Tuesday, September 27, 2011
Isn't there an actus reus problem with the prior pot arrest policy in NYC?
The other day, the NYT reported that the NYPD was going to stop arresting individuals who had a small amount of pot on their persons, pot that became apparent during a stop and frisk:
Just over 50,000 people were arrested on marijuana possession charges last year, a vast majority of them members of minorities and male. Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.
The important background here is that NY a while back decriminalized private pot possession but permitted arrests and prosecution for public use of pot. To my mind, this change in policy by Commish Kelly is a massive improvement. Today's editorial page lauds the change and also invites more scrutiny.
Ok, here's some scrutiny.Not knowing if this argument has been made before, I want to suggest that, from the perspective of conventional criminal law principles, there's a deep actus reus problem afflicting all those arrests made prior to the new memo.
In the casebook I use for crim law (Dressler), one that is widely used, we begin the semester discussing, among other things, the need for an actus reus (sometimes translated as bad act), which is a voluntary or willed act. The actus reus requirement exists for most crimes; the exception is omissions liability, a point that is irrelevant here. Crimprofs typically teach this principle through a cased called Martin v. State, 31 Ala.App. 334 (1944). In Martin, the defendant had been convicted for being "drunk on a public highway." The problem is he was drunk in his home and then taken to a public street by cops, where he acted boisterously. The appellate court reversed the lower court's conviction of Martin and noted that there had to be a "voluntary appearance" in public in order for the conviction to stand.
Now, if NY follows this canonical rule, it would seem that not only were the arrests bad policy, but also illegal for being contrary to the actus reus principle. The only way I could see one slicing the actus reus baloney more thinly (in defense of the legality of the arrests) is to say that the mere act of bringing and possessing pot into a public space is the sufficiently voluntary act. But it strikes me that this is an implausible understanding of what it means to possess or use pot in public view. (Put aside the X-ray glasses, Superman.) If persons take precautions to obscure the pot from public view and are not using it in public, then that should end the inquiry; the fact that, pursuant to a stop-and-frisk, they extract the pot from their pockets and place it in public view is not sufficient to satisfy the voluntary act requirement because they only do so at the behest of the frisker. True, the stopped persons are not having a spasm or seizure when they extract the pot from their pocket, but the conditions are such that it would be mistaken to think that the actus reus requirement is satisfied in any meaningful way when the cops are telling you to empty your pockets. That's my sense at least. Am I wrong?
P.S. Orin has a very sharp reaction to this news from the perspective of criminal procedure. Check it out.
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This is where nasty reality flies in the face of actus reas theory. Cops take down some black kid with a $5 bag of weed on a suspicionless stop and frisk on St. Nick. He's process through central booking and shows up about 25 hours later at AR2, tired, dirty, and scared to death that he's going to lose his job if he doesn't get out of there pronto.
At arraignment, the ADA, who was someone's 3L a couple months before, offers an ACD is it's a first time, or a 220.07 with time served and one day's community service if it's a second or more bust. The Legal Aid Lawyer explains that it's a non-criminal disposition and won't be on his record, and he walks out of the courtroom immediately and never has to come back.
He cops out. The bust stuck, and the cop gets to testify that he's made more than a 1000 drugs busts in his illustrious career serving and protecting.
Or he can refuse the plea, retain counsel (if he doesn't qualify as indigent) to make motions, go back to court at least 3 more times (if he's retained half-way competent counsel, 5 more times if not), missing a day of work each time, and maybe win the motion if the judge bothers to read the papers and the lawyer thought enough to move to dismiss.
Posted by: shg | Sep 27, 2011 12:23:45 PM
My bad. Unlawful possession of marihuana (NY penal law spells marijuana wrong), P.L. 221.05.
Posted by: shg | Sep 27, 2011 12:26:25 PM
I think the answer to the question depends upon the wording of the statute. You state that "NY a while back decriminalized private pot possession but permitted arrests and prosecution for public use of pot." If the statute now reads: "It shall be unlawful to possess [pot] in public," I might argue that if the *person* is in public, the actus reus requirement is met because, unlike Martin, the person willfully entered public space *in possession of pot*.
If, on the other hand, the statute reads: "It shall be unlawful to possess [pot] in a way so as to display it in public," I would tend to agree with you that this is indistinguishable from Martin.
PS: Thanks for giving me this year's first class hypo.
Posted by: 5thYrLawProf | Sep 27, 2011 2:04:11 PM
"marihuana" might actually be more loyal to the word's Spanish origins, so 'wrong' is a matter of perspective
Posted by: Joe | Sep 27, 2011 2:11:44 PM
"Wrong," in this instance, means in conflict with the commonly accepted American spelling. It was mentioned to avoid someone pointing out that marihuana should be spelled marijuana.
As for what the statute prohibits, we have a mighty handy way to figure that out. New York has been kind enough to put its penal laws in writing:
§ 221.05. Unlawful possession of marihuana
A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.
Posted by: shg | Sep 27, 2011 2:20:39 PM
One thing to think about apropos SHG's point: If we're both right, then I would think a broad-brushed stroke of executive clemency would be an appropriate response to this mess.
Posted by: Dan Markel | Sep 27, 2011 2:44:58 PM
shg, that's the wrong statute. The relevant one is for criminal possession, which says:
§ 221.10 Criminal possession of marihuana in the fifth degree.
A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses:
1. marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view; or
2. one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams.
Criminal possession of marihuana in the fifth degree is a class B misdemeanor.
Posted by: pl33 | Sep 27, 2011 2:50:13 PM
§ 221.05. is the violation that was and still is available for any pot possession, public or not. The issue is whether to charge the stopped-and-frisked person with:
§ 221.10 Criminal possession of marihuana in the fifth degree.
A person is guilty of criminal possession of marihuana in the fifth
degree when he knowingly and unlawfully possesses:
1. marihuana in a public place, as defined in section 240.00 of this
chapter, and such marihuana is burning or open to public view;
The actus reus issue comes up with respect to the "open to public view" element. The general rule for AR in NY is set forth in § 15.10:
The minimal requirement for criminal liability is the performance by a
person of conduct which includes a voluntary act or the omission to
perform an act which he is physically capable of performing.
Posted by: Brad | Sep 27, 2011 2:52:15 PM
Exactly. The conduct is 221.05, a violation. The charge is 221.10, which is reduced at arraignment to 221.05 so the issue is never addressed.
Dan, as far as broad-brush executive clemency, would you like to let Andy Cuomo know or should I?
Posted by: shg | Sep 27, 2011 3:12:38 PM
I think 5thYrLawProf may be right: the statutes are worded differently. In Martin, the statute provided: "Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, * * * and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, conviction, be fined.” The "appears" element was part of the prohibited conduct -- appears is a verb -- so that conduct had to have been performed voluntarily in order for criminal liability to attach. Had the statute read: "Any person who, while intoxicated or drunk in any public place . . .," the result might have been different.
By contrast, N.Y. P.L. 221.10(1) provides: "A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view . . . ." Here, the "open to public view" element is an attendant circumstance, so it is at least arguable that no voluntariness needs be shown regarding that element.
On the other hand, the difficulty with that distinction is that the only conduct element in the NY statute is "possesses." So, according to that reasoning, as long as the actor voluntarily possesses marijuana, he is guilty of the offense if, as occurred in Martin, the police arrest him in his house and take him into public, and then make him empty his pockets. And that just doesn't seem right.
So maybe we just have to fall back on the purpose of the statute. It seems to me that the legislature was making a distinction between private marijuana possession and public marijuana possession. Thus, the voluntary conduct of going into public is sufficient to render the actor liable if the marijuana happens to come into public view through no voluntary conduct on his part. Supporting this view is the fact that -- based only on the face of the statute, since I am unfamiliar with any gloss the courts have placed on it -- the "open to public view" element appears to be a strict liability element as well. If you take your marijuana into public, you run the risk that it will come into public view, whether because the police order you to empty your pockets or it falls out while you are taking out your cell phone.
Posted by: Michael J.Z. Mannheimer | Sep 28, 2011 11:17:11 AM
"Supporting this view is the fact that -- based only on the face of the statute, since I am unfamiliar with any gloss the courts have placed on it -- the "open to public view" element appears to be a strict liability element as well."
These are the sorts of qualifications that make lawyers ignore academics. If you feel constrained to comment, then comment on what's real, not some fantasy qualified by saying that you can't be bothered to find out the details but want to opine nonetheless.
As it happens, you aren't going to find significant caselaw about CPM 5. This is because it's a misdemeanor, handled by a criminal court judge rather than a Supreme Court Justice, appealed to the Appellate Term rather than the Appellate Division. But then, no one appeals because it's not worth the time or effort.
The CPM 5 cases flush through the system like toilet water, dozens at a time, one after another, and are summarily disposed with noncriminal dispositions. No individual is going to spend the time or money arguing the issue, no less appealing. Institutional defenders won't waste money on appealing such silliness. And if it is appealed, Appellate Term decisions of trivial offenses are a line or two long, just dispositions.
If the existential curiosity with the "in public view" element is so fascinating, sit in a night arraignment courtroom in Manhattan (sorry, but they don't do a lobster shift anymore) and watch the parade of potheads, stopped without cause, searched in violation of DeBour, pleaded out to 221.05 and sent on their way, by prosecutors and indigent defenders who never take the time to learn any defendant's name.
Not so fascinating? Bummer. Welcome to the criminal justice system for petty offenses, the one that affects the vast majority of criminal defendants. Amy Bach wrote about this in Ordinary Injustice. If you have an interest in criminal law, maybe you ought to take a look at what it really is instead of imagining it from afar.
Posted by: shg | Sep 29, 2011 6:41:02 AM
You'll excuse me if I do not do extensive research on Westlaw before responding to a blog post about an interesting turn of phrase in a statute, but I have plenty of my own work to do. For your information, I practiced criminal law in New York City for five years before entering academia, so I am not simply "imagining it from afar." Indeed, I pretty much knew everything in your comment before you made it. I was simply commenting on the legal issue raised by the statute, something that every lawyer should understand, notwithstanding what happens in the "real world." Understanding what happens in the "real world" is remarkably easy; being able to parse a statute with care appears to be a frighteningly uncommon skill.
Posted by: Michael J.Z. Mannheimer | Jan 3, 2012 1:08:37 PM
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