First stop Canton

OC for ME said:

Very good point. There is the case law and then there is the citizen's perception. I ignore cops unless I am not permitted to ignore cops. I do not consent, ever, and display my non-consent by ignoring cops.

Cop: "Hey buddy can we have a word?"
Me: ignoring cop, keeps walking.....or, turn and walk away.....cops really like that one.
Cop: "Hey buddy......"

Now, the question is whether or not after the first ignoring the cop keeps asking and you keep walking, get the picture?

If he keeps asking, by following you, but does not actually stop you from walking is he just very persistent in his attempt to engage in a "casual" conversation? If he continues his efforts is now harassing you?

Will his buddies assist him in his efforts to engage in a casual conversation?

What is the law on me doing the above to my fellow citizen that I choose to engage in casual conversation without invitation? Does that citizen have recourse? Can that citizen call a cop to prevented me from any further "hey buddy....?"

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Like I said, complaint, maybe. This would be handled by the PD and an order would be given to the PO to knock it off. Detention, NO.

OC for ME said:

Very good point. There is the case law and then there is the citizen's perception. I ignore cops unless I am not permitted to ignore cops. I do not consent, ever, and display my non-consent by ignoring cops.

Cop: "Hey buddy can we have a word?"
Me: ignoring cop, keeps walking.....or, turn and walk away.....cops really like that one.
Cop: "Hey buddy......"

Now, the question is whether or not after the first ignoring the cop keeps asking and you keep walking, get the picture?

If he keeps asking, by following you, but does not actually stop you from walking is he just very persistent in his attempt to engage in a "casual" conversation? If he continues his efforts is now harassing you?

Will his buddies assist him in his efforts to engage in a casual conversation?

What is the law on me doing the above to my fellow citizen that I choose to engage in casual conversation without invitation? Does that citizen have recourse? Can that citizen call a cop to prevented me from any further "hey buddy....?"

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A "Stop" occurs when a PO has in some way restrained the liberty of a citizen and in view of all the circumstances a reasonable person would believe he is not free to leave. IMO if you keep walking then you are freely leaving. Every situation is different and we can change the circumstances a million different ways. In this case, you were not detained but by all means file a complaint

From the court opinion.

The only fact that saves the officer's stop of DeBerry, in my opinion, is the fact that it is unlawful in Illinois to carry a concealed weapon.

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DeBarry is not set in stone.

Actually the circumstance is the same every time a cop is attempting to consensually contact a citizen. If that citizen ignores the cop the cop has only one of two options, go to the next level or suck up the fact that he got ignored and let it go.

LESGTINCT said:

A "Stop" occurs when a PO has in some way restrained the liberty of a citizen and in view of all the circumstances a reasonable person would believe he is not free to leave. IMO if you keep walking then you are freely leaving. Every situation is different and we can change the circumstances a million different ways. In this case, you were not detained but by all means file a complaint

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When does a citizen reasonably believe he is not free to leave? When a second cop shows up? A third? The cop drives ahead to try again the casual contact. There just ain't that many things a cop can do before he is attempting to "retrain" your movements. If the cop has to "stop you" to casually contact you you are seized. Even the DeBarry opinion realizes this in a round about way.

OC for ME said:

From the court opinion.DeBarry is not set in stone.

Actually the circumstance is the same every time a cop is attempting to consensually contact a citizen. If that citizen ignores the cop the cop has only one of two options, go to the next level or suck up the fact that he got ignored and let it go.

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No, not set in stone but does have weight since it is the US Supreme Court. Otherwise look at Florida v Bostick which is a US Supreme Court ruling which states "Would a reasonable person feel free to decline the PO's request...." In this case you did decline.

OC for ME said:

When does a citizen reasonably believe he is not free to leave? When a second cop shows up? A third? The cop drives ahead to try again the casual contact. There just ain't that many things a cop can do before he is attempting to "retrain" your movements. If the cop has to "stop you" to casually contact you you are seized. Even the DeBarry opinion realizes this in a round about way.

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Like I said a milliion What if's but that wasn't the case here.

Thank you, Law Enforcement Sgt in Connecticut. My first thought about you, was, whats he know about Ohio law. Then I unscrambled your name. Seems my first impression about you was wrong. I'm going to study this case, DeBarry vs. US.

I'm sure it will give me hours of pleasure. Nothing is ever cut and dry with the legal system, is it.

My first thought about DeBarry was that there was no PC to approach him, since a anonymous tip is not ras, hand motions, however, I might have to agree. I've only read half and now I'm back to it.

Thanks again!

Ok, it didn't take hours to study. Good story though.

True, in Illinois it is unlawful to carry. In Ohio, however with Open carry being legal, wouldn't that distinguish a difference between the two cases? If it hadn't been for Illinois law, not having a concealed carry law, LEO might not of even been dispatched to look into Mr. DeBerry. Or did I read the wrong US vs. DeBerry?

Mr. Starcher was legally carrying his firearm. There was no tip that he was doing any thing illegal, it had already been established Mr. Starcher did have a weapon, hence the reason for the accostment. Personal information was indeed asked for, and denied.

We carry cards for NO Guns= No $; cards with Ohio law written on them, now we need a card, No consensual encounters with LEO; no consent to search my car, house, or motorcycle. LOL

After careful consideration, I believe Sgt. McWilliams harassed (accosted) Mr. Starcher for no other reason than he was openly carrying his side arm. This is being addressed by both of his employers. I too wrote a letter to Sgt. McWilliams Chief. From what I've read, here, things haven't changed much in Canton since Danny Harless left.

LESGTINCT said:

A "Stop" occurs when a PO has in some way restrained the liberty of a citizen and in view of all the circumstances a reasonable person would believe he is not free to leave. IMO if you keep walking then you are freely leaving. Every situation is different and we can change the circumstances a million different ways. In this case, you were not detained but by all means file a complaint

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I absolutely agree with all parts of your post.

My wife asked me the other day about a similar circumstance, that of the person feeling like they weren't free to go. She said "Can they do that?" I said, YES! I told her "You have to exert your rights, ASK if you're free to go. If you don't, if you continue to answer questions (or whatever) then it's consensual."

On the subject of the thread, it's clear that the individual did not feel free to leave, but that was no doubt intentional. It's also clear that the longer the questioning went on that the officer was not trying to develop RAS, he was just harassing the OP for his choice of carry method.

"Only belligerents have rights" has inspired me since I first heard it. Hopefully, it will inspire others.

http://freedom-school.com/belligerent-claimant/index.htm

The individual Rights guaranteed by our Constitution can be compromised or ignored by our government. For example, in United States v. Johnson, 76 F. Supp. 538, 539 (D. Pa. 1947), Federal District Court Judge James Alger Fee ruled that,

"The privilege against self-incrimination is neither accorded to the passive resistant, nor to the person who is ignorant of his rights, nor to one indifferent thereto. It is a FIGHTING clause. It's benefits can be retained only by sustained COMBAT. It cannot be claimed by attorney or solicitor. It is valid only when insisted upon by a BELLIGERENT claimant in person." McAlister vs. Henkel, 201 U.S. 90, 26 S.Ct. 385, 50 L.Ed. 671; Commonwealth vs. Shaw, 4 Cush. 594, 50 Am.Dec. 813; Orum vs. State, 38 Ohio App. 171, 175 N.E. 876. The one who is persuaded by honeyed words or moral suasion to testify or produce documents rather than make a last ditch stand, simply loses the protection. . . . He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus." [Emphasis added.]

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BB62 said:

I absolutely agree with all parts of your post.

My wife asked me the other day about a similar circumstance, that of the person feeling like they weren't free to go. She said "Can they do that?" I said, YES! I told her "You have to exert your rights, ASK if you're free to go. If you don't, if you continue to answer questions (or whatever) then it's consensual."

On the subject of the thread, it's clear that the individual did not feel free to leave, but that was no doubt intentional. It's also clear that the longer the questioning went on that the officer was not trying to develop RAS, he was just harassing the OP for his choice of carry method.

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I can tell you that here in CT the courts afford more rights to the individual when it comes to RAS, see CT v Oquendo. What I have read here , I don't see a detention. I only used DeBerry because in the Justices decision they talk about a consensual encounter, acosting a citizen without RAS. He was free to leave and he did. The Officer only asked questions and followed him for a short time.

True, in Illinois it is unlawful to carry. In Ohio, however with Open carry being legal, wouldn't that distinguish a difference between the two cases? If it hadn't been for Illinois law, not having a concealed carry law, LEO might not of even been dispatched to look into Mr. DeBerry. Or did I read the wrong US vs. DeBerry?

Mr. Starcher was legally carrying his firearm. There was no tip that he was doing any thing illegal, it had already been established Mr. Starcher did have a weapon, hence the reason for the accostment. Personal information was indeed asked for, and denied.

We carry cards for NO Guns= No $; cards with Ohio law written on them, now we need a card, No consensual encounters with LEO; no consent to search my car, house, or motorcycle. LOL

After careful consideration, I believe Sgt. McWilliams harassed (accosted) Mr. Starcher for no other reason than he was openly carrying his side arm. This is being addressed by both of his employers. I too wrote a letter to Sgt. McWilliams Chief. From what I've read, here, things haven't changed much in Canton since Danny Harless left.[/QUOTE]

True, in Illinois it is unlawful to carry. In Ohio, however with Open carry being legal, wouldn't that distinguish a difference between the two cases? If it hadn't been for Illinois law, not having a concealed carry law, LEO might not of even been dispatched to look into Mr. DeBerry. Or did I read the wrong US vs. DeBerry?

Mr. Starcher was legally carrying his firearm. There was no tip that he was doing any thing illegal, it had already been established Mr. Starcher did have a weapon, hence the reason for the accostment. Personal information was indeed asked for, and denied.

We carry cards for NO Guns= No $; cards with Ohio law written on them, now we need a card, No consensual encounters with LEO; no consent to search my car, house, or motorcycle. LOL

After careful consideration, I believe Sgt. McWilliams harassed (accosted) Mr. Starcher for no other reason than he was openly carrying his side arm. This is being addressed by both of his employers. I too wrote a letter to Sgt. McWilliams Chief. From what I've read, here, things haven't changed much in Canton since Danny Harless left.[/QUOTE]

Just to clarify, I quoted DeBerry because the justices talked about a consensual encounter and what it meant to them during their decision. I used it as an example in this case. I was not using the DeBerry case as a whole here. As a whole it actually favors the OCer.

LESGTINCT said:

No, not set in stone but does have weight since it is the US Supreme Court. Otherwise look at Florida v Bostick which is a US Supreme Court ruling which states "Would a reasonable person feel free to decline the PO's request...." In this case you did decline.

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Just a nit.....but: United States Court of Appeals, Seventh Circuit. UNITED STATES v. DeBERRY

Kind of shoots that whole case law applicability thing due to jurisdiction. LE everywhere uses DeBerry even though it is a 7th Circuit opinion only.

I am not required to ask permission, "am I free to go." What will a cop do?

In fact I am not required under any law to even respond to a cop unless he is officially detaining/arresting me. Then my response is silent compliance to commands.....in other words I have been seized. In Missouri I am under arrest if the cop refuses to accept my ignoring him because the statute is quite clear.

Cops don't like being ignored.....well, I have not yet met a cop who will accept being ignored.

By the way, FL v. Bostick revolved around Bostick believing he could not leave the bus, not that he felt compelled to respond to police.

When a cop "consensually contacts" you on the street you are being detained even if it is for just a minute or two. If you feel, reasonably believe, that your silent departure will prompt a physical response by the cop(s) then your are seized, you are detained. The rub is that I must convince a jury that my reasonable belief at that time is a reasonable belief that would be held by any citizen in that situation at any time.

Cops count on reasonable folks, who by and far submit to the illegal use of state power, to side with the cops. And the cops are pretty much right the vast majority of the time.

OC for ME said:

Just a nit.....but: United States Court of Appeals, Seventh Circuit. UNITED STATES v. DeBERRY

Kind of shoots that whole case law applicability thing due to jurisdiction. LE everywhere uses DeBerry even though it is a 7th Circuit opinion only.

The explanation of a consensual encounter is clearly explained by the justices and is a correct and similiar expalantion nationwide. I use this explanation because it is a very good example and because it's a US court, from Federal Fudges, it has weight and must be taken notice of from any LEO perspective. If you have a problem with jurisdiction see Florida v Bostick, a US Supreme court decision (law of the land). This decision stated that;

“No seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage – so long as the officers do not convey a message that compliance with their requests is required.”

I am not required to ask permission, "am I free to go." What will a cop do?

In fact I am not required under any law to even respond to a cop unless he is officially detaining/arresting me. Then my response is silent compliance to commands.....in other words I have been seized. In Missouri I am under arrest if the cop refuses to accept my ignoring him because the statute is quite clear.

Cops don't like being ignored.....well, I have not yet met a cop who will accept being ignored.

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The explanation of a consensual encounter is clearly explained by the justices and is a correct and similiar expalantion nationwide. I use this explanation because it is a very good example and because it's a US court, from Federal Fudges, it has weight and must be taken notice of from any LEO perspective. If you have a problem with jurisdiction see Florida v Bostick, a US Supreme court decision (law of the land). This decision stated that;

“No seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage – so long as the officers do not convey a message that compliance with their requests is required.”


Silent compliance to silent commands, is a detention, yes, depending on the commands. ie., including but not limited to, If the Officer demands ID, threatens arrest, says you are being detained, tells you to stop, or if you are surrounded by police and can't leave, or lays hands on you. Silence compliance to requests or questions is not, as is stated in US v DeBerry, and Florida v Bostick. Like I said CT is more restrictive and from my 18 years experience I can tell you this was not a seizure in any state. As far as being silent during a detention with RAS, you can not be arrested (5th Amendment). We are an ID state with RAS. If you REFUSE to show ID or lie about your ID then you can be arrested for Intereference. If you are just being silent you can't be arrested.

It doesn't matter what the LEO likes or dislikes, the law is clear. Just like it doesn't matter what the OCer likes or dislikes in regards to the law.

OC for ME said:

By the way, FL v. Bostick revolved around Bostick believing he could not leave the bus, not that he felt compelled to respond to police.

When a cop "consensually contacts" you on the street you are being detained even if it is for just a minute or two. If you feel, reasonably believe, that your silent departure will prompt a physical response by the cop(s) then your are seized, you are detained. The rub is that I must convince a jury that my reasonable belief at that time is a reasonable belief that would be held by any citizen in that situation at any time.

Cops count on reasonable folks, who by and far submit to the illegal use of state power, to side with the cops. And the cops are pretty much right the vast majority of the time.

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Incorrect, a consensual contact IS NOT a detention, and it's what a reasonable person would believe , that he was not free to leave, NOT what YOU believe. Also, what you think will happen has no bearing on a detention, just as it has no bearing if the LEO may think you are going to commit a crime.

DeBerry turned into a Terry stop based on the cops observing DeBerry making a "movement". Bostick thought he was detained cuz he thought he was not permitted to leave the bus. Both cases the perp got it wrong. Though, in DeBerry IL being a no CC state the cop had RAS it seems regardless of the credibility of the MWAG call.

Casual contact is a detention and everyone knows it even the courts. What the courts have stated, essentially, is that a cop can not be gigged on a 4A violation if you decline to engage and he lets you walk. If he don't let you walk you are seized and now the cop is on the hook to justify the seizure regarding the 4A. The courts never said I have to respond verbally to a cop wishing to just chat it up for no good reason.....casual contact.

LESGTINCT said:

I can tell you that here in CT the courts afford more rights to the individual when it comes to RAS, see CT v Oquendo. What I have read here , I don't see a detention. I only used DeBerry because in the Justices decision they talk about a consensual encounter, acosting a citizen without RAS. He was free to leave and he did. The Officer only asked questions and followed him for a short time.

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(my emphasis)

I agree.

It just appeared that way to the subject of the questioning.

Good lessons to be learned here. If stuck in a situation such as this, first questions, 1) Am I being detained? 2) Am I free to go? Although this will be a good reason for the IA investigation to find Sgt. McWilliams did act properly under law, I wonder if Giant Eagle will get on board with this happening in their stores.

Consensual encounters sound like DUI checkpoints, except instead of all vehicles being stopped, LEO pick only one. Which we know isn't supposed to happen with out some pc. In my town, weaving, is the preferred choice, to stop and smell.

There's also the rudeness factor. Most LAC are brought up not to be rude to someone, LEO included. From birth, most people are taught that we should not be rude to other people. Kinda like saying 'good bye' when you hang up the phone. I just can't, not do it, and I believe that the OP just couldn't turn and walk away from someone talking to him.

My last consensual encounter was at one of my cities festivals. I was with my wife, walking our young German Shepard. I also had a 32 oz coffee cup full of wine. When this young officer came out of nowhere wanting to talk about our dog. At the first moment this seemed strange. Although I didn't want to converse with him, not wanting to be rude to this young stranger, was also instilled onto my personality. Since my cup had a lid on it and I didn't want my breath to go anywhere, I let my wife do all the talking. She brought up names of other LEO we knew, and were friends with. Apparently she suspected something was off also.

The young officer talked for a few minutes and left, maybe realizing we were locals and not out of towers, I don't know. Neither one of us could just turn and walk away. This 'rudeness factor', puts most people at a disadvantage.

Maybe instead of # 1) above, the question should be, 'is this a consensual encounter, or am I being detained?'

Thank you Sgt. your words of wisdom won't be wasted.

Sgt. You really know your laws and I wish you were in the city of Canton to help them out with it. I am not some sue happy nut looking for a quick fix by some cop who doesn't know the laws. Nor do I walk around with my gun looking for a encounter. I was just simply running to the store to pick some things up.

The only thing I want out of this is for the city of Canton to be better informed and understand the laws and not to stop any more citizens like this. The last thing they need is another harless Incident.

Jeff has done an incredible job with Giant Eagle and the Canton police chief on my behalf and I am sure anybody else he helps out will get the same outcome.