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Wednesday, December 19, 2007

The Jena Six

In August 2006, in the small town of Jena, a freshman African-American student asked the principal of the high school if African-American students were allowed to sit under the shade tree that the white students typically sat under. The principal told him students could sit wherever they wanted, and the student sat under the tree. The night after he did so, however, three white students hung nooses from the tree. Upset by the nooses, the African-American students held a protest under the tree. The principle of the school called a school assembly and had the police and the local district attorney, Reed Walters, speak to the entire school. Mr. Walters told the school that if they misbehaved that "With one stroke of my pen, I can make your life disappear."

His statement did not ease the tension, and no charges were filed against the three boys that hung the nooses. After multiple fights between blacks and whites on campus, someone burned down the school on November 30. The next night, a black student was attacked at a predominately white party, but no one was charged with a crime. The day after the student, Robert Bailey, was attacked, a white student argued with him at a local corner store. The white student pulled a gun from his truck, but Bailey managed to take the gun away from him. Because Bailey took the gun home with him, he was charged with theft of a firearm. The white student was not charged with anything.

At school the following Monday, a white student, Justin Barker, taunted Bailey by saying that he was beaten by a white guy. In retaliation, some black students later attacked Barker. During the attack, Barker was knocked out, punched, and kicked multiple times. He went to the hospital for a few hours, but was released the same day and went to a school social event later that evening. Reed Walters charged six black students with attacking Barker. The charge was attempted second-degree murder, and even though they were all under 18, he charged them as adults.

The first student to be tried, Mychal Bell, was convicted of aggravated battery, but his conviction was overturned by a Louisiana appellate court because he could not be charged with aggravated battery as an adult because he was only 16-years-old at the time of the crime.

Many people believe that the district attorney, Mr. Walters, is overlooking crimes committed by whites and pursuing black students too aggressively. In response to this intense criticism, Mr. Walters wrote a New York Times opinion expressing his views of the situation. He claimed, inter alia, that
I cannot overemphasize how abhorrent and stupid I find the placing of the nooses on the schoolyard tree in late August 2006. If those who committed that act considered it a prank, their sense of humor is seriously distorted. It was mean-spirited and deserves the condemnation of all decent people. But it broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none.

I thought it was odd that Louisiana would not have a statute prohibiting such a blatant threat of violence, so I also searched the criminal code. Unlike Mr. Walters, however, I found a significant number of statutes that he could use to prosecute the three boys that hung the nooses from the school yard tree that set this horrible set of events into motion.

Inciting to riot

Louisiana Revised Statutes (LA-R.S.) 14:329.2
Inciting to riot is the endeavor by any person to incite or procure any other person to create or participate in a riot.

In September 2007, protestors went to Jena to voice their discontent over the disparate treatment of the different students. Two white boys hung nooses from their truck and repeatedly drove by the protestors. The district attorney in Alexandria, not Jena, charged them with Inciting to riot. The facts between these two situations are remarkably similar, so it seems that the three boys in the original noose incident could also be charged with inciting to riot.

Disturbing the peace

LA-R.S. 14:103
Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public: . . . (4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or . . . (6) Interruption of any lawful assembly of people.

In State v. Murphy, 40 La.Ann. 855 (1888), the defendant's threat to burn the house of another was disturbing the peace because the act "tends to provoke acts of violence and a disturbance of the public order." It is reasonable to think that a threatened lynching would provoke acts of violence or disturb the public order, therefore, hanging the nooses violated this statute. In fact, the hanging of the nooses did prompt a demonstration that the principal thought was so unnecessary and disruptive that he called an assembly to calm things down. The three boys clearly disturbed the peace by hanging the nooses.


LA-R.S. 14:40.1
Terrorizing is the intentional communication of information . . . that a circumstance dangerous to human life . . . is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; . . . or causing other serious disruption to the general public.

In State ex rel. J.S., 808 So.2d 459 (La.App. 1 Cir. 2001), a Louisiana appellate court overturned a delinquency finding because the communicated threat did not cause sustained fear or serious disruption. The student, J.S., was accused of writing “Everyone will die May 28, 1999. Be Ready.” in large letters on a school bathroom wall. The court found that the record lacked evidence that the threat caused any fear or disruption and reversed the lower court.

At Jena High School, however, there is ample evidence that the noose threat caused fear and disruption. The African-American students held a protest immediately after the nooses were found that was disruptive enough that the principal called an assembly to address the issues. Fights broke out between students both on and off campus. The school was set on fire and the tree was eventually chopped down. The facts clearly demonstrate that hanging the nooses caused many disruptions.

Criminal mischief

LA-R.S. 14:59
Tampering with any property of another . . . with the intent to deprive anyone entitled thereto of the full use of the property.

A Louisiana appellate court held that a man who masturbated in his own backyard while looking through a six-foot-high wooden fence at his neighbor while she was in her backyard had tampered with her property within the meaning of this statute. State v. Krueutzer, 583 So.2d 1160 (La. App. 5th Cir. 1991). Hanging the nooses tampered with the property of another and was certainly intended to deprive the African-American students of their right to sit under the tree.

Simple criminal damage to property

LA-R.S. 14:56
Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55 [Aggravated criminal damage to property], by any means other than fire or explosion.

Hanging the nooses at least caused nominal damage: the trespass is a type of damage, and some school employee had to be paid to remove the nooses--having to pay to clean up the nooses is at least a nominal damage. It is an open question in Louisiana law whether nominal damages satisfy the requirements of this statute.

Criminal trespass

LA-R.S. 14:63
No person shall enter upon immovable property owned by another without express, legal, or implied authorization.

Prior versions of this law required that the land be enclosed and that signs be posted, but this version does not require either. Even if the perpetrators of the noose threat were students, there were not given consent to enter the school property to hang nooses or make threats. Since their actions exceeded the scope of their privilege, they were trespassing when they hung the nooses.


LA-R.S. 14:66
Extortion is the communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description.

"The purport of the statute is to prohibit the use of threats to cause the victim . . . to do an act, or refrain from doing an act." State v. Felton, 339 So.2d 797, 800 (La. Sup. Ct. 1976). In this case, the three boys that hung the nooses wanted the African-American students to refrain from sitting under the tree.

The Reporters' Comment for this statutes states, "The advantage or property the offender is attempting to gain is of little import. By the use of the phrase 'anything of value,' anything susceptible of ownership is included." It does not matter if the value of sitting under the tree is minimal--the goal of the statute is to prevent people from using threats, not to prevent people from gaining "anything of value."

The Reporters' Comment also noted that "The harm or injury threatened need not be physical, but may be harm or injury to the character of the recipient or some third party." Under this statute, it is not necessary that the three boys intended to harm physically any African-Americans. By hanging the nooses, the boys attacked the character and dignity of African-American students, and that violates this statute.

Obstructing public passages

LA-R.S. 14:100.1
"No person shall wilfully obstruct the free, convenient and normal use of any . . . entrance, corridor or passage of any public building . . . by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein."

The image of the tree in this CNN article shows a path (a type of passage) ran around the tree. Furthermore, there is an entrance to the building behind the tree. It is plausible to apply this law to the facts of this case.

Institutional vandalism

LA-R.S. 14:225
A person commits the crime of institutional vandalism by knowingly vandalizing, defacing, or otherwise damaging the following: . . . (3) Any school, educational facility, or community center.

It is not clear what the legal meaning of "defacing" is under this rarely-used statute, but hanging the nooses could plausibly be considered defacing school property. Pennsylvania has a similar law: "A person is guilty of criminal mischief if he: intentionally defaces or otherwise damages tangible public property or tangible property of another with an aerosol spray-paint can, broad-tipped indelible marker or similar marking device." Commonwealth v. Vida, 715 A.2d 1180, 1181 (Penn. Sup. Ct. 1998) (emphasis added). The Superior Court of Pennsylvania held that "[d]efacing or damaging does not by definition mean permanent damage." To meet the definition of "defacing," Pennsylvania does not require lasting damaging and neither does Montana. In State v. Nye, 283 Mont. 505 (Mont. Sup. Ct. 1997), the defendant was charged with "Malicious intimidation or harassment relating to civil or human rights," and one of the elements of this crime is an action that "damages, destroys, or defaces any property of another or any public property." (Emphasis added.) The Court held that the defendant violated the defacement part of the statute when he "affixed bumper stickers that read 'NO I do not belong to CUT' [Church Universal and Triumphant] on state and county road signs." The court held that affixing the bumper stickers was defacement even if the damage to the property was only "nominal."

Hanging the nooses probably only caused nominal damage to the tree, but it certainly defaced school property with its threatening message. The defacement was at least as severe as the bumper stickers from Nye. This Louisiana statute clearly applies to the three boys that hung the nooses.

Wrongful use of public property

LA-R.S. 14:329.4
Wrongful use of public property is (1) The intentional entering of or onto any public property without the permission of the lawful custodian thereof, or his designated representative, at any time when the public property is not open to the public.

Public accounts of the incident indicate that the three boys hung the nooses at night, when the school was presumably closed.

Prohibition of interference with educational process

LA-R.S. 14:329.5
No person shall, on the campus or lands of any . . . secondary school . . . willfully deny to students . . . [l]awful use of the property.

The perpetrators of the noose threat clearly intended to deny African-American students use of the shade tree on school property.

Various kinds of assault

LA-R.S. 14:36 Assault defined
Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.

Louisiana courts hold that "The elements of assault are (1) the intent-to-scare mental element (general intent); (2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm; and (3) the resulting apprehension on the part of the victim." See, e.g., State v. Blaise, 504 So.2d 1092, 1094 (La. App. 5th Cir. 1987). This is in contrast to the definition of tortious assault: "An assault is the imminent threat of a battery." See, e.g., Bulot v. Intracoastal Tubular Services, Inc., 730 So.2d 1012, 1018 (La. App. 4th Cir. 1999), remanded on other grounds, 749 So.2d 659 (La. 1999), (emphasis added). The current statutory definition of criminal assault is also in contrast to the Louisiana's older common-law definition of criminal assault: "any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of an immediate physical injury." State v. Aleck, 5 So. 639, 639-640 (La. Sup. Ct. 1889) (emphasis added). There is a reasonable argument that criminal assault only requires apprehension of harm and not imminent apprehension. It is certain that hanging the nooses is not a tortious assault because any apprehension of an assault was not imminent. It is possible, however, that hanging the nooses constituted some kind of criminal assault. Louisiana divides assault into multiple grades and types, and three of them may apply to the facts of this case.

Simple assault

LA-R.S. 14:38
Simple assault is an assault committed without a dangerous weapon.

After seeing or hearing about the noose threats, it seems likely and reasonable that some students felt that they would receive a battery. The facts presented in the media make it unclear whether students had the necessary level of apprehension.

Aggravated assault, LA-R.S. 14:37

Aggravated assault is an assault committed with a dangerous weapon.

If students had the necessary level of apprehension (see above), this statute would apply if the nooses are a "deadly weapon" under Louisiana law. In the trial of Mychal Bell, Mr. Walters successfully argued to the jury that a shoe is a deadly weapon, therefore it seems plausible that he would argue that a noose is a deadly weapon.

Assault on a school teacher, LA-R.S. 14:38.2

Assault on a school teacher is an assault committed when the offender has reasonable grounds to believe the victim is a school teacher acting in the performance of his duties. . . . (b) For the purposes of this Section, "assault" means an attempt to commit on a school teacher a battery or the intentional placing of a school teacher in reasonable apprehension of receiving a battery or making statements threatening physical harm to a school teacher.

If the threat was even partially directed at the school teachers, then this statute applies. The definition of "assault" in this subsection also supports the idea that the threat of violence need not be imminent. Besides excluding the word imminent, the statute specifically uses the word "threat," which is much broader than an imminent battery. Threats include statements that indicate that the battery will take place in the future or that the battery is possibly contingent on some future situation.


Whatever one feels or thinks about the entire Jena Six controversy, it is clear that the three boys that hung the nooses that set off this chain of events should be charged with a crime. As the above list of crimes shows, Mr. Walters claim that no statute covers their acts is patently absurd.

My thanks go to Professor Henry H. Perritt, Jr. for his help.


Anonymous Anonymous said...

The trouble at the invitation-only private party started when a group of univited teenagers,including Robert Bailey, tried to crash the party and refused to leave when one of the host ask them to go. A 22-year-old white male confronted the party crashers and hit Bailey. Police arrested the white male and charged him with battery. He pleaded guilty to the charge and was placed on parole because it was his first offense. The white male was not a student.

The shotgun incident at the convenience store involved a 21-year-old white male, who was not a student, and three black teenagers, including Robert Bailey. Wittnesses, including store employees, supported the white male's version of the incident. He says the three teens confronted him as he was about to enter the store and chased him to his truck in the parking lot. He says he pulled an unloaded shotgun from the back seat to defend himself. The black teenagers wrestled the unloaded shotgun away from him, beat him up, and left with the shotgun. The police later recovered the shotgun and arrested the three teenagers. They are charged with aggravated robbery and theft of a firearm.

The three white teens who hung the nooses were not charged with a hate crime because two separate investigation, one by the school district and one by the Justice Department, determine they did not hang the nooses as an act of racial intimidation. Hanging stuff beneath the tree was a tradition, especially during football season. The three say they hung the nooses to poke fun at friends who were members of the school rodeo team, an idea they say they got from watching the lynching scene in the movie Lonessome Dove.

Thursday, December 20, 2007 9:22:00 AM  

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