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Thread: Found guilty of assault and battery.

  1. #1
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    Hey ya'll. I'm so so so sorry I haven't responded to any PMs or posts. I've been going through a great deal and again, I need your help and support.

    It sucks, the judge planned on putting me in jail for 12 months (the full sentence for class 1 misdemeanor). However I don't get sentenced until Jan 22 2010.

    Here is my part of the story:

    While working a grocery store as a armed officer, a car parked in front of the store in the fire lane. I went outside to inform the driver that he must move his car. The driver ignores me and continues to walk into the store. I again inform him he must move his car as it is in the fire lane. He then states "call the cops or write me a ticket". I stated back that he either move his car, or leave the store. He stated "get my car towed".

    He then continues to walk about the store. I waited until he came back up front to confront him. I told him that he is trespassing and that he will have to leave. He ignores me. I take out my OC, holding it down at my waist, and advised him that if he doesn't leave, he will be spayed and arrested for trespassing. He then starts to leave the store. While he is leaving, I advise him that he cannot come back to the store, should if he returns, I will arrest him for trespass. He responds "**** you, I can come back if I want to", while he is leaving. 20 mins later after he leaves he drives in front of the store, points his finger at me like a gun, then speeds off.

    2 weeks later, I notice a black male walk back into the store. He looked familiar and walked to see if I recognized him. He looks at me and says "what the hell are you looking at?". I said "you are not supposed to be in here". He then states "you're the guy who was going to spray me" and walks off. I notified a store worker that the individual whom I barred from the store is back in the store and that I would need him to observe who the individual was. I walked up to him with OC in hand and ordered him to put his hands behind his back. He responded "for what?". I then deployed my spray, however the contents were low and it landed on his shirt. I then tried to grab him with my hands, to which he swung his fists, preventing me to arrest him. I then took out my baton, expanded it and screamed at him to get down on his stomach and put his hands behind his back. He shouts back "for what?". I repeat the command. He repeats his. I then stuck him once behind his left calf. He falls down and asks "why'd you hit me?". I scream at him again to get on his stomach and put his hands behind his back. The store worker then told him to just comply. After he did so, I place the cuffs on him and took him to the back of the store.

    There is a lunch table where I can place arrested or detained individuals, however if they are cuffed, they need assistance sitting down. While trying to help him sit down, he says "get off me" and tried to shoulder me. I tried to regain control and forced him to lay down face first on the floor. He continued to try and get up, at which point, I put my knee in the middle of his back while placing my weight on the bench table.

    After the police showed up, we stood him up, and I told them why he is being arrested. He gave his side, and the officers informed him that since I told him not to come back to the store, he is not allowed back. They asked if he needed medical attention, to which he replied "no, I'm good". I wrote him a summons for trespass and released him.

    About 3 hours later, the same two officers came back to the store for a warrant for my arrest for assault and battery. They stated they didn't know why the magistrate even signed it. Instead of taking me to jail, they set a trial date and departed.

    Few months later I had trial. There was video footage of the arrest, however the video was not accurate. It was skip for 4 seconds, then skip back to realtime. This caused the video to appear that I walked up, sprayed him, hit him repeatedly, then handcuffed him. The suspect indicated that I kicked him in the ribs while he was on the floor caused a "separated rib". Also when I placed handcuffs on him, when I stood him up, that he heard his shoulder pop, and later discovered that it was dislocated. However he did NOT have any medical documentation to support it. I gave my testimony and in light of all the evidence, I was found guilty of A&B while his charge was dismissed. I did NOT have a lawyer. I appealed and got another trial.

    Nov 20, trial again. I had a lawyer, gave the same testimony, same evidence (still no medical documents), and again I was found guilty. The judge said these words, "I don't know if the arrest was even lawful or not. Even if it was, the fact that you sprayed him without any justification or provocation on his part, that in itself is excessive force."

    The after the judge set the sentencing date, a police officer asked if he could talk to me outside the court room. He told me didn't care what the judge said, what I did was right and to stay strong.

    I have two months to try and find any case law pertaining to use of pepper spray and excessive force. I have found some case law, however it doesn't fit my situation and it didn't discuss the use of OC as excessive.

    Any thoughts or words of wisdom will be most appreciated.

    Dan

  2. #2
    Founder's Club Member Hawkflyer's Avatar
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    On what authority do you base your arrest of this individual for a misdemeanor? As a general rule, only a sworn LEO can make arrests for misdemeanors. This may be the point the Judge was trying to make.

    If the arrest was not proper in the first instance, then all of the application of force rules change. Then it just becomes a confrontation between you and him, and from you OP it seems that you confronted him first.

    I know someone who can help with the video evidence if you have access to it.

    Regards
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
    "If you are not getting Flak, you are not over the target"
    "186,000 Miles per second! ... Not just a good idea ... It's the law!"

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    he confronted him because he had already warned him once to not return to the store or that he'd be arrested for trespassing. OP, what about the person that was there with you that saw the whole thing happen and you asked to keep an eye on things? i would consider that person a great witness to what truely happened....

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    Hawkflyer wrote:
    On what authority do you base your arrest of this individual for a misdemeanor? As a general rule, only a sworn LEO can make arrests for misdemeanors. This may be the point the Judge was trying to make.

    If the arrest was not proper in the first instance, then all of the application of force rules change. Then it just becomes a confrontation between you and him, and from you OP it seems that you confronted him first.

    I know someone who can help with the video evidence if you have access to it.

    Regards
    http://leg1.state.va.us/cgi-bin/legp...00+cod+9.1-146

    § 9.1-146. Limitation on powers of registered armed security officers.

    Compliance with the provisions of this article shall not itself authorize any person to carry a concealed weapon or exercise any powers of a conservator of the peace. A registered armed security officer of a private security services business while at a location which the business is contracted to protect shall have the power to effect an arrest for an offense occurring (i) in his presence on such premises or (ii) in the presence of a merchant, agent, or employee of the merchant the private security business has contracted to protect, if the merchant, agent, or employee had probable cause to believe that the person arrested had shoplifted or committed willful concealment of goods as contemplated by § 18.2-106. For the purposes of § 19.2-74, a registered armed security officer of a private security services business shall be considered an arresting officer.

    (1976, c. 737, § 54-729.33; 1978, c. 560, § 54.1-1907; 1980, c. 425; 1988, cc. 48, 765; 1992, c. 578, § 9-183.8; 1994, c. 45; 2001, c. 844.)

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    Hawkflyer wrote:
    SNIP On what authority do you base your arrest of this individual for a misdemeanor? As a general rule, only a sworn LEO can make arrests for misdemeanors. This may be the point the Judge was trying to make.
    Aren't citizens allowed to use reasonable force to cure a trespass?

    I guess part of security guard training includes these angles about arresting for trespass after notification.

    I guess one distinction is the difference between curing a trespass by physical ejection, and curing a trespass by arrest.

    Maybe someone who knows the law and can provide citations to statute and case law can chip in some comments.

    Edited to Add: Thanks for cite, Danbus. I was composing this post when you posted the statute.
    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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    Founder's Club Member Hawkflyer's Avatar
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    Citizen wrote:
    Hawkflyer wrote:
    SNIP* On what authority do you base your arrest of this individual for a misdemeanor? As a general rule, only a sworn LEO can make arrests for misdemeanors. This may be the point the Judge was trying to make.
    Aren't citizens allowed to use reasonable force to cure a trespass?*

    I guess part of security guard training includes these angles about arresting for trespass after notification.

    I guess one distinction is the difference between curing a trespass by physical ejection, and curing a trespass by arrest.

    Maybe someone who knows the law and can provide citations to statute and case law can chip in some comments.

    Edited to Add:* Thanks for cite, Danbus.* I was composing this post when you posted the statute.
    As usual IANAL and you should not rely on my comments as legal advice.

    No they are not. That is why the section of code was written that Dan cites above. I did not know he was a security guard acting within the confines of they place he is hired to guard.

    Typically a "citizen" (note lower case "c") is not authorized in law to make an arrest for a misdemeanor even if it is committed in his presence. Now you COULD confront and try to remove a trespasser but usually that person would have to be trying to commit a more serious offense than simply being on your property. Moreover, a citizen would have to meet some very stringent application of force standards if the situation escalates. Remember, even if someone is trespassing, if you attack his, he has a right to defend himself. Without color of office you have no defense should he file charges. In this regard, security personnel fall somewhere between LEOs and citizens. The exact location where they fall is up to a judge as we see in this case,

    I think Dan is going to have a problem because while he gave oral notice to someone he believes is the same person a week before, it is a "he said/she said" issue as there is no writing to prove the notice was given. Everyone gets one free pass under the trespass codes.

    It will also be very hard to show that Dan did not overreact and that he did not apply too much force too soon. Had the guy taken a swing at him first this would not be an issue. But in the OP Dan says he squirted the guy just because he did not follow his instructions, not because he offered to attack.

    While I too would like to know where his witness went when he needed him in court, the video will always outweigh testimony. To that end Dan needs to get that video into the hands of a qualified forensic video analyst and get some expert testimony to support his story. He also needs to quit playing with this and get a lawyer.

    Dan - While my comments above seem harsh, you need to look at this from the outside and take a cold assessment of your situation. I truly hope you beat this, but it is going to cost you some money to do so. It does not matter that you are right if you can't prove what this guy did.

    Regards
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
    "If you are not getting Flak, you are not over the target"
    "186,000 Miles per second! ... Not just a good idea ... It's the law!"

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    IMO Dan, you should not have sprayed him until he showed intent of causing you or someone else harm, WHILE you arrested him for tresspassing. I can understand that the guy threateded you with his finger, by pretending it was a gun, and the fact that he came back to the store may have just got you off track a bit, but I think I you jumped the gun or spray as it were.

    ThoughI certainly would have informed him,he was being arrested for tresspassing, but only after he attempted to harm somebody would I have used force, butI was not there .

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    You have no authority to assault someone for trespassing at a business. He may be a *********, but you can't legally attack him for it.

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    Good to hear from you Dan. I'm sorry to hear about your situation. I'm not sure what I can do to help other than pray for you but, if you can think of anything let me know.

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    Regular Member Thundar's Avatar
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    Dan,

    It is good to hear from you again.

    IANAL, but if you intend on appealing you must do so in a timely manner. I do not know how long you have to appeal a circuit court verdict. Someone with better knowledge will pop up soon and tell you.

    If you are looking for policy type documents to support your use of pepper spray, I would try to find police policy and some internet surfing kung fu.

    Do you need character references for the sentencing hearing? Has your lawyer asked yet?

    Godspeed Dan, you are in our prayers.

    Thundar


    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

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    I would echo what someone else said, get a video expert to testify that there was a video skip if it's not obvious. Appeal, now. And find LEO policies on using pepper spray. I would think that if he resisted your command pepper spray would be warranted. You see video of people getting tazered and sprayed all the time for doing nothing except not complying with a lawful order. Getting into a fight or a wrestling match with someone is not something you want to do so it's THEIR choice to get sprayed when they disobey.

    I can't believe there isn't a ton of case law and policies out there covering this. Talk to some people. It sounds like you got a bad judge. I know *that* was my biggest concern in my trial. Turned out the Judge was very fair and had no attitude except sticking to the law (as vague as it was).

    All the best.

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    What does your employer and the store where you worked say about all this?

    Have you approached them about the defective video?

    They could be stepping back to let your actions (and you) absorb any liability.
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

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    Sorry to hear this happened to ya Dan....I wish you best of luck, is your place of employement behind you on this? Don't give up.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Dan, IANAL

    You got a bad judge. I was an armed guard back in the day. The guidlines do run parallel to that of LEO's. however you are not as protected under the law.

    Based upon what you stated that he made a firearm with his hand and pointed it towards you would constitute heightened awareness, however it will be hard to justify using OC spray. You can state that you fear the threat implied the person had a firearm.

    Asp will hard to justify as well.

    I hope you have a training certificate for the asp itself. This will help you in explaining you used training to utilize minimal force by striking back of the leg.

    I can attest that being a security officer is a hard line to walk. However if you get the right judge you will be ok.

    Ask yourself these questions:
    a. Did i feel s though he may have had a firearm and I wished to disable his vision to prevent a firearm from being presented?
    b. Did I use minimal force required to maintain your safety and those you are assigned to protect?

    If these are yes and can be proved you are in great shape. Get support from your security agency "ill be shocked if they stand by you" and from the workers in that establishment. preferably in writing.

    Dan, Lastly, I have been there before. and understand the trauma involved. I am sure I speak for everyone here that we support you, and wish you luck.

    Dana.

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    I'm confused Dan. It sounds as if you were initially found guilty, and then appealed, and lost on appeal as well. Is this correct? Do you have another appeal, or do you just need this stuff to help minimize the sentence?

    Whatever the case, I wish you only the best.

    Brian

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    Danbus,

    I've had a few "gang" types point their fingers at me and go "bang", and one fellow even told me (after I ID'd a putz who popped off 3 .40 cal rounds into the air in my parking lot) that "if I knew what was good for me, I'd better keep quiet", so I understand your frustration with these sociopathic hood-rat types...

    However, let me get this straight...

    You're the same "danbus" who frequently posts reports about being harassed by LEO's and private security over OC issues, right? The same Danbus who complains about LEO's and private security over-reaching their bounds, using excessive force, and generally acting in a reactionary, thug-like manner, and making up laws to suit their own personal agendas, right?

    Now I'm not sure I read your post right, so let me get this straight...

    You kicked a guy out of your store for trespassing. OK, I understand that. He was illegally parked, and was behaving like a putz. (Personally, I would have told him three times and then let him shop, while I called the towing company. And then I would have had a smug giggle while he walked home.)

    But then he came back some time later, and you told him he was "banned" from the store. For what, "illegal parking" and not "respecting your authoritaaaay"? OK. Whatever...

    Then you tell him to leave,and he doesn't. You start yelling at him, and he stays. You attempt to mace him, for NOT COMPLYING, and he stays. Then when you try to physically detain him, and he struggles, so you whack him with your baton.

    And you are surprised that you were convicted of assault?

    Dude, you need to lay off your hooka...

    From reading your account, you should be thanking your lucky stars that some "activist" wasn't standing there with a video camera or cell phone recording the whole thing. If there had been video evidence of your performance, I doubt the judge would have been so kind as to ONLY give you 12 months.

    It looks to me that you need some anger management training. Maybe the state will provide you with that during your incarceration next year.

    I find it especially ironic that someone who is constantly whining about LEOs and private security using excessive force, making up laws, and overstepping their bounds would have handled this situation the way you say you did.

    If we are not constantly vigilant of our own internal thought processes, we will become that which we hate the most.

    It appears that you have done exactly that.

    Check yourself, before you wreck yourself, bro.

    I'll miss your posts--your OC stories have made for some interesting reading.

    But on this matter you will get no sympathy from me. You have become that which you hate the most, and for that I have no sympathy...
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggressionand this is hogwash."
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    Dreamer wrote:
    Danbus,

    I've had a few "gang" types point their fingers at me and go "bang", and one fellow even told me (after I ID'd a putz who popped off 3 .40 cal rounds into the air in my parking lot) that "if I knew what was good for me, I'd better keep quiet", so I understand your frustration with these sociopathic hood-rat types...

    However, let me get this straight...

    You're the same "danbus" who frequently posts reports about being harassed by LEO's and private security over OC issues, right? The same Danbus who complains about LEO's and private security over-reaching their bounds, using excessive force, and generally acting in a reactionary, thug-like manner, and making up laws to suit their own personal agendas, right?

    Now I'm not sure I read your post right, so let me get this straight...

    You kicked a guy out of your store for trespassing. OK, I understand that. He was illegally parked, and was behaving like a putz. (Personally, I would have told him three times and then let him shop, while I called the towing company. And then I would have had a smug giggle while he walked home.)

    But then he came back some time later, and you told him he was "banned" from the store. For what, "illegal parking" and not "respecting your authoritaaaay"? OK. Whatever...

    Then you tell him to leave,and he doesn't. You start yelling at him, and he stays. You attempt to mace him, for NOT COMPLYING, and he stays. Then when you try to physically detain him, and he struggles, so you whack him with your baton.

    And you are surprised that you were convicted of assault?

    Dude, you need to lay off your hooka...

    From reading your account, you should be thanking your lucky stars that some "activist" wasn't standing there with a video camera or cell phone recording the whole thing. If there had been video evidence of your performance, I doubt the judge would have been so kind as to ONLY give you 12 months.

    It looks to me that you need some anger management training. Maybe the state will provide you with that during your incarceration next year.

    I find it especially ironic that someone who is constantly whining about LEOs and private security using excessive force, making up laws, and overstepping their bounds would have handled this situation the way you say you did.

    If we are not constantly vigilant of our own internal thought processes, we will become that which we hate the most.

    It appears that you have done exactly that.

    Check yourself, before you wreck yourself, bro.

    I'll miss your posts--your OC stories have made for some interesting reading.

    But on this matter you will get no sympathy from me. You have become that which you hate the most, and for that I have no sympathy...
    We seen in this story a example of the saying "power corrupts, absolute power corrupts absolutely" and why many LEO act the way they do. Based on the version of this in the OP I would also have voted guilty.

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    you should of just used the quartersyour boss gives you to call the police in this suitation. You're screwed brew.

  19. #19
    Regular Member Bubba Ron's Avatar
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    Dan - we are very sorry to hear of your current predicament. We have missed you,know that you are in our thoughts and prayers. Please stay in contact with all ofyour OCDO extended family...

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    This is probably not what you want to hear, but.
    I gotta side with the judge on this one too.

    danbuswrote:
    I walked up to him with OC in hand and ordered him to put his hands behind his back. He responded "for what?". I then deployed my spray,
    You sprayed a non-violentperson justfor asking a question?

    If it was me that would have gotten sprayed in that instance as you explained it, I would have seen that as an act of agression towards my own safetyand probably would have drawn down on you, andmost likelyfiredat that point where you refuse to drop your weapon or raised it to use it against me. (the OC Spray or the asp)

    From your own explanation of the event, I see you being guilty as charged. Although I feel 12 months is a little stiff for the crime you were charged with.

    I am quite surprised you were not charged with aggravated battery with a deadly weapon. I think you should be thanking the cop or prosecutor thatthey did not go after felony charges for your actions.

    If the guy would have taken a swing at you, then youmay have been justified in using the spray or deploying theexpandable baton against him. But not before that point!

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    Dreamer, keep in mind the putz was already informed he was banned from returning. He returned. He had been trespassed. He was showing flagrant disregard for the property owner's rights.

    Were Dan's actions excessive? Maybe so, maybe no. The devil is in the details and context can be a b*tch, especially if you aren't there experiencing it firsthand.

    Good luck with this Dan. Make sure you get a good attorney to represent you. I've often heard it said that a person who represents himself has a fool for a client. You are too good of a person to be the fool.

  22. #22
    Regular Member MSC 45ACP's Avatar
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    Dan, I'm profoundly sorry you're in the situation you're in. I dearly wish I could be of some help. I've also had to use force to effect an arrest, but I was fortunate in the situation that I had a partner and I was acting as a Federal Law Enforcement officer and the BG was a convicted felon. We ended up in court and the defense attorney REALLY tried to get us on excessive use of force.

    Certifications, dates of qualifications and repeated identical statements by us were the only things that saved our butts. Ask your lawyer to find any "missteps", mistakes, omissions and other stuff that clearly show he's a scumbag. His story couldn't be so well-memorized it doesn't have holes. They are there. The medical records are possibly important. If he didn't get medical attention, then he isn't qualified to say he had a dislocated shoulder. If he conveniently "lost" his medical bill or statement, it should be easy enough to contact the treating facility to confirm his medical visit.

    Excessive force? All subjective. Since Rodney King, its been harder on LEOs to defend themselves. Witnesses, your employer and other evidence needs to be brought forward.Surely the "victim's" past record could be introduced, especially if it involves a pattern ofbehavior.

    Good luck, my Friend. Our prayers are with you during these trying times. I know this is going to cost you financially, personally and professionally. I wish I was able to help more, but you need a good lawyer that takes payments. Been there, done that, unfortunately...

    Edited for mis-spellings

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    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
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    Dreamer wrote:
    Danbus,

    ...SNIP...

    Now I'm not sure I read your post right, so let me get this straight...

    You kicked a guy out of your store for trespassing. OK, I understand that. He was illegally parked, and was behaving like a putz.

    ...SNIP...

    But then he came back some time later, and you told him he was "banned" from the store. For what, "illegal parking" and not "respecting your authoritaaaay"? OK. Whatever...

    Then you tell him to leave,and he doesn't. You start yelling at him, and he stays. You attempt to mace him, for NOT COMPLYING, and he stays. Then when you try to physically detain him, and he struggles, so you* whack him with your baton.

    ...SNIP
    This is not really what Dan wrote. With some edits for brevity the facts are these-

    danbus wrote:
    ...SNIP...
    Here is my part of the story:

    While working a grocery store as a armed officer, a car parked in front of the store in the fire lane. I went outside to inform the driver that he must move his car. The driver ignores me and continues to walk into the store. I again inform him he must move his car as it is in the fire lane. He then states "call the cops or write me a ticket". I stated back that he either move his car, or leave the store. He stated "get my car towed".
    This ends confrontation number one

    danbus wrote:
    He then continues to walk about the store. I waited until he came back up front to confront him. I told him that he is trespassing and that he will have to leave. He ignores me. I take out my OC, holding it down at my waist, and advised him that if he doesn't leave, he will be spayed and arrested for trespassing. He then starts to leave the store. While he is leaving, I advise him that he cannot come back to the store, should if he returns, I will arrest him for trespass. He responds "@#$% you, I can come back if I want to", while he is leaving. 20 mins later after he leaves he drives in front of the store, points his finger at me like a gun, then speeds off.
    This ends confrontation number 2

    danbus wrote:
    2 weeks later, I notice a black male walk back into the store. He looked familiar and walked to see if I recognized him. He looks at me and says "what the hell are you looking at?". I said "you are not supposed to be in here". He then states "you're the guy who was going to spray me" and walks off. I notified a store worker that the individual whom I barred from the store is back in the store and that I would need him to observe who the individual was. I walked up to him with OC in hand and ordered him to put his hands behind his back. He responded "for what?". I then deployed my spray, however the contents were low and it landed on his shirt. I then tried to grab him with my hands, to which he swung his fists, preventing me to arrest him. I then took out my baton, expanded it and screamed at him to get down on his stomach and put his hands behind his back. He shouts back "for what?". I repeat the command. He repeats his. I then stuck him once behind his left calf. He falls down and asks "why'd you hit me?". I scream at him again to get on his stomach and put his hands behind his back. The store worker then told him to just comply. After he did so, I place the cuffs on him and took him to the back of the store.
    ...SNIP...

    While trying to help him sit down, he says "get off me" and tried to shoulder me. I tried to regain control and forced him to lay down face first on the floor. He continued to try and get up, at which point, I put my knee in the middle of his back while placing my weight on the bench table.

    ...SNIP...

    Few months later I had trial. ... SNIP... I was found guilty of A&B while his charge was dismissed. I did NOT have a lawyer. I appealed and got another trial.

    Nov 20, trial again. I had a lawyer, gave the same testimony, same evidence (still no medical documents), and again I was found guilty. The judge said these words, "I don't know if the arrest was even lawful or not. Even if it was, the fact that you sprayed him without any justification or provocation on his part, that in itself is excessive force."

    ...SNIP
    This ends confrontation number 3

    Actually Dreamer did not read the post correctly, but if he had it makes things look worse. Understanding that we are all looking at this in hindsight and none of us was there, based on what Dan wrote in my view it does not look good, and I have been one of Dan's supporters for a long time.

    There are actually three separate confrontations between Dan and this guy. Had this all occurred in one single incident Dan would never have been convicted. There is nothing in Dan's OP that would indicate that in the final confrontation there were any hand gestures of any kind implying the presence of a weapon. That confrontation was 2 weeks after the hand sign incident. And the hand sign incident occurred during the SECOND confrontation, though technically this second incident was simply a "sighting".

    In fact even the kindest reading of the story and an isolation of the pertinent facts (above) would indicate that Dan brought the only weapons to the issue, and that in all three meetings Dan was the aggressor.

    Even when Dan's duty to act is considered, the situation escalated very quickly, and even a kind reading leads one to believe it was Dan himself that pushed up the pressure.

    Dan- I am really sorry you are in this jam, but based on your own words, I would have to agree that you may have overstepped the boundaries in this instance. if you PM me I can send you information on a good Forensic analysis outfit that can help with the video, assuming you still have at least one more appeal available to you. Maybe these guys can pull a rabbit out of the video for you.

    Regards
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
    "If you are not getting Flak, you are not over the target"
    "186,000 Miles per second! ... Not just a good idea ... It's the law!"

  24. #24
    Regular Member ProShooter's Avatar
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    I'm sorry that this happened to you Dan, but I have to agree with Hawkflyer's analysis of your post.I think that in this case, the verdict was correct.
    James Reynolds

    NRA Certified Firearms Instructor - Pistol, Shotgun, Home Firearms Safety, Refuse To Be A Victim
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  25. #25
    Regular Member simmonsjoe's Avatar
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    Nutczak wrote:
    This is probably not what you want to hear, but.
    I gotta side with the judge on this one too.

    danbuswrote:
    I walked up to him with OC in hand and ordered him to put his hands behind his back. He responded "for what?". I then deployed my spray,
    You sprayed a non-violentperson justfor asking a question?

    If it was me that would have gotten sprayed in that instance as you explained it, I would have seen that as an act of agression towards my own safetyand probably would have drawn down on you, andmost likelyfiredat that point where you refuse to drop your weapon or raised it to use it against me. (the OC Spray or the asp)

    From your own explanation of the event, I see you being guilty as charged. Although I feel 12 months is a little stiff for the crime you were charged with.

    I am quite surprised you were not charged with aggravated battery with a deadly weapon. I think you should be thanking the cop or prosecutor thatthey did not go after felony charges for your actions.

    If the guy would have taken a swing at you, then youmay have been justified in using the spray or deploying theexpandable baton against him. But not before that point!
    You used force without informing him you were arresting him?? You are not a cop. Until you inform someone you are affecting an arrest they are under no obligation to obey you, show of force or not. I may have shot you.

    Also during the first event you should have explicitly told him if he returned he would be arrested for trespassing. You should have called the police immediately, and when you confronted him on his way out of the store you should have attempted to fill out the paperwork most corporate chains have for banned persons.

    You need to be extra clear and concise to anyone you come in contact to. You should audio record as well to prove you made it very clear what was going to happen.

    When he drove by and fingershot you, you should have attempted to get a license plate and even if you couldn't you should have FILED A REPORT WITH THE POLICE. Although it may seem silly at the time, and you may have a hard time getting the police to write it up, or at least make a record of it, IT MAY HAVE COVERED YOUR ASS.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
    G19 Gen 4; Bersa Thunder 380; Sig Sauer P238; Kel-Tec su-16c

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