Mimesis Law
23 October 2017

Rappers May Want to Avoid Pennsylvania

Fault Lines, (February 7, 2017) — So what is it exactly that makes Pennsylvania prosecutors hate rap so much? Rashee Beasley and his friend Jamal Knox were arrested in April 2012 in Pittsburgh in joint possession of a sizable amount of heroin, cash and a gun. As a result, they were charged with relevant offenses. As will be important, the officers who arrested them were named Zeltner and Kosko.

None of that is particularly remarkable.

But an enterprising police officer decided to do some extra “investigation,” and discovered Beasley’s Facebook page under his rap alias “Baez Mooga.” On this page, the officer then discovered a music video, featuring both Beasley and Knox rapping a song called “Fuck the Police.”

The song contained the following relevant lines:

This first verse is for Officer Zeltner and all you fed force bitches
and Mr. Kosko, you can suck my dick you keep on knocking my riches
you want beef, well cracker I’m wit it
that whole department can get it
all these soldiers in my committee gone fuck over you bitches
fuck the police, bitch I said it loud

we making prank calls, as soon as you bitches come we bustin’ heavy metal
they chase me through these streets
and I’m a jam this rusty knife all in his guts and trust its beef
you taking money away from Beaz and all my shit away from me
well your shift over at three/ and I’m gone fuckup where you sleep

I keep a forty on waist, I’m gonna wet you like a mop nigga, clip filled to the tippy top wit som cop killas.
Fuck the police, don’t bring us no peace
That’s why I keep my heat when I’m roamin the streets, cause if you jump out it’s gonna be a dump out.
I got my glock and best believe dog gonna bring the pump out, and I’m hittin your chest. Don’t tell me stop cause I’m resisting arrest.
I ain’t really a rapper, but I spit wit the best.
I ain’t carry no 38 dog, I spit wit a tec
Tha’t like 50 shots nigga, that’s enough to hit one cop on 50 blocks nigga
I said fuck the cops nigga.
They got me sittin in a cell, watchin my life just pass me, but I ain’t wit that shit like Poploski[1]
I’m strap nasty.

My momma told me not to put this on C.D., but I’m gonna make this fuckin city believe me, so nigga turn me up.
If Dre was here they wouldn’t fuck wit dis here.
Loccs in the army, when he comes back it’s real nigga, you bootin up.
Fuck the police, I said it Loud, we’ll repeat that.
Fuck the Police, I’m blowin loud wit my seat back.
They cool and that, well Mr. Fed, if you can hear me bitch, go tell your daddy that we’re booming bricks.
And them informants that you got, fit to be layin in the posse and I know exactly who workin, and I’m gonna kill him wit a glock.
Quote that!
Cause when you find that pussy lyin in the street, look at the shells and put my shit on repeat, and that’s on.
Jesus’ blood.
Let’s kill these cops, cause they don’t do us no good, pullin your glock out cause I live in the hood.
You dirty Bitches, Bitch.

Based on the rap song, police charged both Beasley and Knox with witness intimidation and making terroristic threats. The operative laws required that the men knowingly communicated threats to the police, with the intent to obstruct the administration of justice and the intent to terrorize the target of the threat, respectively.

After a bench trial, the judge convicted both men of both of these charges. Beasley was sentenced to 12-36 months in prison and Knox was sentenced 24-72 months in prison. Predictably, after their convictions both men appealed and argued that their convictions were in violation of the First Amendment.

Oddly, the appeals were dealt with separately by the appellate courts. First, in Beasley’s case, he argued that it was unconstitutional for him to be prosecuted for making threats to the officers because he had not intended to threaten the officers. Rather snarkily, the court rejected this notion because Beasley:

stated his intent by saying in his rap song: “My momma told me not to put this on C.D., but I’m gonna make this fuckin city believe me, so nigga turn me up.” Appellant chose not to listen to his mother because he wanted Officers Zeltner and Kosko to hear his message, and they did. He successfully and intentionally communicated his threat.

Beasley sought review in the Supreme Court, and was denied.

In Knox’s case, a separate panel of the appellate court deemed his First Amendment challenge waived, and declined to rule on the issue at all. On the merits, the court determined that the video was “posted to publicly available websites” and thus, the “trial court, sitting as a fact-finder, was permitted to infer from this evidence that Knox knew that these lyrics would be seen by the police or by third parties who would then notify the police.”

The Supreme Court of Pennsylvania, however, agreed to review only Knox’s case, and only on the First Amendment basis. Interestingly, the Court granted review despite recognizing that the First Amendment issue had been passed by the lower court.

If all of this seems a tad familiar, it’s because a remarkably similar scenario played itself out a few years ago, in the eastern half of the state in a case that went all the way to the Supreme Court of the United States.

Anthony Elonis posted a variety of what he described as satire on his Facebook page following what appeared to be a very contentious divorce. After making some borderline threatening posts, including one that joked about stabbing a coworker in the neck, he was fired from his job. He then made another post where he wrote about his “fuckin’ scary” and “sinister plans” for his co-workers. This was followed by a post where he presented a “sketch” about how much he “want[ed] to kill [his] wife.” These posts soon escalated further, and, after he was issued a restraining order from his wife, he asked online if it was “thick enough to stop a bullet?” He also posted about being “strapped wit’ a bomb” and about “initiat[ing] the most heinous school shooting ever imagined.”

The U.S. Attorney in Philadelphia didn’t find any of this funny and charged Elonis with making criminal threats. After a trial he was convicted and sentenced to prison.

Eventually the Supreme Court reversed the conviction, but on very narrow grounds. At trial the government had not been required to prove that Elonis actually intended his statements to be true threats, and instead argued that it was enough that the listener would interpret the statements as such. The Court decided that was improper, finding instead that the statute at issue actually required proof of his intent. Many of the advocates had also argued that the First Amendment required such an intent requirement, but the Court didn’t go there as it felt it was unnecessary. Instead, they just sent the case back to the Third Circuit to think about it some more.

Despite what the Court didn’t decide in Elonis, a number of courts have accepted the premise that the mens rea suggested by the Court is probably constitutionally necessary. The better path is to avoid the constitutional problem entirely, and adopt the scienter requirement.

Back to Beasley and Knox, we can see how they probably don’t have much of a chance of being successful in the Supreme Court. Both men were tried by a judge, who applied statutes requiring that they intended to obstruct justice and threaten the police with their song. We might think that isn’t really the case, but it is the fact-finder’s province to make the call.

This means that even if Elonismens rea requirement is constitutionally required, Beasley and Knox could still be convicted. The whole issue with Elonis was that the jury wasn’t told to apply the correct standard. The Court sent it back for application of the correct standard, and, guess what? The Third Circuit concluded that the error was harmless and that the jury would have convicted him anyway, and affirmed his conviction yet again.

Beasley and Knox will almost surely have their convictions affirmed as well.[2]

The greater problem with Beasley and Knox’s prosecutions is that it would seem, as an outside observer, that neither man genuinely intended their song to be a true threat of violence to the police officers. This isn’t a situation where they went up to the officer and said something threatening. Instead they made a song, which, if you knew where to look, you could find on Facebook.

It seems ridiculous to think these men knew that the officers were going to go snooping around on Facebook, find the song, and then be genuinely threatened by it, and that was their intended outcome. These guys are probably like every client I have ever had who has posted something unfortunate on Facebook. I doubt it ever even occurred to them that the cops would be looking.

The lyrics of Beasley and Knox’s “Fuck the Police” also aren’t really that much more explicit or violent than the classic, “Fuck Tha Police.” Both songs openly call for the murder of police officers, but, as obvious expressive works, we, as listeners, don’t necessarily assume that they are to be read literally. Both songs should be read as songs, not literal threats.

The operative difference is that Beasley and Knox identified the officers by name. But that doesn’t necessarily make a constitutional difference. Either the song is a true threat of violence or it isn’t. The First Amendment permits calling out individuals for expressive attack, even if that attack is vulgar and hyperbolic.

But none of these problems are of legal significance in these cases. These are trial arguments that the judge apparently rejected. Whatever the wisdom of that decision, I suspect it will hold up in the courts.

What really went wrong in this case was the use of prosecutorial discretion. Beasley and Knox had apparently already been caught red-handed with drugs and a gun. That should have been enough to send them to prison. Pursuing this borderline prosecution doesn’t seem to serve much of a purpose.

I guess the ADA wasn’t a rap fan.

[1] This is an apparent reference to Richard Poplawski, who was sentenced to death for murdering three Pittsburgh police officers.

[2] Beasley also appears to be totally out of luck no matter what the Court decides because the Supreme Court didn’t agree to review his case at all.

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