wrightme
Regular Member
?? Keeping your lips closed is NOT justification for deadly force. Neither is the act of walking. Why do you keep assuming deadly force in an encounter?
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Court: Being polite to cop made consent 'voluntary'
- Thread starter Repeater
- Start date
?? Keeping your lips closed is NOT justification for deadly force. Neither is the act of walking. Why do you keep assuming deadly force in an encounter?
eye95
Well-known member
Wow. Now one is free to go only if he is not being detained!! Next time I am under arrest, I'll just start to walk away.
.
eye95
Well-known member
Oh, I will continue the discussion. I just stop going back an forth with a poster when it will add nothing new. I don't get into the yes-it-is-no-it-isn't-yes-it-is page after page after page.
It is far more effective to make the point and highlight the flaw in the opposing argument. I know I won't change the mind of the poster I am answering. I hope to reach rational folks reading the thread. Getting into a six-page argument between two posters just results in a lot of popcorn being popped.
Seriously, my goal has been simply to let folks know that following unsupported legal advice is dangerous. And, in this thread, the advice has been given that getting an answer of no to the questions "Am I under arrest?" and "Am I being detained?" means you are free to go without a shred of support. It would be inarguable that leaving after having gotten a yes to "Am I free to leave?" would be an absolute defense to an officer asserting you shouldn't have left.
So, I advocate asking, "Am I free to leave?" and not some other set of questions that have not been shown to be the legal equivalent.
If you want to continue discussing these ideas with me, that would be productive and enjoyable. However, the repetition that other posters and I were headed toward wouldn't be.
Thanks for asking and carry on!
Bailenforcer
Regular Member
Officer I must respectfully refuse to answer any questions due to the fact I have no legal council present.....
Am I free to leave now?
Am I free to leave now?
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wrightme
Regular Member
Silly.
Unless you pedanticly deny that a person who is under arrest is not being detained.
Just one more to add to the evidence that you are arguing for the sake of argument.
Do you at least see the specific wording used in the quote in the op of this thread? You know, the one that is in direct contradiction to your viewpoint?
wrightme
Regular Member
I do agree that receiving an affirmative response to "Am I free to leave" would be a defense. Upon what do you base your opinion about the other questions? Under what other operation of law can you not be free to leave if you are not being detained, or are not actually under arrest?
It cannot get more clear. If you are not being detained, or you are not under arrest, what compulsion keeps a LAC in conversation with an LE?
Show where that specific question IS legally held with that wording. So far, I have not seen where you have shown it.eye said:
Then choose to actually discuss the specifics. The specific wording used in the court case that opened this discussion is in opposition to your narrow view concerning wording. How do you respond to that?eye said:
Fuller Malarkey
Regular Member
I think I'm clear on invoking my Fifth Amendment Rights, and am not real concerned about any physical retaliation for verbally invoking that right. I am not so sure about walking away from a police officer that has not acknowledged that I am free to go. That is a physical action on my part, and I have no control over a police officer's reaction to that. A claim of "fearing for their life" could well put an end to mine. I comprehend printed words adequately, so my concern is not what the printed word describes as my rights. My concern is the reaction of the police on the street, or in a cafe, store, park. There isn't anyone out there to make the police stick to the play book.
Why do I keep assuming deadly force in an encounter? Personal experience and reports, I suppose. I prefer to view it as more of a realistic possibility than an assumption, as I have no way of knowing how each and every officer will react. So far in the year 2010, there have been 124 citizen fatalities from police misconduct. There are many others still awaiting court affirmation that the deaths were due to abuse of power by police. There have been 4,199 alleged victims of police misconduct, that were reported, so far in this year of 2010. Spotlighting the issue for me is the fact that $148,512,000 in approximated police misconduct related settlements and judgments have been paid out so far this year. 3,240 law enforcement officers cited in recorded police misconduct reports indicates to me that these isolated incidents are not so isolated. With numbers like that, and the fact these encounters involve firearms, I think it prudent to be totally informed.
http://www.injusticeeverywhere.com/?page_id=2793
I'm sure Oscar Grant believed that once he was detained, handcuffed and placed face down on the concrete that it was unlikely that he would be shot in the back.
Another important factor may be that you trust the police far more than I do.
wrightme
Regular Member
There is NEVER anyone out there to make the police stick to the play book, encounter or not. In this case, if they shoot you in the back, there is NO way they can be "fearing for their life." And, if you are fearing that, you should also fear it while you are still speaking to them. If they have acted in a manner to place that fear into you, they HAVE detained you through intimidation, so clam up.
Absent "detain" or "arrest," ALL LE encounters are consensual. Treat them as such, and you should be completely fine. I do not see any other actual rational way to look at it. If LE does not agree, they ARE detaining you, and then clam up. If you simply walk away from an encounter where they have not detained or arrested you, either they will allow you to leave, or not. Why would you even take it to a "deadly force" issue?
No, I do not "trust" police. I am positive that there are good ones as well as less good ones.FM said:
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Repeater
Regular Member
Free to leave -- and still detained
Well, after this thread, which I started, laid dormant for a time, suddenly it picks up steam.
The problem I illustrated here is the risk of a detention for not being polite (enough) to the cop. Some cops apparently want you to grovel.
The other thread that I started illustrated something somewhat different: refusing consent -- where you have that right to do so -- and being punished for it.
Perhaps that's what's being discussed here now: the risk asking for permission to leave ("Am I free to Leave?") and being punished for it.
To understand, look at what happened in the other situation by reading this.
Sadly, you can follow the rules and still be screwed over -- because the LEOs refuse to follow the rules.
Well, after this thread, which I started, laid dormant for a time, suddenly it picks up steam.
The problem I illustrated here is the risk of a detention for not being polite (enough) to the cop. Some cops apparently want you to grovel.
The other thread that I started illustrated something somewhat different: refusing consent -- where you have that right to do so -- and being punished for it.
Perhaps that's what's being discussed here now: the risk asking for permission to leave ("Am I free to Leave?") and being punished for it.
To understand, look at what happened in the other situation by reading this.
Sadly, you can follow the rules and still be screwed over -- because the LEOs refuse to follow the rules.
Fuller Malarkey
Regular Member
It looks like you have settled on some approaches. I wish you the best with that, and I hope you won't be offended if I keep exploring possibilities.
oldbanger
Regular Member
further from United States v. Mendenhall (1980):
...there is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets... Police officers enjoy "the liberty (again, possessed by every citizen) to address questions to other persons... although "ordinarily the person addressed has an equal right to ignore his interrogator and walk away...
We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference ... by enforcement officials with the privacy and personal security of individuals... As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.
... 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.
...two police officers approached Brown in an alley, and asked him to identify himself and to explain his reason for being there. Brown "refused to identify himself and angrily asserted that the officers had no right to stop him," id., at 49. Up to this point there was no seizure. But after continuing to protest the officers' power to interrogate him, Brown was first frisked, and then arrested for violation of a state statute making it a criminal offense for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." The Court simply held in that case that because the officers had no reason to suspect Brown of wrongdoing, there was no basis for detaining him, and therefore no permissible foundation for applying the state statute in the circumstances there presented
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=446&invol=544#554
...there is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets... Police officers enjoy "the liberty (again, possessed by every citizen) to address questions to other persons... although "ordinarily the person addressed has an equal right to ignore his interrogator and walk away...
We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference ... by enforcement officials with the privacy and personal security of individuals... As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.
... 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.
...two police officers approached Brown in an alley, and asked him to identify himself and to explain his reason for being there. Brown "refused to identify himself and angrily asserted that the officers had no right to stop him," id., at 49. Up to this point there was no seizure. But after continuing to protest the officers' power to interrogate him, Brown was first frisked, and then arrested for violation of a state statute making it a criminal offense for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." The Court simply held in that case that because the officers had no reason to suspect Brown of wrongdoing, there was no basis for detaining him, and therefore no permissible foundation for applying the state statute in the circumstances there presented
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=446&invol=544#554
DrTodd
Michigan Moderator
And SCOTUS tends to focus on the word "unreasonable". Therein lies the issue: people here think that in their charge to investigate crimes, LEOS are not able to effect a seizure... if they do, that it is an arrest. SCOTUS disagrees.
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wrightme
Regular Member
I would not be offended at all if you choose to do such. It is intelligent to do so. I simply do not assume that a "worst case" encounter will happen to me, and do not work towards that end.
Fuller Malarkey
Regular Member
I believe the risk of an encounter with law enforcement going bad is far greater than the risk of encountering a situation requiring my use of deadly force on an attacker. I know there are no "guaranteed" ways to handle an encounter with police, but I'm willing to study all ways that are legitimate. There is no way to predict how far a police officer will escalate things if they feel they are not in total control of the situation, and walking away from them just might be enough to trigger a physical response, whether it be taser, tackle, club or a .40 slug.
In a way its like a card game, with higher stakes. Knowing when to hold, fold, walk and run. I would rather not learn every play the hard way. I believe there is a pretty good pool of clever here on this forum. I'd be a fool not to make use of it.
wrightme
Regular Member
Personally, I would be interested in that statistic. Got one?
Think about what you are worried about. You seem to believe you are more likely to have a bad LE encounter than be a victim of a crime? That sounds counter-intuitive to me.
In this case, if it helps, add the wording presented here already. "Since I am not under arrest, and you do not indicate that I am detained, Goodbye." Then depart. If you are not free to leave, you will find out. The chance of being shot or tazed for simply leaving cannot be that high.
Fuller Malarkey
Regular Member
What do you base that statement on? Your region of the country may differ from mine. I will be forced to deal with what I have, not what you have.
I can burn up every shred of bandwidth on this forum with YouTube encounters that went bad with police, from assault to murder.
Deanimator
Regular Member
It's really not that complicated:
"Officer, am I free to leave?"
If "no", "Officer I have nothing to say without benefit of counsel."
If "yes", leave.
If when you attempt to leave, he ORDERS you to remain or uses physical force to PREVENT you from leaving, you are being DETAINED. "Officer, I have nothing to say without benefit of counsel."
If he refuses to say "yes" OR "no", "Officer, I'm leaving." If he then either ORDERS you to remain, OR physically PREVENTS you from leaving, you are being DETAINED. It matters not one IOTA what he calls it. If you are PREVENTED from leaving, either by COMMAND or physical force, you are DETAINED.
Once again, where lawful, using a voice recorder will leave NO doubts as to whether a reasonable person would believe they were being detained. Saying 'You're not being detained" while barring your departure will draw the same reaction from most judges as "We're not beating you!" uttered by police while they criminally batter you.
Police don't have to SAY you're being detained in order for you to be detained. They just have to ACT in such a manner as to cause a reasonable person to BELIEVE that they were being detained.
And if you just KEEP YOUR MOUTH SHUT when it's obvious you're being detained, the only evidence of a crime developed will be evidence of criminal activity on the part of the police. If they want to hang themselves, give them the whole rope factory.
"Officer, am I free to leave?"
If "no", "Officer I have nothing to say without benefit of counsel."
If "yes", leave.
If when you attempt to leave, he ORDERS you to remain or uses physical force to PREVENT you from leaving, you are being DETAINED. "Officer, I have nothing to say without benefit of counsel."
If he refuses to say "yes" OR "no", "Officer, I'm leaving." If he then either ORDERS you to remain, OR physically PREVENTS you from leaving, you are being DETAINED. It matters not one IOTA what he calls it. If you are PREVENTED from leaving, either by COMMAND or physical force, you are DETAINED.
Once again, where lawful, using a voice recorder will leave NO doubts as to whether a reasonable person would believe they were being detained. Saying 'You're not being detained" while barring your departure will draw the same reaction from most judges as "We're not beating you!" uttered by police while they criminally batter you.
Police don't have to SAY you're being detained in order for you to be detained. They just have to ACT in such a manner as to cause a reasonable person to BELIEVE that they were being detained.
And if you just KEEP YOUR MOUTH SHUT when it's obvious you're being detained, the only evidence of a crime developed will be evidence of criminal activity on the part of the police. If they want to hang themselves, give them the whole rope factory.
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Repeater
Regular Member
An example: The Killing of Oscar Grant
As David codrea points out in his blog, regarding the sentencing of Johannes Mehserle, this really seems to be a matter of perception. Many blogs have written about this incident. This one is worth
reading:
Well gosh, the poor black man wasn't even free to leave and he was still shot in the back.
Scared, now?
As David codrea points out in his blog, regarding the sentencing of Johannes Mehserle, this really seems to be a matter of perception. Many blogs have written about this incident. This one is worth
reading:
Well gosh, the poor black man wasn't even free to leave and he was still shot in the back.
Scared, now?
Coded-Dude
Regular Member
yep...cops shoots restrained unarmed man in back and gets two years. just think what one would get for shooting a restrained unarmed cop in the back.
Deanimator
Regular Member
At least Grant had committed a "crime" no matter how trivial.
Consider instead, Kathryn Johnston who committed NO crime and who was in fact a VICTIM of a conspiracy on the part of Atlanta cops who murdered her during the course of a home invasion justified via a search warrant obtained ENTIRELY on the basis of perjury. To put the frosting on the cake, those cops then planted evidence in the dead woman's home and suborned MORE perjury from an informant in furtherance of the conspiracy. Look at the sweetheart deals which the killers got. Truly the lives of innocent citizens are to some LEOs, UTTERLY without value.