Attempt to disarm by LEO

DrMark said:

I see your posts in the VA forum sometimes.

I might lend them a little more credence if I knew the general area you're from -- the state, at least.

Click to expand...

Well, not to be argumentative, but if my posts don't stand on their own then you're welcome not to give them any credence. I usually sign off as '$.02' for 'my two cents' and opinion. I admit to being a newbie on 2A issues, and on use of HGs, so take me with a grain of salt.

I see you're a Dr.

Dentist?

I'm a retired pathologist.

-----
Back to the topic. I was standing on my porch one day and happened to say, while laughing 'I'd like to punch So-and-So in the nose', which is equivalent to 'give a piece of my mind', or 'kick someone's hind end', but just so happened that the child of this person who irked me was walking by when I said it (having been asked).

In about 20 minutes two cops showed up and wanted to talk to me. I was aghast. I said 'what's the problem? People say 'punch in the nose' all the time meaning they're irked. It doesn't mean actually hitting a person, or even threatening to hit someone, give me a break'.

They said 'Well since you said it standing on your porch, and we didn't hear you, we won't arrest you, but if you'd been standing in the street and said it we'd arrest you for threatening someone'. (Ri-i-i-ght!).

I said 'well, it was a figure of speech, but if you like I'll apologize to everyone involved, I definitely do NOT plan to go punch anyone AND I didn't say it to THEM I said it to another person who was grousing also and their kid overheard it'.

Imagine that. They can arrest you if you're standing in the street and say to the world, 'I'd like to punch so-and-so in the nose'.

Another reason I wonder about the educational requirements for that office, lol.

Repeater;1612017-----Snip ----Remember said:

If Called by a Panther, Don't Anther[/size]

Click to expand...

I'm keepin' this one.

This thread has some very good information that I would not have otherwise thought of. Thank you to the OP for starting this thread.

Badger Johnson said:

-----

Back to the topic. I was standing on my porch one day and happened to say, while laughing 'I'd like to punch So-and-So in the nose', which is equivalent to 'give a piece of my mind', or 'kick someone's hind end', but just so happened that the child of this person who irked me was walking by when I said it (having been asked).

In about 20 minutes two cops showed up and wanted to talk to me. I was aghast. I said 'what's the problem? People say 'punch in the nose' all the time meaning they're irked. It doesn't mean actually hitting a person, or even threatening to hit someone, give me a break'.

They said 'Well since you said it standing on your porch, and we didn't hear you, we won't arrest you, but if you'd been standing in the street and said it we'd arrest you for threatening someone'. (Ri-i-i-ght!).
....


Imagine that. They can arrest you if you're standing in the street and say to the world, 'I'd like to punch so-and-so in the nose'.

Another reason I wonder about the educational requirements for that office, lol.

Click to expand...

Actually, they can arrest you even if you were on your own property. At the least you offered violence against another and could be arrested for simple assault. At the worst (?) you could be arrested for making terroristic threats.

There are some technicalities regarding if you made the statement in the presence of the officer(s) or not, but that gets into being arrested on the spot or being arrested after the person you threatened obtained a warrant.

Your right to free speech actually ends a bit before the other person's nose.

I agree that merely expressing a desire to do something, as opposed to actually stating your intent to do the act, should not be a criminal offense.

stay safe.

ed said:

Why?

Click to expand...

Badger Johnson said:

As to why ask if you can record...

Well, it shows you are savvy, you might be in a two-party state, it might be illegal if you're in Illinois...

If it's a consensual stop (as here) and you ask if you can record and he says no, then I'm saying 'have a nice day' and shutting the door, after giving him my lawyer's business card.

What was your reason for asking, Ed? Maybe I'm missing your point.

Click to expand...

Actually... it would show just the opposite. Asking implies you don't know, and asking a cop to give you advice on a legal matter removes all doubt, you would definitely not be savvy for doing that. LEOs are notoriously unqualified to give legal advice, and in many cases it would be a conflict of interest for them to give you truthful legal advice, even if they knew it.

In Virginia, it's fairly well-established that the law is on your side under most circumstances.

TFred

By the way, this is the VIRGINIA forum. I wish we had a rule that said "All geographical references are assumed to be IN Virginia, unless stated otherwise." JMHO...

TFred said:

Actually... it would show just the opposite. Asking implies you don't know, and asking a cop to give you advice on a legal matter removes all doubt, you would definitely not be savvy for doing that. LEOs are notoriously unqualified to give legal advice, and in many cases it would be a conflict of interest for them to give you truthful legal advice, even if they knew it.

In Virginia, it's fairly well-established that the law is on your side under most circumstances.

TFred

By the way, this is the VIRGINIA forum. I wish we had a rule that said "All geographical references are assumed to be IN Virginia, unless stated otherwise." JMHO...

Click to expand...

OK, well, I stand corrected on that point. Thanks for your comments TF, always good to hear from you.

I suppose in posting that hypothetical list, I was taking a page from the Used Car Dealers handbook, where you ask if it's OK to take the prospective purchase to your own mechanic for a check out before buying. If the Dealer says "No!" you know there's something wrong with the car, most times. (Though it's an accepted thing, one might be surprised how infrequently people get an independent check and the number of times Dealers say 'no', as though they don't trust you to have the car without them in it)

Otherwise, I presume you're ok with the rest of the suggest list of things to do?

riverrat10k said:

I'm keepin' this one.

Click to expand...

Same here!

Badger Johnson said:

...you might be in a two-party state, it might be illegal if you're in Illinois...

Click to expand...

So what state are you in, Badger?

Disarming OC Virginian = "Consent Seizure"

paramedic said:

Without going into too much detail, I recently had the occasion of local LE being called to my residence ...

When we reached the cruiser he asked me to put my hands on the hood of his car, I looked at him with some disbelief and asked him why(the situation he was called for did not even involve me). He said, sir I do not know you and you are clearly agitated, for my safety I am going to disarm you. ...

Click to expand...

The LEO has no apparent constitutional or statutory authority to seize your lawfully possessed private property, your firearm, so this seems to be analogous to a consent search. Since this is not a search, I think I will call it a Consent Seizure.

This would seem to require the same standard as consent searches, that consent must be freely and voluntarily given to be consent. There can be no threats or coercion.

Much to my amazement, the Fourth Circuit Court of Appeals has apparently transmuted from a hopelessly PRO-government "the cops are always right" into a much more liberty-oriented court. This new opinion harshly rebukes police abuse of Fourth Amendment rights and puts the Richmond PD in their place:

Can refusal to consent to a patdown provide reasonable suspicion to authorize a nonconsensual patdown?

We recently warned against the Government’s proffering “whatever facts are present, no matter how innocent, as indicia of suspicious activity” and noted that we were “deeply troubled by the way in which the Government attempts to spin . . . mundane acts into a web of deception.” United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011) [Gregory, J., joined by Motz, J., and Wynn, J.]. This concern is only heightened when the “mundane acts” emerge from the refusal to consent to a voluntary search. If the important limitations on the “stop and frisk” regime crafted by Terry v. Ohio, 392 U.S. 1 (1968), are not to become dead letters, refusing to consent to a search cannot itself justify a nonconsensual search.

Click to expand...

I might suggest that could, and should, extend to Consent Seizures: Refusing to consent to a seizure cannot itself justify a nonconsensual seizure. Thus, it would now appear that Virginians who carry have a stronger hand in refusing an officer's request to surrender your weapon to the officer during the encounter. If the officer cannot articulate a specific basis for his fear or his allegation that you are a threat to his safety, merely because you carry and nothing more, then he lacks the authority to seize your weapon. Knowing this, he is really asking permission to confiscate your property, although he might do so in a way that makes you think it's an order, not a request. Under the circumstances, you have the authority to stand your ground and refuse.

So refuse. And make no apologies for doing so.

More here:
The Fourth Circuit and the Fourth Amendment: If You Search Like a Redcoat, You Can't Use What You Find in Court

The Fourth Circuit Finds that the Police Can’t Assume You’re A Drug Trafficker Just Because You Clean Your Car, Have Toiletries, and Don’t Want Your Shirts Wrinkled
Note: as you read that, substitute "gun runner" for each instance of "drug trafficker" -- you get the idea.

US v. Massenburg
This is the opinion, full of good stuff.

Fourth Circuit Blog
This blog keeps a watchful eye on the latest developments in the 4th Circuit.

How is "I would like to punch so-and-so in the snoot" a threat? I would like to be president too but that is not saying that I will make any effort to be president. Had they said "I'm going to punch so-snd-so out", THAT would be a threat!

HeroHog said:

How is "I would like to punch so-and-so in the snoot" a threat? I would like to be president too but that is not saying that I will make any effort to be president. Had they said "I'm going to punch so-snd-so out", THAT would be a threat!

Click to expand...

I guess they had heard about Badger's fearsome reputation.:banana:

Repeater said:

"Knock and Talk" encounters can be terribly dangerous for any of the parties involved. The important fact to understand is that you are under no obligation to answer the front door. This includes cops, absent a warrant.

Remember, boys & girls:

[size=+1]If Called by a Panther, Don't Anther[/size]

Click to expand...

Maybe a little off topic, but FYI I believe this sentence at the end of the "Exigent Circumstances" section is no longer true:

. . . exigent circumstances do not allow police to kick in the door of a person who denies them entry on a "knock and talk" merely because he closed a shade on the door and was heard running away from the door (presumably to flush his drugs down a toilet) since "a warrantless entry of a house by law enforcement authorities, even based upon probable cause, cannot be justified by exigent circumstances of their own making."

Click to expand...

In the spring the Supreme Court ruled in Kentucky v. King that the police can conduct a warrantless search under the exigent circumstances doctrine even if they prompted the exigent circumstances as long as they were not doing something that was otherwise in violation of the 4th Amendment (in this case knocking on a door). That's how I understood it anyway, but IANAL, see a summary here. Minor point, and I don't suspect members of this board need to worry about flushing their cocaine when they police come knocking, but it does seem to leave open the question as to what can be interpreted as furtive noises or movements. "We knocked and did not hear anything inside and we knew someone was inside so we believed that they did not answer the door because they were destroying evidence" or "We knocked on the door and heard movements inside so we believed that they did not answer the door because they were destroying evidence". Or maybe I'm just paranoid.

optiksguy said:

Maybe a little off topic, but FYI I believe this sentence at the end of the "Exigent Circumstances" section is no longer true:



In the spring the Supreme Court ruled in Kentucky v. King Or maybe I'm just paranoid.

Click to expand...

It's okay to be paranoid whenever the government is concerned. The lower courts will have to work with that. It's hard to say that the courts that affect Virginia will allow a hard-and-fast rule that any noise that suggests destruction of evidence will grant cops the authority to break into your home.

Still, it's another reason why you really don't want to answer the door when the police come knocking.

Badger Johnson said:

I'm a retired pathologist.

Click to expand...

Why do I not believe this?

user said:

Very amusing. Good thing the cop was a level-headed guy.

Two suggestions: First, never invite law enforcement (or any agent of the state, including schoolteachers) into your home. Once you do that, it's open season on searching and seizing - when you allow them to come in, then they can go where they want, search what they want, and take what they want "as evidence".

Secondly, don't go onto hostile territory (the sheriff's department for example) or even (as in this case) neutral territory. Stay on your own property, where your legal rights are strongest. But don't leave your door open, that's an invitation to the cop to enter.

Do be polite. Say, "No, thanks, I prefer to stay here." when asked if you'll go somewhere other than your own front porch.

Click to expand...

This, this, this, this, this!

If your encounter is non-adversarial, the LEO will have no problem just asking what he wants, etc.

If the LEO wants to take control of you or "the situation"... then the contact is adversarial and needs to be treated as such.

Law enforcement is not there to "help you" or be your friend. They're there to investigate a report and determine if a crime has been committed. They don't have any particular stake in who they take for what. If you come to their attention, they're just as happy to take you.

I've read suggestions that if a traffic stop goes south and you're asked to exit the vehicle, you should leave the keys in it, lock the doors, and close them behind you. Have a hidden key to get back in later, or even call AAA. Don't let the camel poke his nose under the tent!

optiksguy said:

Minor point, and I don't suspect members of this board need to worry about flushing their cocaine when they police come knocking, but it does seem to leave open the question as to what can be interpreted as furtive noises or movements. "We knocked and did not hear anything inside and we knew someone was inside so we believed that they did not answer the door because they were destroying evidence" or "We knocked on the door and heard movements inside so we believed that they did not answer the door because they were destroying evidence". Or maybe I'm just paranoid.

Click to expand...

the bolded portion of the ruling I found especially troubling, being that I have 4 kids, there are always suspicious noises& stuff being destroyed, if the above ruling holds, I might as well take the door off the hinges.