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Appeal Decision Reverses Order of Protection for Hancock Protester

This is a huge victory for the protesters at Hancock, and for protesters across the state, where Orders of Protection are being used to restrain protesters from exercising their first amendment rights.

On February 26, Cornell Law Professor Steve Shiffrin argued an Appeal based on Habeas Corpus before Acting NYS Supreme Court Justice John Brunetti in Syracuse. He was appealing the Order of Protection issued to Dan Findlay, who was arrested on April 28 of 2013 protesting outside the gate of Hancock Air National Guard Base. Like all the protesters arrested at Hancock since October of 2012, Findlay had been issued a restraining order, an Order of Protection requested by one of the Base Commanders. In mid March, Judge Brunetti issued his decision, vacating Findlay’s Order of Protection. This is a huge victory for the protesters at Hancock, and for protesters across the state, where Orders of Protection are being used to restrain protesters from exercising their first amendment rights.

Initially the Judge stated that he didn’t like the way the Order of Protection was issued, but wasn’t sure if the Appellate Court had Jurisdiction to speak to the issue because the rules are different for a situation where a judge Issues an Order than those governing a Verdict or Sentence.

But, on March 19, Judge Brunetti came back with a landmark decision, Reversing the Order on the basis of Habeas Corpus Law, the oldest common law in the land.

The Judge found that the Order of Protection was flawed in the following ways:

  • The Stay Away order was vague – it didn’t say how far away to stay
  • The addresses of the places to be stayed away from were not provided
  • The Named Beneficiary was neither a victim nor a witness to the alleged offense
  • Good Cause was not established
  • The statute allowing a temporary order of protection as a condition of pretrial release is flawed in so far as there is no legal definition of ‘pretrial release‘

However, he said that he would not be able to reverse the order solely on the basis of these flaws. A previous Article 78 Appeal had been rejected on the basis that the judge was within his ‘discretion’. In his decision, Judge Brunetti, after identifying the flaws in the Order, explains that in the case of a Temporary Order of Protection, the Order is not associated with a verdict and sentence and therefore the basis does not exist for review by the higher court except insofar as to note that the issuing judge was within his jurisdiction to issue it. That would explain the earlier Appeal decision.

However, he went on to note his concern that this leaves the petitioner with no option to have a judicial review of this (faulty) order. The only recourse for the petitioner is to plead his case in the same court, or to the County Court (responsible for bail relief).

“The problem for the petitioner here,” he notes, “is that he has done so, not only in the issuing court, but also in County Court, and, if this court does not reach the merits, he is faced with having to violate the order to seek judicial review of its validity.”

And further:

Consider the anomaly: a defendant in a criminal case who is convicted of a crime has the statutory right to appeal the validity of an order of protection issued at sentence, while an un-convicted person, presumed innocent, has no express statutory remedy to challenge a temporary order.

Judge Brunetti then makes the case that because the Order constrains the recipient’s freedom of motion, he has a right to a Habeas Corpus Review.

“This case, he says, presents a prime example of a case where adherence to the “rigidities of traditional practice and procedure would be contrary to the spirit and purposes of the writ” and where “departure from traditional orderly proceedings, such as appeal …… [is] dictated by reason of practicality and necessity,”

In the Conclusion, his Decision Reversed the faulty Order. You can read his fulldecision here.

More than 50 Hancock Defendants have been restrained by similar Temporary Orders of Protection after they were arrested for peaceful protests at the Base. This decision should, in effect, reverse all of these Orders. However, ADA MacNamara has said that he plans toappeal this decision so it is likely we will have to wait. Meanwhile, there are now around 15-20 people with two year Permanent Orders of Protection in exactly the same format. Given this decision it would appear that these people have a more direct course of appeal.

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