Sr. Partner: You know I never miss a BBLawg entry...
Jr.: I know it's a hypothetical exercise, but I was particularly interested in the part about the charges the protesters could have been facing... I'm not sure I agree with Attorney Bailey's assessment about reckless endangerment - there is no reckless endangerment for putting people generally at risk, only children. I don't see how it would apply.
Sr.: I think that's pretty short-sighted. Since children and toddlers often travel on highways, it’s conceivable that any highway protest that results in emergency stopping and actual or near rear-end collisions involving cars carrying children could result in reckless endangerment charges. I mean, if we are engaging in a hypothetical exercise, you have to remember that it's what the protesters could have been facing if things went badly.
Jr.: I respectfully stand by my logic regarding child endangerment. I don’t think it applies even if a child were to be injured. The statute requires a “substantial risk” that children could be “seriously injured.” Whether or not children are actually injured is irrelevant to the analysis. Thus the hypothetical regarding whether things “went badly” is off point. I disagree there’s a “substantial risk” of child injury on the facts of the I-93 scenario. Sure, kids might be in cars on the blocked road and that might create a “risk,” but I don’t think there’s a substantial one.
Sr.: If you have logic, it's flawed... Think about it, you just made my point, as well as my application, that much stronger. I thank you for that!
Jr.: Okay, you got me!
Sr.: For this exercise, you need to take your head out of the laws book and instead think like a state cop who is simply trying to make a "top charge" arrest, not necessarily with a charge that will stick, but with a charge that might serve as a deterrent; if not get someone's attention. Works every time.
Jr.: Fair point.
Sr.: Always try not only to think out of the box my friend, but also inside the heads of the competition. It's clear from his blogs that's how a former state and federal prosecutor like Brad Bailey approaches things as a defense attorney. Anyway, let me know what you think of the next BBLawg; you know I'll be reading...