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Wednesday, October 10, 2012

The Crime of Doing Nothing: The Charges in the Milwaukee Police Strip Search Scandal

It might sound like a rehash of the Seinfeld finale but in the view of Milwaukee County Assistant District Attorney Miriam Falk, witnessing a crime and doing nothing to intervene is itself a crime.

As a general notion, this actually is not anything new. Many may not know it but Wisconsin has long had a “Good Samaritan” statute that makes it a crime in certain circumstances to not render aid to a victim of a crime.

But what is truly remarkable is that according to ADA Falk, inaction upon witnessing a crime may subject the person to a liability not for the Class C misdemeanor of failure to render aid, but as a principal in the crime witnessed. Thus, witness a battery or homicide and simply by doing nothing to prevent it, you’re as guilty as the batterer or murderer.

It is on this specious legal theory that ADA Falk has charged Milwaukee Police Officers Jeffrey Dollhopf, Brian Kozelek, and Jacob Knight. According to the allegations contained in a criminal complaint filed on October 8, 2012, Milwaukee Police Officer Michael Vagnini perversely abused his authority as a police officer and brutally sexually assaulted numerous individuals with whom he came into contact, all under the guise of searching for drugs.

The complaint alleges that other police officers were involved in one of these horrific acts--an instance where two officers held a suspect’s arms, one of whom had a gun to the suspect’s head, as Vagnini sexually assaulted the suspect and subsequently planted drugs on him.

The Milwaukee Journal Sentinel notes this inflammatory allegation from the complaint right before going on to refer to the charges against officers Dollhopf, Kozelek, or Knight. Thus, it would hardly be surprising if an average reader thought that officers Dollhopf, Kozelek, or Knight were charged alongside Vagnini because they held down a victim as Vagnini brutalized him or had some sort of similar direct involvement in the crime. The Huffington Post tries to create a more direct implication that it was Dollhopf, Kozelek, or Knight who held a gun to a victim’s head as Vagnini perpetrated a sexual assault and goes so far to explicitly say that Dollhopf, Kozelek, and Knight “assisted” Vagnini, a statement wholly unsupported by allegations in the complaint. Even the Associated Press’s story states that Dollhopf, Kozelek, and Knight are charged with “conducting” illegal searches.

But the complaint is silent as to the identities of the officers who allegedly held any victim or pointed a gun to his head as Vagnini sexually assaulted him. In fact, the complaint does not allege that Dollhopf, Kozelek, or Knight ever touched a victim, encouraged Vagnini’s actions, or even witnessed what occurred. Rather, the complaint alleges only that at different incidents, according to police records, these officers were “present” and did not stop Vagnini or report Vagnini’s actions to a supervisor.

There are, of course, a variety of ways a person can be held responsible for a criminal act without directly committing the crime. Conspiracy, solicitation, or “party to a crime” theories are oft-utilized to bring people within the ambit of the criminal law even though they did not directly commit the crime (at least within the sense of how an average person would consider directly committing a crime). While a getaway driver might not be as morally culpable as a gunman, in the eyes of the law, they are equal.

ADA Falk alleges in the complaint that being “present” and not stopping a crime is enough to make a person a “party to a crime” and be as legally culpable as if he had directly committed the offense. While there should be little debate that a police officer who witnesses a fellow officer brutalize a suspect and does nothing to prevent it acts inappropriately and bears some culpability, moral culpability is not the same as criminal culpability. Just because we can all agree something is wrong doesn’t mean it’s a crime.

Wisconsin’s pattern jury instructions state that a person is a “party to a crime”

by either directly committing it or by intentionally aiding and abetting the person who directly committed it. If a person intentionally aids and abets the commission of a crime, then that person is guilty of the crime as well as the person who directly committed it.

The jury instructions continue and define what is meant by “aids and abets:”

A person intentionally aids and abets the commission of a crime when, acting with knowledge or belief that another person is committing or intends to commit a crime, he knowingly either:
·         assists the person who commits the crime; or
·      is ready and willing to assist and the person who commits the crime knows of the willingness to assist.

To intentionally aid and abet [a crime], the defendant must know that another person is committing or intends to commit the crime … and have the purpose to assist the commission of that crime.

The instructions then continue with the “bystander defense” and it is here that the state’s case appears to fail.

However, a person does not aid and abet if he is only a bystander or spectator and does nothing to assist the commission of a crime.

The criminal complaint explicitly alleges that Dollhopf, Kozelek, or Knight were merely “present” and failed to prevent Vagnini from committing the offense. As a matter of law, this allegation is insufficient to sustain a charge of conducting an illegal strip search as a party to the crime. Of course, the state almost certainly possesses more evidence than that contained in the complaint. There is no obligation that the state put every allegation into a criminal complaint. However, a criminal complaint must establish probable cause to believe that the defendants committed a crime. Ordinarily, a prosecutor would want to ensure that he or she presented sufficient allegations to easily clear this threshold. Given that the complaint in this action is so woefully deficient, one might question whether the state really has anything more in its back pocket.

But the charge of being a party to the crime of an illegal strip search is merely a misdemeanor, punishable by a maximum of a $1,000 fine and 90 days in jail. In fact, a conviction would not necessarily prohibit each officer from continuing to work as police officers. Dollhopf, Kozelek, and Knight also each face the more serious charge of felony misconduct in office, which could result in up to 3½ years in prison (Dollhopf faces two counts of each offense) and would necessarily preclude them from possessing a firearm.

Wisconsin’s “misconduct in public office” statute is an expansive prohibition against malfeasance by public employees. The law prohibits the sorts of things you might expect like taking bribes. But many would be surprised to know that the sort of slacking on the job that would bring a stern conversation from a boss in the private sector may be a felony if the employee happens to work for state or local government.

Dollhopf, Kozelek, and Knight are charged with “do[ing] an act which the officer or employee knows is in excess of the officer's or employee's lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer's or employee's official capacity.”

Note the operative verbiage: “doing an act.” By its plain language, the statute requires an action and thus is necessarily inapplicable to instances where public officials simply decline to act. Likely, the state will argue that the act that Dollhopf, Kozelek, and Knight did was the illegal strip search. From a legal sense, it does not matter that they did not actually conduct the illegal strip search because by virtue of being a party to the crime, they are just as responsible as if they had.

But the traditional notion of being a party to a crime through aiding and abetting requires some sort of act. Here, none is alleged. The only “act” alleged is the officers’ failure to act, which is an obvious semantic stretch. And as a general notion, whenever a criminal law suffers from such ambiguity, it must be interpreted in favor of the defendant.

Based upon the allegations contained in the complaint, this may be an instance where the facts may be undisputed and we can all agree these officers behave inappropriately, but nonetheless no crime has been committed. Even if acquitted, Dollhopf, Kozelek, and Knight have been forever tarnished by having been associated with the despicable acts Vagnini is alleged to have committed (not to mention the mental turmoil of facing serious criminal charges that places one’s freedom, family, and professional career in jeopardy).

At a minimum, the media owes these three accused officers the decency of accurately reporting on the allegations against them. While the Journal Sentinel took the time to write a detailed synopsis of Wisconsin’s strip and cavity search statutes and the law regarding sexual assault, it never bothered to note the legal infirmities of the state’s expansive use of the party to a crime statute, much less accurately report that Dollhopf, Kozelek, and Knight are charged not because of their actions but rather their inactions. 

One should readily admit that there is a vast social stigmatic difference between being accused of violently forcing an unprotected hand into another person’s anus under the guise of retrieving contraband (as Vagnini is alleged to have done) versus being “present” when a prisoner was required to expose his buttocks (as is the extent of the involvement alleged with respect to Dollhopf, Kozelek, and Knight).

Unless and until additional adequately supported allegations emerge, every report must indicate that these officers are facing criminal charges for having been “present” during one or more of Vagnini’s alleged assaults and failed to prevent or report Vagnini’s alleged actions. 

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