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 ยง170.40, 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