Florida man charged with felony for romantic balloon-release gesture on Valentine’s Day

posted at 9:31 pm on February 26, 2013 by Mary Katharine Ham

Meet Anthony Brasfield, charmer and now an alleged felon for his amorous efforts:

Anthony Brasfield saw romance when he released a dozen heart-shaped balloons into the sky over Dania Beach with his sweetie. A Florida Highway Patrol trooper saw a felony.

Brasfield, 40, and his girlfriend, Shaquina Baxter, were in the parking lot of the Motel 6 on Dania Beach Boulevard when he released the shiny red and silver mylar balloons and watched them float away Sunday morning.

Also watching the romantic gesture: an FHP trooper, who instead noted probable cause for an environmental crime.

Brasfield was charged with polluting to harm humans, animals, plants, etc. under the Florida Air and Water Pollution Control Act.

Here’s hoping Brasfield escapes the possible 5-year imprisonment punishment (or any at all) for this rarely used statute.

Instapundit’s Glenn Reynolds, who flagged this story, wrote a paper on overcriminalization recently, and its threat to due process:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process – the decision whether to charge a defendant, and with what – is almost entirely discretionary. Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

In other news, Daniel Brewington of Indiana is serving a two-year sentence for writing acidic online commentaries about a local judge:

Daniel Brewington was not happy with the way that Dearborn County, Indiana, Judge James D. Humphrey handled his divorce case, during which he lost custody of his children, and he explained why at length in various strongly worded online commentaries. Largely as a result of those posts, Brewington is serving a two-year sentence at the Putnamville Correctional Facility for intimidation, attempted obstruction of justice, and perjury. The punishment Brewington received for condemning Humphrey’s actions has attracted criticism from a wide range of First Amendment advocates, including UCLA law professor Eugene Volokh, conservative lawyer James Bopp, a former executive director of the Indiana Civil Liberties Union, the Indiana Association of Scholars, The Indianapolis Star, and the James Madison Center for Free Speech. In an amicus brief filed the week before last, they urge the Indiana Supreme Court to overturn Brewington’s conviction for intimidating Humphrey, arguing that the provision under which he was convicted, as interpreted by a state appeals court, threatens constitutionally protected speech about the official acts of public officials.

The intimidation charge related to Brewington’s comments about Humphrey, which was treated as a felony because it involved a judicial officer, was based on the allegation that he “communicated to another person a threat with the intent that the other person be placed in fear of retaliation for a prior lawful act.” The threat in this case was that Brewington would “expose the person threatened to hatred, contempt, disgrace, or ridicule.” Upholding Brewington’s conviction on this count, the Indiana Court of Appeals ruled last month that “the truthfulness of the threatened disclosure is not necessarily relevant to prosecution because the harm, placing a victim in fear, occurs whether the publicized conduct is true or false.” It added that some of Brewington’s statements about Humphrey were demonstrably false. “Over the course of at least a year,” the court said, “Brewington repeatedly called Judge Humphrey a ‘child abuser.’…Brewington also called Judge Humphrey ‘corrupt’…and accused him of engaging in ‘unethical/illegal behavior.’”

For possible solutions to overcriminalization, check out this round-up of links at Volokh Conspiracy, and this from Radley Balko: “The Power of the Prosecutor”

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