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Notes -
I think showing up to a protest armed merits some increased suspicion.
When someone is killed, the more effort it took to get into that situation, the less likely it was an accident.
On the one hand, your logic is straightforward. On the other hand, you are saying that the lawful exercise of a constitutional right can establish probable cause that a person has broken the law. If I said that the content of a sign a protestor held or a slogan they shouted added up to probable cause, it seems to me that this would also be a straightforward logical argument. I don't expect you or @Gdanning to agree to that standard, though.
Yes, there’s a point at which lawful exercise establishes probable cause.*
What’s important is that the decision is made post facto. Given that two men died, Rittenhouse’s presence and equipment merited suspicion. In @Gdanning’s example, the Nazi larper is allowed to bear arms by a synagogue—but once police hear that there’s been a murder in the area, they have an obvious suspect.
This means yes, there is some protected speech which should constitute probable cause for arresting protestors once a crime has been committed. Or even before, judging by the “imminent lawless action” standard. If Mr. Alnaji had a “gas the Jews” sign, or was even reported joining some of the chants, I’d expect him to be taken in.
* If this is the wrong term, legally speaking, my apologies!
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@netstack did not say that exercise of a constitutional right establishes probable cause. They said it increases suspicion. That is obviously true. I have the right to wear a Nazi outfit, and a right to bear arms, and a right to walk around near a synagogue. But that doesn't mean police have to ignore those things. Most facts which help establish probable cause are themselves perfectly legal.
Can you name a blue-coded constitutionally-protected activity that clearly "increases suspicion" in a way that predictably results in significantly worse outcomes in the justice system? You've cited a Nazi uniform; what's the blue-tribe equivalent that observably results in harsher charges and higher bails, which you accept as just?
...This, of course, ignores the numerous cases where the arms leftists carried did not "increase suspicion" in an equivalent way, even when they were shooting at or killing people.
Peacefully protesting at the same time and place as other people are rioting (or where there is credible intelligence of a riot even if it hasn't started yet) is going to get you into trouble almost anywhere - there were cities where the police completely stopped policing in summer 2020, but that isn't the normal way "mostly peaceful protests" are policed, even in deep Blue cities.
If you count Blue client groups, being a young black man wearing gang colours is a constitutionally-protected activity that increases suspicion in the way you suggest.
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Drug use isn’t federally protected, usually, but in states where it has been legalized, it still gets used as circumstantial evidence. A speeding ticket with a trunk full of marijuana is way less likely to get dismissed, as far as I know, and that’s a good thing.
Another option would be racketeering charges. They’re kind of the definition of converting suspicion and circumstance into charges, and I don’t think they’re particularly tribal.
Trying to find examples is a bit silly here. The biggest red flag is carrying a weapon because, you know, most murders involve a weapon. But political violence is rare enough that it doesn’t usually lead to a murder!
I do think there’s a history of nailing anybody for being armed near a crime scene; cops do not like seeing guns. So we could look at normal crime investigations, see people brought in under firearms suspicion, and then turning out to have outstanding warrants. It’s just not going to be particularly politicized.
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I didn't say anything about harsher charges and higher bails being just. I was making a purely empirical claim about the evidence that courts use to assess probable cause.
As for your "other team" silliness, see the use of rap lyrics to help establish probable cause for murder charges. That is protected speech which is used all the time, usually quite appropriately.
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