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Thread: Has anyone ever tested walking away from an illegal detainment?

  1. #1
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    (In an OC State)

    Cop is responding to 911 call "Man with a gun". Tells you to halt and starts going through the "we need to investigate this" bs. You ask why you're being detained and he says "we got a call, man with a gun". You ask him have they had a report of the gun being used illegally and do they suspect you of a being involved in a crime, etc. He begins to give you the usual "I'm calling it in to see if there has been any crime committed here", "they don't know yet", etc.


    Since Terry states: "... in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion."

    and

    (US vs. Weking) states: "An investigatory detention is "justified at its inception" if "the specific and
    articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion
    a person has or is committing a crime,""


    and we know the sates have stated that open carry is not grounds for reasonable suspicion.


    So....

    You politely explain to the officer(s) that by their own admission they are unaware of any crime being committed and are now simply researching law. You inform them that since they have no reasonable suspicion that you'll be leaving now and to have a nice day. As you begin to walk away they tell you to stop, you again go through the reasonable suspicion routine and tell them that you are not interested in waiting for them to research law that they should already know. You politely tell them that you refuse to be illegally detained but if they are going to illegally arrest you that you will peacefully comply and not resist them, otherwise you're going home.


    Cop arrests you.


    Since we know they have no prob suspicion then they cannot manufacture prob cause and you now have false arrest, 4th amendment, and possible battery as they will more than likely take you to the ground.


    Any thoughts?

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    OCforAll wrote:
    (In an OC State)

    Cop is responding to 911 call "Man with a gun". Tells you to halt and starts going through the "we need to investigate this" bs. You ask why you're being detained and he says "we got a call, man with a gun". You ask him have they had a report of the gun being used illegally and do they suspect you of a being involved in a crime, etc. He begins to give you the usual "I'm calling it in to see if there has been any crime committed here", "they don't know yet", etc.


    Since Terry states: "... in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion."

    and

    (US vs. Weking) states: "An investigatory detention is "justified at its inception" if "the specific and
    articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion
    a person has or is committing a crime,""


    and we know the sates have stated that open carry is not grounds for reasonable suspicion.


    So....

    You politely explain to the officer(s) that by their own admission they are unaware of any crime being committed and are now simply researching law. You inform them that since they have no reasonable suspicion that you'll be leaving now and to have a nice day. As you begin to walk away they tell you to stop, you again go through the reasonable suspicion routine and tell them that you are not interested in waiting for them to research law that they should already know. You politely tell them that you refuse to be illegally detained but if they are going to illegally arrest you that you will peacefully comply and not resist them, otherwise you're going home.


    Cop arrests you.


    Since we know they have no prob suspicion then they cannot manufacture prob cause and you now have false arrest, 4th amendment, and possible battery as they will more than likely take you to the ground.


    Any thoughts?
    I wouldn't give the cop a reason to shoot me.

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    Ask 2 questions.

    Am I being detained? If no ask...
    Am I free to go? If yes, walk away.

    If the first question is answered yes, you may want to rethink your options. Not backing an illegal detention. But if the LEO is detaining you then you are not free to leave. The legalities get worked out at a later date. At least that's the way it seems to me.

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    You cannot know during the stop whether or not the detention satisfies the Terry requirements. Like the previous poster said, if they answer that you are not being detained then you are free to leave, but if theysay that you are being detained - DO NOT WALK AWAY!

    At this point your best option is to shutup (and hopefully you're recording the encounter) and find out afterwards (via FOIA requests, etc.) whether or not the stop was justified. Then you have legal recourse if it was not.

    Just because you were doing nothing wrong, doesn't mean that the 911 caller did not falsely report you as threatening someone, etc. Evidence that you were committing a crime, even if proven false later, still satisfies the Terry stop.

    Now if the LEO stops you only because he saw you carrying (i.e. he wasn't summoned to the scene by a 911 caller), then your detention would be all the more suspect and more likely to be a clear-cut case of harrassment. Still, your best course of action is to protest politely (audio record the encounter) and take legal actions afterwards.

    Just my 2 cents!

    P.S. Not only should you know your federal/state/local gun laws by heart, but you also need to know the complexities of your 4th & 5th Amendment rights, etc. It is unfortunate that OCers have to literally become 'experts' on their rights in order to exercise them, but as they say, if you don't know your rights then you don't have any!

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    chiefjason wrote:
    Ask 2 questions.

    Am I being detained? If no ask...
    Am I free to go? If yes, walk away.

    If the first question is answered yes, you may want to rethink your options. Not backing an illegal detention. But if the LEO is detaining you then you are not free to leave. The legalities get worked out at a later date. At least that's the way it seems to me.

    What if the answer to the first question is no and the answer to the second is also no? Can you be not free to go and still not be detained?
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    How about this:

    "Am I being detained?"
    --Yes

    "What for?"
    -- Man with a gun call

    "Were there any laws broken?"
    -- We don't know (the law)

    "Did the caller say this person was waving the gun or was it holstered?"
    -- In the holster

    "Great, so no crime committed, am I free to go then?"
    -- No

    "Why not?"
    -- Because we're investigating

    "When did you guys start investigating lawful activities?"
    -- chirp

    "You just said there was no crime, can I please leave now"
    -- No

    "Why not?"
    -- We're investigating

    "What though, you just said there was no crime"
    -- chirp

    -- you could be a felon, we don't know
    "so could anyone else"


    We don't know if you're crazy
    "anyone unknown to you could be crazy"


    -- The public doesn't know this is legal
    "perhaps you could educate them about their right to open carry so that they too can protect themselves?"

    "OK, we'll you officers seem like professionals so I'll hang out for a while and help educate you on the various laws that it looks like your superiors have failed to make you aware of. I am not being detained though since you have no reason for a Terry stop, so I won't be consenting to any searches nor providing you with any information other than the various laws that you'll be needing today, which by the way are right here if you'd like to read about them."

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    OCforAll wrote:
    How about this:

    "Am I being detained?"
    --Yes

    "What for?"
    -- Man with a gun call

    "Were there any laws broken?"
    -- We don't know (the law)

    "Did the caller say this person was waving the gun or was it holstered?"
    -- In the holster

    "Great, so no crime committed, am I free to go then?"
    -- No

    "Why not?"
    -- Because we're investigating

    "When did you guys start investigating lawful activities?"
    -- chirp

    "You just said there was no crime, can I please leave now"
    -- No

    "Why not?"
    -- We're investigating

    "What though, you just said there was no crime"
    -- chirp

    -- you could be a felon, we don't know
    "so could anyone else"


    We don't know if you're crazy
    "anyone unknown to you could be crazy"


    -- The public doesn't know this is legal
    "perhaps you could educate them about their right to open carry so that they too can protect themselves?"

    "OK, we'll you officers seem like professionals so I'll hang out for a while and help educate you on the various laws that it looks like your superiors have failed to make you aware of. I am not being detained though since you have no reason for a Terry stop, so I won't be consenting to any searches nor providing you with any information other than the various laws that you'll be needing today, which by the way are right here if you'd like to read about them."
    If you are not free to go, then you are being detained period!

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    OC4me wrote:
    OCforAll wrote:

    If you are not free to go, then you are being detained period!

    Yes, I realize you are being detained but what I am saying is that it's an illegal detainment. They could very well put you in cuffs and arrest you for OCing, but it would be an illegal arrest and subject to both federal and civil suit. The officer would not be protected and have no immunity.

    What I'm trying to get at here is what others have been saying elsewhere, that until the officers are brought into court and held personally accountable, this nonsense will not stop. If the true goal is to test the law then someone will eventually have to get arrested. In St. John v. Alamogordo he was denied false arrest suit because the cops never arrested him. If you are 100% sure that they have no grounds for Terry and you get the officer admitting on tape that no crime has been committed, any arrest made at that point will be tossed out, no?

    e.g. If the cop told you that you're being detained because there was a report of a women who robbed a bank in the same area you were in, but you're a man, and you refuse to be detained on those grounds, how is any arrest they make going to be legal?

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    Also, if you state that you are not being detained but stay in place (so they can't charge you with fleeing), and you refuse to state your name, address, dob, then technically they could arrest you under Hiibel, yes? Which would then be tossed out as they had no original RAS and you have your false arrest charge, no?

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    That only applies to states that have a "stop and identify" law. Mine, and quite a few others, don't have a law on the books, therefore, you don't have to supply any information unless you are being charged with a crime, or are required to hand over pertinent information (CCH permit if concealing, or drivers license if driving, etc), IIRC
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    chiefjason wrote:
    Ask 2 questions.

    Am I being detained? If no ask...
    Am I free to go? If yes, walk away.
    True story, verbatim:

    Me: "Am I free to go?"

    Officer: "I don't know."

    Now what?

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    Yard Sale wrote:
    chiefjason wrote:
    Ask 2 questions.

    Am I being detained? If no ask...
    Am I free to go? If yes, walk away.
    True story, verbatim:

    Me: "Am I free to go?"

    Officer: "I don't know."

    Now what?
    I'd just stand there looking dumbly at him and say "When you find out, let me know. I'm not going anywhere for the next 2-3 hours, so you've got plenty of time to decide." At that point, I wouldn't say another word.

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    This is why you carry an audio recorder. You have to understand that many cops, IMO, do not know the law. Since they do not know the law they might shoot you for walking away. If you want to get shot then disobey their order. It is just going to be easier to obey their orders and complain about it later.

    Now if a cop is trying to kill you you might want to resist because you can't complain if you're dead. For example if you are crossing a bridge after a flood in New Orleans or something...

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    OC4me wrote:
    It is unfortunate that OCers have to literally become 'experts' on their rights in order to exercise them, but as they say, if you don't know your rights then you don't have any!
    I don't see it as unfortunate that anyone should become an expert on their Rights.

    In fact, it would be rather good for everyone to become experts on this very subject.

    As to the topic question, my answer is this: Rights stem from property ownership. Your body is your property. Your firearm is your property. You are the absolute authority over your property, if you so choose to be. My answer to the officer would be to ask if he suspected me of a crime. Yes or no. Anything other than a yes answer, including vague generalities like "we got a call about a man with a gun and just had to check it out" means no.

    If there is no suspected crime, then I will politely tell him that my body is my property, as well as all the things attached to it, and that I do enforce my Rights. Handcuffs are an extremely cheap, and non-violent 'enforcement' tool.

    If you peacefully allow yourself to be disarmed and cuffed, you are waiving your Rights. Don't allow anyone to tell you differently.

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    The Atomic Ass wrote:
    OC4me wrote:
    It is unfortunate that OCers have to literally become 'experts' on their rights in order to exercise them, but as they say, if you don't know your rights then you don't have any!
    I don't see it as unfortunate that anyone should become an expert on their Rights.

    In fact, it would be rather good for everyone to become experts on this very subject.

    As to the topic question, my answer is this: Rights stem from property ownership. Your body is your property. Your firearm is your property. You are the absolute authority over your property, if you so choose to be. My answer to the officer would be to ask if he suspected me of a crime. Yes or no. Anything other than a yes answer, including vague generalities like "we got a call about a man with a gun and just had to check it out" means no.

    If there is no suspected crime, then I will politely tell him that my body is my property, as well as all the things attached to it, and that I do enforce my Rights. Handcuffs are an extremely cheap, and non-violent 'enforcement' tool.

    If you peacefully allow yourself to be disarmed and cuffed, you are waiving your Rights. Don't allow anyone to tell you differently.
    The actual quote is, "all rights derive from property" by Michael Badnarik. Many people miss this little fact that rights derive from property and yes, we do own ourselves.


    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

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    SouthernBoy wrote:
    The actual quote is, "all rights derive from property" by Michael Badnarik. Many people miss this little fact that rights derive from property and yes, we do own ourselves.
    It wasn't so much a quote as a paraphrase, but yeah.

    I should write a booklet about Rights, to go along with the charter I'm writing.

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    So ifyou live an OC Legal state and someone calls the police about a man with a gun and when a LEO arrives and stops you to ask you questions, instead of questioning your right to keep walking you should have answered all questions and request the LEO to immediately talk to the person who called the police to explain that it is legal to OC in your state. Otherwise, it will just happen again.

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    The Atomic Ass wrote:
    SouthernBoy wrote:
    The actual quote is, "all rights derive from property" by Michael Badnarik. Many people miss this little fact that rights derive from property and yes, we do own ourselves.
    It wasn't so much a quote as a paraphrase, but yeah.

    I should write a booklet about Rights, to go along with the charter I'm writing.
    Yeah, I wasn't trying to be a smart ass.. I was actually complimenting you on your post. Few people know or realize that. Thomas Jefferson was one who realized it. He wrote that men could not be truly free unless they owned property. The phrase, "life, liberty, and the pursuit of happiness" in the Declaration of Independence was originally written as, "life, liberty, and the pursuit of property".

    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

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    SouthernBoy wrote:
    The phrase, "life, liberty, and the pursuit of happiness" in the Declaration of Independence was originally written as, "life, liberty, and the pursuit of property".
    This I did not know. Ya' learn something new every day.

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    The Atomic Ass wrote:
    SouthernBoy wrote:
    The phrase, "life, liberty, and the pursuit of happiness" in the Declaration of Independence was originally written as, "life, liberty, and the pursuit of property".
    This I did not know. Ya' learn something new every day.
    I'm pretty sure it was just, "life, liberty, and property".
    Franklin edited and I think he's responsible for the PC alteration.
    Sic Semper Tyrannis

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    The Atomic Ass wrote:
    snip......

    As to the topic question, my answer is this: (a) Rights stem from property ownership. Your body is your property. Your firearm is your property. (b)You are the absolute authority over your property, if you so choose to be. My answer to the officer would be to ask if he suspected me of a crime. Yes or no. Anything other than a yes answer, including vague generalities like "we got a call about a man with a gun and just had to check it out" means no.

    If there is no suspected crime, then I will politely tell him that my body is my property, as well as all the things attached to it, and that I do enforce my Rights. Handcuffs are an extremely cheap, and non-violent 'enforcement' tool.

    (c)If you peacefully allow yourself to be disarmed and cuffed, you are waiving your Rights. Don't allow anyone to tell you differently.
    (a) All rights do not stem from property ownership.

    (b) Wish we did have absolute authority over our property. Think zoning laws, sound ordinances, CC carry laws - all "reasonable" restrictions.

    (c) Surely trust that you are NOT advocating physical resistance. Any non-peaceful resistance will likely work against you. The street/sidewalk is NOT the place to settle a disagreement with a LEO.

    Know your rights, do not voluntarily consent to search or seizure and object in a normal tone, record everything and take such action as is indicated from the safety of your home or attorney's office.

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    Old and treacherous will beat young and skilled every time. Yata hey.

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    OCforAll wrote:
    How about this: "Did the caller say this person was waving the gun or was it holstered?"
    The report/testimony would go something like this:

    Officer: "He stated that he was concerned that someone saw him waving his gun"
    Judge: "Guilty of brandishing by his own admission." :what:
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    So what happens when some knucklehead who doesn't like the law calls 911 and lies, says "man walking around waving his gun at people" and cop believes him? Or even worse, more than one anti-OC lies to the cop. What then? You have your video camera on but it only faces forward. Obviously the liars will more than likely say that you had your hands in the air and were acting crazy, so your video will disprove that, but what if they don't. What if they just say you had the gun in your hand and your arm was extended downward?

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    OCforAll wrote:
    So what happens when some knucklehead who doesn't like the law calls 911 and lies, says "man walking around waving his gun at people" and cop believes him? Or even worse, more than one anti-OC lies to the cop. What then? You have your video camera on but it only faces forward. Obviously the liars will more than likely say that you had your hands in the air and were acting crazy, so your video will disprove that, but what if they don't. What if they just say you had the gun in your hand and your arm was extended downward?
    The "what if" game again." :?

    To begin with, there are different applicable laws in different states.

    "What if" a caller said you were threatening to beat them or that you were driving recklessly. Generally in most states a LEO will not/cannot arrest you on minor charges he has not witnessed.

    Then there are the 911 caller recordings and other potential witnesses.
    Personally, I would do everything I could to make it very expensive if the call was malicious or otherwise so inaccurate as to cause me a major problem.

    ymmv

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    Old and treacherous will beat young and skilled every time. Yata hey.

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    SavageOne wrote:
    [b][user=23780]What if the answer to the first question is no and the answer to the second is also no? Can you be not free to go and still not be detained?
    Then you're being detained and he's lying to you on the first no. The point of a detention is that you are not free to leave until you are told you can. Usually due to some form of investigation. If you are not free to leave you are being detained.

    From Terry v Ohio, see caps

    4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20.

    (a) Whenever a police officer accosts an individual and RESTRAINS HIS FREEDOM TO WALK AWAY, he has "seized" that person within the meaning of the Fourth Amendment. P. 16.

    Holy bold type batman. I have no idea what happened here, sorry bout that.

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