Go Kiko go

Not in the least. Brady simply requested a two-week extension of time to file a brief supporting his request for the full court to rehear his case, which is routine and almost certainly would not be denied, absent some indication that he has been delinquent in litigating his case. Ultimately, he has to persuade the full Second Circuit to rehear his case, which is something that court rarely does and, more importantly, doesn't like to do. When a full appellate court rehears a decision that has already been decided by a panel of the court's judges, it represents a slap in the face to the judges on the panel who originally heard and decided the case, because by doing so, the full slate of judges on the court are expressing their belief that their colleagues may have screwed up. All the appellate courts--but especially the Second Circuit--feel strongly that their panel decisions should not be disturbed by the full court absent extraordinary circumstances. Added to that is the fact that courts don't particularly like to wade into cases that attract a lot of mainstream attention. Even if a number of the judges on the Second Circuit have some concerns about the reasoning of the panel decision, they may be particularly reluctant to afford this case the rare distinction of being reheard by the full court, simply to avoid giving off the perception that the court is beholden to Brady's star power.

Almost certainly not. The Second Circuit rarely, and I mean rarely, agrees to re-hear a panel decision en banc. How rarely? Over the ten-year period from 2000-2010, the court issued somewhere between 5 and 8 en banc decisions. That's out of nearly 28,000 cases heard by the court. For a rate of around 0.03%. https://www.federalbarcouncil.org/vg/custom/uploads/pdfs/En_Banc_Report.pdf

You're right

Yes. If the DA declines to pursue aggravated assault charges (or any other charges), the officers would essentially have to show that the DA's decision not to prosecute was an abuse of the DA's prosecutorial discretion , which, under these circumstances, I doubt they could do. By "organization," are you referring to the FOP? If the officers were to pursue private criminal complaints, presumably the officers would be the nominal complainants, not the FOP.

The way the process is works is that the private individual drafts the complaint, but then the complaint has to be submitted "to an attorney for the Commonwealth" for review, who then gets to decide whether or not to approve the complaint. So in other words, you can't go straight to a court--you have get the approval of a government attorney before you get to proceed. Now it's not clear from the rule whether you have to ask a particular government attorney; it would seem that, in theory, if you wanted to bypass the City's DA office, you could present the complaint to the state attorney general's office instead. But, the state AG could simply refer the matter back to the City DA's office for review. If the government attorney who reviews the complaint rejects it, you do get the ability to "appeal" that decision to a state trial court, which then takes a look at the complaint to determine whether the government attorney had a valid reason for rejecting the complaint. So, even if the local DA turns down their private complaint, they would then have the opportunity to challenge that decision before a state trial judge. But, as I mentioned in my other post, the courts tend to give pretty substantial deference to the government attorney's view on whether or not to approve the complaint, so if your private complaint gets turned down, it's a bit of a long shot to proceed.

It's essentially the same technique that was tossed around in connection with the shooting of Tamir Rice in Ohio when it appeared that local prosecutors were inclined to not pursue charges against the officer who shot him. Some states allow private individuals to file a criminal complaint (instead of the local prosecutors). But, at least in PA, the complaint must nonetheless be submitted to the local prosecutors (or other government attorney) for review, who get to decide whether or not to approve the complaint. If they reject it, you do have the ability to petition a state trial court to review that decision, but the courts give a fair amount of deference to the prosecutors' decisions. The procedures are set forth in Rules 504 and 506 of PA's rules of criminal procedure. Here's what one looks like: http://www.pacourts.us/assets/files/setting-911/file-78.pdf There's actually a rather interesting bit of history behind the procedure if you're interested:

I was quoting from an appellate court opinion, so they were referring to her as "Appellant." I swapped those to "defendant" just to make it more accessible.

Unfortunately, the appellate court opinion doesn't say (it doesn't even mention whether any other individuals were charged with crimes), and state trial court opinions aren't always the easiest things to locate electronically. In my mind, that does bolster the conclusion that the person in that case had an intent to cause serious bodily injury, but interestingly, both the appellate court and the trial court paid little attention to it. Take a look at the explanation the trial court provided, which doesn't even mention that factor: Here, evidence was sufficient to show that Defendant attempted to cause serious bodily injury. Defendant and five members of her entourage accosted Mr. Horton and left him battered and bruised. Mr. Horton sustained injuries to his head, back, ribs, and legs and missed several weeks of work. Although this Court did not find Mr. Horton to have sustained serious bodily injury, the nature of the attack, in which [one-half] dozen individuals repeatedly struck a defenseless man, showed a complete disregard for Mr. Horton's safety and well being, thus it was not for lack of trying on the part of the Defendant and her gang [that Mr. Horton did not sustain serious bodily injury]. Now, in that case, the defendant was also charged with a separate offense of conspiracy, which was based on the fact that the person left to go find her "gang" prior to the assault. But with respect to just the aggravated assault charge, both the trial court and the appellate court focused on the circumstances of the attack itself (the number of people, the fact that the victim was on the floor, in a vulnerable position, the fact that the "gang" kicked and punched his head and body), rather than her recruitment of the "gang" ahead of time. In other words, I think a conviction for aggravated assault would have still be upheld under these circumstances even absent the premeditation, because the circumstances surrounding the fight itself are sufficient to establish intent to cause serious bodily harm. It's worth noting in connection with this example that, as I mentioned in a previous post, the Pennsylvania courts look to a number of factors to determine whether a person had the intent to cause serious bodily injury, such as the relative size of the perpetrator and the victim, whether the attack was voluntarily discontinued, and any statements made by the perpetrator. Additionally, they consider whether "the victim participated in the fight, or whether the attack was a surprise assault on an unsuspecting victim." That's a key difference between the case above and Shady's case, and may weigh in favor of a finding that Shady and co. didn't intend to cause serious bodily injury.

Probably. In that scenario, you probably don't even need to resort to complicity liability to establish guilt--you can probably establish that each one of them, independently, is liable for aggravated assault. If you recall, you can be punished for aggravated assault just for attempting to cause serious bodily harm. If four people are pummeling a single person on the ground, it would be relatively easy for a jury to infer that each one of the group had the intent to inflict serious bodily harm, because that's usually what results when four people attack a single person. It doesn't matter if the officers didn't actually suffer any serious bodily injury, because, remember, you can be punished for just for attempting it. And since you don't have to prove that the victim actually suffered serious bodily injury, it also doesn't matter which person in the group actually caused the harm as long as you can establish that each person intended to cause serious bodily harm. The key is that, under the circumstances you've described, a jury could infer that each person in the group attempted to cause serious bodily harm. That's enough for liability. Here's a great example from a Pennsylvania case (not to mention an amusing set of facts): At approximately 3:00 p.m. on June 19, 2009, [the defendant] and Gail Horton and [Horton's] four school-aged grandchildren were in the principal's office at Harrity Elementary School in Philadelphia. [The defendant and Horton] became involved in an argument about a physical altercation that had occurred between [the defendant's] daughter and Ms. Horton's granddaughter. During the quarrel, Anthony Horton, Ms. Horton's son, arrived at the office. [The defendant] asked Mr. Horton in a profane manner who he was. Mr. Horton replied that he was not anybody and tried to diffuse the situation. Unmollified, [the defendant] escalated the confrontation by shouting and hurling obscenities at Mr. Horton and his mother. Mr. Horton left the office to telephone the police and then returned to protect his mother and the children. [When he returned, the defendant] was no longer there. Approximately ten minutes later, [the defendant] returned to the principal's office with a large group, which was described as consisting of between six to twelve individuals. One of [the defendant's] companions was Abdul Ali, who was ten inches taller and fifty-five pounds heavier than Mr. Horton. The group immediately began to assault Mr. Horton. While school officials attempted to prevent the victim's beating, they were unsuccessful. [The defendant] and her cohorts pushed the other adults and children to the floor and continued to batter Mr. Horton. They tore his clothes, and, after he fell to the floor, began to punch and kick him all over the face and body. The assault lasted about one minute. By the time police arrived and transported Mr. Horton to the hospital, the criminals had fled. Mr. Horton sustained bruising of his ribs, face, back and legs, cuts on his eyelid and lip, and swelling, lumps and cuts on his head. He was x-rayed and administered prescription pain medication. Due to the injuries incurred in the attack, the victim missed two weeks of work and was unable to continue to engage in his past-time activity of semi-professional football. Mr. Horton continued to experience pain from his injuries by the time of trial, which transpired two years after the episode. Now, interestingly, the trial court found that these injuries did not constitute "serious bodily injuries." As a result, the defendant argued two things: (1) she couldn't be liable for aggravated assault, because the victim didn't sustain serious bodily injury, and (2) she didn't intend for the victim to suffer serious bodily injury. This is a lot like how you could imagine the Shady scenario unfolding. Group beatdown, police officers get injured but not injured enough to constitute "serious bodily injury", and you have Shady arguing that he didn't intend for any of the police officers to suffer serious bodily injury. Doesn't matter, said the Pennsylvania appellate court, because under these circumstances, a jury could infer that each member of the gang intended to cause serious bodily harm, even though no serious bodily harm resulted and even though it wasn't clear which of the attackers was "leading the charge," so to speak: [The defendant] and her posse launched a surprise assault on [the victim]. The cohorts pushed aside people who attempted to block the attack. Then, while the victim lay prone, the group repeatedly punched and kicked Mr. Horton about the head and body. As the trial court observed: "Here, evidence was sufficient to show that Defendant attempted to cause serious bodily injury. Defendant and five members of her entourage accosted Mr. Horton and left him battered and bruised. Mr. Horton sustained injuries to his head, back, ribs, and legs and missed several weeks of work. Although this Court did not find Mr. Horton to have sustained serious bodily injury, the nature of the attack, in which [one-half] dozen individuals repeatedly struck a defenseless man, showed a complete disregard for Mr. Horton's safety and well being, thus it was not for lack of trying on the part of the Defendant and her gang [that Mr. Horton did not sustain serious bodily injury]." We concur that the circumstances surrounding the attack demonstrated that Appellant intended to cause serious bodily injury. The takeaway is that when multiple individuals punch and kick a person lying on the floor in a defenseless position, you can infer that each individual intended to cause serious bodily harm. That's all you need to convict. Of course, we don't know if that's what happened with Shady and co. It's a pretty easy case if there's clear evidence that Shady and his group were engaged in a group beatdown of one of the officers, but if not, it's a lot trickier, and that's where the considerations I mentioned in my earlier post come into play.

It's a bit more complicated than JohnC's suggestion, and a bit simpler than Hopeful's. But let me preface this, again, with the fact that criminal law is not my speciality. Taking JohnC's first, you need a little more than just being part of "the group" for criminal liability to attach. Generally speaking, to be punished for the acts of another, you must both (1) assist in some way, which could include just mere encouragement, and (2) have the intent to assist the perpetrator in engaging in the criminal conduct. Put another way, you generally need to be acting with the purpose of promoting or facilitating the commission of the offense. [Your example about a "team of criminals enter[ing] an establishment to rob it" where "one member of the team shoots the person behind the counter" isn't quite applicable here, because that involves the felony murder doctrine, which imposes--in states that still adhere to it--strict liability for any death that results during the commission of a felony] We can spin out a few hypotheticals. If Shady and co. were throwing some punches (the assumption being that that's not, alone, aggravated assault), and then one guy starts stomping on an officer on the ground and Shady and co. encourage it or egg him on (or keep attacking the officer themselves), that's probably sufficient evidence to find that each of them intended to promote an aggravated assault and encouraged it, even though only one of them did the stomping. But, if Shady and co. were throwing some punches, and then one guy decides to go rogue, grab a champagne bottle, and crack it over one of the officer's heads to the surprise of the rest of them, it would be more difficult to show that Shady had the purpose of promoting aggravated assault. Or, if the group had thrown a few punches and then started to back off, and one of the group then re-engaged an starting kicking at an officer on the ground, again, it would be more difficult to establish that each member of the group had the intent to promote an aggravated assault. Now, the reason I said it's a little simpler than Hopeful's suggestion is that you don't need to show premeditation--that is, you don't need to show that Shady and co. had come to the bar with any common purpose to commit aggravated assault. To punish someone for complicity, you just need to show that, at some time, they had the intent to promote the commission of the offense, even if they only formed that intent in the heat of the moment. These are all just general principles, and I haven't bothered to see if Pennsylvania law has any quirks on this subject.

Just for the avoidance of doubt, the court in that case found that all of those injuries, together, constituted serious bodily harm (i.e., one person suffered from "facial fractures, multiple cracked ribs, a brain hemorrhage, and a punctured lung" following an attack). It's not clear if just cracked ribs, alone, would be enough, since it's hard to say that a blow that causes a rib fracture is necessarily one that "creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." But, cracked ribs + an orbital fracture might be enough. Here's another example of serious bodily injury that might be closer to home: After they were about three hundred feet away from the bar, Mr. Judge turned around and saw [the defendant] and another male exit Brownie's and proceed to follow them down the alleyway. [The defendant] caught up to the men and asked the complainant “Are you a tough guy?” When Mr. Frenz turned around, [the defendant], without provocation, delivered a closed fist blow to the victim's left eye. Mr. Frenz fell to the ground unconscious[.] When Mr. Frenz's head struck the concrete he sustained a scalp laceration which began to bleed profusely. Mr. Frenz tried to get up, lost his balance and fell back down. An ambulance subsequently arrived and he was transported to Thomas Jefferson University Hospital. Doctors determined that he suffered an orbital blowout, frontal rim and sinus fractures. During his five day hospitalization, surgery was performed to attach a plate on the bottom eyelid. Mr. Frenz also received eight staples to close the wound to the back of his head. At the time of trial, some six (6) months later, Mr. Frenz still suffered from straight upward double vision gaze. That still sounds more serious than the reports we have here, but we just can't say with any level of certainty without knowing the precise nature of the injuries.

WEO's two examples probably are, but it's a close call. Pennsylvania courts have found the following to be "serious bodily injuries": - Skull fractures and a concussion with memory loss - Facial fractures, multiple cracked ribs, a brain hemorrhage, and a punctured lung But these are not: - Broken nose, two black eyes, and facial lacerations - A person who, while lying prone on the floor, was "punched and kicked all over the face and body," resulting in "bruising of his ribs, face, back and legs, cuts on his eyelid and lip, and swelling, lumps and cuts on his head" - Striking someone's head on a door, but the person remained conscious - "bump on the head" - Broken nose and minor facial lacerations Remember, a "serious bodily injury" is only one that "creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

The achilles heel of lawyers everywhere.

Well, it's a little more complicated than that. So if we put the whole police officer thing to the side (which I think we must, because they weren't on duty), the other way to get from simple assault to aggravated assault is the provision you mentioned. It reads in full: "A person is guilty of aggravated assault if he . . . attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." (18 Pa. Cons. Stat. § 2702(a)(1)). We have to unpack that a bit. To be guilty, you have to either (a) attempt (intend) to cause serious bodily injury and fail, or (b) actually cause serious bodily injury, either (i) intentionally, (ii) knowingly, or (iii) recklessly under circumstances manifesting "extreme indifference to the value of human life." The first important takeway is that the requirement of "extreme indifference to the value of human life" only applies if you can't prove that the person was acting intentionally (in other words, that phrase only modifies "recklessly", not the entire sentence). You can think of them as alternative ways to prove someone guilty. Either you prove that they intended to cause serious bodily injury (and either did so or attempted and failed), or, if you can't prove that they intended to cause serious bodily injury, you can instead prove that they caused serious bodily harm while acting with extreme difference to the value of human life. So let's start with the first possibility. Could they prove that Shady and co. intended to cause serious bodily injury? "Serious bodily injury" means "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." (18 Pa. Cons. Stat. Ann. § 2301). One Pennsylvania court has said, "repeated blows to a portion of the body as vital as the head exhibited an intent to inflict serious bodily injury." By contrast, the Pennsylvania Supreme Court has said that a single punch to the head, without more, is not sufficient.The court said that some factors to consider include whether the perpetrator "was disproportionately larger or stronger than the victim," or if the perpetrator indicated an intent to inflict further injury upon the victim after the initial attack. From what we know, it seems within the realm of possibility that they could establish that Shady and co. intended to inflict serious bodily harm. It's hard to say for sure, because we don't know exactly how this "fight" transpired. Things get trickier if they can't prove that they intended to cause serious bodily injury. Then, we have to turn to option (b) above, which would require them to show two things (1) they actually caused serious bodily injury, and (2) they were acting with extreme indifference to the value of human life. From the injuries that have been reported, it sounds a little questionable that any of the police officers sustained "serious bodily injuries." Now, they had initially mentioned a skull fracture, which would probably be enough, but if that isn't true, the other injuries they mentioned (a broken nose, broken ribs, a sprained thumb, a laceration to the eye, a cut over the eye) might not meet the definition of "serious bodily injury." Remember, under the statute, a serious bodily injury is one that "creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." But, just to keep this hypothetical moving, let's assume that at least one of the officers suffered a serious bodily injury. Now, we have to ask question two: did Shady and co. act with "extreme indifference to the value of human life"? Perhaps. The phrase "extreme indifference to the value of human life" is a legal term of art with a well settled meaning. The Pennsylvania Supreme Court has said, to meet this definition, the conduct must "be such that life threatening injury is essentially certain to occur." In Pennsylvania, here are some things that have been found to show extreme indifference to the value of human life: Now, by contrast, here are some things that are not enough: It's somewhat safe to say that unless Shady and co. were essentially stomping on the officers' heads as they lay on the ground, they probably didn't act with extreme indifference to the value of human life. To recap, to prove him guilty of aggravated assault, they'll either have to establish that he intended to cause serious bodily harm, or they'll have to establish both that an officer suffered serious bodily harm and that he was acting with extreme indifference to the value of human life.

The way it appears to work in Pennsylvania (me not being an expert in PA criminal law), is that harming a police officer is going to move your offense from "simple assault" to "aggravated assault." But, there's a catch. Check out the provisions: Simple assault occurs when a person "causes bodily injury to another." (18 Pa. Cons. Stat. § 2701) Aggravated assault occurs when a person causes bodily injury to, among other people, police officers "while in the performance of duty." (18 Pa. Cons. Stat. § 2702(a)(3)). Given that it's unlikely that hanging out at "Recess" and ordering bottles of champagne was part of the officers' duties, Shady and co. wouldn't be facing the potentially higher punishment that would accompany harming an on-duty police officer.