By Anna Phillips | June 27, 2020 at 8:22 PM EDT – Updated June 29 at 3:58 AM
WILMINGTON, N.C. (WECT) – The firing of three Wilmington police officers for racist remarks allegedly caught on camera left many people with questions about why freedom of speech did not protect them and/or whether they could face criminal charges.
Elon University School of Law Professor and former Federal prosecutor Steve Friedland offers some insight into the interpretations of the First Amendment and how prosecutors pursue such cases.
“A prosecutor does — they have lots of discretion — and that, we see is part of this whole conversation; how should prosecutors use their discretion? That’s really big now in areas that we’re seeing protests and killings and it’s ‘what charges ought to be filed?’ Well the first question a prosecutor asks is ‘Can I prove this in court beyond a reasonable doubt based on proof?’ Friedland said.
The decision whether to press charges will be made by District Attorney Ben David, who has already dismissed nearly 90 cases in which one of the three former officers was the charging officer.
For example, in North Carolina ‘communicating threats’ is a misdemeanor.
To convict someone of this crime, a prosecutor will need to prove certain elements.
A person is guilty of a Class 1 misdemeanor if without lawful authority:
(1) He willfully threatens to physically injure the person or that person’s child, sibling, spouse, or dependent or willfully threatens to damage the property of another;
(2) The threat is communicated to the other person, orally, in writing, or by any other means;
(3) The threat is made in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out; and
(4) The person threatened believes that the threat will be carried out.
Friedland says prosecutors begin by gathering as much evidence as they can.
“Sometimes, the fact finding is difficult and it may take a while for them to gather all the evidence,” he said. “Other times, and we’ve seen this recently in some cases, charges have been filed pretty quickly, against police. Some charges are filed after months of what people on the outside see as no action.”
Some have asked why the officers’ language is not protected by the First Amendment.
To put it simply, Friedland says not all speech is protected; there are levels of speech where the top level includes politics and ideas which are protected and the bottom level includes things like threats and harassment which are not protected.
There are also limitations and lenience for private and public employers like governments who employee law enforcement officers.
“Government employees have some protection — and notice I said some — but it’s balanced against the government, i.e., the employer’s interest,” Friedland said. “The [reasons] they were fired indicate insubordination or speech that disrupts the job place, the work place.”
Friedland teaches constitutional, criminal and evidence law.
“So any officer can leave work and go to a political rally, for example, or say they like a political party,” he said. “That is outside the realm of their jobs, but if their speech interferes with that job and interferes with the leadership and the structure and the protection of it’s citizens and it tears apart the workplace, that will not be protected.”
“Not an example from what those three officers did, but an example in our actions and response to it. The way that we’re trying to heal—not only as a department but also heal the community’s relationship with this department because there’s been a breakdown of trust—and now, moving forward, we’re doing everything we can to heal that breakdown,” said Jessica Williams.
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