A Hammond man is behind bars tonight being held without bail. 25 year old Kevin Kirby of Hammond posted the following Facebook comment yesterday:
Shortly thereafter, the comment went viral. The Gazette received it from several sources. Today the Gazette has learned that bond for Kirby has been revoked on an unrelated Felony charge. In May of this year, Kirby was charged with resisting arrest as a result of an incident that occurred in Highland. He was out on bond for that offense. After Kirby’s comments went viral, prosecutors quickly moved to revoke his bond on that charge. According to Court documents, Prosecutors faxed a notice of hearing to Kirby’s attorney on September 16. A hearing was scheduled for September 17 but neither Kirby nor his attorney showed. At that time, the Court issued a warrant for his arrest for failure to appear which was quickly executed.
Information as to the nature of the revocation hearing was not available at the time of this article. Presumably, the revocation had something to do with his comments. Nonetheless, the case raises a serious due process issue. There is no indication in the record that Kirby’s lawyer actually received the notice of hearing. Absent actual notice, a failure to appear warrant should not issue absent an imminent and specific identifiable threat. On the other hand, if action was not taken and someone was injured, we may be having a different conversation.My immediate thought was that there is also quite possibly a free speech violation. Kirby's comment was crass, even reprehensible, but crass and reprehensible comments are still protected speech. Punishing that speech by revoking one's bond could be considered to be chilling of Kirby's free speech rights in violation of the First Amendment.
Then, as the Gazette notes, you have the issue of the arrest on a failure to appear for a bond hearing with the notice of the hearing only being given by a faced order to the man's attorney one day before the hearing. Obviously with such a short notice, it's not surprising that the defendant and the attorney weren't there. Yes, there could be a due process problem.
It really looks like a bunch of people - police officers, the prosecutor, and judge - exercised extremely poor judgment in overreacting to Kirby's comment. It might be time too for them to take a refresher course on the Constitution.