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Thursday, October 14, 2010
City Plans To Refile Charges
By Astrid Galvan
Journal Staff Writer
A city official said Albuquerque will refile a charge against a man arrested for feeding the homeless without a permit in Downtown Albuquerque after a judge dismissed the charge.
Michael Herrick, 41, was arrested Sept. 12 at the Fourth Street Mall after an encounter with Albuquerque police.
On Tuesday, a Metropolitan Court judge dismissed the charge. City public safety spokesman T.J. Wilham said the arresting officer filed the wrong charge, and the city will file a different charge soon.
In an e-mail to the Journal, Herrick said his constitutional rights were violated when he was arrested.
But the city maintains Herrick broke the law and put dozens of homeless people in danger by serving food without a permit. They say there was an instance in the past in which someone giving away food to the homeless sickened them.
"The biggest thing is you don't know how the food is prepared," Police Chief Ray Schultz said. "The last thing you want to do is serve food that is tainted."
According to a criminal complaint, Herrick was handing out eggs when Officer Leah Kelly and her partner approached him and asked to see his permit. Herrick told Kelly he wasn't going to answer any of her questions and initially refused to identify himself, according to the complaint.
Kelly told Herrick to stop handing out food because he didn't have a permit, but he refused, police said.
Herrick then started recording the interaction with his cell phone camera. That's when the situation turned for the worse.
Kelly told Herrick she was going to tag his phone into evidence. In a criminal complaint, she states Herrick was recording without her consent, which Herrick did not actually need as per APD policy.
"I pointed out that since I had not been charged with any crime, there was no case for collecting any evidence of any kind. ... By demanding the phone, Kelly at that point was attempting to coerce a law-abiding citizen into surrendering his cell phone to an officer for no legal reason," Herrick wrote.
Herrick then told the crowd of homeless people gathered around that the officer wasn't allowing him to feed them, which made them "very hostile and angry," according to the complaint.
Herrick was arrested and charged with a misdemeanor count each of inciting a riot; resisting, obstructing or refusing to obey an officer; and failing to have a required permit.
At an arraignment Tuesday, Herrick argued the permit charge does not apply to him because he wasn't selling food. Judge Judith K. Nakamura agreed and dropped the charge.
"Cases being dismissed like this because the wrong charge was cited is not uncommon, and frequently the District Attorney's Office or the judge will ask that another charge be filed. In this case, we will be refiling," Wilham said.
The statute Wilham said applies to Herrick's case states it is "unlawful for any person to operate a food service or food processing establishment within the city who does not possess a valid permit."
"The charges are all nonsense. The real issue is that someone in the city bureaucracy is instructing cops to hassle the homeless Downtown," Herrick said.