Oftentimes, in these cases in which no one was injured, a protester-defendant could – with the help of an experienced attorney – successfully negotiate a plea bargain whereby the protester will have no criminal record and spend no time in jail (such as an “adjournment in contemplation of dismissal or a violation like Disorderly Conduct). In cases involving Desk Appearance Tickets, such negotiations may even be possible prior to the return date (i.e. the first court appearance). However, for reasons relating to principle, many protester-defendants refuse to accept any such deal, preferring to demand dismissal or a trial where their voices can be heard by a jury. Such an attitude is certainly understandable but it does tend to increase the risk of a negative result (such as a permanent criminal record).

Unfortunately, some protests escalate into confrontations with police officers. In those cases, charges like Assault in the Second Degree can sometimes be levied against arrested protesters alleged to have injured police officers. That charge is a serious felony that can carry real jail time, and should not be treated lightly at all. The best defense in these cases is often to argue that the defendant did not act unreasonably, and that any injuries to the police officer were sustained on account of his/her own aggressive or improper actions. In today’s current climate, that argument can have real traction with some jurors.

Thankfully, nowadays many protesters have video footage of their arrests, or their behavior just prior to being arrested. Oftentimes, this footage can be helpful to their defenses. In those cases, it may make sense for their attorneys to share the footage with prosecutors in the hopes of securing outright dismissals. Of course, an outright dismissal of an arrest charge can open the door to a lawsuit for wrongful arrest against the City.

Sometimes people attempt to intervene during an arrest of a protester by trying to prevent the police officer from apprehending someone else. In these cases, the intervenors typically are charged with Obstructing Government Administration or Resisting Arrest, misdemeanors. A person being unlawfully arrested can argue that they are not guilty of Resisting Arrest because the arrest was unlawful or unauthorized under the circumstances, and an intervenor may also be able to successfully argue the same thing.

Generally speaking, defendants (and defense attorneys) prefer some anonymity with respect to their cases, and prefer to try their cases discretely in the courtroom. However, for those defendants seeking trials by jury, attorneys should consider trying to garner public sympathy and/or publicity for the client’s case before the trial. After all, these cases frequently depend less on the facts presented at trial so much as they do upon the attitudes of the fact-finders (i.e. judges or juries) deciding the case.

If you or a loved one have been arrested or given a Desk Appearance Ticket in New York City for protesting, you should strongly consider contacting Matthew Galluzzo. He is an experienced criminal defense attorney and former Manhattan state prosecutor. He is also a civil rights attorney who has successfully sued members of the NYPD for false arrest and police brutality.

§ 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.

“O.G.A.” covers a broad range of conduct; cases where convictions for O.G.A have been upheld include situations where defendants pulled the emergency brake on a subway car without any valid reason to do so, refused to move through a metal detector at a county courthouse in a manner which prevented others from entering, or ran on the “set” of an undercover “buy-and-bust” operation after being warned to leave and shouting that the police were present. While the statue requires “intimidation, or a physical or independently unlawful act,” merely refusing to cooperate with a police officer by giving information, or failing to turn over a driver’s license or registration when asked to do so will not fall within the ambit of the statute (although it might subject the actor to liability under the Vehicle and Traffic Law). Essentially, any act committed with the intent to frustrate the purpose or execution of an official acting in a lawful capacity can qualify, like smacking a summons book out of a police officer’s hand to prevent him or her from writing a ticket, for example.

Obstructing Governmental Administration seems to be committed most when street encounters between police officers and civilians go wrong. There are two scenarios where the charge is applied with the most frequency, the first being where civilians try to stop police officers from placing third parties under arrest, either by standing in between officers and the third parties, or by assaulting police officers and/or jumping on them to foil the detention (which also subjects the intervening person to the additional charge of resisting arrest, also a class “A” misdemeanor). Charges can be elevated to a felony if a person uses pepper spray or mace on the officer, or causes physical injury to the officer.

The second common scenario involves the swallowing of drugs in order to prevent officers from recovering them. While no actual “force” is used by the act of swallowing a bag or vial, courts have held that swallowing drugs in an attempt to avoid arrest for drug possession constitutes O.G.A., as well as the crime of “Tampering.” In either of these situation, the additional act of attempting to prevent the police or official actors from discharging their duties usually serves no purpose other than to escalate the situation, and results in additional charges for the police to bring to the District Attorney’s Office when these cases are being written up.

If you are charged with the crime of Obstruction of Governmental Administration, you should not hesitate to retain an experienced criminal attorney immediately. A conviction for O.G.A. results in the incurrence of a permanent criminal record, and is punishable by up to one year in jail.

“New York Defense Attorney Explains the Crime of “Obstructing Governmental Administration.”