A primer on handcuffing in non-arrest situations

[PALO]

As evidenced by posts here and elsewhere, a substantial # of people believe that police must have probable cause of an arrestable offense to place somebody in handcuffs, and that when somebody is placed in handcuffs that means the person is under "custodial" arrest, iow it;s more than just a detention.

Both beliefs are wrong. If you do get handcuffed, whether open carrying or not, the officer must have justifiable articulable grounds to handcuff you. All seizures must be "reasonable" under the 4th and many state constitutions have even stricter standards. Handcuffs are strongly SUGGESTIVE of arrest, but are not dispositive of same. Personally, the most common occurrence where I have had to handcuff a person in a nonarrest situation is dealing with a violent suicidal EDP. In those cases, many of these EDPs are armed with knives or guns and/or have used same to attempt suicide. I had a case with a guy who had a gun to his head - no crime - and I was able to talk him into droipping it. Obviously, he gets handcuffed under the community caretaking function to protect him, me, and passersby. Once the ambulance arrived, he got 4 pt restraints from the ambulance personnel of course.

There is massive body of case law supporting non-arrest handcuffing. I'm citing a few of those cases. For those who think it'so prudent to resist what they ebelieve to be a false arrest, recognize that handcuffing does not necessarily mean = ARREST

Gallegos v. City of Colorado Springs
"A Terry stop does not automatically elevate into an arrest where police officers use handcuffs on a suspect or place him on the ground. Police officers are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the course of a Terry stop."

People of California v. Osborne
United States v. Stewart
All cases where handcuffing during an investigative detention was reasonable.

In re Carlos M. 220 CA3 372,385 (1990)
“The fact that a defendant is handcuffed while being detained does not, by itself, transform a detention into an arrest.”

United States v. Acosta-Colon
"Officers engaged in an otherwise lawful stop must be permitted to take measures—including the use of handcuffs—they believe reasonably necessary to protect themselves from harm, or to safeguard the security of others."

Haynie v. County of Los Angeles
"A brief, although complete, restriction of liberty, such as handcuffing, during a Terry stop is not a de facto arrest, if not excessive under the circumstances.”

US v. Neff, 300 F.3d 1217 (10th Cir. 2002)
The allowable scope of an investigative detention cannot be determined by reference to a bright-line rule; "common sense and ordinary human experience must govern over rigid criteria."

United States v. Hensley, 469 US 221 (1985)
When police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion
...
Since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry] stop.

United States v. Maguire
The use of handcuffs to address legitimate officer safety concerns during a Terry stop or investigative detention does not transform that detention into an arrest

Bruzy and Riordan v. Trooper Joyner, et. al.
Troopers received a report of a possible gunshot fired from a vehicle. The vehicle was the subject of a high risk stop and the occupant (Bruzy) was handcuffed. Her fiance, Riordan, was traveling in a separate vehicle and stopped ahead of the scene. He was also detained and handcuffed, despite not being party to the original complaint. They filed a lawsuit and the court ruled that the detention and handcuffing were lawful measures taken in response to reasonable, articulable suspicion, and no "full blown arrest" occurred.
http://www.ctd.uscourts.gov/Opinions...JS.Riordan.pdf

and etc.

cheers!

 

[sudden valley gunner]

More horrible watering down and demeaning of what an arrest is.

When you are seized in any form you are arrested. The courts as PALO points out is not the friend of your liberty as you can see by his cites.


In my states and for much of history any detention slash arrest was done with a warrant or if the felony was witnessed, now in my state you can be arrested only if the cop sees you commit the misdemeanor, then many courts catering to the rise of the police state have decided that PC wasn't good enough that this constitutional limit was to restrictive, so they invented RAS.

Any time any Popo or prosecutor or judge or statist use these rationalizations I will be quick to point out how unliberty it is.

 

[onus]

handcuffs are to be used for officer safety. what qualifies as a threat to officer safety ? everything !!!!

 

[PALO]

I disagree with the general tenor of the responses. The courts have done, imo, a very good job at defining the various levels of detentions, when handcuffs are justified, when they aren't, etc. When you are actually out there, at 0darkthirty, in an alley with a couple of gangbangers, you can act on the specific articulable facts that are presented to you, and take reasonable actions to safeguard your, their, and the general public's safety. Imo, on the whole, there is a very "reasonable" body of case law in this regards. When you get down to the nitty gritty details, there are certainly specific cases I disagree with - some going too far in authorizing officers to do X, and some going too far in prohibiting officers to do Y, but on the whole - the courts do a pretty good job in this area of law ,imo, balancing the rights of people to be free from UNreasonable seizures and the authority of officers to take control and issue reasonable commands and engage in reasonable practices to improve safety.

Imo, the most dangerous thing (and I have seen this with several posters here and elsewhere) is to be a sophomore (from the Greek, for "wise idiot") when it comes to case law, knowing just enough to think you know that much more, and getting in trouble whn acting upon erroneous beliefs. Some are just 100% sure that cops CAN'T handcuff without arresting you (wrong) and tons of other stuff that can really get you in trouble if you act on these erroneous beliefs. To paraphrase a much smarter man than I - it's not the things you don't know, it's the things you think you know, that aint true. This is one such area where there are a lot of misconceptions amongst the lay public. So, at least while people might disagree with some of these concepts in the law, at least know that they ARE the law of the land, so if a cop handcuffs you and tells you "you are not under arrest, but you are being detained", that YES - that makes sense and is entirely legal as long as he has specific articulable facts that would justify a reasonable officer in believing handcuffing is warranted in this non-arrest situation. I say that as somebody who was held at gunpoint and handcuffed for something I didn't do. They were entirely justified, from both a common sense angle, and a legal angle in handcuffing me and I had a duty under the law to comply, which I did. Less than 5 minutes later, I was out of handcuffs and free to go, but if I had resisted and got shot, I would have had nobody to blame but myself. They had more than enough facts and circ's to justify handcuffing me and stopping me at gunpoint.

It's a relatively small %age of detentions I make, that warrant and result in handcuffing. But, I'm thankful that the courts are reasonable in recognizing the authority to do so given the right facts and circs. It makes the job safer for me, for suspects, and for passersby. In the EDP example, if you got a guy willing to hold a loaded gun to his head, you got a guy who needs to be handcuffed once he drops the gun. I did have one guy who ended up shooting himself, in that situation, and you never know how serious their intent is, but when they act thusly, you take proper precautions - for yours and their safety.

And of course, any cop who handcuffs somebody for open carrying (in a state where open carry is legal) should be dealt with harshly. Clearly, that is NOT a justifiable reason to handcuff somebody. That much I am sure we agree.

And I am also completely confident that in the VAST majority of cases where people have bad experiences with the cops and GET handcuffed, it's ALMOST always justified and based on their actions that escalated the stop to a level where handcuffs were justified, or sometimes case facts that are beyond their control but still justify the intrusion on their liberty. In the small %age of incidents where the cops were not justified, then of course redress should be available

And by recording police, you provide solid evidence in those rare cases where they are not justified and also evidence to protect them from spurious complaints when they were justified. win/win

 

[OC for ME]

<snip>

Not in Missouri.

RSMo 544.180. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.

Handcuffs in Missouri are not required to be used to meet the requirements of the statute. Holding onto my arm is an arrest in Missouri.

RSMo 544.216. Any sheriff ... may arrest on view, and without a warrant, any person the officer sees violating or who such officer has reasonable grounds to believe has violated any law of this state, including a misdemeanor or infraction, or has violated any ordinance over which such officer has jurisdiction. <snip>

A officer may not arrest without RAC or PC in Missouri.

I reject the premise that a citizen restrained in handcuffs is in a more safe environment. That is a construct of LE and LE alone. Being restrained places the citizen in a extremely vulnerable position and is unable to protect themselves.

 

[sudden valley gunner]

It's only common sense to someone who believes in unconstitutional proactive policing.

It's only common sense to someone who is willing to sacrifice others liberty for the "safety" of officers.

The OP makes huge leaps in logic (of course so do the statist courts) of what isn't an arrest, remember arrest = stop, all other definitions are inventions by the government and courts to cater to their street warriors.

 

[Tucker6900]

This is a touchy. I personally dont want to see an officer get hurt, BUT, we no longer live in a country where the term "innocent until proven guilty" means anything. Dont believe me? Take your original subject. Im walking down the street, sidearm in holster. Officer Thuginblue pulls up, orders me on the ground at gunpoint, handcuffs me, removes my firearm, then my ID, runs said ID, proves my innocence, then I am released. Intial thought process to me is, this officer believes I am guilty of a crime. Why else would he be doing this? Need more examples...DUI Checkpoints, BP Checkpoints, stop and frisk, random bag searches, TSA, mass NSA surveillance, and on, and on, and on.

We are guilty until we prove our innocence. Period.

When an officer handcuffs someone, especially when that person is merely being detained without reasonable suspicion, its an arrest. Its a crime. Its an assault. And an assault gives a law abiding citizen the right to use force, including deadly force, to prevent further assault. I dont care what any USSC justice claims. The law is the Constitution. It is not up for debate. And the Constitution and the Bill of Rights give us the authority to defend ourselves.

 

[sudden valley gunner]

This is a touchy. I personally dont want to see an officer get hurt, BUT, we no longer live in a country where the term "innocent until proven guilty" means anything. Dont believe me? Take your original subject. Im walking down the street, sidearm in holster. Officer Thuginblue pulls up, orders me on the ground at gunpoint, handcuffs me, removes my firearm, then my ID, runs said ID, proves my innocence, then I am released. Intial thought process to me is, this officer believes I am guilty of a crime. Why else would he be doing this? Need more examples...DUI Checkpoints, BP Checkpoints, stop and frisk, random bag searches, TSA, mass NSA surveillance, and on, and on, and on.

We are guilty until we prove our innocence. Period.

When an officer handcuffs someone, especially when that person is merely being detained without reasonable suspicion, its an arrest. Its a crime. Its an assault. And an assault gives a law abiding citizen the right to use force, including deadly force, to prevent further assault. I dont care what any USSC justice claims. The law is the Constitution. It is not up for debate. And the Constitution and the Bill of Rights give us the authority to defend ourselves.

Yep, it's not hard for anyone to understand unless they are trying to rationalize why people should just be compliant to their dogs.

Seems some want to reverse the master/servant role.

 

[Maverick9]

What is the point of this thread?

 

[sudden valley gunner]

What is the point of this thread?

From the OP or from the counter points?

OP handcuffing not an arrest and the courts have told me so, me the hell it isn't.

 

[OC for ME]

What is the point of this thread?

Officer safety is used as an excuse to restrain citizens regardless of the circumstances of the detainment/arrest. Of course, it is only a temporary inconvenience, being restrained and defenseless, if the restraint is of some short duration, say 30-45 minutes, one hour tops.

 

[sudden valley gunner]

Cop anti-bashing.

:lol: LOL.....

 

[DocWalker]

Regardless of what some officers believe, what some courts say putting someone in handcuffs is "arresting them". They may not be processed through booking and may be released. But the fact remains if you restict someones movement due to restraints then you are in fact doing two things, taking responsity for thier safety as they can't defend themselves nor can they even scratch an itch and you are restricting their feedoms.

Restricting your freedom and movement is by definishion "putting someone in an arresting position".

There are cases of suspects dying while in handcuffs in the back seat of a crusier or while in a holdin cell and restrained.

The OP references the ambulance crew's use of restraints. Well as a Paramedic for over 26 years I can tell you we have more checks and requirement to use restraints, we have guidelines we have to follow and in hospital's you have to have a doctors order and it has to be reviewed every 4 hours. Does that mean I haven't used restraints to include chemical restraints? No it just means we don't restrain every patient that might be a threat just for EMS safety.

I have been decked, kicked, and the body fluids.....wow

I'm just not allowed to restrain everyone for "my safety". That would be stepping on the patients rights.

I guess cops are not restrained by a persons "rights" like we are in EMS.

Palo, please don't use EMS to make an argument for restricting someones rights for "officer safety". It is all BS to me.

 

[MamabearCali]

I am not a lawyer.....I am not a cop. I am an ordinary citizen. If I am not free to go, I am under arrest. If I cannot walk away, if a LEO will taze or tackle me if I try. I am under arrest.

Everything else is an obfuscation. An attempt to muddy the waters to usurp more freedoms from citizens while singing God Bless America the whole way.

I don't blame LEOs really, but it is the sign of a declining nation. Sad to see it.

 

[marshaul]

Officer safety is used as an excuse to restrain citizens regardless of the circumstances of the detainment/arrest. Of course, it is only a temporary inconvenience, being restrained and defenseless, if the restraint is of some short duration, say 30-45 minutes, one hour tops.

30-45 minutes is almost certainly not a "short duration", last time I was reading relevant court dicta.

 

[marshaul]

Cop anti-bashing.

:lol:

I think the forum should ban that, too. For fairness.

 

[skeith5]

:lol:

I think the forum should ban that, too. For fairness.

They should also make a post length limit. On my phone it takes forever to scroll through some posts. If you can't say it in a paragraph then write a book about it and post a link to buy the book.

 

[Citizen]

Cop anti-bashing.

LOL! Too true, too true.

 

[Citizen]

It's only common sense to someone who believes in unconstitutional proactive policing.

It's only common sense to someone who is willing to sacrifice others liberty for the "safety" of officers.

The OP makes huge leaps in logic (of course so do the statist courts) of what isn't an arrest, remember arrest = stop, all other definitions are inventions by the government and courts to cater to their street warriors.

-------------------------------

Yep, it's not hard for anyone to understand unless they are trying to rationalize why people should just be compliant to their dogs.

Seems some want to reverse the master/servant role.

+1

Just to add my usual comments for the consideration of any new readers or lurkers:

In Terry vs Ohio, the US Supreme Court invented reasonable suspicion and temporary detentions out of thin air, and blatantly misadjudicated the case. There are several different angles on this. If you want to know more, I'm happy to explain.

Our Pollyanna Law-enforcement Officer always commits the logical fallacies of appealing to authority or giving one-sided examples of the benefit of detentions. He never compares it to the very foundation of our government:

Government by consent among equals. Among consenting equals, the only possible legitimate justification for seizing another human being is defense of others. For example, a crime witnessed and interrupted. Even investigating, indicting, and prosecuting a crime is one step removed from that premise. That is to say, requiring probable cause to arrest an equal is already one step removed, and already opens the door to abuses. The reasonable suspicion standard for a Terry Stop, especially as modified by more than forty years of sliding-down-the-slippery-slope court decisions, completely validates the temporary seizure of innocent people. People the government just doesn't know for sure are guilty, people the government doesn't even have enough evidence to say they are probably guilty (probable cause).

The Terry decision was another step removed from defense of others. The court decisions since then that took advantage of the mile-wide loopholes in Terry created a standard that is even further removed from defense of others.

There is no possible way to justify temporarily seizing an equal on the slender excuses now sanctioned by the courts, and practiced by a law-enforcement industry which also invents creative ways to expand even the lax standard provided by the courts.

Instead of comparing temporary investigative detentions (Terry Stops) to the foundational premise of our government, PALO resorts to logical fallacies: the US Supreme Court said it, so its reasonable. It provides some benefit sometimes, so its reasonable.

If something is reasonable, it means reason went into evaluating it. In order to accept Terry v Ohio one has to suspend reason or fail to reason. And, that's just talking about the internal inconsistencies in the opinion. One has to avoid considering (reasoning) the seizure of innocent equals, also. And, none of that takes into account yet the ocean of abuses perpetrated by police and enabled by the other police who tolerate the abusers.

 

[OC for ME]

I disagree with the general tenor of the responses. The courts have done, imo, a very good job at defining the various levels of detentions, when handcuffs are justified, when they aren't, etc. <snip>

Of course you disagree, you're a cop. Also, I like how LE parses detentions into variations.

Citizen: Am I being detained?
Cop: Maybe, maybe not, it depends.