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May 1, 2017 - 11:15am

Law and Order: Bank Street resident accused of using camera to peep on woman

posted by Howard B. Owens in crime, batavia, news, Alabama, Oakfield, Le Roy, Stafford.

Gannon D. McNall, 20, of Bank Street, Batavia, is charged with unlawful surveillance, 2nd. McNall is accused of setting up a camera to record a female acquaintance for the purpose of sexual arousal and/or gratification. He was jailed on $5,000 bail. He was also arrested on a warrant for alleged failure to appear on an unrelated incident.

Brandon James Nugent, 23, of Gilbert Street, Le Roy, is charged with DWI, driving with a BAC of .08 or greater, unlawful possession of marijuana, moving from lane unsafely and failure to keep right. Nugent was allegedly found asleep at the wheel of his running vehicle while it was parked on the shoulder of Sweetland Road, Stafford, at 6:28 a.m. Saturday, by Deputy Eric Meyer. When the deputy approached and woke Nugent, he reportedly put the vehicle in gear, drove east on Sweetland in the wrong lane and drove the vehicle off the north shoulder of the roadway. Deputy Meyer completed a field sobriety test and allegedly found Nugent in possession of marijuana during the investigation.

A 16-year-old resident of Trumbull Parkway, Batavia, is charged with petit larceny. The youth is accused of stealing money from a safe inside a residence where he was living at the time.

A 16-year-old resident of Wood Street, Batavia, is charged with harassment, 2nd. The youth allegedly threw scissors at another person striking the person in the back.

Joseph Marsceill, 32, of Lewis Place, Batavia, was arrested on a warrant. Marsceill was located during a home check by Probation and taken into custody by Batavia PD.

Jolynn M. Gorski, 37, of West Main Street Road, was arrested on a warrant for alleged failure to comply with court-ordered program or service. Gorski was jailed on $1,000 bail.

Priscilla M. Donahue, 38, of Liberty Street, Batavia, was arrested on a pair of warrants. Donahue was arrested by Batavia PD after being located in City Court on an unrelated matter. She was released under supervision of Genesee Justice.

Jacob L. Hernandez, 22, of Pearl Street, Batavia, was arrested on a warrant for alleged failure to appear. Hernandez turned himself in.

Elizabeth A. Hicks, 34, of Jackson Street, Batavia, is charged with petit larceny. Hicks is accused of shoplifting at Tops on April 21. She was jailed on $1,500 bail.

Lori A. Keech, 46, of Main Road, Stafford, is charged with petit larceny. Keech is accused of shoplifting from Tops on April 12.

Kevin J. Weber, 46, of Columbia Avenue, Batavia, is charged with harassment, 2nd, criminal obstruction of breathing, disorderly conduct, and resisting arrest. Weber was arrested following a report of an incident at 12:26 a.m. April 23 on Columbia Avenue, Batavia. He was jailed on $2,500 bail.

Kiha Samuel McNear, 19, of Walnut Street, Batavia, is charged with riding a bicycle on a sidewalk, inadequate lights, no bell/signal device. McNear was stopped at 8:12 p.m. April 26 at 10 Ellicott St., by Officer Arick Perkins.

Dander J. Cramer, 18, of Route 46, Dansville, is charged with riding a bicycle on a sidewalk. He was stopped at 8:34 p.m. April 26 at 117 Jackson St., Batavia, by Officer Peter Flanagan.

Gregory M. Munroe II, 29, of Harvester Avenue, Batavia, is charged with driving with a suspended registration and aggravated unlicensed operation, 3rd. Munroe allegedly failed to appear in City Court on these charged.

Lisa M. Burke, 48, of Maple Avenue, Batavia, is charged with petit larceny. Burke is accused of shoplifting at Kwik Fill on Jackson Street.

Haley Marie Findley, 24, of Mt. Read Boulevard, Rochester, is charged with unlawful possession of marijuana. Findley was charged following a traffic stop at 8:40 p.m. Friday on Judge Road, Alabama, by Deputy Micheal Lute.

Jason William Whitehead, 19, of Batavia Oakfield Townline Road, Oakfield, is charged with unlawful possession of marijuana, unlicensed operator, moving from lane unsafely, expired inspection and failure to use signal. Whitehead was stopped at 11:43 a.m. Saturday on Pratt Road by Deputy Michael Lute.

Jason Crater
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Kiha Samuel McNear, 19, of Walnut Street, Batavia, is charged with riding a bicycle on a sidewalk, inadequate lights, no bell/signal device. McNear was stopped at 8:12 p.m., April 26, at 10 Ellicott Street, by Officer Arick Perkins.

-I knew riding a bicycle on the sidewalk is illegal unless you're a youngster, but bikes are required to be lighted and have a bell? I'm guessing this guy did something else to catch these charges.

Howard B. Owens
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I can't comment on this specific case, of course, but I've observed many times over the years where some charges come following a failed attitude check (a concept my law enforcement training officer taught me when I went through training). Being cooperative goes a long way in life.

alvin tufts
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Ignoring the law means they are neglecting their duties.

Jason Crater
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Or it means they are prioritizing their duties...

John Roach
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It just seems there was more to this than report gives us

alvin tufts
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That would be true if they had low instances of charging people with certain crimes. When the norm is to only charge some people when they irritate an officer, then that means they are choosing to ignore it on purpose.

Howard B. Owens
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Without officer discretion, you live in a police state. That's how dictatorships operate, not free and open societies.

Rich Richmond
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Good Job, Batavia Police, good job, and perhaps this will explain why there shouldn't be misplaced sympathy for the likes of Kiha Samuel McNear with this from the Police blotter in the Daily News on May 27, 2015.

Kiha Samuel McNear, 18, of Walnut Street was charged with harassment and endangering the welfare of a child for punching a person under 17 multiple times in the face. McNear was jailed in lieu of $1,000 bail.

Also, this link: https://jailalert.com/arrest-records/kiha-mcnear-2598827.html

alvin tufts
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That's not true at all. The time to dispute a charge is in court. Police are enforcers of the law. They are not judges. They are using these laws as punishment. Their job is to enforce. Leniency is at the discretion of a judge. If the speed limits were enforced with zero tolerance then people would speed less and the speed limits would be raised in a lot of areas to the current flow of traffic. The current flow of traffic is the speed society has determined to be safe including law enforcement. As it is now pretty blonds get off but sarcastic pricks get a ticket. Both broke the same law but only one sees a judge to answer for it. That is not true justice. Society has decide that this bicycle law is frivolous and worth ignoring. Why is it still a law then. There are plenty of laws that can resolve any issues that arise from people riding on the sidewalks. If they are reckless and cause injury or damage to property then the are just as liable as any person is when they hurt someone else or their property. We need less laws not more. This is why certain protections we are entitled to like probable cause have been erased. We are trapped in a circle a laws that they can choose to enforce on a whim. Suddenly they have probable cause at every turn.

alvin tufts
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How would laws being enforced as written suddenly change a democracy into a dictatorship and a police state? It wouldn't. It would seem oppressive at first because there is an expectation of leniency in the laws. The laws would quickly be changed to reflect the wishes of the voters.

Ed Hartgrove
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Howard. Funny you should mention officer discretion.

I wonder where it was during the following encounter:

http://www.google.com/url?sa=t&rct=j&q=el%20paso%20fbi&source=video&cd=1...

Howard B. Owens
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That video could be called when jerks meet. The FBI officer who refused to say what event is going on but admitting that it was in the paper prior to the event is just being a jerk. But the photographer is just spoiling for a fight. Sure, he's not doing anything wrong legally, but he is being wrong ethically. It's not clear he even had a legitimate journalistic purpose. This comes across more as a deliberate provocation than a journalist or citizen acting as a journalist trying to gather public information to share with the public.

An important part of maintaining a civil society is the concept of officer discretion. It's taught in academies, it's the kind of mindset you want from peace officers, and we'd have fewer bad conflicts around the country if more officers were better trained in how to exercise it. It's absolutely fundamental to good law enforcement.

At the same time, the police, 99.8 percent of the time are not your enemy. To act like they are, as the dude in this video does, is stupid and foolish.

I've had my share of pushing back at law enforcement (or delegates) when out covering stuff, but I do my best to respect their authority. Conflicts aren't going to be solved in the field and I'm going to lose, one way or the other, every time.

Ed Hartgrove
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Howard. While I agree with (some of) your comment, there are parts that I'm a little unclear on.

First, you wrote, "Sure, he's not doing anything wrong legally, but he is being wrong ethically."
I'm having a hard time understanding the "wrong ethically" phrase. He was taking pictures and videos of a building - and, later on, TRIED to take pictures of someone he perceived might be "dignitaries". What is "ethically wrong" with that?

Secondly, you wrote, "It's not clear he even had a legitimate journalistic purpose. This comes across more as a deliberate provocation than a journalist or citizen acting as a journalist trying to gather public information to share with the public."

OK. I understand, that's your opinion. As Mr. Warden (the videographer) is a member of "PINAC", my opinion is, he DOES have "a legitimate journalistic purpose" in what he does.

PINAC is (short for) Photography Is Not A Crime. It is a 10-year-old, nationwide news organization, originally founded in Miami, FL. The Wikipedia page for "Photography Is Not A Crime" states that, " Photography is Not a Crime, abbreviated to PINAC and published under the trade names PINAC News, is an organization and news website that focuses on rights of civilians who photograph and film police misconduct and other similar activities in the United States...".

As was "brought to light" by the video link in my previous comment, individual American citizens CAN be, ARE being, and, (probably) WILL CONTINUE TO BE, harrassed, attacked, injured, and/or, illegally detained/arrested for the simple fact that they weren't compliant with UNLAWFUL commands.

And, who was issuing those unlawful commands? The very "cream-of-the-crop" officials (the FBI agents), who have sworn an oath to protect each and every American citizen. Including Mr. Warden.

I'm guessing there will (probably) be people that will say that, if a "law enforcement" officer tells you to do something, you have to do it. Yes! And, No!

You must follow LEGAL commands (or, possibly, risk injury, death, arrest, etc.). BUT, if the "command" isn't legal, you are under NO obligation to follow it. It doesn't take much imagination to come up with a scenario where a law enforcement officer COULD order/command someone to do something that he (the officer) has no legal right to order. Example: A youngster falls off a bridge, into the river. A police officer sees it, but, the officer can't swim. So he "orders" a passersby to jump in. THAT is an illegal command. He can "ask" the passersby to help. He can "plead" that they help. But, he has no legal authority to order the passersby to jump in the river. And, you have no legal obligation to follow such an order.

In the linked video, the 3rd FBI agent had no legal authority to "order" Mr. Warden to "Put the camera down while we're talking to you." Mr. Warden was standing on a public sidewalk, legally engaged in the performance of HIS job (photographing buildings, people, whatever), and, the FBI agent saw fit to issue an illegal order. Again, he (the FBI agent) had NO LEGAL AUTHORITY to issue such an order. And, Mr. Warden had no legal obligation to follow that order. Then, when the FBI agent GRABBED Mr. Warden's camera, he (the FBI agent) committed two unlawful acts - unwarranted physical contact, and, deprivation of a constitutionally protected activity (Freedom of the press), ie.- the right of an American citizen to videotape matters of public interest, from a location that the American citizen has a right to be.

I won't even get into the UNLAWFUL, physical assault of wrenching Mr. Warden's arm behind his back, to the point of what sounded like excruciating pain (there is an independent video, taken from across the street, hundreds of feet away, that shows the EXTREMELY HIGH position Mr. Warden's arm was thrust into). I said UNLAWFUL, physical assault, because, the FBI agent had no legal authority to touch Mr. Warden, period! He (the agent) can "claim" that he didn't want to be struck by Mr. Warden's camera all he wants. As Mr. Warden never made a move towards the agent, in my opinion, that claim doesn't work.

Yes, some people will disagree with what Mr. Warden does (for his "job"). But, if they can do stuff like that to Mr. Warden (who was doing NOTHING ILLEGAL), and, get away with it, they can do it to anyone. Perhaps it'll be your teenage daughter next time. Or, your grandmother. Maybe even a wheelchair-bound military veteran. It could simply be a tourist, taking pictures of interesting sights from their vacation. It isn't right, it is legal, and, it SHOULD stop. Will it? Sadly, probably not.

Any comment, Howard?

Ed Hartgrove
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Sorry. In my last comment, I encountered a typo. Where I typed "It isn't right, it is legal, and, it SHOULD stop", I meant to say, "It isn't right, it ISN'T legal, and, it SHOULD stop".

Ed Hartgrove
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HERE'S "officer discretion" at work, Howard.
(story, with bodycam video, at http://www.news5cleveland.com/news/local-news/oh-cuyahoga/police-say-a-d... )

Last October, a Newburgh Heights (OH) police officer pulled over a "speeder" (the driver was going 103mph, on a major highway, DURING a rainstorm).

When confronted by the Newburgh Heights police officer, the driver flashed a defunct Cuyahoga Sheriff's deputy badge, to which, the officer let him drive off.

Oh, by the way, the speeding vehicle wasn't a law enforcement vehicle. And, it wasn't driven by someone working for ANY law enforcement agency.

When questioned about the incident, the Newburgh Heights police chief, John Majoy, said, “In cases like this, the officer used his discretion. Some may agree with it. Some may disagree with it. But at the end of the day, it’s the officer’s discretion in doing so.”

The chief went on to say that, if he had been the one who had stopped that speeder, he would have cited him. The chief also said he does not plan to pursue any charges related to impersonating a police officer.

My belief in "officer discretion" is pretty much right up there with my belief of tooth fairies.

Personally, I think it was more of a "We'll let our 'brothers in blue' get away with crimes that we'd normally charge 'regular' people with".

Howard B. Owens
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You're comment #13 is too long for me to get into right now.

I didn't catch the connection to PINAC, but that only validates my point that he wasn't gathering information for dissemination (or even his own entertainment). He was engaged in deliberate provocation, looking for members of law enforcement he can entrap into an embarrassing video, and the FBI agents complied with his dreams in that regard. The whole video smells as a setup job, and it was. The FBI agents could have handled it a lot better, but that doesn't excuse the conduct of the photographer.

As for your second example. That's not officer discretion. That's favoritism. Based on your description. I didn't take the time to watch the video.

Ed Hartgrove
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Again, we are all entitled to our opinion. Your opinion that "he wasn't gathering information for dissemination", in my opinion, doesn't hold up.

Just the fact that he DID gather information, and, disseminated it, sort of proves that. Not to mention that the video in question has gotten 62,000+ views.

And, your use of the phrase "looking for members of law enforcement he can entrap into an embarrassing video" would almost be laughable, were it not for the seriousness of the incident. The FBI agent didn't come out and "embarrass" himself. He BROKE THE LAW. And, "roughed up" an American citizen. Whether the citizen was being intentionally provocative, or not, really is beside the point. No matter how "provocative" someone is, if they are not breaking the law, it does not excuse ANY person to go "outside the law" in retaliation. Not even FBI agents. THAT'S THE LAW!

Now, I'm guessing that nothing will happen, career wise, to that agent. He probably won't even get a "hand slap" for it. AGAIN, it goes back to the "We can do what we want, because we're law enforcement" mentality. THAT'S the tragedy of the whole situation. That's the reason PINAC exists today.

What do I think should happen to that agent? I don't know. Couple weeks off with no pay? Compelled to take extra training on how to interact with people who are doing NOTHING ILLEGAL? A written reprimand in his personnel file? I'm not his boss, so I can't say. But, in my estimation, he should suffer SOME consequence(s).

Concerning my second example, as for the "officer discretion", that wasn't MY description. That was the words the police chief used, when quoted (I would guess that, maybe, HIS boss told him not to say "favoritism").

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