State vs. Kate Ager: And the verdict is…

by Garret Ean
Oct 2 2011

Yesterday, Kate Ager received via USPS mail the verdict from judge William Lyons regarding her trial at Manchester district court on September 12. Of the three remaining charges (the state was pursuing four at trial, one was dropped prior to the delayed verdict) Kate was found not guilty of false report, guilty of resisting, and guilty of violation-level disorderly conduct. The state was pursuing misdemeanor level convictions for all of the charges, so it appears Mr. Lyons himself determined that Kate was not guilty of the ‘disorderly’ misdemeanor charge, but found her actions to qualify at the violation level. Let’s briefly address the violation charge of disorderly conduct as it is outlined in statute.

The very last sentence of the roughly two page RSA 644:2 reads, “Disorderly conduct is a misdemeanor if the offense continues after a request by any person to desist; otherwise, it is a violation.” A good portion of ways in which one could commit “disorderly conduct” require no mens rea, a latin term meaning “guilty mind”. They involve being given ‘lawful orders’ (a legal term defined in the statute) and failure to follow the order resulting in a disorderly conduct charge. The statute as written functions as a catch-all for law enforcement, because even choosing to follow a lawful order still makes you guilty of a violation level offense. Violation level offenses are not arrestable, so it would seem the resisting charge was fruit of the poisonous tree. Many of the Chalking 8 face multiple criminal charges for the same supposed infraction, implying that MPD and their taxpayer funded legal team are approaching the mass arrest incident as one would check if spaghetti is al-dente, tossing as much as one can against the fridge until something sticks.

In order to find Kate guilty of the violation level offense, Mr. Lyons must acquiesce that Kate did something to cease the supposedly disorderly conduct that she was engaging in. She did not physically move, but asked questions prior to her arrest. Did the fact that she asked questions imply that she had no guilty mind, and was thus not guilty of the criminal level of the offense? In which case, would she then not possibly be able to have a guilty mind to resist an unlawful arrest? This point is all the more significant in that the three officers who arrested Kate all gave different accounts of what she did to qualify as resisting, all of it within a span of five seconds that was not video recorded.

Below is the judge’s written statement on his finding.

On September 12, 2011 the Court held a trial on the above captioned matter. At the conclusion of the evidence and parties’ arguments, the Court took the matters under advisement sans one charge that was dismissed at the conclusion of the Prosecution’s case. There was some delay on the resolution of this case while the court obtained the proper technology to access the CDs submitted as Defendant’s A and B.

The prosecution had filed the complaint alleging a class A misdemeanor of disorderly conduct (RSA 644:2). The defendant argues that she did not violate a “lawful order”. The NH Legislature has defined “lawful order” as:

(1) A command issued to any person for the purpose of preventing said person from committing any offense set forth in this section, or in any section of Title LXII or Title XXI, when the officer has reasonable grounds to believe said person is about to commit such an offense, or when said person is engaged in a course of conduct which makes his commission of such an offense imminent.

(2) A command issued to any person to stop him from continuing to commit any offense set forth in this section, or in any section of Title LXII or Title XXI, when the officer has reasonable grounds to believe that said person is presently engaged  in conduct which constitutes any such offense; or

(3) A command not to enter or a command to leave an area closed pursuant to paragraph IV, provided that a person may not lawfully be ordered to leave his or her own home or business.

Sergeant Patti of the Manchester Police Department testified that after the police had arrested several people for criminal mischief, he directed that two police detectives photograph and memorialize certain marks near the front of the police station. In the video of the encounter, the sergeant describes this area in front of the police station as a crime scene. Defendant’s exhibit A. It is beyond peradventure that an uncontaminated crime scene is important to the criminal defendant, society and to the justice system as pristine and untainted crime scene properly documented will assist in the truth-seeking process at trial. Therefore, it is little wonder that the legislature made it an offense to interfere with criminal investigation in a public place. See RSA 644:2 II (d). Hence, when the Sergeant asked the defendant to move from the area of the sidewalk in front of the Police Station, he would have reasonable grounds to believe that a person was about to violate the above cited provision within Title LXII, by her continued presence within the undocumented crime scene.

Initially, there seems to be a challenge as to whether the first directive was either an order or polite request. Defendant’s A captures the precise words of Sergeant Patti. “Excuse me, would you get off the chalk please.” A command is “direct authoritatively” Webster’s Seventh Collegiate Dictionary, p. 164 (1970). Those words of Sergeant Patti constitute an authoritative directive and qualify as a lawful order to move. To the extent that the polite and courteous nature of the direction was ambiguous, the dialogue that follows extinguishes that claim. Defendant verbally challenges the police authority to direct her movement by saying, “Get off the chalk? I am on the sidewalk.” In response Sergeant Patti replies, “I know it is evidence in a crime.” When defendant verbally challenges the designation as a crime, the Sergeant says, “I am giving you a lawful order because we have to take pictures of that. If you are not going to move, you are going to be arrested”. In light of this exchange, which the police were not obligated by the terms of the statute to make, there is no doubt that a lawful order was issued and by standing still this individual violated the law. For conduct to create criminal liability, the defendant’s action must be “…based on conduct that includes a voluntary act…” See RSA 626:1 (I). While there was certainly sufficient time for the defendant to comply with the first lawful command, Sergeant Patti announced the defendant was under arrest within two seconds of the second lawful order. Because of the scant passage of time, the Court cannot find beyond a reasonable doubt that the offense was transformed from a violation level offense to a misdemeanor, as the individual must have failed to desist after a request was made; the passage of a second or two does not meet the requirement of proof beyond a reasonable doubt. See RSA 644:2 VI. The court finds the defendant guilty of a violation offense.

Defendant’s exhibit A shows that Sergeant Patti tells the Defendant that she is under arrest as he steps towards her with hands outstretched at about waist level. When a uniformed law enforcement officers tells an individual that he is placing that person under arrest, no reasonable person could have a scintilla of doubt that she was being arrested i.e. being taken into custody to be forthcoming to answer to a criminal charge. See RSA 594:1 I. The defendant responded, “Get your hands off me!”. Sergeant Patti can be heard directing the defendant to put her hands behind her back. The video came to an abrupt end with the camera apparently being jostled in the effort to arrest the defendant. The police officer testified that what ensued was a physical struggle to have the defendant’s arms brought behind her back and then handcuffed. Since 1942 the NH Legislature has clearly set forth the obligation of a person who is being arrested “…it is his duty to submit to arrest and refrain from using force or any weapon in resisting it regardless of whether there is a legal basis for the arrest.” RSA 594:5. The Court finds the defendant did physically resist arrest by struggling with the police as they attempted to arrest her. Therefore, the court finds the defendant guilty of that offense.

The remaining offense is a violation of RSA 641:4. The offense has an element that the defendant acted with the specific intent to “induce a police officer to believe that another had committed a crime”. In this instance there is no doubt that the defendant provided false information concerning her date of birth. There appears to be no evidence in the record to support the specific intent element. The failure of proof by the prosecution results in the Court finds defendant not guilty as to this offense.

The court will hold a sentencing hearing on October 20, 2011 at 8:15 AM in Courtroom 301.

Having seen the ruling from the judge’s pen, one would notice he acknowledges that Kate was not given ample time to respond to a lawful order (2 seconds). In spite of this, he states outright that he considers the first thing said by Mr. Patti to Kate (Excuse me, would you get off the chalk, please?) to be a lawful order. In the English language, Mr. Patti’s statement would qualify as a question in the clearest linguistic sense. It was posed as a question. Linguistic manipulation is a staple of arbitrary authority. In any case, it’s rude to be deliberately confusing with your language if your intent is to legally talk someone into their own arrest.

Lyons dismisses the necessity of Patti in even interacting with Kate further, but is vague in what Patti is then authorized to do at this point. Never reaching the authority of an arrestable offense, all Patti could have done was given her a ticket (the prescribed legal remedy for a violation-level offense). He instantly arrested her, and on this point, Mr. Lyon’s dismisses in totality beyond any “scintilla of doubt” that Kate could have believed anything but that she was being arrested and was not allowed to use ‘force’ or ‘weapons’ to resist. The state never proved that she used force, and Mr. Lyons didn’t comment on which officer’s testimony he considered the truth, describing the conduct in question simply as “struggling”. It’s ironic that the statute for disorderly conduct implies there’s an allowance of time where one is authorized to contemplate the request in a reasonable time frame and respond, yet when it comes to an arrest, Kate was convicted of a crime for not being absolutely subordinate fast enough. Monopoly/bureaucracy is no stranger to Catch-22s.

Stay tuned to Free Concord to find out how the state chooses to sentence Kate Ager on October 20.

Oct 20 2011: Kate was sentenced this morning on the disorderly conduct and resisting charge. For the disorderly, she was given a $200 fine, suspended pending one year good behavior. For the resisting charge, she was given a $200 fine and 90 days in jail, both suspended pending two years good behavior. Kate’s standby counsel stated that it was the lightest sentence he’s seen William Lyons deliver.

Also now available is Kate’s previously unreleased video which was used in her defense during trial. This is the most relevant piece of evidence from Kate’s seized camera, and was also the only thing on the camera that was not submitted as evidence by MPD.

http://youtube.com/watch?v=t_Z_xJ1QssA

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2 Responses to State vs. Kate Ager: And the verdict is…

  1. Pingback: Kate Found Guilty of “Resisting” and “Disorderly Conduct” - Free Keene

  2. E Colon says:

    Good luck Kate… I hope it goes well for you

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