Found guilty of assault and battery.

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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.

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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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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

Click to expand...

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".

Click to expand...

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.

Click to expand...

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

Click to expand...

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

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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.

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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,

Click to expand...

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!

Click to expand...

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.

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ProShooter wrote:

I'm sorry that this happened to you Dan, but I have to agree with Hawkflyer's analysis of your post. The think that in this case, the verdict was correct.

Click to expand...

Dan, I'm sorry for you also. You made the same mistake many inexperienced cops make. Instead of using justifiable force, you escalated it. It is difficult to make those judgments while in the middle of a difficult arrestt, but it has to be done correctly or you suffer the consequences.

You skipped a few steps.

Using your baton is just under using your gun.

I expect you're in for an ordeal. Sorry!

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Something that occurred to me... couldn't Dan use the same tactics that are often used against the good guys? You know, sue for the various loss of consortium and what not?

One thing that I see is that the BG continued coming BACK to the store after being told to stay away. He's already in the comission of a crime. How can he profit from it? He also made threatening gestures (which could be construed as assault) and words.

I don't disagree there might be some impropiety on Dan's part but at the same time, the BG needs to be smacked down a bit for purposefully escalating / antagonizing the situation by being where he was told to stay away from. This sort of goes back to the whole idea that you cannot claim innocence (thereby making it harder to claim self-defense) when you were acontributing party to the confrontation.

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Hawkflyer wrote:

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.

Click to expand...

Except for a misdemeanor "breach of peace" comitted in the citizen's presence.

"[A]citizen's arrest can be made for a breach of the peace, as
occurred in this case, as well as a felony.
At common law, a private citizen may arrest another for a
breach of the peace committed in his presence. See Gustke, 516
S.E.2d at 291-92; see also Carroll v. United States, 267 U.S.
132, 156-57 (1925) (" 'In cases of misdemeanor, a peace officer
like a private person has at common law no power of arresting
without a warrant except when a breach of the peace has been
committed in his presence . . . .' " (quoting 9 Halsbury's Laws
of England 612)); accord W. Page Keeton, ed., Prosser and Keeton
on the Law of Torts  26 (5th ed. 1984) ("Broadly speaking,
either an officer or a private citizen may arrest without a
warrant to prevent a felony or a breach of the peace which is
being committed . . . in his presence.") (footnotes omitted)." Hudson v. Commonwealth (Va. 2003), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1022703&invol=1

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Mike wrote:

Except for a misdemeanor "breach of peace" comitted in the citizen's presence. 

"[A] citizen's arrest can be made for a breach of the peace, as
occurred in this case, as well as a felony.
At common law, a private citizen may arrest another for a
breach of the peace committed in his presence.  See Gustke, 516
S.E.2d at 291-92; see also Carroll v. United States, 267 U.S.
132, 156-57 (1925) (" 'In cases of misdemeanor, a peace officer
like a private person has at common law no power of arresting
without a warrant except when a breach of the peace has been
committed in his presence . . . .' " (quoting 9 Halsbury's Laws
of England 612)); accord W. Page Keeton, ed., Prosser and Keeton
on the Law of Torts  26 (5th ed. 1984) ("Broadly speaking,
either an officer or a private citizen may arrest without a
warrant to prevent a felony or a breach of the peace which is
being committed . . . in his presence.") (footnotes omitted)."  Hudson v. Commonwealth (Va. 2003), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1022703&invol=1

Click to expand...

Breach Of The Peace
http://www.legal-explanations.com/definitions/breach-of-the-peace.htm

Breach Of The Peace is the act of causing disturbance to the peaceful living of an individual or society by resorting to threat, physical intimidation, working with dangerous article which may inflict injury to others.

The problem I see is that the activities committed by Dan's adversary as described by him in this case, do not fit the definition of breach of the peace. His actions do. While I accept your correction for the overly general statement regarding citizens arrest, but I still do not believe there is much shelter for Dan in that issue. I hope he beats that charges, but it does not look good.

Regards

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Something I have been thinking about, We all agree that we should not speak with the police without proper representationif we are ever forced to defend ourselves no matter how much in the right that we think we are.

Maybe this case with Danbus could be used as an example. Since he thought he was doing right by using the OC-Spray and Asp against the perp.
But if he would have STFU, and consulted an attorney before speaking with the police, this could have went another direction entirely.

I believe it was the statements made to the police by Danbus that resulted in his subsuquent arrest, charging, and being found guilty in court.

I am sure no matter whathe would have said the night of the incident,He would have been arrested and charged. So just STFU until you have an attorney no matter how much you feel your actions were justified.

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danbus wrote:

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.

[description of events]

Any thoughts or words of wisdom will be most appreciated.

Dan

Click to expand...

I'd say he's read "you were probably wrong" enough. That's not really "support" or "help". It may fall under "any thoughts", but probably not what he had in mind.

Question: are you done with appeals and just hoping to reduce your sentence? If so, how much can be said that wasn't already said/shown in either trial? I don't know how the process works, I'm just curious if people suggesting you get a forensic video expert to go over the tape is even realistic, for example.

Good luck in any case.

Is there any impact on your right to bear arms once it all gets behind you?

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Mike wrote:

Hawkflyer wrote:

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.

Click to expand...

Except for a misdemeanor "breach of peace" comitted in the citizen's presence.

"[A]citizen's arrest can be made for a breach of the peace, as
occurred in this case, as well as a felony.
At common law, a private citizen may arrest another for a
breach of the peace committed in his presence. See Gustke, 516
S.E.2d at 291-92; see also Carroll v. United States, 267 U.S.
132, 156-57 (1925) (" 'In cases of misdemeanor, a peace officer
like a private person has at common law no power of arresting
without a warrant except when a breach of the peace has been
committed in his presence . . . .' " (quoting 9 Halsbury's Laws
of England 612)); accord W. Page Keeton, ed., Prosser and Keeton
on the Law of Torts  26 (5th ed. 1984) ("Broadly speaking,
either an officer or a private citizen may arrest without a
warrant to prevent a felony or a breach of the peace which is
being committed . . . in his presence.") (footnotes omitted)." Hudson v. Commonwealth (Va. 2003), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1022703&invol=1

Click to expand...

Dan,

Mike has given you the best advice here. I've been trying to call you for 6 months. Call me.

Craig

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Hef wrote:

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

Click to expand...

Hef,

You are wrong here. Once someone is given official notice of trespass in Virginia, he can be physically ejected from the premises if he refuses to leave.

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ODA 226 wrote:

Hef wrote:

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

Click to expand...

Hef,

You are wrong here. Once someone is given official notice of trespass in Virginia, he can be physically ejected from the premises if he refuses to leave.

Click to expand...

Language is important and words have meaning. Lets have a few definitions so we all know what we are discussing here.

Eject:
To remove from premises; to push out or cast off.

Arrest:
The detainment or restraint of a person or thing for the purposes of determining legal rights as regards a thing, or suspicion of criminal activity as regards a person

Assault:
At Common Law, an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.

An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the common law definition is the same in criminal and Tort Law. There is, however, an additional Criminal Law category of assault consisting of an attempted but unsuccessful Battery.

Battery:
At common law, an intentional unpermitted act causing harmful or offensive contact with the "person" of another.

Battery is concerned with the right to have one's body left alone by others.

Battery is both a tort and a crime. Its essential element, harmful or offensive contact, is the same in both areas of the law. The main distinction between the two categories lies in the penalty imposed. A defendant sued for a tort is civilly liable to the plaintiff for damages. The punishment for criminal battery is a fine, imprisonment, or both. Usually battery is prosecuted as a crime only in cases involving serious harm to the victim.

Click to expand...

You are correct that a person may be EJECTED from the premises. However, by his own words Dan was ARRESTING this guy. The guy asked "for what" and Dan answered by first spraying, then ASPing and handcuffing the guy.

I have been in Law Enforcement long enough to know and recognize the difference between ejection and arrest. I have also seen a lot of righteous arrests turned in to reasonable law suits against the officer by inappropriate or overstepping actions on the part of the LEO.

This guy may have been a trespasser, but it would appear that the magistrate and the court did not think so. What Dan did may have been perfectly correct, but the magistrate and the court did not think so. Since this has been adjudicated it is perfectly appropriate for people to take a decision, express and opinion, or point out issues as to what happened and who is guilty or innocent. I have seen far more insignificant, not yet adjudicated, acts allegedly committed by LEO's posted on this forum, and watched as people ripped into LEO's in general like jackals.

Dan is a valued member of this forum and a patriot for his activist roll in standing up for peoples RTKABA. But it appears by his own words that he overacted in this case. Like I said before, Dan needs to get a BETTER lawyer, and a good Forensic Video Analyst to present his case before a judge. It may already be too late. I would suggest these guys for the video part-

http://www.brucekoenig.com/

Regards

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Hawkflyer wrote:

ODA 226 wrote:

Hef wrote:

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

Click to expand...

Hef,

You are wrong here. Once someone is given official notice of trespass in Virginia, he can be physically ejected from the premises if he refuses to leave.

Click to expand...

Language is important and words have meaning.Lets have a few definitions so we all know what we are discussing here.

Eject:
To remove from premises; to push out or cast off.

Arrest:
The detainment or restraint of a person or thing for the purposes of determining legal rights as regards a thing, or suspicion of criminal activity as regards a person

Assault:
At Common Law, an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.

An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the common law definition is the same in criminal and Tort Law. There is, however, an additional Criminal Law category of assault consisting of an attempted but unsuccessful Battery.

Battery:
At common law, an intentional unpermitted act causing harmful or offensive contact with the "person" of another.

Battery is concerned with the right to have one's body left alone by others.

Battery is both a tort and a crime. Its essential element, harmful or offensive contact, is the same in both areas of the law. The main distinction between the two categories lies in the penalty imposed. A defendant sued for a tort is civilly liable to the plaintiff for damages. The punishment for criminal battery is a fine, imprisonment, or both. Usually battery is prosecuted as a crime only in cases involving serious harm to the victim.

Click to expand...

You are correct that a person may be EJECTED from the premises. However, by his own words Dan was ARRESTING this guy. The guy asked "for what" and Dan answered by first spraying, then ASPing and handcuffing the guy.

I have been in Law Enforcement long enough to know and recognize the difference between ejection and arrest. I have also seen a lot of righteous arrests turned in to reasonable law suits against the officer by inappropriate or overstepping actions on the part of the LEO.

This guy may have been a trespasser, but it would appear that the magistrate and the court did not think so. What Dan did may have been perfectly correct, but the magistrate and the court did not think so. Since this has been adjudicated it is perfectly appropriate for people to take a decision, express and opinion, or point out issues as to what happened and who is guilty or innocent. I have seen far more insignificant, not yet adjudicated, acts allegedly committed by LEO's posted on this forum, and watched as people ripped into LEO's in general like jackals.

Dan is a valued member of this forum and a patriot for his activist roll in standing up for peoples RTKABA. But it appears by his own words that he overacted in this case. Like I said before, Dan needs to get a BETTER lawyer, and a good Forensic Video Analyst to present his case before a judge. It may already be too late. I would suggest these guys for the video part-

http://www.brucekoenig.com/

Regards

Click to expand...

And I have been in Law Enforcement long enough to know and recognize the the difference between ejection and arrest also. Additionally I agree with you that "Language is important and words have meaning."

Hef did not say that Dan was "arresting" the perp. He stated that Dan had," no authority to assault someone for trespassing at a business" and in that, Hefs' statement took on an entirely different meaning.

We both know that armed security guards that work for a DCJS licenced security firm DO have the powers of arrest on the properties that they are contracted to protect.

I feel that there are too many "Schadenfreude" on this board who, by the tone of their writings, are happy that this happened to Dan. I for one, find this a travesty of justice and cannot believe that the magistrate would allow a retaliatory warrant to be issued in a clear case of Trespassing".

It would be interesting to know if the same Magistrate issued both warrants. I doubt it.

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ODA 226 wrote:

And I have been in Law Enforcement long enough to know and recognize the the difference between ejection and arrest also. Additionally I agree with you that "Language is important and words have meaning."

Hef did not say that Dan was "arresting" the perp. He stated that Dan had," no authority to assault someone for trespassing at a business" and in that, Hefs' statement took on an entirely different meaning.

We both know that armed security guards that work for a DCJS licenced security firm DO have the powers of arrest on the properties that they are contracted to protect.

I feel that there are too many "Schadenfreude" on this board who, by the tone of their writings, are happy that this happened to Dan. I for one, find this a travesty of justice and cannot believe that the magistrate would allow a retaliatory warrant to be issued in a clear case of Trespassing".

It would be interesting to know if the same Magistrate issued both warrants. I doubt it.

Click to expand...

I think you are misinterpreting people, and you are reading WAY too much into the "tone" of people's posts. People are not always as specific as they might be in their choice of words, but that does not mean they are malicious. I do not see anyone that appears to be enjoying Dan's situation.

Sometimes it is hard to admit that a friend can step over the line. Whatever the magistrates position, the Judge ruled based on the evidence presented by both Dan and the other guy. The JUDGE decided to dismiss the trespass charge. Like it or not, the Judge did not think there was sufficient evidence to convict on the charge of trespass. Moreover, the JUDGE found Dan guilty of ASSAULT & BATTERY. So no matter your opinion, the fact is that in the eyes of the law Dan is guilty of Assault and battery pending the possibility of reversal on appeal. On that basis, someone making a statement that Dan should not have assaulted the guy is perfectly within bounds. That is a fact that people have to recognize and deal with. You don't have to like it, but but you have to recognize the reality of it.

As I said before, Dan is a valued member of this forum, and in my opinion a patriot. Clearly he is in a jam, and clearly he needs help. But if people do not recognize, admit, and discuss honestly the situation, then nothing is offered and nothing is learned.

Regards

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Reverend73 wrote:

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

Click to expand...

I was found guilty in general court, then I appealed, and was also found guilty. I have yet to be sentenced. At this time I am to report to a probation officer who will write a presenetencing report. This could lessen my sentence. I also will be able to have character references to speak on my behalf. There is a witness who was unable to testify the fact that she witnessed me advised the individual if he came back he would be arrest for trespass and observed the individual drive by and point is finger like a gun at me. She may have turned the tide, however my lawyer came to court late and we were unable to attain any info from her before court began. I suggested to my lawyer that she may not remember, tell the wrong truth, or outright lie. I suppose I was incorrect.

After trial, I spoke to her and she asked why she was unable to testify. We advised her that we wasn't sure her testimony would assist. She then told us ALL the details. I believe she would have in fact assisted my case. Sucks for me. She did however state she wanted to add to my character reference at sentencing. I pray she pulls through.

If you or anyone else is willing to provide references, it will be MOST appreciated.

To respond to some of the posts:

• I dosee how my initial actions prior to the arrest were not to the best guidelines of the use of force continuum. I should have gave more verbal commands then went to hands on. I was wrong.
• I don't believe my actions were "excessive". Given the fact that the suspect threatened my safety two weeks prior, I knew I encountered him again, I would have to quickly affect an arrest. Yes, the suspect didn't pose an immediate threat at the time of arrest, however, a situation could turn deadly if not dealt with quick action. It's hard for me to even imagine if I gave more verbal commands, then went hands on, and it ended up being a struggle or worse. I didn't want to take that chance.
• I have not posted this, however I've had run ins with the same guy before. It didn't turn into a arrest but he did have angry words for me. It was all due to the fact that he walked into the store with his hood on. This took place MONTHS before and didn't escalate to anything. This however is irrelevant.
• I believe that asking a suspect to leave more than twice, then offeringto leave or get sprayed and arrest options were totally justified. I don't like getting into a struggle. If I can diffuse any given situation where the suspect has an option not to get arrested I'd rather give them a chance.
• At the time of the first incident where he parked in the fire lane, I've read that I should have called the police to file a report. I do not see how this would have helped me. We were advised in DCJS school and by my company that we only call the police for arrests or immediate emergency. That is what I went by. Yes he threatened me, but he left without incident. I could have taken down his plate,called the police, give them a report, and thenthey leave. Not even sure if he's the owner of the car. Nothing much I could have done. If I called the towing company, he would have been gone in less than 5 mins. That was how long he was in the store. It would have not been efficient for anyone.
• Yes I know I am not a cop. Everyone from friends, to coworkers, to people I've arrested. I know this. However, I do NOT have to inform a suspect that he is being arrested. I make it a point that if I haven't told you that I will arrest you if/when you commit a crime in my presence, I will inform you. I consider it fair warning to anyone I come in contact to, whether they remember or not.
• FYI, I'm no longer with the company at the time of arrest. They did not reprimand nor fire me. I left months after the incident. That is however irrelevant.
• The guy whom I arrested, HAS a criminal record of ASSAULT AND BATTERY. Go figure. Doesn't make sense why we didn't bring it up in court. That is however irrelevant.
• I've viewed videos upon videos of when police issue commands to a non-compliant, non-violentsuspect, they skip over the hands on use of force, and go straight to pepper spray or taser. However none of them have had previous encounters with the suspects that resulted in getting threatened.Again, I know I'm not a cop. I still model my actions after them. What other guidelines should I go by? I have powers to arrest and write summons. I want to make sure I get everything done correctly. If there isn't a exact law on how it's to be done, I research and revert back to my training. Again I know "by the book" training says I am to go hands on first after given verbal commands to a non compliant subject, however my training has also told me that any threat to my life or safety must be taken seriously. And also that any arrest must be quick and effective. The longer it takes to place someone in handcuffs, the more likely either myself or someone else might get hurt.
• Some posts I felt did give their thoughts, but added some not needed commentary, are still appreciated. I value all of your words as they help me see the bigger picture.
• If anyone is interested, I can tell or show you just about ALL my reports and arrests. In each case, I believe that I followed through with proper procedure and would like your opinions on any of them. This is however irrelevant.

Thank you all again for your support and words. One last thing. Has anyone else found ANY case law that could help my case? I've searched to the far reaches of the web and I've found only two cases subjecting "excessive force", but not with the use of pepper spray on a non-complaint suspect.



Dan

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Dan,

Start your Use of Force search here http://www.aele.org/then go to http://www.aele.org/law/MLJTopics.html.

I'm not sure what help gathering all this information is going to do you at this stage, but that is probably the best place to find out what the courts have said about LE excessive force issues. The first link will also give you lots of state-of-the-art stuff on training in use of force.

If you would not mind, please clarify something for me. You say you were already sentenced in the General District Court to 12 months. Are you hoping that the Circuit Court may reduce that sentence? Also, please confirm you are talking about a misdemeanor offense.

Finally, stay in touch with those who are on your side. Unless you killed Santa Claus I doubt there are many who will throw you under the bus because of this episode in your life. For the record, I am not one who would do that.

stay safe.

skidmark

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Can't you appeal this again? Or do misdemeanor charges have limits on how far up the ladder you can go?

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Neplusultra wrote:

Can't you appeal this again? Or do misdemeanor charges have limits on how far up the ladder you can go?

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There are time limits to appeals, Nep.
The court of appeals would also have to agree to hear the case. I guess it would go to the COA. If not, the only other option is the Supreme Court.

Dan, you might want to research sentencing guidelines and what the court will look at.
The probation officer isn't going to retry the case for you, he's going to look specific criteria about you, your personality, history, etc.

One thing I think they look at is your attitude about the crime. Meeting him/her with a I didn't do anything wrong disposition, isn't going to help much.