Mimesis Law
23 May 2019

Mark Tolson Learns Blue Lives Matter In Washington State

July 25, 2016 (Fault Lines) — Given the events of the last few weeks, it’s not hard to imagine a more divisive moment in our nation’s recent history when it comes to relations between minorities and law enforcement. Cops are so tense they’re actively monitoring Facebook accounts and arresting people for even negligently posted anti-cop rhetoric.  When you find a reason to charge a man in the booking process with a “hate crime” after he makes a nasty statement to cops, you’ve reached a new level of tense.  This is how tightly wound Pierce County, Washington’s cops are at the moment, and why Mark Tolson faces two harassment charges instead of one.

The decision to charge Mark Tolson, 55, with malicious harassment, the state’s hate crime, stems in part from the national atmosphere after the recent killings of police officers in Dallas and Baton Rouge.

“Protecting the public includes protecting our officers,” Prosecutor Mark Lindquist said in a statement. “The officer took the defendant’s threats seriously because of recent events and so do we.”

Lindquist said he can’t remember another local case in which a police officer was a victim of a hate crime.

That’s probably because, until legislation started popping up at the Federal and State levels placing a job in the same category as those with immutable characteristics like race and sexual orientation, Lindquist hadn’t given the idea of charging anyone who threatened a cop under the “malicious harassment” statute.  A quick look at the relevant law provides the following “justification” for the charge.

  1. A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:…

Wait a second.  “Job description” isn’t in the mix of those “perceptions” covered under the malicious harassment statute. There’s no line in the original clause of Washington’s “malicious harassment” statute covering “police officers” as a protected class.  Let’s keep digging further and see if there’s at least a remote justification for slapping extra charges on Mark Tolson.

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. (Emphasis added.)

That section might cover Tolson’s malicious harassment charge, since according to the officer Tolson threatened he was in fear for his life, given the recent shootings in Dallas and Baton Rouge. That bolded statement is important when discussing Tolson’s “malicious harassment” charge, because taken in light of all the circumstances there’s a good question whether a “reasonable person” would experience the same fear as the unnamed officer.

Police said Tolson made the threat while being booked after his arrest for domestic violence against an ex-girlfriend.

As police prepared to book Tolson into the Pierce County Jail, he told an officer the four Lakewood police officers who were gunned down in 2009 “got what they deserved.”

He also said that when he got out of jail he would make the officer “like them,” according to court records.

Tolson also told the officer, one of those who transported him from the scene to jail, he “was a racist white cop.”

Tolson is in police custody, going through booking over an alleged domestic violence situation.  He’s arguably surrounded by other cops, and most likely either in handcuffs or detained in a fashion that would cause anyone, especially after being arrested over a domestic violence call, ready to respond in an irritable fashion.  Under those circumstances, it’s not hard to see how Tolson would start calling the officers names and making wildly negligent statements to the officers around him.

As dicey as this prosecution looks, the last part of the “malicious harassment” statute eliminates any question the charge is bogus. First, we return back to the original language excluding “police officer” from the classes protected by Washington State’s “malicious harassment” law.  Then there’s a little matter about words not hurting and harming “victims” as much as DA Lindquist would have you believe.

For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat. (Emphasis added.)

Assuming for the sake of argument police were a protected class, Tolson’s statements alone don’t give rise to “malicious harassment.”  There’s not even a suggestion Tolson could have carried out his threat to make our unnamed officer “like” the four deceased Lakewood officers.  This alleged “victim’s” expression of being in fear for his life carries with it absolutely no validation in the eyes of the law.

Unfortunately, Mark Tolson is the first in what will likely be a long string of prosecutions for silly statements, “perceived” as “threats” against police officers, in a year where “law and order” means more to the public than “due process,” “rule of law,” and “constitutional rights.”  Every successful prosecution, even if under as spurious set of circumstances as these, will only add credence to the narrative that cops deserve the same “protected class” status as minorities get under existing hate crime laws.  Mark Tolson may beat this rap, but if the current state of the nation is any indicator, his is the first in a long series of unbeaten rides in our march to proclaim “Blue Lives Matter.”

10 Comments on this post.

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  • brenda dick
    25 July 2016 at 9:25 am - Reply

    Funny how if this was reversed and it was against a specific race or religion you’d side with them. The rhetoric being seen and acted upon lately, against law enforcement, is beyond “words” it is now becoming an entrenched ideology and that is dangerous. We are all protected people under our Constitution yet you state they are only doing it because of their “job”. Well, that JOB is what puts them in the community and it that JOB that puts them in the line of fire, with citizens believing the ideology that now they deserve to die- ALL OF THEM. While some don’t respect that JOB and need to be taken care of, no doubt, most do and to simply say that these comments are acceptable and should not be addressed is ignorant and only allows the ideology to grow. Hate speech is hate speech and the last time I looked the badge doesn’t have a heartbeat the person wearing it does and they deserve protection, too. It sickens me to read this when I myself have seen posts that make me absolutely fearful and sick and you think it is okay? PLease. Either we hold “all” hate speech accountable or none. Guess all those postings by terrorists are okay too- right? So over this PC crap.

    • CLS
      25 July 2016 at 9:56 am - Reply

      Brenda:

      Let me see if I can EXPLAIN this in a MANNER you’ll understand a little better.
      COPS choose to be COPS. Minorities don’t CHOOSE to be minorities.
      COPS HAVE extra PROTECTION than the average CITIZEN enjoys due to collective bargaining from law ENFORCEMENT unions. They don’t need to be included in HATE CRIME laws as a PROTECTED class.
      The law in this CASE doesn’t cover cops. The CHARGE is therefore BOGUS.
      There’s no LEGAL DEFINITION of hate SPEECH in America.

      Now that I responded by taking RANDOM WORDS IN ALL CAPS did it clarify your understanding?
      Glad TO help.

      • shg
        25 July 2016 at 10:38 am - Reply

        Love the random caps. You have a future as a crazy like Brenda if you ever decide to give up logical reasoning.

        • CLS
          25 July 2016 at 11:32 am - Reply

          Sometimes effective communication requires speaking on the other person’s level.
          Even if they are absolutely [ableist slur].

  • Eva
    25 July 2016 at 12:11 pm - Reply

    It is a sad state of affairs that law enforcement apparently allow themselves to be exposed and react over much to some of what could be hyperbolic nonsense by actively looking for people posting negative things regarding cops on Facebook.

    Their jobs already stressful enough and does this help bottom line help with relations with the public. To me, it could make it worse the public negative perceptions that some cops may have and from what I understand the public particularly in this situation it is “BOGUS” charges (Thank you CLS)may reinforce any negative perceptions the average citizen may have of law enforcement.

  • Greg Prickett
    25 July 2016 at 1:52 pm - Reply

    OK, what’s the problem with the charge? In Texas, we would charge people with Obstruction or Retaliation, Tex. Pen. Code § 36.06 if they said that to an arresting or booking officer. It’s a 3d degree felony (2-10 years) if a cop or other public servant, but a 2d degree felony if a juror (2-20).

    You don’t get to indiscriminately threaten police who have arrested you.

    Note that I’m making a distinction between on-line comments and comments made directly to the officer that he would take action after he got out of jail.

    • CLS
      25 July 2016 at 2:06 pm - Reply

      The distinction is the citation in Texas law you used actually puts a “peace officer” in a class that, according to the statute, warrants penalization for a threat. Washington State’s “malicious harassment” statute doesn’t cover that, and it doesn’t specifically lay out the threat alone is justification for the charge. There has to be actual background that says someone would reasonably construe the threat as something the “victim” could carry out.

      No one should threaten peace officers. Here the threat carries about as much weight as the awful Samuel L. Jackson reboot of “Shaft” swearing he was in fear for his life when he pulled an icepick out of Peoples’ Hernandez’s coat on arrest.

      • Greg Prickett
        25 July 2016 at 5:51 pm - Reply

        OK, works for me.

  • Wilbur
    26 July 2016 at 4:59 pm - Reply

    Florida has an interesting version of this sort of law under 838.021, which (paraphrasing) makes it a crime to threaten to harm any public servant (or immediate family or any person with whose welfare the public servant is interested). The kicker is that the threat must be made with the intent to influence the performance of any act or omission within their discretion or public duty.

    So you encounter situations where an individual under arrest may threaten to kill a police officer and his family, and then goes on to tell the officer where the officer lives, but unless the State can tie this threat to an intent to somehow influence the officer, then the threats go uncharged by the prosecutor’s office.

  • Ernest Matthews Is The Right Scapegoat At The Wrong Time
    11 August 2016 at 9:22 am - Reply

    […] officers in Texas and Louisiana.  With arrests for negligent Facebook posts on the rise, and the new crime of “hate speech against a cop” gaining traction, it sadly appears Matthews won’t be the last […]