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When is it ok to break contact with police??

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
I slave and slave...and its all wasted. Nobody pays any attention. :) Below is a link to a post with reference materials. It includes a link to a case, US vs Mendenhall that gives indicators you can use to determine if you are being detained, even if the cops won't answer your question.

Also, you can try my method. We have a court case in VA that gave me the idea. Its not a special idea. The implication has always been there amongst existing 4th Amendment case law. Its just the way the VA court phrased one sentence that jelled the idea for me:

The first words out of my mouth will be, "Officer, no offense. I know you are just doing your job, but I do not consent to an encounter with you."

First let me say, other OCers will advise first asking if you are being detained. I can understand why, and cannot fault their logic.

I like my approach better because it establishes immediately that it is not a consensual encounter. The ball is now in the cop's court. If he asks me one question, directs one comment my way, it is no longer a consensual encounter, ie, it is a detention. The advantage is that it immediately throws the onus onto the cop for having genuine RAS to continue the encounter at all.

I got the idea from a VA court opinion where the court wrote in so many words that there are three types of encounters: consensual, detention, and custodial arrest. "Oh! Wait a minute. I could refuse consent to having the encounter at all, not just refuse consent to a search."

No more verbal jousting. No more receiving a question about something else in reply. No more having to figure out from the list of indicators in Mendenahall whether a detention is occurring. It is all neatly wrapped up by refusing consent to the encounter itself.

Now, of course, plenty of cops are going to continue their word games. That is fine with me. I've already got them for an illegal detention if research bears out they had no genuine RAS. Go ahead officer, say to me in an antagonistic tone of voice, "I wanna see some ID." OK, you sunuvabtch, got you on an illegal ID demand. But, I'm straying from my topic.

So, after politely, verbally refusing consent to having any encounter at all. If they keep asking questions, I just politely invoke the rest of my rights.

Now, as to the OPers question, I would never walk away from an encounter that did not seem entirely consensual. First, if any of the indicators in Mendenhall were present, I'd just assume I was being detained because 1) the cop might get bent outa shape if I try to walk, and I may receive lumps and bruises, get cuffed, etc. 2) the cop might be looking for an excuse to put on cuffs and make them that little bit too tight, and 3) if I'm detained, I've got the cop where I want him, and when I research the 911 call and so forth, he'd better hope he had genuine RAS.

Now, let me be clear about that comment, "I've got the cop where I want him." I am not hoping to be illegally detained. I'm not hoping for a payday. But, if some cop has a little anti-gun or anti-OC attitude, and wants to play games, I'll play. I don't want to play; I am not looking forward to playing; but if I am forced by him to play, then I'm going to play. The unprofessional cops that we run into didn't decide to bend and break the 4A and play word games just when we walked into view. They've been doing it so long, its become habit. And, they get away with it because most citizens don't know their rights and cops' legal limits. Aha! Their assumption that I don't know my rights and their legal limits will be their loss. So, if the cop wants to play games about a detention, I want him solidly committed to his illegal detention. The less wiggle room he has to escape later, the better. This is what I mean by having him where I want him. If forced to play, why not play to the hilt, eh? Why be on the defensive? Why not go on the offensive and set things up so you can nail him even harder when its over?

What follows is the paragraph of indicators from Mendenhall. There is another case around somewhere that expands on the list a little. I'm sorry, but I didn't snag it when I last saw it.

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. (emphasis added by Citizen)

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0446_0544_ZO.html


Here is the reference materials thread:

http://forum.opencarry.org/forums/s...Amendment-Resources-Here!!&highlight=inchoate
 
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