Occupying a police uniform

Happy Halloween! Happy Halloween!

The scary tale of an innocent woman declared a criminal

By A.J. Wagner

Happy Halloween!

Halloween costumes and masks aren’t limited to little ones parading around the neighborhood for candy. Nor are they just for those attending a masquerade ball or a costume party. Putting on a police uniform any day of the year, a sworn officer can violate the rights of citizens by exceeding the limits of legitimate authority. That’s scary for both the victim of police abuse and for the officer who goes beyond the authority conferred by a uniform.

Gather around the campfire boys and girls to hear the story of a tortured innocent who faced criminal charges, seemingly inescapable lies and imprisonment. Stories such as this are rare, but with the Occupy Wall Street events taking place around the country and the world, they are increasing in number.

Our story takes place in Cleveland (scared yet?) where an attorney went to a nightclub. Police were called to the nightclub on report of an assault. When the police seemed to be focusing in on a friend of the attorney, the attorney began to advise her friend that she did not have to answer questions. For her effort the police arrested the attorney on charges of obstructing official business and resisting arrest.

The police report on the incident bore out the reasons for the charges. The report noted the attorney’s persistent interference with the investigation, her pointing a finger in the face of both officers and her subsequent attempt to avoid arrest by swinging at the arresting officer and stiffening up.

A video recording of the incident showed a different picture. It showed the attorney behaving in a calm manner, not pointing and not resisting the arresting officer or taking a swing at him. The charges were dismissed but not until the attorney faced jail, criminal charges, a threat to future employment and payment for an attorney to represent her.
The attorney sued the police officers under 42 U.S.C. §1983 claiming a deprivation of constitutional rights by a person acting under color of state law. Specifically, the attorney claimed she was arrested without probable cause for the arrest. In other words, that she had been arrested when she had committed no crime.

There are usually two charges that police use when they confront a difficult person interfering with their work. One is disorderly conduct. Briefly, disorderly conduct is causing inconvenience, annoyance or alarm to another by fighting or threatening harm; or by making unreasonable noise, offensively coarse utterance, gesture or grossly abusive language; or by insulting, taunting, or challenging another in a way that the conduct is likely to provoke a violent response; or by hindering or preventing the movement of persons; or by creating a condition that presents a risk of physical harm to persons or property.

The second is obstructing official business. That is to prevent, obstruct or delay the performance by a public official of any authorized act within an official capacity; or to hamper or impede a public official in the performance of lawful duties.

Obstructing official business was the charge made against the attorney, but a person has a right to protest a police action or even to argue with an officer so long as they don’t go so far as to violate the above-described laws.

Many cases like this turn on a person’s volume, demeanor and persistence. If any of these rises to a level of interference, such as verbal interruptions that prevent an officer from asking questions, a criminal charge would likely stand. If the attorney in this case had been argumentative and belligerent, the outcome of her case could have been different.

The takeaway lessons from this, for protestors, is to remain peaceful, calm and respectful with police officers. Let the officers do their job. Don’t resist arrest, even if the arrest is illegal, lest your behavior be interpreted as rising to the level of justifying the arrest.

For officers there are also lessons. The police involved in the case of the attorney were deemed to be liable for their actions. Because they exceeded their authority they lost their normal immunity and were subject to personal damages in a lawsuit. Theirs is a difficult job, like walking a tightrope without a net, but the level of difficulty will not excuse an officer from violating a citizen’s constitutional right to free speech.

In a time of increasing technology and security, cameras are everywhere. Police use cameras frequently in criminal cases to prove a crime. Those same cameras can, of course, provide proof of innocence.

It is scary to be arrested, especially for something you did not do. It is every bit as frightening to face a crowd and sort through who is doing what and who is saying what in an instant.

Everyone be careful out there and have a happy Halloween.



Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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