Finished a Criminal Impersonation in the Second Degree jury trial today. Which is a weird crime. Statute indicates “[a] person is guilty…if the person (a)(i) Claims to be a law enforcement officer or creates the impression that he or she is a law enforcement officer; and (ii)…does an act with intent to convey the impression that he or she is acting in an official capacity and a reasonable person would believe the person is a law enforcement officer.” Taken literally, it appears to criminalize being a cop in that there is no language indicating the claim is false.
In my proposed instructions, I added that falsity as an element, relying on both the name of the crime involving “impersonation” and the absurdity of a more literal interpretation. Even when so far as to indicate to the Court that if it accepted the State’s proposed instruction (which seemed to be a cut-and-paste job by the prosecutor’s staff…the deputy prosecuting attorney actually conceded my version is almost certainly more consistent with legislative intent), she’d have to find probable cause to arrest the lead investigator (who had just finished testifying, and who I got to admit every element of the crime under the State’s proposed instruction). Court gave the State’s proposed instruction anyway.
Unfortunately from the perspective of having a great appeal issue–but fortunately for my client–the jury came back not guilty. But made me wonder about filing a “citizen complaint” against a law enforcement officer before the same judge in the future. Might be fun.