Saturday, April 30, 2011

Prevention of "Breach of the Peace"

The UK police got creative before the the William & Kate marriage. In this video an anthropology professor and two of his fellow demonstrators were arrested a day before the marriage because the police would "foresee" that they would breach the peace on the day of the marriage...

The US has a history of arresting people to "prevent" a breach of the peace. Here is a bit from a 1988 Supreme Court case, Texas v. Johnson. The text is taken from here:
MS. DREW: ...Throughout the course of the appellate history in this case Texas has advanced two compelling state interests. One is the preservation of the flag as a symbol of nationhood and national unity. The second the preservation of a breach of the peace.
QUESTION: Prevention of breach of the peace?
MS. DREW: Yes, Your Honor, prevention as opposed to punishment for a breach of the peace.


MS. DREW: ... I’d like to turn very briefly, if I may, to the breach of the peace interest. We do feel that preventing a breach of the peace is a legitimate state interest. And, indeed, the Texas Court of Criminal Appeals recognized that preventing a breach of the peace is a legitimate state interest.
Again, the Texas legislative has made a judgment in this area that public desecration is likely to lead to violence that it can lead to violence. And I think the record in this case is abundantly clear that it is merely fortuitous, it is our good luck that a breach of the peace did not occur as a result of this particular flag desecration.
The appropriate test to be utilized in this area has not been decided by this court.
There are two lines of cases. One is that public desecration of a flag is inherently inflammatory. Another is that immanence must be shown. And I believe that this record is very clear that Texas could regulate under either theory.
And, again, the goal is a prevention of a breach of the peace, not a punishment for a breach of the peace. And in analyzing this particular statute, the Texas Court of Criminal Appeals utilized a much higher standard than any court has ever used before.
They went to an actual breach of the peace and they said well, there was no actual breach of the peace. That’s true. Individuals who were seriously offended by this conduct were not moved to violence. If they were, they exercised restraint.
But I don’t believe that that is dispositive of the state’s interest and because its interest is different, the standard is different. And I believe that the Court of Criminal Appeals suggestions in this regard are a bit too narrow; that is you have to show an actual breach of the peace, your purpose in a flag desecration statute is obviated. Some other statute would serve that interest, but not a flag desecration standard because its purpose is preventing.
If you look through the argumentation there is no questioning of the right to exercise "prevention" of a breach of the peace. I find this odd. What if somebody grabbed you off the steet and locked you up because they could "foresee" that in five years time you would become angry and drive your car into a public building injuring many and killing some people. Under the above interpretation of the law, that would be "grounds" for arrest. And surprisingly the above has no argument about how the police can "foresee" that this act would in fact lead to a breach of the peace. It is simply assumed that burning a US flag in the US would cause some "breach of the peace".

I'm surprised because I find it hard to make conclusions like this about the future. I think everybody would agree that it would be outrageous to arrest somebody for a "perceived" breech of the peace that is expected to happen five years in the future. In the above video the police are able to look into the future and tell that three people who belong to a street theatre group were going to create a "breach of the peace".

Isn't it wonderful that the state no longer employs ordinary police who enforce the law. Now the police have been significantly enhanced by clarvoyants and seers who can delve into the future and spot crime before it happens so that crimes may be stopped in their tracks. Yet another leap forward into the glories of the "future state" with all the "future benefits" of removing "future criminals" before the commit the crime. How elegant.

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