Posted on 08/03/2013 9:13:44 AM PDT by marktwain
However, seizure and arrest are not synonymous. An officer only needs reasonable suspicion (a rather low threshold) to make an investigatory detention.
Absent reasonable suspicion, an officer can only initiate a voluntary consensual encounter.
Thus, the proper calculus is whether the officers had reasonable suspicion to stop and detain in this case. This requires a detailed understanding of the facts that the officers were working with. If the officers had nothing more than the sight of this individual with a gun, then there likely would not be reasonable suspicion, as open carry is perfectly legal in Vermont. The officers would have to have something more to make a stop in the first place, and everything after that would be compounding the already unlawful seizure.
However, if the officers did have reasonable suspicion that a crime was taking place (again, they need something more than a person openly carrying a gun) then whole gambit of items available to officers during an investigatory detention are permissible under the current case law. (Which includes handcuffing.)
I do not know enough about the circumstances in this case to opine whether the initial stop was reasonable or not. My only point was that handcuffing alone does not necessitate a finding of custody or formal arrest under the current body of case law in the United States.
Thanks.
I can provide a long list of court decisions that have violated the Constitution, so I don't much care about precedent when it comes to my natural rights.
I can see the purpose in arresting someone on the suspicion that they have committed a crime, and then waiting a short time for formal charges to be filed. That is Constitutional.
Forcibly restraining someone is an arrest. There is no reason to create a new status of pre-arrest detention, unless it is to allow an arrest without even the hint of a crime having been committed.
Yes, I've got big issues with a cop that wants to cuff me, so that they can go think about what theyight be able to arrest me for. Perhaps the new norm will be to cuff everone in a traffic stop, until the cars black box is reviewed for possible violations.
If you were/are a cop, you should be more concerned than me about this, because when everyone starts thinking of cops as the enemy, they really will have a dangerous job.
I was raised to think highly of the police. I've never been arrested. Over the last 25 years most every encounter I've had with the police, from reporting crimes to being cut off in traffic has demonstrated a hostile or demeaning attitude toward me and others. I even got a lecture once, while in Naval Officer uniform, about "just being a civilian (unlike the cop)". What am I supposed to think?
We shall see what Lawyer J. Noble Daggett has to say about this.
And may you have as many thousands of joyful days as God wills.
I’d say if harassed in Vermont be ready at least to consider the option of pushing back in Vermont and not caring about Holder or Obama. One should try to appear reasonable when possible, but not cower.
Interesting reading. Thanks for posting.
We are in agreement. If someone believes he has been wronged, he should file a civil suit.
To be fair, I have to report that God has been watching out for me so far (as God has watched out for hobos and drunks so maybe I’m not too bad to be watched out for too). But again I am giving God credit for being an omnipotent Father. I got stopped by a traffic cop who said a tail light was out. I asked which one and he told me. Wanted to see drivers license but did not care about my insurance or ask for it, he did not even write a warning but just told me to fix the light and sent me on my way.
<<<<<“I absolutely understand why someone would feel like they’re under arrest in situations where they’re detained, but if you explain to someone that ‘We don’t know who you are and until we determine you’re not a threat to people in the area we’re going to detain you as a precaution,’ that usually helps,” he said. >>>>
And this is not profiling?
Situations vary. Cops aren't all the same. I treated all people in uniform with the respect and deference they deserved. I once transported a hitchhiking Canadian soldier about 20 miles to the county line without telling my dispatch. Had I encountered you in your Naval uniform I wouldn't have been the least disrespectful. Most likely I would have been interested in where you were serving and what your assignment was.
The option should be on the table... ultimately it’s a God question. I’m trying to think of situations as gospel bait and don’t want to raise stinks that are not conducive to presentation of the gospel, which is highly dependent on circumstance. But if I walk into a situation where there is a stink, the gospel isn’t chained even if I might be.
All kinds of situations abound and we aren’t governed by robots. At least not yet. God also never went on vacation. Worshipers of Him frequently see worse earthly trials than those who do not worship, which at first look sounds monstrously unfair but maybe He does not bother the unbelieving as much because they couldn’t learn anything from it, God is not into setting up people for harassment just for harassment’s sake.
The moment they put cuffs on you and say “you are not under arrest”, they are committing a felony of false imprisonment.
Yeah, I’d own those cops and that department after that.
Well I am exaggerating a bit on ‘all day’, but they can go on for a long time. That guy on FR that was carrying that rifle in Nashville has over 10 minutes of ‘detained’ on camera while they go through his stuff.
I don’t have the link handy, but they’ll do what they want.
Alas, the courts have become halls of wonderland. You wonder in this land if the judges will make sense. Anyhow one should try to be prudent, not pick fights for fights’ sake, but not cower from doing the right things. In a larger sense give total credit to God for knowing what He is doing and that He does want people’s benefit though not always being understandable at the moment.
They’ll probably throw you in the slammer then. If they do any you didn’t do anything, what can you do? Nothing for the most part unless it makes a major media sensation. You’ll get to deal with the courts later. Basically if they want to get you, they will.
I’d like to note that Andy Griffith was really not a whole lot different. He knew everyone in town, but when a stranger came through he eyeballed them a lot, and was right there if they did anything unusual.
It used to be that a lot of small towns were downright hostile to strangers, unless they had family or money, because a large percentage of strangers were up to no good, transient thieves and grifters, many of them. Even when many places were segregated into white and black parts of town, the black part was just as hostile to transient strangers, for the same reason.
In more modern times, when police stopped walking beats and instead patrolled in cars, it really didn’t change the equation except they knew fewer people, which sharpened their powers of observation even more.
So, you can afford a gun and holster, but not a shirt? Who knows if this was the police logic, more than “It’s not often you see a shirtless man with a sidearm.”
Own how? Cops kill people and unless it makes the media like that BART one, they’ll get away with it most of the time too. Who are you going to try to own them with? The courts? They and the cops are the same thing. Like trying to sue the NSA. Good luck.
The dog was luckier.
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