On November 17, thousands of protesters massed in or about the Wall Street area as part of the Occupy Wall Street movement. The NYPD was prepared and sent hundreds of officers to the area in anticipation of several scheduled protests. Many of the protesters were arrested and are currently being processed for various misdemeanors and violations. We understand that most of the protesters are being charged with the following crimes: Obstructing Governmental Administration in the Second Degree (Penal Law 195.05, a Class A misdemeanor), Resisting Arrest (Penal Law 205.30, a Class A misdemeanor), and Disorderly Conduct (Penal Law 240.20, a violation). These misdemeanor charges are potentially punishable by up to one year in jail, and the Disorderly Conduct violation is punishable by up to 15 days in jail.
We have heard reports that most of the protesters that have been arrested throughout the Occupy Wall Street movement are being offered ACD’s (adjournments in contemplation of dismissal) or Disorderly Conduct at arraignment, but most of the protesters are rejecting those plea bargains. We expect that the protesters are rejecting those offers both out of principal and as a means to preserve their civil lawsuits against the city. Obviously, a false arrest and malicious prosecution civil lawsuit cannot be meaningfully pursued against the City of New York by someone that pleaded guilty to Disorderly Conduct, because that plea would justify the arrest and prosecution. (In contrast, the acceptance of an ACD may or may not preclude a lawsuit).
A person is guilty of Obstructing Governmental Administration in the Second Degree when he “intentionally obstructs, impairs, or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor’s intent that the animal obstruct governmental administration.”
A person is guilty of Resisting Arrest (Penal Law Section 205.30) when “he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.” An “authorized arrest” has to be a lawful arrest; we expect that many of the protesters will (and should) argue that their arrests were unlawful because they were simply exercising their First Amendment rights to engage in political discourse.
There are several subsections of Disorderly Conduct (Penal Law Section 240.20), meaning that one can be guilty of this violation in numerous ways (and we expect the police and prosecutors to charge each defendant with violating multiple sections of this violation at a time). The statute reads that a person is guilty of this charge when, “with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2.. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.”
In our opinion, we think that these Disorderly Conduct charges could be defeated in numerous ways. A protester could argue that he had no intent to cause public annoyance or alarm, but was instead only intending to cause political change and make a political statement. Also, a protester could argue that the arrests were unlawful violations of their civil rights.
Interestingly, we think that protesters charged with misdemeanors would have a better chance at trial. The reason for this is that people charged with Class A misdemeanors have the right to jury trials. Given the number of people in NYC that sympathize with the Occupy Wall Street protesters, we think that prosecutors might have difficulty convincing jurors to convict a protester, regardless of the merits of the proof. In contrast, those protesters charged with Disorderly Conduct violations are not entitled to juries, and would be tried by (most likely) less-sympathetic judges. Don’t be surprised if prosecutors reduce the Class A misdemeanor charges in these protest cases to Class B misdemeanors (Attempted Obstructing Governmental Administration in the Second Degree, Penal Law Section 110/195.05, or Attempted Resisting Arrest, Penal Law Section 110/205.30). That reduction does not significantly change what the prosecutors have to prove, but it allows the prosecutors to try the cases without juries (because the defendants do not have the right to a jury trial for Class B misdemeanors). The upshot for the defendants is that the maximum jail penalty for a conviction for a B misdemeanor is 90 days rather than one year.
If you or a loved one were arrested pursuant to the Occupy Wall Street movement, you should consider contacting the experienced criminal defense and civil rights attorneys at Galluzzo & Johnson LLP. You absolutely need an attorney that understands how the criminal case and a potential civil lawsuit are intertwined, and the aggressive former prosecutors at Galluzzo & Johnson LLP are experienced in both fields. Give them a call to schedule a consultation about your case and to discuss your possibility remedies.