Mailbag for October 27, 2011

Today we have another mailbag question.  Joe writes:

What if a hypothetical protester had powers that prevented the police from carrying out their duties? How would this legally break down, and to what degree could authorities enjoin or do anything to them?  [For example:] the Blob … decides to protest Wall Street. Literally no cop or a thousand cops will be moving him, if he decides to plop down in the middle of Wall Street. They can try to arrest or cite him, but being physically unable to remove him or execute the law, what legal recourse would they have?

[I]n-universe these folks could presumably be stopped by someone more powerful strolling along, but … What plausible legal end game could this be escalated to?

This is an interesting and timely question.  Just what are the limits of the legal sanction for someone who is only under arrest and has not yet been tried?  As we see it, there are a few different approaches the authorities could use.  We’ll assume that the Blob has done something to prompt a lawful arrest (e.g. obstructing traffic), since demonstrating peacefully is usually legal.

I. Resisting Arrest

One of the first things the authorities could try to do is tack on a charge of resisting arrest.  In New York (this is a Wall Street demonstration, after all), resisting arrest is defined by Penal Law § 205.30:

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer … from effecting an authorized arrest of himself ….
Resisting arrest is a class A misdemeanor.

In New York there is an important distinction between undertaking an affirmative action with the intention of preventing an arrest and merely refusing to cooperate.  See People v. McDaniel, 593 N.Y.S.2d 154 (App. Term. 1992). “[T]here has been no citation to this court of any statute, rule or ordinance that requires a defendant to cooperate once that defendant is arrested and so long as the defendant does not affirmatively act to resist the arrest then there is no independently unlawful act that the defendant is committing.”  McDaniel, 593 N.Y.S.2d at 156-57.  So whether the Blob is guilty of resisting arrest depends a great deal on whether he uses his power before or after being arrested.  In the McDaniel case, for example, the defendant had chained herself to a door before being arrested, and the court held that to be insufficient evidence of intent to prevent arrest.

II. Non-lethal Force

The police could also try to use non-lethal force to obtain compliance (e.g. using Tasers and the like).  The courts have held that Tasers can be used to subdue suspects who are resisting arrest, at least when it is reasonable to do so.  See, e.g., Crowell v. Kirkpatrick, 400 Fed.Appx. 592 (2d. Cir. 2010); Hardy v. Plante, 2009 WL 249787 (N.D.N.Y. 2009).  Given the Blob’s resistance to injury, attempting to Tase him is unlikely to succeed, but it is also likely to be reasonable.  In fact, given the special circumstances, it’s not clear what the limit might be, so long as the police limited themselves to reasonable and non-lethal force.

III. Contempt

Another commonly used method to induce defendants to cooperate is contempt, and the Blob could be held in criminal contempt for his failure to appear in court.  In New York a person may be held in criminal contempt for “disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.”  N.Y. Jud. Law § 750(A)(1).  Although the Blob would be outside the court, the fact of his absence would occur in the court’s “immediate view and presence,” thus justifying the charge of contempt.  Waterhouse v. Celli, 336 N.Y.S.2d 960 (Sup. Ct. 1972).  Criminal contempt is also available in cases of disobeying or resisting a lawful mandate of the court, which could apply if the Blob refused to appear for a line-up.

So far we’ve just racked up additional charges.  Let’s move on to the big guns.

IV. Trial in absentia

The Sixth Amendment guarantees criminal defendants a right to be present in the court (via the Confrontation Clause), but this may be waived by disorderly conduct.  Illinois v. Allen, 397 U.S. 337 (1970).  The Blob’s refusal to appear could result in such a waiver, and he could be tried (and convicted) in his absence.

Interestingly, we’re not sure if he could be charged with anything new at this point, since the usual charge for avoiding going to prison (escape from custody) requires escaping.  Since the Blob remains motionless in this hypothetical, he can’t really be said to have escaped.

As a matter of speculation, a final option could be to build an ad hoc prison around the Blob, but that could be difficult depending on where he sat down (e.g. the middle of a major street).

V. Conclusion

There’s a lot that the police and courts could try when dealing with a particularly difficult suspect like the Blob, but there are limits.  Furthermore, it’s not obvious that they would actually want to go all the way to trying him in absentia.  Once he’s a convict, the government might suddenly find itself liable for his care and feeding, making it that much harder to ever dislodge him.