Saratoga County Criminal Defense Lawyer Blog

A very interesting New York Times article has come to our attention. It discusses the increasing use of video cameras (including body-mounted cameras) by both the police and the public, and notes that the issue of citizens videotaping police in the performance of their duties is coming up nationwide.

The United States Court of Appeals for the Second Circuit, which covers New York, still hasn't directly addressed the issue (see our entry of July 27, 2011); but an opinion out of the First Circuit, which is next door in Massachusetts, has handed a major victory to those who believe the First Amendment protects the right to record police activity.

The case is Glik v. Cunniffe and in a nutshell the scenario goes like this: Simon Glik was arrested for videotaping another man's arrest. The charges were dismissed, and Mr. Glik sued the arresting officers.

The officers countered by demanding that Mr. Glik's complaint be dismissed. It made no difference whether his version of the relevant events were true, they argued: they had 'qualified immunity' (an official can't be sued for actions taken on the job, if he or she is going about that job in a reasonable way). An officer isn't entitled to qualified immunty, though, if his action violates a 'clearly established' constitutional right. The trial court refused to dismiss the case, and the officers appealed.

Continue reading "The Police, the Public, and the Video Recorder" »

An article in today's New York Times discusses recent findings by the National Transportation Safety Board (NTSB) on the dangers inherent in cell phone use by drivers. According to the article, these findings reflect a growing consensus: cell phone use including talking, texting, reading emails, playing Angry Birds, is not only dangerous, it's compulsive - an addiction. In that article we read for the first time that smart phones are sometimes referred to as 'crackberries'.

Having in mind, no doubt, the enormous success of America's 40-year war on drugs, the NTSB has recommended a similar war against in-transit connectivity: banning the use of all electronic devices while driving.

Banning cell phone use entirely is certainly further than New York has gone, although the state has imposed some strict limitations on it, as we'll see below.

Continue reading "'Crackberries' and the Bumpy Road to Highway Safety in New York" »

"Can anyone tell me Mr. Bile's big mistake? Anyone?" Monsters, Inc.

A recent article caught our eye. It concerned a young woman, a tattoo gun, and a couple of kids who now have artificial (if permanent) blemishes. To be more specific: an 18 year old finds herself in hot water because she allegedly tattooed two school girls. Both underwent the procedure voluntarily; the problem is that the older of the two was only 13, while the younger was 12. (The tattoos in question were a heart and a star. Who got which, we don't know.)

It's a story that raises some interesting issues and, though we're mindful that no one's been convicted of anything at this point, we thought we'd explore those issues. We're taking the prosecution's claims here as a hypothetical scenario, rather than the gospel truth.

So, with that understanding, where would a hypothetical young lady have gone wrong, if she'd done the things the defendant in the story is accused of doing? Clearly she would have committed one major error (at least twice), and may have messed up in other ways as well, as we'll go into below.

Continue reading "A Minor Blemish? - Kids and Tattoos in New York" »

Pepper spray has been in the news lately. For instance, you're probably aware of the incident captured in the video below: a couple of uniformed goons soaking California college students with the stuff.

Sadly, the only thing that's unusual about this casual act of brutality is that the public and the press sat up and took notice of it. Things just like it - and worse - happen all the time.

This next YouTube entry provides an example. The video's had at least a million and a half views, and shows the pepper spray treatment applied to protesters in New York. You have to be on your toes to make out the police officer doing the spraying, but the effects of his action are very, very obvious.

The officer, who sweeps in from the right in a white shirt, has been identified as a deputy inspector with the New York City Police Department. In other words, he's a supervisor. His grasp of department guidelines could be stronger, however, as it seems his prank violated them: it's cost him ten days' vacation time. This administrative sanction may well have been because he committed a vicious assault on harmless civilians. On the other hand, we note that some of his colleagues were downwind when he cut loose.

So, just what is pepper spray, and if you can't douse disgruntled citizens with it, just for being disgruntled (at least when other cops are standing next to them), who can you use it on, and when?

Continue reading "'Blowin' in the Wind' - Pepper Spray and the Police in New York" »

"Go tell the Spartans, thou who passest by, that here, obedient to their laws, we lie." Simonides

Last week's entry addressed "leaving the scene of an incident without reporting." Defined in Section 600 of the Vehicle and Traffic Law, the statute is designed to punish hit-and-run driving. As we discussed, it's very important to comply with Section 600's requirements because, if the consequences of an accident are bad enough, a violator with no prior record can do 2 1/3 to 7 years in prison.

But just what does compliance look like in any but the most standard situations? We've attached a report by WTEN in Albany, NY, that touches on some of the ins and outs. The story involves an off-duty state trooper, his pickup truck, and a dead man left like a dog in the road.

The ultimate conclusion of the grand jury in the case? Heartless, maybe. Criminal, no.

Continue reading "'Hit-and-Run' in New York - Part 2" »

In a prior entry, we noted that a local reporter had been charged with Obstruction of Governmental Administration, allegedly for asking police officers at a crime scene for information. At the time, the reporter's employer, the Post-Star of Glens Falls, NY, protested and declared an intention to fight the arrest.

We have since heard, via the Post-Star, that the charge has been 'resolved'. Apparently, the court has granted an adjournment in contemplation of dismissal (lawyers often call it an 'ACD'). As the Post-Star puts it, "prosecutors have agreed in principle" to drop the charge.

Is this a thunderous vindication of the press? Not really.

An ACD works like this. The case is adjourned (literally "put off until another day") for six months. If the court hears nothing further in that time, the charge is automatically dismissed.

As soon as the adjournment is granted, the defendant is released "on his own recognizance" and if bail was posted it must be returned. Once the case is dismissed, the law requires that mug shots and fingerprints be destroyed, and the file is sealed.

These are good things. When you have a client who's behind the legal eight ball - and just about all criminal defendants are - you're very happy when an ACD is offered.

However, when you take a good look at the definition of an ACD, it by no means implies exoneration. The statute says that an ACD "shall not be deemed to be a conviction or an admission of guilt." You could guess from this alone that an ACD is actually a form of judicial diversion - a program for those guilty parties who may - after a trial period - be found worthy of absolution.

But there's more.

Continue reading "Lake George NY: Reporter's Obstruction Charge 'Resolved'" »

We really hadn't planned to return to the issue this week, but yet another New Yorker has been arrested for recording police activity. It happened last Friday, July 30th. The arrestee was Phil Datz, a professional cameraman - a credentialed member of the press.

The charge, once again, was obstruction of governmental administration, a crime. According to the Long Island Press, Datz was hauled off to a police station, where mug shots were taken, and he was fingerprinted. As we've said before, the potential penalty is $1,000 and/or a year in jail.

The whole thing is absolutely outrageous - beyond a mere exclamation mark's power to express.

In fairness it must be said, though, that the arrest obviously embarrassed the officer's superiors. Another article in the Long Island Press indicates that the Police Commissioner wants the charge 'nullified'. And that's not surprising, since Datz, throughout the recorded encounter, is clearly following the department's own published guidelines for the media.

The guidelines themselves bear looking at: bystanders have the right to remain in the area - outside police lines - "provided their presence and activities are lawful and do not unlawfully compromise the safety and outcome of police activity or violate the privacy of the detainee."

Bystanders may: (1) 'observe the incident'; (2) 'produce recorded media including still photos, video and audio recordings in any format'; and (3) 'comment regarding the incident'. These are, in fact, excellent guidelines: they neatly summarize both the civilian's constitutional rights at the scene of police activity, and the limitations the state may lawfully impose on the exercise of those rights.

Nevertheless, as the video demonstrates, rights and guidelines mean nothing to a man who has both power and a yen to use it - right now, on you. The bravery of citizens like Phil Datz and Emily Good has to be commended.

Their bravery is especially commendable in given a regrettable pattern to be seen all over the country: attempts to trample (sometimes literally) on the public's rights to see and document what government is doing. Here's a link to an editorial posted by Glens Falls' Post-Star. It's got a little history and a brief overview of law enforcement push-back against civilians who record their activity. On the scary side, but necessary reading.

An update: We discussed in a prior entry Emily Good, who was arrested here in New York State for recording a police officer on video during traffic stop. The charge against her was ultimately dismissed, and now Ms. Good is filing a civil suit:

With Ms. Good's situation in mind, let's address a couple of questions regarding citizen interaction with law enforcement:

First of all, in the case of Ms. Good, we know that the State had not given the arresting officer the power to do what he did in the circumstances depicted in the video; but how much power can a state give a police officer?

Second, separate and apart from an officer's power (or lack of power), what were Ms. Good's actual rights? Did she have a positive right under the Constitution to do what she was doing? What positive rights might the officer have violated when he arrested her?

Continue reading "First Amendment Right to Record Police in New York?" »

"Your superior intellect is no match for our puny weapons!" The Simpsons

Our last entry discussed the plight of Emily Good, a woman arrested in Rochester, New York, for recording a police traffic stop on video.

In an interesting twist on that basic theme, the Post-Star of Glens Falls, New York, reports the arrest of a reporter for attempting to inquire into police activities at a crime scene. It would appear that at the time of the arrest the reporter was in a public thoroughfare, asking police officers questions about a crime that had taken place hours earlier.

As in the Rochester case, the offending observer was handcuffed and subjected to all the other humiliations incident to arrest. And as in the Rochester case, the charge is 'Obstructing Governmental Administration in the Second Degree', NY Penal Law Section 195.05. This is a Class A Misdemeanor under New York law.

The man must appear in court later this month. Conviction could cost him a year in jail, a $1,000 fine, and more than $200 in surcharges. A hefty price to pay for trying to find out what public employees are up to.

The charge against Ms. Good was ultimately dismissed: her actions didn't violate the statute cited by the complaining officer. In other words, the officer wanted to punish her behavior, but didn't have the power, because the state (in the form of its legislature), had declined to give him that power.

But could the state have given him the power? Does the individual have any right that could check such power? Stay tuned.

Lisa: ...I mean, if you're the police, who will police the police?

Homer: I dunno. Coast Guard?

A fascinating video out of Rochester, New York, has hit You Tube, and it's getting a lot of play, probably because the arrest of a young woman who had the nerve to videotape the police in action (over their objections) seems so at odds with the fundamental notion that ours is a "free country".

The actual criminal charge was dismissed yesterday, as reported by Rochester's Democrat and Chronicle, which has done a great job of covering this case. However, by the time the charge was dismissed the video - and the issue - had gone 'viral'.

Exactly why was the woman, Emily Good, arrested? According to the complaint filed by the police officer (posted by the Democrat and Chronicle,), the presence "behind them" of Ms. Good "holding something in her hand and [illegible] it in the air towards officers," made those officers "extremely nervous and posed an officer safety issue."

The charge was Obstructing Governmental Administration in the Second Degree, NY Penal Law section 195.05. In pertinent part, a person is guilty of this when he or she "intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act." In consenting to the dismissal of the charge, the prosecutor agreed that Ms. Good's actions didn't meet those criteria.

So again, exactly why was Ms. Good arrested? A number of things are apparent from the video: Ms. Good was clearly some distance from the police action. She never approached or threatened to approach the scene more closely. When questioned, she explained exactly what she was doing. Other people were standing in the vicinity (This is clear from the fact that the videotaping continues after the arrest, from approximately the same vantage, and from the other nearby voices heard on the video). The officer never ordered the others back. In short, the only apparent basis for the order to go back into her house was Ms. Good's presence with camera rolling (the device was a video-equipped i-pod).

Continue reading "New York Arrest for videotaping police traffic stop: officer's miscalculation goes viral" »

A recent article in Long Island's Riverhead News-Review relates a sad and, sadly, all too common occurrence. Two cars collide. Both drivers are hurt. One of the drivers, according to police investigating the accident, has had too much to drink.

That driver is charged with Driving While Intoxicated (DWI) (and in this case, according to another article in The Long Island Press, with driving without a license, and crossing the divider of a limited access highway). He is given a court-ordered blood test. Later, he must appear in the local criminal court, "where," the News-Review notes, "he might face additional charges."

What might those charges be? As the Long Island Press correctly notes, it depends on the results of the blood test. If the test confirms what the police apparently suspect -- that the defendant had a blood alcohol content (BAC) of .08 or greater -- a number of options will open up for the prosecution.

First, the defendant is currently charged with what lawyers call "common law" DWI [Vehicle and Traffic Law Section 1192(3)]. Intoxication is proven using roadside tests of impairment, such as the one-legged stand and reciting the alphabet backward, along with testimony that the defendant admitted drinking and/or smelled of alcohol. A blood test result of .08 or greater would expose the defendant to an additional misdemeanor charge: driving with a BAC of .08 or greater as measured by a test of blood, breath or urine [Vehicle and Traffic Law Section 1192(3)].

The defendant's potential exposure goes far beyond these misdemeanor charges, however.

Continue reading "DWI/DUI and Serious Injury in New York" »