Detained by Royal Oak police officer while open carrying

countryclubjoe said:

The camera is the equalizer when dealing with ignorant uneducated tyrants that feel a person has a problem simply because a person exercises his rights and will not cooperate with the uneducated tyrants unlawful,unconstitutional demands.

To the antis and uneducated leos, a person exercising his/her rights must have a mental issue, go figure.

OP, good job.

CCJ

Click to expand...

That's right .. w/o the camera "shield", the OP likely would have some stitches ...

Don't talk to cops, don't try to edumacate them ....

J1MB0B said:

I think this is very good advice. Thankfully, I have not needed to follow it yet. The only part I disagree with, is point C. Depending on the laws of the state you are in, you may not be required to even give your name, why give them anything that you are not required by law to give?

Click to expand...

In the big picture, the text of the law is the starting point for figuring out tactics.

Also, even if there is no state law, there may be local ordinances. For example, VA lacks a stop-and-identify statute, but we've confirmed a number of localities have stop-and-identify ordinances. I recall the penalities for violation being rather harsh (lopsided in the cops' favor) as misdemeanors that can result in up to one year in jail and/or a fine up to $2500.

So, even if you could be absolutely certain a judge will rule the cop had no grounds for detaining you, which I think can be pretty tricky to figure out, you still have to take local ordinances into account. And, local ordinances can change every time the city council or county supervisors meet.

With that said, if you really want to stand on your rights, there are other tactics besides an outright immediate refusal to an identity document demand. Some options to prompt thinking up more:

"No offense, officer, but I would not voluntarily give my ID. Are you demanding it?"

"No offense, officer, but I'm not even required to carry ID."

"No offense, officer, but if you get to the point you have probable cause to issue a summons, and write it all out, at that point, I'll provide my ID." (this tactic developed from a reort by a cop/former forum member who said a VA cop will arrest a misdemeanant who also then refuses document identity on the basis that the refusal gives the cop reason to believe the misdemeanant will not show up in court.)

Of course, this stuff only comes into the picture after you refuse consent to an encounter, ask to leave, and refuse to answer questions without an attorney--these points are much more important than verbal fencing with the cop about your identity document.

J1MB0B said:

I think this is very good advice. Thankfully, I have not needed to follow it yet. The only part I disagree with, is point C. Depending on the laws of the state you are in, you may not be required to even give your name, why give them anything that you are not required by law to give?

Click to expand...

I don't know of such a State. Can anyone chime in with any States they know of that don't even require that a lawful detainee state his name when the officer demands it?


Sent from my iPad using Tapatalk.

<o>

Nightmare said:

968.24  Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

http://docs.legis.wisconsin.gov/statutes/statutes/968/24

There is no penalty specified for refusing the demand.

Click to expand...

I vaguely recall discussing this statute in this state previously. I can't recall if identity refusal was lumped in with obstruction, but it seems to me there was a court case or Attorney General opinion that refusal was not obstruction. Anybody recall the details?


We'll just pretend the idiots in the legislature and the governor somehow overlooked that blatant violation of the 5th Amendment right against self-incrimination ("...demand...an explanation of the person's conduct.")

Nightmare said:

946.41 Resisting or obstructing officer. (1) Except as provided in subs. (2m) and (2r), whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority is guilty of a Class A misdemeanor.
(2) In this section:
(a) “Obstructs” includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process.
[ ... ]
No law allows officers to arrest for obstruction on a person’s refusal to give his or her name. Mere silence is insufficient to constitute obstruction.
Henes v. Morrissey,194 Wis. 2d 339, 533 N.W.2d 802 (1995).

https://docs.legis.wisconsin.gov/document/statutes/ch. 946

Click to expand...

Ah, yes. Thank you.

Now, as long as Henes v Morrissey was about identity refusal and not something else like refusal to answer whether there are more people in the back bedrooms of home being searched for injured under community caretaking--something that can be distinguished from identity refusal...

Nightmare said:

http://scholar.google.com/scholar_case?case=2910282668080903359&hl=en&as_sdt=400000000000002

Accordingly, the deputies stopped and questioned Henes. When Henes would not identify himself, the deputies arrested him for obstructing their investigation under sec. 946.41, Stats.
[ ... ]
Further, the court concluded that the deputies were not entitled to qualified immunity in light of this court's decision in State v. Hamilton, 120 Wis. 2d 532, 356 N.W.2d 169 (1984). The court concluded that Hamilton, decided seven years prior to the arrest, clearly established that a private citizen could not be arrested for failing to identify himself. The deputies petitioned and we granted review.

Click to expand...

Excellent. Thank you.

Wisconsin statute 968.24 foot notes cite Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al, 542 U.S. 177 (2004).

Under Terry v. Ohio, 392 U.S. 1 (1968), a law enforcement officer has wide leeway during an investigatory stop. But, that wide leeway is not unlimited. A stop under Terry is limited by the Fourth Amendment of the U.S. Constitution.

The U.S. Supreme Court in Hiibel stated that:

Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.

Click to expand...

The Hiibel court made it abundantly clear that, until Hiibel, an open question existed as to whether a suspect can be arrested and prosecuted for the refusal to answer questions, ie a suspect exercising their Fifth Amendment right. Through Hiibel the U.S. Supreme Court has ruled that the Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. The Court did not extend that principle beyond the giving of the suspect's name.

If an Accused gave their name, but was arrested and jailed for not giving his address, the arrest and jailing would be under the color of law and in violation of the Accused's constitutional right under the U.S. Constitution. Including answering any other questions.

It sounds to me like the requirement to provide one's address is still the open question that the requirement to provide one's name once was.


Sent from my iPad using Tapatalk.

<o>

eye95 said:

It sounds to me like the requirement to provide one's address is still the open question that the requirement to provide one's name once was.


Sent from my iPad using Tapatalk.

<o>

Click to expand...

As long as we understand that by open we mean that federal appellate courts haven't nullified state or local laws requiring address disclosure by a detainee.

I guess I would phrase it as being a closed question--state and local law prevails--until a federal court makes it an open question by accepting a case.

The question of providing the name was open because the courts had not addressed it directly, dancing around the side issues. That would appear to be the status of the address. Not implying that the outcome would be the same, but do you want to be the defendant if and when the court says that you can be punished for not providing it? I don't.


Sent from my iPad using Tapatalk.

<o>

eye95 said:

The question of providing the name was open because the courts had not addressed it directly, dancing around the side issues. That would appear to be the status of the address. Not implying that the outcome would be the same, but do you want to be the defendant if and when the court says that you can be punished for not providing it? I don't.


Sent from my iPad using Tapatalk.

<o>

Click to expand...

Quit dodging. The various legislatures addressed, and closed the question, when they wrote the statutes.

Moving on.

The legislatures had legislated the requirement to give one's name, yet the court called the question open.

The requirement for an address, in State's where it is required, is in precisely the same state as the requirement for a name was during the period of time for which the courts said the question on whether one could be punished for not providing his name was still open. It has been legislated. The courts have raised doubt on whether not providing is punishable. The courts have not given a final answer to the question. The question is open.


Sent from my iPad using Tapatalk.

<o>

Here is an excellent response remaining silent!!!


[video=youtube;1n1BHJs5V5c]http://www.youtube.com/watch?v=1n1BHJs5V5c[/video]

The U.S. Supreme Court in Hiibel stated that:

Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.

Click to expand...

The Court said "a State" not just Nevada, meaning all the States.

Also,

State v. Harrison, 2013-Ohio-1235. SECOND APPELLATE DISTRICT MONTGOMERY COUNTY (Ohio)

The “intrusion” that occurred in the case before us was reasonably warranted. Officer Hawley observed Harrison commit two violations of law, and properly obtained and checked Harrison’s identification. “t is well established that an officer may ask a suspect to identify himself in the course of a Terry stop.” Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 187, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). In Hiibel, the United States Supreme Court also stressed that:
Obtaining a suspect's name in the course of a Terry stop serves important
government interests. Knowledge of identity may inform an officer that a suspect
is wanted for another offense, or has a record of violence or mental disorder. On
the other hand, knowing identity may help clear a suspect and allow the police to
concentrate their efforts elsewhere. Id. at 186-187.

Click to expand...

Montgomery County Court of Appeals agrees with Hiibel. NAME, not name address or date of birth.

eye95, you live in Montgomery County.

No, I do not live in Montgomery County.

The Court did not address address.

Moving on.


Sent from my iPad using Tapatalk.

<o>

eye95 said:

No, I do not live in Montgomery County.

The Court did not address address.

Moving on.


Sent from my iPad using Tapatalk.

<o>

Click to expand...

I stand corrected. You now make your residence in Greene county and your place of work at Wright-Patterson Air Force Base is in both Greene and Montgomery county. But, the fact is the Second District Court of Appeals covers Champaign, Clark, Darke, Greene, Miami and Montgomery counties.

And no we are not moving on. Here again, you either have a reading comprehension problem, or you did not read Hiibel.

Hiibel does, in fact, address stop and identify statutes, e.g., the permitting of an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going” found such statutes void for vagueness. See Kolender v. Lawson, 461 U. S. 352 (1983).

Further, the Court held that as applied to Hiibel’s case the stop and identify statute did not violate the Fourth or Fifth Amendments. The Court’s decision in Terry v Ohio “recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.” A Terry stop must be “justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.” The Court said “our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops” and “serves important government interests:” whether the person stopped has outstanding warrants, “a record of violence or mental disorder.” The Court also held that requiring Hiibel to identify himself does not violate his Fifth Amendment privilege against self-incrimination because “refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business.”

In other words, having to give your name under the Fourth Amendment is not absolute, e.g., if it would furnish a link in the chain of evidence needed to prosecute then the Fourth Amendment exception would not apply.

As to the video that Motofixxer posted, it is a clear example of the officer understanding the differences between First and Fifth Amendments.

The fifth amendment provides protection against compelled disclosure of certain information. Under the fifth amendment an individual cannot be compelled to give information which he reasonably believes may be used against him in a criminal prosecution. See, e.g., Leflcowitz v. Cunningham, 431 U.S. 801 (1977); Gardner v. Broderick, 392 U.S. 273 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967). Unlike the first amendment protection not to speak, the fifth amendment right not to speak does not bar compelled testimony if the individual is given immunity. See, e.g., Kastigar v. United States, 406 U.S. 441 (1972).

The first amendment protects against compelled expression or association of any sort so long as it is not outweighed by a countervailing government interest. Moreover, first amendment protection against compelled expression is provided not simply as a means of avoiding a chilling effect on the exercise of the rights to speak and associate, but rather to protect against government invasion of the "sphere of intellect and spirit." West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

In other words, the open carrying of your firearm is an exercising of your first amendment right to free speech. Verbalizing the reasons for exercising your first amendment rights is not required, e.g., exercising your right not to speak.

Though contrary to the facts and the opinion of the court, eye95 is free to live in whatever fantasy world he chooses.

Oh, I have moved on. I don't care if you don't.

Frankly, I find you uninformative and not worth wasting time on since you wander off in your own direction, not even really paying attention to what I posted.

So, ramble in non-reply some more. I won't even answer to say that I won't answer.


Sent from my iPad using Tapatalk.

<o>

eye95 said:

The legislatures had legislated the requirement to give one's name, yet the court called the question open.

The requirement for an address, in State's where it is required, is in precisely the same state as the requirement for a name was during the period of time for which the courts said the question on whether one could be punished for not providing his name was still open. It has been legislated. The courts have raised doubt on whether not providing is punishable. The courts have not given a final answer to the question. The question is open.


Sent from my iPad using Tapatalk.

<o>

Click to expand...

What legislatures? What court or courts?
That's your problem, no facts. Who, what, when, where or why? Your statements lack any support. Even your opinions lack support.

Moving on.

Citizen said:

Ah, yes. Thank you.

Now, as long as Henes v Morrissey was about identity refusal and not something else like refusal to answer whether there are more people in the back bedrooms of home being searched for injured under community caretaking--something that can be distinguished from identity refusal...

Click to expand...

Yes. There was a somewhat similar case in WA (note: WA does not have a must give name statute ) where a person was charged with rendering criminal assistance for not divulging who had shot her

Unlawful?

I dont think so. Ignorant cop, yes. Trying to bully you, yes. Being a jackass, yes. He was trying to force his personal beliefs on you and trying to make them law. He didnt get what he was looking for and started feeling the sand irritate his female genitalia.

I think a complaint is definately in order for his attitude. My opinion, a short detention with a jackass cop, warrants it. However, as police department complaints go, and as we have seen numerous cops get away with literal murder, this is nothing to them and nothing will come of it.