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Thread: Discussion Refusal to identify one self to police= Obstruction

  1. #1
    Regular Member twoskinsonemanns's Avatar
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    Discussion Refusal to identify one self to police= Obstruction

    With the seemly growing popularity of OC in the country I have been determined to know the laws and my rights concerning it. I have a CPL but have rarely OC'd save for my own property. With the growing videos surfacing of LEOs detaining OCers I wish to be saturated with the correct facts of my rights and the laws.

    The main questions I have asked myself (without feeling 100% about the answers) are these:

    #1) Can I be lawfully detained by an LEO responding to a "man spotted with a gun" call?

    #2) Do I have a legal obligation to identify myself to an LEO responding to the same?

    As far as the first question I cannot find any WV laws/case laws pertaining to it. I understand the Wheeling suit may shed light on this but is there any previous action that would provide a reasonable assurance?

    The second question involves refusing an order to identify myself. I am not anti LEO by any means but as a LAC who happens to be OCing I would feel violated to have to identify myself and sit through waiting for the LEO to check and see if I'm a bad guy by running my information.

    Again I couldn't find any WV laws explaining this but I did find a case (STATE v. SRNSKY http://caselaw.findlaw.com/wv-suprem...s/1482046.html) where the Supreme Court of Appeals overturned a conviction of Obstruction (among other irrelevant charges) where the conviction of Obstruction was gained because of the defendants refusal to identify himself to LEO. Here a snip from the reversal:

    "Consequently, we hold that refusal to identify oneself to a law enforcement officer does not, standing alone, form the basis for a charge of obstructing a law enforcement officer in performing official duties.   However, the charge of obstructing an officer may be substantiated when a citizen does not supply identification when required to do so by express statutory direction or when the refusal occurs after a law enforcement officer has communicated the reason why the citizen's name is being sought in relation to the officer's official duties."

    So here's my biggest question. Is an LEO responding to a call of "man with a gun" related to the officer's official duties?

    I can see scenarios where this might play out.

    LEO: Sir! What are you doing with a gun.
    Me: Nothing specific, just window shopping.
    LEO: Do you have an ID?
    Me: Sir, why are you seeking my identification?
    LEO: Because you are carrying a gun and making people nervous!
    Me: I refuse to identify myself.

    Obviously this is not the most probable way the conversation might go but am I obstructing? He DID give me a reason why but since I am not involved any criminal activity did he give me a reason "sought in relation to the officer's official duties."

    Of course the question will come up why didn't I first ask if I was being detained?
    Is it relevant? Only if it IS trully unlawful to detain an OCer when responding to such a cal. If I AM detained do I now have an obligation to identify myself?

    Anyway I am not asking legal advice just trying to open a discussion.
    Thanks

  2. #2
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by twoskinsonemanns View Post
    ....

    I can see scenarios where this might play out.

    LEO: Sir! What are you doing with a gun.
    Me: Nothing specific, just window shopping.
    LEO: Do you have an ID?
    Me: Sir, why are you seeking my identification?
    LEO: Because you are carrying a gun and making people nervous!
    Me: I refuse to identify myself.

    Obviously this is not the most probable way the conversation might go but am I obstructing? He DID give me a reason why but since I am not involved any criminal activity did he give me a reason "sought in relation to the officer's official duties."

    Of course the question will come up why didn't I first ask if I was being detained?
    Is it relevant? Only if it IS trully unlawful to detain an OCer when responding to such a cal. If I AM detained do I now have an obligation to identify myself?

    Anyway I am not asking legal advice just trying to open a discussion.
    Thanks
    Thanks for not asking for legal advice because I know nothing about WV law.

    That being said, there is a significant difference between "identifying oneself" and "producing a government-issued photo identification document". One can identify oneself by stating their name - and depending on your state's specific laws requiring or not requiring you to do so, the locality (city/county) where you reside or your street address.
    I refuse to identify myself
    will probably turn out to be more trouble than you wanted over an issue that could have been resolved in the way you were hoping (not handing over a photo ID).

    And to answer your specific question - yes, you probably are obstructing by that behavior.

    Generally speaking MWAG calls fall into the perameters allowing a Terry stop. But in order for the LEO to determine if a crime had been committed/was being committed/was about to be committed does not require the surrender of a photo ID document. It requires, minimally, the LEO to observe your behavior and, if he really has a reason to suspect/wants to roust you, to verify that you are not prohibitted from possessing a firearm. A name check is how they do that, and stating your name should be adequate unless he has further reason to believe you provided a false one (as opposed to wanting to roust you further).

    Another issue to be looked at is whether or not you need to have a government-issued photo identification document on your person when performing the act you were performing while OCing. For example, fishing generally requires a fishing license and that usually requires you also carry your ID document. Strolling down a country lane (or the sidewalk in your neighborhood which is located in the middle of the biggest city in the state) does not require you to possess ID while doing so. Some folks purposely do not carry ID when OCing and not otherwise required to have ID on their person - it's called "sterile carry".

    All this being said, can a LEO with an ingrown hair you know where haul you down to the station to fingerprint you and wait for a response to come back from the FBI because he says you are not telling him your true name? You bet he can! On the other hand, unless he can prove that what he wrote down on the report about the behavior(s) that led him to suspect you were not telling the truth were in fact taking place, he can also lose an unlawful arrest lawsuit. The currency involved on both sides is time and LEOs know LACs usually do not have a lot of it to spend on this silliness and even if they do they do not want to. So what they do is coerce you into doing what they want done under the possibly real threat of going down to the station to get it all sorted out.

    Fortunately most LEOs see the situation as we do - a perhaps necessary encounter that they would like to conclude as quickly and painlessly as possible. Which is why it is usually better to slowly and deliberately transition from DEFCON 1 to DEFCON Eleventy!!!!11!! as needed, as opposed to doing it all at once as soon as the cop comes into sight.

    stay safe.
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  3. #3
    Regular Member twoskinsonemanns's Avatar
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    Quote Originally Posted by skidmark View Post
    And to answer your specific question - yes, you probably are obstructing by that behavior.
    Skidmark Thank you for your reply and opening up the discussion. Primarily my interest are WV specific. Without specific laws available, relying on the case I quoted I'm frustrated by the unknown element of the LEO reason being "related to his official duties". It's vague especially dealing with someone not doing anything remotely illegal. I see by the "probably" in your reply your not 100% on it either.


    Quote Originally Posted by skidmark View Post
    Generally speaking MWAG calls fall into the perameters allowing a Terry stop.
    I haven't come across other opinions that agree or disagree with this. I know that a "Terry stop" detainment requires RAS. "To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed." You feel that a MWAG call is RAS?

    Quote Originally Posted by skidmark View Post
    All this being said, can a LEO with an ingrown hair you know where haul you down to the station to fingerprint you and wait for a response to come back from the FBI because he says you are not telling him your true name? You bet he can!
    I don't know if this would be a lawful arrest. It seems a snow ball effect of whether the cop's stated reason for seizing my identity relates to his official duties


    Quote Originally Posted by skidmark View Post
    So what they do is coerce you into doing what they want done under the possibly real threat of going down to the station to get it all sorted out.
    I understand the coercion factor. But if the original detention is truly unlawful it doesn't help to have people continuously giving in to the "bullying". I mean IF these are unlawful but continued, reasonable confrontation is the only way to stop it.

    Of course if it IS lawful and a MWAG IS RAS then it should be made clear.
    I'm hoping people have info to that may make it clearer.

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    twoskinsonemanns There is a case that took place in Ravenswood WV Jackson County involing Jonathan Pinson, happened a few years ago. He made a traffic stop, a passenger would not identifiy himself, he had committed no crime, just riding in a car that was speeding (i think). He was arrested charged with obstruction or some other bogus charge. He won $200,000 or so from the city of Ravenswood. It was in the local paper The Jackson Hearld, I dont know how to post links but will see if I can find it, it was over not providing I.D.
    I am not a gun nut, nor am I a nut with a gun
    I simply rufuse to be a helpless victim, I may be unable to stop myself from being a victim but at least I wont be helpless

  5. #5
    Herr Heckler Koch
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    http://www.wvrecord.com/news/217206-...jackson-county

    2/6/2009 7:20 AM By Lawrence Smith -Jackson Bureau

    Feb. 2.
    [ ... ]
    Michael Karr v. Jonathan A. Pinson, individually and in his capacity as a patrolman, Ravenswood Police Department and the City of Ravenswood
    P.A. - Pro se; J - Nibert
    * The plaintiff is suing the defendants for violations of his constitutional rights following his arrest for obstructing an officer on Feb. 2, 2008. The plaintiff is seeing unspecified damages, costs and fees.
    Case No. 09-C-10

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    News > Jackson County


    Putnam man files false arrest suit against Ravenswood, officer
    2/6/2009 10:15 AM By Lawrence Smith -Jackson Bureau






    Karr


    RIPLEY - A Putnam County man is suing a Jackson County municipality and one of its police officers alleging he was falsely arrested on obstruction charges last year.

    On Jan. 30, Michael Fleming Karr filed suit against Jonathan A. Pinson, a patrolman with the Ravenswood Police Department, and the city of Ravenswood in Jackson Circuit Court. In his complaint and suit, which he filed pro se, Karr, 43, of Buffalo, alleges his constitutional rights were violated when Pinson arrested him for obstructing a police officer after Karr refused to produce identification while riding as a passenger in vehicle.

    According to court records, Karr, along with another unidentified person, was accompanied in a station wagon driven by Jennifer Scragg, attorney for the Putnam County Commission and a part-time Putnam County prosecutor. Pinson stopped Scragg at 12:39 a.m. on Feb. 2, 2008, for "an equipment violation."

    While waiting for Scragg to produce her license and registration, Pinson inquired as the identities of the other passengers. When asked to provide his ID, Karr, who was riding the front seat, declined.

    Despite requests by Scragg and the other passenger to comply, Karr still refused to provide ID. Thereupon, records show, Pinson asked Karr to exit the vehicle, and placed him under arrest.

    After arresting Karr, Pinson took him first the Ravenswood Police Department and later to the South Central Regional Jail in South Charleston. Karr was released from South Central later that day after posting a $500 bond.

    After his release, Karr filed a motion to dismiss the charges based on Pinson's lack of probable cause to arrest him. In his motion, Karr cited the state Supreme Court's 2003 ruling the case of State v. Srnsky.

    In Srnsky, the Court held that in order for an obstruction charge for failing to produce ID to be valid, there must be an "express statutory" obligation for the production of ID or the officer must communicate "the reason the citizen's name is being sought in relation to the officer's official duties." Records show, Jackson County Magistrate Jackie Casto granted Karr's motion on May 22.

    Because Pinson acted "maliciously, unlawfully and without reasonable or probable cause and without warrant or process of any court," Karr says he was "unlawfully confined and imprisoned for approximately eleven (11) hours."

    The imprisonment, Karr alleges, resulted in him "sustain[ing] anguish of mind, loss of liberties and monetary expenses." Also, it subjected him to "deprivation of rights and privileges" under the 4th and 5th Amendments to the United States Constitution and Sections 6 and 10 of Article III of the West Virginia Constitution.

    In addition to those against Pinson for false arrest, Karr makes a claim against the city of Ravenswood for negligent supervision.

    He is seeking unspecified damages, costs and fees.

    The case has been assigned to Judge David W. Nibert.

    Jackson Circuit Court case number: 09-C-10 (Karr civil), Jackson Magistrate Court case number: 08-M-144 (Karr criminal)
    Last edited by eamelhorn; 05-21-2012 at 09:12 AM.
    I am not a gun nut, nor am I a nut with a gun
    I simply rufuse to be a helpless victim, I may be unable to stop myself from being a victim but at least I wont be helpless

  7. #7
    Herr Heckler Koch
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    This is all very interesting but nowhere cites to West Virginia Statutes.

    http://www.legis.state.wv.us/WVCODE/Code.cfm

    I searched on "identify" for ~250 hits but I don't know the appropriate Chapter. Some say WV does NOT have a stop-and-identify statute.

  8. #8
    Regular Member Fallschirmjäger's Avatar
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    Sounds like just another good reason NOT to carry my driving license around with me unless I'm getting alcohol, cashing a check, or buying an airline ticket.

    Ask yourselves... How many times in the last 3-4 years have you unexpectedly needed to produce government issued identification? I can't think of a single instance; every time I've needed to produce identification documents, I've been well aware of the need ahead of time.

    Perhaps officers need to be told "No" a little more often, to remind them that their power is not unlimited but subject to what is authorized by law.

  9. #9
    Herr Heckler Koch
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    I agree. My DL is usually stored in the packet of DL, registration and insurance certificate in the glovebox. When I need identification documents then I use my PP/card.

    The point that I am trying to drag out here is that federal laws are implemented in state statute where the devilish details reside. The Wikipedia article on "stop and identify" does not cite a WV statute as it does for Wisconsin, e.g.

    The Identity Project http://papersplease.org/who.html
    Last edited by Herr Heckler Koch; 05-21-2012 at 09:40 AM.

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    I can't top Skidmark's discussion of the identification issue. However as the specific question as phrased, I think my response would be, "Sorry, but I don't understand your question. Do you have some reason to think that I'm 'doing something' with a gun?"

    That question, as phrased, would be objectionable in court - assumes facts not in evidence. Same structure as, "When did you stop beating your wife?"
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  11. #11
    Regular Member twoskinsonemanns's Avatar
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    Quote Originally Posted by eamelhorn View Post
    News > Jackson County
    Putnam man files false arrest suit against Ravenswood, officer
    2/6/2009 10:15 AM By Lawrence Smith -Jackson Bureau.......................
    Jackson Circuit Court case number: 09-C-10 (Karr civil), Jackson Magistrate Court case number: 08-M-144 (Karr criminal)
    Thank you Eamelhorn! Thank you very much for this. This is the exact type thing I am hoping people post. This is the first actual instance of refusal to identify=obstruction I have seen besides that Court of Appeals decision I posted.

    Also thank you Heckler for bringing it up. Can anyone find any outcome of the criminal or civil case? I can't find anything about the result.
    Last edited by twoskinsonemanns; 05-21-2012 at 01:44 PM.

  12. #12
    Regular Member Dreamer's Avatar
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    The reason you can't find any WV Statutes about providing ID at an officer's request when on foot is because THERE IS NO SUCH LAW in WV.

    WV is not a "stop and identify" state. The ONLY reason an LEO can legally require you to produce ID is if you are operating a motor vehicle.

    If you are on foot and OCing, there is NO legal requirement to produce an ID in WV. If you don't want to produce "papers" but you don't want to be completely "hard-line" on personal info, you can give them your name and address. That way, they CAN'T even attempt to charge you with "obstruction" or "resisting a lawful order" or "moping with intent to creep" or whatever other made-up and fabricated violations they dream up as punishment for your "contempt of cop".

    Some people carry "sterile"--they don't even CARRY their ID when they OC for this very reason.

    But one thing you should ALWAYS carry, and should ALWAYS be operational during OC-related LEO encounters is a digital voice recorder.

    Many of us are waiting eagerly for the decision in the Wheeling case. I have family in Wheeling, and I OC there every time I visit, and although I've never had a single issue, I'd LOVE for these rogue LEOs in the Mountain State to be given a serious judicial "come-uppance"...
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    Regular Member papa bear's Avatar
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    this is not just an issue for WV, but should be discussed and thought of in every state.

    in NC you do not have to show ID,but it is required for you to ID yourself. name, address.

    there is a moral issue in this and a legal one. do you legally have to show ID? no. should you show ID? maybe that is up to you. if the LEO is polite and respectful i would do like PVC did and show it. if he//she comes at me hard a$$, then no, i would not give it
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    Regular Member twoskinsonemanns's Avatar
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    Quote Originally Posted by Dreamer View Post
    The reason you can't find any WV Statutes about providing ID at an officer's request when on foot is because THERE IS NO SUCH LAW in WV.

    WV is not a "stop and identify" state. The ONLY reason an LEO can legally require you to produce ID is if you are operating a motor vehicle.

    If you are on foot and OCing, there is NO legal requirement to produce an ID in WV. If you don't want to produce "papers" but you don't want to be completely "hard-line" on personal info, you can give them your name and address. That way, they CAN'T even attempt to charge you with "obstruction" or "resisting a lawful order" or "moping with intent to creep" or whatever other made-up and fabricated violations they dream up as punishment for your "contempt of cop".

    Some people carry "sterile"--they don't even CARRY their ID when they OC for this very reason.

    But one thing you should ALWAYS carry, and should ALWAYS be operational during OC-related LEO encounters is a digital voice recorder.

    Many of us are waiting eagerly for the decision in the Wheeling case. I have family in Wheeling, and I OC there every time I visit, and although I've never had a single issue, I'd LOVE for these rogue LEOs in the Mountain State to be given a serious judicial "come-uppance"...
    I am one of those eagerly awaiting the decision. So you're one of THOSE? Attempting to setup to police and cash in.... I agree with it 100%
    Recorder going constantly. Also have a cool recorded on my phone I would attempt to activate as a back up before the contact occurs in case the recorder meets some mysterious malfunction during the process. It's cool because it continues to record after the screen goes black.

    As far as walking around having to produce ID...I don't think it is as cut and dry as you make it sounds. No law I agree. But the Supreme Court of Appeals in WV has obviously set a precedence that you ARE required to ID your self if the cop gives you a reason "related to his official duties". (Open to interpretation).

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    If I remember right Karr WON a large sum, Pinson was promoted so to speak to a sheriff deputy, and still works in the county, notice I said, works not serve. I will see if I can find the exact outcome of the case maybe a few days tho.
    I am not a gun nut, nor am I a nut with a gun
    I simply rufuse to be a helpless victim, I may be unable to stop myself from being a victim but at least I wont be helpless

  16. #16
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    This is interesting to me due to a recent encounter my nephew had.

    He was a passenger in a car that was stopped for speeding. The police officer demanded his name and he gave it. Apparently there was a warrant out for his arrest for a charge of domestic violence.

    My position, when we talked about it, was that he should have kept his mouth shut and only uttered the words "I am exercising my right to remain silent". Of course this is the same boy who consented to a search of the vehicle he was driving (his mothers) and didn't realize she had a cooler in the back with some melted ice water and 2 wine coolers. Or course he got busted for minor in possession of alcohol.

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