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Old December 5, 2008, 01:58 AM   #1
maestro pistolero
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NY Hero's gun charges dismissed, Judge cites Heller

See bold below. Would this count as precedent, or give weight to incorporation?

Charges Dropped Against 9/11 Rescue Worker due to Hero Status
Mark Fass
New York Law Journal
December 3, 2008

A Long Island judge has dismissed charges of driving under the influence and illegally possessing a weapon against a 9/11 rescue worker, citing the man's status as an "American hero."

"The Court notes with admiration the Defendant's lengthy service to his country and to his community, and acknowledges the many letters and documents concerning his outstanding service on September 11, 2001 and his injuries," District Court Judge Paul M. Hensley of Suffolk County wrote in People v. McCormack, 06SU51940.

"[T]he Court finds that the Defendant has demonstrated the existence of compelling factors, considerations or circumstances which show that his prosecution or conviction upon the accusatory instruments herein would constitute an injustice."

Shortly after the planes hit the World Trade Center, defendant Michael McCormack, a major in the National Guard, was called to the scene. At home in Suffolk County while on Workers' Compensation following a construction accident, he arrived at Ground Zero around noon, about three hours after the second crash.

McCormack later told reporters that he spent the next eight days futilely looking for survivors. On his final day, McCormack came across a red piece of cloth buried under the rubble. As he tells it, he lifted the rocks, believing the fabric to be a woman's dress. Rather, the red was a stripe on the flag that came to be known as the "World Trade Center flag." (Other accounts, including a Congressional Record report cited by Hensley, state that the flag was found four days earlier, on Sept. 14.)

McCormack toured the country with the now-iconic flag. He also became a frequently quoted critic of the government, suggesting that the 9/11 attack might have been an "inside job" and comparing the Bush administration to Nazi Germany.

McCormack suffered a range of injuries, including asbestosis, damaged sinus cavities and post traumatic stress disorder. He also inhaled a five-inch piece of shrapnel, which remains lodged in his lung.
Five years later, in September 2006, McCormack was arrested in two separate incidents.

On Sept. 12, a police investigation of his house uncovered an unlicensed firearm. The reasons for the investigation remain murky, though McCormack told one reporter that the officers were responding to complaints of a "chemical smell" emanating from his house.

Twelve days later, McCormack was pulled over for driving erratically. He later tested positive for Alprazolam, the anti-anxiety drug most commonly marketed as Xanax.

In separate informations, prosecutors charged McCormack with fourth-degree criminal possession of a weapon and operating a motor vehicle while under the influence of drugs.

He moved to dismiss the charges in the interest of justice.
Judge Hensley, citing McCormack's work at Ground Zero and the symbolic significance of the flag he uncovered, has granted the motion.

The judge listed the 10 factors a court must consider when determining a motion to dismiss in the interest of justice under CPL §170.40, including "the history, character and condition of the defendant" and "any other relevant fact indicating that a judgment of conviction would have no useful purpose."

The judge also cited District of Columbia v. Heller, 128 S.Ct. 2783, the 2008 U.S. Supreme Court decision finding that "the Second Amendment conferred an individual the right to keep and bear arms."

Noting that a court "need not recite an analysis of each of the factors in reaching its determination," Hensley dismissed the gun charges, citing "the totality of the circumstances presented."

"Captain (Michael) McCormack was digging through the rubble of Tower One when he noticed a bright red cloth amid the debris, assisted by four men the American flag was recovered," Hensley wrote. "Since its recovery, this flag has become an important symbol of that day, and has been treated with reverence wherever it has been displayed by the Port Authority of New York and New Jersey, which now has possession of the flag, a symbol of national strength and pride."

The judge also dismissed the Vehicle and Traffic Law violation, without explanation.

Calls to Hensley's chambers, McCormack and his attorney. A spokesman for the Suffolk County District Attorney's Office declined to comment, noting that the files were automatically sealed following the judge's dismissal.

http://volokh.com/posts/1228427102.shtml
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Old December 5, 2008, 03:01 AM   #2
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No. No trial, no judgment, no opinion. But, a GREAT case, and, I do love to see justice served. A bit teary eyed right now. Have to go....
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Old December 5, 2008, 12:08 PM   #3
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The Way I Understand It...

If the dismissal holds (I suspect it will be appealed), then it may count as precedent, but only for like cases and only in that particular judicial district. If the dismissal is not appealed, then it only holds sway in that particular court and not the entire district.
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Old December 5, 2008, 12:13 PM   #4
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A rather odd process for dealing with the law...

I find it interesting that the man's work from five years earlier was a factor in dropping criminal charges unrelated to his previous work. Strange indeed.

IMO, gun registration is stupid, but Heller did not try to overturn registration schemes. In fact, it specifically stated so.

Driving under the influence of Xanax--that could be a major safety concern...
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Old December 5, 2008, 12:28 PM   #5
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Quote:
Originally Posted by raimius
Driving under the influence of Xanax--that could be a major safety concern...
It might be a concern if the person was just beginning therapy and was not used to the drug (and its interactions upon his own body), or had the prescription changed. But as a rule, many tens of thousands of people drive perfectly fine while on anti-depressants every day.
Quote:
I find it interesting that the man's work from five years earlier was a factor in dropping criminal charges unrelated to his previous work. Strange indeed.
I don't know the particulars of CPL §170.40, so the judge may be correct. I bet it's appealed, however.
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Old December 5, 2008, 12:30 PM   #6
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Agreed. Testing positive for a drug one is legally permitted to take is not a sound basis for a criminal prosecution. However, if one's ability to safely drive while on a drug is impared, I could see the logic in prosecuting that (however, it would seem hard to prove).
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Old December 5, 2008, 01:07 PM   #7
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Quote:
If the dismissal holds (I suspect it will be appealed), then it may count as precedent, but only for like cases and only in that particular judicial district. If the dismissal is not appealed, then it only holds sway in that particular court and not the entire district.
Lower courts in NY (this is essentially a "misdemeanor" court) have little effect as precedent anywhere

Quote:
I don't know the particulars of CPL §170.40, so the judge may be correct.
It's rarely used, and when it is, rarely overturned.

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Old December 5, 2008, 01:34 PM   #8
maestro pistolero
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With such broad latitude being exercised by the judge in this case, it will be interesting to see how the fate of a certain pro-football player will unfold.

Plaxico Burress may not be a national hero, per se, but certainly his upstanding civic record (AFAIN) will count for something, right?

I'm getting the popcorn ready for this one!
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Old December 5, 2008, 04:05 PM   #9
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While I think justice was served here, I disagree with the reasoning of the judge. Just like I disagree with judges slamming gun owners because of their own personal bias, I also disagree with letting the man go because of an act that is totally unrelated to the charges.

If you want a law that says anyone who performs a good deed gets a free pass, fine- but that is not the judge's place to make law- that is up to the legislature.
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Old December 5, 2008, 04:17 PM   #10
maestro pistolero
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Sounds like maybe the judge mentioned 'Heller' just so he'd have somewhere to hang his hat.
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Old December 5, 2008, 05:10 PM   #11
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The whole deal sounds kinda fishy to me. First they found an "Unlicensed Firearm"() due to a smell, and then he gets pulled over. You gatta wonder.

I do like the judges conclusion. The conviction would serve no useful purpose. Sounds like we need more judges like this one. I don't feel he was bowing to a celebrity, but realizing this man poses no real threat to society and doesn't need correction.

For all anyone knows, the guy could have dropped his spitter and that's reason for the eratic driving. I know I've done it and could look as if I were under the influence.
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Old December 7, 2008, 12:53 AM   #12
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I don't understand how 9/11 has anything to do with, or serves as any justifiable legal basis, for the dismissal of the case. It seems like the 9/11 events would be completely irrelevant to the charges and the case.

In the interest of justice, huh?!? LOL. Sounds like another way of saying, "because I want to." How's that for an abuse of discretion? (I know, that's probably not the standard of review in this case, but what the heck.)
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Old December 7, 2008, 08:15 AM   #13
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How in the world do you:

"He also inhaled a five-inch piece of shrapnel, which remains lodged in his lung." ?

that and his going around the country telling folks Bush was behind 911 tells me the guy may be as fruity as some of the cakes we pass around this time of the year.
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Old December 7, 2008, 12:19 PM   #14
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I'm with blume 357, inhaled a 5 inch piece of shrapnel?

Well I would guess his problems all relate to 9/11 experiences. There are a ton of the rescue workers having major trouble.
Not sure if he should get off the hook totally though. Maybe required counseling or something would be better.
The prcedent would not be binding in other courts, but it is still a precedent other judges/atorneys could cite. At least that is my understanding.
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Old December 7, 2008, 02:50 PM   #15
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Finding and reading the actual dismissal is illuminating.

According to Court Records (here) the Judge made the right call on the firearms charge. I'm thinking that the warrant obtained was clouded; there were no chemical smells upon approaching or entering the house. Any/All evidence would've been ruled inadmissible.

The shrapnel inhaled was in fact 5mm (millimeters), not 5 inches as reported (in several accounts).

The driving while intoxicated charged was dismissed because there was a medical finding for use and no alcohol was found... Contrary to what the article stated, there was a satisfactory explanation for this dismissal.

After reading the dismissal, the Judge used his discretion properly. He saved the taxpayers money by not having a bogus trial.
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Old December 8, 2008, 06:22 PM   #16
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Excellent link, thank you.

That makes 101% the reports of such situations have been inaccurate...
S
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Old December 9, 2008, 10:14 PM   #17
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(Sigh....), I cannot resist. But I will attempt to comment in a respectful manner, consistent with the spirit of this new forum. Thanks for letting me participate in here!

The Judge's decision is a unjust and completely subjective, and is devoid of a sound legal basis. The Judge dismissed the case because of completely irrelevant events concerning 9/11; moreover, this subjectivity is the type that is often unfairly applied to different defendants.

The dismissal was based on the defendant's actions on 9/11, as well as plea offers that were given to the defendant. But what about the construction worker, the waiter, the homeless man, and all of the rest of us who didn't happen to find a flag on 9/11? This is the problem with the Judge's decision, as well as the statutory basis that provided for the same: subjectivity. Now, I understand that all judicial decisions are subjective to a certain degree; but at least most of them are subjectiviely based on the Constitution, or some less-subjective statutory basis. Why not just dismiss the case on 2nd Amendment or 4th Amendment grounds? If the defendant had the right to keep an arm, then hold that (2nd Amendment basis); if the police lacked the proper basis to enter defendant's residence without a warrant, then hold that (4th Amendment basis). But for goodness sake, don't dismiss the case because the defendant is someone special, for special reasons that have absolutely nothing to do with the case, or that may cause a Prosecutor to hesitate to extend plea offers in the future.

The very basis of our criminal justice system is evenly applied justice, based on solid Constitutional and/or statutory grounds. Grounds that apply to everyone, regardless of who they are, who they know, and other subjective (and completely) irrelevant reasons that have nothing to do with the case. Substitute the 9/11 rationale for, "the defendant is a close friend of the King, having provided excellent counsel for the King in the most pressing of our times", and you'll understand what I mean.

I'm not pretending to know much about the statute, and I've only read the last link that was kindly provided by Anti. But it seems to me that the case was dismissed based on who the defendant was, rather than on a violation of rights that would also apply to everyone. And that is a poor application of justice, if you can even call it that.

My flame suit is on.
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Old December 9, 2008, 10:25 PM   #18
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I have to wonder if Heller would have applied to a non-hero case.
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Old December 16, 2008, 07:16 AM   #19
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I'm not even close to a fan of George Bush and his administration

but anyone who goes around saying he was behind 911 needs a serious oil change.
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Old December 17, 2008, 03:15 AM   #20
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Quote:
The judge listed the 10 factors a court must consider when determining a motion to dismiss in the interest of justice under CPL §170.40, including "the history, character and condition of the defendant" and "any other relevant fact indicating that a judgment of conviction would have no useful purpose."
I had heretofore never heard of such a list of factors. Does every state have such a listing; and what is the general title of such listing?
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