Philadelphia District Attorney R. Seth Williams Should Be Arrested

Thursday, May 19th, 2011

I wanted to comment a bit more on the Mark Fiorino story that guest blogger Dave Kruger posted earlier this week, because it’s pretty goddamned outrageous.

Fiorino is the guy who was accosted by police officers in Philadelphia for openly carrying a gun in the city, despite the fact that he was perfectly within his legal rights to do so. He was in full compliance with the law. The problem is that the Philadelphia cops who confronted him were ignorant of the law. In the course of the confrontation, the cops repeatedly threatened to kill Fiorino, despite the fact that, again, he had broken no laws. They also illegally detained and arrested him. They then had to release him when they actually checked the law and discovered they were wrong.

When I’ve written about the arrests of citizens who record or photograph cops over the last couple years, I’ve repeatedly pointed out the double standard that exists when it comes to ignorance of the law. Citizens are expected to know every law. Break one, and you suffer the consequences. Ignorance is no defense, even when it comes to vague, obscure, or densely-written laws. But when law enforcement officials—the people we pay to enforce the criminal code—when they prove to be ignorant of the law, when they illegally detain, arrest, and jail someone based on a mistaken understanding of the law, they rarely if ever suffer any consequences.

The Fiorino case is a perfect example of that double standard. But the Fiorino case is even more pernicious. Because he’d had previous episodes with cops who were ignorant of local gun laws, Fiorino was carrying an audio recorder with him in Philadelphia. He recorded his confrontation with the Philly cops, and that audio exposed them for the ignorant, thuggish threats to the public that they are. (Note: I regularly caution against holding individual cops responsible for enforcing bad policy. I don’t use words like “ignorant” and “thuggish” lightly. These cops were both.) The recording Fiorino made of his encounter was also perfectly legal.

So what are we to then make of Philadelphia District Attorney R. Seth Williams’ decision to arrest and charge Fiorino after Fiorino posted the recordings on the Internet?

Here’s what I make of it: It’s criminal. Fiorino embarrassed Philadelphia cops, and Williams is punishing him for it. Williams and the police spokesman are claiming Fiorino deliberately provoked the cops. No, he didn’t. He didn’t wave the gun at anyone. He didn’t invite police scrutiny. The cops confronted him upon seeing a weapon he was legally carrying in a perfectly legal manner. And they were wrong. Make no mistake. This is blatant intimidation.

But while their behavior in this story was repugnant, at least the cops had the plausible explanation of ignorance for the initial confrontation, then fear for their safety when an armed man they incorrectly thought was violating the law pushed back (though neither is an excuse, and neither should exclude them from discipline). What Williams has done since is much worse. It is premeditated. Much more than the cops, Williams should know the law. Moreover, even if he didn’t know the law at the time, he has since had plenty of time to research it. By now, Williams  does know the law. (If he doesn’t, he is incompetent.) And he knows that even if Fiorino did deliberately provoke the cops to test their knowledge of Philadelphia’s gun laws, that also is not a crime.

Yet he’s charging Fiorino anyway, with “reckless endangerment and disorderly conduct”—the vague sorts of charges cops and prosecutors often fall back on when they can’t show any actual crime. A spokesperson for Williams said Fiorino was “”belligerent and hostile” to police who were investigating a possible crime. Read the transcript of the audio in the linked article above and tell me who is “belligerent and hostile.” Read it knowing who was breaking the law, who was following it, and while remaining cognizant of which party was threatening to put a bullet in the head of the other.

Note that nothing Fiorino did was on its own illegal. Willliams is attempting a striking, blatantly dishonest bit of legal chicanery. His theory goes like this:  If you undertake a series of actions that are perfectly legal and well within your rights, but that cause government agents to react in irrational ways that jeopardize public safety, you are guilty of endangering the public.

This can’t stand. It’s a blatant abuse of office. Williams is using the state’s awesome power to arrest and incarcerate to intimidate a man who exposed and embarrassed law enforcement officials who, because of their own ignorance, nearly killed him. Exposing that sort of government incompetence cannot be illegal. And it isn’t illegal.

The message Williams is sending is this: Yes, you might technically have the right to carry a gun in Philadelphia. But if you exercise that right, you should be prepared for the possibility that police officers will illegally stop you, detain you, threaten to kill you, and arrest you. And I’m not going to do a damn thing about it.  And yes, you may technically also have First Amendment rights in Philadelphia, but if you dare exercise them to let the larger public know what happened to you for exercising your right to carry a gun, I will try to put you in prison.

I’m not trying to be needlessly provocative, here. This is important. Prosecutors can’t get away with this kind of behavior. Even if the charges are eventually dropped, that isn’t enough. Philadelphia District Attorney R. Seth Williams should be arrested. And he should be charged with knowingly, criminally violating Mark Fiorino’s civil rights.

Digg it |  reddit |  del.icio.us |  Fark

104 Responses to “Philadelphia District Attorney R. Seth Williams Should Be Arrested”

  1. #1 |  writerJames | 

    Great write-up of an appalling case. I hope Fiorino goes ahead with his plans to sue the city.

  2. #2 |  Discord | 

    He should definitely sue the city, and he should alert the ACLU as well.

  3. #3 |  Nate | 

    Suing the city is the moral thing to do. Those awards are the only incentives we can put on jurisdictions to stop this madness given the absolute immunity we’ve given the criminals themselves.

  4. #4 |  Mario | 

    I listened to the audio recording on YouTube a couple of days ago, and I think you’re absolutely right. The first 10 or 20 seconds of the audio — the initial confrontation by the sole police officer — is a little heated. Both the officer and, I would say, Fiorino were a little wound up. But, I would say both calmed down a bit. Apart from the initial “Yo, Junior…” the first cop behaved himself decently. He gave his name when he was asked and actually tried to explain himself.

    However, once the other cops showed up, that’s when it turned into a complete circus. The only ones acting disorderly and recklessly endangering anyone were the cops themselves. How many F-bombs and openly hostile responses — to a handcuffed, polite suspect, mind you — did you count?

    And you’re right. Shame on the D.A. He should be criminally prosecuted for abuse of his office.

  5. #5 |  MRK | 

    I’m not sure what bothers me more; this case, or the fact that I’m not even remotely surprised by it.

  6. #6 |  Yizmo Gizmo | 

    This whole case is a gag, right?

  7. #7 |  Lorraine Fay | 

    You’re right. The DA should be arrested. In our law office we routinely find the police involved in our cases have absolutely no knowledge of the law. They tell citizens a bunch of malarky that is not the law, and then clients call us and we tell them what the law is. This occurs constantly. This ignorance of the law on the part of law enforcement is dangerous and egregious.

  8. #8 |  RomanCandle | 

    Damn, that was beautiful.

    (The post, by the way. Not the rampant and overt abuse of power).

  9. #9 |  Greg | 

    How many F-bombs and openly hostile responses — to a handcuffed, polite suspect, mind you — did you count?

    SOP. Cops have been trained this way for years. Police Acadamies now teach nonsense like “controlling” and “dominating a situation”.

    Thuggery is not an occasional line that gets crossed over in the heat of a very rare dangerous scenario – it is everyday policy taught be used in every encounter with the enemy. ‘Cuz ya know, it’s a war out there.

  10. #10 |  Cyto | 

    Philadelphia District Attorney R. Seth Williams should be arrested. And he should be charged with knowingly violating Mark Fiorino’s civil rights.

    HAHAHAHA! A district attorney arrested! Guffaw! Chortle!

    Connick v Thompson put that to rest. If you can actively work to frame a man for capital murder – and continue all the way to the threshold of the death chamber – a little proprietorial overreach is never going to get you arrested.

    Geez, what are you thinking Radley? These are our betters. The legal system must be protected – so they cannot be threatened by the possibility that they might have to suffer consequences for their actions! Come on, man….

  11. #11 |  Cyto | 

    Prosecutorial. Damn spell check…

  12. #12 |  Rob | 

    Even better the DA should be taken in for a mandatory mental health evaluation followed up shortly by a fury of bar complaints over his obvious incompitance and abuse of office.

  13. #13 |  Michael Chaney | 

    Come now, Radley. We know it’s important that the DA have absolute immunity, otherwise there’ll be a “chilling” effect that might hamper other corrupt prosecutors from doing “their job”.

  14. #14 |  RandomDude | 

    What are the criteria for asking the PA Bar to investigate?

  15. #15 |  SJE | 

    Cyto: the Connick v Thompson case was decided on the (legal fiction IMO) that while an individual prosecutor was bad, it should not result in a civil case against prosecutor’s OFFICE unless their actions were willing and with knowledge. Its a variant of the “rogue” excuse, that does seems to work when its any private company who has a criminal in its midst.

    Here, the DA is clearly leading the charge, and so Connick doesnt apply. I hope that the judge will slam him for this.

  16. #16 |  marco73 | 

    Looks like the DA’s office just wants to increase the cash settlement that the city is going to have to pay to Fiorino. It may take a couple years, but you can almost hear Fiorino and his attorney saying, “Please, please don’t throw us in that briar patch!”

  17. #17 |  Pablo | 

    He should definitely file a bar complaint. This DA should be disbarred. Well it happened to Nifong so there’s always hope.

  18. #18 |  J.S. | 

    But, the cops always say they support the 2nd ammendment!

    Sadly, for the past month or two since this happened/posted I’ve been reading posts by folks who called Fiorino a d-bag/instigator etc.. There are far too many people who think they’ll be treated fairly by the cops even if they’re innocent. Now that he’s been arrested some might change their minds but most won’t.

    PS, stop being such a cop-hater Mr. Balko!
    /sarcasm

  19. #19 |  Philadelphia District Attorney R. Seth Williams Charges Mike Fiorino With Reckless Endangerment and Disorderly Conduct | Popehat | 

    […] Radley Balko knocks this story out of the park, so I will be brief (for me). Philadelphia resident Mark Fiorino carried a firearm openly in a manner that was fully legal — at least under the rule of law. But Mark Fiorino erred in disregarding the law of thuggery, not bearing in mind that the police are frequently ignorant of applicable gun laws, frequently have strong opinions of what gun laws ought to be, and frequently and violently outraged that citizens think they are bound by the former (the rule of law) rather than the later (the law of thuggery). Mark Fiorino found himself confronted by screaming police with guns drawn and threatened with death: Fiorino offered to show Dougherty his driver’s and firearms licenses. The cop told him to get on his knees. […]

  20. #20 |  Chris | 

    What exactly would the DA be charged with? This statement is pretty vague: “And he should be charged with knowingly violating Mark Fiorino’s civil rights.” I’m sure there are specific laws being broken, I’m just curious what, specifically, they are.

    Thanks!

  21. #21 |  Cyto | 

    #15 | SJE |

    Yeah, there is a distinction there. However, it is my opinion that the court is doing all sorts of mental gymnastics to justify protecting its own. Even in the opinion and concurrence they repeatedly acknowledge that the prosecutors office knowingly violated Thompson’s rights. In fact, that’s what the case largely hinges on. They claim that because the prosecutors framed him on purpose, the prosecutor’s office isn’t responsible for failing to train them (under the theory that no amount of training would prevent intentional misconduct).

    They clearly know that they are doing an injustice, but they work hard to narrow the scope of inquiry to avoid the underlying question of “what to do about the fact that this Louisiana prosecutor’s office framed a guy for murder?” In fact, Scalia ridicules the dissent for looking in to this question.

    Of course, in other areas they are more than happy to broaden the scope of inquiry beyond narrow legal questions in order to settle a larger issue. But when the culpability of their own is on the line? Nope, not so much. Both the majority and dissent tacitly (or explicitly) acknowledge that this office has policies in place that encourage failing to disclose evidence, but since the lower court jury didn’t find that compelling they just ignore it.

    They may have sound legal reasoning on the (intentionally, IMHO) narrowed question – but I think they are motivated by a protectionist instinct to find a way to frame the question thusly.

    Here’s a reprint of a 1999 AP article about this topic. In it you’ll find a revealing quote about how rare holding prosecutors accountable really is.

    The Thompson case has unfolded amid an ongoing trial in DuPage County, Ill., where five former prosecutors and police officers are accused of framing a man sent to death row for a young girl’s murder.

    “I contend these incidents are completely isolated,” said John Justice, president of the National Association of District Attorneys. “Before DuPage, there were no cases of prosecutors being prosecuted because there was no evidence of criminal misconduct. There’s a national wave of prosecutor bashing going on. I think it’s a reaction to how people feel about Ken Starr.”

    [emphasis added]

    There you have it. The only thing prosecutors have to fear is action by the bar. And that is exceedingly rare for on-the-job activity. They might take action for accepting bribes, or drunk driving convictions… but misusing your office to persecute someone for speaking out? Please….

  22. #22 |  Irving Washington | 

    The DA hasn’t broken the law because he’s immune from the law. Sad but true, and railing on about it isn’t going to help. The Supreme Court has left only one avenue for redress of prosecutorial misconduct. And here it is:

    http://www.padisciplinaryboard.org/faqs/report_consumer.php

    Not very confidence inspiring, granted, but if it’s the only avenue left, I don’t understand why more wrongfully prosecuted people don’t take it. If the state disciplinary bodies refuse to discipline prosecutors, then Radley has another bid story on his hands. But until victims start making a concerted effort to impose discipline on prosecutors, how do we know it won’t work?

  23. #23 |  Jeff | 

    If Thomas Paine, Benjamin Franklin, Benjamin Rush, Gouverneur Morris, Robert Morris, etc. could see what this city has come to (and if such pronouncements were not merely effective rhetorical devices), the devastation caused by the tectonic shifts of them rolling over in their graves would decimate the entire eastern seaboard.

  24. #24 |  Stan | 

    This situation is somewhat ironic, because between DA Williams and police commissioner Ramsey, Philadelphia has been fairly aggressive in weeding out crooked cops recently. I think there have been more police fired for bad/criminal actions in the last two years than in the previous 30 years I have lived in this area.

    Clearly, there is more to be done, but there has been progress.

  25. #25 |  K | 

    Question: why didn’t the cops erase the recording when they discovered it? Could have saved themselves a lot of trouble.

  26. #26 |  CyniCAl | 

    The only practical limit to State power, save that which the the State self-imposes, is the overthrow and abolition of the State by individuals. Since I have been reassured endlessly that the latter is impossible, and the former is virtually non-existent, my conclusion is that the kind of abuses written about daily here will persist to the end of human history. Keep that in mind as you go about your daily survival.

  27. #27 |  Brandon | 

    This is just an alternative stimulus program by the government. See, Fiorino is going to sue the city, get obscenely wealthy, and then he will be one of the “Rich” whom the government can then tax into poverty, increasing federal tax revenue for the year. It’s perfect!

  28. #28 |  Brandon | 

    #24, so we only have to put up with this crap for two more days? Sweet.

  29. #29 |  Radley Balko | 

    The DA hasn’t broken the law because he’s immune from the law

    Absolute immunity only extends to civil lawsuits. Prosecutors aren’t immune from criminal prosecution.

  30. #30 |  Radley Balko | 

    For violating federal civil rights law. It’s a federal crime to knowingly violate someone’s constitutional rights.

  31. #31 |  Dave Krueger | 

    Ok, does anyone have any questions about today’s lesson regarding the close relationship between cops and prosecutors and why we so seldom see those prosecutors holding cops accountable for their illegal actions?

  32. #32 |  Dave Krueger | 

    I think the entire tone of the encounter was probably set by the words, “Yo, Junior”. The words should have been, “Excuse me sir.” And that’s only if you concede that there should have been any words at all.

  33. #33 |  Jim | 

    I say we forget about the mandatory mental health evaluation and just take everyone involved in this case for an afternoon of electro shock

  34. #34 |  DarkEFang | 

    The NRA is going to jump in on this case, right? Right?

    Oh, that’s right. The NRA only cares about arming people in churches and college campuses. They don’t actually defend 2nd Amendment rights in situations that regular people might care about.

  35. #35 |  WhiteEFang | 

    What 2nd Amendment rights are involved here? This is a 4th Amendment illegal search and seizure and a First Amendment retaliation case. No more, no less. Call the ACLU.
    There may be state tort claims for i.e. failure to train/failure to supervise, but none these are gun issues.
    I will never understand ignorant gunowners live to bash the NRA.

  36. #36 |  Open Carry in Philadelphia - Page 10 - INGunOwners | 

    […] Radley Balko tackled this issue this morning. Bluntly, he is calling for the arrest of the prosecutor in this case. Mark embarrassed the cops, but it wasn't until it hit youtube that it became an issue. So, 2 months later, he gets slapped with “reckless endangerment and disorderly conduct”. It's interesting that the cops are using the term "set-up" as it generally applies to catching someone doing something illegal. Philadelphia District Attorney R. Seth Williams Should Be Arrested | The Agitator […]

  37. #37 |  Mattocracy | 

    There was a time, albeit a short period of time, where the DoJ actually went have local law enforcement when they violated people’s rights.

  38. #38 |  TJ | 

    Fiorino is going to need some serious help and major legal muscle to come out on top of this. I pray that someone, some organization, steps up to defend his First and Second Amendment rights. Pro-bono. Someone, come to the defense of all (hoping to be free again) Americans. PLEASE.

  39. #39 |  Boyd Durkin | 

    Not a fuck will be given by the cops, prosecutor, mayor, or any state agent. They are beyond and above the law. They are untouchable…when they are shitting on peasants.

  40. #40 |  WhiteEFang | 

    He has been raising (begging) money for his personal defense. I have no idea how successful he has been. You can donate money to him.
    Let this be a lesson to everyone: if you want to make a legal point, you’d best make your financial preparations beforehand, that way you won’t be stuck with the first lawyer who will work for cheap.

  41. #41 |  Dante | 

    After reading this particular story, I am again reminded of why We The People often refer to the police as “pigs”.

    I apologize to any real pigs who are offended at the comparison to the police.

  42. #42 |  overgoverned | 

    Waiting for Patterico to weigh in on this one. Should be fun reading.

  43. #43 |  Zargon | 

    #29

    Absolute immunity only extends to civil lawsuits. Prosecutors aren’t immune from criminal prosecution.

    Theoretically? Sure. Practically? I’ll believe it when I see it.

    Even for Nifong, in a completely clear-cut case with publicity through the roof, the best the criminal justice system could muster was contempt of court, for exactly one (1) day in jail, and a blistering $500 fine.

    Justice in this case is more likely to be served by lightening than the courts.

  44. #44 |  Mark Fiorino | 

    And all this, even after a fourth-quarter release of an updated Directive 137 (September or November 2010) which specifically enumerated the practice of Open Carry as legal in the city of Philadelphia if the carrier has a valid LTCF.

    How many months does it take for the police to get trained on how to enforce the law?

  45. #45 |  Why “Criminals” Should Have Rights « The Blog For Truth, Justice, & The Josh Way | 

    […] And here’s your proof. […]

  46. #46 |  WhiteEFang | 

    That directive also enumerated that it was alright for them to put a gun to your head.
    Seems they read that part.
    Hint: next time you go on the radio, bring an attorney that knows something about search and seizure and let him answer those questions.
    Yesterday you had a clever host manipulate you into negotiating your Fourth Amendment rights away.

  47. #47 |  ceanf | 

    “These aren’t bad people,” Healy said.

    No, no they are not. But they are bad cops.

  48. #48 |  JOR | 

    The only good cop is an ex-cop.

    Same works for prosecutors.

  49. #49 |  Mark Fiorino | 

    @WhiteEFang – I disagree. On the radio, I explained that the law states they can violate our 4th Amendment rights, and that we’re going to work to get that ability removed from Title 18 via repealing the “Cities of the First Class” subsection (6108). Perhaps I wasn’t clear enough, in which case, I apologize.

  50. #50 |  Yizmo Gizmo | 

    Hate to play the race card, but what is it about these much-publicized,
    supposedly history-making black (Perry, Curley) judges or DA’s (or Secretaries of State) subverting the law as some sort of perverse ritualized foray into corrupt white good-ol-boy culture?

    http://willdo.philadelphiaweekly.com/archives/061808obamasethwilliams.jpg

  51. #51 |  Irving Washington | 

    Don’t you think you’re being just a bit difficult? You’re talking about charging him with a crime for a single prosecutorial decision. He didn’t charge people based on race for a number of years, which is the only kind of federal investigation (let alone prosecution) I can think of for civil rights. Even if you could find someone to charge him, he’d win that case every time.

    Don’t misunderstand; I’m with you on this. I just don’t think you’re being practical.

  52. #52 |  Marty | 

    nice job ratcheting this up. Hopefully, the judge picks it up and this starts snowballing. If the mayor and governor start feeling pressure, I bet this prosecutor learns really quickly that he is expendable.

    Hopefully.

  53. #53 |  WhiteEFang | 

    If you stated “that the law states they can violate our 4th Amendment rights,” then you have misstated the law. Don’t complain when the Police Commissioner also misstates the law.
    I’m really scratching my head now…

  54. #54 |  Mark | 

    in Michigan, our Atty. Gen. made a ruling that open carry is legal if youre not prohibited from doing so, such as a felon, and if you are stopped by the police for the sole purpose that you are carrying openly then you do NOT have to even identify yourself to them and they have no right to stop you. His reasoning is that if you’re not violating the law and are only exercising your state right to open carry, then they must not stop you for identification or even accuse you of disorderly conduct.

  55. #55 |  Mark | 

    http://michiganopencarry.org/?q=node/4

    Excerpt:

    Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm (3). Attorney General Opinion 7101, 2/02 states “…by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.” In regards to disorderly conduct, due to the nature of this code, officers have cited this law in order to suppress or discourage lawful open carry. Since a person who is not licensed to carry concealed MUST open carry their firearms on foot in order to avoid criminal charge, (nor is there any duty for anyone licensed to conceal their handgun), open carry is not disorderly conduct. The open carrying of a firearm is not by itself threatening, nor does it cause a hazardous or physically offensive condition.

    If a person is openly carrying a firearm on foot, and in a legal manner, he/she need not give a police officer their name and address after being approached and questioned if the only reason for that questioning is because of the openly carried firearm. Officers should not editorialize against open carry by private citizens in any way shape or form, or in any way suggest that a person should conceal their firearm. Suggestions and editorializing against lawful open carry may be interpreted as “commands” by civilians who are lawfully open carrying and may subject officers to complaints filed against them, as well as possible legal action against themselves and the department.

  56. #56 |  Roho | 

    #32 – That was one of my first thoughts, too. From the first moment, before Mr. Fiorino even saw the person speaking to him, this cop decided the tone of the encounter. Most members of society have a basic understanding that you get out what you put in, but many cops these days seem to fail at the basic concept. I’d write it off completely as superiority complex and a bully mentality (and undoubtedly it is with many), but so many others seem genuinely surprised at the reaction their abusive, condescending, insulting language generates.

    I guess to some of them, it’s like unzipping your fly before you take a leak, or shouting “Stop resisting!” as you start swinging your club at someone who looked at you funny. It’s just the way things are always done.

  57. #57 |  Paws for the law | 

    Radley & #20

    The law is 18 USC 242 — Deprivation of rights under color of law

    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both….

    http://www.law.cornell.edu/uscode/718/usc_sec_18_00000242—-000-.html

    http://www.fbi.gov/about-us/investigate/civilrights/color_of_law

  58. #58 |  Radley Balko | 

    He didn’t charge people based on race for a number of years, which is the only kind of federal investigation (let alone prosecution) I can think of for civil rights.

    There have been numerous federal civil rights criminal prosecutions that had nothing to do with race.

  59. #59 |  WhiteEFang | 

    Pennsylvania is the same as Michigan. However, the police are not prohibited from making requests (that you don’t have to comply with).
    Here they are called “mere encounters” and have nothing to do with a Terry stop (which could involve force).

  60. #60 |  Cyto | 

    As you can tell by my comment history, I’m no legal expert. So I asked Google to tell me about prosecutors convicted of civil rights violations. Nothing on the first page about prosecutors being convicted of civil rights violations. And as we all know, if it isn’t on the first results page, it doesn’t exist.

    Although a slightly modified search did turn up a prosecutor convicted of promoting prostitution. Google took me all the way to Japan to find a prosecutor convicted of evidence tampering.

    I guess John Justice, president of the National Association of District Attorneys was right when he said that prosecutorial misconduct just doesn’t happen.

  61. #61 |  Random Guy on the Internet | 

    Seems to me this could apply as well:

    Title 18, U.S.C., Section 241
    Conspiracy Against Rights

    This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

    It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

    Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

  62. #62 |  RandomDude | 

    I guess John Justice, president of the National Association of District Attorneys was right when he said that prosecutorial misconduct just doesn’t happen.

    What are you talking about; when I used to watch Law & Order, defense attorneys were filing Prosecutorial Misconduct complants 3-5 times a season!

    /Tongue in cheek

  63. #63 |  PersonFromPorlock | 

    18 USC 241’s probably the best bet, but federal prosecutorial discretion tends to follow federal policy, which right now isn’t too concerned with the Second Amendment, or with the First and Fourteenth Amendments if they’re being exercised in aid of the Second.

    Hope for a conservative takeover in 2012, and a long statute of limitations.

  64. #64 |  Greg | 

    What are you talking about; when I used to watch Law & Order, defense attorneys were filing Prosecutorial Misconduct complaints 3-5 times a season!

    And the DA was always worried about the appearance of impropriety, and the wrath of the Feds. I long for the realism of My Mother the Car

    Sadly, L&O, CSI, and Blue Bloods (the new Matlock) seem ‘realistic’ to old white suburbanites who are scared of their own shadows and think danger lurks around every corner.

    They buy into the canard that the destruction of the Constitution piece by piece over the last 20 years is merely a few isolated incidents. That only affect the bad guys.

    Truth in humor…

  65. #65 |  Cyto | 

    #62 | RandomDude |

    The punchline on the case from Japan in #60 above is that the prosecutor that was found guilty of misconduct was prosecuting a government official. So that’s what happens when an immovable object meets an irresistible force…

  66. #66 |  Whim | 

    Mr. Fiorino perpetrated a terrible offense: He embarrassed the Philadelphia police. I listened to the entire audio recording. The only people that were totally unprofessional, intensely hostile, close-minded, non-listening, foul mouthed and offensive were the Philadelphia police.

    Sgt. Dougherty was the worst offender. He should be busted to junior patrolman, and NEVER, EVER be in a position to bully the public again. Ever.

    Even after he was told by his supervisors that Mr. Fiorino was complying with PA law on open carry, he persisted in trying to re-frame the encounter to make HIMSELF look like the victim, and verbally harassed and brow-beat a handcuffed and compliant citizen. He is the poster boy of a bad policeman.

    The DA’s office charging Mr. Fiorino is merely meant to punish financially the victim. Now Mr. Fiorino has to hire a criminal defense attorney to defend himself against these fabricated charges.

    It will only delay the inevitable. Mr. Fiorino is going to collect a very large payday against the City of Philadelphia. Pointing a gun at a citizen’s head that is not breaking any laws is Oppression in Office, and Reckless Endangerment.

    Sue and Sue and SUE. Make Sgt. Dougherty sit on the witness stand, and defend his indefensible conduct while the tape recording is played, sentence by sentence…..

  67. #67 |  Mannie | 

    #51 | Irving Washington | May 19th, 2011 at 3:22 pm

    Don’t you think you’re being just a bit difficult? You’re talking about charging him with a crime for a single prosecutorial decision.

    How many aggravated assaults am I allowed before I should be prosecuted? I need to know, because there are some people who desperately need shit beat out if them.

  68. #68 |  Derek | 

    I think you folks need to wake up and pay attention to what the U.S. Supreme Court is doing and has done to 42 U.S.C. 1983 actions. They have gutted them. The right wing court has basically made supporting police a prosecutors one of their primary agendas. Look at the most recent 4th Amendment decision in Kentucky v. King…..absolutely blasphemous bit of legal horse manure. Citizens should demand more. Learn your constitution and the premises and rights it secures…..and demand the Supremes quit their pro-police anti-citizen positions.

    Folks, most of this stuff stems from the stupid war on drugs. This single idea has robbed us of most of our basic protections under the constitution. This simply has to stop and we “the people” must demand it.

  69. #69 |  David | 

    The DA should not just be charged, he should be disbarred for life. This kind of legal misconduct is what makes the public think of lawyers as life forms lower than slime mold.

  70. #70 |  Dan Danknick | 

    First paragraph from a letter I just sent to Seth Williams:

  71. #71 |  Dan Danknick | 

    Radley, I appreciate your opinion on this. I riled me up the other day but you really drove the issue home for me. So here is the first paragraph from a letter I just sent to Seth Williams:

    I read the following on your website: “As the new District Attorney, I am committed to serving all of the people of Philadelphia fairly and ethically.” But after reading of your decision to prosecute Mark Fiorino, I think you’re full of shit.

    I’ve also suspended sales of my robot control systems to all LE organizations in PA, pending Seth’s “come to Jesus” moment. I know, punishing the innocent blah blah blah but it’s the handle I control so why shouldn’t I use it?

    Dan

  72. #72 |  John C. Randolph | 

    >Sgt. Dougherty was the worst offender. He should be busted to junior patrolman,

    That’s a wholly inadequate punishment for his reckless endangerment of a peaceful, innocent citizen. He should be looking at some serious time for assault.

    -jcr

  73. #73 |  Difster | 

    I keep wondering when the vigilante justice is going to begin. Not that I advocate violence against thuggish, dominating, armed maniacs. NOOO I would never actually support such a thing. Justice must only be through the courts! Yes, that’s it. Just through the courts; there’s other remedy. ;)

  74. #74 |  concerned | 

    Ignorance of the law is no excuse. Officer Michael Dougherty’s ignorance does not excuse his reckless endangerment, assault with a deadly weapon, his childish and unprofessional disorderly conduct, his unlawful arrest and abuse of process. What Sgt Michael Dougherty did was very dangerous, reckless, negligent and stupid. Sgt Michael Dougherty recklessly endangered lives. Sgt Dougherty committed aggravated assault, threatened a peaceful lawful citizen with deadly force, acted in an extremely unprofessional, childish and emotional manner, and lied (but thankfully was caught on tape). Thankfully the victim, Mark Firorino, remained calm, professional, orderly and rational and was able to deescalate the reckless situation Officer Dougherty created. Officer Michael Dougherty should suffer serious discipline and if he should remain on the Philadelphia police force at all, Sgt. Michael Dougherty should never be permitted to carry a firearm while on duty again. Officer Michael Dougherty’s reckess, dangerous, unlawful and disorderly conduct will likely and rightfully cost the City of Philadephia money time and resources.

    D.A. R Seth Williams is no better. Attorney R. Seth Williams charged the victim for Dougherty’s reckless endangerment and disorderly conduct after the truth became public when the recording was posted to youtube. R. Seth Williams’ retaliatory charges violate the the attorney’s code of ethics and constitutes malicious prosecution and abuse of process. If it has not already been done a bar complaint should be filed against R. Seth Williams and the state bar should exercise appropriate snactions against him.

  75. #75 |  Mike T | 

    Officers should not editorialize against open carry by private citizens in any way shape or form, or in any way suggest that a person should conceal their firearm. Suggestions and editorializing against lawful open carry may be interpreted as “commands” by civilians who are lawfully open carrying and may subject officers to complaints filed against them, as well as possible legal action against themselves and the department.

    Too bad this doesn’t carry the force of law. It should be a crime for an officer to do this. It should also be a crime for police to form unions, lobby collectively, hire lobbyists, etc. The states need the power to limit the free speech rights and political organization rights of government employees in order to keep the people from getting trampled.

  76. #76 |  Just a libertarian cop treading water | 

    [#35 | WhiteEFang | May 19th, 2011 at 1:29 pm
    What 2nd Amendment rights are involved here? This is a 4th Amendment illegal search and seizure and a First Amendment retaliation case. No more, no less. Call the ACLU.
    There may be state tort claims for i.e. failure to train/failure to supervise, but none these are gun issues.]

    This is absolutely beyond a shadow of a doubt, a 2A issue.
    This stop was done because a “mere citizen” dared carry a firearm openly.
    The police culture, ingrains from day one, that only police and bad guys have guns, so if you arent a cop, then you must be a bad guy.
    His 4A rights werent violated, because the cops were looking to violate his 4A rights.
    His 4A rights were violated because the “law enforcement officers” dont believe that the 2A applies to anyone, but who they approve of.
    This is police culture.
    I have been a cop for 21 years, and this IS the predominant attitude in police officers.
    Period.
    The tacking on of additional charges by the DA is also typical.
    This is how “law enforcement” is done, and has been done for as long as I have been involved in it.
    It will not change by employment terminations, suspensions, letters of reprimand, stern looks, ass chewings, etc….
    The people in the game have a financial incentive in following the group culture belief system, and they make and enforce the rules, that theyre governed by.
    It will not change until the punishment for abuse of power is more severe than what you could get for using non government approved drugs, or gambling, or prostitution, etc……
    Incarceration.
    But, between public employee unions from the left, and “law and order conservatives” from the right, they will keep this from happening, so, the long and short of it is, it aint gonna change.
    You are on your own.
    Always were.
    If you ever believed different, you were sadly mistaken.
    We got the rules we asked for, and well indoctrinated rule enforcers to stick it to the “other guy”.
    Until, every few years, another election makes “you” the other guy….

  77. #77 |  Buddy Hinton | 

    I don’t know about reckless endangerment or disorderly conduct, but Mr. Fiorino did apparently disobey an unlawful order by a policeman (specifically “get on your knees”). Is that a crime or not? I think the police think it is and we Totski’s think it is not.

    Myself, I don’t know what the answer is. Frankly, I would like to see a criminal court case if it could bring some clarification over whether it is okay to charge obstruction for failure to follow an unlawful police order. This is a wonderful case for it because the order is so demeaning and unneccessary and well documented.

    I am not that interested in open carry, but this case reminds me of the one from last year with the Canadian sci-fi authorize who was arrested on his way out of the country and convicted for not getting back into his car quickly enough. Presumably that was a lawful order in that case, tho. I would like to think that one can refuse to obey an unlawful order without committing a crime so long as the policeman is not actively resisted.

    To me, clarifying how far one is allowed to go when not obeying unlawful police orders is more important to me than the gun issues. If worst comes to worst, and it becomes clear that regcits have a duty to obey even unlawful police orders, then at least that fact can be used in beefing up civil remedies (eg, getting rid of qualified immunity) in that context. If, in the criminal context, the court says that the remedy for an unlawful order is to obey it and then seek compensation in court, then they cannot turn around and deny liability.

  78. #78 |  City of Brotherly Love | Truth and Justice For All | 

    […] did not post earlier on this matter, wishing to let the dust settle, but Radley Balko’s excellent commentary and outrage — and I mean OUTRAGE — at the unconscionable actions by the Philadelphia District […]

  79. #79 |  Dana Gower | 

    As of right now, if you type “philadelphia district attorney r. seth williams should be arrested” into google, you get 297 results. So the word is getting around.

  80. #80 |  John Giles | 

    Official oppression – 18 Pa. Cons. Stat. § 5301

    CHAPTER 53
    ABUSE OF OFFICE

    Sec.
    5301. Official oppression.
    5302. Speculating or wagering on official action or
    information.
    5303. Liability for reimbursement of costs for outside
    counsel.

    Enactment. Chapter 53 was added December 6, 1972, P.L.1482,
    No.334, effective in six months.
    Cross References. Chapter 53 is referred to in section
    5508.3 of Title 53 (Municipalities Generally); section 6017 of
    Title 64 (Public Authorities and Quasi-Public Corporations).
    § 5301. Official oppression.
    A person acting or purporting to act in an official capacity
    or taking advantage of such actual or purported capacity commits
    a misdemeanor of the second degree if, knowing that his conduct
    is illegal, he:
    (1) subjects another to arrest, detention, search,
    seizure, mistreatment, dispossession, assessment, lien or
    other infringement of personal or property rights; or
    (2) denies or impedes another in the exercise or
    enjoyment of any right, privilege, power or immunity.

    Section: Previous 5112 5121 5122 5123 5124 5125 5126 5301 5302 5303 5501 5502 5503 5504 5505 Next

    Last modified: November 27, 2007

  81. #81 |  WhiteEFang | 

    To: Just a libertarian cop treading water

    Cop may or may not hate lawful gun owners, but from the recording, it is pretty clear that he believed he was stopping the victim for a real crime. That he was an idiot who slept in training is a whole other issue.

    Seth Williams did much worse in the Gerald Ung case when he prosecuted a crime victim for fighting back. Fortunately the jury saw right through it.
    Like the case here, but more so, the action was caught on video.
    This is much more egregious:
    http://www.myfoxphilly.com/generic/news/Fox-29-Surveillance-Tape

  82. #82 |  WhiteEFang | 

    Maybe we should start calling Williams “the Nifong of the North!”

  83. #83 |  A friend of DA Williams | 

    I think that many of you have forgotten what life was like under the previous District Attorney and consequently are being much too hard on Seth Williams. The police were used to having everything their own way, stealing, raping and killing on a whim. Seth Williams has, much to everyone’s surprise, attempted to hold police liable for some of their more extreme actions. Fortunately there are many police, even within the Philadelphia Police and including Police Commissioner Ramsey, who are uneasy when their colleagues threaten, rape or kill innocent citizens.

    The Philadelphia Police know that they are the only significant armed group in the City. If the District Attorney attempts to act too quickly, he will lose what tenuous control Philadelphia citizens have over their cops. Former Philadelphia Police Inspector Daniel Castro reminded us last month of how difficult it is to convict a police officer – he walked despite openly admitting his criminal activity from the witness box.

    It is probable that the only reason that Mark Fiorino is still alive is Seth Williams (and Police Commissioner Ramsey), under other District Attorneys the police involved may well have decided that it was easier to explain what happened with Mark Fiorino dead. If the D.A. hadn’t brought criminal charges against him then the policemen involved might well have decided to solve the problem themselves, and he would be dead.

    You are judging Seth William’s as if he were a free agent – he’s not – he has to deal with the Philadelphia Police. If he acts too harshly – he will lose the support of those policemen who are willing to act under legal constraints.

    We don’t live in a perfect world – the only constraints most Philadelphia police accept are those that they impose on themselves – Seth Williams is as good a District Attorney as Philadelphia is likely to get.

  84. #84 |  Eric Seymour | 

    I live in southeast PA. Some time ago, an acquaintance told me that although it is legal to carry a handgun in Philly, if you do so the police will pick you up anyway, detain you, and then eventually release you without charges. The way he told it, this is all done intentionally with full knowledge of what the law actually is. Fiorino’s encounter aligns perfectly with this.

  85. #85 |  Dave Krueger | 

    #83 A friend of DA Williams

    Fortunately there are many police, even within the Philadelphia Police and including Police Commissioner Ramsey, who are uneasy when their colleagues threaten, rape or kill innocent citizens.

    Uneasy?

  86. #86 |  Dave Krueger | 

    #83 A friend of DA Williams

    It is probable that the only reason that Mark Fiorino is still alive is Seth Williams (and Police Commissioner Ramsey), under other District Attorneys the police involved may well have decided that it was easier to explain what happened with Mark Fiorino dead.

    So, Fiorino should appreciate that DA stepped in to wreck his life rather than let the cops kill him?

  87. #87 |  Lynn | 

    I would like to point out a minor, but important inconsistency between the original report and this editorial. The original report states:

    “Fiorino said he didn’t lay a trap for the cops. He regularly carries a recorder with him in case he ever has to use his gun and then offer proof of what transpired, he said.”

    My husband is a firearms instructor, and has been to several nationally recognised firearms training courses that advise this very thing.

    Fiorino wasn’t carrying a recorder in an attempt to document his historical issue with the cops. He was trying to do the right thing and accurately document the facts if he had to respond to a threat with lethal force. It’s a sad world we live in where that recorder came into play against LE instead of its original intended use.

  88. #88 |  philly girl | 

    A friend of DA Williams….as a long time resident of Philly….yes, I remember Lynn Abraham. She was horrible.

    With Seth’s office laying charges against Mark….is he trying to prove he as as bad as Lynn? From listening to the audio tape, it’s obvious (at least to me), that it wasn’t Mark that should have been charged, but Officer Dougherty!!

  89. #89 |  Wayne | 

    Is there a working link to the audio? YouTube seems to have lost it.

  90. #90 |  Spirit of '76 | 

    Sometimes, even an otherwise acceptable public hack must worry about the skeletons in his own closet…

  91. #91 |  Oath Breaker Dude | 

    We all know that Seth Williams is not going to be arrested. It is unlikely any justice whatsoever will come of this. But, in the meantime, here is some more dirt on the Philly DA:

    http://oathbreakers.blogspot.com/2011/05/oathbreaker-profile-r-seth-willaims.html

  92. #92 |  Nick T. | 

    Radley, I’m sure you’ve seen the fine on Joakim Noah for his obviously offensive conduct in last night’s Bulls game… it reminded me of the double standard you speak of here. Interesting that little if anything is being done to investigate or punish the fan who likely provoked Noah, and moreover no one is making excuses for the big man and saying ‘oh it’s an emotional and hard job being an nba player.’ People are all recognizing of course that only one person in the equation is on the job, only one person here is beholden to fans (taxpayers), only one person is in a position of higher respnsibility. Its not just that he’s a rich athlete, its cuz this is common sense. Everywhere but with cops of course.

  93. #93 |  Ben Dreidel | 

    “If you undertake a series of actions that are perfectly legal and well within your rights, but that cause government agents to react in irrational ways that jeopardize public safety, you are guilty of endangering the public.”

    You can also go to jail for ‘reckless driving’ if enough regular drivers don’t follow the law and you do.

    http://cycledallas.blogspot.com/2010/08/reed-bates-found-guilty-of-reckless.html

  94. #94 |  "Philadelphia District Attorney R. Seth Williams Should Be Arrested" | Cop Block | 

    […] disorderly conduct, but Radley Balko already wrote a great piece on the subject.  Here it is, from The Agitator:I wanted to comment a bit more on the Mark Fiorino story that guest blogger Dave Kruger posted […]

  95. #95 |  Philadelphia District Attorney R. Seth Williams Should Be Arrested « Liberty Planet Weblog | 

    […] Source: The Agitator […]

  96. #96 |  Mulysa's Asylum » Ignorance Is No Excuse Unless You’re A Cop | 

    […] Radley Balko, theagitator.com […]

  97. #97 |  big daddy | 

    That have a prosecutor in Seth’s office who dates gun toting drug dealers and nothing happens to her in fact they founf out by acident that she was dating the scumbag but she still kept her job, google Jenifer Mitrick insanity rules ion philadelphia

  98. #98 |  big daddy | 

    Here is a link So prsecute illegal gun toting drug dealers monday thru friday but date them on the weekends
    http://articles.philly.com/2011-05-20/news/29564507_1_drug-dealer-prosecutor-case

  99. #99 |  “Philadelphia District Attorney R. Seth Williams Should Be Arrested” | GrassrootsHeadlines.com | 

    […] disorderly conduct, but Radley Balko already wrote a great piece on the subject.  Here it is, from The Agitator: I wanted to comment a bit more on the Mark Fiorino story that guest blogger Dave Kruger posted […]

  100. #100 |  Margaret | 

    Wow, Somebody feels the same way I do. Arrest Seth Williams. He’s been colluding with environmental crimes and civil rights violations that risk life, have caused physical injury and much more toward neighbor of a ‘gentrification” project put together by close political friends and allies of his. He’s fully aware of the crimes and harm done and continues to protect his buddies while he endangers the lives of innocents. These are crimes and obstruction of justice. His favorite law firm knows all about environmental due diligence and crime. He was informed when he was Inspector General and continues to cause great harm by allowing these crimes. This is totally different case, but the Seth is definitely a good old boy who will literally kill off innocent citizens in order to protect crimes and money interests of his friends. District Attorneys ARE arrested. You have to turn stuff like this over to Feds and many sources and departments ( and they are all slow, slow , slow) outside of Philadelphia because Philly is corrupt to the top. Lynn A. ignored the same issue, but Seth’s personal friends are involved in the crimes.

  101. #101 |  Ignorance of the Law Is No Excuse . . . Unless You’re in Law Enforcement | The Agitator | 

    […] clear on the right to record on-duty police in Pennsylvania. Of course, when the city DA himself has no respect for the constitutional rights of his constituents, I guess we shouldn’t be surprised when […]

  102. #102 |  Police Violence in Philadelphia | Time News | 

    […] clear on the right to record on-duty police in Pennsylvania. Of course, when the city DA himself has no respect for the constitutional rights of his constituents, I guess we shouldn’t be surprised when […]

  103. #103 |  Police Violence in Philadelphia - Forbes | 

    […] clear on the right to record on-duty police in Pennsylvania. Of course, when the city DA himself has no respect for the constitutional rights of his constituents, I guess we shouldn’t be surprised when […]

  104. #104 |  The 2011 Worst Prosecutor of the Year Award | The Agitator | 

    […] threatened to kill a man because they were ignorant of state law. I’ll just repost a bit of what I wrote at the time: What Williams has done . . . is premeditated. Much more than the cops, Williams should know the […]

Leave a Reply