texas appeals court rejects brandon darby’s attempt to revive his defamation suit

Austin activist-turned-informant Brandon Darby traveled with a small group of protesters to the 2008 Republican National Convention (RNC) in St. Paul, Minnesota. A February 23, 2011 New York Times article stated that Darby “had encouraged” a plot to make firebombs and hurl them at police cars during the RNC. (The plot didn’t come to fruition.)

Darby never contacted the New York Times to request a retraction or correction. Instead, he sued the newspaper and the author of the article, James McKinley, for defamation. According to a Nolo post by attorney Emily Doskow,

“Defamation” is a catch-all term for any statement that hurts someone’s reputation. … A defamatory statement must be false — otherwise it’s not considered damaging. … People who aren’t elected but who are still public figures because they are influential or famous … have to prove that defamatory statements were made with actual malice, in most cases.

McKinley said his statement about Darby was based on conversations with Scott Crow and Jeffrey DeGree, the attorney who represented RNC protester David McKay. Crow told McKinley that Darby encouraged McKay and another RNC protester, Bradley Crowder, to take actions beyond peaceful demonstrations during the RNC protests. DeGree also told McKinley that Darby encouraged McKay and Crowder, both of whom pled guilty to federal criminal charges related to Molotov cocktails and were sentenced to years in prison.

Darby’s defamation suit was dismissed. On Wednesday, a Texas appeals court upheld the dismissal, finding that McKinley’s statement was not made with actual malice. On March 16, 2011, the New York Times published a correction regarding the February 23, 2011 article.

brandon darby will debate david mckay at tonight’s screening of a new documentary

Shortly after former Black Panther Malik Rahim co-founded Common Ground Relief in the fall of 2005, to assist Gulf Coast storm survivors following Hurricane Katrina, Brandon Darby began working with the organization. Darby remained an active member until sometime in 2008. He later testified that he became an FBI informant in November 2007.

In 2008, Darby traveled to the Republican National Convention in St. Paul, Minnesota, with Bradley Crowder and David McKay, among other protesters. Darby, who Crowder and McKay looked up to, persuaded the two men to make Molotov cocktails for the purpose of firebombing empty squad cars. The Molotov cocktails were never used, but Crowder and McKay faced federal criminal charges for making and possessing them.

Crowder pled guilty and was sentenced to two years in prison, but McKay took his case to trial and argued that Darby entrapped him. The jury was unable to reach a verdict. McKay subsequently pled guilty and was sentenced to four years.

Tonight Darby will debate McKay after a free screening of Informant, a new documentary about Darby, in New York City.

year-end wrap-up: updates on 2012 posts

NDAA: On January 13, a group of journalists and activists sued President Obama regarding the National Defense Authorization Act of 2012, which Obama signed on December 31, 2011. Four months later, U.S. District Judge Katherine Forrest granted a preliminarily injunction barring enforcement of the NDAA section that allows indefinite detention of anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Another four months passed before Judge Forrest granted a permanent injunction barring enforcement of that section; but the U.S. government appealed, and in October the Second Circuit Court of Appeals granted the government’s motion for a stay of Forrest’s injunction pending a decision on the government’s appeal. Meanwhile, the NDAA of 2013 could further expand the government’s power to hold people in military detention indefinitely.

RNC: The 2012 Republican National Convention protests were surprisingly calm. According to an August 31 New York Times article, no one broke windows, no tear gas filled the air, and only two people were arrested:

The lack of disturbances stood in stark contrast to the last three Republican conventions, when street battles between the police and protesters resulted in numerous arrests and prompted a flurry of court fights about police actions.

The number of protesters at this year’s RNC was smaller than expected due in part to Hurricane Isaac, the storm that caused Republican officials to cancel most proceedings scheduled for the first day of the convention.

Domestic Workers Bill of Rights: California Governor Jerry Brown displayed a lack of empathy predictable only among politicians by vetoing a bill of rights for domestic workers on September 30. Michelle Chen, a contributing editor at In These Times, describes what exactly Brown axed:

The highly anticipated Domestic Workers Bill of Rights would have enacted major protections for tens of thousands of housekeepers, nannies and other caregivers and closed loopholes ignored by federal labor law. It would have extended California’s policies for overtime pay and workers’ compensation, and helped ease in-house workers’ arduous, sometimes-abusive work routines by providing for a set amount of sleep and the ability to cook one’s own food.

Tim DeChristopher: After serving 15 months in prison, Utah climate activist Tim DeChristopher was admitted to a halfway house in Salt Lake City at the end of October. The local First Unitarian Church offered him a job with its social justice ministry. Yet a Bureau of Prisons official said he couldn’t work at the church because the job involved social justice, which was related to DeChristopher’s crime; so he accepted a job at a bookstore instead.

Pussy Riot: Two of the three infamous members of the punk collective Pussy Riot are now serving the rest of their two-year sentences at some of the harshest women’s penal colonies in Russia. (An appeals court released the third woman on bail in October.) They were transported there around October 23. According to an October 29 New York Times post by Masha Gessen, discussing several recent incidents of political repression in Russia,

Anyone can be arrested for legal, peaceful protest — and any one of those arrested can be chosen, at random, to spend days, months or years in prison.

One month later, on November 29, a Moscow court ruled that videos of Pussy Riot performances fell under a law meant to control hate speech. The New York Times reported the following:

The court called for limiting public access to Web sites and blogs displaying the videos. But the ruling is unlikely to cut off access to them, since it applies only to servers in Russia. … Thursday’s ruling cited “psycho-linguistic research” proving that the videos “humiliate various social groups based on their religious beliefs” and contain “hidden calls to rebellion and nonsubmission to authority.”

Jeremy Hammond: After anarchist hacker Jeremy Hammond was put in solitary confinement for five days around the time Hurricane Sandy hit New York City, U.S. District Judge Loretta Preska denied him bail. He has been incarcerated for more than nine months. A release from Anonymous subsequently reported that Judge Preska is married to a client of Stratfor, the very intelligence contractor whose servers Hammond allegedly gained access to, costing the company millions and focusing “worldwide attention on the murky world of private intelligence,” according to a November 2012 Rolling Stone article. Hammond’s attorneys are trying to get Preska removed as the judge in his case, because of her apparent bias.

new york police department lacked probable cause to arrest fulton street protesters during 2004 republican national convention

In an opinion filed yesterday, U.S. District Judge Richard Sullivan found that the NYPD did not have probable cause to arrest Republican National Convention (RNC) protesters on Fulton Street on August 31, 2004. He based this conclusion on the rule of individualized probable cause:

An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct, but, no matter the circumstances, an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.

Judge Sullivan could not determine, however, whether police had probable cause to arrest people the same day on East 16th Street. While the Fulton Street protesters had no opportunity to comply with the “so-called dispersal order,” if they even heard it, many individuals on East 16th Street “were openly and consciously violating the law” – obstructing the sidewalk or parading without a permit. Sullivan found that questions remained regarding whether police reasonably believed that bystanders on East 16th Street had “sufficient notice and opportunity to leave the area and that only lawbreakers remained.”

Finally, Sullivan considered the fingerprinting policy adopted during the RNC and the City’s suspension of its policy of issuing summonses for traffic-level offenses. He concluded that the fingerprinting policy, which required fingerprinting of everyone arrested for RNC-related criminal activity, violated New York state law, and that the plaintiffs could bring a claim pursuant to that law. Yet as to the no-summons policy, he found it to be justified “as a check to serial protestors who might otherwise engage in repeat acts of disobedience designed to grind the City to a halt.”

tampa police chief says, unpersuasively, that chemical agents and mass arrests are unlikely at republican national convention

Earlier this week, Tampa Police Chief Jane Castor said chemical agents and mass arrests are unlikely at this year’s Republican National Convention (RNC), scheduled for August 26-30. Apparently protesters won’t need gas masks in Tampa; which is good, because in the “Event Zone” – the area surrounding the RNC – no masks are allowed, except during permitted parades or in the public viewing area. Yet the police are still spending more than half a million dollars to have 1,400 gas masks at the ready.

The draconian rules don’t end there. Crowds of 50 or more people are allowed to gather all day in city parks, but only if they have a permit. Marches are only allowed on sidewalks or along the official 11-block parade route, where they are capped at 90 minutes.

There is a designated protest area, what’s been dubbed a “free speech zone” at previous conventions, where people are allowed to be all day with no permit required. Though that arguably defeats any hope of disrupting business as usual.

(Tampa Mayor Bob Buckhorn asked Florida Governor Rick Scott to ban guns in the Event Zone, but Scott refused based on the Second Amendment. Apparently the Second Amendment carries more weight in Florida than the First.)

Four years ago during the RNC in the Twin Cities, law enforcement officials used chemical weapons and arrested more than 800 people. Eight years ago during the RNC in New York City, law enforcement used pepper spray and arrested more than 1,800 people. Twelve years ago during the RNC in Philadelphia, law enforcement used pepper spray and arrested more than 400 people.

We’re supposed to believe, however, that this RNC will be different.