Cuffed and Caged For Open Carry

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I know I posted this in another thread, but again I believe this is what you are looking for.



http://www.law.cornell.edu/uscode/42/usc_sec_42_00001983----000-.html


http://opencarry.mywowbb.com/attachment.php?id=6603

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I'd file a complaint for harassment, unlawful arrest (cuffs=arrest), ...

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I agree with your comments, but I do take exception to your comment that "Cuffs=arrest". Being placed in cuffs is simply a restraint method; at most, he was detained - not arrested.

Otherwise yes, I agree - a complaint at the least is in order; the officer did do a nice job of realizing his mistake, but this is something that the department should at least be aware is a problem, if nothing else... the officers should be educated as to the proper method of dealing with someone OCing.

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Legal explanations.com
(v) Arrest is the action by which a person is stopped from his normal activities by virtue of a legal authority or sanction, either by detaining him or by stopping his external accesses. By an arrest, a person is deprived of his liberty. So the law contain many provisions like requirement of a warrant, adherence of Miranda rights, arraignment within the statutory limit etc.



dictionary.reference.com
verb (used with object) 1. to seize (a person) by legal authority or warrant; take into custody: The police arrested the burglar. noun 5. the taking of a person into legal custody, as by officers of the law. 6. any seizure or taking by force. 7. an act of stopping or the state of being stopped: the arrest of tooth decay.



Perhaps the best, they go quite deeply into the matter.
thefreedictionary.com
A seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.
...
An arrest may occur (1) by the touching or putting hands on the arrestee; (2) by any act that indicates an intention to take the arrestee into custody and that subjects the arrestee to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. There is no arrest where there is no restraint, and the restraint must be under real or pretended legal authority. However, the detention of a person need not be accompanied by formal words of arrest or a station house booking to constitute an arrest.



BusinessDictionary.com
To detain a person and keep him or her in custody by lawful authority. Arrest may be made with an arrest warrant or without one (called 'summary arrest') in case of an arrestable offense, or where it is authorized by a statute.



YourDictionary.com
transitive verb

1. to stop or check the motion, course, or spread of
2. to seize or take into custody by authority of the law
3. to catch and keep (one's attention, sight, etc.)

noun

1. an arresting or being arrested; esp., a taking or being taken into custody by authority of the law
2. a thing for checking motion

LEOTraining.com
[excerpted by me]
Q -- Handcuffing People During Frisks An officer stops a vehicle with multiple occupants and develops reasonable suspicion to search for weapons (let’s assume he does have reasonable suspicion). Can an officer handcuff the occupants of a vehicle on reasonable suspicion alone only to search for weapons?

I guess the case doesn't necessarily have to deal with passengers of automobiles. But if an officer fears someone is armed, can he/she handcuff the person to simply search for weapons or have the courts ruled that once a person is handcuffed they are in custody. I remember you lectured about this very topic but I don’t recall your opinion.

Answer

First off -- your safety is most important. If you feel that you must handcuff people present to go home at night, then do it.

BUT -- you must remember that handcuffing looks like "custody" or "arrest" to a court / judge and that requires probable cause -- so let me give you some legal advice.

1. Prior to handcuffing, tell the people they are not under arrest or in custody.

2. As soon as you have frisked, unhandcuff the people, if possible.

3. If you discover important evidence as a result of this procedure YOU must convince the court of the unusual circumstances that made it necessary to handcuff. This is not easy in lots of courts, so be prepared to tell the story to make the judge feel as if he / she were there.

And be prepared to explain that whenever you have found it necessary to do this, you ALWAYS and immediately unhandcuff the people when you determine that nobody has a weapon that can hurt you.




There are three levels (tiers) of interaction with the police as defined by the U.S. Supreme Court, we all know what they are.
Tier 1 ... Voluntary Interaction
Tier 2 ... Detention
Tier 3 ... Arrest.

Ask yourself what tier of interaction you are having when you are are involuntarily placed into restraints and your freedom to go about your normal activities is halted until such time as you are released.

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It is clear that the officer made errors in his handling of OP. Using this case as an example, what would the damages be from a legal standpoint? And howwould the damages be quantified?

Anyone know?

I usually have this question whenever there is a post about being treated badly and unlawfully by cops is introduced here. When people suggest suing (e.g. Pagan), I suspect its suing for damages. But what are they, using this case as an example?

I'm sure if the cop would have beat up or shot the OP, then the physical injuries and cost for treatmentof those would serve as the basis for damages.

But is the false arrest (if it is an arrest) in this case worth, say, $200, if one were to spend $5000 to run it through the court system?

Or, are thereno damages, since the LEO corrected his error in thinking that OP was violating the law?

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I think it would be disproportionate and downright excessive to sue in this instance. Yes, he was detained. BUT, to be realistic, police officers cannot be expected to know every obscure statute in the state they work in.

Yes, these laws may seem "common sense" to those of us on this forum, but keep in mind that this sort of situation is not one that an officer comes across often - indeed, I'd bet many officers never come across this even once throughout their career.

Yes, I think he should file a complaint - that's more than reasonable. However, given that the officer released him immediately upon learning he was not in violation of the law should give the officer some credit.

Also, keep in mind that while in the courtroom, the laws state "innocent until proven guilty", for a police officer in a potential confrontation with an unknown individual with a (presumably loaded) weapon, the best course of action would be to do exactly what this officer did.
Remember: a police officer's number one concern is making sure he goes home at night. Everything else is secondary, as it should be when someone is risking their life potentially daily.

This situation could be "what ifed" to death as far as "why didn't he ask if he had a permit or just stand there" but keep in mind, the officer sees a loaded gun, and his first instinct is to make sure that he isn't going to get shot, and the best way to do that is for him to take possession of it.

Just try to remember that cops aren't "bad guys" - they're just trying to, like all of us, do a job and make a living. Just think about how you'd like it if somebody came to your desk and started telling you how to do a job you've done for x years... clearly a mistake was made here, but it was rectified as immediately as possible, and I think that deserves some credit.

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Keep in mind there's also a plain sight exception to the Terry ruling, so unless the officer knows off the top of his head that OC is legal in the state of MN, which we both agree is asking a lot for every officer to know, the officer was still acting reasonably and, according to what he knew at the time of the incident, within the breadth of the law.

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thefarce wrote:

Keep in mind there's also a plain sight exception to the Terry ruling, so unless the officer knows off the top of his head that OC is legal in the state of MN, which we both agree is asking a lot for every officer to know, the officer was still acting reasonably and, according to what he knew at the time of the incident, within the breadth of the law.

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It is definitely NOT too much to expect that every department that has had an incident, advise their officers of the legality of OC. Two, three or more incidents is not a "whoops - sorry" incident, it starts to border on training deficiency and neglect.

Yata hey

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Grapeshot: Oh absolutely, I agree. However in this case, it does not appear to be a recurring incident - it seems like this could even be the first time this department has had to deal with this.

EDIT: For the record, I'm not trying to be a troll or anything of that nature - I fully support OC and individual citizens' rights. I just also have a certain empathy for individuals who risk their lives every day for a living and more often than not simply receive ridicule for their (ordinarily) selfless service.

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gutshot wrote:

HankT wrote:

It is clear that the officer made errors in his handling of OP. Using this case as an example, what would the damages be from a legal standpoint? And howwould the damages be quantified?

Anyone know?

I usually have this question whenever there is a post about being treated badly and unlawfully by cops is introduced here. When people suggest suing (e.g. Pagan), I suspect its suing for damages. But what are they, using this case as an example?

I'm sure if the cop would have beat up or shot the OP, then the physical injuries and cost for treatmentof those would serve as the basis for damages.

But is the false arrest (if it is an arrest) in this case worth, say, $200, if one were to spend $5000 to run it through the court system?

Or, are thereno damages, since the LEO corrected his error in thinking that OP was violating the law?

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How does one "correct" the violation of another's rights? How much money does it take to replace abused liberty? A person's ability to come and go as he sees fit and to be secure in his own person is one of the fundamental tenants of liberty. The seizure of a person is a serious violation, as serious as kidnapping. The amount of money to compensate for that loss is uncountable.

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This last thing is highly unlikely to be true. There is most definitely a way to "count" the amount of money to legally compensate for losses.

It's one of the first classes that lawyers take.Compensation Maximization:Theory and Practice, I think it's called.One of those jumbo classes...


They can definitely "count" it....

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thefarce wrote:

Keep in mind there's also a plain sight exception to the Terry ruling, so unless the officer knows off the top of his head that OC is legal in the state of MN, which we both agree is asking a lot for every officer to know, the officer was still acting reasonably and, according to what he knew at the time of the incident, within the breadth of the law.

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Bullsnort! Any moderately competent post officer should KNOW w/o hesitation the primary types of illegal activity he is liable to encounter on his post and within his sector. It's called 'Law Enforcement'... not 'Opinion Enforcement'. Drawing his weapon put the OP in immediate danger, when there was no causative overt action on the part of the OP to justifydoing so. 911 Operators are also at fault as is the Police Dispatcher for not asking the proper questions of the MWAG alarmist.

This is just another reactionary JBT with a badge. Yes... I've been a sworn LEO... before somebody accuses me of cop bashing. This was a false arrest... PERIOD! Half-assed 'understanding' of a law is incompetence. I'd sue the bastards.

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thefarce wrote:

Keep in mind there's also a plain sight exception to the Terry ruling, so unless the officer knows off the top of his head that OC is legal in the state of MN, which we both agree is asking a lot for every officer to know, the officer was still acting reasonably and, according to what he knew at the time of the incident, within the breadth of the law.

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Everything is legal unless there is a law specifically against it. So I don't find it to be asking a whole lot for officers to not make up laws based on assumption or guesses.

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Yeah, Minnesota has a "Carry Law" Not Conceal and Carry. Although it is legal to conceal your firearm. And i find it hard to believe that cops in our state[most if not all]are not aware of this law. Crazy if you ask me. Cops like that [unprofessional] just bug me out. I think they feel or their egos feel threatened when they see someone with a firearm other than them.

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I think something that has been overlooked is the dispatcher in this event. Call comes in, mwag.

Is he doing anything illegal? He has a gun! Yes sir/ma'am, I understand that, but is he committing any crime? Well, he has a gun! I understand the man is armed, but if he's not committing a crime I won't be dispatching an officer on a call of 'citizen not breaking the law', have a nice day.

The officers respond to the calls they get. Setting aside the ignorance of his basic job duties which this officer displayed, the initial problem lies with dispatch. It doesn't seem excessive to me for the dispatcher to have a basic knowledge of firearm laws, since they need to screen the calls that come in. Knowing OC is legal is pretty basic as far as from a law enforcement angle, I can't imagine that gun crimes were never covered in their training.

Next thing you know, they'll be dispatching people to calls of 'man with a hamburger' or other equally intelligent calls.

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vote_no wrote:

At least you weren't in Golden Valley.

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What would happen in Golden Valley?

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madrevar wrote:

vote_no wrote:

At least you weren't in Golden Valley.

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What would happen in Golden Valley?

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Slide lock?

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What about a slide lock?

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madrevar wrote:

What about a slide lock?

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"Slide lock" implies firing a semi-auto until the slide locks back from an empty magazine. As in, shoot until you're out of ammo. I was attempting to make a snarky remark that anyone going into Golden Valley (where ever that is) might get shot by some jumpy LEO or armed citizen for daring to carry a firearm openly.

Now that I've had to explain the joke it's not funny any more.