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Thread: Judge Janice Rogers Brown gives advice on talking to cops in US v. Gross

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    Judge Janice Rogers Brown gives advice on talking to cops in US v. Gross

    I offer this advice: speak to officers firmly, politely, respectfully. Tell them, “I do not wish to have an encounter with the police right now. Am I free to leave?” If the answer is “no,” then coercion will cease to masquerade as consent. Our courts will be forced, at last, to directly grapple with the reality of the District’s policy of routinized and involuntary seizures.
    http://pdfserver.amlaw.com/nlj/US%20...nion%20NLJ.pdf

    The opinion is 14 pages of interesting reasoning, of which this paragraph is a mere bon mot.

    Terry is cited on page 13.
    “No right is held more sacred, or is more carefully guarded . . . than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Terry, 392 U.S. at 9.
    A tip o' the hat
    http://www.nationallawjournal.com/bl...20150322165257
    Last edited by Nightmare; 04-22-2015 at 05:18 PM.
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    I see the pdf of the opinion, but I don't see the information the OPer placed in a quotation box/balloon.

    Meaning, is there a missing link to the quotation balloon quote? Did the OPer accidental place his own comments in a quotation ballon? Etc.

    I am very curious about who said, "I do not wish to have an encounter with the police right now." I developed this tactic several years ago. I want to be able to crow that finally somebody else has the same idea.
    Last edited by Citizen; 04-22-2015 at 05:28 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by Citizen View Post
    I see the pdf of the opinion, but I don't see the information the OPer placed in a quotation box/balloon.

    Meaning, is there a missing link to the quotation balloon quote? Did the OPer accidental place his own comments in a quotation ballon? Etc.
    Page 6 of the Concurrence, page 14 of the Opinion.

    Or search on the single occurrence of advise
    Last edited by Nightmare; 04-22-2015 at 05:31 PM.
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    Quote Originally Posted by Nightmare View Post
    Page 6 of the Concurrence, page 14 of the Opinion.

    Or search on the single occurrence of advise
    Oh, jeez. I'm sorry. I guess I scrolled down to the bottom of the majority opinion and figured I was at the end of the document.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by Citizen View Post
    Oh, jeez. I'm sorry. I guess I scrolled down to the bottom of the majority opinion and figured I was at the end of the document.
    No harm, no foul. So little time, so much to read (and cut'n paste).
    I am responsible for my writing, not your understanding of it.

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    Regular Member Maverick9's Avatar
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    I know all you guys just wanna be on 'Bad Boys, Bad Boys'...

    Quit buggin' the nice LEOs, fercryinoutloud.

    You think all they got to do is butt into your biz? You OC-ers are BORING, boring, boring. Never do nuttin' worth their time.

    Nothing to see, no greenbacks to make.

    (muffled snickering...)

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    Yayyyyy!! A Federal Judge Says What Citizen Has Been Saying For Years!

    Several years ago I noticed a quote in VA appellate court opinion. The VA court was quoting a federal case. Here's the paraphrase:

    "[Fourth Amendment jurisprudence recognizes three types of police-citizen encounters. Consensual encounters. Brief, minimally intrusive detentions based on articulable facts, also known as Terry stops. And, highly intrusive custodial arrests.]"

    I was looking at that quote for the umpteenth time when it occurred to me--I can just refuse consent to the encounter itself. Not just refuse to answer questions, or just ignore the cop, but expressly say, "No offense, officer, I know you're just doing your job; but I do not consent to an encounter with you."

    Its inherent in that statement of law. If an encounter can be consensual, and such is recognized by the courts, then necessarily I can expressly refuse consent to the encounter itself.

    I also realized that among the numerous court cases I had read, the whole reason courts were trying to sort out whether a detention had occurred, or whether it was a consensual encounter was because the suspect had never actually said, "I refuse consent to an encounter." Lacking an express statement, the courts for years have had to rely on other signs to determine whether an encounter was consensual or involuntary. And, there are reams of cases on this point. Reams! Every single one of which shows the court involved weighing this-or-that evidence in the lower court's trial record to determine whether an encounter was consensual, making the statements or evidence admissible, or whether an involuntary seizure had occurred. SCOTUS even issued an opinion listing some indicators of whether an encounter was consensual or a detention: US vs Mendenhall.

    Thinking further along the line leads to the idea that expressly refusing consent to an encounter throws the legal ball back into the cop's court. And, he has to play that ball. If he did not have reasonable articulable suspicion (RAS--a legal minimum standard), then legally he has to let me go. No more beating around the bush. No more pretending it is consensual when he uses words like please but issues them in a commanding tone, etc., etc. If I expressly refuse consent to the encounter itself, anything he says or does after that point cannot possibly be consensual. Which leads to the next point: if I expressly refuse consent to the encounter itself at the outset--first words out of my mouth--then if he asks even one more question, it cannot possibly be a consensual encounter. Too bad for him if he wants to play word games about why I would avoid an encounter if I was doing nothing wrong. If he says anything other than some version of "have a nice day, sir", I am justified in assuming I am being detained (because it can't possibly be a consensual encounter). Too bad for him if he doesn't have RAS and is just reflexively playing the usual word games. If the cop asks even one more question, I just assume I am detained and start asking "why I am I being detained" or "I wish to be released from this detention". While tossing in a few "I won't answer questions without an attorney" and "when will I be released from this detention"*


    So, you read it here first, folks! A federal judge has validated Citizen's recommended tactic--refuse consent to the encounter itself. This calls for a dancing banana! Several of them.




    *This question is a trap for the cop, intended to make a stronger federal case. Based on reading I've done, some cops will apparently answer some version of "when you tell us what you're doing." The cop thereby told me that my seizure would continue until I waived my 5A right to silence. This is coercion to waive a right, a violation of the civil rights act, Title 42 USC.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member WalkingWolf's Avatar
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    It is fairly simple, if the person was not seized, the police had no justification to chase him. Running or walking is not IMO reason to seize a person, unless they ALREADY have RAS. This case is almost identical to US V Black where the fourth court made it clear the officers violated the rights of Black.
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    Quote Originally Posted by WalkingWolf View Post
    It is fairly simple, if the person was not seized, the police had no justification to chase him. Running or walking is not IMO reason to seize a person, unless they ALREADY have RAS. This case is almost identical to US V Black where the fourth court made it clear the officers violated the rights of Black.
    +1 Thank you for mentioning this. I had lost track of it with all my self-congratulation.

    The court reveals its inclination to sophistry with its comment that while the cops were armed, the weapons were out of view of the suspect while the cops were seated in the car. Cops that the court just a little earlier said were wearing tactical vests. Yeah, right. It was 1930's London when bobbies didn't carry guns. Suuuuure.

    Having thereby revealed themselves, it came as no surprise they found the man's seizure legal.

    Notice the court expressly mentions the cop smelled PCP while chasing him. Sorry, judge. The cop didn't smell PCP before chasing him so it can lend no justification for chasing him in the first place; thus, it has no place in this opinion--unless you're trying to convince the reader that the runner was a criminal anyway.

    Now, the court having demonstrated partiality, I am not at all surprised they included the one cop's comment that the suspect patted or held his side while running. But, the opinion doesn't seem to distinguish whether the chasing happened after the waistband patting or before. Crucial question. Why mention it at all? The case is about whether the encounter before the running was consensual. No reason to mention it. And, if it is mentioned as justification for the seizure, it is crucial to distinguish whether the waist-band patting prompted the chasing, or whether just the fact the suspect ran prompted the chasing. Very, very important question. There is lots of precedent on whether a seizure has to be justified at inception.

    This happened in south east Washington DC. Predominantly minority residents. Who's to say a fella, having heard his friends tell about police abuse, and having heard about Ferguson, MO, Walter Scott in SC, and the cigarette seller killed by cops in NYC--who's to say a fella can't just be scared out of his pants and run? I think the courts do. Isn't there a case or two where flight was either enough or a contributing factor in supporting a finding of reasonable articulable suspicion?

    I think the appellant--Will Gross, the suspect--appealed the wrong question. It wasn't whether the initial encounter was consensual; it was whether there was RAS to chase him. Shoulda appealed both questions--assuming he had effective counsel who preserved the issue for appeal.
    Last edited by Citizen; 04-22-2015 at 07:18 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  10. #10
    Regular Member OC for ME's Avatar
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    Quote Originally Posted by Citizen View Post
    Several years ago I noticed a quote in VA appellate court opinion. The VA court was quoting a federal case. ...


    So, you read it here first, folks! A federal judge has validated Citizen's recommended tactic--refuse consent to the encounter itself. This calls for a dancing banana! Several of them.




    *This question is a trap for the cop, intended to make a stronger federal case. Based on reading I've done, some cops will apparently answer some version of "when you tell us what you're doing." The cop thereby told me that my seizure would continue until I waived my 5A right to silence. This is coercion to waive a right, a violation of the civil rights act, Title 42 USC.


    A few more, you deserve them, and the price is right.

    Depending on your state, the plain reading of the law (if one exists in your state) on what constitutes and arrest could be critical in any seeking of a redress of wrongs. In MO, the plain reading of the arrest statute does not appear to allow for a non-arrest detainment. I always think of a way to hold a cop, who "detains" you unlawfully, accountable in a criminal court (yeah, I know, good luck with that).

    In MO I cannot resist a arrest, ever, and as such I am either arrested or free to go about my business.

    http://moga.mo.gov/mostatutes/statht...tml?&me=arrest

    Citizens can detain, but not arrest.

    Oh, while some folks, name courts, hold that a cop walking up to you, uninvited, is a "consensual" encounter need to work to have that term stricken from every legal conversation. It is not consensual, when he is acting under the authority of the state. Every time a citizen is in a courtroom, attempting to hold a "misunderstanding of the law cop," he needs to inject the rejection of the term consensual into the official record.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Campaign Veteran deepdiver's Avatar
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    Quote Originally Posted by OC for ME View Post


    A few more, you deserve them, and the price is right.

    Depending on your state, the plain reading of the law (if one exists in your state) on what constitutes and arrest could be critical in any seeking of a redress of wrongs. In MO, the plain reading of the arrest statute does not appear to allow for a non-arrest detainment. I always think of a way to hold a cop, who "detains" you unlawfully, accountable in a criminal court (yeah, I know, good luck with that).

    In MO I cannot resist a arrest, ever, and as such I am either arrested or free to go about my business.

    http://moga.mo.gov/mostatutes/statht...tml?&me=arrest

    Citizens can detain, but not arrest.

    Oh, while some folks, name courts, hold that a cop walking up to you, uninvited, is a "consensual" encounter need to work to have that term stricken from every legal conversation. It is not consensual, when he is acting under the authority of the state. Every time a citizen is in a courtroom, attempting to hold a "misunderstanding of the law cop," he needs to inject the rejection of the term consensual into the official record.
    +1 RE: Citizen

    As to the rest, oh how I wish we had resources such as this forum 20-25 years ago. I tolerated some jackassery I would not tolerate today because now I know better. I've now reached an age, socio-economic status and lifestyle where such things have not come up for about a decade. Many of these problems seem to be more of an affliction for the young for various reasons - partly youthful behavior and exuberance, partly I would guess expectations of LEO. Things that 20 years ago would have gotten me at least pulled over and likely a ticket (10 over the speed limit in town for example) now tend to earn me a point and wagging finger from LEO, for example. However, on that day, if it comes, where I again meet an infringing LEO, I am far more prepared than before to stand on my rights with confidence. A lot of that confidence is thanks to the fine folks at OCDO who have given me quite the free education in such things.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Campaign Veteran since9's Avatar
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    Interesting...
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    Quote Originally Posted by deepdiver View Post
    +1 RE: Citizen

    As to the rest, oh how I wish we had resources such as this forum 20-25 years ago. I tolerated some jackassery I would not tolerate today because now I know better. I've now reached an age, socio-economic status and lifestyle where such things have not come up for about a decade. Many of these problems seem to be more of an affliction for the young for various reasons - partly youthful behavior and exuberance, partly I would guess expectations of LEO. Things that 20 years ago would have gotten me at least pulled over and likely a ticket (10 over the speed limit in town for example) now tend to earn me a point and wagging finger from LEO, for example. However, on that day, if it comes, where I again meet an infringing LEO, I am far more prepared than before to stand on my rights with confidence. A lot of that confidence is thanks to the fine folks at OCDO who have given me quite the free education in such things.
    +1

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