The Manchester Chalking 8: Round 2 – Charges against Kate Ager
Report written by Kate Ager, one of the Manchester Chalking 8.
“On September 12, 2011 the Court held a trial on the above captioned matter. At the conclusion of the evidence and parties’ arguments, the Court took the matters under advisement sans one charge that was dismissed at the conclusion of the Prosecution’s case. There was some delay on the resolution of this case while the Court obtained the proper technology to access the C.D.’s submitted as Defendant’s A and B.
The Prosecution had filed the complaint alleging a class A misdemeanor of disorderly conduct (RSA 644:2). The defedant argues that she did not violate a “lawful order”. The NH
Legislature has defined “lawful order” as:
(1) A command issued to any person for the purpose of preventing said person from committing any offense set forth in this section, or in any section of Title LXII or Title XXI, when
the officer has reasonable grounds to believe said person is about to commit such an offense, or when said person is engaged in a course of conduct which makes his commission of
such an offense imminent.-(2) A command issued to any person to stop him from continuing to commit any offense set forth in this section, or in any section of Title LXII or Title XXI, when the officer has reasonable grounds to believe that said person is presently engaged in conduct which constitutes any such offense; or-(3) A command not to enter or a command to leave an area closed pursuant to paragraph IV, provided that a person may not lawfully be ordered to leave his or her own home or business.-Sergeant Patti of the Manchester Police Department testified that after the police had arrested several people for criminal mischief, he directed that two police detectives photograph and memorialize certain marks near the front of the police station. In the video of the encounter, the Sergeant describes this area in front of the police station as a crime scene. Defendant’s exhibit A. It is beyond peradventure that an uncontaminated crime scene is important to the criminal defendant, society and to the justice system as pristine and untainted crime scene properly documented will assist in the truth-seeking process at trial. Therefore, it is little wonder that the Legislature made it an offense to interfere with criminal investigation in a public place. See RSA 644:2 II (d). Hence, when the Sergeant asked the defendant to move from the area of the sidewalk in front of the Police Station, he would have reasonable grounds to believe that a person was about to violate the above cited provision within Title LXII, by her continued presence within the undocumented crime scene. -Initially, there seems to be a challenge as to whether the first directive was either an order or polite request. Defendant’s A captures the precise words of Sergeant Patti. “Excuse me, would you get off the chalk please.” A command is “direct authoritatively” Webster’s Seventh Collegiate Dictionary, p. 164 (1970). Those words of Sergeant Patti constitute an authoritative directive and qualify as a lawful order to move. To the extent that the polite and courteous nature of the direction was ambiguous, the dialogue that follows extinguishes that claim. Defendant verbally challenges the police authority to direct her movement by saying, “Get off the chalk? I am on the sidewalk.” In response Sergeant Patti replies, “I know it is evidence in a crime.” When defendant verbally challenges the designation as a crime, the Sergeant says, “I am giving you a lawful order because we have to take pictures of that. If you are not going to move, you are going to be arrested”. In light of this exchange, which the police were not obligated by the terms of the statute to make, there is no doubt that a lawful order was issued and by standing still this individual violated the law.For conduct to create criminal liability, the defendant’s action must be “…based on conduct that includes a voluntary act…” See RSA 626:1 (I). While there was certainly sufficient time for the defendant to comply with the first lawful command, Sergeant Patti announced the defendant was under arrest within two seconds of the second lawful order. Because of the scant passage of time, the Court cannot find beyond a reasonable douct that the offense was transformed from a violation level offense to a misdemeanor, as the individual must have failed to desist after a request was made; the passage of a second or two does not meet the requirement of proof beyond a reasonable doubt. See RSA 644:2 VI. The court finds the defendant guilty of a violation offense.-Defendant’s exhibit A shows that Sergeant Patti tells the Defendant that she is under arrest as he steps towards her with hands outstretched at about waist level. When a uniformed law enforcement officers tells an individual that he is placing that person under arrest, no reasonable person could have a scintilla of doubt that she was being arrested i.e. being taken into custody to be forthcoming to answer to a criminal charge. See RSA 594:1 I. The defendant responded, “Get your hands off me!” sergeant Patti can be heard directing the defendant to put her hands behind her back. The video came to an abrupt end with the camera apparently being jostled in the effort to arrest the defendant. The police officer testified that what ensued was a physical struggle to have the defendant’s arms brought behind her back and then handcuffed. Since 1942 the NH Legislature has clearly set forth the obligation of a person who is being arrested “…it is his duty to submit to arrest and refrain from using force or any weapon in resisting it regardless of whether there is a legal basis for the arrest.” RSA 594:5. The Court finds the defendant did physically resist arrest by struggling with the police as they attempted to arrest her. Therefore, the court finds the defendant guilty of that offense.-The remaining offense is a violation of RSA 641:4. The offense has an element that the defendant acted with the specific intent to “induce a police officer to believe that another had committed a crime”. In this instance there is no doubt that the defendant provided false information concerning her date of birth. There appears to be no evidence in the record to support the specific intent element. The failure of proof by the prosecution results in the Court finds defendant not guilty as to this offense.-The court will hold a sentencing hearing on October 20, 2011 at 8:15 AM in Courtroom 301.”