Calif judge to stop 'don't ask, don't tell' policy

[bdickens]

...you have a constitutional 1st Amendment right to spout obscenities, but you don't have a right to spout obscenities under certain situations ....

You also don't have the right to not get the snot beat out of you.

[RSJ]

...you have a constitutional 1st Amendment right to spout obscenities, but you don't have a right to spout obscenities under certain situations ....

You also don't have the right to not get the snot beat out of you.

Actually you do, verbal provocation or even hate speech is not grounds for any physical action.

[terryg]

I'm not convinced that there is a right to serve in the military. If there is, why does ADA not apply? Why is the military allowed to discriminate on the basis of age?

The military has discriminated against individuals for as long as there have been military's. Some are too short, too tall, too fat, too skinny, too slow, too blind, too weak, etc ...

[nitrogen]

This has nothing to do with CHL in Texas, sorry.

[longtooth]

Moving this to "Off-Topic".

[bdickens]

...you have a constitutional 1st Amendment right to spout obscenities, but you don't have a right to spout obscenities under certain situations ....

You also don't have the right to not get the snot beat out of you.

Actually you do, verbal provocation or even hate speech is not grounds for any physical action.

Actually, you don't. If you provoke someone to violence, you loose your claim to self-defense.

Sec. 6.04. CAUSATION: CONDUCT AND RESULTS. (a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:

(1) a different offense was committed; or

(2) a different person or property was injured, harmed, or otherwise affected.

Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other's use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

[The Annoyed Man]

...you have a constitutional 1st Amendment right to spout obscenities, but you don't have a right to spout obscenities under certain situations ....

You also don't have the right to not get the snot beat out of you.

You've illustrated my point rather more directly.

[RSJ]

You are talking about provocing someone to violence. I am saying that you CANNOT LEGALLY use violence against anyone for words, even faul words- without threats, immediate actions imminent etc. Even using absolutely disgusting hate speech without an articulable threat doesn't warrant violent action (legally).

From our Fifth Circuit Court of Appeals

"Upon the law of self defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force.
The use of force against another is not justified in response to verbal provocation alone."

One DOES have a 'right' not to be beaten up for words (without threat) alone.

[DONT TREAD ON ME]

I'm not convinced that there is a right to serve in the military. If there is, why does ADA not apply? Why is the military allowed to discriminate on the basis of age?

The military has discriminated against individuals for as long as there have been military's. Some are too short, too tall, too fat, too skinny, too slow, too blind, too weak, etc ...

Thats not discrimination. Its called a standard.

[bdickens]

RSJ, you are not reading me correctly.

If your behavior (including speech) provokes someone to attack you, you do not get to claim self-defense.

[RSJ]

RSJ, you are not reading me correctly.

If your behavior (including speech) provokes someone to attack you, you do not get to claim self-defense.

I do not believe this. I can say what ever I wish (legally) as long as it isn't a threat, and if attacked I can defend myself. This is not to say that if I went around saying anything I wished that someone wouldn't eventually knock my lights out, but rather I would have a defense to prosecution or affirmative defense for striking them after being struck first.

From what you have said I could claim that you holding a "Abolish the Tea Party sign and chanting that in my presence" is a provocation (because I say I was provoked) and if I took physical action that you couldn't calim self-defense.

The way I read the law, the ONLY time one can be justified in using ANY physical force is when presented with either a threat, or actual force FIRST. (or on a family member, nearby stranger, etc in presence of course)

Can any lawyers either correct me or explain the law here?

[DONT TREAD ON ME]

What you say can provoke someone. Therefore you cannot claim self defense as you provoked it.

[bdickens]

RSJ, you are not reading me correctly.

If your behavior (including speech) provokes someone to attack you, you do not get to claim self-defense.

I do not believe this. I can say what ever I wish (legally) as long as it isn't a threat, and if attacked I can defend myself. This is not to say that if I went around saying anything I wished that someone wouldn't eventually knock my lights out, but rather I would have a defense to prosecution or affirmative defense for striking them after being struck first.

From what you have said I could claim that you holding a "Abolish the Tea Party sign and chanting that in my presence" is a provocation (because I say I was provoked) and if I took physical action that you couldn't calim self-defense.

The way I read the law, the ONLY time one can be justified in using ANY physical force is when presented with either a threat, or actual force FIRST. (or on a family member, nearby stranger, etc in presence of course)

Can any lawyers either correct me or explain the law here?

It does not matter if your attacker is not justified in using violence in response to your verbal provocation. YOU PROVOKED THE ATTACK, and you are just as guilty as him and you will go to jail, too. You will be judged by your actions and not by someone else's response, justified or no.

I quoted you the law above. I suggest you read it again and digest it. I also suggest you familliarize yourself with the legal concept of the "reasonable person."

Better yet, go to a biker rally and question someone's ancestry. Then shoot him when he hits you over the head with his beer bottle. See what happens to you in court.

[The Annoyed Man]

I'm not convinced that there is a right to serve in the military. If there is, why does ADA not apply? Why is the military allowed to discriminate on the basis of age?

The military has discriminated against individuals for as long as there have been military's. Some are too short, too tall, too fat, too skinny, too slow, too blind, too weak, etc ...

Thats not discrimination. Its called a standard.

Yes, it is. But standards do discriminate against those who don't meet the standard, and that is quite intentional. I'm not saying that's a bad thing, but it is the truth. The standards of physical characteristics - too short, too tall, too fat, too skinny, too slow, too blind, too weak, etc. - are standards of practical application, both from the standpoint of equipment procurement (uniform sizes, etc.), and minimum physical standards for performance of the job of combat soldier, which is an extremely rigorous and physically demanding job.

Let me state right up front that I have no particular doubt that many gays can (and are actually already doing so, if truth be told) meet all the physical standards required of a soldier. Physical standards aren't at issue with "don't ask, don't tell." What is at issue is found in the more nebulous area of psychology, and in how soldiers are going to interact with one another (and I use the word "soldier" as a catch-all term for all military personnel) - particularly under the brutally darwinian realities of combat. That is a legitimate concern on the part of the military.

We do not quarter male and female personnel together in the same barracks. There is a reason for that. It would be strictly impossible to do so without sexuality coming into play, and without relationships forming within the unit that could be detrimental to unit cohesion under fire. And that is assuming that everyone is on their best behavior, and no sexual harassment is taking place. Above and beyond that, people have a certain right - maybe not a constitutional right, but certainly a societal right - not to feel sexually objectified by the person in the bunk above, below, or next to theirs. Thus, we segregate military personnel by gender in living accommodations, and people accept that as normal - since, speaking purely in statistical terms, same sex attraction is not the norm.

But when issues of same gender sexuality come into play, it blurs lines that are otherwise enforceable. Those clear lines are desirable for purely military reasons, having nothing to do with the inferiority/superiority or other suitability of an individual for military service. Gays who wish to serve their nation by joining the military for purely patriotic reasons are to be commended. Gays who wish to join the military as an act of political activism are a threat to national security because they are forcing a confrontation over an issue which the military is poorly designed to manage, and it risks breaking something that we cannot afford to break. That is a selfish, and distinctly unpatriotic motivation. But in either case, if the military is going to admit openly gay personnel, then it has to do either one of two things: A) it must quarter openly gay personnel separately in the same manner that men and women are currently segregated; or B) it must quarter both genders together without any kind of segregative accommodations for gender or sexual orientation. That is the only equitable way to manage it, and I'm afraid that neither choice will satisfy any side of the debate.

So for very practical reasons, "don't ask, don't tell" is maybe not the best solution, but it is the most practical one in a society where gay activism is increasingly bringing pressure to bear against various of society's institutions.

[bdickens]

1) We do quarter males and females in the same barracks. The open-bay barracks you see in the movies are long gone; today they are more like college dorms.

2) Male-female relationships form within the unit frequently with negligible, if any, effect on morale and/ or cohesion. There is no reason to postulate that same-sex relationships should be any different other than prejudice.

3) Gay people can, have and continue to serve honorably. Many gays have been particularly been drawn to the linguistics field as translators. The Army recently (and stupidly, I might opine) discharged a number of gays who were found out and who happened to be translators. Arabic translators. Don't we need a couple Arabic translators now and again?