Help! Deadly force/Civil Rights...

[eye95]

Whether or not the charge stands up, the arrest being lawful is a separate issue. Of course a conviction will almost surely make the issue of lawful arrest moot--but not necessarily. Whether or not someone is guilty of a crime and whether or not someone was lawfully arrested are independent issues.

Once again, though, my point is being missed: The determination as to whether or not an arrest is lawful will not be made by the arrestee and certainly won't be made at the time of the arrest. If one decides that an ongoing arrest is unlawful and takes the life of an officer to stop it, he had better hope that he can find a court to agree--otherwise he will be convicted of murder.

Prudence dictates that, unless you are in fear of life or limb, you don't physically resist. Everything except dead or dismembered can be fixed later.

 

[Gunslinger]

Whether or not the charge stands up, the arrest being lawful is a separate issue. Of course a conviction will almost surely make the issue of lawful arrest moot--but not necessarily. Whether or not someone is guilty of a crime and whether or not someone was lawfully arrested are independent issues.

If a conviction occurs, and is not overturned, the arrest is lawful. An unlawful arrest, by definition, cannot lead to a conviction. This is not to say a second, lawful, arrest cannot be made. But if the initial arrest was unlawful, any evidence produced subsequently is inadmissable. With no evidence, there can be no conviction. If found guilty and the arrest is then found to be unlawful, double jeopardy will apply. In most cases it won't get anywhere near that far. The charges will be dropped as soon as possible and new charges submitted along with a (then) lawful arrest. Very few unlawful arrests occur subsequent to a warrant being sworn and served. Most, not surprisingly, occur because of an ignorant cop making a warrantless arrest without probable cause.

 

[eye95]

An unlawful arrest, by definition, cannot lead to a conviction.

Cite please.

That an officer does not have, at the time of arrest, reasonable cause justifying an arrest, does not necessarily mean he can't have, by happenstance, arrested the correct person on the correct charge.

I realize that it would require a convoluted set of circumstances for this to happen, but the point I was making (which is now being masked by this diversion) is that the lawfulness of an arrest and conviction for a crime are separate issues. Conviction would be a major point in favor of lawfulness, but would not necessarily be sufficient.

More importantly (and ignored completely), acquittal does not mean the arrest was unlawful.

So, I will repeat my caveat: Resisting with deadly force what one believes at the time of the arrest to be an unlawful arrest is risking a murder conviction. The resistor does not determine the unlawful nature of the arrest. A judge or a jury will.

Again, on the assertion I quoted above, cite please.

 

[DKSuddeth]

The resistor does not determine the unlawful nature of the arrest. A judge or a jury will.

you have a cite for this then?

 

[eye95]

The resistor does not determine the unlawful nature of the arrest. A judge or a jury will.

you have a cite for this then?

Nope. But, if anyone feels a citation is necessary for my obvious assertion that judges and juries decide questions of whether a law was broken or not, they may feel free to chastise me speaking so boldly.

 

[Gunslinger]

Nope. But, if anyone feels a citation is necessary for my obvious assertion that judges and juries decide questions of whether a law was broken or not, they may feel free to chastise me speaking so boldly.

Judges decide law applicability, not facts. Juries decide facts, not law.

 

[Gunslinger]

Cite please.

That an officer does not have, at the time of arrest, reasonable cause justifying an arrest, does not necessarily mean he can't have, by happenstance, arrested the correct person on the correct charge.

I realize that it would require a convoluted set of circumstances for this to happen, but the point I was making (which is now being masked by this diversion) is that the lawfulness of an arrest and conviction for a crime are separate issues. Conviction would be a major point in favor of lawfulness, but would not necessarily be sufficient.

More importantly (and ignored completely), acquittal does not mean the arrest was unlawful.

So, I will repeat my caveat: Resisting with deadly force what one believes at the time of the arrest to be an unlawful arrest is risking a murder conviction. The resistor does not determine the unlawful nature of the arrest. A judge or a jury will.

Again, on the assertion I quoted above, cite please.

Disregarding you last statement on deadly force, on which we agree, there is no citation required. I am speaking of the principles of criminal law. Reread what I said. I give you credit for being intelligent enough to understand what is a basic premise of our Anglo-American Common Law based system of jurisprudence: assumption of innocence applies at trial; unlawfully obtained fruit of the poison tree is excluded in evidentiary hearing; an unlawful arrest taints any action subsequent to it. A decent attorney excludes it in a motion in limine. If the cop unlawfully arrests enough people, eventually he'll get the one who actually did the crime. However, legal procedure does not allow that and penalizes any attempt at it--even if only one was unlawfully arrested. And "reasonable cause," whatever that is, doesn't cut it. He needs 'probable cause,' op cit my posting above. Failing that, the arrestee goes free--no evidence, no trial. If he had been convicted, on appeal showing unlawful arrest, he goes free and the state must get completely new evidence against him.

 

[eye95]

Judges decide law applicability, not facts. Juries decide facts, not law.

Normally. However, judges can decide innocence or guilt. They can choose to dismiss, essentially determining innocence, they can issue directed verdicts of innocence, and, when jury trial is waived, make the determination of innocence or guilt.

They will also make specific rulings as to lawfulness of arrests when the question is pertinent to a case.

Juries, by a decision of fact, can determine the lawfulness of any action put to them.

Nice distraction, though.

So, I will repeat my caveat: Resisting with deadly force what one believes at the time of the arrest to be an unlawful arrest is risking a murder conviction. The resistor does not determine the unlawful nature of the arrest. A judge or a jury will.

 

[since9]

Normally. However, judges can decide innocence or guilt.

Actually, no. They can influence the process, suspend sentence, use probation, or throw the book at you. Alternatively, if a good legal eagle presents a compelling arguement to do so, they can thow it out altogether. The jury decides innocence or guilt.

They can choose to dismiss...

Yes.

...essentially determining innocence.

No. If you're acquitted by a jury, you cannot be brought back to trial for the same crime (double-jeapardy). If it's dismissed by a judge, however, say, for lack of evidence, it can be brought back to trial on the basis of the new evidence.

...when jury trial is waived, make the determination of innocence or guilt.

I don't know who in their right mind would waive jury, unless they're in with the judge... :exclaim:

So, I will repeat my caveat: Resisting with deadly force what one believes at the time of the arrest to be an unlawful arrest is risking a murder conviction.

Absolutely correct.

The resistor does not determine the unlawful nature of the arrest. A judge or a jury will.

Only the judge can interpret law, including whether or not legal procedure was followed appropriately. They do this during the pre-trail hearing, to determine whether or not the evidence is both sufficient, as well as admissable, for a trial. The arrest procedure is part of the body of that evidence. The only thing a jury can do is consider the evidence allowed by the judge and render verdicts of guily or not guilty for each of the presented charges.

 

[eye95]

I amply demonstrated that a judge CAN determine innocence or guilt (directed verdict, waived jury, dismissal (if jeopardy has attached, this is final)), not WILL. So, it is absolutely true that...

The resistor does not determine the unlawful nature of the arrest. A judge OR a jury will.

This is a silly (and incorrect) distraction (from which I will move on) from the overall point I am trying to make:

Resisting with deadly force what one believes, at the time of the arrest, to be an unlawful arrest is risking a murder conviction. The resistor does not determine the unlawful nature of the arrest. A judge or a jury will.

 

[Gunslinger]

Actually, no. They can influence the process, suspend sentence, use probation, or throw the book at you. Alternatively, if a good legal eagle presents a compelling arguement to do so, they can thow it out altogether. The jury decides innocence or guilt.



Yes.



No. If you're acquitted by a jury, you cannot be brought back to trial for the same crime (double-jeapardy). If it's dismissed by a judge, however, say, for lack of evidence, it can be brought back to trial on the basis of the new evidence.



I don't know who in their right mind would waive jury, unless they're in with the judge... :exclaim:



Absolutely correct.



Only the judge can interpret law, including whether or not legal procedure was followed appropriately. They do this during the pre-trail hearing, to determine whether or not the evidence is both sufficient, as well as admissable, for a trial. The arrest procedure is part of the body of that evidence. The only thing a jury can do is consider the evidence allowed by the judge and render verdicts of guily or not guilty for each of the presented charges.

You're right on the money, Since.

 

[Gunslinger]

ETA: Gunslinger, I hear where you're coming from. Your post borders on PhD level analysis of fairly complex issues. I know I've posted much the same here, so I can't falt you. Perhaps we might create new threads to keep things separate? I think that might be appropriate. How about you?

- since9

You and I generally agree on things, but come at it from a different perspective. (I think this thread has run its course anyway.) I enjoy your posts because you tend to take direct aim at the casus beli, I tend to establish a foundation in law first. A tactical versus strategic approach. Good compliment--much as Citizen's tack is. And cuts through the usual obfuscation of some other posters, who may be intelligent but sometimes spend too much time looking at the leaves to see the trees.