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Accused of Assault After a Vehicle Repossession

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  • 04-14-2017, 01:57 AM
    theminer
    Accused of Assault After a Vehicle Repossession
    My question involves police conduct in the State of: New Mexico

    The easiest way to get to my question is to tell the complete story:

    I arrived on the scene of my wife's car being repossessed. The 2 repo agents were doing their best to upset her as much as possible (saying to her things like "Hurry up and get your damn stuff, nothing is going to stop us from taking this car,..even with your ass hanging out of it." Obviously seeing my wife in distress put me on edge right out of the gate. I was trying to gather information and help my wife load her belongings when one of the agents told me that if we didn't move quicker he would call the police and have them arrest me for preventing him to leave. I told him to go right ahead and call the police. Several police units were on scene within minutes (small town, police station 3 blocks away, no surprise). First officer talks to the repo guy and then approaches me and asks me how I am doing. I told him I have been better obviously and that we were nearly done clearing out the car. As I am loading her belongings into my truck one of the repo men is repeatedly asking for the keys and being a complete jerk. I find the the keys, turn to the repo man who is standing next to the officer and say "Here are the keys bud", and with a weak under handed toss I send the keys his way. My toss was so weak that the keys actually fell 2 feet short of the repo man. The officer immediately yells "Are you ****ing kidding me right now?" To which I reply, "He wanted the keys, I tossed him the keys" The officer yells "That is assault, turn the **** around." I turn around, place my hands behind my back and am summarily arrested. The officer goes so far as to when he is clearing my pockets to say in my ear "Look now you are ****ing littering too." I keep my mouth shut and only give my name, SSN and DOB. He places me in a squad car and calls for a check. The check pulls up a warrant from another state for failure to appear for a child support case. I am taken to the jail (2 blocks away) and booked. I obviously plead Not Guilty to the misdemeanor assault charge and was out on OR without issue the next day for that. I was able to contact the other state and figure out the procedural error that led to a no bond warrant being issued and was able to get it rescinded as well.

    Now for my question(s). The officer was standing in full view of the entire incident and should full well understand the definition of assault in N.M. The repo agents having asked for the keys and the keys being tossed underhanded absolve me of that crime and I am quite sure that the state will drop the charge before trial. However, I feel that the officer was deliberately acting of his own accord and stripped me of my liberty by claiming it was assault in the first place (also forgot to mention that he never read me my Miranda rights, not a catch all as he didn't attempt to question me). Would this be a violation of my rights? Is it a false arrest?

    The next issue is that I have a high profile career, that same night an officer and a detention officer were in my place of business showing everyone my booking photo. This was done to attempt to destroy my credibility (small town, and my well known political aspirations in said small town).

    Do I have grounds for and a chance to win a civil suit against the officer and police department? What motions would I need to file to prevent the department from deleting the bodycam and dashcam video of the incident?
  • 04-14-2017, 02:34 AM
    cdwjava
    Re: Procedures and Definitions
    Clearly, the manner in which you threw the keys appeared to be assault to the officer. If it also appears to meet the legal definition of assault to the prosecutor (and he believes it is wirth the time and effort to pursue), then you could be charged. If the prosecutor feels it is not worth the effort, you may get off without any charges or a plea offer to a lesser offense.

    Keep in mind that an officer ALWAYS acts of his own accord when he makes an arrest based upon an act he believes to be a crime. Oh, and unlike the impression one gets from TV, Miranda is NOT required upon an arrest - only upon custodial interrogation (withj some few exceptions).

    You'll have to speak with an attorney to see if the officer's actions might be defamatory in some way, and you can also complain to his agency about his behavior. However, a booking photo and info on the factthat you were arrested tend to be a public record, so in and of itself, that may not be an issue. However, if he truly went out of his way to show it to people without good cause, or he used a department copy of the photo, there MIGHT be a problem. You'd have to check with an attorney who can get all of the facts and advise you.

    If you really think there is video that can or would be deleted, you can contact a defense attorney who can move to seek these items in discovery.
  • 04-14-2017, 02:50 AM
    theminer
    Re: Procedures and Definitions
    I am not so sure you would have used the word "Clearly" had you been there as the 3 witnesses I have completely disagreed. The officer has a personal issue with me that has been known. I did not state that Miranda was required, only mentioned that it had not been given and even placed subtext to it's irrelevancy. I appreciate your input otherwise however.
  • 04-14-2017, 03:06 AM
    cdwjava
    Re: Procedures and Definitions
    Well, it is "clear" that he is alleging that he witnessed what he believed was a violation of the law by your throw/toss/loft/whatever. If the prosecutor feels the elements of the offense were not met, or he (or she) decides it is not worth the effort to pursue, then you will not be prosecuted. The probable cause necessary for a criminal charge or arrest can be a rather minimal sort of thing. One can make a perfectly lawful arrest and still have the case rejected by a prosecutor for reasons entirely unrelated to the legality of the arrest. On the whole, a great number of lesser offenses are NOT prosecuted simply because there are too few resources available.

    I mentioned Miranda because many people seem to think it's a requirement. It's not. In fact, maybe one in ten arrests will result in Miranda being required to be read to someone. Some agencies (NYPD is - or was - one) require that Mirranda be read when you slap the cuffs on, but, this a procedural thing and a policy, not the law (and also why you see it on TV a lot). I worked in an agency where we read Miranda to everyone we arrested as a matter of course even when it was not required.

    I have no idea whether this officer was being overly picky about the offense because he had an ax to grind with you, or, whether you possessed a sufficiently flippant attitude and demeanor that would lead to a reasonable conclusion that you tossed them in an attempt to hit him. It would seem a silly thing for an officer to risk his career over such a thing, but, I suppose there are a few idiots out there.
  • 04-14-2017, 03:07 AM
    Taxing Matters
    Re: Procedures and Definitions
    In New Mexico, the crime of battery is defined as the following:

    30-3-4. Battery.

    Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.

    Whoever commits battery is guilty of a petty misdemeanor.

    And the crime of assault is defined as follows:

    30-3-1. Assault.

    Assault consists of either:

    A. an attempt to commit a battery upon the person of another;

    B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or

    C. the use of insulting language toward another impugning his honor, delicacy or reputation.

    Whoever commits assault is guilty of a petty misdemeanor.

    As you can see from those statutes, for an assault in New Mexico you do not have to make contact with the other person. Thus, throwing those keys would be assault if it was an attempted battery (i.e. the attempted unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner) or if it was an unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery. What this means is that perception of how you threw those keys matters a lot. You have admitted you were angry at the scene of the repo. That anger may have shown through when you tossed the keys. If what the officer and the repo guy saw was an attempt to throw the keys to hit the repo man then the cop was justified in thinking it was an assault. That would meet the necessary probable cause for the arrest as probable cause is a pretty low standard. Your perception of the incident is obviously different from what the cop will say occurred. So if it goes to trial, the issue for the jury will be what really happened when you tossed those keys. Unless there is video of it it’ll come down to what the various witnesses say when they testify and then the jury will have to choose what to believe. So I don’t see this as quite the slam dunk in your favor that perhaps you think it is.

    Even if the arrest for the assault wasn’t good, there was a warrant for your arrest and the officer was certainly entitled to arrest you for that. Given that, I don’t see a good false arrest case for you here even if you get the assault charge dismissed. But you might want to run that by a civil litigation attorney for advice on that. Your more immediate concern, though, is the assault charge and I would strongly recommend you get a lawyer to defend you on that.
  • 04-14-2017, 10:04 AM
    qwaspolk69
    Re: Procedures and Definitions
    Quote:

    Quoting theminer
    View Post
    I am not so sure you would have used the word "Clearly" had you been there as the 3 witnesses I have completely disagreed. The officer has a personal issue with me that has been known. I did not state that Miranda was required, only mentioned that it had not been given and even placed subtext to it's irrelevancy. I appreciate your input otherwise however.

    Witnesses aren't really reliable. You can have 20 people witness an event and every single one will give a different description of the events.
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