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Franklin Sain's racist and sexist anti-gun-control e-mails are protected free speech, attorneys say

Franklin Sain, the government contractor arrested last week after sending racist and sexist e-mails to Representative Rhonda Fields, a prominent backer of gun-control legislation (see our previous coverage below), has now been formally charged with two counts, including harassment-ethnic intimidation, by the Denver District Attorney's Office.

But Sain's attorneys argue that while his words were vile, they are protected free speech.

Back in 2005, as we've reported, Fields's son, Javad Marshall-Fields, agreed to serve as a material witness against Robert Ray, whom he'd seen murder a friend. But before he could testify, Marshall-Fields and his fiancee, Vivian Wolfe, were killed.

Ray is currently on death row for ordering the slaying of a witness in connection with another murder, this one in 2004 -- and Sir Mario Owens, convicted of spraying the car in which Marshall-Fields and Wolfe died with a dozen bullets, is also slated to die. However, appeals will keep those sentences from being carried out for years.

This tragedy is among the factors that inspired Fields to run for state representative, and this year, she's been one of the leading forces at the legislature behind gun-control measures. Then, earlier this month, she received multiple e-mails traced to Colorado Springs' Sain, the chief operating officer for SofTec Solutions, based in Englewood. According to its website, the company is a frequent government contractor that has "staffed 298 recruiters nationwide for the U.S. Army," among other federal gigs. Here's a typical example of the messages sent to Fields. Warning: They're explicit and uncensored:

I ordered a ton of new 30 round magazines today CUNTBAG.... go fuck yourself and your new law.... we wont [sic] abide by it.... CUNT NIGGER....

Another e-mail references former Arizona Congresswoman Gabrielle Giffords, who was severely wounded in an attack that killed several people, and another Colorado lawmaker, Beth McCann:

Watching you live, you are a pathetic NIGGER CUNT along with MCANN [sic], two cunts who are way overdue a good fucking...and hopefully somebody Gifords [sic] both of your asses with a gun....you are both pieces of monkey shit who have no right or reason to be in the position you are....fuck off cunts....

After the news of Sain's arrest, he was suspended from his job at SofTec -- not a strong enough action, according to Rosemary Harris Lytle, president of the NAACP Colorado Montana Wyoming State Conference, who subsequently called for his firing.

Then, yesterday afternoon, the Denver District Attorney's Office announced the charges it will be pursuing against Sain: attempt to influence a public servant, a class-four felony, and harassment-ethnic intimidation, a class-one misdemeanor.

Hours later, Sain's attorneys, Siddhartha Rathod and Qusair Mohamedbhai, argued that both of the counts should be dismissed on First Amendment grounds.

Continue for more about the charges against Franklin Sain, including our original coverage.

 

If these monikers sound familiar, they should. The namesakes of the firm Rathod Mohamedbhai LLC, they have a working association with lawyer David Lane, Colorado's best known free-speech litigator, as well as a leading critic of alleged law-enforcement violence. Note that when Lane received eight years of excessive-force complaints as a result of a judge's order, Rathod and Mohamedbhai worked to obtain affidavits that were used as part of their successful effort to put the Denver Police Department on trial in the Denver Diner case involving four women who claim to have been roughed up there by cops in 2009.

In their release, the attorneys don't pull punches about the repulsive nature of Sain's messages to Fields. "The e-mails he sent were admittedly despicable and disgusting," they write. But, they go on, "the issue before the court is not whether this speech offends our values, but whether it is illegal."

They argue that it is not. In their words, "The First Amendment permits horribly offensive communications, especially to politicians, as long as they contain no threats. Mr. Sain's e-mails and voicemail to Representative Fields, while deplorable, were not threats."

That's a matter of opinion, of course. Indeed, the NAACP's Harris Lytle maintained that e-mails like the one that seemingly invited a Giffords-style attack should be investigated as hate crimes. But in his original police interview, part of the arrest report shared below, Sain specifically said he knew better than to make direct threats in e-mails, because they're so easily retrieved -- and so he had not.

"Free speech is not easy and is often provocative," Rathod and Mohamedbhai stress. "While the public is understandably aghast at the words Mr. Sain used, the Constitution allows people to be racist and sexist in their contacts with government officials in an effort to express their displeasure with them."

The statement drops an interesting piece of additional info into the following assertion: "The Denver District Attorney should follow the lead of the Secret Service, which examined Mr. Sain's vile and racist language toward the President and determined that it is protected speech."

The bottom line from the attorneys' perspective? "Because these e-mails and voicemail contain no threats, no crime has been committed, and we urge the Denver District Attorney to dismiss all charges."

Continue for our previous coverage of the Franklin Sain case, including photos and the complete arrest report.

 

Original post, 7:12 a.m. February 26: The subject of guns can inflame emotions. But Colorado Springs-based Franklin Sain is accused of letting those passions get out of control. He's been formally accused of harassment and more via e-mails sent to Representative Rhonda Fields, a gun-control advocate whose son was murdered, including one that practically invites her assassination. We've got the uncensored e-mails below, and be warned: The language in them is shocking and offensive.

Back in 2005, long before Fields considered running for office, her son, Javad Marshall-Fields, had agreed to serve as a material witness against Robert Ray, who he'd seen murder a friend. But before he could testify, Marshall-Fields and his fiancee, Vivian Wolfe, were killed.

As we reported in 2010, Ray is on death row for ordering the slaying of a witness in connection with another murder, this one in 2004 -- and Sir Mario Owens, convicted of spraying the car in which Marshall-Fields and Wolfe died with a dozen bullets, is also slated to die. However, appeals will keep those sentences from being carried out for years.

Rhonda Fields ran for office in part because of her concern over firearms violence, and she's got her name on many of the gun-control bills currently working their way through the Colorado legislature. She praised President Barack Obama's advocacy for change in a January interview with Westword, telling us, ""Because I'm a crime victim, I'm constantly reminded of my past and my own experience. And as a crime victim, it's very reassuring to hear the President of the United States say that he wants to do something to address gun violence. It felt reassuring."

Rhonda Fields, right, at a January press conference about gun-control legislation.
Rhonda Fields, right, at a January press conference about gun-control legislation.
Photo by Sam Levin

Apparently not to Sain. Though he lives in Colorado Springs, he was identified in a now-deleted LinkedIn profile accessed by Fox31 as the chief operating officer for SofTec Solutions, based in Englewood. The company website notes that the firm was founded in 1996 "and has since been successfully providing services to Federal and Commercial sectors," with a concentration on government contracting. Animation on the home page boasts that Softec "staffed 298 recruiters nationwide for the U.S. Army."

In a statement featured in his arrest affidavit, Sain mentions past military service. But that's hardly the most eyebrow-raising statement attributed to him. Not by a long shot.

Continue to read the Franklin Sain e-mails that led to his arrest, supplemented by photos, a video and the complete arrest affidavit.

 

A screen capture from the SofTec Solutions website.
A screen capture from the SofTec Solutions website.

According to the Sain arrest warrant, Denver police officers were contacted by Fields's office on February 18 about e-mails like this one, dated February 13 under the subject "GUN CONTROL." It reads:

THANKS NIGGER. CUNT! You really think passing any more laws wills top gun violence? You and that other Nigger OBAMA are living in fantasy land. Chicago and DC have the most strict gun laws in the nation and more people die from gun violence than anywhere. You fucking cunts are pathetic excuse for civil servants. Hell, niggers love shooting themselves with GATS, isn't that what your people call it. What you have done here is creater [sic] criminals out of law abiding citizens, and put yourself out of a job. You politicians have no idea what you are even doing anyway, do you know how long it takes someone to change a magazine, less than a second, so what if someone with expereince [sic] decides to flip out and bring their gun in with 5 or so 10 round magazines, they can do the same amount of damage. Limiting magazine sizes is stupidity, and will not work. I for one have 100+ 30 round mags and 150 round drums. I will never give those up, and I am far from being some whack job. What I am is pissed off at cunt niggers who know nothing about what they are doing and knee jerk react rather than look for a solution to fix the problem and enforce existing laws. We will all work very hard to ensure there is no job for you in 2014. We will make it our mission to ensure each Democrat who supports this law is also out of a job.

Here are several more examples of e-mails sent over the next several days:

Do you actually think that Americans will put up with this.... I guarantee there is not enough law enforcement or military to stop an all out overthrow of this government if you or that Nigger President tries to take our guns.... Guarantee we will make World War I and II look like childs [sic] play, many will die...be prepared....

I ordered a ton of new 30 round magazines today CUNTBAG.... go fuck yourself and your new law.... we wont [sic] abide by it.... CUNT NIGGER....

GUN CONTROL WONT [sic] STOP THE VIOLENCE....NIGGER....

Still, the note that may be most concerning is one that makes specific reference to former Congresswoman Gabrielle Giffords, who was severely wounded in an attack in Arizona that killed several people. Also referenced: Fields's fellow Democratic legislator, Beth McCann. The message reads:

Watching you live, you are a pathetic NIGGER CUNT along with MCANN [sic], two cunts who are way overdue a good fucking...and hopefully somebody Gifords [sic] both of your asses with a gun....you are both pieces of monkey shit who have no right or reason to be in the position you are....fuck off cunts....

Continue for more about Franklin Sain, including the affidavit and a video.

 

On February 19, the affidavit continues, law enforcers contacted Sain; the e-mails hadn't featured his name, but they'd been able to trace them to him. He initially waffled and wavered about whether he'd authored the notes, but he did concede that he had called the representative a "cunt" in a phone call to her office, and suggested that he should "call her and apologize."

Later, Sain left the investigator a voicemail message conceding that he'd sent e-mails to Fields's office. He added, "I did not make any threats in my e-mails. I know e-mails are traceable and I wouldn't have done that.... I'm just voicing some frustrations about a topic I consider sacred, especially after wearing a uniform and fighting for this country. When you have media pushing blame on gun owners, that just brings my emotions out."

In another conversation with police, Sain stressed that the language used in the various e-mails was not representative of him or his values. But on February 21, a member of Fields's staff told cops the office had received a note with very similar language. An excerpt:

All Niggers Back to Africa Fuck You Fuck Your Laws I Keep my 30 Round Magazines There Will Be Blood! I'm Coming For You, Nigger Bitch.

That was enough for the police, who requested an arrest warrant for Sain on suspicion of harassment and an attempt to influence a public servant. He was arrested on Friday and released on a $30,000 bond. He's next due in court on March 8. If he's formally charged, that's when he'll find out about it.

Will additional counts for threatening Fields's life be added? Don't know yet -- and neither do we have an idea about what will happen with SofTec Solutions' government contracts. But it's worth pointing out that Sain is no longer listed among those on the company's management team.

Here's a larger look at Sain's booking photo, followed by a 9News report and the affidavit.

Franklin Sain.
Franklin Sain.

Franklin Sain Arrest Affidavit

More from our Politics archive: "Gun bill to require background checks: 'Enough is enough,' says Rhonda Fields."


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