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Thread: OC, Disorderly Conduct and the Fourteenth Amendment

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    So, I'm still really hung up on being able to defend against OC'ing not being Disorderly Conduct even though WE know it's not -- this is a defense scenario I've come up with and I'd like any critique on the premise...

    The Fourteenth Amendment provides equal protect under the law for all people. So, for instance, if you're on public property and an officer orders you off of that property, this is not a lawful order since he isn't ordering everyone off of that property, e.g. the law isn't being applied equally since you're being singled out and are commanded to do something other than what the law provides for.

    I was thinking about how this could be applied to Disorderly Conduct.

    We walk down the street openly carrying a sidearm. Who else does this?

    Law enforcement.

    Why aren't they charging themselves with Disorderly Conduct? (Hear me out....)

    The reactionary people might say, "Because they're a police officer." I say, "So, what?" The more thoughtful people might say, "Because they're a police officer discharging their duties as law enforcement." Which is a bit of a better answer; however, in almost every Disorderly Conduct statute there's no officer exception written into the law as there is, for example, for the carrying of a concealed weapon by an officer during the course of their duties.

    This brings me to ask the question, if they're not arresting themselves for simply walking down the street while openly carrying a handgun, is this not a violation of your Fourteenth Amendment right to have the law equally applied to you? Unless the officer is specifically exempted, why is the law applied differently simply because of a job title?

    Thoughts? Gaping holes in my logic?

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    I've had a form of this conversation with the police during a stop. They asked why I had guns. I asked why they had guns. They said they were allowed to have guns. I said so am I... back and forth. They weren't amused at the "sniper rifle" I had in the trunk, but it was all legal. They don't have to like it. It's not like I was accosted on my way up a tower with the thing loaded...

    Anyway, as for the 14th amendment, I think the intent was sothat historically reviled minority types would have equal standing in the courts (particularly asa remedy for the Dred Scott ruling about the non-person status of African Americanes), not that the law was to prohibit the police from singling out individuals. For example, saying "everyone else was going even faster than I was" is not a workable defense to a speeding ticket vis the 14th amendment.

    -ljp

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    Legba wrote:
    Anyway, as for the 14th amendment, I think the intent was sothat historically reviled minority types would have equal standing in the courts (particularly asa remedy for the Dred Scott ruling about the non-person status of African Americanes), not that the law was to prohibit the police from singling out individuals. For example, saying "everyone else was going even faster than I was" is not a workable defense to a speeding ticket vis the 14th amendment.

    -ljp
    There are a few parts to the 14th Amendment and, while the case regarding the state providing council for indigent defendants at a felony trial was certainly part of it, the Supreme Court has stated in the past: "Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.'' Or, more succinctly, ''statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution.''

    (http://caselaw.lp.findlaw.com/data/constitution/amendment14/19.html#1)

    And, while you're example is correct ("Everyone was going faster than I was") is not a workable defense, I don't think it's an accurate representation simply because the officer COULD have pulled over other people that were speed (but simply chose you) and they do have latitude on writing citations.

    Rather, if we gear the scenario back towards the one on one -- if you're on public property with a group of people and an officer indiscriminately comes up to you and says, "Legba, you must leave this property. Everyone else may stay," this is a violation of your Fourteenth Amendment rights because the law is not being equally applied to you.

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    Folks - show me a case holding OC in a holster while going about your business is DC - any state you can, show it to me. Otherwise, this threat of a DC charge is just a red herring.

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    Mike wrote:
    Folks - show me a case holding OC in a holster while going about your business is DC - any state you can, show it to me. Otherwise, this threat of a DC charge is just a red herring.
    I mean, I know that it's a red herring, but the fact is there's always going to be a constant influx of new law enforcement who don't know the law and might (just might) wind up arresting someone on this charge.

    While we know that it won't be prosecuteable, I'd like to, at the very least, be able to discuss and reason this other other people, if not a law enforcement officer, should the subject arise.

    Delaware doesn't have any precidence for this, so -- rephrasing your question, if you can show me a Delaware or US Supreme Court case holding that OC'ing in a holster while going about your business is not disorderly conduct, I'd at least be armed with that cite.

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    Wynder wrote:
    SNIP to defend against OC'ing not being Disorderly Conduct even though WE know it's not -- this is a defense scenario I've come up with and I'd like any critique on the premise...
    What is the DC statute in your state? Can you post it for us?

    There may be a way to bring brandishing into the picture. For example, if brandishing is defined as holding, waving, etc. in a manner that causes reasonable fear, you can counter by questioning whyyou are being accused of brandishing. When the harrasser says you're not being accused of brandishing, you can smugly point out that brandishing is the loooong-recognized legal threshold for reasonable fear, "So, if I'm not brandishing, their fear can't possibly be reasonable can it?"

    Or, "Weapons are have their own statute--brandishing."
    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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    Citizen wrote:
    What is the DC statute in your state? Can you post it for us?
    1301. Disorderly conduct; unclassified misdemeanor.

    A person is guilty of disorderly conduct when:
    (1) The person intentionally causes public inconvenience, annoyance or alarm to any other person, or creates a risk thereof by:

    a. Engaging in fighting or in violent, tumultuous or threatening behavior; or
    b. Making an unreasonable noise or an offensively coarse utterance, gesture or display, or addressing abusive language to any person present; or
    c. Disturbing any lawful assembly or meeting of persons without lawful
    authority; or
    d. Obstructing vehicular or pedestrian traffic; or
    e. Congregating with other persons in a public place and refusing to comply with
    a lawful order of the police to disperse; or
    f. Creating a hazardous or physically offensive condition which serves no
    legitimate purpose; or
    g. Congregating with other persons in a public place while wearing masks,
    hoods or other garments rendering their faces unrecognizable, for the
    purpose of and in a manner likely to imminently subject any person to the
    deprivation of any rights, privileges or immunities secured by the Constitution
    or laws of the United States of America.

    (2) The person engages with at least 1 other person in a course of disorderly conduct as defined in subdivision (1) of this section which is likely to cause substantial harm or serious inconvenience, annoyance or alarm, and refuses or knowingly fails to obey an order to disperse made by a peace officer to the participants.

    Disorderly conduct is an unclassified misdemeanor.

    There may be a way to bring brandishing into the picture.
    Delaware has no brandishing law. There is, however, manacing:

    ยง 602. Menacing; unclassified misdemeanor.

    (a) A person is guilty of menacing when by some movement of body or any instrument the person intentionally places another person in fear of imminent physical injury.

    Menacing is an unclassified misdemeanor.

    (b) A person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury.

    Aggravated menacing is a class E felony.

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    Wynder wrote:
    Citizen wrote:
    What is the DC statute in your state? Can you post it for us?
    SNIP 1301. Disorderly conduct; unclassified misdemeanor.
    Looks like you've got your answer.

    I don't see how the DC statute can be applied to OC. It just does not apply.

    Substitute "menacing" or "aggravated menacing" for "brandishing" and you've got the statute. It looks like Delaware just usesa different word and is more comprehensive.

    With regard to your earlier tactic, I think it will fail on the listener. It requires the listener to have a pre-existing agreement that police and citizens are equal.

    I think that will be a rare police officer. I could be wrong, but I wouldn't hinge my argument on it. If its a police officer who has his self-importance and worth tied up in being a "protector" of society, you can forget having or getting his agreement on the equality point.

    If your listener is a citizen who has bought into all the "police are..." PR, it will be just as difficult, but for different reasons.

    I think your best bet is to just explain that DC covers certain behaviors and menacing covers certain other behaviors. And neither covers OC.


    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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    Citizen wrote:
    With regard to your earlier tactic, I think it will fail on the listener. It requires the listener to have a pre-existing agreement that police and citizens are equal.
    Perhaps if you begin by explaining that the police are bound to laws, just as we are, the conversation might have a better start.

    Can officers murder? No.

    Can officers embezzle? No.

    Can officers assault someone? No.

    Can an officer speed? No.

    And, with those last two, the person will realize or mention, "Well, if they're on duty, there are exemptions." And surely there are -- the exemptions are built into those laws; however, as proved by the first two examples, exemptions aren't universal across the Criminal Code.

    The laws are meant to be equally applied to those whom they affect and are not exempt. Again, I know that we know this, but I'd love for the layperson to understand it.

    *sigh*

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    Wynder wrote:
    Citizen wrote:
    With regard to your earlier tactic, I think it will fail on the listener. It requires the listener to have a pre-existing agreement that police and citizens are equal.
    SNIP Perhaps if you begin by explaining that the police are bound to laws, just as we are, the conversation might have a better start.
    You jogged something for me, thank you.

    I have hadsuccess pointing out that cops don't carry guns to catch criminals; they carry guns for self-defense.

    Then point out that cops can't just shoot crooks to make them easier to catch, (except under some very specific circumstances, but you can add this later.) People willtend to agree with this. Cops can't avoid agreeing with it.

    Then point out that police are subject to the same lawof self-defense that everybody else is.

    Then explain that cops carry guns so they can defend themselves and others from criminals, just like you and I.The only difference is that a cop goes looking for criminals. But its still just self-defense, shooting a fleeingfelon who is clearly immediately dangerous to the community, excepted--and maybenot all that big ofan exception. Its only a short stretch to sayshooting that fleeing dangerous felon is defending others. Itis. Its just the time framein the form of immediacy of the threat that is different.
    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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    Citizen wrote:
    Wynder wrote:
    Citizen wrote:
    With regard to your earlier tactic, I think it will fail on the listener. It requires the listener to have a pre-existing agreement that police and citizens are equal.
    SNIP Perhaps if you begin by explaining that the police are bound to laws, just as we are, the conversation might have a better start.
    You jogged something for me, thank you.

    I have hadsuccess pointing out that cops don't carry guns to catch criminals; they carry guns for self-defense.

    Then point out that cops can't just shoot crooks to make them easier to catch, (except under some very specific circumstances, but you can add this later.) People willtend to agree with this. Cops can't avoid agreeing with it.

    Then point out that police are subject to the same lawof self-defense that everybody else is.

    Then explain that cops carry guns so they can defend themselves and others from criminals, just like you and I.The only difference is that a cop goes looking for criminals. But its still just self-defense, shooting a fleeingfelon who is clearly immediately dangerous to the community, excepted--and maybenot all that big ofan exception. Its only a short stretch to sayshooting that fleeing dangerous felon is defending others. Itis. Its just the time framein the form of immediacy of the threat that is different.
    +1 Very good point!

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    In regards to the police carrying a gun and disorderly conduct....

    I hardly think that anyone would believe this to be true. The people would actually expect every police officer to be wearing a gun as this has always been a part of the cops gear.

    The police carry a gun, a baton, mace, and many other tools to get the job done. A gun is more than just personal protection to the police. It is also used to stop criminals who are about to attack others.

    I have to laugh at the notion that someone would actually try to make a connection of the police with guns on duty to be disorderly conduct.

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    LEO 229 wrote:
    In regards to the police carrying a gun and disorderly conduct....

    I hardly think that anyone would believe this to be true. The people would actually expect every police officer to be wearing a gun as this has always been a part of the cops gear.

    The police carry a gun, a baton, mace, and many other tools to get the job done. A gun is more than just personal protection to the police. It is also used to stop criminals who are about to attack others.

    I have to laugh at the notion that someone would actually try to make a connection of the police with guns on duty to be disorderly conduct.
    The point being made here is how some officers would find someone simply open carrying as being disorderly conduct. But putting that aside, do you really think what you're saying is a valid legal argument? Because it's always been that way?

    In the 1700's, the same argument was used with regards to furthering the issuance of general warrants and writs of assistance... "Since the orders and writs have been issued over the past century, their legality is time-proven."

    The judge actually laughed at the arguing counsel.

    In all honesty though, if there is no codified/statutory exception for an officer, why should they be exempt?



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    Wynder wrote:
    The point being made here is how some officers would find someone simply open carrying as being disorderly conduct. But putting that aside, do you really think what you're saying is a valid legal argument? Because it's always been that way?

    In the 1700's, the same argument was used with regards to furthering the issuance of general warrants and writs of assistance... "Since the orders and writs have been issued over the past century, their legality is time-proven."

    The judge actually laughed at the arguing counsel.

    In all honesty though, if there is no codified/statutory exception for an officer, why should they be exempt?
    Maybe you missed the point.... the "people" who see otherswill decide in their own minds ifsomeone is beingdisorderly based on what they are doing.

    The people are NOT going to view the cops as being disorderly for carrying a gunas the people"expect" the police to be armed. In this..... I say "This is how it has always been." Therefore... it has noting to do with a "legal argument" and everything to do with public perception.

    There are times when the people will think, believe, or even feel that another person armed with a gun is creating a panic orviewed as being disorderly. That is their call.

    Now I do not agree that someone walking around with a gun would automatically be disorderly. That is just dumb. The police should not be going after people that are armed to charge them if there are no citizens making a complaint. I would need a victim to come forward.

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    LEO 229 wrote:
    Wynder wrote:
    The point being made here is how some officers would find someone simply open carrying as being disorderly conduct.
    Maybe you missed the point.... the "people" who see otherswill decide in their own minds ifsomeone is beingdisorderly based on what they are doing.
    We were obviously arguing different points here,

    Now I do not agree that someone walking around with a gun would automatically be disorderly. That is just dumb. The police should not be going after people that are armed to charge them if there are no citizens making a complaint. I would need a victim to come forward.
    But at least we're somewhat in agreement with regards to the conclusion with the stipend that the victims are lodging a valid complaint and not simply that there's an armed citizen walking down the street, minding their own business.

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    LEO 229 wrote:
    Now I do not agree that someone walking around with a gun would automatically be disorderly. That is just dumb. The police should not be going after people that are armed to charge them if there are no citizens making a complaint. I would need a victim to come forward.
    So, if someone (The so called victim)said I was being disorderly while just openly carrying, you would arrest me for DC? I mightfind it disorderly andscary to see someone wearing a fur coat, as fur is murder, are you going to arrest them if I claim they are disordering my sense of well being?
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    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    LEO 229 wrote:
    The police carry a gun, a baton, mace, and many other tools to get the job done. A gun is more than just personal protection to the police. It is also used to stop criminals who are about to attack others.
    This is true for me too, and I'm not a cop... yet... so I don't understand this argument.

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    Venator wrote:
    LEO 229 wrote:
    Now I do not agree that someone walking around with a gun would automatically be disorderly. That is just dumb. The police should not be going after people that are armed to charge them if there are no citizens making a complaint. I would need a victim to come forward.
    So, if someone (The so called victim)said I was being disorderly while just openly carrying, you would arrest me for DC? I mightfind it disorderly andscary to see someone wearing a fur coat, as fur is murder, are you going to arrest them if I claim they are disordering my sense of well being?
    Nope....

    Now if you entered a private party that was for anti gun members and your being there with a gun is obviously not welcome. Your there just to stir things up and IF...... big IF..... the state code for disorderly conduct covered this type of act... then ya!! You get a ticket.

    But as I said... it is not something that is automatic unless there is a state code that says so.

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    LEO 229 wrote:
    Venator wrote:
    LEO 229 wrote:
    Now I do not agree that someone walking around with a gun would automatically be disorderly. That is just dumb. The police should not be going after people that are armed to charge them if there are no citizens making a complaint. I would need a victim to come forward.
    So, if someone (The so called victim)said I was being disorderly while just openly carrying, you would arrest me for DC? I mightfind it disorderly andscary to see someone wearing a fur coat, as fur is murder, are you going to arrest them if I claim they are disordering my sense of well being?
    Nope....

    Now if you entered a private party that was for anti gun members and your being there with a gun is obviously not welcome. Your there just to stir things up and IF...... big IF..... the state code for disorderly conduct covered this type of act... then ya!! You get a ticket.

    But as I said... it is not something that is automatic unless there is a state code that says so.

    That's not what you stated. As for your recent example, only if the party was on private property and I was asked to leave. If the gathering of anti's was on public land I have a right to be there. But as you say depending on state and local laws.

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    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    Then point out that cops can't just shoot crooks to make them easier to catch, (except under some very specific circumstances, but you can add this later.)
    I don't know if it is still on the books but in NC the Governor could declare someone an outlaw which meant they were to be shot on sight. That was an example of shooting crooks to make them easier to catch. I think the term was outlaw, maybe someone from NC can fill us in on it.

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    PT111 wrote:
    Then point out that cops can't just shoot crooks to make them easier to catch, (except under some very specific circumstances, but you can add this later.)
    I don't know if it is still on the books but in NC the Governor could declare someone an outlaw which meant they were to be shot on sight. That was an example of shooting crooks to make them easier to catch. I think the term was outlaw, maybe someone from NC can fill us in on it.
    That's a handy law to have - maybe we can get him to declare all MS-13 members outlaws and solve a social problem quickly and easily. If nothing else they will all move to Chicago which in a way does further solve the problem
    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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    Venator wrote:
    LEO 229 wrote:
    Venator wrote:
    LEO 229 wrote:
    Now I do not agree that someone walking around with a gun would automatically be disorderly. That is just dumb. The police should not be going after people that are armed to charge them if there are no citizens making a complaint. I would need a victim to come forward.
    So, if someone (The so called victim)said I was being disorderly while just openly carrying, you would arrest me for DC? I mightfind it disorderly andscary to see someone wearing a fur coat, as fur is murder, are you going to arrest them if I claim they are disordering my sense of well being?
    Nope....

    Now if you entered a private party that was for anti gun members and your being there with a gun is obviously not welcome. Your there just to stir things up and IF...... big IF..... the state code for disorderly conduct covered this type of act... then ya!! You get a ticket.

    But as I said... it is not something that is automatic unless there is a state code that says so.
    That's not what you stated. As for your recent example, only if the party was on private property and I was asked to leave. If the gathering of anti's was on public land I have a right to be there. But as you say depending on state and local laws.
    Stated where?

    The entire thing is open for a debate that is far too broad. The use of the DC violation is probably written very differently in each state so we are exploiting code as a whole without anything to even back it up.

    I am not sure why you are so fixated on my speculation anyway. I am not taking you to court for this am I?


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    LEO 229 wrote:
    I am not sure why you are so fixated on my speculation anyway. I am not taking you to court for this am I?
    Not yet! I just like to pick apart some of the things you say. You have some interesting points of view, especially being a former Michigander.
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    Wynder wrote:
    Citizen wrote:
    What is the DC statute in your state? Can you post it for us?
    1301. Disorderly conduct; unclassified misdemeanor.

    A person is guilty of disorderly conduct when:
    (1) The person intentionally causes public inconvenience, annoyance or alarm to any other person, or creates a risk thereof by:

    a. Engaging in fighting or in violent, tumultuous or threatening behavior; or
    b. Making an unreasonable noise or an offensively coarse utterance, gesture ordisplay, or addressing abusive language to any person present; or
    c. Disturbing any lawful assembly or meeting of persons without lawful
    authority...
    That's the only wording I am worried about. The "display" prohibited here likely refers to gang signs, flipping the bird, etc. but it can also be construed as display of a weapon. In order for you to be convicted of disorderly conduct, the prosecution has to prove intent to cause public alarm, but that's a question of fact for the jury, not the arresting officer (who could in making the arrest say that the conscious decision to wear openly was evidence of intent to disturb or alarm, so if you have the misfortune to encounter a real power-tripper wearing a badge and a gun you could easily find yourself wearing the silver bracelets in the back seat of a cruiser.

    None of this, however, is justice. If you ever have the serious misfortune to find yourself arrested for OCwhen it is legal to do so, you get the arresting officer's name and badge number, the department head's name, the jurisdiction chief's (or sherriff's) name, and all three of them plus the department itself should appear on the next lawsuit filed in the applicable court, for false arrest and unlawful detention.

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    Wynder wrote:
    Citizen wrote:
    With regard to your earlier tactic, I think it will fail on the listener. It requires the listener to have a pre-existing agreement that police and citizens are equal.
    Perhaps if you begin by explaining that the police are bound to laws, just as we are, the conversation might have a better start.

    Can officers murder? No.

    Can officers embezzle? No.

    Can officers assault someone? No.

    Can an officer speed? No.

    And, with those last two, the person will realize or mention, "Well, if they're on duty, there are exemptions." And surely there are -- the exemptions are built into those laws; however, as proved by the first two examples, exemptions aren't universal across the Criminal Code.

    The laws are meant to be equally applied to those whom they affect and are not exempt. Again, I know that we know this, but I'd love for the layperson to understand it.

    *sigh*
    Sorry to be a nitpicker, but you've hit my pet peeve button...namely, the difference between the actual meanings of the words "can" and "may". Not understanding the difference can get folks in a lot of trouble, by getting or giving a false impression. This is one of the biggest beefsI have with the media, as they are constantly misusing the two, either accidentally, or intentionally.

    If you want this taken properly, you'll have to use "may" instead of"can".

    Can officers murder? Yes they can, they have, and they will continue to, unfortunately. They have killed, they are killing, and they will continue to kill, either justifiably or unjustifiably.May they murder? I guess we'll have to clarify exactlywhat we mean by "kill" and "murder", and there are a number of definitions and laws covering that.

    Canofficers embezzle? Sure they can, some have and some will in the future. May officers embezzle? No, and as before, there are a number of laws covering that too.

    Let's skip the assault thing, because it will only berepetitive.

    Can officers speed? Well, you've already mention the exceptions part.

    Wynder, I know, you know, we know whatpoints we're talking about, and don't think for a second that I'marguing with any of you. Just wanted to warn you about folks (like me) that will catch the incorrect usage of "can" and "may",and willuseit totry and discredit yourstatements.

    Ioften have to correct my students when we have classes. They will invariably say that according toVirginia laws, "You can't take a gun to a church, or a bar, or a restaurant, or a school...", only to be told "That isn't exactly correct, and I'll tell you why." Much can be missed, and great harm can be done by not reading, and/or not comprehending, the entire code section.

    Anyway, not ranting,we "can" say what we want, but take care that it "may" not be taken the wrong way.

    We are not equal, we will never be equal, but we must be relentless.








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