighting words or prohibit taunts, insults, or other language that is likely to incite a violent reaction. Fighting words are typically prohibited by disorderly conduct, disturbance of the peace, and harassment laws.” http://www.stopstreetharassment.org/strategies/sshlaw-3concepts/
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California Civil Jury Instructions (CACI): 1602. Intentional Infliction of Emotional Distress—“Outrageous Conduct” Defined “Outrageous conduct” is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure. In deciding whether [name of defendant]’s conduct was outrageous, you may consider, among other factors, the following: (a) Whether [name of defendant] abused a position of authority or a relationship that gave [him/her] real or apparent power to affect [name of plaintiff]’s interests;(b) Whether [name of defendant] knew that [name of plaintiff] was particularly vulnerable to emotional distress; and(c) Whether [name of defendant] knew that [his/her] conduct would likely result in harm due to mental distress. [ALBEIT there is also “negligent infliction of emotional distress” which does not require a defendant to have “known” in a premediated manner that it might cause emotional distress, see http://www.west.net/~smith/distress.htm ] … “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 [185 Cal.Rptr. 252, 649 P.2d 894].) “[L]iability ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities… There is no occasion for the law to intervene . . . where someone’s feelings are hurt.’ ” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [160 Cal.Rptr. 141, 603 P.2d 58], quoting Rest.2d Torts, § 46, com. d, overruled on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 579—580 [88 Cal.Rptr.2d 19, 981 P.2d 944].) “ ‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress… , SEE https://www.justia.com/trialslitigation/docs/caci/1600/1602.html ALSO SEE https://www.justia.com/trials-litigation/docs/caci/1600/ http://www.thejordanlawgroup.com/case-updates-in-the-news/146-civil-litigation-the-elements-of-a-claim-fornegligent-infliction-of-emotional-distress http://www.legalmatch.com/law-library/article/liability-for-abusive-or-insulting-language.html https://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress http://www.lectlaw.com/mjl/to012.htm
SINCERELY, Philip A. Kok
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cc: Detective Maldonado & Sgt Monjaraz