September 2012 Archives

Reports Vary Wildly About Incident Involving Injured Off-Duty Quincy Police Officer

September 25, 2012

Cuffs4.jpgQuincy Police arrested three people on Saturday as a result of their confrontation with an off-duty uniformed Quincy Police officer. Three news agencies described the incident differently. gave the most details reporting that as off-duty officer was driving near Independence Avenue and President Avenue he saw "several people standing around, one of whom was holding a baseball bat in a confrontational manner." The officer approached and the man took his bat and left in his car.

That, however, was not the end of this story. Someone yelled that another man had a knife and the officer told that man to put his hands on his head. The man did so but "then became combative," so the officer "took him to the ground" and handcuffed him. Yet another man attempted to pick up a jacket on the ground near the officer, the officer told him to stop approaching, and then struggled to arrest him. A woman "attempted to interfere [and] when she did not back off" the officer sprayed her with pepper spray and then arrested her.

The arrests were as follows: Stephen Guest and Jessica Duggan - Disorderly Conduct and Resisting Arrest. Stephen Pellegrine - Disorderly Conduct.

If the officer saw a man threatening another person with a bat, an investigation is not only justified, it is required. But what happened next? The situation appeared to be de-fused with the departure of the bat-wielding man. Is it grounds to ask someone to put his hands on his head because someone else said he had a knife? Having a knife is not always a crime. Was the officer going to search him? Or was he actually going to put hand-cuffs on him? Perhaps the man with his hands on his head was justified in being concerned (if not combative). Did the police find a knife on that man? Apparently not.

What about the man trying to retrieve his jacket? What's wrong with that, whether or not it was near the officer? The officer could have stepped away a little, or the officer could have handed the man his jacket. In fact, by picking it up the officer could have assessed its weight to determine the possible presence of a weapon. Was a weapon found in that jacket? Apparently not.

The prosecution theory must be that the men that were arrested were, in their individual capacities, acting in a disorderly manner and one of them (Guest) resisted being arrested for that charge. Ms. Duggan may have resisted her own arrest or interfered with the arrest of one of the men. In any event, in order to prove Resisting Arrest, there must be evidence that A) a person used or threatened to use force or violence against the arresting officer or B) a person used any other means that created a risk of injury to the officer. It is difficult to tell from this article whether the actions of these three reached that level. A lone officer, however, in a group of allegedly agitated individuals will be given wide leeway with regard to his decisions as to how to resolve the situation.

It is interesting to read other accounts of the story. The Patriot Ledger wrote that three people attacked the officer from behind as he attempted to break up a fight. reported that the officer stopped to talk to a man and a woman engaged in an argument and "several people emerged from a nearby home possibly with baseball bats." This article was entitled "3 arrested for possibly attacking Quincy officer."

Hopefully the truth will come out in the Quincy District Court cases. Each of the arrested would be well advised to obtain experienced defense counsel.

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Assault and Battery with a Dangerous Weapon (Weed Whacker) in Neighborhood Dispute Results in Arrest

September 13, 2012

weed whacker.jpgLast Sunday afternoon Mr. Robert Tiernan was using his weed whacker along a fence between his property and his neighbor's. According to the Medford Transcript, the man next door came outside along with his wife and a friend. They were "looking at the garden that is close to the shared fence . . . and asked [Tiernan] to stop for a few minutes, but he refused." What happened next will be the subject of several cases headed for Somerville District Court.

Tiernan told the police that after he refused to pause his weed whacker, one man threw a beer bottle at him. The bottle hit him and spilled beer all over his pants. His foot then got caught in the bottom of the fence, he lost his balance and his control of the weed whacker. He said that if anyone got whacked, it was an accident. The police observed injuries to the woman's arm.

The others told the police that Tiernan got argumentative when asked to stop. They said that he not only used the tool to shoot rocks and dirt at them, but he swung it over the fence and injured the woman.

When the police arrived they found Tiernan on the ground surrounded by three men. He was covered in blood, his shirt had been ripped off, he had bruises on his torso, and he had a cut over his eye that looked like it needed stitches.

The men claimed that after Tiernan committed the Assault and Battery with the whacker, one of them did hit him with a beer bottle, and then Tiernan started to walk away. They all approached him "fearing that he was going to flee." The three men then claimed that Tiernan attacked them and that he was injured as they defended themselves.

The police only arrested Tiernan on charges of Assault and Battery with a Dangerous Weapon. They will, however, be filing Assault and Battery charges against the other men in the Somerville District Court. They seized the weed whacker as evidence.

A few questions: Why couldn't the neighbors wait until Tiernan finished his work? Couldn't they have "looked at the garden" a little later? Did Tiernan's refusal to shut off the machine justify the man's hitting him with a beer bottle? Why didn't the police arrest that man for felony Assault and Battery with a Dangerous Weapon? After all he admitted it, even though he claimed he was defending himself from the swinging garden tool. If a fence separated the parties couldn't they all have just stepped back? Why was anyone close enough Tiernan to be in range of the the dirt and pebbles that got whipped up? For that matter, why was anyone close enough to be in range of the weed whacker at all? Did the three men really need to detain Tiernan? Did they think he would flee and never be found by the police? He lived next door. And did the three men really need to defend themselves from Tiernan? Did they follow him into his own yard? How big were these three and how old?

What was really going on there? Perhaps there was some previous "bad blood" between these people? Surely the presence of beer explains some of it.

In any event, Tiernan will be facing felony Assault and Battery with a Dangerous Weapon Charges. The other three will likely have a hearing before a Clerk Magistrate to determine if Complaints will issue against them at all. If cooler heads don't prevail in the early going, this could be a long feud, in court and out.

They would all benefit with the assistance seasoned criminal defense attorneys to see to their individual best interests.

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Negligent Operation Combined with Illegal Texting Arraignment in Quincy Court

September 2, 2012

texting into headlights.jpgNegligent operation and texting-while-driving charges were formally lodged against 25 year-old Kyle Beard in the Quincy District Court last week. I say "formally lodged" because the events that gave rise to the charges occurred back in December. The delay tells me that the police did not arrest Beard back then, but applied for a complaint and requested a hearing before a Quincy District Court Clerk Magistrate. Obviously, the magistrate found enough evidence to issue the Complaint .

I came across this little story in the Plymouth Patch. I write about it because it illustrates some issues with regard to the Anti-Texting law (part of the so-called "Safe Driving Law") that is coming up on its second anniversary at the end of the month. The article says that Beard was driving his Jeep Cherokee on Commercial Street in Weymouth and allegedly crossed the center line into oncoming traffic. Fortunately, there was no crash, but unfortunately for Beard, a Weymouth police officer was coming the other way. That officer said that he had to "turn sharply" to avoid a head-on crash. When they pulled Beard over, the police saw a cell phone on his lap and he allegedly told them that it rang as he drove and he crossed the line as he looked at it. (Another example of making their case with your words).

The first and most obvious question is: "How are Beard's actions a violation of the no-texting statute?" The statute makes it a civil violation to use a cell phone to "compose, send, or read an electronic message while operating a motor vehicle." Did the magistrate interpret this language to mean you are not allowed to look at your ringing phone without being involved in illegal "texting?" According to the story, Beard did not even say that he was checking the caller ID on the cell phone. Even if he were, it seems to be a stretch to define this as texting. In any event, if he is found responsible, he will have to pay a $100 fine for a first offense (2d offense - 250; 3d offense -- $500).

Obviously, the texting charge is not Beard's main problem. It does, however, have an important link to the charge of negligent operation, which carries criminal penalties and a potential loss of license. For the prosecution to prove that Beard was negligent, it must prove that he failed to act reasonably under the circumstances. If he were illegally texting, then he was likely acting unreasonably. If his glance at his phone is not texting, then the question becomes: "Is it unreasonable to look at a ringing phone while driving?" I think not. One with an opposing view might ask: "What about crossing into the other lane?" My response: "Not every misstep is a crime."

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