CLE tackles protest-related cases

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The Monroe County Bar Association presented an online continuing legal education (CLE) program Wednesday on criminal defense and civil litigation in protest-related cases.

The CLE was prompted by numerous arrests stemming from protests in Rochester and across the country triggered by the death of George Floyd at the hands of police officers in Minneapolis and Daniel Prude, in Rochester.

“It just has gotten outrageous to me what the police are charging and the way that they’re going about this,” said panelist Jessica Naclerio.

The CLE was hosted by the Young Lawyers Section of the MCBA and co-sponsored by Lawyers Coalition for Racial and Social Justice.

The program lasted about 90 minutes and included attorneys Elliot Dolby Shields, Jessica Naclerio and moderator Victoria Bahl.

Shields is a civil rights attorney with Roth and Roth in New York City, and he focuses on police misconduct and prisoners’ rights cases. Bahl is an assistant Monroe County Public Defender. Naclerio is a former assistant Public Defender now in private practice and specializing in criminal defense.

The panel provided an overview of the law that applies to protest-related criminal cases, the groundwork to challenge criminal charges under state and federal law and an overview of constitutional challenges in criminal and civil court.

The panel also discussed the interplay between criminal law and civil law in protest-related cases including issue spotting, collateral consequences and ethical obligations.

The presentation was designed to give criminal defense attorneys and civil practitioners the information needed to understand basic issues involved when criminal charges arise from the government interfering with the exercise of constitutional rights.

Bahl explained that she organized the CLE “because Rochester has been a really great hub of energized and active citizens.”

“They’ve been exercising their right to protest and assemble and demonstrate the need for change in police agencies and policies and support the protests that are going on around the country, and these protests have led to a large number of arrests,” she said. “As a criminal defense attorney I understand these criminal charges and I felt that these are unique because they intersect with constitutional law, with civil rights law.

“I thought it was important that we get information to the bar about a holistic approach and make sure we’re understanding how these charges intertwine civilly and criminally,” Bahl added. “We’re seeing the government interfere with our constitutional rights and police agencies are responding to these protests by wearing full riot gear. They are covering their badges. They are taking personal property, like cell phones and backpacks, personal body cameras. They are also using force; using pepper balls; using rubber bullets, shields, batons, long-range acoustic devices; they’re using drones. They’re making a lot of arrests.”

Bahl discussed several charges lodged against protesters during recent Rochester protests.

Protestors have been ticketed under New York State Vehicle and Traffic Law for walking in the roadway, when a sidewalk is available.

“We are seeing these traffic tickets as underlying offenses that either lead to resisting arrest or other charges … I think it’s important that we are aware of all underlying offenses. That is the place where police start to have contact with our clients and we need to make sure that we analyze that interaction,” Bahl said.

She said defense lawyers should request supporting depositions “and make sure the facts that are provided line up with that violation.”

When a client is charged with the violation of trespass, attorneys should determine whether their client was on a public sidewalk or lobby or some other place open to the public.

Non-owners of property, such as property managers, do not have the authority to exclude people from those places.

“We need to make sure we’re challenging and investigating what kind of authority these people have to tell our clients to leave,” Bahl said.

In the case of a client charged with harassment for allegedly threatening to strike a police officer, it’s important to consider the nature of the alleged interaction, she said.

“There’s a disparity of power between our clients and the police. If our client is being charged with threatening a police officer and he or she is holding a cardboard sign, or completely unarmed in any other way, and the police officer is in full riot gear, those are certainly facts we would want to flush out and see if this person could actually be harassed, annoyed or alarmed,” Bahl said.

When disorderly conduct is charged, sometimes the public dimension is not sufficiently alleged, she said, “And that is an absolutely necessary element for disorderly conduct”

“There needs to be a genuine intent or tendency to provoke the breach of peace. Just because a crowd forms to watch an arrest, or to watch something happen, that does not mean that the public is sufficiently involved,” Bahl said.

For unlawful assembly, another common protest-related charge, the accusatory instrument “must link the defendant to the conduct and purpose of the group or make specific allegations that support an inference that they shared a community and purpose with others to engage in tumultuous or violent conduct,” she said.

“They can’t just say, ‘Because you were there you were part of this.’ The mere presence near other people engaging in violent and tumultuous conduct does not equal a shared community and purpose,” Bahl said.

When a client is charged with third-degree trespass, a Class B misdemeanor, defense attorneys should make sure the charge alleges that there was a fence “or otherwise enclosed area,” or else the charge is defective.

Naclerio warned lawyers representing more than one person arrested at a protest to be aware of potential conflicts because each defendant may have a different intention. While some clients might want to fight the charges fully, other clients may have reasons to seek a plea agreement.

“I just don’t think it’s fair to that client. I don’t want to be put in a position where I’m advocating for one thing for one person and not for another,” she said.

Shields said he has been contacted by clients concerned that they were taken into custody and held for hours, in some cases, for relatively minor offenses.

“I’ve seen a lot of people who have come to me and said, ‘I was arrested. I should have been released immediately, but instead they … interrogated me for hours,’” Shields said.

“It can be really complicated to figure out if that’s enough to constitute an unlawful detention claim,” he said.

To complicate matters, when state, local and federal law enforcement officials are working together, it’s difficult to determine who is responsible, he said.

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