KINDERHOOK — The actions of the two Rothermel Lane residents who allegedly waved a gun at Black Lives Matter protesters July 11 did not constitute menacing, state police said Wednesday.
Second-degree menacing is defined as when a person intentionally places or attempts to place another person in reasonable fear of physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a firearm, according to section 120.14 of the state Penal Code.
Based on the 10 depositions from witnesses and the available digital evidence, probable cause for an arrest was not met, said A.J. Hicks, public information officer for state Police Troop K, which investigated the incident. Probable cause exists when there is a reasonable basis for believing that a crime may have been committed, according to the Legal Information Institute at Cornell Law School.
State police took depositions from people present at the scene and willing to be interviewed by investigators, Hicks said. Police then reinterviewed everyone who provided a deposition to make sure nothing was missed, Hicks said.
The investigation remains open and state police will review all additional digital evidence that comes to light, Hicks said.
“Anyone who has not spoken is invited to speak to us,” Hicks said. “The investigation is not closed and even if it were closed, we would reopen it if new evidence becomes available.”
State police declined to name the two Rothermel Lane residents on the basis that no arrests were made.
Brandon Nelmes, an organizer of the Black Lives Matter march who was present at the incident, disagreed with the investigation’s conclusion and questioned why no charges were filed.
“They pulled a gun on a bunch of teenagers and it is not fair to them not to see justice done,” Nelmes said.
Nelmes said he was confused as to how police determined that the couple was not menacing protesters. He reached out to state police questioning the decision and received an email reply from Trooper Craig Morrison.
Morrison reiterated the finding that the gun was legally owned and that the video obtained by police did not reveal any violation of law, according to the emails.
Nelmes said he was dissatisfied with the response. He plans to give his own deposition this week, he said.
Kinderhook Town Supervisor Patsy Leader declined to comment on the incident other than saying she is confident state police conducted a “diligent” inquiry.
“I am sure law enforcement did their job,” Leader said.
The requirements for second-degree menacing are “very specific,” said Greg Lubow, a former Greene County public defender, who was not present at the time of the incident.
“The classic example is someone pulling back their shirt to show a gun in their waistband,” Lubow said. “Is that menacing? Probably not. There has to be reasonable fear of physical injury. If someone takes a gun out and points it, that could create reasonable fear.”
Menacing has multiple components, including a person’s intent and whether their actions are perceived as threatening to others, Lubow said. The intent to cause fear can be displayed with verbal statements or with actions.
“There are a lot of complicated scenarios, so it is tough to say exactly what counts as menacing,” Lubow added.
The level of proof needed for an arrest is different from the level of proof needed to convict someone for the crime, he said.
Police have the right to arrest someone for probable cause and then it is up to the court system to decide whether the menacing constituted a crime, Lubow said.
“There are a wide range of threats that would rise to the level of menacing when accompanied by the display of a firearm,” he said. “There are hundreds of examples in case law. The intent has to be to place a person in fear of physical injury that causes pain or disability.”
State police were called to the scene of the Kinderhook Black Lives Matter march July 11 after the two Rothermel Lane residents, armed with a handgun, began a verbal argument with marchers. The two Kinderhook residents were taken to the state police barracks for questioning following the July 11 incident, according to state police.
Village of Kinderhook Mayor James Dunham said he was not surprised the Black Lives Matter marchers elicited negative reactions, but added that he does not think the two Rothermel Lane residents represent the majority of people in the village.
Dunham was out of town when the incident occurred but he would have attended the march as a peacekeeper had he been able to do so, he said July 17.
The march through Kinderhook was attended by more than 40 people, including Hudson Mayor Kamal Johnson.
“Many people along the march route treated us well and showed their support, until this happened near the end,” Johnson said.
The marchers started in the Kinderhook Village Square and walked down Rothermel Lane, where they were met by the man and woman with the gun.
The couple came out yelling obscenities as the marchers passed, Johnson said.
“The husband yelled for his wife to get his gun and she came out waving the gun at the crowd,” he said.
The incident in Kinderhook echoes similar events nationwide.
A Missouri couple recently made national news for pointing a rifle and a pistol at Black Lives Matter protesters passing their home in a St. Louis gated community. The couple, Mark McCloskey and Patricia McCloskey, were charged with unlawful use of a weapon.
“It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest,” St. Louis Circuit Attorney Kimberly Gardner said in a statement following the arrests.