Missouri Congressman Calls For Criminal Charges Against California Congressman In Removal Of Painting Depicting Police As Pigs

wm-_lacy_clay_official_photo_2009hshotthumbThere is an interesting controversy brewing on Capitol Hill where Missouri Rep. Lacy Clay, D-Mo., wants California Rep. Duncan Hunter (R-Ca) criminally charged after Hunter took down a painting by one of Clay’s constituents that contains insulting images of police as pigs and other animals. The question is what the crime might be in such a circumstance since the painting was not damaged. It is analogous to the recent controversy at the University of Pennsylvania where students pulled down a portrait of William Shakespeare and replaced it with a portrait of a black feminist author. The painting (as in this case) was brought undamaged to the office. Of course, this is the removal of art from a Capitol building.

Clay and members of the Black Caucus are calling for criminal charged after Hunter took it upon himself to remove the painting that was part of an art display in the Cannon Tunnel running between the Capitol buildings. The painting was done by high school student David Pulphus and won Clay’s annual Congressional Art competition.

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The depiction of the officers as pigs and other animals is obviously insulting to many and disrespectful to police officers who routinely put themselves in harm’s way for the public, including officers who sought to stop the looting and burning in places like Ferguson, Missouri. That however does not give license to a member to remove art from the Capitol. The members of the Black Caucus noted that they have equal objections to other art, including permanent art. Clay noted the statues of Confederate leaders such as Jefferson Davis and Robert E. Lee in the Capitol: “Two traitors who cost America 600,000 lives,” he said. “They’re treasonous; they should be out of here.” It is an interesting point. If Clay removed Lee’s statue, would it be a protected act by a member?

Citizens would likely be charged if they removed art from the walls of the Capitol. However, Hunter reportedly did not keep the art and rather left it with Clay’s office.  Nevertheless, Clay has mentioned “theft” charges as appropriate in the circumstance.

The theft provision of federal property is 18 U.S.C. § 641:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

 

The act could be viewed as a defacing or damaging government property. That might fall under 18 U.S. Code § 1361:

Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.

Recently, two men were charged with defacing both the new Trump hotel and the FBI building.

However, the painting itself does not appear to be government property and it is not clear if the wall was damaged in the removal. The painting itself was not kept by the member and thus not a case of theft or conversion.

The U.S. Attorney’s Manual expressly rules out “adverse possession” as part of this crime:

Section 1361 protects “any property” of the United States or an agency or department thereof, or any property being manufactured or constructed for the United States or an agency or department thereof, from willful depredation or attempted depredation. “Depredation” has been characterized as the act of plundering, robbing, pillaging or laying waste. United States v. Jenkins, 554 F.2d 783, 786 (6th Cir. 1977); cf. Deal v. United States, 274 U.S. 277, 283 (1927) (“depredation” defined in context of postal statute). This section prohibits actual physical damage or destruction of both real and personal property, but mere adverse possession of that property without physical harm is insufficient to violate the law. United States v. Jenkins, supra, 554 F.2d at 785. Section 1361 is a specific intent crime, see United States v. Jones, 607 F.2d 269, 273-74 (9th Cir. 1979), cert. denied, 444 U.S. 1085 (1980), and the government must prove that the defendant acted willfully; that is intentionally, with knowledge that he/she is violating a law. United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972); United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970). The government is not required to prove that defendant knew the property belonged to the government, because government ownership is “merely a ‘jurisdictional fact’.” United States v. LaPorta, 46 F.3d 152, 158 (2d Cir. 1994), quoting United States v. Feola, 420 U.S. 671 (1975). In fact, title or possession by the United States is not a necessary element of this offense, if the property in question was being made for the United States. The government must present evidence establishing value of damage. United States v. Seaman, 18 F.3d 649, 651 (9th Cir. 1994). The penalties for violations of this section are tied to the extent of the property damage. As amended on September 13, 1994, if the damage exceeds $100, the defendant is subject to a fine of up to $250,000, ten years imprisonment, or both. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 330016, 108 Stat. 1796, 2146-47 (1994). When property damage does not exceed $100, the offense is a misdemeanor punishable by a fine of up to $100,000, one year imprisonment, or both. See 18 U.S.C. §§ 3559(a), 3571.

That would make this a rather interesting but unlikely case. Nevertheless, members are not afforded the authority to unilaterally strip art from the walls of Congress. That could be a matter for internal deliberations before there are retaliatory acts by other members in a tit-for-tat demonstration.  There may also be a countervailing move by members to seek clear rule prohibiting insulting and demeaning images to be placed on walls in the  Capitol.  Many would find this art to be deeply disrespectful and disturbing.  Given the fact that all citizens come to the Capitol to meet with members, Clay’s selection could be viewed as itself a violation of rules of decorum and conduct for members.

What do you think?

124 thoughts on “Missouri Congressman Calls For Criminal Charges Against California Congressman In Removal Of Painting Depicting Police As Pigs

  1. They should also introduce Warning Alerts and Safe Zones for Paintings, speeches, and behavior that might be “anti-American” (meaning lacking respect to whatever the RW snowflakes find objectionable – such as any art depicting criticism of police, military or gun ownership).

    • Then when Dems become the snowflakes du jour, they could forego the Warning Alerts and Safe Zones and snowflake protection schemes in favor of free speech including that which they found offensive…

      – Fat Chance 😦

        • How about stop using the term ‘snowflake’ as an oh so popular denigration, and instead deal with the specific issues of any specific matter.

          The harumphing around here of late is laughable.

          • The great and powerful Oz is now dictating which words to use and which phrases are acceptable. Quite telling and bizarre. Only his acceptable words are phrases are to be utilized. Odd and beyond strange. Note, not a single, solitary original thought or comment–just streams of denigrating comments about others on the thread and their choice of words and beliefs.

            • Not at all, bam. I’m just pointing out an overused word that lazy people grab onto, such as yourself, rather than work their way through a whole sentence without outrageous superlatives.

              You good with that?

      • http://www.latimes.com/nation/la-na-pol-alt-right-terminology-20161115-story.html “Snowflake: Short for “special snowflake,” a pejorative for an entitled person. Most people protesting Trump are “snowflakes,” according to the alt-right, as are anti-Trump celebrities and most liberals.

        SJW: Short for “social justice warrior,” this insult is mostly reserved for young women who try to argue on behalf of liberal or feminist ideas.

        White genocide: What many alt-right members feel is the natural conclusion of liberalism and pro-immigrant policies. The alt-right views just about anything that benefits nonwhite people, particularly ones who aren’t American citizens, as a risk to whiteness and a step on the road to the eradication of the white race.”

        Words frequently used on this blog.

        • A diminutive opinion of liberal students was warmly expressed by some of the commentariat of this blog when discussing several posts by Professor Turley on freedom of speech issues at Universities to describe students who went overboard with such things as warning alerts and safe zones and demands on the University that certain conservatives not be invited to speak in front of the student body due to the content of their message. The poor little dears might as well have been called snowflakes.

          I sort of agreed. In my own University experience, I would have found it unthinkable to restrict speech, liberal or conservative as long as we were exposed to a good sampling of the spectrum. (That said, some of the speakers came to regret an equally open policy about asking questions after such talks.)

          Snowflakes was subsequently used explicitly to describe Democrats that were simply unable to accept that Hillary herself, as well as the DNC, might be the cause of her failure to win the Presidency by the rules she and Trump* agreed to before the election took place. These Hillary supporters were equally oblivious to the idea the Democratic party should start asking itself some hard questions about what it might do to make life better for its constituents instead of only its corporate sponsors, that is, beyond telescoping the ever popular, “there is no where else you can go, so deal with it.”

          Here I almost completely agreed with the term. I couldn’t believe the grief being thrown at Trump purely and simply to avoid any responsibility what so ever for the outcome of the election. I’m not a Trump fan, but these were indeed snowflakes seeing bogymen under every stone and pebble and having a total melt down over it. As if not only observing but conjuring up out of thin air the worst possible traits in Trump might somehow justify so much as a single one of Hillary’s lies or examples of her corruption. Adults utterly incapable of even the smallest gesture of introspection. Perfect use of the term, snowflakes.

          But then suddenly the tables turn 180 degrees, and we move from the halls of higher education to the halls of our legislators – why a difference? – and suddenly freedom of speech is subject to decorum and restrictions, and purely coincidentally, of course, that speech just happens to be (probably) critical of authority in the form of the police, that holy grail of certain conservatives, snort. Given that, it seems only fair to remind some of our gentle comentariat of their former opinions about free speech when it was students and conservative speech rather than public figures confronted with what is typically considered leftist criticism of police tactics. Why is the former fine and the latter out of bounds?

          It occurred to me no small injustice not to liberally share the term, snowflake, and all the eloquence of its analogy, equally between conservative and liberal alike.

          *more or less. Trump did mention he would consider the results invalid if he lost.

          • Great post, Brooklin.

            I do support speech (and art), with which I do not agree. My concern is that the Capitol is not the venue for such pieces that denigrate an entire labor force, law enforcement. Such paintings can inspire spirited disagreement and discussion and would be appropriate at a private art show or university art class. But the Capitol is supposed to represent all people. Disparaging an entire labor force in a place that is supposed to speak for them equally, as with all people, does not seem right. And taxpayers should be able to voice their disgust at how their money was spent.

            But you make good points that sometimes free speech needs to be protected when it’s difficult to do so.

            • Thanks Karen,

              I confess to being a little uncomfortable with the Capitol myself as the right place. But then I have a conservative side or at least moderate one. 🙂 Also, in your face free speech can indeed be counter productive.

              But if I have to choose between decorum and free speech, I’ll go for the fee speech no matter how uncomfortable it makes me. I don’t know if that is an absolute, but I have yet to find the example that would move me to the former.

              I also have a nasty case of devil’s advocate and in some ways I think the Capital is the ONLY place for this picture. It’s a very public picture about very public interests submitted to a public contest. And if one of the painting’s themes is police brutality and if police brutality is real, then is it not vastly better we deal with this at the most public level possible, the Capital, and not hide it away in some private gallery or authorized out-house for embarrassing issues?

              As always, I appreciate your pov. You are the more reasonable if not reasoned in this case.

            • You mention, But the Capitol is supposed to represent all people. Disparaging an entire labor force in a place that is supposed to speak for them equally, as with all people, does not seem right.

              The Capital (any Capital) does not claim to represent all people in all capacities. For instance, it does not represent gangsters such as All Capone or his fairly substantial group of organized criminals in that capacity (as citizens yes, as organized thuggery no). By the same token, it does not claim or desire to represent any criminal element within a given government body such as the police force. Debate is perfectly warranted about just how public inquiries into such potential abuses of power should be, but clearly the public, including that part of the public most affected, has a right to grow tired of their more vociferous complaints always being swept under the rug by arguments such as decorum or appropriate venue. Ultimately, though we are nowhere near that point, such repression is the stuff that ferments revolutions.

              We have just gone through a healthy critique of the main stream media for its silence on abuses to Donald Trump as well as Bernie Sanders as well as on the more absurd and illogical aspects of the Russians are coming gambit by our own Executive branch and the shamefully complicit intelligence organizations that provide no evidence what so ever to substantiate such reckless and dangerous Cold War provoking claims. Any government Capital should be held to a similar standard of reviewing its own organization in a public and transparent manner befitting a Democracy and that includes messy embarrassing situations such as a child’s rendering of his or her reality as he/she perceives it, particularly when asked for in a public way by a public figure.

              Finally, while this picture is no doubt embarrassing, it is hardly going to bring the Capital to it’s knees, at least not if our public officials and our forms of government are more adult and mature than the snowflakes we criticize for being so tenderly averse to free speech when it has a conservative slant.

              • You make some excellent points, Brooklin. We always need someone to play devil’s advocate and stir the pot, lest we become a self congratulatory echo chamber. Thank you for your point of view.

                I still hate the painting, and I hate that the young adult who created it views his world like that. I wish kids all had safe neighborhoods and positive interactions with the world.

                I never want to descend to tender snowflake status, or encourage censorship. So it is important that we have those who resist such trends or call attention to it.

            • Freedom of speech does not mean freedom to say whatever you wish anytime or anywhere you wish. Rights have responsibilities associated with them. One of these is RESPECT. If a painting was hung which was degrading to blacks, the Congressman would get his pants in a wad — rightfully so. Disrespect of groups of citizens has no place hanging in Congress — be they denigrating blacks, policemen, etc.

              • Freedom of speech means you can make as big a fool of yourself as you want. Otherwise it’s not freedom of speech. Being a responsible adult is what you are describing.

  2. The police officers are not rendered as pigs but some sort of hybrid between a Rhino and a wild boar. This could be taken as a compliment pointing out how savage the streets are and how the environment in which the police work is akin to the wilds of Africa, etc. The artist created a work of art where enough was left open to interpretation so the viewer could participate in the experience. The controversy is primarily to be found in the mind of the viewer. Hats off to a budding artist.

  3. It goes without saying that if our students are old enough to go to college, they should be old enough to view and hear different ideas, some which may seem offensive to them. It’s the whole notion of freedom of speech

    But of course what’s good for the goose is not good for the gander. Displaying different ideas in public places that might be offensive to adult politicians, or, heavens!, might even open their eyes to truths swept under the rug – should be VERBOTEN. Think of how left out Russia would feel if we went around practicing what we preach!

    And think of all the jobs a Ministry Of Appropriate Truth would create! We would want agents everywhere in public, no stone left unturned, since our tender politicians might some day be kissing a baby there.

      • 1) I know, I know, it’s diii-fer-aaant! Always, always different.

        2) The painting was about police tactics (among other things) and had absolutely nothing to do with pornography. Talk about personal conceits, that one’s got you written all over it.

        3) The Capital is a public place for public business, not a symbol first. And police tactics are public business. The Capital is a worthy symbol only insofar as it serves the public and its issues. When the symbol becomes more important than the public itself, and that includes prostitutes and victims, the symbol looses all intrinsic value and becomes merely a state display of power and coercion (the one thing you can apparently relate to).

      • Yeah, it does. It also occurs to me that it was cast aluminum, not flesh and blood. Additionally, the theme of the casting was the balance of scales representing justice; possibly a difficult subject for you.

      • “The Capitol is a ceremonial building . . .”

        It’s actually a building that our government conducts its obligations in.

        This use is far from ceremonial; unless one wants this to be the use, which you apparently do.

        Troll elsewhere with your conditioning of thought, SusanDesperatlyLookingForToadsToStepOn.

        • Learn to write. You don’t end a sentence with the word IN.

          How’s it feel to have someone point out your total lack of education, Rain Main?

          • It’s refreshing, bam bam. So here is the sentence presented with proper syntax, which I assume your complaint is not ending a sentence with a proposition:

            “It’s actually a building that our government conducts its obligations in, b***h.”

            Is that better?

            You should parse your wordings, learn conjugations, and acceptable usages of commas.

            Just my two-cents.

            • There shouldn’t be a comma after the word CONJUGATIONS, a$$####.

              You can’t even respond without making additional mistakes in your rants. Hysterical.

              Two-cents? Yes. We know. You need not provide the balance in your bank account.

              • This depends on where one learned to write. The comma before ‘and’ is acceptable, and required in some disciplines — you should read more.

                You should deal with content more, you will lose otherwise; even then your chances are very slim.

                • Back to the topic at hand…..I saw the painting was removed and put back at least a half dozen times already. I’m willing to bet it all ends with a brawl in the halls of Congress. What do you guys think? Jose?

          • Additionally, you should again look at your use of superlatives. One, here or there is fine, but constructing a sentence with four, five, sometimes six, makes your writing appear — how shall I say it — maybe caustic, maybe desperate; most definitely angry.

          • Yes, you caught me — I am totally uneducated; and senile.

            I’m 51 years old, hobbling along with two artificial knees, half a hip, and an oxygen tank strapped to my good thigh. I spend my days wondering how long I can delay my one-way trip to the glue factory. For you see, the longer I wait the less I’m worth, and this fact, of course, upsets the people who will benefit from my demise.

            The soylent green harvesters have my house staked out, waiting for the day that I trip and fall getting the morning paper; exposing my wrinkled and abused flesh to the world, and possibly causing my oxygen tank to rupture which could possibly torpedo the school bus coming down the street full of “the children.”

            I know it’s them, the harvesters–sitting there in the black van with dealer plates and never moving, the soft blue glow of surveillance escaping from the interior–who else could it be?

            My telephone is also tapped because I’m very counter-cultural; I don’t own a TV, I read a lot (scary things like history and biographies), write music, don’t eat processed foods, and generally insult mainstream culture every chance I get.

            Over the years, this has brought me to the attention of various Government Agencies (hence, the soylent green black van). I know they’re there; lurking on my wire, recording all my calls, e-mail, and web surfing; waiting for me to misstep once so they can swoop in and eradicate one more of those pesky people that ask “Why?” at totally inappropriate times.

            But your superlatives rule, concentration is mass, yet you lack a lattice of connection in your words; you just spew.

            Keep going, evidence is convincing.

  4. I liked Bill Clay, Lacy’s father. He would have probably smacked this thief in the head, Bill Clay was Lacy’s predcessor. And, a good man.

  5. There is an artist in St. Louis who is painting a canvas painting which depicts this other Congressman as a guy at the who hauls up the Confederate Flag every year in his home state.

  6. Couldn’t the exhibit as a whole be considered the damaged property? A carefully curated exhibit would not be complete, missing one of it’s pieces.

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