Clever WoT said on February 28, 2006  

Since my posts about criminal law are so few and far between, I thought I would point this one out to you:

A Shake-Up in Criminal Recidivism Laws

Recent movements in California and Ohio indicate that recidivism laws may be in for an overhaul. Any thoughts on the changes, or repeat offenders in general?

 Anonymous said on February 28, 2006  

I don’t see anything good about any of this. This prosecutor was just trying to sweet-talk people into pleading guilty. There may be defenses to these crimes, and maybe the proof just isn’t there. Even in Virginia, which is the state that has declared that its constitution doesn’t mean anything.

The “taking under advisement” deal would need to be adequately papered, and since I am a lawyer (though not on in Virginia) I would have to know more about what this means. From watching appellate opinions, it seems that such actions might come back to hurt someone in later proceedings.

Moreover, most employers I know would never hire any of these people, and this prosecutor basically ruined their lives. Trying to convince someone’s family to convince them to plead guilty, is, in my opinion, a little dirty.

This prosecutor just wanted to make his life easier by beating up on a few of the kind of people that are stupid enough (or black enough) to get arrested.

 Ken Lammers said on February 28, 2006  

Advisement would basically mean finding facts sufficient and then dropping the charge after a certain amount of time if the defendant doesn't get in any other trouble. The charge goes away: no conviction.

There was no doubt on those facts that she would get convicted in that court.

And, the girl was white.

 Windypundit said on February 28, 2006  

Attacking a trooper and putting 3-inch scars in his head is "misdemeanor obstruction"? That sounds surprisingly mild.

 Anonymous said on February 28, 2006  

From how I read it, it wasn't the woman on trial that gouged the trooper, it was the "other" woman. The woman on trial just yelled and grabbed at him.

 TWM said on February 28, 2006  

Of course, I am just a cop, but this girl should have done a couple months in jail. Especially after the prosecutor offered her such a sweet deal.

Yelling and grabbing at the officer while he is trying to subdue another subject(who has already seriously injured him) can get someone killed. She is luckier than she knows.

 Anonymous said on February 28, 2006  

She is only lucky if she 1) actually did it; and 2) is credible. In many jurisdictions these “obstruction” misdemeanors are often embellished, and are a headache for prosecutors to try, because the cops testimony often doesn’t bear out. (I have seen cops crack after 4-5 hours of cross examination, when they can’t get the details right.)

As the visiting cop above points out, she could have gotten more time. But, my guess is, that the prosecutor smelled a few holes in the cop’s story.

Anyway, at my old firm, if you agreed to such a plea on behalf of a client, without vetting it with at least two other lawyers, and writing a memo on the collateral consequences you would have been fired. This girl’s life is, for all intents and purposes, ruined, because 1) some cop decided he didn’t like her; and 2) some prosecutor felt that the best route was compromise.


Oh, TWM, “Yelling” at officers generally isn’t a crime. My guess is that the witness didn’t have any physical evidence, so he wrote up a rather weak police report.

 TWM said on February 28, 2006  

If the yelling interferes with the officer's duties it is a crime. I have had people get up in my face yelling while I was trying to perform my duties and while 99% of the time you can just ignore it, sometimes you have to deal with it by arresting the person for obstruction or whatever state law applies. This seems like one of those times.

Oh, and with all due respect, your comment about the officer arresting her in this instance because he didn't like her is, well, nonsense. You have no proof for your statement and based on the facts presented here, he was well within his legal right to arrest her. She was breaking the law by interfering with him while he was dealing with an obviously dangerous subject -- unless you think he scratched himself.

Finally, this girl's life is hardly ruined. She made a mistake and can recover from it. However, if it were ruined no one ruined it but her.

 Anonymous said on February 28, 2006  

While I wouldn't assume that the officer in this situation didn't improperly escalate the situation or embellish it after the fact, I wouldn't assume that he did either without knowing more facts and whether or not he has a history of doing this sort of thing. While police officers might not like hearing it, it DOES happen sometimes.
I also would not say that a conviction "ruins" someone's life. Heck there are states where a convicted felon can get admitted to the bar (for example a college student gets convicted of cocaine possession, gets clean, graduates, goes to law school, etc). This wouldn't happen in Virginia these days, but that is an argument for another time. From the facts presented, it appears that this lady was convicted of a misdemeanor and received a suspended sentence. It sounds more like a bump in the road of life than ruination.

 Anonymous said on February 28, 2006  

TWM, Before I conclude that you made it up, can you provide authority about how “yelling” can be a crime, “if it interferes with a police officer’s duties.”? This seems rather vague, as it would mean that a police officer could decide that he is doing his duty in a way that would infringe upon a person’s right to get some message across.

Of course I have no proof. In fact, I don’t have any proof that the prosecutor did what Ken says he did. I wasn’t there. Ken could have made the whole thing up. I don’t even know what town it was in. I don’t know the name of the girl, the cop, or the prosecutor. However, as a practical matter, people do get arrested for misdemeanors are not the kind of people that cops like. It would seem that if the prosecutor was willing to deal so low on this case the proof was so weak because he saw that this person didn’t do anything that would require a higher sentence.

Indeed, the point of having social skills is to avoid the negative attention from police or anyone.

To me, this girl’s life is ruined. I would never hire her because of her arrest. If she did go to law school (unlikely since she is the kind of person that couldn’t afford a lawyer, and is stupid enough to piss off a cop), it will be more difficult to get past the character and fitness exam. She probably won’t be able to become a prosecutor. If I was her lawyer, my position should have been that not only should have all charges been dropped (or whatever term they call it in VA) but her record should have been expunged.

Her only mistake, it would seem, is taking the legal advice of someone (a prosecutor) that doesn’t have her best interests in mind. A real person, with a real lawyer, would have not made that mistake.

 Anonymous said on February 28, 2006  

The fact is that yelling in public is often considered "boisterous" behavior and is enough to get you in trouble for disorderly conduct or something similar in most places. I'm quite the civil libertarian, but let us be honest with ourselves - you are playing with fire if you get in a cop's face- if you don't know better, you will learn eventually.

As far as this person's life being "ruined," it is pretty ridiculous to assert that a single misdemeanor conviction ruins someone's life. Granted, this lady is probably a hopelessly ignorant redneck, but the other "anonymous" doesn't know that, nor does he know if she has other convictions. If anything is going to ruin her life, it is people like him who "would never hire her because of her arrest."
The law school example was simply an illustration that having a criminal record doesn't ruin you life (it is rare, but not unheard of for convicted felons to attain bar membership in some states and a well-known public defender in CA with several heroin possesion convictions from before he received his JD just passed away). This sort of fatalistic attitude in an advocate could seriously discourage clients who must move on with their lives after a conviction.

 Anonymous said on February 28, 2006  

Well, just because it will “get you into trouble” with a cop doesn’t resolve whether it is a crime or not. You know, and I know, that cops deliberately or not-so-deliberately often don’t know what constitutes a crime. Unfortunately, for most people the only way to resolve what is or is not a crime is the criminal justice system, and you people don’t even get definitive resolution if charges are dropped. Seeking a declaratory judgment or an injunction is beyond the reach of most.

In general, I agree with you about this person being a probable redneck. Heck, if Ken didn’t prove repeatedly that he was a lawyer, I would presume him to be a redneck simply because of his address. While, of course I wish people the best for their lives, post-conviction, I am frightfully aware of the collateral consequences that people face for even minor convictions.

 TWM said on February 28, 2006  

A simple Google search shows that just making loud noises, including yelling, is a crime in many jurisdictions. But you probably knew that.

And I just as quickly found this language defining interfering with a police officer. It's for Connecticut, but my guess is most states have similarly worded statutes.

http://www.jud.state.ct.us/CriminalJury/4-21.html

"With respect to the first element, there are four words describing the ways interference may be committed. ''Obstructs'' means to interpose obstacles or impediments; to hinder, impede or in any manner intrude or prevent. This word and its definition does not necessarily imply the employment of direct force or the exercise of direct means. ''Resists'' means to oppose by direct, active forcible or quasi-forcible means. ''Hinders'' means to make slow or difficult the progress of. It means to hold back, to delay, impede or prevent action. ''Endangers'' means to expose to danger or harm."

You can call that vague I suppose, but it seems to me that "obstructs" could and probably does include yelling at an officer under certain conditions. It's all in how you articulate it.

Oh, and she didn't take the legal advice of the prosecutor. Had she done so her record would have been clean in six months.

And while is is true that many cops don't know what constitutes or does not constitute a particular crime, it has been my experience that many attorneys don't either.

Mr. Lammers being a notable exception, of course.

 Anonymous said on February 28, 2006  

Dear Mr. Cop,

The Connecticut statute you provided did not specify yelling. You also didn’t cite to any caselaw which allowed someone to be convicted under that statute for yellowing at an officer of the law. I generally don’t use Google, because too many publications from non-lawyers are found there, and it therefore useless. But, to humor you, I did do a Keycite of that statute on Westlaw, and found no reported cases where a yeller was convicted under that statute, especially in view of a rather strong protection for must forms of speech, including telling a police officer that he is an idiot and a waste of taxpayer money. (I have suggested that the constitution be amended to provide no protection to people that criticize the police or government bureaucrats, teachers, politicians, and the Department of Motor Vehicles, but people were more interested in an anti-gay marriage amendment, so criticism of the police, even in loud form, remains protected.)

Does this mean that what you “think” is the law is incorrect? Perhaps.



While it may be true that police and attorneys differ as to what constitutes a crime, the positions that lawyers take in court on behalf of their clients, are not an example of what the “know” to be a crime or not. Instead, they are an offered interpretation of the law, which the court may or may not accept. As you know, the police are not the final arbiter of what constitutes a “crime.” The courts are (insomuch as they must interpret the language of the statute, and reconcile conflicting statutes and constitutions). So, while you might say that a given lawyer doesn’t “know” what the law is, you really mean to say that you either disagree with him, or a court later disagreed with his proposed interpretation.

This issue is a little nuanced, sine in many situations, the “law” isn’t at all clear, and even when the courts rule on it, there is a question of whether certain state actions were void from the beginning, or whether simply enforcement has been suspended. As we now know, a state can’t prohibit black people and white people from marrying each other (unless marriage as a whole, is abolished in that state.) However, for the longest time it was assumed that the constitution didn’t allow Virginians to marry people of certain races. (Though minorities could intermarry under Virginia’s statute.) Then one day someone challenged this. You, as a cop, would probably loudly declare that those lawyers and litigants “didn’t know the law.” But, ultimately it was determined that the state was wrong, and, in fact, it “didn’t know the law.”

The sad part about this is that while courts usually have the luxury of time, police usually have to make quick decisions.

 Anonymous said on February 28, 2006  

I think that this cop might not be telling the truth. He cites C.G.S.A. § 53a-167a, but he should have realized that the Connecticut Supreme Court, in State v. Brocuglio, 264 Conn. 778, 826 A.2d 145 (2003), specially held that there is a common-law privilege to resist illegal search, and therefore a conviction under this statute (in addition to another statute) was invalid. The cop should have mentioned it. Now I don’t know whether I will ever be able to trust a cop again. In State v. William, 205 Conn. 456, 534 A.2d 230 (1987) the court upheld a conviction under this statute, but noted that the conduct must only be be “intended to obstruct the police in the performance of their duties.” The court explained that the statute isn’t vague, because… “To avoid the risk of constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting words that " ' "by their very utterance inflict injury or tend to incite an immediate breach of the peace." ' "” Therefore, contrary to the words of this officer that claims he knows the law better than lawyer, there needs to be an intend to incite an immediate breach of the peace.

I can only wonder why this cop, that cited a Connecticut statute, didn’t mention this caselaw? Did he do it negligently or deliberately? Why? I feel betrayed. I am sure it was just a mistake. I hope.

 Ken Lammers said on February 28, 2006  

Please stop the "cop" stuff. Disagreements, yes. Rudeness in the discussion, please avoid.

 Ken Lammers said on February 28, 2006  

For everyone's knowledge:

If the young woman had taken the prosecutor's offer he would not have gotten a conviction if she didn't get into trouble for 6 months and neither would she. It would have gone away. Anyway, it's my understanding that the number of convictions credited to a prosecutor's office in Virginia are only the felonies.

The obstruction didn't need to reach the issue of her speech. She tried to pull her friend away from an officer who was trying to handcuff the friend.

 TWM said on February 28, 2006  

One of you two "anonymous" guys asked me to provide "authority" that yelling can be a crime if it interferes with a police officer's duties. We all know yelling can be a crime under certain noise and disorderly conduct laws, so let's just concentrate on the interference.

You did not ask me to cite a law that specified yelling at a cop in and of itself is a crime so I did not even look for one. I looked for statutes that defined interferring and the CT statute I did cite is broad enough to INCLUDE yelling in my humble opinion. Certainly it does not exclude yelling.

My interpretation of that particular statute is that yelling COULD be considered interfering under certain circumstances. For example, if I am trying to arrest someone and his friend gets in my face and starts yelling at me and as a result it makes it harder for me to make the arrest (urging his friend to resist, etc.), well, then, that seems to fit obstructing in that statute. If the guy was yelling from across the street then no, it probably would not, although if he was urging the guy to fight I might just argue that it would.

One of you cited the following:

"In State v. William, 205 Conn. 456, 534 A.2d 230 (1987) the court upheld a conviction under this statute, but noted that the conduct must only be be “intended to obstruct the police in the performance of their duties.” The court explained that the statute isn’t vague, because… “To avoid the risk of constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting words that " ' "by their very utterance inflict injury or tend to incite an immediate breach of the peace." ' "”

Maybe I am misreading this, but doesn't that mean just what I said? It certainly seems to mean exactly what I meant anyway.

I don't have access to Westlaw or a big legal library so pardon me for using the only research tool I had at the moment. Still, from what I have seen so far, I haven't been proven wrong. Besides what I quoted was certainly written by a lawyer. Why else would it be so hard for a layperson to undertand?

And I never claimed to know the law better than a lawyer. I wouldn't presume to, although many lawyers claim to know police work better than the police.

And, Ken, I don't mind them calling me a cop. Although actually I am a fed and most street cops would not claim me, I am proud to be called one.

 TWM said on February 28, 2006  

Again, through Google, I found this very interesting discussion on "fighting words" at the First Amendment Center.

http://www.firstamendmentcenter.org/speech/arts/topic.aspx?topic=fighting_words

While it is a different matter from what I was talking about -- interfering with an officer's duties -- it does allow for the criminialization of fighting words even towards a police officer. Narrowly but still.

 Anonymous said on March 01, 2006  

Seriously, officer, stop using Google and become a lawyer the rest of us.
If you were a lawyer, would have known that the Supreme Court expressly said that police cannot be provoked (because they are trained and such) and therefore the “fighting words” doctrine isn’t applicable. (I think the original posters left this out on purpose to see if you would take the bait.) Anyway, in City of Houston, Tex. v. Hill, 482 U.S. 451 (1987), the court held that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. “Speech is often provocative and challenging•••• [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, …(1949). In …Lewis v. City of New Orleans, 415 U.S. 130,… (1974), for example, the appellant was found to have yelled obscenities and threats at an officer who had asked appellant's husband to produce his driver's license. Appellant was convicted under a municipal ordinance that made it a crime “ ‘for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.’” Here is your full text of the case: http://www.justia.us/us/482/451/case.html

Probably most of the “fighting words” doctrine in Chaplinksy has fallen into disfavor, except amongst those who insist that everyone else is uttering “fighting words” by saying things they don’t like.

Anyway, I sure hope that that trashy girl conviction would have stood up under Hill. If not, the prosecutor tricked her. But maybe she deserved it and she seems uneducated, which in many families is a crime.

 TWM said on March 01, 2006  

Seriously, counselor, stop being so condescending to those of us who chose not to go to law school and instead got a Masters degree, became an officer in the United States Air Force, worked criminal, counterintelligence, and anti-terrorism operations and investigations for 12 years, travelled the world and now work as a civilian federal agent.

I tell you my background only to point out that being a lawyer isn't the be-all and end-all of existence as you seem to believe. Nor does it make you, an attorney, the only person capable of offering an opinion on a criminal law matter. So you can stop flashing your diploma, okay? I get it. You are an attorney. Esquire and all that.

That being said, the link I provided showed that while the fighting words doctrine has been narrowly defined by the Supremes it did not do away with it altogether -- even when directed at a police officer. If you actually read the information at the link you would see that.

And even if they do, it still does not make false my assertion that yelling at an officer can be inteferring under certain circumstances. Certainly some of the statutes are written broadly enough to include that possibility and I suppose it is up to you, counselor, to argue that it does or does not apply depending on which table you are sitting at in court.

At any rate, it is obvious that I am simply out of my league being the slouch that I am so I will leave this argument to the legal professionals.

Ken, I apologize for sullying the hallow halls of justice.

 Ken Lammers said on March 01, 2006  

I've only had one case wherein an officer arrested a client purely for his speach. They had a confrontation and he yelled a string of obscenities at the officer from across the street. The officer arrested him.

The case was thrown out at trial because the words alone were not enough. The test was whether the officer believed, in good faith, that the words would provoke violence. On cross the officer admitted that he was too much of a professional to let Client provoke him into throwing a punch and nobody else was around. The judge didn't like it but he had to dismiss.

 Windypundit said on March 01, 2006  

Wow, I wish I could capture people who say mean things to me. That would be cool!

 Anonymous said on March 01, 2006  

TWM, Neat. You were in the Air Force, too. But, I don’t understand why I should regard your comments any differently because of what you did in the past. Giving me your resume doesn’t make you smarter, or your arguments any more correct. In the future, I would urge you never to use Google. It is a dirty search engine.

Anyway, in my family (and in the families out there that “matter”) being an attorney is, indeed, the be-all-and-end-all of existence. I know it sounds a little crude, but if someone in my family got past 30 without a law degree, they would be disowned. This is why this country is, and always will be run by lawyers, no matter what political party the lay people voted for.

While some legislatures like to play around with writing statutes that criminalize all kinds of things, the “law” (that is, the commiestitution) doesn’t let them do this.

Ken (and others) , The cross you saw was basically an attempt to fit the case into the Supreme Court’s dicta, which essentially said, “police shouldn’t be the type of people that would be provoked into anything.”

But, I agree with Windypundity. It would be cool to put people in jail that make me angry. I would conduct mass arrest of people at Jimmy Buffet concerts, because those people are bad.

 TWM said on March 01, 2006  

Sheesh, let's forget the legal issues here and just have you talk about your ego. It certainly would guarantee Ken the longest comment section in history.

One would almost think you were a doctor.

 Ken Lammers said on March 01, 2006  

Nope. We'll probably never see doctors here. If you've ever seen the look that doctors give someone when they find out he's a lawyer you realize they don't want to be within 20 miles of us. ;-)

 Steve Armstrong said on March 01, 2006  

I know it isn't right, but in my years on the street, I saw many a potty-mouth go to jail for "contempt of cop". Now, once they got to trial... well, that's a different story. Most of the charges were either nolle prossed or dismissed, or reduced.

 Anonymous said on March 01, 2006  

Indeed, the bald eagle sheds cries every time someone is arrested for “contempt of cop.” By now officers of the law should know that merely when someone is rude to them, or tells them what they think, they have not committed a crime. Indeed, many think that such arrests, in their aggregate do more damage to democracy than 9/11.

 Ben said on January 08, 2009  

I don't know whether this was a contempt-of-cop charge or a legit interference/obstruction charge (the allegations do appear to involve real, but minor, interference). Regardless, the girl probably should have taken the deal (with the help of a lawyer) to keep a clean record.

I wonder, however, whether the prosecutor even considered just dropping the charges? The offense was relatively small, and the girl had obviously already been subjected to a difficult and onerous experience. Maybe that in itself was enough punishment? Given that the sentence was (predictably for a minor first offense) suspended, the only difference between dropping the charges and not was the (vast) set of collateral consequences accompanying conviction.

She may have been dumb to act as she did (both with the cop and with the prosecutor), but does that justify branding her as a convicted criminal? Was she punished for her crime, or for her refusal to submit to the system? Was the prosecutor afraid that dropping the charges in any obstruction case would result in blowback from the police? Although the girl appears to have had some trouble acting in her own best legal interest, I have lingering questions about whether justice was really served here.

 JB5 said on July 02, 2010  

I think your anons here were being willfully ignorant and trolling. Especially when their disagreement is based on taking TMWs remarks and deleting the part that makes it matter, they wanted to get into a fight about yelling, but TWM said "Yelling and grabbing at the officer", not just yelling.

Of course what had happened:
"she tried to pull her friend away from the trooper while he was trying to handcuff her."

From the Virginia code § 18.2-460 - Obstructing justice :

A. If any person without just cause knowingly obstructs ... any law-enforcement officer in the performance of his duties as such ... he shall be guilty of a Class 1 misdemeanor.

Having "never seen anyone handled as roughly" is not just cause, it is evidence of the person's lack of experience.

But hey, what do I know, I didn't get my law degree before 30. I just know that under the plain reading of the law she was guilty as hell with the facts presented. She should have taken the deal and walked away ecstatic.