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" »

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" »

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'" »

Last week we discussed the wisdom of "remaining silent" in the face of police questioning. We discussed how the Supreme Court's Miranda v. Arizona case places upon the police an affirmative obligation to advise a person in their custody of certain rights, among these being the right to say nothing at all.

To re-cap, it is usually a good idea to exercise this most important right, when faced with police interrogation involving anything at all of a serious nature. What the police might then call your "lack of cooperation" could lead to you spending the night in jail. This, however, is usually far preferable to incriminating yourself and (later on) spending many nights in jail.

The Right to Remain Silent is part of the "Miranda warning" which the police are supposed to give you upon your arrest. However, you have this right even before the police remind you of it. You conduct your day to day activities while cloaked with this critical protection. You do not need for an officer to advise or remind you of this right before it kicks in to protect you.

Another right you always have is the right to be represented by an attorney. Most people do not need an attorney to conduct their daily affairs, but events can and do sometimes occur for which you should absolutely seek legal counsel and protection. Being questioned by police on any sort of serious matter is surely one of those times.

Continue reading "Know Your Rights if Arrested in New York (Part II)" »