Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

WALTHAM MAN IS ARRESTED FOR ASSAULT AND BATTERY ON AN OFFICER AT BOSTON’S PARK STREET STATION

Sometimes, in the criminal justice system, timing is everything.

Waltham’s Michael Cammisaro, 57, hereinafter, the “Defendant”) is now contemplating that lesson with perhaps a few bruises to keep him company.

You see, at around 11:00 this morning, the Defendant decided to take the ‘T”. He went to the Park Street MBTA Station. What happened next is actually caught on video, However, objective truth is not for you, we have the law enforcement description of what happened.

According to Transit Officer Luis Feliciano, he too was entering the “T”. He tapped his “CharlieCard” to enter the fare gate and suddenly had rather close company. The Defendant was suddenly following closely behind him.

The officer says that he was not sure whether the Defendant was trying to evade the fare or pickpocket him. He says that he turned around to “inquire” but was suddenly shoved by the Defendant.

The Defendant is said to have then yelled, “Move, move, move!” as he tried to push him through the gate and struck the officer in the face.

A brief struggle ensured which ended, rather shortly, with the Defendant being pinned to the floor and handcuffed.

The Defendant is scheduled to make his debut at the Boston Municipal Court tomorrow.

Attorney Sam’s Take On MBTA Crimes

I watched the video briefly and, while I am sure law enforcement has a better copy, some of what the officer says is clearly true and some is not quite that clear. However, I am not here to play juror.

I will, however, give you a few tips about this type of situation.

First of all, let’s assume the Defendant was simply trying to evade paying the fare (which sounds like the truth given the officer’s description). In that case, the officer was lawfully in the position of seeing the Defendant commit a crime.

In fact, it was one of the crimes that Transit officers are in and around the subway to stop.

Therefore, the actions taken to arrest the Defendant were clearly lawful.

“But, Sam, I saw the video. The officer really took the Defendant down rather violently.”

Well, he is actually allowed to do that. Particularly if the Defendant tried to resist or get away which is likely.

You see, despite all the drama, it is the same old story. An officer stops you…you stop. Otherwise you are going to be facing heavier charges.

Now, the police say that the Defendant is being charged with assault and battery. That is a more interesting issue. If you look at the video it seem rather clear who the aggressor is in terms of the struggle. It appears to be the officer, although it is worth noting that the officer says that the Defendant struck him first.

The fact is, it really does not matter.

The mere shoving up against the officer by the Defendant, regardless of the reason, is an assault and battery. As we have discussed before, the touching does not have to be especially violent in order to qualify for the charge. It simply has to be unwarranted and offensive.

In fact, the Defendant may well find himself charged with the felony of assault and battery on a police officer depending on whether it was clear to the Defendant he was sparing with an officer.

It seems clear that the officer will testify to, at least, that. It seems equally clear that the video will be consistent with the testimony.

By the way, you may have noticed that the Defendant is not being charged with attempted robbery. I guess the officer finally decided what he was actually doing.

For the original story upon which this blog was based, please go to http://www.boston.com/metrodesk/2012/10/31/transit-police-officer-arrests-man-who-tried-slip-behind-him-through-fare-gate/c7dLYl4zzkz6PLXeAecrbM/story.html

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