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Thread: interesting distinction

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    Accomplished Advocate peter nap's Avatar
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    interesting distinction

    In the meantime, people should be aware that they do not have the right to resist detention by officers, he said. Although Virginia has a law allowing citizens to resist unlawful arrest, the state Supreme Court has ruled this right does not extend to unlawful detention.

    The 2002 ruling in Commonwealth v. Hill asserts that the distinction is important because a detention only temporarily restricts a person’s freedom, as opposed to an arrest that can result in a conviction and restrict freedom for an extended period of time.

    “The commonwealth contends that a rule permitting a detainee to resist an illegal detention would escalate the danger of violence to law enforcement officers engaged in the reasonable performance of their duties,” reads the ruling.

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    Campaign Veteran skidmark's Avatar
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    DAMMIT, peter! You know you are supposed to provide a link.

    Do it, and then go stand in the corner and think about what you did.

    stay safe.
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by skidmark View Post
    DAMMIT, peter! You know you are supposed to provide a link.

    Do it, and then go stand in the corner and think about what you did.

    stay safe.
    I'm a regular outlaw today. First I post pms
    Then I don't post links.
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    Quote Originally Posted by peter nap View Post
    I'm a regular outlaw today. First I post pms
    Then I don't post links.
    http://zoom.netatlantic.com/t/167733...133/113151/76/
    That's why you are my hero.

    Sing along, Bad boys, Bad boys. Whatcha gonna do? Whatcha ya gonna do when they come for you?

    ;>)

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    Quote Originally Posted by peter nap View Post
    In the meantime, people should be aware that they do not have the right to resist detention by officers, he said. Although Virginia has a law allowing citizens to resist unlawful arrest, the state Supreme Court has ruled this right does not extend to unlawful detention.

    The 2002 ruling in Commonwealth v. Hill asserts that the distinction is important because a detention only temporarily restricts a person’s freedom, as opposed to an arrest that can result in a conviction and restrict freedom for an extended period of time.

    “The commonwealth contends that a rule permitting a detainee to resist an illegal detention would escalate the danger of violence to law enforcement officers engaged in the reasonable performance of their duties,” reads the ruling.
    Hey!! I've been referring to this case by the wrong name for a few years.

    Thanks for clearing that up.

    Here's a link for anybody who wants to read it (don't blame me if you lose your cookies). http://valawyersweekly.com/fulltext-...alth-v-hill-3/

    The really disgusting part, in my mind, is the court erases your right to resist illegal arrest in certain circumstances. Here's how. Its very simple. If you're handcuffed "for officer safety" during an illegal detention, you can't possibly resist if it escalates to an illegal arrest.

    So, a cop moves in to cuff you, stating its for "officer safety". Then, after you're cuffed, he announces you're under arrest (assuming he gives you the courtesy of announcing it).

    You have no way to know unless the officer deigns to be honest about what he's up to.

    The seeds for this were planted years ago in Terry vs Ohio. In that case, the power of police to temporarily detain a suspect, and pat him down for weapons, was invented by the US Supreme Court out of thin air. The crucial element for this discussion is that SCOTUS, in the last paragraph of that case, makes it clear that determining the legality of the detention is up to the courts. And, since the courts only get involve later, that means the legality of the detention is determined only after the detention occurs.

    But, here's the worst part. Lets go back a couple years to that fella in (Indiana?) who threw a cop out of his house for attempting entry without a warrant. The state appeals court or legislature tried changing the law to say it was illegal to resist a warrantless entry. On the surface, it doesn't sound terrible. But, it destroys the very foundation of government in this country. In so many words, it makes the individual subservient to government, rather than the other way around. Think about it. The only way an individual can be compelled to submit to government even when government is wrong is if the government is greater than the people. It turns delegated powers on its head. Under the current theory, government gets its power from the people when the people delegate some of their powers to government. Meaning, government is supposed to be the servant, not the master. Requiring people to submit to government even when government is wrong necessarily means government is acting without a delegated power. And the only way that can work is to say the people are servants of government, not the other way around.

    Commonwealth vs Hill moves quite a bit in that direction. The court pretends you have a remedy in court; yet, we all know police receive a lot of credibility in the courts, and we all know, or can find out easily enough, how the courts fail to support rights. So, while the court in Commonwealth v Hill pretends you have a remedy in court, its a false implication. That case says in so many words that you are subservient to government. It doesn't go as far as the (Indiana?) situation, but its there. In VA, when it comes to an illegal detention, you are the servant, not the master. And, if you want to be vindicated, you better have so many facts and so much proof on your side the court can't find a way to minimize or ignore it without looking like monkeys.
    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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    Accomplished Advocate user's Avatar
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    Quote Originally Posted by peter nap View Post
    I'm a regular outlaw today. First I post pms
    Then I don't post links.
    http://zoom.netatlantic.com/t/167733...133/113151/76/
    Why should today be any different?
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    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.

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    Quote Originally Posted by peter nap View Post
    In the meantime, people should be aware that they do not have the right to resist detention by officers, he said. Although Virginia has a law allowing citizens to resist unlawful arrest, the state Supreme Court has ruled this right does not extend to unlawful detention.

    The 2002 ruling in Commonwealth v. Hill asserts that the distinction is important because a detention only temporarily restricts a person’s freedom, as opposed to an arrest that can result in a conviction and restrict freedom for an extended period of time.

    “The commonwealth contends that a rule permitting a detainee to resist an illegal detention would escalate the danger of violence to law enforcement officers engaged in the reasonable performance of their duties,” reads the ruling.
    We conclude that the law of this Commonwealth, including the common law of England incorporated into our Code by § 1-10, does not provide a basis for recognizing a common law right to use force to resist an illegal detention. In the absence of authority requiring such a right, we perceive no reason for enlarging, by judicial decision, the scope of the common law on this subject.
    -- Commonwealth v. Hill, 264 Va. 541, 546, 570 S.E.2d 805 (2002).

    There are a couple of problems with this paragraph. First, the creation of an arbitrary distinction between "detention" and "arrest" that doesn't really exist. The word, "arrest", comes to us in the law from Norman French, and simply means, "stop". Historically, there are three levels of arrest: consensual stop, investigative stop, and full custody. In a consensual stop, it's by consent because the person stopped agrees to stop and can walk away any time he likes. Reasonable suspicion is required for an investigative stop, and although the individual is not in full custody, he does not have the right to walk away. It is this intermediate level of arrest that Terry v. Ohio applies to; there's really no such thing as a "Terry stop", the power to search in the event of a perceived threat (and there has to be one) to "officer safety", arises out of the need to detain the individual until a decision whether to place him in custody has been made; that is to determine whether more than reasonable suspicion, i.e., probable cause, exists.

    So no real suspicion or cause is necessary for the consensual stop - anyone can stop anyone else at any time to ask a question, for example, "Where's the nearest bus stop?"; and the cops power, absent reasonable suspicion that "crime is afoot" and that the individual stopped is either responsible or a material witness, is limited to chatting. If there is reasonable suspicion, then the cops can detain a person, in handcuffs if necessary. But when I ask you where the bus stop is, I've "arrested" you. So the Court's distinction between "detention" and "arrest" is like a distinction between "truck" and "vehicle".

    So in my opinion, the Court is just plain wrong on the issue of illegal arrests. I think the case could have been decided simply on the basis of reasonable suspicion, without talking about the right to refuse to submit to an illegal arrest, since the cop doesn't actually have to be right in his judgment, only that he have a reasonable basis for thinking there's something that needs investigating that he can talk about (a "hunch" is good enough to stop someone to chat, but there has to be reason to think there's crime going on to do more than that). I think the Court confused the standards to be applied, and went where it didn't need to go.

    A great deal of the problems created by judicial opinions like Hill are, in my mind, the result of bad lawyering. If an attorney doesn't frame the issues on appeal in such a way as to allow the Court to do something sensible, then it will do something that is, shall we say, less than helpful. I think Hill is open to question and the real kicker is going to be what happens the next time the Court entertains such a case.
    Last edited by user; 06-19-2015 at 07:50 AM.
    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.

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    If you are being arrested (detained) there is no real difference in the two that I can tell. It could be possible what makes the difference is what you say next and how you word it from my experience.

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    Campaign Veteran skidmark's Avatar
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    I recently had someone who shall remain nameless (not nice to out the mentally deficient) explain it to be in practical terms -

    "If I detain you I can change my mind and let you go. If I arrest you the only way you can leave is after you post bail (if they let you do that)."

    I was between spoonfuls at the Chinese soup place so did not redecorate the front of his shirt and the rest of the place. My soup got almost cold because I was waiting until I could take another spoonful without the risk of choking from uncontrollable laughter.

    stay safe.
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    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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    Quote Originally Posted by skidmark View Post
    I recently had someone who shall remain nameless (not nice to out the mentally deficient) explain it to be in practical terms -

    "If I detain you I can change my mind and let you go. If I arrest you the only way you can leave is after you post bail (if they let you do that)."

    I was between spoonfuls at the Chinese soup place so did not redecorate the front of his shirt and the rest of the place. My soup got almost cold because I was waiting until I could take another spoonful without the risk of choking from uncontrollable laughter.

    stay safe.
    That's the biggest crock of[emoji90] I have heard in a long time. Better yet did that person eat a bowl of stupid for lunch?

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by All American Nightmare View Post
    That's the biggest crock of[emoji90] I have heard in a long time. Better yet did that person eat a bowl of stupid for lunch?

    Sent from my SAMSUNG-SM-N915A using Tapatalk
    I just report the facts.

    If memory serves, he ordered the Kung Po chicken. Have no idea what he had for breakfast.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

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    Quote Originally Posted by skidmark View Post
    I recently had someone who shall remain nameless (not nice to out the mentally deficient) explain it to be in practical terms -

    "If I detain you I can change my mind and let you go. If I arrest you the only way you can leave is after you post bail (if they let you do that)."

    I was between spoonfuls at the Chinese soup place so did not redecorate the front of his shirt and the rest of the place. My soup got almost cold because I was waiting until I could take another spoonful without the risk of choking from uncontrollable laughter.

    stay safe.
    I used to use Investigatory Detention all the time. Sometimes it led to an arrest, and sometimes not.
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    Quote Originally Posted by ProShooter View Post
    I used to use Investigatory Detention all the time. Sometimes it led to an arrest, and sometimes not.
    If we are not free to got then we are under arrest then how is this different?

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    Quote Originally Posted by All American Nightmare View Post
    If we are not free to got then we are under arrest then how is this different?

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    Read User's post above.
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    Quote Originally Posted by ProShooter View Post
    Read User's post above.
    I have I'm asking someone who was on the other side

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    Quote Originally Posted by All American Nightmare View Post
    I have I'm asking someone who was on the other side

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    Other side of what?
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    Quote Originally Posted by ProShooter View Post
    Other side of what?
    What law enforcement is taught

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    Quote Originally Posted by All American Nightmare View Post
    What law enforcement is taught

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    Law enforcement is taught to enforce the law. Do you expect something other than that?
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    Quote Originally Posted by ProShooter View Post
    Law enforcement is taught to enforce the law. Do you expect something other than that?
    To be honest yes I do. What were leos taught by the academy to do if you told the the person they were not under arrest but being detained and not cuffed if they walked away or tried to?

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    Last edited by All American Nightmare; 07-26-2015 at 02:49 AM.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by All American Nightmare View Post
    To be honest yes I do. What were leos taught by the academy to do if you told the the person they were not under arrest but being detained and not cuffed if they walked away or tried to?

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    If your being detained, your not free to leave. If you walk away, expect to be cuffed.
    The biggest distinction between a detention and an arrest Is the detention is temporary and can only last a "reasonable" amount of time. There have been a number of court rulings as to what reasonable is. The last one I remember eliminated making the person wait for a dog to arrive in absence of an evidence of a crime .
    That used to be a dodge to search vehicles. The officer would say, if you refuse I'll call for a drug dog but it'll be a couple of hours before it can get here.

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    Quote Originally Posted by peter nap View Post
    If your being detained, your not free to leave. If you walk away, expect to be cuffed.
    The biggest distinction between a detention and an arrest Is the detention is temporary and can only last a "reasonable" amount of time. There have been a number of court rulings as to what reasonable is. The last one I remember eliminated making the person wait for a dog to arrive in absence of an evidence of a crime .
    That used to be a dodge to search vehicles. The officer would say, if you refuse I'll call for a drug dog but it'll be a couple of hours before it can get here.
    I know and have been through almost every trick leos use. I was trying to see if what was being taught was actually the law.

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    Quote Originally Posted by All American Nightmare View Post
    I know and have been through almost every trick leos use. I was trying to see if what was being taught was actually the law.

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    The point is not if what they are being taught (formal academy, training officer, or post TO OJT) is actually the law. The point is if what they are being taught is against the law.

    Cops can lie to you about just about anything and get away with it. Including (or is that "especially") what the law is. That has been known since before even I was young.

    stay safe.
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    Because stupidity isn't a race, and everybody can win.

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    Quote Originally Posted by skidmark View Post
    The point is not if what they are being taught (formal academy, training officer, or post TO OJT) is actually the law. The point is if what they are being taught is against the law.

    Cops can lie to you about just about anything and get away with it. Including (or is that "especially") what the law is. That has been known since before even I was young.

    stay safe.
    I was trying to prove that

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    That's really interesting because English Common Law, as understood in the State of Victoria in Australia defines any detention as an arrest and any unlawful detention is an unlawful arrest, and thus to resist it is lawful.

    English Common Law is also the basis for Common Law in Virginia so it is interesting to see how both are interpreted differently?

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    Quote Originally Posted by peter nap View Post
    That used to be a dodge to search vehicles. The officer would say, if you refuse I'll call for a drug dog but it'll be a couple of hours before it can get here.
    This was shown on the OCDO thread of the criminal justice college girl getting Tazered by the Border patrol in upstate Ny - inside the 100 mile range of the Canadian border. Federales didnt like her impertinence at recording their illegal search and request for ID.


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