"Detained"

[PFC HALE]

I said they have to, as in required. I agree that too often they don't.

didnt mean to be an attack, but we both agree on it.

 

[Vader33]

didnt mean to be an attack, but we both agree on it.

I didn't take it as such. +1

 

[PFC HALE]

cool man

 

[OC for ME]

Cuffed for your own safety, the safety of the officer, and the safety of bystanders. :uhoh:

Good luck.

 

[Gunslinger]

As someone training to be a police officer:

The laws posted above are, as often is seen with the law, not terribly clear. In detaining someone, they are actually not yet under arrest. You can detain someone by controlling their escape routes to the point that a reasonable person would not believe they can simply walk away from the contact. This does NOT mean that you are under arrest, however. You are not under arrest until you are actually notified that you are under arrest. Even though the officer may have you sit on the ground and not allow you to get up or move around.

I disagree with "a detention is an arrest". As a police officer, I can detain you without ever placing you under arrest. When the legal definition of detention mentions the term arrest, it is not in the "under arrest" meaning. It is under the "arrest the movement of an individual" meaning. I can go from contacting an individual to detaining them for whatever reason to letting them go.

Detainment is "arrest of a person's right to peaceful transit." It is exactly the same as arrest for purposes of filing suit against you under the 4th Amendment. Unless you have RAS or PC, you "detain" someone" at your own risk. Willful and knowing violation of constitutional rights forfeits qualified immunity in Federal Court. I would file suit against you and your department within 24 hours. Arrest differs only in that a formal process will commence from that point. I suggest you get more "training."

 

[Citizen]

Detainment is "arrest of a person's right to peaceful transit." It is exactly the same as arrest for purposes of filing suit against you under the 4th Amendment. Unless you have RAS or PC, you "detain" someone" at your own risk. Willful and knowing violation of constitutional rights forfeits qualified immunity in Federal Court. I would file suit against you and your department within 24 hours. Arrest differs only in that a formal process will commence from that point. I suggest you get more "training."

I wonder if the word detain was invented by government as a pretended distinction to reduce resistance and outrage to Fourth Amendment violations against the person.

Recall that in Terry v Ohio, the Supreme Court, early in the text of the opinion, quoted an earlier decision saying no right is held more sacred or carefully guarded than the right of all individuals to the control of their own person, free from all restraint and interference unless by clear and unquestionable authority of law. But, then later in the text of Terry, the Supreme Court said the stop-and-frisk (detention) perpetrated against Mr. Terry was lawful, when in fact there was no prior clear and unquestionable authority of law to perform that stop-and-frisk on Mr. Terry. Two-faced balderdash.*

In arguing its case to the Terry court, the government tried to pretend that a stop-and-frisk was not a seizure because it wasn't a classic arrest; meaning the government argued that the word seizure in the Fourth Amendment refers to classic arrests. So, the government lawyers arguing Terry tried to create a distinction between an arrest and a detention. In that section of text of Terry, the Supreme Court rejected that particular government argument, saying a detention was a seizure for the purposes of the Fourth Amendment.

So, in Terry, we have government lawyers trying to create a distinction between arrest and detention to put detentions outside of Fourth Amendment protections; and we have the Supreme Court keeping detentions inside Fourth Amendment protections, yet still creating a distinction--by reducing the requirement from probable cause to reasonable suspicion.**

Thus, I am suspicious that the distinction between arrest and detention is artificial, created by government to suit its own ends.

One of these days, I'm going to follow up on the history of this area of Fourth Amendment law and find out what's going on.


*If the police who stop-and-frisked Mr. Terry really did have clear and unquestionable authority of law to perform that stop-and-frisk on him, why did the case have to be sorted out by the Supreme Court? And, why didn't the Supreme Court just cite that settled law? And, why did the dissenting justice argue that the court was handing cops more authority than magistrates who write warrants--meaning the cops were being given this authority newly?

**SCOTUS is in effect saying that under the Fourth Amendment, a seizure is a seizure, but probable cause doesn't always mean probable cause--sometimes it only means reasonable suspicion.

 

[Gunslinger]

In effect, the standards for detaining were lowered to RAS, but that was the baseline. Lacking "articulable" suspicion, there can be no detainment which does not violate the 4th. And if the reasonable suspicion was not confirmed, hence arrest, the subject was free to go. Plus, the bounds of search were critically limited beyond the "pat down." Arrest is a process culminating in formal charges. It is detainment sent to due process of law. The standards for not violating 'fruit of the poison tree' in subsequent action when only RAS exists are much lower, as told by the strict limitation on searches other than on the person. But, back to the instant case, lacking either PC or RAS, a detainment is unlawful and therefore actionable.

 

[Citizen]

In effect, the standards for detaining were lowered to RAS, but that was the baseline. Lacking "articulable" suspicion, there can be no detainment which does not violate the 4th. And if the reasonable suspicion was not confirmed, hence arrest, the subject was free to go. Plus, the bounds of search were critically limited beyond the "pat down." Arrest is a process culminating in formal charges. It is detainment sent to due process of law. The standards for not violating 'fruit of the poison tree' in subsequent action when only RAS exists are much lower, as told by the strict limitation on searches other than on the person. But, back to the instant case, lacking either PC or RAS, a detainment is unlawful and therefore actionable.

When I first read Terry v Ohio, I thought it made a lot of sense, and didn't particularly disagree with it, except a sort of low-grade, backround unease and suspicion.

Over time though, I've come to see it entirely differently. Its unassailable that the Terry court was two-faced in validating stop-and-frisk with RAS. Also, it doesn't take much thinking to realize SCOTUS set up a situation where tons of new cases would come through the court system as the validity of the RAS was disputed. SCOTUS couldn't possibly have not known that would be the result. Basically, SCOTUS knocked a big hole in the 4A with Terry, and gave itself and lower courts numerous opportunities to side with cops and knock more holes in the 4A one case at a time as disputes regarding whether this or that set of circumstances supported a cop being suspicious and having authority to seize someone.

Separately, but still criticizing federal courts, consider the pre-existing right articulated in Union Pacific Rail Co. vs Botsford: no right more sacred or carefully guarded...free from all restraint and intereference unless by clear and unquestionable authority of law. Compare that to the standard in civil rights litigation: whether a right was clearly established and whether the cop should have reasonably known about it. Huh!?!?! Boy, that's a serious watering down of the right in UPRC v Botsford. Under the right reiterated in Botsford, a cop only needs to know whether the law clearly and unquestionably authorizes him to restrain or interfere with someone. No wiggle room. He can either point to the law that authorizes him to do something, or not. And, if his actions are not on the clear and unquestionable side of things, he's out of bounds. End of discussion. By creating an established-right standard, it seems to me the courts have basically set it up to where a cop can violate any rights not already clearly established and any version of a right not already clearly settled--meaning cops can squeeze a lot more through the loopholes.

I won't do more than mention the Good Faith Exception to the fruit of the poisonous tree exclusion doctrine.

The courts are shredding the 4A. And, have been for some time.

 

[marinepilot81]

Stay the course and never give up. This process might take years of your time and energy, but we must be as persistent as that tyranny that threatens us. Give us the updates as they come.

 

[davidmcbeth]

As a police officer, I can detain you without ever placing you under arrest.

You have never met me .... Police have attempted to "detain" me and I just walk away after I ask "am I under arrest" ...

"well you can't go anywhere" cop

"well, then if you are not arresting me and you will not let me go to point B from here, then you are kidnapping me" me

"OK, you can go" cop

100% of time ...

 

[Fallschirjmäger]

Poor DillonT, he had 4 posts over 2 days and hasn't been seen since.
I hope he's merely working long hours and studying to become a police officer.

Perhaps he'll have a more receptive and supporting audience at Officer.com?