One backpack was found in the downtown Schenectady post office last May, a Quran laying next to it.
Another backpack caught someone’s attention near the finish line of the Stockade-athon in November in Schenectady’s Central Park. That bag had what appeared to be a wire coming from it.
Earlier this month, at Mohawk Commons in Niskayuna, a man was seen placing a bag next to a pillar near the Target store and walking away.
In all three cases, worried callers summoned police, who responded and cordoned off the areas as they worked to determine the nature of the bags.
These scenes have played out around the country, especially in the 14 months since the Boston Marathon bombing, where two backpacks hid pressure cooker bombs that killed three and maimed many more.
“The public is being more aware in light of recent events,” Schenectady police spokesman Lt. Mark McCracken said Friday. “The public is being more cognizant of it.”
McCracken said police take any threat seriously. But what happens after the threat is determined not to be a threat? If the owner of the bag is determined, should he have any criminal responsibility?
In the two Schenectady cases, police determined the answer was no. Neither the owner of the post office bag or the owner of the Stockade-athon bag, police investigations found, had committed crimes. The owners did not intend to cause the alarm that resulted.
In the Mohawk Commons case, though, Niskayuna police investigated the incident and concluded that the man who left his bag should face charges. Joshua Usher, 21, was arrested and his bail set at $11,000. He remained in jail for 15 days until the charges were ultimately dropped.
Niskayuna police Chief Daniel McManus said his officers responded to the scene, evaluated the circumstances and took appropriate actions to protect public safety.
“They made an arrest based on what they observed and derived from their investigation,” McManus said.
That included speaking with witnesses and the man himself, said McManus, who declined to give specifics of what was said, noting the case was dismissed.
The charge Usher faced, first-degree placing a false bomb or hazardous substance, is a felony, assumes intent — that the person placing the item knows, intends or reasonably believes it will appear to be a bomb. But Usher’s bag turned out to be just that, a bag. Inside were personal belongings and nothing else.
After the Schenectady County District Attorney’s Office reviewed the case, and at the urging of Usher’s court-appointed attorney, Joseph Litz, prosecutors moved to dismiss the case Wednesday evening.
Usher left the bag near the Target store because he didn’t want to take it inside while shopping, officials said.
Litz received the case the day after Usher’s June 3 arrest. He said he questioned the legitimacy of the charge from the start.
The accusation was that Usher placed a small black bag behind a pillar on a sidewalk in front of Famous Footwear, patted it and walked away.
“From a criminal standpoint, that clearly does not meet the requirements of what he was charged with, placing a false bomb,” Litz said. “Just because someone leaves a bag in a location, there needs to be something significantly more than how it’s left in the location or the manner in which it was left.”
Schenectady County District Attorney Robert Carney said last week that his office declined to prosecute because there was insufficient evidence to meet the elements of the crime charged. Someone leaving a bag might cause alarm and prompt a police response, he said, but in the Niskayuna case the elements of a crime weren’t there.
So why was Usher in jail for two weeks? A preliminary hearing must be held within six days of someone’s arrest on felony charges, except under certain circumstances. If no hearing is held and other requirements are met, the person could be released without having to post bail.
In Usher’s case, his hearing was complicated by the judge ordering a mental health evaluation, Litz said. In the meantime, Litz worked to get the charges dropped.
Once the charges were dropped and he was released, Litz said “he was very grateful.”
Melanie Trimble, executive director of the local chapter of the New York Civil Liberties Union, said she couldn’t offer any opinion on whether Usher should have been arrested.
“It’s up to the officer’s discretion,” she said. “A lot of factors go into that equation.”
She did express concern that he had to spend two weeks in jail before he was released. She also said the case brings to mind two issues the NYCLU has been promoting: better funding for public defender’s offices and having prosecutors turn over all evidence at arraignment, rather than later.
The NYCLU is suing to have the state better fund public defender’s offices. It is also promoting the “automatic discovery bill” in the state Legislature, which, she said, could help defense attorneys fully evaluate cases and argue for dismissal when the evidence warrants it, as it did in Usher’s case.
Local attorney Terence Kindlon, who was not involved in the Usher case, questioned why the arrest was made in the first place. Kindlon reviewed the statute Friday at the request of The Daily Gazette, after being told the details of the Usher case. Simply putting a backpack down does not meet the terms of the statute, he said.
“It should have ended the same way as the first two cases,” Kindlon said, referring to the Schenectady cases. “Zealous law enforcement is great and all that, but false charges are a misuse of criminal law. There’s got to be care exercised.”
In Boston, one person was arrested on similar accusations of placing a false bomb. On the one-year anniversary of the bombing, an art student intentionally placed a backpack similar to the ones used by the bombers at the marathon’s finish line, according to published reports. A rice cooker filled with confetti was inside the bag.
The student, Kevin Edson, was originally charged with possession of a hoax device and making a false bomb threat. The threat charge was later dropped, but the hoax device charge remains.
In the two Schenectady cases, no one saw the person leave the bags, which were only deemed suspicious after someone spotted them.
The Stockade-athon bag raised alarm because a wire stuck out of it. The discovery threatened the race itself as police investigated. As it turned out, the bag’s owner had used a wire to replace a zipper, not thinking it might cause concern.
In the post office case, police determined the man who left the bag was not a threat after he returned and was interviewed.
Niskayuna’s police chief noted that in his jurisdiction’s case, his officers responded based on the information they had gathered.
“Our officers respond to many different emergencies,” McManus said. “They investigate the complete circumstances in every incident, and they make decisions based on their own observations.”