No word yet on whether or not he will pursue a
Skimming the police report, there appear to be a few potential problems:
- Hearsay can certainly be probable cause, but flights of fancy cannot. The (unnamed) witness states that he saw Lisull marking the ground with chalk and decided for himself without any real reason that Lisull must have been the person marking up buildings. The police must take care to distinguish between facts and opinions reported by witnesses.
- Faced with an obvious multi-party chalking campaign--an explanation for chalk on buildings and other raised surfaces that rules out need for a "lone gunman"--police could only have reasonably believed that Lisull was marking the ground. From "Lisull was spotted chalking the sidewalk, Lisull had chalk in his pocket." it does not follow that "It is likely that Lisull made some of these many large chalk drawings on buildings and statue pediments." Moreover, Lisull's observed conduct is specifically exempted in the statute the violation of which Lisull was charged by Cpl. Leon. Can specifically exempted conduct be probable cause for conduct in violation of a statute?
Not airtight in the least--perhaps one of the few lawyer types who read this can correct me where I'm wrong. But it's worth considering. Given the privileges afforded to on-duty police, their unique ability to ruin one's day without penalty or with a mere slap on the wrist, it's very important to maintain a "broken windows" approach to keeping their conduct within its legal bounds.