MC Sheriff's Deputies' overreaction to "Banana Man" makes Mesa County the laughing stock of the whole worldBy 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 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 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:
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 a 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.
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), a 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 a 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
Upon examination of the relevant law, I fail to see how, under any possible legal theory or stretch of imagination, a 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 four 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 a 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 a 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 a 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 probably cause, because 1) they have been trained to, and 2) if they don't, they don't have a constitutionally valid case. 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 judges 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 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 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 is the REAL question of 4) law as to whether or not the deputies' alleged "feelings" ("imminent fear of bodily harm") can lawfully change the statutory definition of the term "deadly weapon", because 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, a ripe yellow banana gets automatically magically (and very UNreasonably) turned into a "deadly weapon" 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 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 very best 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 a ripe yellow banana 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.
(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'."
"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."
"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?"
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.”
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
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?
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