Patterico's Pontifications

11/27/2007

This Judge Meant It When He Said “Turn Off Your Cell Phones”

Filed under: Judiciary,Law — DRJ @ 4:26 pm

[Guest post by DRJ]

The New York Commission on Judicial Conduct has removed from the bench a Niagara Falls city judge who, during court in 2005, sent 46 people to jail because of a ringing cell phone:

“A sign in Niagara Falls’ city court warns that cell phones and pagers must be turned off. Folks there believe it. On Tuesday, a judge was bounced from the bench for jailing 46 people after none would own up to a cell phone that began ringing during his court session.

Judge Robert Restaino “snapped” and “engaged in what can only be described as two hours of inexplicable madness” during the March 2005 session, Raoul Felder, chairman of the state Commission on Judicial Conduct, wrote in the decision to remove the judge.

Restaino, who became a full-time judge in 2002 after serving part-time since 1996, was hearing domestic violence cases when a phone rang.

“Everyone is going to jail,” the judge said. “Every single person is gong to jail in this courtroom unless I get that instrument now. If anybody believes I’m kidding, ask some of the folks that have been here for a while. You are all going.”

When no one came forward, the judge ordered the group into custody and they were taken by police to the city jail, where they were searched and packed into crowded cells. Fourteen people who could not post bail were shackled and bused to the Niagara County Jail in Lockport, a 30-minute drive away.

Later in the afternoon, after being told reporters were calling, the judge ordered the defendants released. The judge told the state panel he was under stress in his personal life.”

Based on the judge’s quoted statement (“If anybody believes I’m kidding, ask some of the folks that have been here for a while”) and the next article, this judge may have *snapped* more than once. This article about a 2006 2005 incident in which the same judge jailed five people over a watch alarm. The judge was sued but successfully claimed judicial immunity:

“The instant case stems from allegations by the plaintiffs, Mark E. Glavin, Joseph R. McCarthy, Marcellus Overton, Martha R. Seaberry and Dedrick G. Williams, against the defendant, Niagara Falls City Court Judge Robert M. Restaino. Each of the plaintiffs were charged with various offenses and had to appear before Judge Restaino in city court on March 11, 2005.

During the court proceeding a wristwatch alarm sounded several times. The judge believed it was a ringing cell phone and asked everyone in the courtroom, including the plaintiffs, about the source of the noise.

As each plaintiff appeared individually before the judge, he assessed new bail requirements for each of them, based on his conclusion that they failed to cooperate in his investigation as to the source of the noise. Each of the plaintiffs were subsequently taken into custody and placed in the lockup for a minimum of one and one-half hours.

The Judicial Commission had no choice but it took at least two years (maybe more) to put a stop to his conduct. This story illustrates how important it is to select good judges, if only because it’s hard to get them off the bench.

I don’t know if New York has elected or appointed judges. While the process of electing judges has many drawbacks, I think judicial elections work better at the local level. It’s much harder to get away with this kind of behavior when it happens to you or your neighbors and is reported in the local newspaper.

— DRJ

17 Responses to “This Judge Meant It When He Said “Turn Off Your Cell Phones””

  1. Both incidents occurred in March 2005.

    It’s scary when officials who have been entrusted with power abuse that trust.

    aunursa (1b5bad)

  2. Thanks for noting the correct year, aunursa. I’ve changed it above.

    DRJ (a6fcd2)

  3. The last time I did Jury Duty we were warned the same thing by the judge, that anyone who had a cellphone ring would be spending the night in jail.

    So I can’t say that it comes as a surprise, although jailing them all was probably over the top. He should have let go everyone who didn’t actually have a cell phone on them.

    Skip (c69414)

  4. Judges are human, too. And sitting for eight or more hours a day can do horrible things to a man’s sitting area resulting in an equally horrible temper.

    BTW: Under Illinois law, this judge would have been held liable. There is case law on it. Judicial privilege (not Fourteenth Amendment judicial immunity) in Illinois does not extend to conduct which is patently illegal and our judges are presumed to know the law.

    nk (09a321)

  5. Heh – So much for judicial temperament.

    Gbear (5a473d)

  6. Skip,

    So it would have been okay for him to jail, say, twenty people for the crime of carrying a cell phone in court, even if nineteen of them had it turned off?

    aunursa (090908)

  7. The judge should be arrested and prosecuted for criminal confinement (or whatever the equivalent is in NY).

    This is an outrage. An outrage. Government officials need to remember that we are a free people, and free people are not to be abused in such a tyrannical manner. What if someone decided that they just weren’t going to be carted off to jail. The confinement was patently illegal. Patently. So what if someone decided to resist? Should we be allowed to resist, with deadly force even, such a blatant violation of the rights of free people?

    And what of the judge’s immunity from prosecution? Should these people have to live with the indignity of this judge arming himself with the power of the state to confine them? Absolutely not. The social contract here has been broken, and I, for one, would acquit if some of those arrested and carted off to jail decided to extract some personal revenge.

    Law (62ca0c)

  8. Judge Queeg

    corwin (d08184)

  9. at some point, a citizen’s duty of deference toward properly constituted authority attenuates to where his right of self-defense becomes stronger. you know the thomas jefferson line tree of liberty/blood/tyrants/patriots. when the law protects the tyrant under these circumstances, then the law is already broken before you got there.

    nk, what is fourteenth amendment judicial immunity? i’m aware of the privileges and immunities clause, extending to citizens of a state the privileges and immunities of a citizen of the united states, but i’ve never heard that 14 extended any greater protection to judges.

    assistant devil's advocate (a52346)

  10. I think that the duty to submit here attenuated to nothing. These people, selected for incarceration, in my view, would have had every right to resist the arrest. The transgression was that serious. We tolerate mistakes; we should have no tolerance for such egregious abuses. We are a free people. And petty governmental officials need to understand that basic fact at all times.

    It would have been very interesting if one of the people resisted forcefully.

    Law (62ca0c)

  11. Yeah, when they got their ass beat or their brains splattered, I’m sure they would have found it fascinating — in an intellectual sense.

    Christoph (92b8f7)

  12. ada #9,

    Bad syntax on my part. I meant the governmental immunity, absolute immunity in the case of judicial officers, which is a defense in an action against state officials brought under the federal constitution. See the second article DRJ linked.

    nk (09a321)

  13. True enough, Christoph, but my point was more to the ability to prosecute. People in this situation should have the right to resist with deadly force.

    Law (62ca0c)

  14. It seems that this could have been defused without resort to violent resistance.

    I left this comment at Ace’s also, but it surprises me that not a single person in that courtroom had the balls to tell Judge Queeg (good one, Corwin) that while they understood his frustration, he should think really hard about whether he really wanted to do this, because if he went through with it, the first phone call they made upon their release — before they even called a taxi home — would be to the Judicial Council, and the next call would be to the local newspaper.

    Alex (2edb43)

  15. Perhaps, but the bottom line is that such a comment likely would have been taken as a threat to the judge. Personally, I think that as a free people we have the absolute right to resist this kind of petty tyranny with any force we choose. That judge’s life is worth less than the indignity any one of those folks had to suffer. You can resist a kidnapping with deadly force–it should be acceptable here. That may sound harsh, but the bottom line is that this judge is no different from a kidnapper, and the kidnappees should be entitled to treat him as such.

    And if on a jury, I would acquit any one of those 46 if they chose to extract revenge on this judge. He wrongfully used force against them, and is not paying for it at all. They have the moral right to get their own justice.

    Law (62ca0c)

  16. What about the bailiffs and police who forcibly kidnapped these people, in obedience to an an order which they must have known was illegal? Surely they’re individually liable; and they haven’t got judicial immunity – they’ve only got qualified immunity, which doesn’t apply when they knew they were breaking the law.

    Milhouse (027917)

  17. marcellus should have stayed his ass in jail

    teara (81b8c1)


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