The Day The NYPD Police Commissioner Wanted To Make Flailing Your Arms A Felony

February 5, 2015 | The Law

The NYPD does not want an apology. It has, instead, set its sights on a much bigger concession. A prize that gives the NYPD what it loves best: totalitarian power and felony arrest statistics. The nation’s largest police force now wants the mayor and our representatives in Albany to get down on their knees, beg forgiveness, and force the populace to learn to respect the boys in blue. The insanity and pure chutzpah of demanding that the crime of resisting arrest become a felony (a felony!) is the perfect example of an organization completely out of touch with reality and the rule of law.

The language used in every complaint in the five boroughs goes something like this: the defendant resisted arrest in that the defendant flailed their arms and refused to be handcuffed. Thats it, nothing more. That was Eric Garner. That is any protester or drunken self-righteous banker who believes (rightly or wrongly) that they shouldn’t be arrested. Instead of a misdemeanor, which is usually reduced to a violation or even an adjournment in contemplation of dismissal, the case would have to go to the grand jury. Besides the tremendous waste of resources that would entail, the disastrous effects it could have on free speech is immeasurable. What if you are on the street protesting against the police and they tell you to get out of the street — or say you can only wave your signs in a designated area? If the protesters refuses to move and then refuses to be handcuffed because they are pissed off that the NYPD is eroding their constitutional rights, they get charged with a felony.

Or consider this scenario: What if someone is known for committing some petty crime, like selling untaxed cigarettes (not like in that bodega across the street from the courthouse, but out on the street) but happened to have sold out by the time the cops get there? The cops don’t care, they have a complaint that someone matching this guy’s description was selling cigarettes (mind you it doesn’t matter if he has no such cigarettes on him, they’re making an arrest). What if the guy doesn’t think he should be arrested because this time he had not actually been caught, so he’s self-righteous (like a drunken banker) and he yells and curses, saying “Fuck you, I’m not going down for this!” Voila, the police have turned a low-level untaxed cigarette case — one in which they couldn’t prosecute due to a lack of evidence — into a felony. Great for their stats, even if the city’s district attorney’s offices do the ethical thing and dismiss the case.

Resisting arrest is currently an A misdemeanor punishable by up to a year in jail. It’s already overly used by police — such as when a perpetrator flees the police — which is not resisting arrest, but which many of my clients have been charged. The seriousness of a felony requires an aggravating factor. Flailing your arms and refusing to be handcuffed — what’s that factor here? To charge someone with felony assault there has to be either a weapon or serious physical injury, for example. The weapon has to be recovered or evidence of its use somehow evident, such as stab wounds. Serious physical injury is notoriously hard to prove, like losing a limb. Resisting arrest does not mean hitting a police officer, that is in itself (and rightfully so) a felony. The aggravating factor is that a police officer or MTA worker needs to be able to go about unaccosted and we can’t run amok in the streets punching police officers. Aggravating factors are logical distinction between levels of crimes.

Besides the lack of an aggravating factor, there is no tangible proof for resisting arrest. It’s just the cop’s word that that there was flailing of arms, twisting of body or kicking of legs to avoid being handcuffed. This is simply an easy way to bump up any crime to a felony. Why would we give the police that amount of discretion when they haven’t earned such trust? Respect is earned, it’s not a right.

One can only imagine a cowering de Blasio ready to agree to anything that makes the NYPD stop turning their backs on him. Hopefully our representatives in Albany can muster some integrity and refuse to pay this ransom.

  The Law works within the New York City legal system.

(Original photo: Policy Exchange)