Supreme Court rules an officer’s misunderstanding of a law is protected

[OC for ME]

I do see a significant difference between a mistake in enforcing a law/regulation related to the traffic code and that of laws related to or impacting what I believe to be a fundamental right "to keep and bear arms that shall not be infringed"! Will the Courts see this same difference?

That is not what the opinion (the OP) addresses. In fact the cop had it right from the gitgo and the defense cherry picked the cited statute in a attempt to persuade the court...it failed to persuade and the court flat out screwed the pooch by verbalizing that a cop can misunderstand a law, act on his misunderstanding, and then not be held to account for his idiocy, his obvious idiocy in most cases.

It is never reasonable to detain or arrest a citizen anytime anywhere to see if he has violated the law. If a cop "don't see it" then the cop needs to tread very carefully. In fact the cop should not act at all in the vast majority of instances. We have many many examples here on OCDO where cops take the word of a one citizen to the detriment of another..sometimes with deadly results. The/A "reasonable test" must be applied to the state only.

Anyone who believes that the cops learn from their mistakes is viewing LE from behind rose colored glasses.

 

[utbagpiper]

I would say that a right cannot be subject to any regulation because any regulation would then make it a privilege.

Rights ARE absolute. Rights cannot be voted on by ANY gov't official .. member of legislative, executive, or judicial branch.

My thinking on what a right is and is not.

I believe you are in a very small minority with that thinking.

Charles

 

[twoskinsonemanns]

Your right about that. The people with the guns decided what rights you can and can't have. Period.

 

[davidmcbeth]

I believe you are in a very small minority with that thinking.

Charles

Hooray ! Other brilliant minds are out there !

Are you one Chuck?

 

[Fallschirjmäger]

"Reasonable man" is going to mean whatever the particular court wants it to mean in that particular case.

You're walking your dog down the road one night and a police car pulls across your path. The officer shines a spotlight at you and then stepping from his car calls out in a loud and authoritative voice, "You there, come here I want to talk to you! You got any knives, guns, or needles that are going to hurt me? Why don't you just 'assume the position' across the hood of my car? Like right now, boy."

You obey because you think you've been detained.

But were you?

Chief Justice Warren for the Court ([Terry v Ohio) wrote that the Fourth Amendment was applicable to the situation, applicable ''whenever a police officer accosts an individual and restrains his freedom to walk away. So the court may well ask if a 'reasonable person' would think he was restrained. Recent court cases would say no; you weren't detained, you had a voluntary encounter with Officer Friendly. How does a 'reasonable person' know this? Well, according to the court, he knows because

• the officer didn't have a drawn gun
• there was only one officer
• he could turn around and have an avenue to leave the encounter
• there were no flashing emergency lights
• the officer had issued no commands, only expressed desires and requests
• the officer never touched the person

How else might a 'reasonable person' know his encounter was voluntary?
Asking for identification, by itself, is not a detention. (People v. Ross (1990) 217 Cal.App.3rd 879; People v. Lopez (1989) 212 Cal.App.3rd 289.)

But; retaining the identification longer than necessary is a detention, and illegal unless supported by a reasonable suspicion the detainee is engaged in criminal conduct. (United States v. Chan-Jimenez (9th Cir. 1997) 125 F.3rd 1324:

Asking a person to remove his hands from his pockets (done for officers' safety), without exhibiting a "show of authority such that (a person) reasonably might believe he had to comply," is not, necessarily, a detention. (People v. Franklin (1987) 192 Cal.App.3rd 935, 941; In re Frank V. (1991) 233 Cal.App.3rd 1232.)

Inquiring into the contents of a subject's pockets (People v. Epperson (1986) 187 Cal.App.3rd 118, 120.), or asking if the person would submit to a search (People v. Profit (1986) 183 Cal.App.3rd 849, 857, 879-880; Florida v. Bostick (1991) 501 U.S. 429 [115 L.Ed.2nd 389].), does not necessarily constitute a detention, so long as done in a manner that a reasonable person would have understood that he is under no obligation to comply.

Displaying a badge, or even being armed, absent active brandishing of the weapon, will not, by itself, convert a consensual encounter into a detention. (United States v. Drayton (2002) 536 U.S. 194 [153 L.Ed.2nd 242].)

Of late, the courts are doing everything in their power to characterize as 'voluntary' as much of any encounter with law enforcement as they can convince themselves is so. Police officers are being educated in the same manner, to not characterize or admit that an encounter is anything other than voluntary on the part of the citizen as only when officially detained do a citizens' rights protect his conduct.

 

[OC for ME]

"Reasonable man" is going to mean whatever the particular court wants it to mean in that particular case.

You're walking your dog down the road one night and a police car pulls across your path. The officer shines a spotlight at you and then stepping from his car calls out in a loud and authoritative voice, "You there, come here I want to talk to you! ..."

Of late, the courts are doing everything in their power to characterize as 'voluntary' as much of any encounter with law enforcement as they can convince themselves is so. Police officers are being educated in the same manner, to not characterize or admit that an encounter is anything other than voluntary on the part of the citizen as only when officially detained do a citizens' rights protect his conduct.

Nope, it is a official command.

Depends on your state law regarding what is a arrest.

 

[sudden valley gunner]

I believe you are in a very small minority with that thinking.

Charles

So? Bandwagon much?

The majority is often wrong.....very wrong.

 

[Freedom1Man]

So? Bandwagon much?

The majority is often wrong.....very wrong.

That needs to be pointed out all the time.

 

[Logan 5]

AFAIC a reasonable man would think that trespassing on someone's property is a bad idea.
A reasonable man would also think that disarming a law abiding American is a bad idea.

 

[Fallschirjmäger]

You're walking your dog down the road one night and a police car pulls across your path. The officer shines a spotlight at you and then stepping from his car calls out in a loud and authoritative voice, "You there, come here I want to talk to you! ..."
Of late, the courts are doing everything in their power to characterize as 'voluntary' as much of any encounter with law enforcement as they can convince themselves is so. Police officers are being educated in the same manner, to not characterize or admit that an encounter is anything other than voluntary on the part of the citizen as only when officially detained do a citizens' rights protect his conduct.

Nope, it is a official command.
Depends on your state law regarding what is a arrest.

I don't think the courts are going to characterize it that way. They are going to say the officer was merely expressing a desire, "Come here, I want to talk to you." The officer could just as easily have said "I want a pony for my birthday" and a reasonable man would not have felt any compunction to present one to the officer just because he wanted one.

Notwithstanding state law, the Supreme Court has ruled that a suspect is detained “when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.” Brendlin v. California (2007) __ U.S. __ [2007 WL 1730143]

The court is going to look at the circumstances - -
NO COMMANDS, the officer did not expressly give an order to halt
NO EMERGENCY LIGHTS, the officer did not activate his car's lights
NOT BLOCKED IN, the person was free to do an about face and continue in another direction
NO TOUCHING
NO DRAWN WEAPON
NO BACKUP
NO INVESTIGATIVE QUESTIONING
PUBLIC PLACE
Nothing that the officer did was beyond the scope of any civilian wishing to interact with the dog walker and therefore there was no more authority or control over the dog walker than any other person of the United States had over that person.

 

[Fallschirjmäger]

If an officer "asks" you to "take your hands out of your pockets" while he's talking to you, has he detained you? Apparently it depends on just how sweetly he asks.

http://law.justia.com/cases/california/court-of-appeal/3d/192/935.html

Officers are trained to encourage cooperation by making requests of people (psychologically easier to comply with) rather than to make plain, simple commands. Unfortunately the courts have ruled that expressing a command as a request magically transforms a command into something that may be ignored at the citizen's option, something we all know is not true.

I think everyone is familiar with what happens in the following scenario: An officer has stopped someone for what he believes is speeding and to control the situation wishes to remove the occupant from behind the wheel.

Officer, "Sir I stopped you for speeding, would you step out of the car for me?"
Citizen, "Is that an order or a request? If it's a request I'll just stay in my car and enjoy the stereo, this is my favorite song."

Do you think for a moment that the officer is going to capitulate and let the motorist stay in the car?
Does anyone for a moment think that because the officer stated what he wanted done as a request that he doesn't really want it done and that it's purely up to the motorist to decide if he wants to comply or not?

 

[OC for ME]

If an officer "asks" you to "take your hands out of your pockets" while he's talking to you, has he detained you? Apparently it depends on just how sweetly he asks.

...

You there, come here I want to talk to you!

You contend request, reasonable citizens would contend a command.

"Come here" is not a request.

Now, if the cop asks You there, can I talk to you? this would/should be legitimately viewed as a request...absent any other indication that the words are actually a command issued in a polite fashion of course.

 

[davidmcbeth]

If an officer "asks" you to "take your hands out of your pockets" while he's talking to you, has he detained you? Apparently it depends on just how sweetly he asks.

http://law.justia.com/cases/california/court-of-appeal/3d/192/935.html

Officers are trained to encourage cooperation by making requests of people (psychologically easier to comply with) rather than to make plain, simple commands. Unfortunately the courts have ruled that expressing a command as a request magically transforms a command into something that may be ignored at the citizen's option, something we all know is not true.

I think everyone is familiar with what happens in the following scenario: An officer has stopped someone for what he believes is speeding and to control the situation wishes to remove the occupant from behind the wheel.

Officer, "Sir I stopped you for speeding, would you step out of the car for me?"
Citizen, "Is that an order or a request? If it's a request I'll just stay in my car and enjoy the stereo, this is my favorite song."

Do you think for a moment that the officer is going to capitulate and let the motorist stay in the car?
Does anyone for a moment think that because the officer stated what he wanted done as a request that he doesn't really want it done and that it's purely up to the motorist to decide if he wants to comply or not?

So all those times in the service when an officer asked me nicely to do something, I did not have to do it? LOL

Lawyers ... just playing games.

 

[Fallschirjmäger]

You there, come here I want to talk to you!

You contend request, reasonable citizens would contend a command.

"Come here" is not a request.

Now, if the cop asks You there, can I talk to you? this would/should be legitimately viewed as a request...absent any other indication that the words are actually a command issued in a polite fashion of course.

Begging your pardon, but I DO NOT consider it a request. My point is that the courts will bend over backwards to characterize it as a request and therefore the encounter will be 'voluntary' instead of what it really is, a detention.

 

[Fallschirjmäger]

So all those times in the service when an officer asked me nicely to do something, I did not have to do it? LOL.

Thank you, and that's exactly my point. A command, perfumed with the politest of flowery language is still a command. It's the courts that are straining credulity to say it's a request. And they have an ulterior motive behind it, as you have no rights that are protected when you voluntarily give those rights up.

 

[OC for ME]

Begging your pardon, but I DO NOT consider it a request. My point is that the courts will bend over backwards to characterize it as a request and therefore the encounter will be 'voluntary' instead of what it really is, a detention.

If you believe it is a request ignore the cop and keep on keeping on, you have no legal obligation to recognize the cop's request, let alone engage the cop at all.

 

[twoskinsonemanns]

If you believe it is a request ignore the cop and keep on keeping on, you have no legal obligation to recognize the cop's request, let alone engage the cop at all.

pfft. all well and good until you are ventilated from behind.

 

[JamesCanby]

So all those times in the service when an officer asked me nicely to do something, I did not have to do it? LOL

Lawyers ... just playing games.

Apple and oranges comparison.

 

[Fallschirjmäger]

Apple and oranges comparison.

How so? State your case.

 

[OC for ME]

A subordinate has a duty to not obey a unlawful order. Doing that with a cop could get you jacked-up right quick and in a hurry.