Off-duty actions of public figures in general/Shirvell/Armstrong case in particular

[heatmiserfl]

@Bricker

@heatmiserfl

You’re misunderstanding my post. I’m establishing his job as an official of the state and describing grounds for which he should be fired or at least suspended/demoted. I don’t need anything legal other than the job description of a public official in law enforcement of the State of Michigan. This requires upholding duties and certain ethical standards. BTW, not all that needs to be spelled out and as you said, some things are at the discretion of his boss.

Cite?

OTOH, Polycarp posted the legal definition of harassment and it looks likes his behavior, when you combine online bullying with showing up at Armstrong hangouts and contacting Armstrong, could be considered harassment.

And I responded to Polycarp’s post with a rebuttal. People v. White, 536 NW 2d 876 (Michigan Ct. Appeals 1995), specifically mentions picketing as a protected activity that does not violate Michigan’s harassment law, for example.

Where and how did he contact Armstrong?

Apart from the “he contacted Armstrong directly” claim, you can’t point to a single case where this kind of activity, in Michigan, has produced a criminal conviction. Because you can’t, because it isn’t illegal, because it can’t be, because it doesn’t fall within the reach of the law and because it’s conduct protected by the First Amendment. And this is the first I’ve seen someone say he contacted Armstrong directly, rather than simply show up to picket or protest.

I hate being in the position of defending this tool. I wish this were taking place in a state that had more defined cyberbullying laws. But I can’t simply turn off the critical thinking and join the chorus of, “Yeah, what a dick! Prosecute him!”

Wishing fervently that conduct was illegal does not make it so.

Sorry, I’m not going to find a cite describing every single type of instance a state attorney general can fire or reprimand an assistant state attorney general. Looks like he’s been put on leave. This article may hold relevance for you.

http://www.freep.com/article/20100930/NEWS06/100930080/1318/Assistant-AG-with-antigay-blog-appeals-order-to-keep-off-campus
As far as contacting Armstrong, Sampiro mentioned it in two separate posts and you responded to one of them. How did you forget already? Also, the article above mentions what Shirvell’s been doing. Here’s part of what was in the restraining order. edited to add: I see that Captain Amazing posted the restraining order in the post ahead of me.

University of Michigan student body president seeks restraining order against...

Regardless, I made it clear in my posts that my concern was what kind of position does he hold, with what duties and whether he should be reprimanded or fired. You can quibble with other people on the legal definition of harassment and whether or not he can be sued or have criminal charges brought on him.

[Bricker]

@heatmiserfl

Sorry, I’m not going to find a cite describing every single type of instance a state attorney general can fire or reprimand an assistant state attorney general. Looks like he’s been put on leave. This article may hold relevance for you.

http://www.freep.com/article/20100930/NEWS06/100930080/1318/Assistant-AG-with-antigay-blog-appeals-order-to-keep-off-campus

No, it doesn’t.

And … sorry, if you’re going to make a claim in Great Debates and then not provide a cite in support of it, I’m going to dismiss it. A gratuitous assertion may be equally gratuitously denied.

As far as contacting Armstrong, Sampiro mentioned it in two separate posts and you responded to one of them. How did you forget already? Also, the article above mentions what Shirvell’s been doing.

Yes, but both of those seem to derive from the same unsourced allegation by Cooper. What, specifically, was the contact? Look, I’d love to be able to hear about contact that was clearly directed at Armstrong that fits the bill. I don’t want to be in this shlub’s corner. Give me something definite.

Here’s part of what was in the restraining order. edited to add: I see that Captain Amazing posted the restraining order in the post ahead of me.
University of Michigan student body president seeks restraining order against assistant state attorney general

From that link:

Brown, asked why the trespass order was issued, said U-M police had received a complaint “about him being a possible suspect in harassing or stalking behavior.”

Surely you concede that being a “possible suspect” is not enough evidence to take any kind of employment action against someone.

I don’t see anything else in the cite to support any argument you might be making.

Regardless, I made it clear in my posts that my concern was what kind of position does he hold, with what duties and whether he should be reprimanded or fired. You can quibble with other people on the legal definition of harassment and whether or not he can be sued or have criminal charges brought on him.

And I made it clear that without some citation to the specific rules in play, you’re simply speculating.

[Really_Not_All_That_Bright]

@Bricker

And I responded to Polycarp’s post with a rebuttal. People v. White, 536 NW 2d 876 (Michigan Ct. Appeals 1995), specifically mentions picketing as a protected activity that does not violate Michigan’s harassment law, for example.

From your cited case:

In the case at bar, the stalking statutes address a wilful pattern of conduct, including, but not limited to, following or confronting the victim or calling the victim (i.e. conduct combined with speech), that would cause a reasonable person to feel terrorized, threatened, or harassed, and would cause a reasonable person in the victim’s position to suffer emotional distress. Sections 411h(1)(a)-(d) and 411i(1)(a), (c)-(d). The contact must be initiated or continued without the victim’s consent or in disregard of the victim’s desire to discontinue the contact. Sections 411h(1)(e) and 411i(1)(f). Both § 411h(1)(c) and § 411i(1)(d) state that “[h]arassment does not include constitutionally protected activity or conduct that serves a legitimate purpose,” and such protected activity or conduct has been defined as labor picketing or other organized protests.

Whatever Shirley was doing, I very much doubt it constitutes an “organized protest”.

[Yllaria]

@Lemur866

I once knew a woman with the last name of Cox. Her first name was Ophelia. Great job there, parents.

Tell me her middle name didn’t start with a D.

[Bricker]

@Really_Not_All_That_Bright

Whatever Shirley was doing, I very much doubt it constitutes an “organized protest”.

[ul]
[li]Picketing outside the Micigan League protesting the MSA’s “Day of Change”[/li][li]Speaking at the MSA and asking them to impeach Armstrong[/li][li]Appearing at the counter-protest rally organized by the Stonewall Democrats with a sign criticizing Armstrong for being a liar and a member of the “Order of Angell.”[/li][/ul]

In what way do these actions not meet the definitions of “organized protest?”

[Really_Not_All_That_Bright]

… loitering outside Armstrong’s house.

[Captain_Amazing]

@Bricker

[
Yes, but both of those seem to derive from the same unsourced allegation by Cooper. What, specifically, was the contact? Look, I’d love to be able to hear about contact that was clearly directed at Armstrong that fits the bill. I don’t want to be in this shlub’s corner. Give me something definite.

Well, according to Armstrong’s restraining order, Shirvell:

[ul]Heckled Armstrong at a rally
[li]Followed him after the rally calling Armstrong a racist[/li][li]Posted fliers advertising his anti-Armstrong blog in "restricted areas of the campus[/li][li]Followed his friend Ashley around waiting for Armstrong to meet her[/li][li]Contacted his friend John advertising Shirvell’s anti-Armstrong blog[/li][li]Repeatedly called Armstrong’s internship office to accuse him of being a racist[/li][li]Protested him outside the night club Necto[/li][li]Confronted Armstrong’s friend Mical, telling her he knew where she lived and saying he would show up at her house when she was throwing a party[/li][li]Went to Armstrong’s house when he was throwing a party and stood outside taking pictures of the party.[/li][li]Protested outside Armstrong’s house.[/li][li]Picketed outside the Michigan League because the MSA was there[/li][li]Attended the school event “Gayz Craze” approaching the resource tables and defaming Armstrong’s character[/li][li]Attended the event "Pre-Clash Bash, which was closed for U of M students[/li][li]Showed up at Armstrong’s house again when Armstrong wasn’t home[/li][li]Went to the weekly MSA meeting to advocate that Armstrong be impeached and telling Armstrong’s friend Brian that he would continue attending until Armstrong was impeached or resigned.[/ul][/li]
Now some of these actions are clearly within Shirvell’s first amendment rights, but considered in their totality there seems to me, at least, to be a pattern of harassment.

[Captain_Amazing]

@Bricker

@Really_Not_All_That_Bright

Whatever Shirley was doing, I very much doubt it constitutes an “organized protest”.

[ul]
[li]Picketing outside the Micigan League protesting the MSA’s “Day of Change”[/li][li]Speaking at the MSA and asking them to impeach Armstrong[/li][li]Appearing at the counter-protest rally organized by the Stonewall Democrats with a sign criticizing Armstrong for being a liar and a member of the “Order of Angell.”[/li][/ul]

In what way do these actions not meet the definitions of “organized protest?”

Can it be an “organized protest” when it’s one person acting alone, or does “organized” require some sort of group organization?

[Jack_Batty]

@Captain_Amazing

Well, according to Armstrong’s restraining order, Shirvell:

[ul]Heckled Armstrong at a rally
[li]Followed him after the rally calling Armstrong a racist[/li][li]Posted fliers advertising his anti-Armstrong blog in "restricted areas of the campus[/li][li]Followed his friend Ashley around waiting for Armstrong to meet her[/li][li]Contacted his friend John advertising Shirvell’s anti-Armstrong blog[/li][li]Repeatedly called Armstrong’s internship office to accuse him of being a racist[/li][li]Protested him outside the night club Necto[/li][li]Confronted Armstrong’s friend Mical, telling her he knew where she lived and saying he would show up at her house when she was throwing a party[/li][li]Went to Armstrong’s house when he was throwing a party and stood outside taking pictures of the party.[/li][li]Protested outside Armstrong’s house.[/li][li]Picketed outside the Michigan League because the MSA was there[/li][li]Attended the school event “Gayz Craze” approaching the resource tables and defaming Armstrong’s character[/li][li]Attended the event "Pre-Clash Bash, which was closed for U of M students[/li][li]Showed up at Armstrong’s house again when Armstrong wasn’t home[/li][li]Went to the weekly MSA meeting to advocate that Armstrong be impeached and telling Armstrong’s friend Brian that he would continue attending until Armstrong was impeached or resigned.[/ul][/li]

Between all of this and scribbling “Mrs. Andrew Shirvell-Armstrong” over and over in his legal pads, how does even find time to be an Assistant District Attorney?

[Bricker]

@Really_Not_All_That_Bright

Whatever Shirley was doing, I very much doubt it constitutes an “organized protest”.

@Bricker

[ul]
[li]Picketing outside the Micigan League protesting the MSA’s “Day of Change”[/li][li]Speaking at the MSA and asking them to impeach Armstrong[/li][li]Appearing at the counter-protest rally organized by the Stonewall Democrats with a sign criticizing Armstrong for being a liar and a member of the “Order of Angell.”[/li][/ul]

In what way do these actions not meet the definitions of “organized protest?”

@Really_Not_All_That_Bright

… loitering outside Armstrong’s house.

“Loitering” is to linger about without purpose.

He had a purpose.

Were protesters outside Karl Rove’s house loitering?

[Bricker]

@Captain_Amazing

@Bricker

[
Yes, but both of those seem to derive from the same unsourced allegation by Cooper. What, specifically, was the contact? Look, I’d love to be able to hear about contact that was clearly directed at Armstrong that fits the bill. I don’t want to be in this shlub’s corner. Give me something definite.

Well, according to Armstrong’s restraining order, Shirvell:

[ul]Heckled Armstrong at a rally
[li]Followed him after the rally calling Armstrong a racist[/li][li]Posted fliers advertising his anti-Armstrong blog in "restricted areas of the campus[/li][li]Followed his friend Ashley around waiting for Armstrong to meet her[/li][li]Contacted his friend John advertising Shirvell’s anti-Armstrong blog[/li][li]Repeatedly called Armstrong’s internship office to accuse him of being a racist[/li][li]Protested him outside the night club Necto[/li][li]Confronted Armstrong’s friend Mical, telling her he knew where she lived and saying he would show up at her house when she was throwing a party[/li][li]Went to Armstrong’s house when he was throwing a party and stood outside taking pictures of the party.[/li][li]Protested outside Armstrong’s house.[/li][li]Picketed outside the Michigan League because the MSA was there[/li][li]Attended the school event “Gayz Craze” approaching the resource tables and defaming Armstrong’s character[/li][li]Attended the event "Pre-Clash Bash, which was closed for U of M students[/li][li]Showed up at Armstrong’s house again when Armstrong wasn’t home[/li][li]Went to the weekly MSA meeting to advocate that Armstrong be impeached and telling Armstrong’s friend Brian that he would continue attending until Armstrong was impeached or resigned.[/ul][/li]
Now some of these actions are clearly within Shirvell’s first amendment rights, but considered in their totality there seems to me, at least, to be a pattern of harassment.

I don’t believe you can say, “Well, some of these are protected, but in total, it’s harassment.” A protected activity is protected, period. It does not fall within the reach of the statute. It is a nullity.

[Really_Not_All_That_Bright]

@Bricker

@Really_Not_All_That_Bright

… loitering outside Armstrong’s house.

“Loitering” is to linger about without purpose.

He had a purpose.

Were protesters outside Karl Rove’s house loitering?

He doesn’t appear to have had a legitimate purpose. As Captain Amazing noted, there’s certainly a question regarding whether one guy with a video camera is engaging in “organized protest”.

[Captain_Amazing]

@Bricker

I don’t believe you can say, “Well, some of these are protected, but in total, it’s harassment.” A protected activity is protected, period. It does not fall within the reach of the statute. It is a nullity.

“Your Honor, you need to dismiss the charges against my client. My client had sex with a woman, which is a perfectly legal activity, and he gave her money, which is a perfectly legal activity. None of my client’s activities were illegal, so you need to dismiss the charges.”

Some of Shirvell’s actions are, in themselves, explicitly constitutionally protected, and those actions don’t contribute to the harassment, under the law, but the others aren’t, and looking at the ones that aren’t, they seem to constitute “contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued”.

[Bricker]

@Really_Not_All_That_Bright

@Bricker

“Loitering” is to linger about without purpose.

He had a purpose.

Were protesters outside Karl Rove’s house loitering?

He doesn’t appear to have had a legitimate purpose. As Captain Amazing noted, there’s certainly a question regarding whether one guy with a video camera is engaging in “organized protest”.

What about the rule of lenity in construing criminal statutes? If, as you concede, there’s a question, then the statute does not fairly describe the prohibited conduct.

[Bricker]

@Captain_Amazing

@Bricker

I don’t believe you can say, “Well, some of these are protected, but in total, it’s harassment.” A protected activity is protected, period. It does not fall within the reach of the statute. It is a nullity.

“Your Honor, you need to dismiss the charges against my client. My client had sex with a woman, which is a perfectly legal activity, and he gave her money, which is a perfectly legal activity. None of my client’s activities were illegal, so you need to dismiss the charges.”

Clever. But inapposite. Those are different elements of a crime. Here we are discussing not different elements of a crime, but behaviors which are simply not criminal, period. He is permitted to protest at a gathering, period. You can’t bootstrap that behavior onto other actions to argue that their totality is harassment when the statute explicitly permits them.

Some of Shirvell’s actions are, in themselves, explicitly constitutionally protected, and those actions don’t contribute to the harassment, under the law, but the others aren’t, and looking at the ones that aren’t, they seem to constitute “contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued”.

So if Karl Rove lived in Michigan and a few of the looney left that protested at his house did the same thing there, and followed him to events holding signs, and hosted a blog highly critical of his friends, family, political goals, etc… would you say Rove also had recourse to harassment charges? As you cogently observed, that was also conduct that constituted “contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued.”

[Sampiro]

So if he’s not in violation of a law (which is an if), do you think Cox would be within his reasonable rights to fire him?

These are some excerpts from last night’s AC360. I’m curious to hear how Bricker especially would respond to these statements. (Toobin & Tierney are both lawyers; Toobin graduated from Harvard and Tierney is a professor at Columbia.)
I’ve snipped some for brevity but I don’t think I’ve changed context at any point.

TOOBIN: But there is such ample grounds to fire this guy or at least at a minimum to suspend him, that I think Attorney General Cox’s position is increasingly just implausible in the extreme.
TIERNEY: … I’m not an expert on Michigan civil service law, but I will say this. The A.G. offices are not democracies. OK, there’s a boss. And you don’t work 9:00 to 5:00 when you work for the Attorney General because you become kind of a symbol.

---

Tierney: *t’s not free speech. He does have the Constitutional right to free speech. What he doesn’t have is a Constitutional right to a job. Ok, so that’s – that’s the issue at hand.

And so the question really becomes if you can’t fire him or if you think you can’t fire him then suspend him. And if you can’t suspend him, put him in an office and tell him to play solitaire all day. But you don’t let him sign public documents, you don’t let him walk around and you don’t let him identify himself as a law enforcement officer of the state. You just can’t do that.

COOPER: Is this stalking? …[T]he Michigan Penal Code which defines stalking -as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed or – or molested.”

Would that – I mean, would that apply[snip]

TOOBIN: I read that definition today and I thought to myself, bingo. I mean, this is exactly what Armstrong is being made to feel. Remember, it’s a subjective standard, that meaning that causes him to feel. It depends on how he feels.

***Armstrong obviously, when you read that, really chilling summary of his affidavit, when he’s asking the court for protection, the list of things, not just blog posts, but physical contact in the sense of showing up at things, that Shirvell has done over the past several months, it’s scary as hell.

And – and Armstrong is obviously scared, and that is definitely, at least in my opinion, within the definition of stalking.***

---

TOOBIN: This isn’t about ideas – … this is about his harassment of a single individual. The –

COOPER: I’m trying to come up with something to argue the point.

TOOBIN: Yes – but – but I mean, that – that’s why I don’t – I don’t think the – the – the analogy holds. And – and the other point is he has no recourse, Armstrong. I mean, he – he has nothing to do except go to court to try to get relief from this person, because he’s operating unimpeded by his own employer.

[Bricker]

@Sampiro

Tierney: *t’s not free speech. He does have the Constitutional right to free speech. What he doesn’t have is a Constitutional right to a job. Ok, so that’s – that’s the issue at hand.

And so the question really becomes if you can’t fire him or if you think you can’t fire him then suspend him. And if you can’t suspend him, put him in an office and tell him to play solitaire all day. But you don’t let him sign public documents, you don’t let him walk around and you don’t let him identify himself as a law enforcement officer of the state. You just can’t do that.

I’ll answer in more detail later, but this leapt out at me.

He did acknowledge earlier he didn’t know Michigan civil service law. But what kind of an attorney is he if he doesn’t understand what constructive dismissal is? This sounds like the kind of dim-bulb solution you might read on the comments section of a website.

No. if you can’t fire or suspend him, then guess what? You also can’t cleverly dodge the letter of the law by “put[ting] him in an office and tell[ing] him to play solitaire all day.” My reliance on any legal insight coming from someone with that opinion is… very small indeed.

His academic and job quals are nothing to sneeze at, i grant. but I think Jim Tierney is answering this question politically, not legally.

[Bricker]

And again let me ask: if Karl Rove testified that he felt frightened by the protesters outside his house, would that be enough?

Under the law, why not?

[Steve_MB]

Quick observation: if Shirvell is straight, I’m the True King of Gondor.

[Captain_Amazing]

@Bricker

Some of Shirvell’s actions are, in themselves, explicitly constitutionally protected, and those actions don’t contribute to the harassment, under the law, but the others aren’t, and looking at the ones that aren’t, they seem to constitute “contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued”.

So if Karl Rove lived in Michigan and a few of the looney left that protested at his house did the same thing there, and followed him to events holding signs, and hosted a blog highly critical of his friends, family, political goals, etc… would you say Rove also had recourse to harassment charges? As you cogently observed, that was also conduct that constituted “contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued.”

No, you’re totally misunderstanding what I’m saying. Shirvell is totally within his rights to heckle Armstrong at public events, to picket outside of public gatherings and to address the MSA to ask them to impeach Armstrong. He’s completely within his rights to do those things, and the only reason I included them in the list was because I was trying to make a complete list of the things Armstrong claimed that Shirvell did to him.

Shirvell isn’t within his rights, though, to repeatedly call Armstrong’s place of employment to attempt to get him fired, to follow Armstrong’s friends in the hope that Armstrong will appear, to picket Armstrong at private events not open to the public, thereby tresspass, to confront Armstrong’s friends about Armstrong, to stand outside of Armstrong’s house and photograph it, and to go to Armstrong’s house with the intention of confronting Armstrong.

I’m saying that these events (the events in the second paragraph, not the first), could represent a pattern of harassment. And if people did things like I described in the second paragraph to Karl Rove, that could also represent a pattern of harassment.