Police officer tactics/OC'er counter tactics during "interactions".

[BrianB]

Wikipedia is an excellent source in many respects. The law is not one of them. It provides a good place to start one's research. But the actual law is the place to go. Most of the folks here have read the law of their State and know it well. If one makes a mistake in the statement of the law here, trust me, about a half-a-dozen posts will correct him almost immediately. OCDO is a great source for the law.

Agreed. The Wikipedia page doesn't really do much but give links to the relevant laws. They certainly could be missing some relevant links however. A wiki (on OCDO or elsewhere) for Police Encounter case and statute law, by State, would be awesome.

There is a ton of great info on OCDO and a bunch of very knowledgeable posters - but all that brilliance is spread all over a gajillion posts, some of which will become irrelevant due to the passage of time, laws, or cases. If it were in a wiki by state, it would all be in one place where it could be kept up to date, irrelevant info removed, etc.

 

[Citizen]

What States do not require you identify yourself in some fashion if an officer demands such during a lawful stop?

Terry clearly establishes that such requests are generally constitutional, so I can't imagine many (if any) States do not have ID laws.

There are a number of states lacking stop-and-identify statutes. VA is one.

The problem is that localities can have stop-and-identify ordinances. The ones I've read made it a serious misdemeanor--six months or a year in jail, and/or a hefty fine.

I don't really worry about it. If my identity is demanded, or even requested, I'll provide it while refusing consent. My policy is a formal written complaint for every police contact involving my gun, even if the contact turns out to be technically legal. That is to say, since cops can observe from a distance, there is no reason for even a consensual contact. And, since cops often screw up even consensual contacts, odds are that I'll have some sort of illegality to complain about.

So, since I'm writing a formal complaint, the cop in front of me is gonna find out my name later anyway, so I might as well give him my identity during the encounter. Refusing consent protects my rights in the event it was an illegal identity demand. And, giving my identity prevents me running afoul of some local stop-and-identify ordinance I didn't know about.

For others considering this tactic, you should know there is a risk. It hasn't happened to OCers often. Only once or twice I can think of. The cops, having your identity, can now track you down to press charges after the fact. That is to say, even if they can't find or think up something to charge during the encounter, having your identity makes it possible for them or the prosecutor to know who to charge if they think of something the next day or a few days later. By "think of something", I also mean twist the law.

 

[Freedom1Man]

SNIP

For others considering this tactic, you should know there is a risk. It hasn't happened to OCers often. Only once or twice I can think of. The cops, having your identity, can now track you down to press charges after the fact. That is to say, even if they can't find or think up something to charge during the encounter, having your identity makes it possible for them or the prosecutor to know who to charge if they think of something the next day or a few days later. By "think of something", I also mean twist the law.

I was cuffed and stuffed once for refusing to ID myself. They searched my pockets and could not find any state issued photo ID and could only find my CPL, they used the information from that to have be charged with obstruction of a police officer later. Once the public pretender told the prosecutor that I was not backing down from this, the county dropped the baseless charge.

 

[MSG Laigaie]

............ to get them to back off if you have done nothing wrong. Just takes some confidence, and balls, a little knowledge helps..............

I have had only two LEO incidents in the past several years. The first was a County Sheriff walk up and stop. I said "No, we are not going to do this". He spoke to someone on his radio and then quietly retreated. I must assume he was told by dispatch that I was within the law as he initiated the stop, not dispatch. No worries. The second stop was initiated by the officer and did not go as well. He drew his weapon on me on several occassions during the encounter and that did increase the tension a bit. I did maintain my composure tho and yelled at him for several minutes as he holstered and drew over and over again.
On the first incident, no harm, no foul, no worries. On the second incident I made him pee his pants and I am collecting a check from the city.

............These aren't "good cops" we're worrying about............some of these characters are on a power-trip ........

This is truth!! and this is the problem as I see it. (your mileage may vary) The power trip LEO (incident #2) does not care about the law, he cares about his power. The real Law Enforcement Officer, will do his job as the law provides, not his ego.
It is up to you to decide which LEO you are discussing your possible arrest with.

 

[BB62]

ORC 2921.29 requires one to respond to a request for name, address, and date of birth when stopped for RAS...

Correction - ORC 2921.29 says "...name, address OR date of birth...".

("A) No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following"..."

http://codes.ohio.gov/orc/2921.29

Hasn't this been covered already?

 

[notalawyer]

{SNIP}.

You're pretty much on track with everything, However with respect to this:

Florida is an "all parties consent" state. That means notification is not sufficient, all parties being recorded must consent to the recording.

You've missed the critical definition Oral Communication:

“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

The florida Supreme Court has ruled:

From this language, it is clear that the legislature did not intend that every oral communication be free from interception without the prior consent of all the parties to the communication.

This expectation of privacy does not contemplate merely a subjective expectation on the part of the person making the uttered oral communication but rather contemplates a reasonable expectation of privacy. A reasonable expectation of privacy under a given set of circumstances depends upon one's actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable.

If you tell a LEO you are recording the interaction (occurring in a public place) or it is plainly obvious (you are holding up a video camera or cell phone in such a manner to suggest that you are indeed recording, he cannot possibly have a reasonable expectation that the communication is not subject to 'interception'.

Surreptitious recording of a public official in the performance of his duties might be unlawful; but only in a very narrow set of fact based circumstances.

 

[MKEgal]

What States do not require you identify yourself in some fashion if an officer demands such during a lawful stop?

From the legal case notes with the WI obstruction statute:
http://docs.legis.wi.gov/statutes/statutes/946/IV/41/3/_4

No law allows officers to arrest for obstruction on a person's refusal to give his or her name. Mere silence is insufficient to constitute obstruction.
Henes v. Morrissey, 1995

But we also have 968.24 "temporary questioning without arrest"
http://docs.legis.wi.gov/statutes/statutes/968/24

After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

And in the case notes under that:

The Terry rule applies once a person becomes a valid suspect even though the encounter was initially consensual; if circumstances show investigation is not complete, the suspect does not have the right to terminate it.
WI v. Goyer, 1990

That the defendant is detained in a temporary Terry stop does not automatically mean Miranda warnings are not required. Whether the warnings are required depends on whether a reasonable person in the defendant's position would have considered himself or herself to be in custody.
WI v. Gruen, 1998

And then there's this ****

The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.
WI v. Limon, 2008

...there is a risk. It hasn't happened to OCers often. Only once or twice I can think of. The cops, having your identity, can now track you down to press charges after the fact. That is to say, even if they can't find or think up something to charge during the encounter, having your identity makes it possible for them or the prosecutor to know who to charge if they think of something the next day or a few days later. By "think of something", I also mean twist the law.

This is what happened to the Madison 5 here in WI.
The ones who refused to ID themselves (for doing something legal) were arrested, searched for ID documents, & IIRC charged with obstruction (despite what the law says).
The ones who didn't wait to get arrested gave their ID's.
They were all released at the scene, and all 5 got tickets for DC a couple days later in the mail.

 

[eye95]

Correction - ORC 2921.29 says "...name, address OR date of birth...".

("A) No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following"..."

http://codes.ohio.gov/orc/2921.29

Hasn't this been covered already?

I paraphrased, presenting the correct meaning of the statute. You used quotation marks, meaning that the part you left out changes the meaning of the quotation entirely. So here is the entire relevant quotation:

"No person who is in a public place shall refuse to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects either of the following:"

The or is in a list of things you should not refuse to do. If you refuse any one of them, you are in violation of the statute. Therefore you must not refuse any of them. Therefore, you must provide all three if requested.

Yeah, I know we have a legal expert in the OH forum saying that you only need provide one of the three. While, should I find myself in front of a judge for violating that statute, I'd try his defense, I don't recommend putting yourself in that position.

If you think that defense will work, give an officer only your DOB when he asks you to identify yourself. Let me know how court goes.

 

[BrianB]

You've missed the critical definition Oral Communication:[...]

Thanks for expounding on that notalawyer. My statement that the "all parties consent" rule does not apply when "a person is in a public place where they have no reasonable expectation of privacy" was imprecise as to Florida law. The details you provided correct that deficit. There's a lot of latitude with the definition of oral communication as "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation". If someone is in a public place where they have no reasonable expectation of privacy at all, then the element of "under circumstances justifying such expectation" is not satisfied (and hence it's not an oral communication). If the person is in a situation where they might have a reasonable expectation of privacy, but you are holding a camera in their face, then the element of "exhibiting an expectation that such communication is not subject to interception" would seem to not be satisfied. How could you expect that the communication is not subject to interception if there is a camera in your face with the record light on?

I know the general rule of thumb is that surreptitious recording is best to be avoided, but if they are in a public place where they can't possibly have a reasonable expectation of privacy, then in theory surreptitious recording should be lawful. I have seen plenty of cases where the victim (person accosted by police) has a handheld recorder and say a cell phone recording. Evil doer snatches the handheld and then assumes he's not being recorded, so the 2nd recording is surreptitious. If you announce its presence there's a good chance it's going to get snatched too, so keeping it surreptitious is likely a good plan.

Personally I'd like to see a state law saying you may always record any public official in the performance of their official duties. We are the employer and they are our employees. We have the right to record our employees doing the work that we paid them to do. Period.

 

[notalawyer]

Thanks for expounding on that notalawyer. My statement that the "all parties consent" rule does not apply when "a person is in a public place where they have no reasonable expectation of privacy" was imprecise as to Florida law. The details you provided correct that deficit. There's a lot of latitude with the definition of oral communication as "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation". If someone is in a public place where they have no reasonable expectation of privacy at all, then the element of "under circumstances justifying such expectation" is not satisfied (and hence it's not an oral communication). If the person is in a situation where they might have a reasonable expectation of privacy, but you are holding a camera in their face, then the element of "exhibiting an expectation that such communication is not subject to interception" would seem to not be satisfied. How could you expect that the communication is not subject to interception if there is a camera in your face with the record light on?

I know the general rule of thumb is that surreptitious recording is best to be avoided, but if they are in a public place where they can't possibly have a reasonable expectation of privacy, then in theory surreptitious recording should be lawful. I have seen plenty of cases where the victim (person accosted by police) has a handheld recorder and say a cell phone recording. Evil doer snatches the handheld and then assumes he's not being recorded, so the 2nd recording is surreptitious. If you announce its presence there's a good chance it's going to get snatched too, so keeping it surreptitious is likely a good plan.

Personally I'd like to see a state law saying you may always record any public official in the performance of their official duties. We are the employer and they are our employees. We have the right to record our employees doing the work that we paid them to do. Period.

Agree 100%

The reason I indicated slight caution is that the circumstances will determine if a reasonable expectation of privacy exists, even in a public place.

Take, for example, two uniformed, on-duty LEO's standing outside in a public park talking, however they are huddled together speaking very quietly. One could easily expect a court to rule that they had a reasonable expectation that their communication would not be intercepted.

However 99.99999% of public / LEO encounters should not fall into that extreme circumstance.

The LEOs that object to being recorded are exactly the ones that need to be recorded.

 

[eye95]

A catcher walks out to the pitcher's mound in front of 50,000 spectators (plus dozens of TV cameras) and puts the glove in front of his face while talking to the pitcher. I suspect he has a reasonable expectation of privacy with regard to what he is saying.

 

[Maverick9]

Agree 100%

The reason I indicated slight caution is that the circumstances will determine if a reasonable expectation of privacy exists, even in a public place.

Take, for example, two uniformed, on-duty LEO's standing outside in a public park talking, however they are huddled together speaking very quietly. One could easily expect a court to rule that they had a reasonable expectation that their communication would not be intercepted.

However 99.99999% of public / LEO encounters should not fall into that extreme circumstance.

The LEOs that object to being recorded are exactly the ones that need to be recorded.

Agree. I also do not think that a public servant/official on the job, except in the case of client privilege should have or be afforded any shield from being recorded. People listen on on police band scanners. If the cop is not a lawyer, what is he needing to be shielded from ON the job. It's like employers monitoring PC use.

2¢

 

[BB62]

...If you think that defense will work, give an officer only your DOB when he asks you to identify yourself. Let me know how court goes.

Court? ROFL. As far as giving only DOB, every time I've been stopped I've given officers no information at all, and shown no ID - as a matter of fact, I usually carry none when OCing.

RAS, man, RAS.

If you want to see the result of the most recent incident, peruse the Cincinnati Law Department memo on open carry.

 

[eye95]

Court? ROFL. As far as giving only DOB, every time I've been stopped I've given officers no information at all, and shown no ID - as a matter of fact, I usually carry none when OCing.

RAS, man, RAS.

If you want to see the result of the most recent incident, peruse the Cincinnati Law Department memo on open carry.

And when the day rolls around that you are wrong about whether the officer had RAS, be sure to tell me how it went in court. Neither you, nor the cop on the street, are the final arbiter of whether or not he had RAS. So, again, I do not recommend assuming that he does not have it. When the court rules he did, your not having provided identification according to the law will make you a criminal.

Moving on.


Sent from my iPad using Tapatalk.

<o>

 

[BrianB]

A catcher walks out to the pitcher's mound in front of 50,000 spectators (plus dozens of TV cameras) and puts the glove in front of his face while talking to the pitcher. I suspect he has a reasonable expectation of privacy with regard to what he is saying.

I disagree. I think he may be indicating he'd like to have some privacy, but I don't think his expectation about being successful is necessarily reasonable. Further, I'm of the mind that attempting to record him with a parabolic microphone wouldn't necessarily be illegal in that instance. They use parabolic mics when covering football, I don't know about baseball. If you do it in front of 50,000 people, I don't think you have any reasonable expectation of privacy, regardless of whether you endeavor to achieve it.

Pretending we're using Florida law to evaluate this:

[...]uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation[...]

He may be "exhibiting an expectation that such communication is not subject to interception", but I'd argue that the the circumstances do not justify such expectation.

 

[Citizen]

Court? ROFL. As far as giving only DOB, every time I've been stopped I've given officers no information at all, and shown no ID - as a matter of fact, I usually carry none when OCing.

RAS, man, RAS.

If you want to see the result of the most recent incident, peruse the Cincinnati Law Department memo on open carry.

In addition to Eye95's response in post #56, I would add:

"RAS, man, RAS" is less an issue during the encounter than whether the cop thinks he has RAS, or is willing to invent it later.

 

[WalkingWolf]

The courts work around a word called reasonable, and another word called believe. If the court decides you were justified in not reasonably believing their was RAS, then the state will lose. In many instances it does not have to be true, just that it is reasonably believed. In a interaction with police and they do not articulate a reasonable suspicion that there is RAS it can be reasonably believed there is none. And that is what the court will go from not whether they had a secret reason that they kept secret in a safe in vault in some mountain as some statists would have you believe. If there is RAS YOU WILL know it, they will tell you, if they don't they do not have it. Only a few officers would treat it as a secret. I do not submit to anyone without knowing why, it is my right, it is everybody's right.

Most police officers are very conscious of the fact they can be sued, and wish not to be. It is a big hassle, if the only reason an officer articulates for stopping a person is a LEGAL act, it can reasonably believed there is no RAS.

I do not argue with anybody in public. If asked for ID, I will only reply with "Am I free to leave" if not I am under arrest. If free, I am leaving. If I am under arrest I then give my name and demand a lawyer. Having any conversation at all is just dumb. Even if a officer has super secret RAS the only thing you are required to tell are the basics. Always ask if you are being detained, or not free to leave before giving your name. If the officer is bullcarping he will incur wrath if it costs his community money. Even if they do not say it in public, his butt is getting a piece of paper in his file.

 

[carolina guy]

In another thread, http://forum.opencarry.org/forums/s...ts-Open-Carry-Encounter&p=1951824#post1951824 a video shows an OC'er stopped by officers. The OC'er asks numerous questions such as "Am I being detained?" or "Am I doing anything illegal?", and in every instance, the responding officers reply by completely ignoring the questions, or by inserting non-sequiturs such as, "We just recieved a call...." etc. that have absolutley nothing to do with the question being asked.

I've noticed this enough for it to become an obvious tactic employed by officers during interactions. As with any "tactic" in any situation, overuse becomes predictable, therefore, ineffective over time.

What are some good "tactics" to employ during encounters, and what things should we, as OC'ers, be aware of during officer interactions?


I always try to use questions requiring explanatory answers instead of "yes" or "no". "Yes" and "no" are answers easily avoided. One simply ignores the question. (It's easy to conclude that the question requires an affirmation or denial without much thought, and bypassing it by discarding the entire question is easy, and the transition is seamless: One simply inserts a non-sequitur, and moves on.)

Asking, "Why am I being detained?" or other questions requiring more than affirm/deny analysis requires the mind to actually form an answer before making a say it/discard it decision. This takes much more time, and a seamless transition in conversation is nearly impossible.Since the insertion of a non-sequitur would be entirely too obvious, it isn't as easy to pass right on over it as if the question didn't exist.

Q: "What probable cause do you have to detain me?"

A: "......Hmmmm. Wow. This makes me have to think of an appropriate lie instead of lying by omission in discarding a yes/no answer entirely. Good question. I wish I could ignore it without being so obvious."

I'd also try inserting a "Why are you completely ignoring my valid questions?" or "Why are you not answering?" after a non-sequitur. ("Questions beginning with "Why" seem to be a good thing as "Why" doesn't seem to be easily answered with a "yes" or "no".)

Anyone know of any good "tactics" to employ against the "officer non-sequitur"? Right now, I'm stuck with asking hard to ignore questions and calling obvious attention to avoidance. Noticing how often these "ignore the question" tactics are employed by officers in interactions where they wish to avoid accountability, I think a discussion of "counter-tactics" helps the entire OC community by helping raise awareness of all OC'ers to situations where officer culpability is in question and attempts are being made by the officer to avoid acknowledgement of it.

Just be aware of falling prey to several subliminal "tactics" used by officers during interaction with the public:

1) Siezing control of the conversation by "dominance" or "wielding authority". (If one acts "in charge", the majority of times, bystanders will subconciously "submit" as someone has already assumed the role of "leader".) This is half the battle. When an OC'er is knowledgeable about the law, or "takes charge" of his own destiny by refusing to relinquish complete control of the situation to the officer, many confilicts resulting from this are simply the officer trying to re-establish dominance of the conversation in order to assert authority. Asking questions the officer is uncomfortable with also provides an unwanted opportunity for the officer to appear lacking in control, therefore, lacking in authority.

2) Avoiding questions establishing officer culpability.

Anyone have more things to be aware of in officer encounters? The more we openly discuss these things, the better prepared we all will be in potential future encounters as our awareness of things detrimental to our rights and freedom will be more noticeable, and therefore better prepared for.

How about just exercise your 5th Amendment rights (as detailed by the SCOTUS recently)? Then just stare blankly until they get bored.

 

[BrianB]

How about just exercise your 5th Amendment rights (as detailed by the SCOTUS recently)? Then just stare blankly until they get bored.

Probably old news for everyone here, but the person shooting this video does a priceless job of "stare blankly until they get bored".

 

[jhfc]

I like this one:

http://www.youtube.com/watch?v=gwYBshAScmE

"I don't answer questions."