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Violent Facebook Posts Could be a Felony

America is well-known for its constitutional protection of free speech. The First Amendment to the U.S. Constitution states “Congress shall make no law… abridging the freedom of speech….” However, your right to say and do as you please remains restricted. Multiple areas of speech are not protected by law including child pornography, obscenity, libel and slander, and true threats. Anthony Elonis, a Pennsylvania resident, became the center of a case that questioned the boundaries of free speech and the legal standard for determining when someone is guilty of making threats after he made violent Facebook posts. Elonis’ case went to the U.S. Supreme Court last year. In an opinion by Chief Justice John Roberts, the court determined that a standard of negligence was not enough to convict an individual of making threats under federal law. Instead, a defendant accused of making a threat must have the correct mental state for the crime.

If you have been charged with threatening a person or group under federal law, contact a Pittsburgh criminal lawyer from Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC at (412) 281-2146 as soon as possible.

Federal Law Against Making Threats

Under federal statute 18 U.S. Code §875(c), it is illegal to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” In this situation, “interstate” means to be carried between states or to cross state lines. Communications made on an online platform like Facebook or through e-mail and instant messaging are considered to have traversed state borders and therefore are interstate communications under federal law.

The question that arose in Elonis’ case was not whether his Facebook posts were interstate commerce – that was clear – but what was the standard the court should use to determine if he violated federal law. Did the threats have to be purposeful or could he be found guilty because of reckless behavior or words online?

Elonis v. U.S.

Anthony Elonis was arrested on Dec. 8, 2010, after posting violent rap lyrics on his Facebook page multiple times. The lyrics contained threatening and violent language toward his coworkers, ex-wife, a kindergarten class, local police and a specific FBI agent. After Elonis’ posts were perceived as threats, he was charged with five counts of violating 18 U.S. Code §875(c).

At trial, Elonis’s attorneys argued that the standard the court should use to determine guilt was whether Elonis had a subjective, actual intent to threaten other individuals. The court rejected this theory and the jury found Elonis guilty on four counts by using an objective standard. He was found innocent of threatening his co-workers and guilty of threatening the others. Elonis appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the lower court’s ruling. The appellate court found that an objective standard of whether a reasonable person would perceive the posts as true threats was the appropriate legal test.

Elonis appealed to the U.S. Supreme Court arguing that the reasonable person standard was incorrect. The Supreme Court agreed with Elonis that the reasonable person standard was not enough and a stricter standard that looked at the defendant’s mental state was necessary. The case was reversed and remanded back to the appellate court in an 8-1 decision. While Chief Justice Roberts failed to explain the relevant standard in detail, he did quote a previous decision, stating “wrongdoing must be conscious to be criminal.”

Elonis Found Guilty a Second Time

Elonis’ case was sent back to the Third Circuit, which had to re-determine if he was guilty of violating the federal anti-threat law under a higher standard than the reasonable person test. The court was required to look at whether Elonis intended to threaten others and whether he knew his Facebook posts would be perceived by those mentioned as threats. In other words, was Elonis conscious of his wrongdoing or was he simply reckless in posting violent lyrics?

The appellate court found there was sufficient evidence that Elonis knew his posts were threatening and there was no need for a new trial or jury. His convictions were reinstated.

When Do Facebook Posts Become Illegal?

While the case of Elonis v. U.S. has been decided, there are still many questions surrounding free speech on the Internet, including when reckless, violent or allegedly threatening posts stop being protected speech and become a felony. You have the right to say things in anger and to make statements that involve violent content. However, it is clear that when violent Facebook posts or other online communications threaten specific individuals or groups and can be perceived as real, these posts can lead to federal felony charges.

Contact a Pittsburgh Criminal Lawyer

If you have been charged with making threats online or harassment, you need to work with an attorney who understands how Elonis v. U.S. impacts your case and how to build you the strongest defense possible in relation to a subjective standard of intent. Let the experienced legal team at Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC aggressively defend your right to free speech in court.

Call today at ((412) 281-2146 or contact us online today.

Arrested for Resisting Arrest

Resisting arrest is a criminal offense that is sometimes called obstruction. It describes a number of things that interfere with a police officer attempting to make a lawful arrest. Resisting arrest may involve fleeing from a police officer while being arrested, threatening or attacking an officer during an arrest, providing false Identification, or struggling to get out of restraints put on by law enforcement.

While most people understand you can be charged with resisting arrest after you’ve been brought in on another charge, recently, some have paradoxically been arrested for resisting arrest as an only charge.

Critics worry that resisting arrest as a sole charge could be indicative of abuses of police power, a serious and growing concern in recent years as both police brutality and camera phones continue to proliferate.

Some worry that police officers may use resisting arrest or obstruction charges to affect groundless arrest to “save face” in the event of even the most mild and appropriate dissension.

Recently, a San Francisco public defender was handcuffed and lead away when she tried to stop people from taking pictures of her client. A bystander captured the incident on video, which showed a plainclothes police officer telling the woman “if you continue with this, I will arrest you for resisting arrest.”

Concern over abuse of police power is at an all-time high amid several high-profile incidences of brutality or excessive force. Developing technology has given the public an unprecedented window into police conduct, and people are rightfully demanding that they uphold the rights and freedoms guaranteed by our laws.

An arrest for resisting arrest with no underlying charge to trigger the alleged “resisting” is problematic for obvious reasons. A former officer who was recently involved in an abuse of power incident said that “police sometimes feel they have to arrest someone to ‘save face'” or may improperly arrest someone due to fatigue.

If you’ve been arrested for resisting arrest or have otherwise been the victim of an abuse of police power, contact an attorney to discuss your case. Your lawyer will fight to protect your rights and advocate for your interests. An experienced Pennsylvania lawyer will investigate the circumstances of your incident and interview the arresting officer and any other witnesses.

You have the right to be free from an unlawful arrest, and we’re ready to help you protect those rights. For legal consult, please contact the Pittsburgh criminal defense attorneys from Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC today at (412) 281-2146.

Who Controls Police Camera Footage?

Police accountability has been a buzzword of late due to the public outcry over police involvement in the deaths of deaths of Michael Brown and other unarmed men. While we all want more police accountability for the benefit of everyone, it isn’t an easy thing to get. One method that has been touted as a possible solution is police body cameras.

Body cameras have a lot of potential to improve accountability in these types of cases, as there would be a clear record of what happened. Unfortunately, this only works if the camera is always running. If police themselves have the ability to turn off the cameras in situations that could get them in trouble or erase damning evidence, the footage becomes useless, or even worse, prejudicial against private citizens.

For this reason, issues arise over who controls footage. If police have no control of the cameras at all, privacy issues come up. After all, no one wants video footage of their arrest to end up on the internet—a situation that wouldn’t be out of the realm of possibilities with so much footage floating around. Plus, it could invade the privacy of officers. Obviously there should be some safeguard allowing them to turn off cameras to go to the bathroom, for example. Still, when police have full control of footage, the situation becomes vulnerable to abuse, undermining the purpose of the cameras in the first place.

Balancing Privacy and Accountability in Police Camera Footage

In order to better balance privacy and accountability, many have suggested that footage be automatically redacted and sent to be stored by some third-party entity—a part of the police force, but not the same department that would be affected by the content within the footage.

Automatic redaction (i.e. some automatic software program that would blur the faces and license plate numbers of all people recorded by the cameras) would ensure that private citizens do not have their face and private data widely available for no reason. Without an automated solution, police departments would need to edit the footage, opening the door to possible manipulation and abuse.

Furthermore, trusted third party storage would ensure that the footage were as unbiased as possible, although any video will inevitably contain some bias. No overlap between the people affected by the footage and those manipulating or accessing footage minimizes the risk of abuse.

No matter who controls the footage, though, any police force utilizing cameras needs clear, open policies governing camera use. Otherwise, the body cameras will not serve to actually increase police accountability. Here in Pittsburgh, where police camera use has steadily increased over the past year and looks to continue, the question of how to store the footage is particularly apropos. We must push to improve both the privacy protections and accountability related to police cameras to ensure it’s not just a wasted investment.

In the meantime, we must all count on the minimal checks for police accountability and privacy protections that are already in place to ensure our rights are protected. If you believe that you are a suspect in a crime or have been arrested, an experienced Pittsburgh criminal defense attorney is the best first line of protection for your rights. Call Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC today at (412) 281-2146 for a free consultation on your particular case. We will always fight for your rights, no matter the situation.

Don’t Resist Law Enforcement – Protect Yourself, Let Us Fight for Your Rights

It has become all too clear in the past year that we have a problem with the way that law enforcement sometimes interacts with citizens. Here in Pittsburgh, problems may not have gotten to the point that it has in Baltimore or Cleveland, but those of us that interact with law enforcement on a regular basis have seen numerous examples of tensions and problems in communications between average citizens and police.

With so many misunderstandings, it is easy to feel like the police are out to get us, but in reality, law enforcement is supposed to keep our city safe and treat us fairly, regardless of race, ethnicity, national origin, or religion. If you feel that an officer of the law has violated this principle, it is normal to feel angry or mistreated. You should feel these emotions. It’s important for your own sake, though, not to resist law enforcement. Not only can it escalate an already tense interaction and potentially get you hurt, but it could also get you arrested. Even minor resistance is a misdemeanor; if an officer is hurt, you could be charged with a felony.

This doesn’t mean you should relinquish your rights, of course. You have the right to remain silent. If you want to use it, politely say so. You have the right to not consent to a search of your vehicle, person, or home. Don’t be afraid to speak up. Just remember that if police decide to conduct a search or take you in anyway, you are better off doing as instructed without a fight. Protect yourself first. Don’t let yourself become a tragedy of injustice. Instead, immediately call a Pittsburgh criminal attorney like us at Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC. Let us fight for your rights.

How to Interact with Law Enforcement

In many situations, though, violence and violations of your rights may be able to be avoided if you know how to interact with law enforcement in a way that protects yourself first. The following tips should help you to have better, more positive interactions with police.

  • Always stay calm and polite. It is tempting to be rude to someone if you feel they are being rude to you, but don’t. If you maintain a polite, calm demeanor, you are much less likely to be accused of resisting.
  • Ask if you are free to leave. If you are, give a polite goodbye and calmly walk away. If you are under arrest, you have the right to know why and the right to an attorney.
  • Remember that you have the right to refuse a search. Your consent matters in court. You should not physically resist if police push forward with a search, but any evidence found may be inadmissible.
  • If requested, give police your name, address, and date of birth. You have the right to not answer any other questions, including any related to your immigration status. Just tell the officer politely that you are invoking your right to remain silent.
  • Never lie. If you give any information, it must be the truth. Lying to law enforcement is illegal.
  • Do not run or resist arrest, even if you are sure you did nothing wrong. You will have a chance to prove your innocence with the help of a Pittsburgh criminal attorney later. Resisting only causes you more problems.
  • Ask for a lawyer immediately. You are entitled to call one or ask for a public defender. Don’t say anything, sign anything, or agree to anything without a lawyer.
  • Never try to challenge police conduct on the street. If you see injustice, you should report it and record it if you can, but the place to make your accusation is not out in public. Don’t threaten to make a complaint or resist while far from a station. Instead, tell an attorney about the actions of the police, and file a formal complaint with internal affairs or the Citizen Police Review Board of Pittsburgh.
  • Write down everything you remember about the incident right away. This includes badge numbers of police and names if you know them. This will help you better remember what happened.

Hopefully, these tips will prevent you from an unpleasant interaction with law enforcement.

Sadly, incidents of injustice continue to be reported every day. We believe no person in Pittsburgh or America as a whole should have his or her rights violated, and we will fight to ensure that you are protected. If an interaction with police goes south, call our Pittsburgh criminal attorneys today at (412) 281-2146 to report the incident. We will protect your rights every step of the way. Don’t fight law enforcement; let us fight for you.

Tailgating & Public Intoxication Charges in Pittsburgh

There is nothing more fun this time of year than tailgating, whether it’s at Heinz Field, Consol Energy Center, or one of our local Pittsburgh college campuses. It’s fun to spend some time with your friends, enjoying good food and a few drinks before kick-off. However, as winter approaches and the wind picks up on the Allegheny, people are tempted to drink a little more in hopes of staying warm before the game, often drinking more than they should. If you get out of hand, you run the risk of a public drunkenness charge in Pittsburgh.

Can I be arrested for drinking while tailgating?

Although specific private parking lots at and around Heinz Field where people like to tailgate for Steelers and Panthers games may allow drinking, any time you leave private property your actions are subject to police scrutiny. Police can charge you for an open container if you are walking around with an open beer between bars or between the car and the stadium. Nonetheless, the harder charge to avoid is public drunkenness.

In Pennsylvania, a person can be arrested for public drunkenness if he or she is “in any public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.” As you can see, this is a relatively wide definition. When you are tailgating and excited for a game, you may be loudly chanting or running around in a way that could be considered annoying to an officer. This means that the police could arrest any person who seems out of control or simply more intoxicated than the other people in a group. If you stand out for some reason to a police officer, you could be questioned. It is important to remember, though, that police around the stadium during tailgates usually aren’t targeting people to arrest for public drunkenness, so by simply staying by your car in a place where drinking is permitted, you may avoid these charges altogether.

What should I do if am being arrested for public drunkenness at a tailgate?

Unfortunately, someone is arrested at almost every game for public drunkenness. If the unlucky person is you, remember that you do not have to incriminate yourself. If a police officer asks you how much you have been drinking, you don’t have to answer. You have the right to politely decline their questions. Just remember to be polite and to try not to get angry or belligerent. This will only serve as further evidence of your intoxication, and could even lead to other charges.

You also are not obligated to consent to a breath or other chemical test if you are only under suspicion of public drunkenness. Police may suggest that you consent, but this is only a law for motorists. If you are not driving, it is your choice. If police cannot definitely prove that your behavior was caused by excessive consumption of alcohol, the charges may be dropped. Finally, even though public drunkenness is only a summary citation, it is important to get an attorney to represent you before you go to court to face the charges. The perception associated with a public drunkenness charge can hurt your career and cost you significant fines and even jail time. It is best to see what experienced Pittsburgh criminal lawyers can do to get you a plea or get the charges dropped. If you have been arrested for public drunkenness or another summary offense, call Mike Worgul and Samir Sarna from Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC right away at (412) 281-2146 to see how we can help. We are available 24/7 for a free consultation.

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