At first blush, the sentence imposed by Justice Mark Dwyer seemed very harsh. Four years each for two “Proud Boys” who, after being goaded by Antifa protesting a Gavin McInnes speech at the Metropolitan Republican Club, went on the attack.
By no stretch of law or reality could the beating that followed be called “self defense.” It wasn’t that the preceding conduct was good, although it wasn’t criminal, but that there was a clear break and the group of Proud Boys went after the few Antifa, chasing them down, catching them, beating them.
They were arrested, tried and convicted.
But on [August 19, 2019], jurors in State Supreme Court in Manhattan rejected claims by two members of the group, who had said they had been acting in self-defense last fall on the Upper East Side when they took part in the beating of four people described by the police as anti-fascists connected to a loose-knit group called Antifa.
The top count of conviction for each was attempted gang assault in the first degree, which is somewhat hard to understand.
120.07 Gang assault in the first degree.
A person is guilty of gang assault in the first degree when, with intent to cause serious physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person.
Gang assault in the first degree is a class B felony.
The police never knew the identities of the four Antifa protesters, and they didn’t cooperate with the prosecution. It seems impossible for the prosecution to have presented evidence that they caused serious physical injury without medical records and testimony. Adding the “attempt” further makes the gang assault count untenable.
Proof of “intent to cause serious injury, which means “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ,” is usually proven by outcome, as one intends the natural consequences of one’s acts. Here, the outcome was unknown and there was no use of weapons associated with such serious injury.
It would appear that the “attempt” was based on the failure of proof that any serious physical injury was sustained, but that raises the question of how the evidence could possibly be sufficient to prove intent to cause such injury. Here, it was just the ordinary punching and kicking, no different than any common bar fight. Not good, but hardly evidence of intent sufficient to allow a jury to conclude they meant to cause serious injury.
From the video, the attack satisfied the gang element, but beyond that wasn’t any more violent or likely to cause injury beyond a fairly pedestrian fight. Fights aren’t good, but they happen, and they don’t get the level of sentence imposed when someone uses a weapon, no matter what their political motives. Indeed, that these two defendants were Proud Boys should have nothing to do with the sentence, as they were not charged with any sort of “hate crime,” nor does the law discriminate by the political agenda of defendants.
But they were tried and convicted, and an attempt to commit a “B” violent felony carries a sentence of 3½ to 15 years imprisonment.
On Tuesday, a State Supreme Court judge in Manhattan cited that recent history as he sentenced two members of the Proud Boys, Maxwell Hare and John Kinsman, each to four years in prison, for taking part in a “political street fight.”
“I know enough about history to know what happened in Europe in the 30s when political street brawls were allowed to go ahead without any type of check from the criminal justice system,” he said.
“We don’t want that to happen in New York,” Justice Dwyer added, “especially at this time in the country when people are so divided.”
Whether similar concern has been shown by police or courts as to similar political street fighting, or as has been more pointedly argued, as to the violence perpetrated by Antifa, isn’t relevant to what happened in New York and prosecuted before Justice Dwyer. This case isn’t a referendum of politics and deals only with the case before it, regardless of how other jurisdictions address such matters.
When sentence was announced, the four years seemed extremely harsh for a case where no weapons were involved, no one was seriously injured, there was some arguable provocation and the defendants, presumably, had no prior convictions. But given that the top count was attempted gang assault 1°, the minimum sentence possible was 3½ years, meaning that Justice Dwyer added six months to the minimum.
Perhaps the extra six months was the “message” that political street fighting wouldn’t be tolerated, although 3½ years is certainly more than long enough imprisonment to make the point. Perhaps it was that Justice Dwyer didn’t want to impose the minimum, which might be spun to suggest he didn’t take it seriously or was cutting a break to the Proud Boys.
The Persky-effect might have been implicated. There is nothing here to suggest that Justice Dwyer favored either side in this political street fight, even though both sides will nonetheless impose their agenda on the outcome. When politics are overlaid on law, nobody is ever satisfied.
In court on Tuesday, a prosecutor, Joshua Steinglass recommended that Justice Dwyer sentence Mr. Hare and Mr. Kinsman to five years in prison, saying “violence meant to intimidate and silence” should have no place in society.
Four years imprisonment is a very long sentence for this offense, even if its length is made somewhat more understandable by the law requiring a minimum of 3½ years. The minimum sentence was very severe, and parsimony would suggest that no additional time would be proper to fulfill the purpose of this sentence. Sentences aren’t for sending political messages to society, but for addressing the individuals and their offenses of conviction.
In context, the sentence reflects six months above the minimum required by law. Harsh as it is, that’s more a reflection of Draconian sentencing requirements for gang assault than what happened here. But four years is a long, harsh sentence, even if it’s a mere six months longer than the minimum.