When Any Offense Will Do

When Xavier Roper and William Logan Lockett decided to go to a Black Lives Matter protest on December 14, 2014, they didn’t expect to end up in flexi-cuffs. For one thing, both were there as journalists. For another, neither did anything worthy of arrest. Nonetheless, both were.

They were both given Desk Appearance Tickets (which are an “invitation” to appear in court on a later date), appeared as required and were given ACDs, adjournments in contemplation of dismissal. Don’t get arrested for six months and your case is automatically dismissed. And they were.

But Roper and Lockett were less than thrilled by their handling by the New York police department.

Roughly an hour after he arrived, Roper “moved into the street,” which was closed to traffic in order “to photograph and video record the police action from a different perspective”. Sometime thereafter, defendant Inspector Timothy Beaudette ordered the protestors to move from the street to the sidewalk. As the result of barricades and a “wall of NYPD officers,” Roper was unable to access the sidewalk in order to comply with the order. Roper heard an NYPD supervisor instruct his officers to “[j]ust take somebody and put them in handcuffs.” One of the  officers then arrested Roper for “standing in the street,” and placed him in plastic “flex-cuffs.”

The cops were ordered to take some random warm body into custody, and Roper happened to be the warm body picked. Not a great reason to be arrested in general, and even worse given that he was there as a journalist, recording the protests. Yet, cuffs it was.

After their charges had been dismissed, the two sued.

Plaintiffs contend that defendants lacked probable cause to arrest them for failing to comply with orders to disperse (i.e., disorderly conduct) because, to the extent that such orders were issued, the surrounding police barricades inhibited plaintiffs from dispersing. However, the relevant inquiry is “whether probable cause existed to arrest for any crime,” not necessarily for the crimes cited by the officers or ultimately charged.

In other words, it made little difference that there was no probable cause for the offenses for which the two were, in fact, arrested and charged. No PC? No problem.

The existence of probable cause to arrest is a complete defense to each of these claims.

But they had no probable cause to arrest for disorderly conduct? The test isn’t what they were arrested for, but any offense.

Here, defendants argue that they had probable cause to arrest the plaintiffs for offenses relating to pedestrian traffic. For the reasons discussed below, that is correct. The Court therefore need not assess whether plaintiffs’ compliance with the dispersal orders was excused so as, potentially, to vitiate probable cause for disorderly conduct based on plaintiffs’ failure to disperse.

Pedestrian offenses, such as no jaywalking, may not have been on the cops’ mind at the time they cuffed Roper and Lockett, but they were on the books. Sure, they would never have been arrested for such conduct under any circumstances, it doesn’t change the fact that the offenses existed and they could have had they thought about it. That they didn’t, these weren’t the reasons why Roper and Lockett were seized, makes no difference.

New York law imposes several restrictions on the ability of pedestrians to lawfully walk in the street. Relevant here, one New York statute directs that “[w]here sidewalks are provided and they may be used with safety it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.”

This constitutes an infraction under New York law, meaning that it falls below a misdemeanor and isn’t considered a criminal offense, but it’s still an offense. And that, alone, is good enough to wipe away all improprieties of what actually happened, that the NYPD randomly arrested people for no particular reason.

The rationale is that the test for probable cause, when challenging a false arrest, is objective. It doesn’t matter what the police subjectively believed they were arresting a person for, but whether there was any basis in law, given the information the cops possessed, for probable cause for any offense whatsoever. Even one nobody thought of, nobody would have arrested them for, and not charged.

To be sure, courts have understandably expressed some skepticism about justifying custodial arrests undertaken for other reasons based on violations of traffic laws that likely are rarely the subject of arrests. But it is well-settled that probable cause is determined objectively by the existence of evidence that an offense, including a traffic offense, has been committed, not by the officers’ subjective basis for effecting the arrest.

Not only does this lead to fantasy rulings, that wrongful arrests can be sanitized by some obscure, minor prohibition that nobody contends was the actual basis for arrest, but it also creates a near-impossible burden to overcome in a city, state and country that has a law against everything.

It seems that Southern District of New York Judge Paul Engelmayer wasn’t entirely thrilled with his duty to rule in accordance with precedent, recognizing that he was applying law that was little more than a flight of fantasy used to alleviate the liability of the NYPD for rounding up random people at a protest. But a district judge doesn’t get to ignore the law. This was Second Circuit precedent,

Although New York law defines a “traffic infraction” as “not a crime,” N.Y. Veh. & Traf. Law § 155, it is also “deemed an offense” for “purposes of arrest without a warrant” under N.Y. Crim. Proc. Law § 140. Id. Under New York law, a traffic infraction is defined as a “petty offense,” id. § 1.20(39), and a police officer may arrest a person for a “petty offense” without a warrant when the officer has probable cause to believe that the person has committed the offense, id. §§ 140.10(1)(a), 140.10(1)(2). As such, such an arrest satisfies constitutional requirements under the Fourth Amendment. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Absurd as it may be that the objective test of probable cause fails to consider the basis for arrest and prosecution, and instead devolves into a search of any potential offense without regard to what, in the real world, actually happened. In a world where everything is an offense in one way or another, there will always be probable cause. That means there will always be a constitutional basis for seizure. Always.

9 comments on “When Any Offense Will Do

  1. Billy Bob

    And this comes as a surprise to you! How long have you been practicing in New York? Foley Square-breath. Our favorite part of downtown Manhattan. Ha.

    Reply
      1. Billy Bob

        Rules were meant to be broken.
        Of them, we give no token.
        The First shall be Last,
        And the Last,… totally aghast!
        You may count me among the woken?

        (My Hat’s-Off to Fubar, below. He taught me
        everything I need to know about,,, rhymin’.)

        Reply
  2. Turk

    This is absurd—the street was closed to vehicular traffic. How can that not vitiate probable cause?

    Street fairs, New Years Eve in Times Square, the NYC Marathon — all are conceptually the same.

    There has to be some factoid missing from that opinion, some direction/warning for pedestrians not to enter the roadway.

    If not, then I predict you’ll be writing about this again a year from now.

    Reply
    1. SHG Post author

      There has to be some factoid missing from that opinion…

      You’re adorable whenever you find crim law incomprehensible.

      Reply
  3. Fubar

    Coming soon: The Roper and Lockett disclaimer, to be recited immediately prior to the Miranda warning.

    Dear Citizen: Do not resist.
    It’s your turn to be cuffed by the wrist.
    I arrest you today,
    For what crime, I can’t say.
    But the courts will invent a long list!

    Reply

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