Recent experience with local LEOs

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A few months ago, claiming to be serving a warrent at my parents' home, the local LEOs found it necessary to point their pistols and shotguns at my 49-yr-old mother and 3-yr-old nephew. No warrent was ever produced at the time of the raid, and the officers told my parents that they were under no obligation "to show them [a warrent] or provide a copy."

The officers also held 2 contracted painters at gunpoint, forcing them to lay on the ground for over 30 minutes, being bitten repeatedly by ants. They were kind enough to only force my mother and nephew to stand in the yard, still being bitten on legs and feet.

During the search, the officers did find the stolen property they were looking for. My brother (who is, literally, mentally retarded) claims he had no knowledge the items were stolen, and cooperated with the LEOs in finding the person that asked him to hold the items.

The officers confiscated the stolen property. They also took every gun in the house and some other property (all of which are legally owned). The officer said that he would bring a receipt for the items in the next couple days - which he never did. To my knowledge, they did get back everything but the stolen property.

I know the LEOs made several procedural mis-steps in this incident. Maybe that's part of the reason they didn't charge my brother with anything (something to the effect of, 'we won't charge you if you ignore these civil/property rights violations'). However, to keep things relavent to these forums, I would like to discuss brandishing.

417. (a) (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:...

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LEOs brandish their firearms so often, that I assume there's some exemption. However, I'm not sure where to find it, and what limitations there are.

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CA_Libertarian wrote:

LEOs brandish their firearms so often...

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That's because they're the only ones professional enough to use them...

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Lew wrote:

CA_Libertarian wrote:

LEOs brandish their firearms so often...

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That's because they're the only ones professional enough to use them...

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Mightthis be referencingto the Adam Henry that negligently discharged his Glock in the classroom video? Yeah, he 'professional' enough. I think this and other issues show that police are judged by a different standard than citizens- Sometimes by looser standards, other times by stricter standards. I wonder what might happen if we treated everyone with the same standards- police or citizen...

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LEO in the performance of their duties may openly draw and display their weapons. Because they are performing their law enforcement duties, it's not "brandishing" (which is essentially 'threat by gun'.) so it doesn't fall within the brandishing statute. Further, LEO have immunity from prosecution for acts within the scope of their duties.

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Lew wrote:

CA_Libertarian wrote:

LEOs brandish their firearms so often...

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That's because they're the only ones professional enough to use them...

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Rob P. wrote:

LEO in the performance of their duties may openly draw and display their weapons. Because they are performing their law enforcement duties, it's not "brandishing" (which is essentially 'threat by gun'.) so it doesn't fall within the brandishing statute. Further, LEO have immunity from prosecution for acts within the scope of their duties.

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Yes. And now that 3-year-old knows all about it. The LEOs were just educating him so he knows his place as he grows to adulthood.

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Rob P. wrote:

LEO in the performance of their duties may openly draw and display their weapons. Because they are performing their law enforcement duties, it's not "brandishing" (which is essentially 'threat by gun'.) so it doesn't fall within the brandishing statute. Further, LEO have immunity from prosecution for acts within the scope of their duties.

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I am going to assume you were being "cute" and in no way actually believe any of that silver coated dung.

More to the point; In no way are officers of the court allowed BY LAW an exception in these areas. They MAY be by a lack of prosecution, but not BY LAW.

If you are aware of ANY relevant and specific sections of criminal code that offer LEOs this sort of immunity, please let me know of it. I *want* to see such special treatment of LEOs that are a matter of LAW.

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para_org wrote:

If you are aware of ANY relevant and specific sections of criminal code that offer LEOs this sort of immunity, please let me know of it. I *want* to see such special treatment of LEOs that are a matter of LAW.

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That's exactly what I want. I'm pretty sure there's no law exempting, but common ("case") law probably established some exemption. My guess is that the DA wouldn't even consider pressing charges until somebody gets shot by an accidental discharge. Even then, I wouldn't expect more than a paid administrative leave (aka vacation).

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Brandishing is hard to prosecute even against private persons let along officersas it is a misdemeanor. Someone must witness and the victim must co-operate. Also, prosecutors are reluctant to take misdemeanors all the way to a jury trial.

If one believes an officer is brandishing one should make a complaint to the next highest authority; sheriff or DA's office as well as file a complaint with the involved agancy. In California, all LEA's are required to report to the DA's office any allegations of on or off duty crimes by LEO's. The involved agancythenhas30 days to address your complaint.

I understand the belief that nothing will come of the complaint as officers often draw in preparation of or while sensing danger but many departments have policies that dictate what conditionsmust be present to draw a weapon.Drawing and holding is going to be different then pointing it directly at someone.

Pointing it at someone, without a good self defense claim, can qualify as a felony under assault with a deadly weapon (CPC - 245).

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CA_Libertarian wrote:

A few months ago, claiming to be serving a warrent at my parents' home, the local LEOs found it necessary to point their pistols and shotguns at my 49-yr-old mother and 3-yr-old nephew. No warrent was ever produced at the time of the raid, and the officers told my parents that they were under no obligation "to show them [a warrent] or provide a copy."

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Did you file a complaint or call a laywer? It's not too late.

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cato wrote:

Did you file a complaint or call a laywer? It's not too late.

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I've advised my parents to do this, but they feel like they're being held over a barrell. If they push the issue, it's not too late for my brother to be charged with receving stolen property and possession of marijuana.

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See Penal Code Section 830.1.

830.1(a)...The authority of these peace officers
extends to any place in the state, as follows:
(3) As to any public offense committed or which there is probable
cause to believe has been committed in the peace officer's presence,
and with respect to which there is immediate danger to person or
property, or of the escape of the perpetrator of the offense.

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A peace officer acting within the scope and breadth of his duty has no liability for acts legally performed within that authority. This is because by act of LAW he is authorized by the State to perform those actions necessary to the performance of his duties as a peace officer in 830.1.

In a nutshell this means that if he is acting as a peace officer and is within the boundaries of this authority he cannot be held liable foractions that are necessary to perform his duties. If this means he feels compelled to draw his weapon and can articulate facts to support the need for such then he can do so. An officer on scene during a search (even a warrantless search) has the right to hold suspects at the scene at gunpoint until he ascertains that they are not a threat to any officers safety. This includes pointing his weapon at a 3 year old child if required.

Thus, if an officer pulls his weapon and can articulate the reason for needing to do so, he is NOT "brandishing" but performing his duties as required by the terms of his appointment as a peace officer. If so then he is automatically exempt from those statutes prohibiting certain acts like "brandishing"if the act performed is required to be performed by him in the performance of his job.

Acts done outside the scope of his job are not exempt because they are not within the authority of, or are duties required of,a peace officer. This is where you get "under color of authority" claims.

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cato wrote:

Brandishing is hard to prosecute even against private persons let along officersas it is a misdemeanor. Someone must witness and the victim must co-operate. Also, prosecutors are reluctant to take misdemeanors all the way to a jury trial.

If one believes an officer is brandishing one should make a complaint to the next highest authority; sheriff or DA's office as well as file a complaint with the involved agancy. In California, all LEA's are required to report to the DA's office any allegations of on or off duty crimes by LEO's. The involved agancythenhas30 days to address your complaint.

I understand the belief that nothing will come of the complaint as officers often draw in preparation of or while sensing danger but many departments have policies that dictate what conditionsmust be present to draw a weapon.Drawing and holding is going to be different then pointing it directly at someone.

Pointing it at someone, without a good self defense claim, can qualify as a felony under assault with a deadly weapon (CPC - 245).

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Yeah....."can qualify" is the operative description.

And I have had this (looking at a one eyed stare through my open window,) happen to me during a traffic stop many years ago in California. I even asked the officer, in a very polite but firm manner, to lower his weapon as I did not have one. He refused to do so.

I just sat there waiting as I was not going to reach for ANYTHING, let alone my "papers".

I will presume this officer just was not going to be worried about any such felony, as I was obviously someone to be concerned about. (And no was not armed at the time.)

I got a ticket and sadly the officer got away with his outlandish behavior.

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CA_Libertarian wrote:

cato wrote:

Did you file a complaint or call a laywer? It's not too late.

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I've advised my parents to do this, but they feel like they're being held over a barrell. If they push the issue, it's not too late for my brother to be charged with receving stolen property and possession of marijuana.

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I would request that the LEO agency produce a copy of the warrant. If they cannot or do not, then file a formal FOIA request. If they cannot or do not produce the warrant, then you can assume that it was not issued. If it was not issued, then the "search" was illegal and anything they found during the search cannot be used as evidence ('Fruit of the poisonous tree' argument)

Also, your PARENTS didn't have the allegedly stolen property yet they were the victims of the supposedly warrantless search. There are NO CRIMES which can be attributed to them. Your brother may have a defense ofincapacity due to his retardation which would/could be a defense against chargesmade against him for the prop/drugs. Therefore, there is no "barrel".

Finally, a case was just handed down from the appellate courts in just the last couple of weeks which says that the State cannot charge someone with a crime in "retaliation" for their attempting to protect their rights. (in short, if you say you're going to sue for 4th amendment violations the State cannot counter with 'if you do we'll charge you with a crime' to prevent your lawful claim from being made.)

So, first step, find out if there was indeed a warrant. If not, then sue. If so, S.O.L.

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Rob P. wrote:

See Penal Code Section 830.1.

830.1(a)...The authority of these peace officers
extends to any place in the state, as follows:
(3) As to any public offense committed or which there is probable
cause to believe has been committed in the peace officer's presence,
and with respect to which there is immediate danger to person or
property, or of the escape of the perpetrator of the offense.

Click to expand...

A peace officer acting within the scope and breadth of his duty has no liability for acts legally performed within that authority. This is because by act of LAW he is authorized by the State to perform those actions necessary to the performance of his duties as a peace officer in 830.1.

In a nutshell this means that if he is acting as a peace officer and is within the boundaries of this authority he cannot be held liable foractions that are necessary to perform his duties. If this means he feels compelled to draw his weapon and can articulate facts to support the need for such then he can do so. An officer on scene during a search (even a warrantless search) has the right to hold suspects at the scene at gunpoint until he ascertains that they are not a threat to any officers safety. This includes pointing his weapon at a 3 year old child if required.

Thus, if an officer pulls his weapon and can articulate the reason for needing to do so, he is NOT "brandishing" but performing his duties as required by the terms of his appointment as a peace officer. If so then he is automatically exempt from those statutes prohibiting certain acts like "brandishing"if the act performed is required to be performed by him in the performance of his job.

Acts done outside the scope of his job are not exempt because they are not within the authority of, or are duties required of,a peace officer. This is where you get "under color of authority" claims.

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The section you quote does not mention exempting LEOs from prosecution or liability while on duty. It simply extends their authority within the state when they are responding to a crime. I'm guessing authority is referring to things like arrest powers (which are different than civilian arrest powers) and enumerated exemptions, such as LEO exemption to 12025 and 12031.

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Rob P. wrote:

..........This includes pointing his weapon at a 3 year old child if required..........

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I would love to here your reason for this to be REQUIRED.

Only an @sshole with a badge would do such a thing. (not to be confused with descent law enforcement officers)

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The statute "authorizes" their duties as police officers. If the State "authorizes" someone to do something then they cannot be held liable if they do it. If the State grants you power you have the right, obligation, & ability to lawfully use it without fear of liability. Just as if a peace officer deputized you would exempt you from carrying a loaded firearm in an incorporated area or school zone.

Think of it this way.... Murder is the unauthorized killing of a person (shorthand version). Because the State sanctions the death penalty, anyone put to death after trial and conviction cannot have been murdered because their death was "authorized" by the state. Same deal here with peace officers - they are "authorized" to perform their duties as LEO. Hence, certain statutes do not apply to them in the normal course of the their jobs even without a specific exemption.

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SP101 wrote:

Rob P. wrote:

..........This includes pointing his weapon at a 3 year old child if required..........

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I would love to here your reason for this to be REQUIRED.

Only an @sshole with a badge would do such a thing. (not to be confused with descent law enforcement officers)

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+1

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SP101 wrote:

Rob P. wrote:

..........This includes pointing his weapon at a 3 year old child if required..........

Click to expand...

I would love to here your reason for this to be REQUIRED.

Only an @sshole with a badge would do such a thing. (not to be confused with descent law enforcement officers)

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MY reason? I am not LEO nor have I ever pointed a weapon at a 3 yr old. I can, however, envision a situation where doing so would be allowed.

Say, for instance, that the hypothetical 3-yr old was playing witha loaded RPG launcher pointed at the couple of thousand unsuspecting people in the highrise office building next door. Do you, as the only officer on the scene, just stand there and hope he doesn't find the trigger? Or do you prudently draw your weapon and hope you never have to make the choice of baby or office building?

Not an a$$hole with a badge situationbut a real nightmare that is easily possible albeit with some small changes in the scenario. (likea home made terrorist pipe bomb and a pushbutton detonator.) LIfe is not black and white and some things are not so simple even if we'd like them to be.

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Rob P. wrote:

The statute "authorizes" their duties as police officers. If the State "authorizes" someone to do something then they cannot be held liable if they do it. If the State grants you power you have the right, obligation, & ability to lawfully use it without fear of liability. Just as if a peace officer deputized you would exempt you from carrying a loaded firearm in an incorporated area or school zone.

Think of it this way.... Murder is the unauthorized killing of a person (shorthand version). Because the State sanctions the death penalty, anyone put to death after trial and conviction cannot have been murdered because their death was "authorized" by the state. Same deal here with peace officers - they are "authorized" to perform their duties as LEO. Hence, certain statutes do not apply to them in the normal course of the their jobs even without a specific exemption.

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I must be missing something here.

Are you saying a LEO canpoint his weapon at a 3 yr old child because the STATE "authorizes" it?

I was asking in what situation would this be "required".