Ordinarily at Law and the Multiverse we stick to more fantastical topics (“superheroes, supervillains, and the law”), so when we were given the opportunity to write some guest posts for the Conspiracy, we realized this would be an ideal occasion to discuss something more down to earth — not to mention more well-known than some of the things we write about. And as it happens over the past several months we’ve received several great questions from readers about the CBS show Elementary.
The first question comes from Jeb, who wrote in about the episode “Snow Angels“, in which Sherlock attempts to commandeer a city snow plow for transportation during a blizzard. When the driver, Pam, refuses, Sherlock invokes his authority as being affiliated with the New York City Police Department. Unsurprisingly, Pam balks at that as well, and Sherlock ultimately resorts to a bribe. Jeb asks:
- Would a regular policeman have the legal authority to commandeer the snow plow?
- Is it plausible that Sherlock, as a consulting detective, has the authority to commandeer the plow?
- Once the bribe is offered and accepted, does Pam have any legal defense or is this straight up bribery?
I. Commandeering Vehicles
We’re all familiar with the trope: a police officer finds himself or herself in need of a vehicle and so announces to the driver that they are commandeering it for police use. But what is the legal basis for this, particularly in New York? In this case, note that Sherlock isn’t seeking merely to commandeer the vehicle but also Pam’s services.
One basis for this might be N.Y. Penal Law § 195.10, which makes it a misdemeanor to refuse to aid a police officer when commanded to reasonably aid the officer in effecting an arrest or to prevent the commission of a crime. It has been argued that such statutes are actually unconstitutional, though they have a history in English law dating back to at least the thirteenth century. Jon C. Blue, High Noon Revisited: Commands of Assistance by Peace Officers in the Age of the Fourth Amendment, 101 Yale L.J. 1475 (1992). However, twenty-one years after Judge Blue’s essay was published, § 195.10 remains on the books and apparently undisturbed, if little used these days.
Perhaps unsurprisingly, then, an actual police officer likely would have been able to commandeer the plow without issue.
It should be noted, though, that the plow was not a private vehicle but a city plow. This makes the use of the word “commandeer” a little unusual. But I think at most this only addresses the issue of who owns the plow (the city). There still needs to be a way to force Pam’s cooperation. In the heat of the moment, an officer has very little leverage with “if you don’t take me where I want to go, I’ll report this to your supervisor, bearing in mind that we ultimately work for the same city government.” Whereas the threat of arrest for violating § 195.10 is likely to be much more effective.
II. Sherlock Commandeering a Vehicle
Now we turn to Sherlock himself, with his murky status as a kind of quasi-employee or at least contractor for the police department. § 195.10 will be of no help to him, since it requires not only that the command for aid be given by a police officer but that the police officer be identified as such to the person to whom the command is given. Sherlock was more-or-less clear about his status as a non-police officer, so that rules out § 195.10 pretty definitively.
Various defenses could conceivably be argued (though probably not convincingly) for taking the plow itself, but I don’t anything could support forcing Pam to cooperate. Sherlock seems to recognize this and so turns to the bribe.
The question here seems to be two-fold: first, is this a crime for either Sherlock or Pam and second, does Pam have any defenses? In short: this is arguably a case of bribery, and while Pam is likely defenseless, Sherlock may have a defense.
In New York, third degree bribery is defined as conferring a benefit upon a public servant in exchange for influencing that public servant’s actions as a public servant. N.Y. Penal Law § 200.00. “Public servant” is broadly defined to include “any … employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state,” and would presumably include a snow plow driver employed by the city. N.Y. Penal Law § 10.00(15). Since Pam is being offered money in order to influence her actions in her capacity as a city employee (e.g. where to drive the plow), Sherlock could be charged with third degree bribery, a class D felony. For her part, Pam could be charged with the counterpart crime, bribe receiving in the third degree, also a class D felony. N.Y. Penal Law § 200.10.
That said, Sherlock could raise a defense of justification, also known as necessity. N.Y. Penal Law § 35.05 provides that “conduct which would otherwise constitute an offense is justifiable and not criminal when … Such conduct … is performed by a public servant in the reasonable exercise of his official powers, duties or functions.” Is Sherlock a public servant? He does not seem to be an employee of the city, but his exact status is not well described. I strongly suspect, however, that he is not an employee. At best he is a contractor. At worst he is a concerned member of the public whose tips regarding cases range somewhere between “encouraged” and “tolerated.”
Alternatively, § 35.05 also provides that conduct is justified when “… Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”
This latter form of justification is often described as a “choice of evils” defense. See, e.g., People v. Craig, 78 N.Y.2d 616, 619-21 (1991). The question is whether bribing Pam in order to secure reliable transportation during a blizzard was the lesser of two evils when compared to potentially allowing the criminals in the case to get away. That’s a difficult question to answer, but Sherlock and Joan at least didn’t seem to have trouble with it.
Pam, I’m afraid, is probably hopeless. While resorting to bribery may be justified to stop a more serious crime, it can’t possibly excuse Pam’s taking of the bribe in the first place.
Sherlock certainly had no right to commandeer the plow (or at least not Pam’s services as a driver), and he may have committed a felony by bribing her. His defense may hinge on the nature of his relationship with the police department. As we will see in a future post, that is an issue that will come up in other, arguably more serious contexts.