Articles Posted in interaction with police

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“What’s in a name? That which we call a rose By any other name would smell as sweet.”

Romeo and Juliet (II, ii, 1-2)

What’s in a name? ‘Lèse-Majesté’ is an attractive name. It’s French, derived from the latin laesa majestas, which Black’s Law Dictionary (5th Edition) defines as ‘injured majesty’; this term covers “any offense against the king’s person or dignity.” It can be a synonym for high treason.

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Jonathan Lippman, Chief Judge of New York’s Court of Appeals, got nationwide press with his recent address on the state of New York’s judiciary. He proposed, in that address, to increase the role of the judge in the grand jury process, at least in cases where civilians have been killed by police officers.

The issue of homicide by police officers has been on a lot of minds since the killings, last year, of Michael Brown in Ferguson, Missouri, and Eric Garner, here in New York. In both cases, grand juries failed to indict the officers involved and – given the opinion of a former Chief Judge that a competent district attorney could get a grand jury to “indict a ham sandwich” – it was widely assumed that prosecutors had rigged the proceedings. (For instance, a British publication, The Independent, published an article under the headline “A grand jury could ‘indict a ham sandwich’, but apparently not a white police officer.”)

To quote Judge Lippman (at page 2 of the State of the Judiciary address):

Of immediate concern are the perceptions of some that prosecutors’ offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters.

To counter this ‘perception’, Judge Lippman recommended that in cases involving police officers accused of felony assault or homicide against a civilian,

a judge be physically present in the grand jury room to preside over the matter. The judge would be present to provide legal rulings, ask questions of witnesses, decide along with the grand jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the grand jury deliberates.

In order that justice not only be done, but ‘be seen to be done‘, the Chief Judge also proposed making certain grand jury evidence public after the proceeding is concluded.

The state’s prosecutors seem to have been stung by Judge Lippman’s remarks. A Times Union article quotes Robert M. Carney, the District Attorney of Schenectady County, as saying that “I haven’t talked to any of my colleagues, but I can’t imagine any of them are going to look at that say that it is a good idea” [sic].

According to Mr. Carney, “it would violate the separation of powers in the legal system to have judges so involved in the grand jury process that they order witnesses.” He points out that “they’re not prosecutors.”

This is a very interesting point of view, but represents a fundamental misconception of the role of the grand jury – and of the role the prosecutor should have in it.
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We’ve had a number of cases, recently, involving college students arrested with fake driver’s licenses. This isn’t really surprising in Saratoga Springs. There’s an ‘attractive nuisance’ here in the form of the Saratoga Performing Arts Center, a music venue that sells alcoholic beverages.

It is surprising that these students clearly had no idea what they were getting themselves into when they obtained – and then tried to use – the licenses.

For one thing, it’s a crime to buy a fake ID in New York. Vehicle and Traffic Law Section 392-a prohibits buying or selling a false, fraudulent or stolen license, or identification card. A first offense is a misdemeanor. A second, within five years, is a felony.

Get caught using a fake ID to buy alcohol, and you’ll face vehicle and traffic – or even criminal – charges. You can expect administrative sanctions, as well, as we’ll discuss below.
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There was an interesting piece in the New York Times, recently, with the provocative title Why Police Lie Under Oath. You’ll notice that the title contains a very unflattering assumption: no one asks why pigs fly, after all. But if you practice law for any length of time you’ll encounter things that seem to confirm the underlying premise of the article.

One of our clients was charged with driving while ability impaired by drugs. This surprised both him and his family, because there was nothing in his system that could have impaired his driving – a fact later confirmed by both a private lab and by the State Police.

Before his arrest, our client had been given a battery of field sobriety tests. He had passed all of them, according to the bill of particulars and supporting deposition issued by the arresting officer. This didn’t surprise our client or his family. He was an excellent snowboarder, as it happened. And frankly, if an athletic person couldn’t pass the tests completely sober, that would throw the tests themselves into question.

The US Court of Appeals for the Second Circuit issued an interesting opinion, yesterday, that has gotten national coverage. It’s of local interest as well, since it came out of an arrest that took place in Montgomery County, New York. The case is captioned Swarz v. Insogna.

The case has garnered wider attention, we suspect, because it was sparked by behavior that most people would consider ‘naughty’. Mr. Swarz, a passenger in a car, gave Officer Insogna the finger. Officer Insogna then chased the car down and seized Mr. Swarz and the driver.

The Huffington Post covered the story with the headline “Flipping Off Police Officers Constitutional, Federal Court Affirms.” That’s not the thrust of the opinion, though. The Court did note that flipping the bird is constitutionally protected. But it did this only in passing, because that is settled law. In People v. Stephen, for instance, which was a case out of New York City, the defendant’s behavior included “clutching his [own] genital area with his hands” and making comments and suggestions to a police officer that were about as vile as they could be. Because the defendant’s actions could not be interpreted as genuine threats, however, they were constitutionally protected.

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New York’s statutory scheme for punishing criminal possession of a weapon is laid out in Article 265 of the Penal Law, and in its simplest terms it looks at three things: the nature of the alleged weapon; the way it’s being used; and the identity and background of the person using it.

The punishment for criminally possessing a weapon can be severe, as this story from the Glens Falls Post Star illustrates: a Tanice Sumner of Queensbury, New York (who already had a felony DWI on her record, according to the article), was recently accused of threatening state troopers with a ‘small kitchen knife’. Convicted of Attempted Criminal Possession of a Weapon in the Third Degree, she’s now serving a sentence of 1½ to 3 years in state prison.

The term ‘weapon’ is a broad one. It can cover anything from a machine gun to such everyday items as rubber boots, handkerchiefs, spatulas, pens and pencils. But while a machine gun is always a weapon, a handkerchief – or a kitchen knife – may or may not be, depending on how the item is being used.

We’ll get into that below.
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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.
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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?
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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.
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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.
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