Josh Blackman points to this Newsday story:
An album signing … for teen sensation Justin Bieber at Roosevelt Field mall was canceled because a crowd of 3,000 young girls and their parents started aggressively pushing and shoving, police said…. Five people were taken to area hospitals with minor injuries.Police arrested a senior vice president from Bieber’s label, Island Def Jam Records, James A. Roppo, 44, of Hoboken, N.J., saying he hindered their crowd-control efforts by not cooperating… [C]harges that could include criminal nuisance, endangering the welfare of a minor and obstructing government administration, Smith said.
“We asked for his help in getting the crowd to go away by sending out a Twitter message,” Smith said. “By not cooperating with us we feel he put lives in danger and the public at risk.” …
A few thoughts:
1. As I understand it, there is historical precedent for a general duty to help the police on demand — consider the sheriff’s power to summon a posse comitatus. But I’m not certain that failure to obey such an order would constitute “obstructing government administration,” or that such an order extends to all help (for instance, as I understand it the police can’t just order you to help the investigation by revealing what you know, but must instead get the prosecutor to get a grand jury subpoena), or that such a duty still survives in New York.
2. I take it that the real premise of the prosecution is likely to be not a general duty to help the police on demand, but rather a specific duty to help the police solve a problem for which you were in part responsible. And in fact there is a criminal law doctrine that says that even though it’s generally not a crime to refuse to help someone escape danger, it may be a crime if you caused the danger in the first place.
This is especially clear if you were negligent in creating a danger, but some courts even take the view that this is so if you created a danger nonnegligently. If, for instance, you (1) hit someone with your car — perhaps even nonnegligently — and (2) you then negligently or deliberately fail to help him, and (3) this failure causes his death, then you might be liable for negligent or deliberate homicide. And that would be so as a matter of traditional common-law principles, even without a specific hit-and-run statute.
At the same time, while this might justify the criminal nuisance charge or the endangering the welfare of a child charge, it’s not clear to me that the failure to help the police constitutes obstructing governmental administration [UPDATE: I originally incorrectly wrote "obstruction of justice," here and in the next sentence] — especially if the prosecutor can’t prove up either of the other two crimes, so that the prosecution rests solely on a failure to help the police. I’d love to hear, though, from people who are knowledgeable about this sort of law, and who have specific pointers to relevant precedents.
[UPDATE: Commenter Just Dropping By pointed me to the New York obstructing governmental administration statute, but the text of the statute isn't terribly enlightening. The statute bars, among other things, "intentionally obstruct[ing or] impair[ing] … the administration of law or other governmental function … by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with … telecommunications systems owned or operated by the [government] … or by means of releasing a dangerous animal under circumstances evincing the actor’s intent that the animal obstruct governmental administration.” So the question is whether failure to help constitutes “physical force of interference,” something on which I could find no New York precedents.]
3. There’s also the question whether the First Amendment, which generally protects people against compulsions to speak, also prevents the government from ordering Roppo to publicly exhort people to do something. The one time that I know of where the compelled speech defense has been raised in the related context of a (limited) duty to report a crime to the police, the court just casually rejected the First Amendment argument. See State v. Grover, 437 N.W.2d 60, 64 (Minn. 1989). But I’m not sure whether the matter might be different when someone is being required to speak to the public at large.
In any case, these are just a few tentative thoughts, based on the press account that I’ve seen — if anyone has more specific knowledge about either the facts or the law, I’d love to hear it.
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November 23, 2009, 12:52 pmPeteP says:
“solve a problem for which you were in part responsible”
I doubt that showing up at the local shopping mall, or even announcing that you might, makes you liable for crowd control at said location during your visit.
What if he announces that he’ll be there, and then doesn’t show up ? Is he liable for the behavior of 3,000 teenage girls at a location he’s never even been to ? Based on ‘he said he might go there’ ?
Come on …..
The po-po are Soooooo out of line here …..
November 23, 2009, 1:02 pmGabriel McCall says:
The “the real premise of the prosecution” is the citizen’s duty to obey any and every order issued by a person in uniform. Roppo did not properly respect the authoriTAH and must be punished; contempt of cop is the one unforgivable crime.
In any sane legal system, there would be no confusion between passive non-cooperation and active obstruction.
November 23, 2009, 1:18 pmCrunchy Frog says:
Does anyone seriously believe that a frickin twitter message would get 3000 screaming teenage and preteen girls to do anything, let alone go home, when the object of their adoration is right there?
What’s the weather like on the cops’ planet?
November 23, 2009, 1:26 pmJust Dropping By says:
I’m pretty sure that he’s not being charged with “obstruction of justice.” It says the charge was “obstructing government administration.” That comes in two degrees under New York law:
NY CLS Penal § 195.05. Obstructing governmental administration in the second degree
A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor’s intent that the animal obstruct governmental administration.
Obstructing governmental administration is a class A misdemeanor.
NY CLS Penal § 195.07. Obstructing governmental administration in the first degree
A person is guilty of obstructing governmental administration in the first degree when he commits the crime of obstructing governmental administration in the second degree by means of interfering with a telecommunications system thereby causing serious physical injury to another person.
Obstructing governmental administration in the first degree is a class E felony.
November 23, 2009, 1:47 pmSunTzu's Nephew says:
And what would Roppo’s liability be when (acting under the presumed authority of the authoritahy) someone got hurt and blamed Roppo? Think the city would defend him? The Sheriff may summon a Posse Commitatus but does that mandate that people show up? And what are the laws in New York about the police doing that, anyway? In California the short answer, I believe, is ‘they can’t”.
The crime here is abusive arrest and prosecution. TWB’s (Thugs With Badges) just hate it when people don’t assume positions of respectful obeisance immediately on seeing their presence. Oh, and they love to shift blame as well, for their own inability to carry out their job.
November 23, 2009, 1:48 pmJeff J says:
I think a criminal prosecution under these circumstances would set a bad precedent. Anytime a large crowd assembles, there is a risk that some segment of the crowd is going to get unruly. How unruly do they have to get before the event promoter is legally required to assist police in asking people to leave? This could get especially thorny where the gathering itself is independently protected under the First Amendment, such as a political rally or religious assembly. For example, will the organizers of the next mass demonstration at the national mall be prosecuted for refusing to send the crowd home because police feel some folks aren’t playing nice?
November 23, 2009, 1:56 pmDennis N says:
Just Dropping By, I fail to see “or fails to …” or similar language in the statute. This implies to me that the obstruction must be a positive act. I don’t see how not Tweeting is an obstruction under the statute.
November 23, 2009, 2:09 pmshg says:
You’re trying too hard to find reason in an unreasonable prosecution. There is neither a duty nor criminal liability, and yet there is a prosecution. Sometimes it happens that way.
November 23, 2009, 2:10 pmJust Dropping By says:
I’m not saying that the charge is legitimate. I’m just pointing out that “obstructing governmental administration” isn’t synonymous with “obstruction of justice” under New York law.
November 23, 2009, 2:42 pmOren says:
The mall is private property so how exactly did the cops get involved here in the first place? Either they spontaneously interjected themselves (unlikely) or the record company or mall management called on them to provide some taxpayer-funded security for their private event. In the latter case, I don’t have my sympathy for the defendant (even if the charge is totally bogus) — a private event should hire sufficient security personnel for the crowd they hope to attract.
Why should the good people of [edit: Nassau] county have to provide bouncers for a Canadian heartthrob that is drowning in money, again?
November 23, 2009, 3:08 pmRyan Waxx says:
Because we don’t have separate sets of laws – one for “Canadian heartthrobs that are drowning in money” – and one for everyone else, some of which are not drowning in money, but might desire to have a gathering of people.
November 23, 2009, 3:27 pmOren says:
Ryan, my position is that all private events should hire security sufficient for their crowd. My point about drowning in money was that the our heartthrob here is even less sympathetic because he was engaging in a commercial transaction for private gain but at public expense.
Oh, and (IMO, YMMV) anyone can have a gathering of people on any private property that they desire (with the consent of the owner, naturally) and under whatever terms are mutually agreeable. Insofar as they ask nothing from me, I ask nothing from them (common law nuisance notwithstanding).
November 23, 2009, 3:45 pmPeteP says:
“Ryan, my position is that all private events should hire security sufficient for their crowd.”
So, at what head count in my 50-year-anniversary backyard family reunion do I have to hire secuirty ? 50 ? 100 ?
November 23, 2009, 4:28 pmDennis N says:
Do we know that these were not off duty cops hired by the event?
Security can be a guessing game. How much is enough? PeteP’s reunion would have been fine with no security at all, until Uncle Albert got sideways with Uncle Bill and started that brawl. And who would have guessed that Aunt Mazie would go off her meds and start throwing beer mugs at passing cars?
Private security and unruly crowds is another nightmare. I’m not sure who’s in more danger at that time. At least they don’t usually employ people like me, with cudgels and pick handles.
November 23, 2009, 6:09 pmKirk Parker says:
Oren,
So you want private security contractors (and off-duty police perhaps outside their jurisdictions) having the same authority as actual, on-duty officers? No thanks!
November 23, 2009, 6:22 pmOren says:
Depends on how rowdy your family gets — that is, whether you believe they will cause a disturbance that requires security. If you trust them to behave themselves (and if it’s your backyard), then obviously zero.
Are you trying to interpret my words as uncharitably as possible or what? I really don’t get it — the mall management and the record company knew or should have known that there would be crowd control issues (since obviously the fans were not as well behaved as your family) that endangered/injured the participants. They did not take adequate precautions and, as a foreseeable result, the situation required outside intervention at taxpayer expense. This is not laudable behavior.
November 23, 2009, 7:26 pmDennis N says:
That’s easier to say in hindsight than in foresight. Once things go bad, it’s probably better to have the cops handle the situation than private contractors.
There is room for argument over whether they should have anticipated the size of the crowd, and how many security goons they should have had to control the “aggressive pushing,” and maybe what physical security would have been appropriate (cattle barriers?). I certainly don’t have the answer to those questions.
But it sounds to me like the near riot could not readily be anticipated.
November 23, 2009, 7:35 pmOren says:
The question is whether a reasonable person would have foreseen the harm — see e.g. Vaughan v. Menlove or Palsgraf v. Long Island Railroad Co.
Moreover, crowd control is something of a different animal than Al and Bill getting in a brawl. In the latter, we can place blame quite squarely on those involved in the altercation whereas in the former, the blame generally falls on the venue. See, e.g. The Restatement (Second) of Torts (A7344) (emphasis mine):
See also (just a quick Lexis): Coronel v. Chicago White Sox, Ltd., 595 N.E.2d 45, 47-48 (Ill. App. Ct. 1992) or Bellezzo v. State, 851 P.2d 847, 850 (Ariz. Ct. App. 1992).
November 23, 2009, 7:37 pmOren says:
Where did I say anything like that at all?! The authority of private security is a matter of State Law but generally follows the common law rule of trespass (i.e. they ask you to leave) and the shopkeeper’s right (they can detain you if they observe you committing a crime). This is just as true at your local mall as anywhere else.
November 23, 2009, 7:40 pmPeteP says:
Oren – “Are you trying to interpret my words as uncharitably as possible or what?:”
Dog forbid :-) However, we are not talknig about ‘laudibility’, but ‘arrestiblity’, which equals ‘criminality’.
Is the mall or anyone else ( I grew up at Roosevelt Field, and you’re not missing anything ) liable under civil statute for lack of permit, public ( civil ) nuisance, etc ? Perhaps. But CRIMINAL ? No.
November 23, 2009, 7:43 pmOren says:
Oh absolutely agree. I just mean to say that if the cops have to intervene that’s evidence that the management of the event has already ****ed up royally.
As to the adequacy of security, I found a real gem of a case: MASSEY v. JIM CROCKETT PROMOTIONS, INC. Supreme Court of Appeals of West Virginia 184 W. Va. 441; 400 S.E.2d 876; 1990 W. Va. LEXIS 254. In essence, plaintiff claims that defendant did not provide sufficient security personnel for the level of crowd (12 security officers and a stadium full of wrestling fans).
November 23, 2009, 7:46 pmOren says:
Correct. If you will kindly read my first (November 23, 2009, 3:08 pm) post to this thread, you will note that I expressed agreement with this proposition.
November 23, 2009, 7:50 pmRicardo says:
From the article, it looks like the police were called in on Friday afternoon when things started getting out of hand.
November 23, 2009, 9:52 pmuberVU - social comments says:
Social comments and analytics for this post…
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November 24, 2009, 3:18 amOren says:
Yes, but by whom? The mall management?
November 24, 2009, 7:57 amFederal Farmer says:
It is probably the case that the manager’s tweets about the event led to the dangerous crowd. Since common law provides a ‘duty to re-tweet’ it follows that he must tweet that the event is cancelled in order to quell the crowd.
November 24, 2009, 10:34 amJosh Blackman says:
Perhaps even scarier than the Constitutional implications of the arrest is this YouTube video of thousands of Tween girls rioting in a mall. http://www.youtube.com/watch?v=XPI5BXR97_g&feature=player_embedded H/T True/Slant
November 24, 2009, 1:10 pmDuty to Tweet | Kill Ten Rats says:
[...] sporadic monitoring of Web 2.0, we note a news story with Eugene Volokh’s comments on an arrest for failure to Tweet. “We asked for his help in getting the crowd to go away by sending out a Twitter [...]
November 29, 2009, 1:04 amD506 says:
Oren,
I do believe you’ve just won the first ever argument/debate/discussion on the internet. I stand in awe.
November 30, 2009, 10:21 am