Law

What is Sensible Discipline for NFL Player Misconduct?

September 16, 2014 by Steph Stradley Leave a Comment

Understatement to say that the NFL and its teams are struggling to fashion appropriate discipline for allegations of NFL player misconduct. As I’ve written before, these problems were completely foreseeable when sports leagues take a bigger role in extra-judicial punishments. And sell to the public that it is appropriate for them to do so.
Everybody has an opinion on this, and I will share mine. I have a unique perspective as I’ve worked for large companies as an in-house lawyer, dealing with crisis management and employment law among other issues. In addition, I’ve worked with my husband who is a former assistant district attorney and currently practices criminal defense. And I’ve written professionally about the NFL since 2006, including changes over time to the personal conduct policy.
The short answer? I can’t think of a fair, sensible way to satisfy the people angry at player misconduct. The NFL as a sports league aren’t experts at criminal justice, and even governments have a difficult time dispensing fair, just results.
So instead of pretending I have all the answers, I will float some thoughts I think are relevant to the discussion of trying to create such a policy.
Factors in looking a NFL player misconduct discipline:
1. What is the purpose of league punishment? The league and the public believes that playing in the NFL is a privilege and the standard should be higher than the law.
But what does that even mean? At what point is NFL punishment sufficient to “fix” things? I don’t think this question has been asked much.
Suspension of two games, six games, a zero-tolerance life time ban?
Is the purpose of punishment deterrence? Given that they’ve had variations of a personal conduct policy for a long time and there continues to be issues, I don’t think that the conduct policy is deterrent. Human beings often make choices that are self-destructive and not in their best interests. All it takes for this to happen once, and it is life transforming. Typically, most of the cases my husband sees are people who see themselves as law abiding citizens who have never been in trouble with the law before.
Is the purpose of punishment PR? I’ve written before that the NFL voluntarily taking on a larger role in ad hoc player discipline has actually put a greater spot light on player bad acts, by creating a CourtTV commentary industry speculating on what are fair punishments for bad acts.
Is the purpose of punishment to assuage angry people? Not sure how much punishment helps that. No matter what the league assesses, it will be too much or too little depending on who is looking at the situation.
Is the purpose of punishment helping victims? The punishment that Ray Rice received is not seen as a positive by his wife. Harsh additional league punishment of Adrian Peterson likely does not make his childrens’ lives better. If accepting a plea leads to harsh league punishment, a player may choose to go to trial versus accepting a plea, even if the trial process will be extremely painful for the victim to relive.
If the NFL comes down harsh on players, will some victims avoid seeking help because they are afraid of draconian consequences? In fact, sometimes in the criminal justice system, punishments are tailored to help the victims of crimes. For example, allowing an offender to serve jail time on weekends to preserve a job and income to pay for restitution. (Not an issue for marque players but likely an issue for some others).
For those who suggest zero-tolerance punishments, I guess my question is this:
Should all offenders be considered beyond redemption? That if someone commits a crime, should they forever be considered beyond the help of therapy or forgiveness or whatever you want to call it and forever unemployable? Maybe there are some truly evil people beyond help, but I think a blanket rejection of rehabilitation can be a counterproductive thing for our society to embrace.
I don’t have answers to this. I don’t think as a society we think of these issues very well for our criminal justice system. Ultimately, punishments keep ratcheting up despite costs because it is politically popular to be “tough on crime.”
2. NFL careers are very short and competitive. Even short suspensions can have a big affect on a player’s career path.
3. The legal process is slow. It is rare for a legal case to go away quickly. Sometimes it can happen, but the majority of cases do not come to a final disposition for a long time. This sometimes makes people angry to have to wait for that process to be over before discipline is effectuated. If you want to punish players up through the time they are found innocent, you are actually punishing them because the legal system is slow.
4. Problems with disciplining by act versus looking at other factors. In the criminal justice system, there are many factors that are looked at when assessing punishment, not just the crime itself. There is some discussion of a one-size-fits all approach to all NFL domestic violence situations. Things that are looked at in the criminal justice system often involve victim impact and statements, remorse of the defendant, exact nature of crime, whether someone is a first time offender, whether they have done positive things for the community, etc. Those are things that fair people look at for fair results but I’m not sure that fairness comes into play with sports league sanctions.
5. Competition issues. There’s some discussion that the NFL went easier on Ray Rice at first because they were trying to get him back on the field to benefit the Ravens. I don’t believe that. I believe the original media reports that the commissioner listened to the “impassioned plea” of Janay Rice and believed the couple was trying to get help.
In any event, currently the NFL commissioner is the judge, jury, appeals court in discipline issues. Fans (or maybe teams) may think that the commissioner favors one team over another based on case-by-case discipline. But if there is a one-size-fits all approach, the league runs the risk of punishing all players the same, even in very dissimilar situations.
6. The perils of disciplining based on arrests and not final disposition. As I’ve written before, there’s significant fairness issues with the NFL disciplining players based on just arrests and not convictions. These are not technically-speaking “due process” issues like what the government needs to provide, but the concept is similar. NFL teams are only constricted by the terms of their collectively bargained arrangement with players, but can cut players any time they want and take the contract and salary cap consequences.
For private employers, there can be significant problems firing employees based on just arrests which is an involved topic far beyond the scope of this.
But in terms of fairness, and specifically as it relates to the NFL, disciplining based on arrests can be problematic.
Wrongful arrests happen all the time. Scare you to your bones kind of situations. You often don’t hear about them because sometimes the lawyers are able to make those go away in a sensible way.
Police officers have a difficult job because they have to sort out strangers’ tense situations in a quick manner and from their perceptions. It is not uncommon for wrongful arrests to happen for potentially racial reasons.
In addition, any time you are dealing with high-income, high profile individuals and high stakes, there are always concerns about extortion and individuals looking to profit. That is what Dallas Cowboys owner Jerry Jones is claiming in his sexual assault civil matter.
What I know is this. Rarely do public reports of high profile legal matters have a complete reporting of the facts. Part of that is the nature of legal matters, which often have confidentiality complications.
Ethically, there are limits on what lawyers are supposed to say publicly in criminal matters. In high profile cases, there are sometimes people who are incentivized, for whatever reasons, to release one side of a situation.
I don’t know what the answers to these issues are but because of what I’ve seen, I’d be very reluctant for a league to embrace a policy that punishes players just on the basis of arrests except for very extreme circumstances.
7. The NFL has a CBA that limits (or should limit) some of their options. Employers who deal with unions have agreements that govern the terms of employment. In the NFL, the players collectively bargained these terms. There are significant antitrust questions if the NFL tries to unilaterally change the terms of the NFL conduct policy. In addition, as I understand it, there are restrictions on the use of extended deactivation of a player.
8. Be careful letting crisis dictate policy. When bad situations happen, companies and governments tend to cobble together policies to deal with that particular situation. Very reactive.
But when you make a policy, you need to think of all the future situations, and not just the ones in front of you. Being over-reactive can lead to unintended consequences and unfair results.
And once a league or a government takes what is perceived as a tough stance, it is hard for them to relax it later for fairness reasons because that can be seen as soft.
9. Shame is also punishment. Punishment happens even without criminal convictions. The process of dealing with the legal system is harsh and expensive. And for high-profile players accused of crimes, they have to go through the rest of their lives with the stigma of their accusation. Whatever the criminal justice system does or leagues do, harshly or not, that will always remain. They have to live with the worst moments of their lives and know that everyone they deal with knows about it. Not saying you need to feel sorry for that, but I am just saying that is also a significant and lasting component of punishment.
Conclusion:
So, I don’t think there are any easy answers to NFL player misconduct issues. Anyone that suggests there are easy answers likely doesn’t know what they don’t know.
Maybe they will bring in former NFL commissioner Paul Tagliabue to clean up this mess too, like he did with Bountygate.
I am not jealous of the league and teams trying to figure this out. You can already see that they feel very uncomfortable handling it, as most employers would. They are football people and not reformers of social policy.
What is lost in this discussion is that the vast majority of NFL players are a lot more disciplined in their twenties and thirties than most people are at any age. And that, demographically, they commit fewer crimes than non-players their ages and certainly do more charitable acts.
The American legal system is certainly not perfect, but I trust them to do the right thing more than league PR reactions to mob snap judgments. The league struggles enough with fairly enforcing rule violations on the playing field.

Roger Goodell’s Criminal Justice Role Was Doomed to Fail

September 13, 2014 by Steph Stradley Leave a Comment

From 2006 to 2011, I wrote for a now-defunct sports blog called, FanHouse. When I first started writing about NFL for them, I didn’t mention that I was a lawyer. It didn’t seem relevant. But then I told them after Roger Goodell’s new personal conduct policy put player criminal justice issues into the spotlight.
I ended up writing about a lot of sports and legal issues.
The following is what I wrote on July 1, 2009. It no longer exists as a link because AOL killed FanHouse, but I found it in the Wayback Machine. I am reprinting it here (without all its dead links) so it is easier to find and quicker to load. I think it is worth reprinting because it demonstrates that Goodell’s current PR crisis is one of his own making, and was absolutely predictable. I’m not sure of how this can be fixed as the NFL has convinced the public that their role in criminal matters is appropriate:

All Hail Roger Goodell…or Else: A Look at the NFL Personal Conduct Policy

(By Stephanie Stradley, Originally Printed July 1, 2009 at FanHouse)
As reported earlier, Jason Cole of Yahoo! Sports cites sources suggesting that Michael Vick and Plaxico Burress could be sitting out for a long time, due to NFL commissioner Roger Goodell’s concerns about their legal matters.
Though the happy talk from the NFL is that the personal conduct policy is working (Donte Stallworth’s victim notwithstanding, I guess), the players are not terribly comfortable with a system that has no specific rules and has no neutral arbiter.
Upcoming Labor Issues
According to the NFL Players Association, league discipline is going to be an issue in the upcoming labor talks:
“League discipline is appealed to the NFL Commissioner or his appointee, and it is not likely that the league is going to disagree with itself when appeals are heard. It is clear from our ongoing team meetings that players see league discipline as becoming more and more excessive, and that the best way to address the problem is to insist that the next CBA require neutral arbitration for league discipline as well.”
Michael David Smith wrote that one of the most unreported stories in the NFL is how much resentment the players have towards the commissioner, in regard to how he has handled disciplinary issues.
The cynic in me thinks that maybe Goodell wants to make the policy as harsh as he can, because he can then use that as a bargaining chip in the negotiations.
As a fan, I’m not sure I’m comfortable with Goodell being police, judge, jury and appeals court regarding player discipline. Are there are no rules for what discipline is going to be other than whatever side of the bed Goodell wakes up on? Or him sticking his finger in the wind and seeing what the mob of public opinion says?
Here’s a review of the NFL Personal Conduct Policy for those of you who either like it or hate it.
History of the Personal Conduct Policy
The biggest change from the old policy to the updated one currently in place is that it is now easier for the commissioner to discipline players, even if they were innocent in the eyes of the law — “innocent” meaning that there hasn’t been a final disposition of their case in a court of law.
Repeated offenders can be disciplined on an “expedited basis.” And first-time offenders can be disciplined immediately if the matter involves “significant bodily harm.”
The policy came to be because of Pacman Jones — the Titans barely disciplined their own player because they wanted to keep him on the field. Teams disciplined their star players differently than their non-star players (which still happens under the new personal conduct policy).
On top of that, Goodell clearly was concerned that the legal system didn’t punish players fast enough or hard enough. Goodell also didn’t want to have to wait for the legal system to take its course before he effectuated league punishment.
He wants to hold the players to a higher punishment than just what the law requires.
I understand that some people don’t like the American criminal justice system. They get concerned that celebrities get special treatment, and they hate how slow the process tends to go. Some people believe that proving “guilt beyond a reasonable doubt” is a foolish standard that should be replaced with “everybody knows he’s guilty.”
But I’m not sure that it helps the NFL’s image any by coming up with their own extra-legal discipline beyond what happens with the justice system or punishing innocent people. It just turns the focus of the league into Court TV.
Unintended Consequences
I’ve repeatedly written on this subject. When the policy was first enacted, I was concerned about the “Unintended Consequences of NFL Personal Conduct Policy:”
“I’m the last one to be an apologist for lawbreaking NFL players, but I’ve been wondering lately if the NFL’s new personal conduct policy actually INCREASES the amount of attention given to NFL player badness….Ultimately, at least in the short term, it seems as though the NFL personal conduct policy designed to get players to stop damaging the NFL’s reputation may actually be bringing more attention to player’s misdeeds.”
And, I believe, this is what happened. It seems like so much NFL talk is now dedicated to trying to figure out appropriate punishments for different player actions. I’m not sure how much it improves the image of the league when newspapers, blogs and sports talk have to spend large amounts of time discussing players’ criminal activities and wondering about vague suspension rules instead of what happens on the field.
The talk associated with the uncertainty of Goodell’s punishment puts more attention on player misdeeds and less on the majority of players who don’t get sideways with the law.
Extra Punishment Leads to Strange Outcomes
When a league decides to create its own form of punishment beyond what the legal system does, without any guidelines other than what is in Goodell’s brain, it can lead to weird outcomes.
Should league punishment of DUI Manslaughter be worse than punishment of DUI? Mike Florio at PFT.com suggests the answer should be no. Dumb luck is the only difference between drunk driving that kills someone and doesn’t.
Should DUI or dog fighting or shooting yourself in the leg lead to harsher punishment than domestic violence?
You can make all sorts of arguments for different punishments, but it seems to me that it becomes convoluted trying to come up with an ad hoc system that leads to outcomes that will satisfy the NFL’s image concerns.
Revisions in the Policy for 2009 and Gaming the System
Rumors suggest that the 2009 Personal Conduct Policy is going to be rewritten in a way to make it easier to quickly discipline first-time arrested players. This has become an issue in the Plaxico Burress case because of perceived gaming of the system. According to the Yahoo! report, Goodell is angry that Burress is not accepting a plea deal that involves jail time. The thought is that, by not accepting a plea, he is purposely delaying an outcome so he can still play this season.
Of course, it may be that Burress is not accepting that sort of plea due to his lawyer’s belief that jail time is a harsher sentence than what non-celebrities would receive in similar circumstances.
So What Should the NFL Do?
Given that Goodell has decided that, for image reasons he needs to take over the role of the courts, I’m thinking one of two things happen: 1. He keeps tweaking the policy for each nasty case that comes down the road; 2. The players, at some point, rebel against it in the labor talks.
I don’t know. I kind of preferred it when our imperfect legal system dealt with player misconduct, and the commissioner primarily dealt with sports stuff. And that the only speculation was going to be what would the courts do, instead of what random thing the commissioner might do, and whether his actions were going to favor or hurt a particular player or team.
Who needs blackballing and collusion when the uncertainty of what Goodell might do will keep players from being signed by anyone?
You might think my concerns are overblown, but not likely if your team is the one that got their salary cap destroyed because of an accusation against a player, or is in limbo trying to find out the fate of a key player. If the goal of the policy is decrease player criminal acts and to improve the league’s image, I am not sure it is working. There’s too much talk about player bad acts, and partially it’s because the policy puts the focus on whatever Goodell might be thinking.
The American legal system isn’t perfect, but at least there are actual rules.

Open Carry of Guns and Texas Law on Provocation

August 22, 2014 by Steph Stradley Leave a Comment

The word “provocative” has often been used in articles describing the tactics of Open Carry Texas. A Google search of “Open Carry + provocative” leads to about 15,000 results.
For those unfamiliar with them, “Open Carry Texas” is the organization which seeks: 1. to promote awareness that the open carry of long rifles is legal in Texas; 2. to make people feel more comfortable with the safe and legal exercise of that right; 3. to change state law to make less restrictive open carry laws.
They promote their cause by openly carrying rifles at rallies in public places. According to the Houston Press, “Open Carry Texas Says it Still Wants to March in the Fifth Ward.”
An open carry group called the “Huey P. Newton Gun Club” conducted a march in South Dallas recently. Partially in response to the Mike Brown police shooting in Ferguson, Missouri. The purpose according to one of the organizers? To share the view that “all black people have the right to self-defense and self-determination.”
Open carry rallies currently are newsworthy, and some would suggest provocative.
Seeing the word “provocative” in these articles reminds me of the muddled Texas law on self-defense. Self-defense claims happen when a person who reasonably believes he is facing an imminent threat of grave bodily injury or death uses force to defend himself.
In Texas, some sets of facts can result in what is called a “provocation” jury charge. To oversimplify, the jury is asked by the prosecutor to look at the question: “Who provoked the attack that resulted in the shooting?” If a jury decides that a defendant “provoked the difficulty,” then it acts as a complete bar to the defendant being able to claim self-defense.
The theory on this is the law doesn’t want people to be able to manufacture an excuse to shoot someone and then later claim self-defense. Makes sense.
In practical, real world terms, a “provocation instruction” to a jury presents problems for those who try to use lawful self-defense in Texas. If a person has what looks to be a good self-defense claim, the provocation language can give a way for a jury to rule against a defendant if they don’t like him and/or want to support the person and his family who self-defense was used against.
If an entire court room is filled with the friends and family of who the prosecutor says is the victim, there can be immense pressure to find for a guilty verdict instead of lawful self-defense.

Does the Act of Open Carry of Weapons Risk a Provocation Jury Charge?

What I wonder is this: If someone open carrying a weapon actually needs to use his weapon to defend himself, could a prosecutor possibly claim that he “provoked the difficulty,” barring his self-defense claim?
Texas law on provocation is judged on a case by case basis and puts the burden on the shooter to guess whether a jury might later think he provoked the incident. The 1998 Texas Court of Criminal Appeals case, State v. Smith explains the confusion of Texas law on this well:
“Unfortunately, what was true in 1908 is still true today: “[T]here is some uncertainty, if not confusion, in the books in respect to the doctrine of provoking a difficulty.” Young v. State, 53 Tex.Crim. 416, 110 S.W. 445, 447 (1908). “[T]here is often great difficulty in determining just when a combination of facts justifies a charge on the law of provoking a difficulty.” Flewellen v. State, 83 Tex.Crim. 568, 204 S.W. 657, 664 (1918) (Morrow, J., dissenting). “[E]very trial judge of any experience knows that submitting such a charge to a jury is fraught with difficulty and the chance of error is great.” Dirck v. State, 579 S.W.2d 198, 203 n. 5 (Tex.Cr.App.1979).”
There are three factors Texas courts are supposed to look at when deciding whether someone “provoked the difficulty” according to State v. Smith:
“A charge on provocation is required when there is sufficient evidence (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.”
The difficulty is that if you look at Texas case law, the provoking act doesn’t have to be unlawful (as it does in some jurisdictions). It can sometimes just be bad judgment.
“Some act or words.” Could the lawful display of loaded, semi-automatic rifles in places where they are not typically carried itself be considered a provocative act?
Since judges and juries cannot look into people’s hearts and minds to determine intent to inflict harm, circumstantial evidence is used. Seldom is there obvious evidence of bad intent. The Smith court suggested that sometimes the provocative act is bad enough to show intent. Sometimes prosecutors use evidence that otherwise may have innocent explanations but after a shooting could be seen as bad intent.
Also complicating things is the common use of the word “provoke” is different than the legal meaning of “provoke the difficulty” which includes the element of intent to start a dispute in order to harm the other.
Hopefully, this set of events involving open carry becomes no more than a hypothetical. The reality is that provocation charges can complicate claims of lawful self-defense in Texas in any circumstance, guns or no, and result in long and confusing jury charges.
Both candidates for Texas governor support legislation for the open carry of handguns as well. When legislation on open carry or “stand your ground” is enacted by legislatures, it is intended to help those who want to use lawful self-defense. But in practical terms, the Texas law on provocation can make a trial a referendum on character of the people involved in the confrontation.
What one person sees as a lawful exercise of Second Amendment rights for self defense, a jury could be told the person is a “gun nut” looking for trouble.

The Cost to Defend Gun Rights

June 18, 2014 by Steph Stradley 1 Comment

A lot of times when people ask me about unjust legal results, they ask, “Isn’t that unconstitutional?” Or, “How can that be fair?”
If the answer was just answering a law school exam, I’d write out the pros and cons of the constitutionality of a law.
As for fairness, the law like life is often not fair.
The least fair part of the legal system involves the expense of defending your rights. If you think you have a right but don’t have money to defend that right, well then, you have nothing.
You may think have a legal right to do something, but if you are prosecuted for a crime, it costs money to hire a defense attorney and all the expenses in defending your case.
Those who tend to have more money for quality legal representation have the best chance at a good result. That’s just how it tends to be.
Because of the serious nature of what can happen with guns, there can be a very high cost to defend gun rights. When the police arrive at a shooting situation, they usually don’t know anything about you as a person. Their initial response tends to not favor the person who decided to use deadly force.
The following is a great comment that was left by “Jim” who commented on a my blog post involving a CHL holder who used a gun to defend himself against a group of men charging towards him but was found guilty. (The case was appealed and retried with other counsel). I thought the comment was smart enough that it was worth putting in its own post. I don’t agree with every aspect of it, but it is a perspective worth sharing:

“I’m a firearms enthusiast, CHL holder, certified instructor, dealer and occasionally a competitor. As you can imagine, this situation interests me greatly.

I get a lot of training and I’m certified to train others, but there is no way for training to cover every scenario. This is one of the “gray area” cases that we all hate. I don’t know enough about the details to draw a specific conclusion on a case like this; even the jurors, who heard excrutiating details, weren’t actually present and can’t know the emotions of the situation. In this case, emotions are a key factor: was the shooter afraid or angry? The answer can determine his guilt.

One of the things that good trainers talk about is the price of lawful self defense. As a rule of thumb, the first bullet you fire at a human being will cost $20-50,000 in legal fees (criminal and civil) — assuming the law is on your side. The cost of rightful self defense can be so high that avoiding confrontation whenever possible simply makes the most sense. People who read the law but don’t realize the cost of being right often underestimate how bad it can get or how hard they should try to avoid having to prove they were right.

You may have a legal right to stand your ground, but that won’t stop you from spending your life savings proving you were within your rights.

The legal protections afforded for self defense are intended to protect people who are trying to defend their lives. However, their applicability is determined by human beings applying their personal judgment so their boundaries are not as clearly distinct in practice as they are on paper. Most of us are probably better off only having a general sense of these laws rather than knowing their details, as it is a terrible mistake to rely upon the details of the law (stand your ground, fear of harm, etc.) rather than the general principal of self defense (avoid confrontation whenever possible and defend yourself when you can no longer avoid it.)

One of the things I’ve learned in training is this: never fire a gun unless you are prepared to go to jail. There is an old saying: better to be tried by twelve than carried by six. Firing a gun is a last-ditch effort to protect your life. Going to jail is better than dying, but if you assume you will go to jail when you pull the trigger and you are willing to do it anyway, that is a good indication that you are in genuine fear for your life.

It is always important to remember that no one wins a violent confrontation; there are only differing degrees of loss. The best you can hope to take away from a violent confrontation is the same that you brought into it — your life, health and wealth. Unfortunately, you are likely to lose at least some of these regardless of the circumstances.

The more I learn about firearms and self defense, the more I learn about the value of avoiding confrontation whenever possible.”

I appreciate Jim’s comments on this. Avoiding confrontation isn’t always possible or popular but if you want to save your money and your freedom, it is often the best recourse.
Ultimately, a lot of times in fights, whether it involves guns or not, guilt and innocence has less to do with what the often confusing legal standard is and more to do with who got hurt worse and who is perceived as the better citizen by jurors who don’t really know the people involved in the situation.
It is easy for things to get out of control, particularly if there is alcohol involved. Whether the shooters emotion was angry or scared at the moment that self-defense is used isn’t a part of the legal standard but sometimes juries can infer things from it.
Often in fight situations, it is hard for the police to figure out who did what, so it is important to hire legal counsel early to help be your voice. Sometimes attorneys can resolve these issues prior to charges being filed or at the Grand Jury part of the process.

‘Online Impersonation’ is a Crime in Texas

July 13, 2012 by Steph Stradley 9 Comments

Did you know that “Online Impersonation” is a crime in Texas? I thought I knew a lot about the web, but ran across this relating to a legal case I know about.

Enacted into law in 2009, here’s the complete Texas ‘Online Impersonation’ statute. In key part:

“Sec. 33.07. ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

(1) create a web page on a commercial social networking site or other Internet website; or

(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1) without obtaining the other person’s consent;

(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3) with the intent to harm or defraud any person.

(c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.”

Following the letter of this law, there may be a lot of criminals. “Harm” can be very broadly construed–one person’s joke is another person’s harm. This New York Times article about online Texas political shenanigans might identify some third degree felony law breakers.

I’m not sure how many actual Texas prosecutions have come from this law. A case out of Austin was dismissed because the person accused of the crime was from Cincinnati.

I am aware of someone who wasn’t prosecuted for this but was threatened with prosecution, and experienced significant harm in his personal life relating to a parody Twitter account. Seems to me that there are some First Amendment concerns with a broadly written law that makes this a third degree felony.

The more you know….

Texas v Rodriguez: ‘Stand Your Ground,’ CHLs, Self Defense – Facts and Law

June 27, 2012 by Steph Stradley 3 Comments

Houston criminal lawyers Neal Davis and my husband Bill Stradley represented Raul Rodriguez, a man convicted of murdering his neighbor in a confrontation relating to loud music from a party. A jury sentenced Mr Rodriguez to 40 years in prison.

There have been many media reports about this case. It is difficult to find ones that are entirely factually accurate.

Public Interest in Stand Your Ground Laws, Gun Policy.

This case has generated public interest for many reasons: 1. The 22:03 minutes leading up to the shooting are all captured on video. 2. Kelly Danaher was a widely-beloved teacher, husband, father who died over something that didn’t have to happen. 3. The very publicized Trayvon Martin case has brought public attention to concealed handgun licenses and stand your ground laws.

I have been following the case and the media coverage very closely. Often with legal issues of public interest, I’ve observed that much of what is reported in the media is usually not quite right or can be misleading.

It’s hard to report legal issues in a way that is accurate, fair, and complete. There are time and space constraints of many media forms. Some outlets do not rely on original reporting but making assumptions based on reporting of others. Sometimes the media doesn’t understand legal rulings and misreports them. Reporters may have limited access to key facts, especially facts from the defense point of view, due to attorney confidentiality during trial preparation. Most media outlets did not show the complete video due to space limitations, and depending on which excerpts you watch, it can make things look differently. Even seeing the video without context can make it appear different.

And sometimes media coverage can be sensationalized to what is most Facebook sharable. I’ve seen this case reduced to things like, “Man shot because of loud music.” It is not my intent to shake my fist at a hostile media as I understand first hand how difficult it is to get the story right, fair, and quickly. I’m just adding a perspective I don’t think has been widely discussed.

If this ruinous case is going to be part of the public discourse on self defense laws, stand your ground and concealed handgun licenses, then at a minimum, people should understand the facts, law before drawing conclusions.

This blog post will serve as an attempt to answer basic questions, clarify key issues relating to this trial. It is based on what I know of the testimony, the law, and the evidence that is all public record. I’ve heard plenty of public comments on this case, and many of the basic and agreed facts are perceived incorrectly.

The final agreed transcript of the video is at the end of this blog post (strong language warning).

Steph Stradley

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