MC Sheriff's Deputies' overreaction to "Banana Man" makes Mesa County the laughing stock of the whole world

By John Wilkenson

The original story, written by Daily Sentinel reporter, Charles Ashby, was first published in the Daily Sentinel on Monday, November 24, 2014 under the title, "Man tells deputies aiming a banana was stunt; he’s jailed, anyway". The story has gone viral, including being linked by Drudge, and much of the cyberspace community seems to take great pleasure in making fun of the Colorado's "stupid pussy cops" who apparently can't tell the difference between a banana and a gun and are calling Nathan Channing "Banana Man". The polls I've seen indicate a majority of the public believe charges of felony menacing are a gross overreaction to the factual reality of the case. In my opinion, this typical police-state situation is far more lawless and sinister than it appears at first glance. Let's look at it.

In my opinion, the charge of "felony menacing" (a class 5 felony) is a deliberately false charge designed -- under the legal profession's smarmy "let's make a deal" plea-bargaining procedures -- to coerce the accused person into pleading guilty to just plain old menacing which is a class 3 misdemeanor. For all the cops-are-right-no-matter-what folks out there, I'm going to present and analyze the specific Colorado statutes and court decisions involved so you can judge for yourself whether or not the Mesa County's Sheriff's Department and District Attorney are doing an honest journeyman's job, or following a more sinister police-state agenda designed to see how much tyranny the general citizenry will tolerate at this particular point in time.

(DISCLAIMER: Needless to say, the information presented here is public information. In fact, the legal maxim is "ignorantia legis neminem excusat" -- of which any prosecutor will be glad to snarkily inform you should you ever become a defendant -- so this information and my analysis are in NO WAY whatsoever, whether directly or indirectly, to be construed as "legal advice" and/or "unauthorized practice" of law. It is SOLELY 100% pure, unadulterated, 1st-Amendment-protected political opinion/speech designed to inform and educate the public as to the nature and quality (or lack thereof) of the "service" being done by our public so-called "servants".)

RELEVANT COLORADO STATUTES:

C.R.S.§18-3-206. Menacing

In pertinent part, C.R.S. 18-3-206 says:
"(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:
(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or
(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon."

Since an unpoisoned ripe yellow banana is being (in my opinion) fraudulently presented as a "deadly weapon" under the published-as-alleged facts of this case, we need to understand what constitutes a "deadly weapon" under Colorado law.

C.R.S.§18-1-901. Definitions

In pertinent part, C.R.S. §18-1-901 says:
"(1) Definitions set forth in any section of this title apply wherever the same term is used in the same sense in another section of this title unless the definition is specifically limited or the context indicates that it is inapplicable....
(e) 'Deadly weapon' means:
(I) A firearm, whether loaded or unloaded; or
(II) A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.
(III) and (IV) (Deleted by amendment, L. 2013.)"

Clearly, pursuant to C.R.S. §18-1-901(1)(e)(I) & (II), an unpoisoned ripe yellow banana cannot rationally be said to be a "deadly weapon". Right there, that reduces any possible charge of menacing to a class 3 misdemeanor. So why the talk of two fraudulent (in my opinion) class 5 felony counts?

Now, because some of the more shamanistic members of the so-called "justice" system -- (you know the ones I mean, the type who pretend they can't tell you where the law library is located because they are not lawyers and can't give you "legal advice") -- love to say "we don't go by the statutes, we go by the case law" (the term "case law" means court decisions which interpret the statute/s at issue), we need to look at some relevant and explanatory Colorado appellate-level decisions to see exactly what "felony menacing" is, and whether an unpoisoned ripe yellow banana can constitute a "deadly weapon" under any rational legally valid reasoning.

RELEVANT COLORADO COURT DECISIONS:

Felony menacing is a specific intent crime. People v. Lundborg, 39 Colo. App. 498, 570 P.2d 1303 (1977). See also People v. Cornelison, Colo., 559 P.2d 1102 (1977)

The actus reus of felony menacing is "placing another person in fear of imminent serious bodily injury by the use of a deadly weapon", an act more specific than the actus reus of disorderly conduct with a deadly weapon, which is displaying a deadly weapon in an alarming manner in a public place. Therefore, it does not violate the equal protection clause of article II, section 25, of the Colorado constitution to subject defendants to potential criminal liability under both statutes. People v. Torres, 848 P.2d 911 (Colo. 1993).

Failure to instruct jury on "imminent" element was harmless error where prosecutor argued fear was imminent and defense did not challenge whether fear was imminent. Evidence clearly showed fear was imminent. People v. Geisendorfer, 991 P.2d 308 (Colo. App. 1999).

An essential element of the offense is a specific intent to cause fear. People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977).

The specific intent of the defendant to cause fear is the gravamen of the offense of felony menacing. People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980).

Menacing is a general intent crime requiring only that the defendant be aware that the defendant's conduct is practically certain to cause the result. People v. Zieg, 841 P.2d 342 (Colo. App. 1992); People v. Segura, 923 P.2d 266 (Colo. App. 1995); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996); People v. Saltray, 969 P.2d 729 (Colo. App. 1998); People v. Shawn, 107 P.3d 1033 (Colo. App. 2004).

Actual subjective fear on the part of the victim is not a necessary element of this crime. People v. Stout, 193 Colo. 466, 568 P.2d 52 (1977); People v. Williams, 827 P.2d 612 (Colo. App. 1992); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

Rather, it is only necessary that the defendant be aware that his conduct is practically certain to cause fear. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996); United States v. Blackwell, 323 F.3d 1256 (10th Cir. 2003).

Intoxication as defense. If at the time of the incident in question, felony menacing was a specific intent crime, intoxication is available as a defense to negate the requisite specific intent. People v. Sandoval, 42 Colo. App. 503, 596 P.2d 1225 (1979).

Felony menacing is a crime of violence for purposes of the United States sentencing guidelines. United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011).

Applied in Miller v. District Court, 193l Colo. 404, 566 P.2d 1063 (1977); Jones v. District Court, 196 Colo. 1, 584 P.2d 81 (1978); People v. Chavez, 629 P.2d 1040 (Colo. 1981); People v. Lichtenstein, 630 P.2d 70 (Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Trujillo, 631 P.2d 146 (Colo. 1981); People v. Jones, 631 P.2d 1132 (Colo. 1981); People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Stoppel, 637 P.2d 384 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Sanchez, 649 P.2d 1049 (Colo. 1982); People v. Brassfield, 652 P.2d 588 (Colo. 1982); People v. Ferguson, 653 P.2d 725 (Colo. 1982); Watkins v. People, 655 P.2d 834 (Colo. 1982); People v. Dillon, 655 P.2d 841 (Colo. 1982); People v. Shearer, 650 P.2d 1293 (Colo. App. 1982); People v. Bridges, 662 P.2d 161 (Colo. 1983); People v. Jones, 140 P.3d 325 (Colo. App. 2006).

PROSECUTORS ROUTINELY OVERCHARGE ACCUSED PERSONS:

Overcharging", by Kyle Graham - Moritz College of Law, Ohio State University

Overcharging", by Kyle Graham - Santa Clara Law Digital Commons, Santa Clara University School of Law

Arbitrary Justice: The Power of the American Prosecutor

Taming The System: The Control of Discretion in Criminal Justice, 1950-1990, by Samuel Walker Professor of Criminal Justice University of Nebraska at Omaha

Our criminal justice system has become a crime: Column - USA Today

How Can Overcharging Be Ethical?, by Jacob Sullum

How to Deal With Prosecutors Overcharging, by Ed Brayton

The Unchecked Charging Power of the Prosecutor", by Radley Balko - Huffington Post

LOGICAL ANALYSIS:

Upon examination of the relevant law, I fail to see how, under any possible legal theory or stretch of imagination, an unpoisoned ripe yellow banana, under the facts of this case as published by the Daily Sentinel, could be construed as a "deadly weapon" pursuant to C.R.S. §18-1-901(1)(e)(I) & (II). What that means is that felony menacing as contemplated by C.R.S. 18-3-206(1)(a) and/or (b) is legally impossible, and, therefore constitutes unethical overcharging. In my view, it is obvious that the strategy behind the overcharging -- (see the articles on routine prosecutorial overcharging linked above) -- is to get the accused to plead guilty of committing class 3 misdemeanor menacing. I have a problem with the unethical systemic "let's make a deal" prosecutorial philosophy which is adequately set forth in the above linked articles.

I see only five main points in the "Banana Man" case: 1) Did Channing intend -- in legalese that's called "mens rea" which, according to relevant Colorado case law cited above is an indispensable part of a felony charge -- for the deputies to fear for their lives? 2) Is it reasonable to presume that Channing knew or should have known that pointing a banana at cops would cause them to "imminently fear bodily harm" just because they weren't paying a professional level of attention to their surroundings? The corollary to those questions is: 3) is it "reasonable" -- (that's a recognizable legal standard) -- for any person, let alone a professionally trained and armed law enforcement officer, to believe he was in "imminent danger of bodily harm" just because somebody pointed an unpoisoned ripe yellow banana at him? Those would appear to be questions of fact for a jury to decide if this farce (in my opinion) goes that far. It is my opinion that it is not objectively "reasonable" for any person to fear for his life just because an unpoisoned ripe yellow banana was pointed at him. On this point, I believe the deputies are strategically lying to fit what they think is legal language which would most strongly support a conviction.

The facts of any given case determine what law applies to that case, see "Courts on Trial: Myth and Reality in American Justice", by Jerome Frank. It's just as bad to apply the wrong law to the right facts as it is to apply the right law to the wrong facts. Injustice inevitably results. Experienced professional law officers are well aware of these legal mechanics, which is why they very often have motive to lie.

Under the interpretation of events most favorable to the deputies, I suspect the deputies were not paying a professional level of attention to what was going on around them (as they should have been), and just knew out of the corner of an eye that somebody had made some kind of strange impertinent gesture in their direction which they were offended by and not going to tolerate. Maybe they were irritated and embarrassed at being startled, but I seriously doubt they were truthfully in fear of their lives at any time. It is ironic that they should try to use their training as justification for their fear, when the opposite should be true. If they actually were "frightened" by an unpoisoned ripe yellow banana, there is something very, VERY seriously wrong and blatantly anti-constitutional with their training (which I will get to in a moment).

Let's be crystal clear on one point: cops routinely lie to support the charges they want to make. It's called "testilying". Harvard Law Professor Alan Dershowitz testified before Congress about testilying, and wrote about it in his book, "The Best Defense". See also "Controlling the Cops; Accomplices To Perjury". The strategic purpose of so-called "testilying" is to turn a constitutionally invalid inarticulable hunch, whim, attitude, prejudice, inclination, judgment, intuition, etc., into a constitutionally valid articulable "reasonable suspicion" or "probable cause". Virtually all cops will lie about threshhold probable cause, because 1) they have been trained to, and 2) if they don't, they don't have a constitutionally valid case to present to a prosecutor. That doesn't work for them, so they lie.

Virtually all prosecutors will lie about having coached cops how to walk the fine line without getting caught when crossing it. Virtually all judges1 will pretend that all prosecutors and cops are honorable and aboveboard when dealing with the "dicey" subject of threshhold probable cause. Virtually all defense lawyers are afraid to upset this intellectually dishonest (but highly lucrative) little apple cart too much for fear of being disbarred and deprived of their livelihood. I know this to be true from first hand private conversations I have had with lawyer friends who shall remain anonymous so they don't have to be forced into a position of having to deny what they told me in confidence.

The reason overcharging doesn't work for me is because there is self-evidently no constitutionally valid 4th Amendment probable cause for the excessive charge which is being used to manipulate a "perp" into a guilty plea on a lesser charge. Most professional prosecutors would probably disagree with me based on the "lesser of two evils" doctrine. In other words, most prosecutors believe the general public is too stupid to want to pay enough taxes for prosecutors to have big enough budgets to do a constitutionally perfect job of taking criminals off the streets. So they believe they are morally correct to resort to unconstitutional plea extortion as a viable alternative to letting dangerous criminals walk the streets. In the "Banana Man" case, however, the reality is that most people would not believe pointing an unpoisoned ripe yellow banana at another person, whether cop or civilian, constitutes a serious felony-level crime. So the prosecution is not really making a forced pragmatic choice between the lesser of two evils, but simply unconstitutionally enabling a couple of deputies to vent their spleen at a person who offended their delicate (in my opinion) pro-police-state sensibilities.

To the cops-are-always-right-no-matter-what crowd, I can only say: please don't shoot the messenger, just try to learn something about the mechanics of the American "justice" system. You never know when you might be glad you did.

As I said, in the "Banana man" case, I don't believe that the deputies are telling the truth about being in "imminent fear of their lives'. I believe that is a cutesy manipulation which parrots the legal (statutory and/or case law) language they believe might sustain a conviction. But it doesn't matter what I believe. Nor does it matter what the deputies SAY they "felt" or "believed". Because relevant case law says whether or not the deputies were actually scared/frightened is not a necessary element of the alleged crime of felony menacing. The INTENT of the accused is what is most relevant.

What really matters are the two REAL questions of law as to 4) whether or not the deputies' alleged "feelings" ("imminent fear of bodily harm") can lawfully change the statutory definition of the term "deadly weapon" to include an unpoisoned ripe yellow banana, and 5) whether or not the deputies' alleged "feelings" ("imminent fear of bodily harm") can lawfully automatically serve as dispositive ipse dixit PROOF OF THE INTENT of the accused to cause fear of "imminent bodily harm" by simply pointing an unpoisoned ripe yellow banana in their direction. That's obviously what the deputies want a prosecutor, a jury and the public -- (via their carefully chosen faux "smooth" public-relations comments to the MSM) -- to believe. In other words, because the deputies SAY -- (again, I believe they are most likely strategically lying) -- they felt they were in "imminent danger", ipse dixit, an unpoisoned ripe yellow banana gets automatically magically, simultaneously (and very UNreasonably) turned into a "deadly weapon" AND dispositive proof of the accused's intent so a class 5 felony charge can have a good enough possibility of sticking that the accused will successfully be intimidated into pleading guilty to a class 3 misdemeanor instead. That doesn't work for me. As a matter of personal 1st-Amendment-protected political philosophy, I don't want our public so-called "servants" to be behaving that way.

A large part of the problem is the gross Constitution-101 and Rule-of-Law ignorance of the 70% of the duopoly lemmings who fall for the phony Hegelian "left v right" delusion and vote for the GOP/DEM duopoly candidates. (I say that as a registered Republican.) Perhaps the most egregious classical example of this society-wide ignorance is all the combatively forceful/assertive opinions as to the guilt or innocence of O.J. Simpson under circumstances where the holder of the combatively "certain" opinion was without the remotest shred of first hand knowledge or fact. In my opinion, that's just plain old-fashioned intellectual laziness and false-pride-filled stupidity. But it does illustrate the basic problem.

Most of society's 70% ignorant lemmings don't care anything whatsoever about inconvenient little things like truth, justice, due process of law, the rules of evidence, or presumption of innocence. And they will all cheerfully lie about that fact. They just want the bad guys to "get theirs", and they are naive enough to believe the cops are sincerely trying to accomplish that simplistic goal. In an extreme case where some pervert sodomizes a little six-year-old girl and then tortures her to death, the general public couldn't care less about so-called "technicalities". They just decide -- based on strategic law enforcement leaks and manipulative MSM reporting (including any pictures which make the suspect look as unsympathetic as possible) -- whether or not they "like" the accused person. Sad to say, once the self-righteous lemming mob decides they don't like an accused person, all the nasty little "inconveniences" like truth, justice, substantive due process of law, procedural due process of law, the rules of evidence, and presumption of innocence, go right out the window. The ignorant lemming mob just want the blood (and suffering, if possible) of the accused "perp".

The problem with that intellectually uncurious, undisciplined, self-indulgent, self-absorbed, self-righteous and arrogant world view it that society's best -- (actually ONE AND ONLY) -- chance at freeing the actually innocent and punishing the actually guilty is for all those "inconvenient" little constitutional safeguards such as truth, justice, substantive due process of law, procedural due process of law, the rules of evidence, and presumption of innocence to be scrupulously followed as closely as humanly possible. It's the only way we have of knowing the truth and rendering justice. The immoral alternative is to facilitate and enable error and injustice. And that is a thing which must of necessity be anathema to any decent, intellectually honest, and kind-hearted person.

Let's return to the subject of anti-constitution primacy-of-the-police-state obey-or-die "law" enforcement training.

Government doesn't work the way the 70% duopoly lemmings and their duopoly "Good Old Boy" manipulators believe. Government lying is pandemic, as illustrated by such "false flag" psyops as 9/11, the unvetted OKenyan usurpation, JFK, RFK, MLK, TWA800, OKC, Battleship Maine, Pearl Harbor, Gulf of Tonkin, Iraq War, Waco, Ruby Ridge, Ferguson, Boston Marathon, Sandy Hook, Aurora, ad infinitum.

The world is de facto owned and controlled by an oligarchical transnational cabal of psychopathic debt-as-money central banksters. The government-by-secret "national security" apparatuses and agencies de facto function as the debt-as-money oligarchs' Mafia-like private goon squad. The rules of engagement for the oligarchs' control over, and subjugation of, society has its most identifiable roots in the so-called Phoenix Program initiated by the CIA and filtered down to local law enforcement agencies by the Justice Department. The Hegelian divide-and-conquer strategy is designed to facilitate a "we versus they" culture in law enforcement and encourage law enforcement to view the general citizenry, especially those pro-self-ownership, pro-constitution "teaparty" types who might be resistant to the blatantly anti-constitution "obey or die" policy, as "domestic terrorists".

The elephant in the room is that, as an abstract political theory, sooner or later during the 200-500-year revolutionary cycles of humankind, American law enforcement personnel are going to have to choose between serving the oligarchs' usurped evil Power and the U.S. Constitution and the American people. That's a choice too many Power-serving, Oath-breaking law enforcement people don't want to talk or even think about. So they continue killing innocent people and pets in wrong-address no-knock raids. They continue beating up, lying to, and generally trying to intimidate the American people per the Phoenix Program strategy. In response, "Cop-Block"-type organizations are springing up all over the country and more people are educating themselves, networking, and filming illegal cop behavior. Cops do not help their public-relations cause by pretending that merely pointing an unpoisoned ripe yellow banana at them constitutes a felony.

It is against that backdrop, and in the context of, anti-constitution "obey or die" knee-jerk Phoenix-Program-based police training which the facts of the "Banana man" case and the deputies' accusations must be juxtaposed if truth, justice, rule of law, and government transparency are to be understood and prevail.

UPDATE! UPDATE! UPDATE! UPDATE! UPDATE!

After I wrote this update section, the Sentinel's version of the updated the story appeared in an article titled "Stunt not ripe enough for felony" written by Gary Harmon. The Sentinel reported "obstruction" as being a class 3 misdemeanor. LexisNexis reports it as a class 2 misdemeanor. My money is on LexisNexis. The Sentinel also reported that the "common sense" move to reduce the charge from a felony came from the prosecutorial side. An "anonymous source" told me the "common sense" came from papers the defendant's lawyer had filed before the hearing. I wasn't there, so I don't know first hand which version of that particular detail is correct, but my money is on my source. Under the rule of "most logical, least logical", it makes sense that the Sentinel would be spinning things to help the DA and Sheriff's Office save face.

An "anonymous source" -- (the MSM loves that to say that, and I love to throw it right back at them because the 1st Amendment is a two-edged sword which cuts both ways) -- has told me that "Banana Man" has a lawyer, Stephen Laiche, and appeared before Mesa County District Court (MCDC) Judge Richard T. Gurley at 8:00 a.m., December 2, 2014, where his lawyer requested a jurisdiction change and a reduced charge. Judge Gurley agreed, and sent the case down to Mesa County Court (MCC) as a class 2 misdemeanor charge of violating C.R.S. 18-8-104(1)(a).

C.R.S. 18-8-104(1)(a), in pertinent part, says: "A person commits obstructing a peace officer ... when, by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority....(4) Obstructing a peace officer...is a class 2 misdemeanor."

According to People v. Barrus, 232 P.3d 264 (Colo. Ct. App. 2010), "'The construction of a statute is a question of law that we review de novo.' People v. Madden, 111 P.3d 452, 457 (Colo.2005). We must read the words of a statute in context ... give effect to the intent of the legislature, and look first to the plain and ordinary meaning of the statutory language. Madden, 111 P.3d at 457. When the statutory language is clear and unambiguous, we apply the provision as written. Turbyne v. People, 151 P.3d 563, 567 (Colo.2007)."

In Turbyne we find: "When construing a statute, our primary purpose is to ascertain and effectuate the intent of the General Assembly. People v. Weiss, 133 P.3d 1180, 1184 (Colo.2006). First, we look to the plain and ordinary meaning of the statutory language to determine the legislative intent. People v. Cross, 127 P.3d 71, 73 (Colo.2006). "If the statutory language is clear, we apply the plain and ordinary meaning of the provision." Weiss, 133 P.3d at 1184. We do not add words to the statute or subtract words from it. Colo. Dep't of Revenue v. Hibbs, 122 P.3d 999, 1004 (Colo.2005); Colo. Dep't of Labor & Employment v. Esser, 30 P.3d 189, 196 (Colo.2001)."

Obviously, pointing an unpoisoned ripe yellow banana is neither included in, nor fairly inferred by, the plain "using or threatening to use violence, force, physical interference, or an obstacle" language of C.R.S. 18-8-104(1)(a). So, in my opinion, "Banana Man" is not guilty of even so-called "obstruction" because he didn't use or threaten to use violence, and he wasn't "knowingly obstructing, impairing, or hindering the enforcement" of anything. To the contrary, the incident report says he was polite and remorseful that what he intended as a joke was not perceived as such by the delicate (in my opinion) police-state sensibilities of three of Mesa County's finest. So, in my opinion, under Colorado law, Banana Man isn't even guilty of the class 2 misdemeanor of "obstructing". Then "what was he guilty of?" a reasonable person might ask. Poor judgment, bad manners, lack of empathy for police, naivete about the police state America has become? Arguably yes, but that doesn't happen to be crime in Colorado -- yet.

All that appears to be happening in this situation is that the deputies and the DA's office are desperately trying to save face by refusing to dismiss an obviously ultra vires criminal charge. I suspect they would dearly love to save face. Of course, my own hopes for them are the exact opposite. If there is any possibility of them learning a Constitution-101 lesson, it can only result from them having their collective noses publicly rubbed in their own smelly little UNconstitutional mess.

Speaking of which, let's take a second look at the ramifications of the new developments. Obviously a judge decided that "menacing" doesn't apply. What that means is that the Sentinel and all the clueless dolts who flap their ignorant yaps about "respect for the law" and "rule of law" without so much as bothering to read the law they are decrying the falsely alleged violation of, were wrong about the law. Worse yet, they never even cared whether or not they were wrong in the law, they just wanted an accused person they didn't like to "get his". That's just plain intellectually lazy, self-absorbed and stupid -- no, on second thought, it's actually evil -- and is symptomatic of why the USA is in such desperate straits today.

As I said previously, the three main lies upon which it is currently trendy for police-state-mentality law enforcement officers to use -- especially against people trying to film them to make a record of what actually happened -- are "obstructing", "interfering" and "disorderly".

The sufficiency of evidence to sustain those types of charges are discussed in cases such as Flores v. City County of Denver, 122 Colo. 71, 220 P.2d 373 (1950). In pertinent part, Flores says: "There exists the undoubted authority of the state reasonably to limit the free exercise of the right of remonstrance, as well as of the free exercise of religion, and even of the right of free speech itself, where they sanction incitement to riot or constitute an immediate threat to public safety, peace or order, but such rights may not be lightly nor unduly suppressed. [Emphasis added.] Hamilton v. City of Montrose, 109 Colo. 228, 124 P.2d 757 (Colo. 1942); Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; McKee v. State, 75 Okl.Cr. 390, 132 P.2d 173 (1942); City of Fort Scott v. Arbuckle, 164 Kan. 49, 187 P.2d 348 (Kan. 1948); People v Burman, 154 Mich 150; 117 NW 589 (1908), 25 L.R.A.,N.S., 251. Public disturbance through mere exuberance of spirit or loud speech alone, at the time of day and to the extent appearing in the present case, is not of such import as to outweigh them [emphasis added]. It would seem that what the public endures for the sake of sports, it should be able to endure in the assertion of fundamental rights. That is part of the price of our freedoms."

Now let's take our analysis to the next logical step.

According to my anonymous source, IF deputy Bunch actually thought the unpoisoned ripe yellow banana was a deadly weapon, causing him to "imminently fear bodily harm", and that threat caused him to duck and drive three blocks away from the area as he stated, then he actually left the area leaving helpless unarmed civilians at the mercy of an armed and dangerous criminal. Given a professionally trained and armed police officer's lawfully authorized enormous powers to wage violent deadly combat under appropriate circumstances, and given his duty to protect the citizenry from deadly threats, Bunch's behavior is NOT what professionally trained law enforcement should do. He should have immediately pulled around and confronted Channing to protect the citizenry from an alleged deadly threat. Instead, Bunch abandoned his post, leaving the citizenry exposed to an alleged deadly threat.

I don't believe Bunch perceived "Banana Man" as a deadly threat because it is not reasonable for any person, especially a professionally trained and armed police officer, to perceive an unpoisoned ripe yellow banana as a "deadly threat", especially when the alleged "perp" was polite and remorseful when confronted, which would lend credence to "Banana Man's" statement that his intent was humor. If "Banana Man's intent were truly criminal, he probably would have said "F you!" -- like the looters and rioters in Ferguson, Missouri -- to the deputies instead of being polite and remorseful.

That's a big part of why I believe deputies Bunch and Love (after consulting with Corporal Jeff Doty) are lying about having felt "imminent fear of bodily harm". IF they had been in fear of their lives, and IF they thought Channing was a deadly threat, why didn't they confront him and "neutralize" the threat by emptying their guns into the center of his body mass instead of holding a little conference to decide which "testilying" language fit the statutes and case law best to maximize the chances of conviction on a knowingly false charge designed to coerce/extort the accused into pleading guilty on a lesser offense? Remember, if the maxim "ignorance of the law is no excuse" applies to civilians, it damn sure applies all the more strongly to professionally trained police officers, prosecutors and judges.

What wasn't clear from the Sentinel's version of the story was that Deputy Bunch, Deputy Love and Mesa County Sheriff Supervisor, Corporal Jeff Doty, apparently arrived at different times, and then held a conference as what to charge Channing with. That doesn't work for me because it doesn't even pass the smell test if the officers were faced with a genuine deadly threat. Oh, I nearly forgot, it wasn't a life-endangering "deadly threat" after all, it was just "obstruction". Yeh, right.

It seems to me the three or four figure attorney fee "Banana Man" will most likely face should be a sufficient price for seriously poor judgment, in addition to satisfying the blood lust of the Constitution-101-illiterate "cops are always right no matter what" mob.

In summation I offer what I like to call Gerry Spence's “The Government-As-Wolf” metaphor. I believe it is exactly on point in the “Banana Man” case.

“In this country, we embrace the myth that we are still a democracy (“republic” for right wingers – JRW) when we know that we are not a democracy (“republic” for right wingers – JRW), that we are not free, that the government does not serve us but subjugates us. Although we give lip service to the notion of freedom, we know the government is no longer the servant of the people but, at last, has become the people's master. We have stood by like timid sheep while the wolf killed -- first the weak, then the strays, then those on the outer edges of the flock until at last the entire flock belonged to the wolf. We did not care about the weak or about the strays. They were not part of the flock. We did not care about those on the outer edges. They had chosen to be there. But as the wolf worked its way toward the center of the flock, we discovered that we were now on the outer edges. Now we must look the wolf squarely in the eye. That we did not do so when the first of us was ripped and torn and eaten was the first wrong. It was our wrong.”

“That none of us have felt responsible for having lost our freedom has been a part of an insidious progression. In the beginning, the attention of the flock was directed not to the marauding wolf but to our own deviant members within the flock. We did not care when the wolf took them. We argued that they deserved it. When one of our flock faced the wolf alone it was always eaten. Each of us was afraid of the wolf, but as a flock we were not afraid. Indeed, the wolf cleansed the herd by destroying the weak and dismembering the aberrant element within. As time went by, strangely, the herd felt more secure under the rule of the wolf. It believed that by belonging to this wolf it would remain safe from all the other wolves. But we were eaten just the same.” ~ Gerry SpenceFrom Freedom to Slavery: The Rebirth of Tyranny in America

I am far, FAR less concerned by a silly aberrant sheep pointing a banana in jest than I am by the wolf engaging in routine prosecutorial overcharging and strategic testilying. Accordingly, I have looked the wolf squarely in the eye. If, in so doing, I incur the anger and resentment of the wolf, so be it.

(NOTE: Article 2, Section 10 of the Colorado Constitution says in pertinent part: “Freedom of speech and press…every person shall be free to speak, write or publish whatever he will on any subject, ... and in all suits and prosecutions of libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.” See also the legal disclaimer for this website.)

RELEVANT PUBLIC RIDICULE:

Following are a few examples of public opinion around the world as gleaned from the talk strings of various articles on Grand Junction's now-famous "Banana Man" case.

"[The charges] are absolutely ridiculous. I mean, what's next, deadly assault with a burrito?"

“These police officers have an extreme fear of bananas, bananaphobia. These officers should seek professional help. The suspect should be released and charges dropped. The suspect would have no way of knowing these police officers suffer from bananaphobia.”

"Can't wait for the judge to roll his eyes at this cop. Hope he goes to trial because prosecution will be forced for a plea."

"First off, it seems a bit ridiculous to feel threatened by a banana. If anything I think his case could be covered by 'freedom of speech'. Second, how can you tell if a banana is being 'pointed' at you? Is the stem the trigger end, or the barrel end? Or is the side of it the dangerous part? Finally, it sounds like the cop is on LSD or something, seeing handguns in 'many shapes and colors'. What other crazy things has he been seeing? Hope the charges get dropped. Up next: 'Someone pointed a beach ball at me'."

"Oh brother!"

"Friggin' Awesome!"

"A felony? Really?"

"Nope, couldn’t disagree more. Yes it was a stupid thing to do, but a felony? You CAN’T seriously believe that is justice."

"Shakin meh freekin head. Mentally challenged police officers should not be allowed to posess weapons."

"Dumb cops, the banana wasn't even loaded."

"If these mommy's little helpers knee-jerk at a banana with half an erection, then these young boys with their costumes and paraphernalia, who in their own minds are bad-ass cool video characters, should not be allowed out of the sandbox."

"Funny, I fear for my life whenever is cop is near. I guess they are all guilty of felony menacing and I could therefore perform a citizens arrest on them? The police in Grand Junction are pussies. If you look up the crimes perpetrated by the cops in this small city it will amaze you. I live there."

"Just stay away from the police. They hold their precious power with much pride and know they have the backing of the entire government system no matter what they do. And they do no wrong, just ask them. Today's police force take themselves so seriously that they have become a laughing stock. A fatally dangerous laughing stock."

"What caliber was the banana? It was dumb on both sides."

"With Keystone Cops like these, no wonder this country is doomed."

"Our stalwart deputy staff has been demonized for too long by nefarious people with bananas. I will no longer openly carry any bananas, ripe or not. However, I will continue to have a concealed carrot, and several friends have quietly mentioned their store of large zucchini. I only hope there is no escalation to the high calorie bratwurst or the fearful baguette."

(From London:)

"This is right out of a Monty Python skit. Deputy Bunch was lucky it wasn't a pointy stick."

"Bananas in "Fruitvale"?...who could have imagined it?....some coppers have too much time on their hands"

"I would be embarrassed if I were the cops involved."

"I think that is the very reason that they filed such ludicrous charges. They felt humiliated but there is no crime for that."

"The police should be charged with falsely filing a report."

"Evidently 'felony menacing' covers a lot of things. If it will cover pointing a banana at a cop, one can imagine that it would also cover giving a cop a dirty look."

"If you're gonna point anything at a cop, point a doughnut at the cop. He'll drool so much that he'll faint."

"Nathen Channing, your skin color has saved you otherwise you would have been dead for days. As laughable as the deputies' statement was, it goes to show the mindset of our police officers. If you decide to appeal, I bet the justice system will side with you because of, again, your skin color. If you had any other skin color, that bunch of banana might as well have been a loaded gun. See?"

BOOKS:

Here are some important books, including a few censored books which tell a history the 1% establishment doesn’t want you to know because they help you understand the training police officers undergo which causes them to view the public as "domestic terrorists" to be subdued, intimidated and controlled for the financial benefit of the 1%.

The Phoenix Program, by Douglas Valentine - “Take heed, reader: Phoenix has come to define modern American warfare, as well as its internal “homeland security” apparatus. Indeed, it is with the Phoenix program, that we find the genesis of the para-militarization of American police forces, in their role as adjuncts to the military and police security forces engaged in population control and suppression of dissent.”

DHS Intelligence and Analysis Assessment: (U//FOUO) Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment

The Lords of Creation: The History of America’s 1%, by Frederick Lewis Allen

Blowback: America’s Recruitment of Nazis and Its Effects on the Cold War (1st Edition), by Christopher Simpson

The hidden history of the Korean War, 1950-1951 (A Nonconformist history of our times), by I.F. Stone

Underground To Palestine, by I.F. Stone

Dupont Dynasty: Behind the Nylon Curtain, by Gerard Colby

Rules for Radicals: A Practical Primer for Realistic Radicals, by Saul Alinsky

The Art of Political War And Other Radical Pursuits, by Daivd Horowitz

The Death of Money: The Coming Collapse of the International Monetary System, by Jim Rickards

Currency Wars: The Making of the Next Global Crisis, by Jim Rickards

UFOs and the National Security State: Chronology of a Coverup, 1941-1973, by Richard M. Dolan

UFOs and the National Security State: The Cover-Up Exposed, 1973-1991, by Richard M. Dolan

Mary's Mosaic: The CIA Conspiracy to Murder John F. Kennedy, Mary Pinchot Meyer, and Their Vision for World Peace, by Peter Janney

RECENT VIDEOS, BLOGS, ARTICLES, COLUMNS, AND STATEMENTS:

SHAMELESS SELF-PROMOTION: See John's Twitter for one of the web's most eclectic mashups of interesting real-time news articles. John surfs the web for interesting real-time news stories and informative tidbits so you don't have to.

Banana-threat case ends in guilty plea, by Gary Harmon - Daily Sentinel

Man tells deputies aiming a banana was stunt; he’s jailed, anyway, by Charles Ashby - Daily Sentinel

Laughing all the way to jail", by the "Daily Sentinel" - Don't you just love it when writers use the monarchial/misdirectional "we" or "Daily Sentinel" instead of taking personal responsibility for their own words. I consider that type of manipulative ploy self-evidently and seriously hypocritical in view of the fact that some time ago the "Sentinel" unilaterally adopted a policy of publishing commentors' real names in an effort to encourage civility. How about the Sentinel editorial writers using their real names in an effort to encourage honesty and transparency in journalism? Hmmm?

Printed Letters: Dec. 2, 2014 - Daily Sentinel - If you scroll down the linked Sentinel's letters-to-the-editor page, you can read John W. Nelson's letter and my 2-part response.

Stunt not ripe enough for felony, by Gary Harmon - Daily Sentinel

Law enforcement officers are trained to react to threatening acts, by Rick Wagner - Daily Sentinel - Interested persons can read my four-part response/rebuttal to Rick's column in the comment section of that column.

Banana shenanigans, by Gary Harmon - Daily Sentinel

Police Arrest Colorado Man For Pointing Banana At Deputy - WOWT

Man Faces Felony Charge for Pointing Banana at Cop - InfoWars

Colorado man arrested after pointing banana at officers like a gun - NY Daily News

Man arrested for pointing banana at deputies - USA Today

Self-proclaimed comedian arrested for pointing banana at cops - 9News

Man facing felony charge after pointing a BANANA at police (But will he appeal?) - Daily Mail

Man arrested for pointing banana at deputies near Grand Junction - Fox31 Denver

Man Faces Felony Charge for Pointing Banana at Cop - TeaParty.org

Formal charges against “Banana Man” are still being determined - KKCO 11 News

Cops “Fearing for Their Lives” Arrest Man Pointing Deadly Banana - Gawker

Cops Arrest Man for Pointing Banana at Them Say They Feared For Their Safety - Reason.com

Man arrested for pointing banana at cops - WBAL TV11

Nathan Rolf Channing arrested for aiming banana at police - Newsday

DHS Report Warns Of Right Wing Extremists - CBS News

NY Policeman Not Indicted in Chokehold Death, Protests Called - NewsMax

Swiss voters reject gold, immigration proposals, salvaging EU ties - Reuters via Yahoo - Looks like the Swiss are having problems with their 77% duopoly lemmings and Good Old Boys too!

Cops Beat Man & 7-Month Pregnant Wife then Deleted the Video, But it Survived on the Cloud - The Free Thought Project - In my opinion, instead of absolute official immunity, there should be a death penalty for judges, prosecutors and cops who destroy evidence of their own guilt.

FBI now investigating alleged incident of DPD use of excessive force - Fox31 Denver - Yeh right. We'll see how far that goes. Destruction of evidence is a serious crime. Count on the fact none of the guilty cops will do serious time.

Denver police officer seen tripping pregnant woman, repeatedly punching suspect’s face - The Free Thought Project

Denver police officers kept jobs despite documented brutality - RT America

POLICE STATE - Man Arrested For Pointing His Finger At Cops - RT America - See: Phoenix-Program-type political policing is happening all over the country. It really doesn't matter whether it's a finger or a banana you point. It could be merely staring at a cop unappreciatively. It's a thought crime, which is anti-constitution tyrannical crap. Thought crimes are prohibited by the 1st Amendment to the U.S. Constitution.

Ohio Cop Tells Man is Illegal to Record her in Public - YouTube video - Cops routinely lie to citizens, telling them it's illegal to film cops at work in public places. The ACLU begs to differ: it is perfectly legal to film cops in all 50 states as long as you don't physically interfere with them doing their jobs. Unfortunately, lying police-state-minded cops routinely make false charges of "obstructing", "interfering", and/or "disorderly" against individuals who are merely trying to make a video record of what actually happened so it will be more difficult for cops to later lie about what happened. Too many cops hate being filmed because they want to preserve the "flexibility" of being about to later lie and destroy evidence of their own criminal behavior.

Police Chief Harassed by Feds, Then Fired for Signing Pledge to Uphold Constitution - YouTube video

Military training all over US towns WAKE UP - YouTube video

Monty Python: Self-Defence against an attacker armed with a banana - YouTube video

George Carlin - Language complaints at American Press Club - YouTube video

James Rickards-Next Crash Exponentially Larger than Any Financial Panic in History

Catherine Austin Fitts - The Mainstream Financial Media.m4v

Dark Journalist: Catherine Austin Fitts - Dancing With The Breakaway Civilization Part II

Dark Journalist: Catherine Austin Fitts - The UFO Economy

Catherine Austin Fitts-Obama Care the Ultimate Fraud (Early Sunday Release)

Gerald Celente: First Financial Calamity then War

CIA Officer (Robert D. Steele) Explains the Good Old Boys' Demise

Hope Number 9: Robert Steele - Spy Improv: Reality Unfiltered

JFK Part I: A National Security Event - Oswald Didn't Do It - YouTube video

JFK Part II: A National Security Event - How It Was Done - YouTube video

Gerry Spence on the American "justice system"

Gerry Spence's Winning Courtroom Strategies

Gerry Spence - From Feedom To Slavery - 1 of 4 - YouTube video

Gerry Spence - From Feedom To Slavery - 2 of 4 - YouTube video

Gerry Spence - From Feedom To Slavery - 3 of 4 - YouTube video

Gerry Spence - From Feedom To Slavery - 4 of 4 - YouTube video

Gerry Spence - From Feedom To Slavery - full length - YouTube video

Legendary Trial Lawyer Gerry Spence Offers Advice to Young Lawyers

Silent Epidemic; The Untold Story of Vaccines - Movie - directed by Gary Null

Here are a couple of videos about another local situation which, much like the O.J. Simpson guilt-versus-innocence issue, demonstrate the self-righteous, self-absorbed stupidity of people who hold combatively assertive and "certain" opinions about things they don't have the tiniest shred of first hand information about. A lot of the people in this video should be very embarrassed that their intellectually dishonest rush-to-judgment self-absorbed disregard for truth and justice has been exposed for the world to see. That type of person is part of what's wrong with America's justice system. C.R.S.§18-1-704.5 Use of deadly physical force against an intruder is relevant to these videos.

The Untold (Hidden) TRUTH of a New Years Eve Home Invasion and the Death of Randy Cook!

Of great interest is Mesa County DA Pete Hautzinger's remarks in this video. Speaking strictly for myself, I don't want a DA like this in Mesa County. In a different situation, Hautzinger was made aware of a blatant felony being perpetrated by three now-retired local judicial officials against a litigant appearing before them in family court. Hautzinger failed to do anything about that situation.

NYE 2013 ... The Aftermath (Part 2) Life of an Average Joe

Thomas Sowell on "Hands Up, Don't Shoot" Ferguson Slogan: "I Thought Of Joseph Goebbels" - Hegelian social engineering equation: Blacks making saints out of bully/thug AHs + Whites supporting anti-constitution, pro-police-state cops = Civil War ver 2.0. Think about it.

FOOTNOTES:

1. In my opinion, history proves that all judges in America have been liars since the U.S. Supreme Court lied to the American people in the so-called "Legal Tender" cases of Knox v. Lee, Parker v. Davis, 79 U.S. (12 Wallace) 457 (1870) (Supreme Court website lists date as May 1, 1871 and “opinions delivered Jan 15, 1872”) and Juilliard v. Greenman, 110 U.S. 421 (1884). Compare those revisionist history lies to the historically provable truth of Hepburn v. Griswold, 75 U.S. (8 Wallace) 603 (Feb 7, 1870).

To those who might say my use of the word "liar" is excessively "radical", I would point out that Justice Antonin Scalia has also called judges liars and explained why. Justice Scalia delivered the following remarks at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005: "Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the 'Living Constitution,' judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such."

Judges have done more than simply impose a fascistic blatantly UNconstitutional monetary and tax structure on the American people. They have anointed themselves with an absolute immunity from liability which was never granted to them by the U.S. Constitution. You can understand that monstrosity of immorality and arrogance in the cases of Bradley v. Fisher, 80 U.S. (13 Wallace) 335 (April 8, 1872), Pierson v. Ray, 386 U.S. 547 (1967), and Stump v. Sparkman, 435 U.S. 349 (1978).

They made legislators above the law in Tenney v. Brandhove, 341 U.S. 367 (1951), the President above the law in Nixon v. Fitzgerald, 457 U.S. 731 (1982) , and prosecutors above the law in Imbler v. Pachtman, 424 U.S. 409 (1976), thus fully implementing fascistic police-state government in America.

Even if the 70% of duopoly lemmings in America were to wake up and elect a pro-constitution House and Senate which wanted to correct the evil situation, the judicial branch would scream "Separation of Powers!" So to correct the situation will take an amendment to the U.S. Constitution similar to the one I have proposed HERE.

Under construction . . .