Freedom of Speech Does Not Permit Making Threats of Violence against the President

A Utah man is facing decades behind bars for repeatedly making threats of violence against the President, something not considered a right under the Freedom of Speech Clause.

Threatening the President

Photo by: Dave Newman

33 year old Travis Luke Dominguez of Midvale, Utah was arrested after calling 911 on numerous occasions and threatening the life of President Trump. Although there is no evidence reportedly linking Dominguez’s threats of violence to any substantial danger as he is known for blowing smoke, he was arrested and tried in federal court for using his words to make threats of violence against the President.

Threats of violence

Utah Code 76-5-107 notes that making threats of violence is illegal if accompanied with “a show of immediate force or violence” or while “act[ing] with intent to place a person in fear of imminent serious bodily injury . . . or death”. If someone threatens another and acts with intent or violence, is a class B misdemeanor punishable by up to six months in jail. Making a threat against the President however, regardless or any accompanying action is considered a class E felony and punishable by up to five years in federal prison according to 18 U.S. Code § 871.

Freedom of (most) speech

Hateful talk towards POTUS is typical nowadays with many voicing their distaste orally or through social media accounts with vicious flare. While sharing negative opinions about the president is a constitutionally given right to any American citizen, knowingly and willfully sending threatening mail or “otherwise mak[ing] any such threat against the President . . . “ is crossing the line. This law that has been adopted into the United States legal system stems from the English Treason Act of 1351 which made it a crime to plan or “imagine” death to a member of the Royal Family. While the Puritans freed themselves from English rule, they somehow chose to keep a law placing an elected citizen on a pedestal much like the King or Queen’s with special contradictions in place to override constitutional rights of the everyday citizens. Residents of the United States are encouraged to choose their free speech carefully when speaking of individuals in high places to avoid criminal charges.

Is Possession of a Photo of Mexican Folk Saint Jesus Malverde Reasonable Suspicion of Drug Activity in Utah?

Jesus Malverde, a Mexican folk saint known as the “Narco-saint” is celebrated by many individuals including those involved in drug trafficking; for this reason, any memorial item of him may be add to an officer’s reasonable suspicion of drug activity.

Jesus Malverde, the good bandit

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Jesus Malverde is a folk saint believed by some to have lived in Mexico in the late 19th century. Although he is known by most Roman Catholics throughout Mexico, he is not officially recognized as a saint by the church. Malverde was said to have been a “good bandit”, who through his short life was responsible for regularly stealing from the rich to give back to his deprived fellow countrymen. Following his death, many who memorialize Malverde as a saint credit their ability to heal from injuries and sickness or find lost items to his spiritual influence.

Twisted folklore

Just as any folklore, the story of Jesus Malverde has slowly become distorted, with some using his image and name for immoral purposes. Over the years, drug traffickers began to claim Malverde had regularly protected drug lords such as El Chapo as well as the Mexican drug cartel from being arrested or killed. A shrine to honor Jesus Malverde was erected in his birthplace of Sinaloa, Mexico and was funded almost entirely by the drug cartel. Memorabilia including photos, statues, jewelry, candles, and even soap has been created with Malverde’s name or photo for worshipers to purchase. Unfortunately, because the drug cartel has usurped Malverde’s name, being in possession of any of those collectibles could give authorities reasonable suspicion that someone is involved in drug activity.

Targeted for religious icon

Photo by: Drew Stephens

Since Jesus Malverde’s name was tainted by drug cartel, anyone sporting souvenirs with Malverde’s image or name could be watched more closely by law enforcement. There have been several drug cases in which Jesus Malverde memorabilia helped convince law enforcement of possible drug activity. Two that took place in Utah included:

• U.S. V. Lopez-Gutierrez. Lopez was pulled over in Cedar City, Utah for a traffic violation when police “observed one picture of Jesus Malverde affixed to the dashboard and another hanging from Lopez’s necklace. The officer recognized the images of Jesus Malverde, who is considered a patron saint by some drug traffickers.” The officer observed other suspicious items such as an air freshener, rose, and three cell phones; thus proceeding to further question Lopez. After a K9 alerted on the car, a search of the vehicle turned up distribution amounts of methamphetamine.

• State of Utah V. Alverez. Alverez was seen stopping at an apartment complex, only to return moments later. Police became suspicious and waited for Alverez to return the next day. After he returned and reentered the complex, an officer “observed a facsimile of Jesus Malverde” and that “ through interviews he had conducted, Jesus Malverde was the patron saint of drug dealing.” When Alverez returned to the vehicle, officer discussed his lack of vehicle insurance, questioned him about drug use, and then forcefully made Alverez open his mouth where he was hiding 15 rubber balloons filled with illegal drugs.

Reasonable suspicion

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Utah Code 77-7-15 states, “a peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.” Reasonable suspicion differs from probable cause in that with reasonable suspicion, there doesn’t need to be evidence of a crime, only a hunch by a trained law enforcement officer. If an officer sees drugs in a car through a window or a door, that officer would have probable cause to search the vehicle. If the same officer instead saw an item such as a picture of Jesus Malverde in the vehicle who is known to be worshipped by many, including drug traffickers, the officer could question the suspect under the claim that the photo added to his reasonable suspicion of possible drug activity.

Religious persecution

The First Amendment to the Constitution reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ( . . . )”. Unless a religion give a valid cause for alarm such as a direct threat to the safety of the public, the separation of church and state should prohibit the government from determining what religion (or saint) citizens are allowed to worship without being accused of wrong-doing. By claiming souvenirs of Saint Jesus Malverde point to an increased chance of drug trafficking, the question of religious prosecution arises. Just because some who worship a religion or saint have criminal histories, not all who practice that religion or worship should be implicated as well. Just as not all Muslims are potential terrorists and not all white Christians are supremacists, it is unfair and unconstitutional to determine a person’s character or likelihood to commit a crime based on their choice of a religious icon.

Religious Rights of Inmates in Utah

Inmates in Utah lose many of their freedoms temporarily while they serve their time behind bars, yet many religious rights of inmates continue to be upheld throughout their incarceration.

Freedom of religion

Religious Rights

Photo by: John Flannery

The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ( . . . ).” It is the right of every person on American soil to practice the religion of their choosing. Although being incarcerated means the temporary loss of many rights, inmates are still given their religious freedom as long as the practice of their religion does not put others in danger.

UDC Handbook

The Utah Department of Corrections Inmate Orientation Handbook states: “Inmates in the Utah State Prison will be allowed access to religious services, except when the inmate’s behavior poses a safety threat to the religious counselor or others attending the religious service.” The handbook also explains that depending on the inmate’s security level, they “may attend scheduled religious services in the chapel” and “inmates will also have access to religious writings unless such writings advocate actions that could present a clear and present danger to the security of the institution.”

Outward expressions of devotion

With the vast range of religions out there, there are many that require outward expressions of devotion beyond weekly services and reading material. Sometimes, these outward expressions conflict with what is typically permissible in prison. Most inmates are required to dress a certain way, have set schedules, and are given the same diet as the rest of the prison population. Fortunately, the Religious Land Use and Institutionalized Persons Act (RLUIPA) protects many inmates from boundaries that would violate their religious rights.

Religious allowances for inmates

Some of the religious allowances for inmates include:

• Necklaces and jewelry- Many prison systems do not allow jewelry of any kind and even limit what visitors are allowed to wear into the facilities. Regarding religious jewelry for inmates, the UDC notes “medallions or ornaments may be worn based on the inmate’s classification and housing assignments. Inmates may obtain an item by requesting it through one of the chaplains.”

• Religious food restrictions- Some religions have food restrictions that prohibit practicing members from partaking of certain items. Jewish inmates and those practicing Islam are forbidden from eating foods that are not kosher such as pork. Hindu inmates don’t eat beef products as the cow is worshipped in their religion. Utah Department of Corrections offers meals to inmates that coincide with their religious food restrictions.

• Rugs and clothing- Although inmates are required to wear prison approved clothing and use only approved bedding, items such as Prayer Rugs or Kippahs and Yakamas are often available for purchase through prison commissary.
• Long hair- Inmates in the prison system are expected to keep their grooming and appearance clean which in some states involves male inmates having short haircuts. Utah prisons do not have a history of enforcing length restrictions on hair and offer added reassurance for those such as Native Americans, whose long locks are of religious value. Utah Code 64-13-40 (6) states “The department may not require a native American inmate to cut the inmate’s hair if it conflicts with the inmate’s traditional native American religious beliefs.

• Beards- in 2015, a Muslim inmate by the name of Gregory Holt, or Abdul Muhammad, went before the Supreme Court to fight an Arkansas prison law preventing him and others practicing Islam the right of growing a half inch beard in accordance with their religion. The Arkansas facility argued that a half inch beard could allow an inmate to transport contraband into or around the prison. According to the United States Department of Justice, the Supreme Court ruled in favor of Holt and “refused to accept that the beard ban was necessary to prevent smuggling of contraband, in light of the fact that hiding places such as hair longer than ¼ inch, moustaches, and clothing were already available.”

Know your religious rights

Inmates are encouraged to discuss their religious rights as soon as possible after incarceration to avoid the unnecessary limits of their freedom of religious practice. For more information, contact the Utah Department of Corrections.