On-the-street officer education - "stop, prove your innocence" incident

Things definitely go better when everyone keeps calm and the facts are allowed to come out. Thankfully I think in this case the officers were only incorrect about the law, but lacked any significant malicious intent.

I think to admit that they were incorrect and apologize took some courage.

(some language in video)
https://www.youtube.com/watch?v=rgr6eszmS_E

As the cops kept asking him to show where it said he could carry a loaded firearm I kept waiting for him to say that anything not illegal is legal so unless the cops know a statute stating it is illegal it is in fact legal.

Sounds like this stop turned into a good educational opportunity, but I remain just dumbfounded that cops can just stop and detain whomever without knowing the law they think is being violated. My job requires that I know numerous laws and regulation and violation can have severe consequences including losing my business so I understand the burden. However, I don't have qualified immunity. Heck, I don't even have a gross negligence standard like an attorney doing the same work has, but instead have the burden of simple negligence. I have appreciation of the difficulties of an LEO's job, however, I also find it frustrating that they can intrude into a citizen's life based on lower standard of ignorance of the law than that with which the state burdens the citizen.

Anyone think that if one of those cops pulled over a traffic offender 10 minutes later and that offender said, "oh, sorry, I didn't know that was the law here" that the cop would say, "Oh, well then that's ok. I didn't know the law about something earlier and stole 30 minutes of a man's life from him because of it. Happens all the time. Have a good night."

deepdiver said:

As the cops kept asking him to show where it said he could carry a loaded firearm I kept waiting for him to say that anything not illegal is legal so unless the cops know a statute stating it is illegal it is in fact legal.

Sounds like this stop turned into a good educational opportunity, but I remain just dumbfounded that cops can just stop and detain whomever without knowing the law they think is being violated. My job requires that I know numerous laws and regulation and violation can have severe consequences including losing my business so I understand the burden. However, I don't have qualified immunity. Heck, I don't even have a gross negligence standard like an attorney doing the same work has, but instead have the burden of simple negligence. I have appreciation of the difficulties of an LEO's job, however, I also find it frustrating that they can intrude into a citizen's life based on lower standard of ignorance of the law than that with which the state burdens the citizen.

Anyone think that if one of those cops pulled over a traffic offender 10 minutes later and that offender said, "oh, sorry, I didn't know that was the law here" that the cop would say, "Oh, well then that's ok. I didn't know the law about something earlier and stole 30 minutes of a man's life from him because of it. Happens all the time. Have a good night."

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We've discussed this many times over the years on this forum.

At the bottom of it is "I am the law." It turns the theory of American government on its head.

Under our system, government only has the powers delegated. Police have the power to seize only upon RAS of a crime*. If the cop can't name the offense, he can't possibly know whether he has the delegated authority to seize.


*In the context being discussed, not literally no other occasions. For example, cops can also seize a person with probable cause, a warrant, under the community caretaking exception to the warrant clause, etc.

Citizen said:

We've discussed this many times over the years on this forum.

At the bottom of it is "I am the law." It turns the theory of American government on its head.

Under our system, government only has the powers delegated. Police have the power to seize only upon RAS of a crime*. If the cop can't name the offense, he can't possibly know whether he has the delegated authority to seize.

*In the context being discussed, not literally no other occasions. For example, cops can also seize a person with probable cause, a warrant, under the community caretaking exception to the warrant clause, etc.

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Well said. I guess the concept comes from an outgrowth of the original community policing. Cops walking the beat stopped and talked to people, voluntary on both sides, all the time. As such they were able to keep a finger on the pulse of the community. With the advent of modern, mobile policing, maybe it was that the cops wanted to continue the conversations without putting in the neighborhood time for it to be just that, a conversation. Add to that the migration from peace officers to law enforcement officers mentality and we get where we are? Or maybe that is all wrong.

Perhaps the evolution isn't even important in matters such as this, but my mind seems to try to find the whys as data points to analyze proposed solutions.

deepdiver said:

Well said. I guess the concept comes from an outgrowth of the original community policing. Cops walking the beat stopped and talked to people, voluntary on both sides, all the time. As such they were able to keep a finger on the pulse of the community. With the advent of modern, mobile policing, maybe it was that the cops wanted to continue the conversations without putting in the neighborhood time for it to be just that, a conversation. Add to that the migration from peace officers to law enforcement officers mentality and we get where we are? Or maybe that is all wrong.

Perhaps the evolution isn't even important in matters such as this, but my mind seems to try to find the whys as data points to analyze proposed solutions.

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I think you're on the right track.

I think it also depends on how much mitigation one wants to achieve. By that I mean I think there have been plenty of thug cops since 1839 or whenever they showed up in American cities after being invented by Sir Robert Peel for London. (They were called Peelers. Today's 'Bobby' is the diminutive for Robert.)

In Miranda v Arizona, SCOTUS makes it clear they knew cops were violating 5A rights as far back as the 1930s. Being hard to hold accountable, and little public sympathy for criminals (even when their rights are violated) have been around a long while I suspect.

One massive hole was Terry v Ohio where SCOTUS invented out of thin air the power of police to temporarily seize someone for investigation. In that case, detective McFadden had extensive observations and darn reasonable inference to suspect the crooks. But, police have not held that standard, invented out of thin air or not. As one conversation on this forum by a cop made clear, RAS is today so slender, so minimal, that cops can almost, but not quite, get away with the slightest plausibility. I strongly suspect any analysis of the problem that omits Terry v Ohio is likely to come up short.

On-the-street officer education - "stop, prove your innocence" incident

Looks like Pearland police learned a thing about legal OC not requiring an unloaded weapon. I would hope a followup call to their chief, perhaps in the form of a letter or email asking them to incorporate this fact into their training so you would not be unlawfully detained for a half hour the next time, and the could spend their time productively policing Pearland city limits.


Sent from my iPhone using Tapatalk

May have also been helpful to offer the Constitution booklet and OCT pamphlet that first time the officer stated "illegal to carry unless unloaded". Would have saved battery life, if anything.

deepdiver said:

As the cops kept asking him to show where it said he could carry a loaded firearm I kept waiting for him to say that anything not illegal is legal so unless the cops know a statute stating it is illegal it is in fact legal.

Sounds like this stop turned into a good educational opportunity, but I remain just dumbfounded that cops can just stop and detain whomever without knowing the law they think is being violated. My job requires that I know numerous laws and regulation and violation can have severe consequences including losing my business so I understand the burden. However, I don't have qualified immunity. Heck, I don't even have a gross negligence standard like an attorney doing the same work has, but instead have the burden of simple negligence. I have appreciation of the difficulties of an LEO's job, however, I also find it frustrating that they can intrude into a citizen's life based on lower standard of ignorance of the law than that with which the state burdens the citizen.

Anyone think that if one of those cops pulled over a traffic offender 10 minutes later and that offender said, "oh, sorry, I didn't know that was the law here" that the cop would say, "Oh, well then that's ok. I didn't know the law about something earlier and stole 30 minutes of a man's life from him because of it. Happens all the time. Have a good night."

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Agree. In my former job we had a whole book of regs and were inspected by five different agencies each year and had to take proficiency tests twice a year. IMO, a person authorized to use deadly force should have the same requirements.

Whose fault is that? NOT THE BEAT COP! It's his higher-ups who run a totally lax agency. It's the default condition.

Maverick9 said:

...

Whose fault is that? NOT THE BEAT COP! It's his higher-ups who run a totally lax agency. It's the default condition.

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Yes it is the beat cop's fault. He does/did not know the law, a fairly simple, and in TX, well known law. Once he knows the law that another incident, either he or another, occurs? He is to blame because he walks a beat, not the top cop.

Beat cops do not live in a vacuum...or so I've been told, yet their actions can, at times, indicate otherwise.

The officer indicated that he'd be open to training on the subject, and even seemed enthusiastic about it. That's a really good sign IMO, indicative of good motives. I honestly hope something comes of that, but I suspect it'd require the chain of command getting on board and seeing it through.

I'm not excusing him, just saying, I think it'd be better to use incidents like this one as education opportunities as opposed to an opportunities to crucify the officers for rights violations or ignorance of the law. Better to end the conversation with "now we both know" than with "I was right and you were wrong! neener-neener!"

I think the OCT admin did a decent job of staying level headed, but there's at least some room for constructive criticism on his part too. I know that it can be hard in the moment to keep calm and take advantage of every opportunity for kind education, and hindsight is 20/20. I guess really it's an education opportunity for both sides.

stealthyeliminator said:

The officer indicated that he'd be open to training on the subject, and even seemed enthusiastic about it. That's a really good sign IMO, indicative of good motives. I honestly hope something comes of that, but I suspect it'd require the chain of command getting on board and seeing it through.

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I can agree with you, in part. The cop seemed open to training on citizen carry. The bigger question in my mind is whether he would be open to training about not seizing people unless he's totally certain he has the authority to do it.

Its not a lite matter by any means. OCers went through numerous detentions masquerading as consensual contacts, detentions, etc. Those OCers were not the first people seized illegally by those cops. OCers just happened to get swept up in their already-existing bizarre mentality that its OK to seize someone without clear and unquestionable authority of law. It boggles the mind to think how many illegal detentions might be occurring in the US. Just look at the history behind the federal monitor overseeing NYPD. Thus, I say it is not a light matter.

Citizen said:

I can agree with you, in part. The cop seemed open to training on citizen carry. The bigger question in my mind is whether he would be open to training about not seizing people unless he's totally certain he has the authority to do it.

Its not a lite matter by any means. OCers went through numerous detentions masquerading as consensual contacts, detentions, etc. Those OCers were not the first people seized illegally by those cops. OCers just happened to get swept up in their already-existing bizarre mentality that its OK to seize someone without clear and unquestionable authority of law. It boggles the mind to think how many illegal detentions might be occurring in the US. Just look at the history behind the federal monitor overseeing NYPD. Thus, I say it is not a light matter.

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That's true. I think this was out of character for the department, given that there have been numerous OC walks (including solo walks unless I'm mistaken) in that area without incident, and so I would honestly not expect continued such detentions on OCers in that area.

I'm reading that a Captain of the department has stated there will be additional training on failure to ID statutes, including accounting of who has completed the training; that OC and Fail to ID training will be a part of shift briefings; and that dispatchers will receive training to get more detail about the nature of man-with-a-rifle calls. I think that, overall, this is a pretty respectable response from department leadership. No mention of RAS/lawful detention training, but I think that point got overlooked by both parties to be frank. It's a good point for us to acknowledge here, though.

stealthyeliminator said:

That's true. I think this was out of character for the department, given that there have been numerous OC walks (including solo walks unless I'm mistaken) in that area without incident, and so I would honestly not expect continued such detentions on OCers in that area.

I'm reading that a Captain of the department has stated there will be additional training on failure to ID statutes, including accounting of who has completed the training; that OC and Fail to ID training will be a part of shift briefings; and that dispatchers will receive training to get more detail about the nature of man-with-a-rifle calls. I think that, overall, this is a pretty respectable response from department leadership. No mention of RAS/lawful detention training, but I think that point got overlooked by both parties to be frank. It's a good point for us to acknowledge here, though.

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Wonderful! I think that is among the best of the outcomes we could see.

deepdiver said:

Wonderful! I think that is among the best of the outcomes we could see.

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Will these talks be accompanied by milk, cookies, blankets and pillows? Just wondering.

stealthyeliminator said:

That's true. I think this was out of character for the department, given that there have been numerous OC walks (including solo walks unless I'm mistaken) in that area without incident, and so I would honestly not expect continued such detentions on OCers in that area.

I'm reading that a Captain of the department has stated there will be additional training on failure to ID statutes, including accounting of who has completed the training; that OC and Fail to ID training will be a part of shift briefings; and that dispatchers will receive training to get more detail about the nature of man-with-a-rifle calls. I think that, overall, this is a pretty respectable response from department leadership. No mention of RAS/lawful detention training, but I think that point got overlooked by both parties to be frank. It's a good point for us to acknowledge here, though.

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It's not like Terry v. Ohio is complicated "law." It's not like cops are not going to cite Terry v. Ohio to justify detaining a citizen while doing what "everybody" knows is lawful behavior in TX. Or, is it still a secret that LGOC is lawful in TX?

Bad stop, crucify those cops, the OCT guy should have KHBMS!

If MY JOB is to enforce State law - I would want to prepare myself by familiarizing myself with MY PRODUCT LINE- spending some time researching State criminal statutes and applicable case law that is READILY AVAILABLE on the internet so as to be better able to perform my job professionally.

Unfortunately that seldom appears to be the case. In stead ...simply controlling whatever situation happens to present during the shift far too often seems to be the # 1 priority.

rushcreek2 said:

If MY JOB is to enforce State law - I would want to prepare myself by familiarizing myself with MY PRODUCT LINE- spending some time researching State criminal statutes and applicable case law that is READILY AVAILABLE on the internet so as to be better able to perform my job professionally.

Unfortunately that seldom appears to be the case. In stead ...simply controlling whatever situation happens to present during the shift far too often seems to be the # 1 priority.

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I'm confident that cops are trained and supervised to arrest first, if there is any doubt(s) let a prosecutor/judge sort it out later.

The former STLPD top cop, on the local AM radio station yesterday, recommends that all citizens not to resist a arrest, even if it is a unlawful arrest, there is a avenue to seek a redress of wrongs. Not that cops should first and foremost know that a clear violation of law exists then proceed with a investigation then arrest if required.

I think that this is the prevailing sentiment amongst the vast majority of cops.

OC for ME said:

It's not like Terry v. Ohio is complicated "law." It's not like cops are not going to cite Terry v. Ohio to justify detaining a citizen while doing what "everybody" knows is lawful behavior in TX. Or, is it still a secret that LGOC is lawful in TX?

Bad stop, crucify those cops, the OCT guy should have KHBMS!

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+1 I was appalled at the amount of time, and the number of cops it took to finally admit they were wrong. Sue them, and get as much as possible, THEN the higher ups might consider more training on the law a good idea. I did not think it was a good encounter at all, though he did manage to eventually walk away with his life. IMO both officers were incompetent, and rude.

The problem with the legal system is that no one involved, from street cops to the Chief Justice, actually study the law. They study about the law, and what others before them have said about it.

From police cheat sheets and field guides to stare decisis, too many people rely on the opinions of others instead of just reading the law directly. Especially so when it comes to the Constitution.

rushcreek2 said:

If MY JOB is to enforce State law -....

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Therein is the challenge. For a long time police officers' main job was to keep the peace; hence "peace officer."

The whole, Law Enforcement Officer is fairly recent and still held in disdain in some circles...including by many who OC.

rushcreek2 said:

In stead ...simply controlling whatever situation happens to present during the shift far too often seems to be the # 1 priority.

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Controlling the situation tends to reduce the odds of getting killed.

There are about 10,000 different things that people can argue about. No way a cop can be an expert at everything from gun laws to water rights, property and easement disputes, to contract law and motor vehicle laws.

Obviously, there are a few key areas they ought to be firmly familiar with including their powers to arrest and detain, when they can search, etc. But--and with all due respect to all current or former police officers on the site--society is not looking for geniuses to be cops. Many departments don't require any college degree at all, merely a HS diploma or GED and academy. Photographic memories, law degrees, or extensive legal expertise are not requirements, nor are we paying the kind of money to cops that folks with those traits can command.

And frankly, I don't think police officers much need those traits. They need to be good people people. They need to be able to solve problems peacefully so everyone survives to go let a judge sort out details.

Peace officers mostly kept the peace. If someone sued someone else, or the lawyers at the state brought charges, they'd go serve warrants as needed. But most of their daily work was keeping the streets peaceable. See deepdiver's post on community policing.

And none of this is to excuse violation of citizen's rights. It is just to consider on what it is we can reasonable expect from police officers and the job we really need them to do.

Charles