Man convicted for confronting plainclothes officers who followed him late at night

November 16, 12:50 PMCivil Liberties ExaminerJ.D. Tuccille

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Most of us would probably think that a man who found himself being followed down a dark street by two people at midnight and turned to ask, "why are you following me?" while holding a folding pocket knife pointed down along his leg was just being careful. His actions seem especially reasonable when you know that he put the knife away upon hearing that his apparent stalkers actually meant no harm. But in New Hampshire, Dustin Almon was convicted of a misdemeanor because the two fellow pedestrians were plainclothes police officers.

According to SeacoastOnline:

Officer Anthony Cattabriga, said he was walking behind Almon on Chapel Street on Nov. 8, 2008, when Almon turned around three times to look at him and a new officer he was training. It was dark and Almon was twenty feet away when he displayed a knife with a two-inch blade the third time he turned around, said Cattabriga.

"He pointed it down by his side," the liquor officer testified, while demonstrating with Almon's seized pocket knife.

When he responded by yelling "police," Almon folded the knife, clipped it to his belt and complied with all subsequent police orders, Cattabriga testified.

The two state liquor enforcement officers were "in plain clothes without any indicators that they were members of law enforcement." They both carried concealed handguns and Tasers.

So neither Almon nor anybody else who might have happened along had any easy way to distinguish these two from the sort of common criminals who frequent dark, late-night streets. And Alston quickly dropped his challenge once the police did identify themselves.

It's hard to avoid the conclusion that Almon was charged -- first with that  catch-all offense, "disorderly conduct," and later with the harsher "criminal threatening with a dangerous weapon" -- because he caused these two well-armed officers to stain their pants. Despite his gun and Taser, Cattabriga insists, "I feared for my safety."

Perhaps concerned about appearing too solicitous of excitable law-enforcement officers, Judge Sawako Gardner insists that the officers' government-employed status isn't a factor -- Almon would have been sentenced to 30 days in jail (suspended pending a year of good behavior) and a $500 fine (half suspended) no matter who he confronted.

Really? But New Hampshire law explicitly allows for the use of actual force in self-defense -- deadly or non-deadly depending on the circumstances, "a degree of such force which he reasonably believes to be necessary for such purpose."

New Hampshire law also allows people to engage in otherwise illegal conduct if it's necessary to prevent a greater harm. The law states:

Conduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged.

So even if holding a knife by your side could, by any stretch of the imagination, be defined as "criminal threatening with a dangerous weapon," it's hard to see how doing so would not meet "ordinary standards of reasonableness" when you're alone, at night, and concerned that two people following you intend to mug and, maybe, kill you.

Dustin Almon's actions seem perfectly justifiable according to existing law, without having to reach further afield for moral justifications for deterring potential assailants. Judge Gardner would apparently strip the people of New Hampshire of rights they possess under current law rather than allow the occasional law enforcement officer to suffer from a moment of inconvenience.

email J.D.: civilliberties (at) tuccille.com