May 7, 2007
Border Patrol Agents are "Police Officers"?
Here's an interesting one. New York adopted a statute that makes it a crime for a person to intentionally injure or put in reasonable apprehension of beng injured someone the person knows or should know is a "police or peace officer." (It's called "menacing a police or peace officer," under New York Penal Law Section 120.18.) The defendant was indicted under this statute for actions related to a border patrol agent. The term "police or peace officer" is not defined in the state.
The court, though recognizing that normally the inclusion of certain things in a list excludes others (and, here, there was no "and other similar law enforcement officials") nonetheless construed the statute to apply to border patrol agents. It's remarkable. Even though it recognized the interpretive rule that applies to all statutes would result in no crime, it relied on the fact that New York has a no-strict construction statute for criminal laws, reasoning: "it is also true that Penal Law 5.00 explicitly states that, contrary to the common law, 'the general rule that a penal statute is to be strictly construed does not apply to this chapter [the Penal Law], but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law."
As a result, the court, though holding the act was not a "model of clarity" upheld the indictment on a "close question of law."
It's remarkable. The court used the "no strict construction" statute to give a criminal statute broader meaning than a civil statute would have been given, by its own admission!
The case is People v. Brenno, 2007 WL 1288353 (N.Y. County Court May 2, 2007). I couldn't find it online.
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