The NYPD, the Wall Street Protesters, and Entrapment
It wasn’t long after hundreds of Occupy Wall Street protesters were arrested on the Brooklyn Bridge this past Saturday afternoon that the word “entrapment” (and various derivatives thereof) began to get thrown around in press reports.
According to many protesters, as they marched toward the bridge from nearby City Hall, they were led onto the roadway – as opposed to the neighboring pedestrian walkway – by NYPD personnel, only to be corralled by officers once they had followed the cops’ lead. (You can watch an amateur video of those events unfolding by clicking here.) “It seemed to me that the cops led the way and guided us through,” one protester told reporters afterward. “It felt like entrapment on some level.”
The NYPD, for its part, says that it only starting making arrests after good-faith attempts to warn protesters, via bullhorn, that they faced arrest if they did not clear the roadway. (Click here to watch a video released by the police department.)
As any Law & Order follower knows, “entrapment” is an important concept in criminal law because defendants in many jurisdictions may raise this defense and stave off a guilty verdict.
What the recent reports on the Occupy Wall Street-Brooklyn Bridge arrests have failed to explain is whether protesters charged with disorderly conduct and other minor offenses would be able to rely on the entrapment defense in a New York state court proceeding.
Not only does the answer appear to be yes, but it would also seem that invoking the entrapment defense – even unsuccessfully – would allow the protester-defendants to throw egg in the face of the NYPD and some of its higher-ranking officials.
Entrapment cases, which frequently involve law enforcement’s use of informants or undercover agents in effectuating large-scale drug busts, are often associated in people’s minds with major felonies. But §40.05 of the New York Penal Code makes clear that the affirmative defense of entrapment may be employed “in any prosecution for an offense.” [Emphasis added.] Although disorderly conduct, for example, is a non-crime “violation” in New York, “offenses” in New York include violations, in addition to crimes, which are defined as misdemeanors and felonies. (See §10.00 parts 1, 3 and 6.)
Most legal treatises regarding the entrapment defense caution criminal defense practitioners to use it only as a last resort. A quick glance at the statutory language governing New York’s entrapment defense helps explain why.
First of all, §40.05, like many entrapment statutes, requires defendants to show both that they were “induced and encouraged” by a public servant, and that they “were not otherwise disposed to commit” the offense. (Note then, that people can’t invoke the entrapment defense without admitting they’ve actually done the bad thing they’re accused of doing.)
Secondly, defendants in New York bear the burden of establishing by a preponderance of evidence that they’ve been entrapped.
Recent juries in terrorism cases – including that of the “homegrown” suburban New York terrorists convicted in federal court last year of plotting to blow up synagogues in the Bronx – have rejected the entrapment defense, even when defendants lacked the means to offend without the assistance of a government agent. Commentators have suggested that the entrapment defense may not be applicable when the defendants were ideologically predisposed to offend before they even hooked up with the agent who ultimately enabled their offenses.
All that being said, the very features of New York’s entrapment defense that render it unappealing from the perspective of your average drug baron or would- be terrorist may make it particularly attractive to Wall Street protesters-cum-defendants charged with non-criminal violations.
To be sure, a protester-defendant shouldn’t expect to get off simply because he or she has invoked the entrapment defense. As this first-person account from a Daily News staffer illustrates, it would probably be impossible to determine with any degree of certainty whether the NYPD actually guided the protesters onto the bridge in the first place, or whether the majority of the protesters were able to hear the bullhorn commands to vacate over the din of the crowd. (Another potential wrinkle: the protesters were marching without an official permit.)
But most protester-defendants would no doubt view reliance on the entrapment defense as a win-win situation. Best case scenario, they persuade a judge or jury that they were led onto the roadway by the cops, had no intention of committing any criminal offenses and were unaware that police at the front of the crowd were asking protesters to turn around. Worst case scenario, they acknowledge committing their alleged offense in open court (something that could only increase their street cred among their fellow protesters), fail to persuade as to entrapment, and wind up having to either pay a fine of up to $250 or serve less than 15 days prison.
Either way, they’d have the chance to try to introduce evidence about allegedly improper crowd-control tactics utilized by the NYPD, perhaps at the direction of its oft-spotlighted “white shirts” (protester slang for high-ranking NYPD officials).
The protesters have been quick to play the entrapment card when talking to the press. It would seem that there’s no reason why they would hesitate to do the same inside the courtroom.