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Defendant had right to walk away from approaching Police officer

Repeater

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Defendant had right to walk away from approaching officer

From the opinion:

Jones refused to heed the officer's requests to stop. However, citizens who are not under arrest or otherwise detained have every right to refuse or ignore requests from law enforcement officers. "[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business." Id. at 125 (citing Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)). Moreover, a "'refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.'" Id. (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)). That was precisely what occurred here.

As the blog noted:


The state's argument here proved too much. It wants to be able to say that a person had a right to refuse a purely consensual encounter with the officer, but then require the defendant to not walk away.
Thus, the seizure of the .45 caliber gun was illegal. The court affirms your right to refuse consent AND to walk away.

Jones v. Commonwealth, 2008 Va. App. LEXIS 561 (December 23, 2008)
 

TFred

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Maybe I'm just dumb... if I am outside, even near my house, and a police officer is approaching me at a relatively high rate of speed (in this case the officer was on a bike), and he/she starts yelling at me to STOP, I very well am going to stop, because I would be afraid that if I did not stop, I'm about to be SHOT!

What normal citizen would react in any other way? Am I supposed to yell back "Am I being DETAINED?"

Crazy!

TFred
 

ProShooter

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TFred wrote:
Maybe I'm just dumb... if I am outside, even near my house, and a police officer is approaching me at a relatively high rate of speed (in this case the officer was on a bike), and he/she starts yelling at me to STOP, I very well am going to stop, because I would be afraid that if I did not stop, I'm about to be SHOT!

What normal citizen would react in any other way? Am I supposed to yell back "Am I being DETAINED?"

Crazy!

TFred

Oh you have no idea!

I had times where people just flat out walked away. Their excuse?

"I didn't think you were talking to ME!"
 

FogRider

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I'd probably end up stopping out of habit. If I'm on foot I'm not in a hurry, so I'll generally stop to talk to anyone who wants to talk. Granted, a LEO is not likely wanting to shoot the s**t, but like I said. It's a habit.
 

TFred

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ProShooter wrote:
TFred wrote:
Maybe I'm just dumb... if I am outside, even near my house, and a police officer is approaching me at a relatively high rate of speed (in this case the officer was on a bike), and he/she starts yelling at me to STOP, I very well am going to stop, because I would be afraid that if I did not stop, I'm about to be SHOT!

What normal citizen would react in any other way? Am I supposed to yell back "Am I being DETAINED?"

Crazy!

TFred

Oh you have no idea!

I had times where people just flat out walked away. Their excuse?

"I didn't think you were talking to ME!"
That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.

TFred
 

Hawkflyer

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Well I for one do not think you kids should talk to strangers.

But this is an interesting opinion as it does remove a great deal of authority from a LEO, and place is squarely in the hands of the citizen. How could that have happened in our courts?

Regards
 

Citizen

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Just remember, you're not likely to know at the outset of an encounter whether the officer really does have RAS or not.

Or, to directly address the thread title, the defendant may have had the right to walk away, but there is almost no way he could have correctly known at the time of the encounter that he had that right.

If it comes across as a genuine request--a tone of voice that isn't authoritative or commanding/demanding, that's one thing. But any hint of authoritative/command/demand, I plan to comply. While refusing consent, of course.
 

Citizen

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TFred wrote:
SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.

You have to assemble the picture yourself. Its a little tricky sometimes.

The opinion is really about the idea that the officer had no RAS to effect an involutary encounter/detention/stop/Terry Stop. Thus, the pat-down search was illegal. Thus, the gun was inadmissable.

I've not come across an opinion that directly or expressly reconciles Hill (can't resist a detention) with being able to ignore a police officer when the citizen can haveno way or little chance to know whether the police officer actually has RAS. You sort of have to cobble it together from several cases.

Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.
 

Repeater

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Citizen wrote:
TFred wrote:
SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.
Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.
I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?
 

Citizen

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Repeater wrote:
Citizen wrote:
TFred wrote:
SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.
Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.
I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?


I see your point.

But, you have to include the other parts of the picture. If the copconsiders he's got RAS to involuntarily stop you, and you refuse, he'sgoing touse force to effect your temporary seizure.

In VA, if you resist, you're in trouble. See Commonwealth vs Hill. Obstruction would be the least charge, I'm guessing. Assaulting a police officer, if you hit him.

Yes, you have the right. But only if the court determines after the encounter that you had that right during the encounter. I think itsHill that discusses or quotes to the effect that close questionson this subject should not be fought-out on the streets, rather decided in the courtroom--meaning the court gets to decide.

So, it may be moreaccurate to say, "You mighthave the right.Its just that youlikely won't know for sure until a court says youhad it during theencounter. And since you can't do a whole lot about it anyway withouttriggering a forceful response from the cop, and further resistanceafter that mightgetchargeswhen you might have gotten no charges by cooperating, you really havelittle or no way to safely exercise that rightduring an involuntaryencounter."



Commonwealth vs Hill (look for case number1012526 when the search return page comes up. Itshould be near the top):

http://www.courts.state.va.us/searchs/textopinions_g.idq?searchterm=resist+unlawful+detention&gflag=g
 

TFred

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Citizen wrote:
Repeater wrote:
Citizen wrote:
TFred wrote:
SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.
Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.
I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?

I see your point.

But, you have to include the other parts of the picture. If the copconsiders he's got RAS to involuntarily stop you, and you refuse, he'sgoing touse force to effect your temporary seizure.

In VA, if you resist, you're in trouble. See Wescheler vs Commonwealth. Obstruction would be the least charge, I'm guessing. Assaulting a police officer, if you hit him.

Yes, you have the right. But only if the court determines after the encounter that you had that right during the encounter. I think itsWescheler that discusses or quotes to the effect that close questionson this subject shouldn't be fought-out on the streets, rather decided in the courtroom--meaning the court gets to decide.

So, it may be moreaccurate to say, "You mighthave the right.Its just that youlikely won't know for sure until a court says youhad it during theencounter. And since you can't do a whole lot about it anyway withouttriggering a forceful response from the cop, and further resistanceafter that mightgetchargeswhen the whole stop might have resulted in no charges, you really havelittle or no way to safely exercise that rightduring an involuntaryencounter."
So pretty much as I was thinking all along, this is a completely useless decision as far as "real life" goes, and seems to reinforce the idea that some judges live in fantasy land.

TFred
 

Tomahawk

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Repeater wrote:
Citizen wrote:
TFred wrote:
SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.
Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.
I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?

The correct answer is B: we are not truly free, we are sheeple.

From the very moment we decided government has a monopoly of force and can designate chosen members of society, give them badges, and make decisions to use force that ordinary citizens could never dream of.

I hate to say it, but the logic leads me there. Give me a minute to put my asbestos suit on, please.
 

Hawkflyer

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Tomahawk wrote:
Repeater wrote:
Citizen wrote:
TFred wrote:
SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.
Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.
I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?

The correct answer is B: we are not truly free, we are sheeple.

From the very moment we decided government has a monopoly of force and can designate chosen members of society, give them badges, and make decisions to use force that ordinary citizens could never dream of.

I hate to say it, but the logic leads me there. Give me a minute to put my asbestos suit on, please.

No asbestos required as you are basically correct.

However I would point out that you guys are over thinking this a bit.

There you are walking down the street in normal OC mode. A LEO shouts to you from across the street, "Hey buddy, come her I want to talk to you a minute." You ignore him and keep walking. SO now what happens.

Either the LEO will just let you go or he won't. If he decides to stop you, he is not going to just start shooting at you as he has no grounds for application of deadly force. SO if he wants to stop you he will have to approach you and probably block your path. At that point you can either go around or stop and talk. If you attempt to go around and he still wants to talk, he will have to lay hands on you or obstruct you in some way, and technically that would be an arrest. He darn well better have a charge in mind beyond "contempt of Cop" if he gets to that point according to this ruling.

In that scenario you have done nothing to obstruct or apply force the the officer, and would not be subject to a charge on those grounds.

In my view this decision lays the ground work for a lot of confrontations with LEOs unless and until they get the idea that walking away from them can be legal.

All of this is of course predicated on the concept that YOU know you have done nothing wrong and you have done nothing that a reasonable person might THINK is wrong. Now lets be real here. DO you really think Danbus is going to get away with walking away from a LEO? I did not think so.

Regards
 

hsmith

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Tomahawk wrote:
The correct answer is B: we are not truly free, we are sheeple.

From the very moment we decided government has a monopoly of force and can designate chosen members of society, give them badges, and make decisions to use force that ordinary citizens could never dream of.

I hate to say it, but the logic leads me there. Give me a minute to put my asbestos suit on, please.
I know what other website you read :p
 

Citizen

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Hawkflyer wrote:
Tomahawk wrote:
Repeater wrote:
Citizen wrote:
TFred wrote:
SNIP That's why this ruling seems so puzzling... apparently walking away despite your yelling at them to stop is perfectly acceptable behavior.
Thankfully Mendenhall expressly includestone of voice on the part of the officer as a possible circumstanceor sign of whether a reasonable person wouldfeel free to disregard an officer's inquiries and walk away.
I like the idea that you are truly free if you can walk away from a cop who is trying to coerce consent, something of an oxymoron, I suppose.

Suppose you are freely walking about, open-carrying. A cop, seeing the exposed gun, wants to talk to you. You don't. you keep walking. The cop asks/orders you to stop. You refuse.

You are supposed to have that right. Yes, asserting your constitutional rights in the presence of a belligerent LEO can be dangerous. But ultimately, are we Sovereign, or are we Sheeple?

The correct answer is B: we are not truly free, we are sheeple.

From the very moment we decided government has a monopoly of force and can designate chosen members of society, give them badges, and make decisions to use force that ordinary citizens could never dream of.

I hate to say it, but the logic leads me there. Give me a minute to put my asbestos suit on, please.

No asbestos required as you are basically correct.

However I would point out that you guys are over thinking this a bit.

There you are walking down the street in normal OC mode. A LEO shouts to you from across the street, "Hey buddy, come her I want to talk to you a minute." You ignore him and keep walking. SO now what happens.

Either the LEO will just let you go or he won't. If he decides to stop you, he is not going to just start shooting at you as he has no grounds for application of deadly force. SO if he wants to stop you he will have to approach you and probably block your path. At that point you can either go around or stop and talk. If you attempt to go around and he still wants to talk, he will have to lay hands on you or obstruct you in some way, and technically that would be an arrest. He darn well better have a charge in mind beyond "contempt of Cop" if he gets to that point according to this ruling.

In that scenario you have done nothing to obstruct or apply force the the officer, and would not be subject to a charge on those grounds.

In my view this decision lays the ground work for a lot of confrontations with LEOs unless and until they get the idea that walking away from them can be legal.

All of this is of course predicated on the concept that YOU know you have done nothing wrong and you have done nothing that a reasonable person might THINK is wrong. Now lets be real here. DO you really think Danbus is going to get away with walking away from a LEO? I did not think so.

Regards

Good points, KungFuHawk-san.

Also, we can useour opponent'sweight against him, as any good sensei would teach the youngest pupil. That is to say, use the government's own pronouncements against its agents. While at the same time falling correctly ourselves to avoid injury. Too bad for the agents if they have neithergood sensei, norgood sense---to read the rules and learn how to use them.

Thus, when the opponent-agent first pushes, we step aside and let his weight carry him forward--we ignore his "request" (which he will surely call it later, a request).

Then we help himlean beyondhis safe balance by getting him to declare or demonstrate that it is not a request. Mendenhall gives us the tool:given the totality of the circumstances, would a reasonable person feel free to disregard the officer's inquiries and walk away? Does he use an authoritative tone of voice? When asked why we are being detained, does he say something that indicates we are?

And of course, we fall safely by not angering him--too much. Just enough that he makes mistakes. Says things that our voice-recorder picks up.

And, to each illegal comment, we give him more rope: "Gosh, officer. I'm sorry. I didn't know I had to give you my ID? (in a state with no stop-and-identify statute, in an encounter with no genuine RAS).

And then, after he smugly turns his back, thinking he has intimidated us and won, we launch the flying kick that takes his face off--a formal complaint or lawsuit.

I'll end here with the martial arts metaphor. And say it plainly.

If a police officer approaches me, his personnel file is in jeopardy. Each and every misstep will be the subject of a bullet-point in a formal complaint, if not a lawsuit. If I am going to be in legal jeopardy. He is going to be in career jeopardy, or financial jeopardy, or both.
 

Tomahawk

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Citizen wrote:
[stuff]....If a police officer approaches me, his personnel file is in jeopardy. Each and every mistep will be the subject of a bullet-point in a formal complaint, if not a lawsuit. If I am going to be in legal jeopardy. He is going to be in career jeopardy, or financial jeopardy, or both.
Wow, and I thought I needed the flame-proof suit. I try hard not to come off as "cop-bashing", but when confronted with questions like the one posed above you either speak your mind or shut up, and sometimes I can't shut up. Apparently you and I will see if misery really does love company. Hawk, you bring the Scotch, I'll bring the bourbon, and Citizen, up to you what you want to drink.
 

Citizen

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Hawkflyer wrote:
SNIP In my view this decision lays the ground work for a lot of confrontations with LEOs unless and until they get the idea that walking away from them can be legal.

Oh, it covers that I think:

"Moreover, a refusal to cooperate, without more, does not furnish the minimum level of objective justification needed for a detention or seizure." (internal quotesand citations omitted). Jones vs Commonwealth, linked in the OP above.
 
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