Police encounter, asserting Rights, and minors

MKEgal · Oct 17, 2010

Citizen said:
Well done by your sister for exercising her rights.
What a coward for a cop, intimidating a minor female with lies.
And, all that for jaywalking.

+100
Good for you to think to educate her before something happened, and good for her for remembering.

I'll bet the next cop that pulls some illegal stunt like this gets a cool, steady gaze
from someone who is certain of her rights and his limits.

Oh, yeah. If there is a next time, it will be quite different.

Nevada carrier · Oct 17, 2010

Grapeshot said:
No federal restriction if you have a permit -

(ii) if the individual possessing the firearm is licensed to
do so by the State in which the school zone is located
http://docs.google.com/viewer?a=v&q...d57by-2q6VFaQsLNNwl3jKY5x_pqvqgPY8EvdSN7IZu0w

Nevada does not require a permit to open carry, nor does the state have a 1000 foot rule. Since the constitution does not specifically prohibit firearms within 1000 feet of a school, the tenth amendment leaves it up to the states to decide for themselves if they wish to create a defense free crime zone around a school. The Federal GFSZ has so many constitutional flaws I can't even begin to count them, but for an hourly fee I'm willing to bet a good layer could give it a try. If I'm not mistaken, the few instances where someone has been charged with violation of the federal GFSZ statute, the suspect in question was barred from owning or possessing a firearm by virtue of being a convicted felon or for some other reason.

Also I doubt that Greengum was effecting interstate or international commerce walking to the scene of his sisters detention, unless he arrived there by way of a loaded commercial vehicle with goods bound for a destination out of state.

kwikrnu · Oct 17, 2010

Citizen said:
Terry only speaks to the admissibility of evidence from a pat-down during a stop-and-frisk. It does not specifically exclude other kinds of encounters that I recall.

Also, remember that the crux of Terry, as regards the gun, was the reasonableness of the search for the gun. A gun that is already in view doesn't require searching for. No intrusion at all.

Terry addresses the detention of people suspected of committing a crime. If someone is suspected to have committed, is committing or is about to commit a crime a cop, with reasonable suspicion may pat down the individual for weapons.

If the cop can't articulate valid reasonable suspicion for the detention the detention is illegal. Florida v. J.L. goes into this, there is also no exception in the Fourth Amendment for firearms. Absent other activity the mere presence of a firearm is not reasonable suspicion. Racine WI, Alamogordo NM, and who knows how many cities have paid out $$$ because their cops illegaly detain/arrest people.

"Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U.S., at 30. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms." Florida v. J.L.

Citizen · Oct 17, 2010

kwikrnu said:
SNIP Terry addresses the detention of people suspected of committing a crime...

These are all valid points within their own universe.

My point is that the universe is bigger. I know of no case law that prevents a police officer disarming a non-suspect third party who is involved. Just because Terry and subsequent detention/frisk cases focus on the reasonableness of searching for a weapon for officer safety, and temporarily seizing any found, and making them admissible, does not mean Terry, et seq. excluded thereby all other situations.

You have to think your way through it carefully. The judges will; and they will come up with the finest distinctions.

kwikrnu · Oct 18, 2010

Citizen said:
These are all valid points within their own universe.

My point is that the universe is bigger. I know of no case law that prevents a police officer disarming a non-suspect third party who is involved. Just because Terry and subsequent detention/frisk cases focus on the reasonableness of searching for a weapon for officer safety, and temporarily seizing any found, and making them admissible, does not mean Terry, et seq. excluded thereby all other situations.

You have to think your way through it carefully. The judges will; and they will come up with the finest distinctions.

I'm pretty sure Ybarra v Illinois covers that. They still need RAS of a crime being committed before they can search and seize.

Remmy · Oct 18, 2010

DVC said:
If you don't see the risk that the cop would see by someone responding to the scene with a pistol on, then you should probably run for Congress.

If he hadn't been armed, he would still have been told to move away -- and, if he hadn't been armed, he might have argued with the cop about it, which wouldn't help anyone.

One thing to keep in mind is that the cop will KILL YOU if he thinks that's what has to happen so that he can go home safely at the end of watch. Those of us who OC put the cops into Condition Orange, the same as a guy who looks like a gangbanger puts US into Orange. Until we give the cop some reason to trust us, we are "likely targets."

By showing up armed, Green turned a simple jaywalking issue into something more dangerous. By refusing the cop's first request, but going along with the second one, he showed himself as reasonable and willing to accept a certain amount of direction, but not willing to just roll over for anything the cop said.

its already been stated however, it would be a hard argument to win that a firearm present did not escalate the situation however the situation was already escalated prior to Green's arrival. I am still in the school that a firearm on ones hip in a holster is not a safety issue, by admitting or saying they are that defeats the entire purpose of fighting for our 2nd amendment rights and our right to OC in the first place.

I will agree however in Vegas we are likely targets when we choose to OC and one must use judgement. I am not saying I would have done things differently, I can only say i would have backed away at the request but that does not mean its right or that i wont have an issue with it.

Also I was under the impression its illegal to to question a minor without the parents or guardians there. Being threatened with jail and being expelled from school because you jay walked and don't want to give them any information about you is "thug tactics at best". Im sure that officer felt warm and fuzzy after his shift and was able to hold his child in his arm because he made a minor cry and removed the big bad threat of a OCer all in the ruse of "Officer Safety"

But the phrase "officers safety" is abused on a daily basis. When i dealt with being pulled over months ago with my sidearm in the glove box I was told to get out of the car and my knife was taken off my pocket when he handed it back he told me to sit and stay like a dog and after treating me like a criminal sitting on the curb with my legs crossed he placed my knife 20 feet from my vehicle "out of the control of myself and the officer" with the order to not get it until he was in his car. or the fact that he had taken my firearm from the glove box and unloaded it and took it back to his car for his safety, I was not about to open the glove box for insurance and other papers in the presence of a LEO so i told him he could remove it I too want to go home to my family. Then wanted to search my car for "weapons" which i politely refused and was forced to sit on the curb like he had just caught him self a felon.

Officers being safe is one thing but when you use the phrase "for officers safety to trump EVERYONE around you" and abuse it every chance you get thats when I have the issue.

As far as running for congress, my moral compass still points north so I'll decline.

greengum · Oct 18, 2010

I want to clarify a couple points and reasons for my specific actions. She was not being detained and was free to go by the time we arrived. The summons was issued already. She knew something was not kosher which is why she called us which I will explain in detail now.

This information was gathered from questioning my sister and the metro cop. A group of students were jaywalking together across the street. The cop waved all of them over to him. He asked them one by one what kind of grades they got. My sister was about the 5th one asked and she responded with " I respectfully decline to answer that question sir" which she had learned from the ACLU video I made her watch titled "busted". He then demanded she stand in front of the patrol car while he ordered everyone else away.

He got in her face and asked her for I.D. She had left her student I.D. at home. This is where their stories differ. He claims that she would not provide her with her name. (how could he issue a summons without her name?) He then asked for her student I.D. number to verify her name. (again why ask for a student ID number to verify if she would not provide her name) She responded with 1234. He got really irate and that's when he threatened jail. She knows that you NEVER lie to a cop. He thought she was being a smart ass but her number really is 1234! He called in the school police and they verified the information she had provided. They also showed up on the scene. Now there are 3 cars and 3 cops. We then got the call from her to go down there.

She talked to her dad by cell phone, she told him to make sure I showed up too. After she hung up the metro cop asked her "who is your brother?" she sat still and said nothing. He then asked if I was an officer or a member of the bar, or if I worked with the D.A.'s office. Again she declined to answer

When we arrived one of the first things he said to me (after I stepped back 15 feet) was that she would not tell him her name and that is why things got heated. She looked him straight in the face and called him a "fuc#ing liar. Ahhh to be 16 again with all the hormones!

As far as my point of view of the situation, I remained very calm when I first walked up. My arms were crossed. I do believe one of the worst things you could do in come up to a police encounter angry or upset. I have a personal motto that goes like this, "you don't argue on the streets, you argue in court". I don't want the cops to #1 have any reason to detain me or taze me or draw down on me. Metro can be a little trigger happy from time to time here. #2 if something is wrong and this goes to court I want to make sure that a jury doesn't hear evidence from everybody that I was acting "crazy" or acted like "i was on drugs". Another reason I treat them with respect is it lets their guard down. That also provides evidence in my favor if it were to go to court not only by my demeanor but it puts the cop at ease and he starts talking to me and answering MY questions. The final outcome isn't resolved on the scene so there is no reason to be upset until I know exactly what is going on then I can take actions at that point.

I think I may make a formal complaint, I don't know yet. I have a plan which is pretty slick which I won't discuss in the open forum but any opinions you guys have I would love to hear. I will say that screaming at anyone, making threats, and lying are not traits I deem to be honorable but for some reason it is not only socially accepted for the most part if you are a cop but legal as far as I can tell. (correct me if I am wrong please)

Also at one point that made me laugh inside was right before we all went home he looked at my shirt. I asked him if he knew about the OC movement in Nevada. He said he knew very well about it. He also stated the he had no doubts I knew the law just as good as he did. (thanks to Tim and Tread and the old school guys for that!)

Another lesson I learned is I am now shopping for a used camera to tape any and all future encounters.

timf343 · Oct 18, 2010

Interesting story -- thanks for sharing. And kudos to your sister!

Just one point I'd like to make, since you brought it up - sharing the ID number actually made the cop more upset because he thought she was BSing him... In the future, your name is all that's required. No more, no less. You don't have to give your date of birth, address, social, nothing. No ID, no other information, just state your name.

NRS 171.123 covers the topic but the wording is slightly open to interpretation. In the applicable case law, Hiibel vs Sixth Judicial District Court of Nevada, the State Supreme Court affirmed that that law only requires one to identify oneself by name only. The US Supreme Court went on to state "As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means–a choice, we assume, that the suspect may make–the statute is satisfied and no violation occurs."

DVC · Oct 18, 2010

DON`T TREAD ON ME said:
While it is hard to argue the point that the firearm "escalated things" I have to question where the officers authority came from to detain Green, my point is the officer has NO authority to order a citizen to do anything, "such as put your gun in your car". unless he is suspected of commiting a crime.

Not true. The Supremes have, time and again, reaffirmed cops' authority to "keep the peace" and to use their judgment in doing so. This is a very wide mandate, that essentially breaks down to "no harm, no foul" when a cop tells you to do something.

Given the description of how it all went down, I think Green did awsome and so did lil sis.

Agreed completely. This is textbook!

DVC · Oct 18, 2010

kwikrnu said:
I'm pretty sure Ybarra v Illinois covers that. They still need RAS of a crime being committed before they can search and seize.

Uh . . .when someone is OC, no search is necessary to determine that they are armed. "Seizure" means that the cop takes custody of a person, place or thing. Neither applies in a case where a cop tells you to put your OC pistol in your car.

DON`T TREAD ON ME · Oct 18, 2010

Citizen said:
I don't know about that.

Terry only speaks to the admissibility of evidence from a pat-down during a stop-and-frisk. It does not specifically exclude other kinds of encounters that I recall.

Also, remember that the crux of Terry, as regards the gun, was the reasonableness of the search for the gun. A gun that is already in view doesn't require searching for. No intrusion at all.

I'm willing to bet courts would, or maybe have already ruled, that disarming even non-suspects under certain circumstances is reasonable under the 4th Amendment reasonableness doctrine.

Think about a domestic disturbance where the husband has slugged the wife. The cops get there and the wife is holding a gun. She's not the suspect, the husband is. Would a reasonable and prudent person disarm the wife temporarily so an argument does not turn into gunfire?

I think "officer safety" is too often a substitute for using judgement; but, I'll bet the courts would side liberally with police on this.

Well thought out post,
While terry starts out at reasonable suspicion, I would go out on a limb and assume since Green was a bystander, the officer has no suspicion that he had, was, or about to commit a crime. That criteria is what triggers the officers authority to intervene in the citizens life. without that reasonable suspicion, they can ask anything they want, however they only have authority over the citizen, if they suspect criminal activity.
Remember the Govt 's authority is granted to them, by the people and it must be spelled out, I agree with you that there is a struggle for control on the edges, and green was on the edge. That makes it much more important to "push back" when we find ourselves in a position to do so.

Citizen · Oct 18, 2010

DON`T TREAD ON ME said:
Well thought out post,
While terry starts out at reasonable suspicion, I would go out on a limb and assume since Green was a bystander, the officer has no suspicion that he had, was, or about to commit a crime. That criteria is what triggers the officers authority to intervene in the citizens life. without that reasonable suspicion, they can ask anything they want, however they only have authority over the citizen, if they suspect criminal activity.
Remember the Govt 's authority is granted to them, by the people and it must be spelled out, I agree with you that there is a struggle for control on the edges, and green was on the edge. That makes it much more important to "push back" when we find ourselves in a position to do so.

I'm betting cops have the authority to control the scene where they are conducting an investigation. It just makes no sense at all that government would give cops the authority to temporarily seize someone, but then allow anybody else to interfere just because the anybody elses are not themselves criminal suspects.

I think some readers are focusing too much on Terry. More than one angle can be in play. For example, read up on searches where the actual search that found the contraband was itself an illegal search, but the inevitable discovery doctrine made the evidence still admissable. The point is that there can be more than one doctrine in play. There may be another doctrine that allows cops the same or similar degree of control.

While I agree that it is ridiculous to play the "officer safety" card for mere OC as a third-party to a jaywalking stop, I'm betting the courts would give wide latitude to police for controlling the situation during a stop to cite someone or a Terry Stop. And, I'm betting that removing guns from the scene or getting them under control would be an easy "yes" for the courts.

DON`T TREAD ON ME · Oct 18, 2010

Citizen said:
These are all valid points within their own universe.

My point is that the universe is bigger. I know of no case law that prevents a police officer disarming a non-suspect third party who is involved.

Click to expand...

I see logic in this, however you are applying citizens "rights" to LEO authorization.
in plain terms, we the people can do something - anything , that is not prohibited by law.

Example I can open carry, because there is no law against it. (but there is no law saying I can.)

Officers and government are granted privlidged authority, so while you and an officer may do the same thing, such as open carry a firearm, his authority is expressly granted to him, where yours is not prohibited

Leo's have authorization "in their proffessional capacity" to perform certain duty's

Grapeshot · Oct 18, 2010

DON`T TREAD ON ME said:
snip......

Officers and government are granted privlidged authority, so while you and an officer may do the same thing, such as open carry a firearm, his authority is expressly granted to him, where yours is not prohibited

Not really - my right to carry is affirmed by the 2nd Amendment and in the case of OC is not limited by prior restraint as is CC.

DON`T TREAD ON ME · Oct 18, 2010

Grapeshot said:
Not really - my right to carry is affirmed by the 2nd Amendment and in the case of OC is not limited by prior restraint as is CC.

If that is true. than California and othors are breaking an actual law, and it should be simple to sue them.

Really though the constitution contains the principals with which the laws are to be made, not the actual laws.

Police encounter, asserting Rights, and minors

MKEgal

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Nevada carrier

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kwikrnu

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Citizen

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kwikrnu

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Remmy

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greengum

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timf343

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DVC

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DVC

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DON`T TREAD ON ME

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Citizen

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DON`T TREAD ON ME

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Grapeshot

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DON`T TREAD ON ME

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