Posted on 09/11/2009 1:22:31 PM PDT by JohnPierce
But can law enforcement themselves be entrapped? That seems to be the extraordinary claim of the Racine, Wisconsin police department in the case of an open carrier who was arrested for obstructing justice after he apparently refused to identify himself when officers began questioning him for open carrying on the porch of his own home.
The facts are still emerging, but reports seem to agree that officers were in the neighborhood where Frank Rock lives on Wednesday night investigating the shooting of one or more raccoons. While in the neighborhood, officers noticed that Rock, sitting peacefully on his front porch, was openly wearing a holstered handgun, which is legal in Wisconsin, and began questioning him. When Rock refused to identify himself or answer their questions, officers arrested him.
(Excerpt) Read more at examiner.com ...
I hope you enjoy my analysis of why. :)
The cops come on to the guy’s property to investigate a reported crime, confront the homeowner who has broken no law, and ultimately arrest him when he refuses to ID himself— you say the police acted stupidly. This seems to have a familiar ring to it.
>>The cops come on to the guy’s property to investigate a reported crime, confront the homeowner who has broken no law, and ultimately arrest him when he refuses to ID himself— you say the police acted stupidly. This seems to have a familiar ring to it.<<
Oh! Oh! Pick me, pick me!!!
Gates. Obama.
Cops don’t like it when the playing field is equal.
Actually, Professor Gates was not arrested for failure to comply with police requests for identification; he was arrested for disorderly conduct when he continued to shout provocatively at the police officers, who had been leaving.
Well done. A quick, clear and concise article.
It does not look good for the police.
Cops just can’t handle the fact that average citizens can tell them to shut up (in so many words) and leave me alone. Everyone has to give them full attention and compliance, because they’re the cops, damnit, and the world is their jurisdiction.
A well done piece. Although I agree with the law, most homeowners in this guy’s position will be happy to give the cops their name. I would have, while asking what the story was—why they were around.
Big difference here. They were not called to his property and he was not belligerant.
Thanks!
“their first reaction when questioned was to claim that it appears they were ‘set up … to see how they would react to open carry.’”
You mean the set-up was to see how they would react to someone doing something that’s perfectly legal? I should hope they’d react the same way to someone who was walking their dog: i.e. not at all. Otherwise, they should hand in their badges.
“This seems to have a familiar ring to it.”
Oh, please. There was reasonable suspicion in that case. A neighbor had phoned in suspicion of a break-in. Not “in the neighborhood” at some time in recent history, but right then, at that house. And Gates didn’t just refuyse to answer. by all accounts (save Gates’, I guess) he was belligerent, and continued to be so after the cops gave him a chance to calm down.
Good thing the guy wasn’t smoking, they could have sent in the SWAT team for that!
Under Wisconsin statute 968.24, which effectively codifies the United States Supreme Court ruling in Terry, an officer, “after having identified himself or herself as 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.”
Was it not reasonable for the officers to suspect that he had perpetrated the shootings of the racoons in a residential area...thereby giving them authority to demand name and address info as stated in the above decision?
Clearly the cops were idiots. Just as clearly this ain’t nothin’ new.
I believe that is the point -- that simply (legally) carrying a gun is not, by itself, evidence or cause for "reasonable suspicion" that he committed any crime whatsoever.
His porch isn’t a public place.
But as I pointed out in one of my other articles ( http://digg.com/d310VWV?t ), these Disorderly Conduct, Disturbing the Peace and Obstructing Justice charges serve as catch-all offenses that give far too much latitude to officers in punishing citizens who they don’t like, or who are obnoxious but whose behavior does not rise to the level of true criminality such as I believe was the case where Professor Gates was concerned.
No. It was not reasonable. If there were a car in his driveway it would not have been reasonable for the police, for that reason alone, to arrest him for a hit-and-run the previous day a block away.
Exactly.
he issue then becomes a twofold inquiry. First we must ask whether the officers were acting under “lawful authority” when they questioned Rock about his legal activity on his own property and secondly, whether his refusal to answer their questions rises to the level of resistance or obstruction required by the statute.
Geez I rarely side with the Government (the Police) but in this case..
How would the officers KNOW that he was on his own property if he refused to identify himself. Since the officers WERE investigating a shooting and saw an armed man it seems reasonable to speak with him and question who he is etc. If apolice officer had just been rolling down the street saw this man and stopped and began questioning him then they wouldlikely be steeping over that line. But as described? I think not.
“these Disorderly Conduct, Disturbing the Peace and Obstructing Justice charges serve as catch-all offenses that give far too much latitude to officers in punishing citizens who they don’t like, or who are obnoxious but whose behavior does not rise to the level of true criminality”
That may be true, and I, too, don’t like the idea of anti-cop-guff laws. I would like to be able to tell them to go to hell, and I mean that literally, if I so chose. However, in Gates’ case, not only did they have reasonable suspicion a crime was being committed (unlike in the Wisconsin case), but they apparently gave him every excuse to calm down.
There has to be some recourse when for cops in such a situation. And even if the world would have gone on just as it would anyway had Gates not been arrested, without any harm coming to anyone, I don’t have a problem with giving a little lattitude to the cops to make a judgement call. Because, again, it’s not just a matter of a citizen giving the cop guff. There was an articulable reason to believe a crime was being committed, and remained as such so long as Gates refused to comply.
In a situation like this, in addition to the other arguments, I like one I call the “lion and gazelle” argument.
To begin with, police can function in two ways, both of which are needed, but both of which are problematic. They must be both reactive to criminal situations and proactive to criminal situations. That is, the police can just respond to crime after it has happened, or they can try and prevent crime before it happens.
If they are too reactive, they are just cleaning up after a crime; but if they are too proactive, they tend to arrest people they shouldn’t.
And this is where “lion and gazelle” comes in. Police who are trying to be proactive to stop crime are, in many ways, like hunters, hunting for criminals. But of all the people out there doing things, how do you tell which ones are doing criminal things?
By acting “strangely”, or attracting the eye. When someone acts in an odd manner, it attracts police attention. In that way, police are like lions who spot a gazelle. Instantly, they are in predator-prey mode.
Beyond that, most of what police do is trying to justify why they are in that mode. Why they are hunting the person they are hunting. They have to justify it to themselves, and they may also have to justify it to others, in court. This creates emotional investment on their part.
In this case, the officer was called to the scene to investigate raccoons being shot. This means he is looking for two things: raccoons, dead or alive; and a gun or ammo casings. About the only other thing that could happen is if he is approached by someone with additional information, or if something else happens that attracts his attention.
The man sitting on the porch is a good candidate to question, because he has a gun, one of the two things the officer is looking for. What the officer should have done is stood on public land, which in this case is likely the sidewalk, or sidewalk area, and ask the man on the porch if he can speak with him, to beckon him over.
If the man refuses, or says nothing, then the officer could tell him that there had been a report of someone shooting raccoons in the area. Did he see or hear anything?
If the man continues to be non-responsive, there is little the officer can do, other than to pay a visit to his neighbors, and ask them if they heard any shooting. If they did, and they thought he did it, if he could recover a bullet from a dead raccoon, and there was a record of his firearm purchase, and they matched, it might be suitable grounds for a warrant, *if* it was worth it to pursue.
However, in most cases, just telling the man about the raccoons being shot would let most reasonable persons know that they shouldn’t do this. And if he was unreasonable, it would not be unusual for him to do other things of a criminal nature.
No.
If you assume that, then it would be legal for them to go house-to-house and interrogate the entire neighborhood.
Would you suggest that it would be OK for the cops to batter down doors in order to gain entry to a private house, then?
As long as the guy didn't have bloody raccoon fur hanging from his mouth, I don't see why you would suspect him.
“How would the officers KNOW that he was on his own property if he refused to identify himself”
Heck how do they know a random citizen walking down the street isn’t a terrorist planning the violent overthrow of the U.S. government? You can’t just go around assuming people are violating the law. Especially when a common sense appreciation of the context—a guy “sitting peacefully on his front porch,” how many people sit around on other people’s porches, who don’t have permission to do so, that is—would tell you nothing is amiss. It seems pretty dang obvious they questioned him because of the GUN, not because he could have been tresspassing.
“Since the officers WERE investigating a shooting and saw an armed man it seems reasonable to speak with him and question who he is etc”
Reasonable to speak to him, yes. Not to demand his compliance under penalty of arrest.
For doing something perfectly legal, like carrying a firearm, is not in itself evidence of wrongdoing. No more than seeing a car parked in his driveway, as another poster mentioned, would lead to reasonable suspicion of his involvment in a hit-and-run. Or whittling a piece of wood with a knife would lead to reasonable suspicion of his having been involved in a stabbing.
Very good story JohnPierce,
Presented very well.
Thanks
A person’s home is NOT a public place! Additionally, being arrested and transported from a private residence is not “a reasonable time” to be detained for questioning.
It is a shame the legislators and governor of Wisconsin are too stupid to pass a concealed carry law.
In addition that would end police harassment by the very few officers who are control freaks.
If there were reports of prostitution would this justify questioning women on their porch because they are packing the required equipment?
I hate racoons, on the farm they killed my chickens, turkeys and maimed my guinea’s...anybody that shoots one should get a medal....(a little off subject, but I hate coons)
Thanks Joe! You are too kind.
“most homeowners in this guy’s position will be happy to give the cops their name”
What is that suppose to mean? If you are being questioned by the police for suspicion of a possible criminal act ,committed or not, the most ignorant thing you could possibly do at that point is give the police any information. This is how it works. If your being “questioned” , especially while legally openly carrying a side arm in a state like Wisconsin, it is because they want information they can use against you period. Sometimes it is easy to see that they are not on your side. This is one of those times.
Being a police officer is a demanding job but these guys suck.
In this day and age when laws are being passed and enacted right and left and then tweaked or otherwise modified from its original intent it is no small wonder officers in the field make these kind of calls. I”M not attempting to defend these officers actions but only to point out that field officers need a ride-along criminal attorney or Judge in order to know what is and is not lawful thanks to an over burgeoning legislature in many states in their attempts to criminalize more and more aspects of our society.
In this day and age when laws are being passed and enacted right and left and then tweaked or otherwise modified from its original intent it is no small wonder officers in the field make these kind of calls. I”M not attempting to defend these officers actions but only to point out that field officers need a ride-along criminal attorney or Judge in order to know what is and is not lawful thanks to an over burgeoning legislature in many states in their attempts to criminalize more and more aspects of our society.
Yeah...I thought of that. After.
This type of official oppression of open carriers is becoming all too common. The victim needs to file a section 1983 lawsuit against the department and the officer to teach them that they don’t have the authority to trespass on people’s property, harass open carriers and arrest people who choose not to be ID’d at times they are not legally required to be.
I hope he was carrying a voice recorder and recovers enough to pay his house off. It would be a nice reminder of how expensive violating people’s rights can be to every police officer who drove by.
He was in fact carrying a voice recorder and apparently has a complete record of the interaction. They played a small part of it on the NBC 4 video article I linked to.
We get a lot of coons here too.
I have a trap and put a cheap can of salmon cat food in it and then leave the coon in the trap for a few days til he is less rambunctious then take it to the city Hall compound and release it.
Well trained officers would not over react and would KNOW their state laws.
Also thanks for your service. Hope you are ok from your Purple Heart.
GOD bless.
Thank you for the acknowledgment. Unlike John Kerry I earned the three I received the old fashioned way.
I have no doubt in the world that you are an honorable gentleman who is more honest than I.
Again, thanks for your service and injuries.
I like the idea of where you release them....I drown or shoot them, as I said I hate coons, mean, vicious, growl at you in the live trap, I had one even hiss at me and ass hat right up to the end. Gee, that sounds like a politican...City Hall, a good place for a coon to live.
mean, vicious, growl at you in the live trap
That’s why I leave them in the trap for a day or two without food and just hose them down a couple times.
That takes a lot of steam out of em.
City Hall, County lot, federal courthouse grounds, or maybe some neighbor ya just don’t like in their unlocked car overnight.
I use to bait the trap with rasberry jam...put just a tablespoon in an empty margarine container, but the container has to have 2 small holes in the bottom and you have to tie it onto the bottom of the trap....those damn coons found out how to reach over the lever and get the food without tripping it...they are vermin from hell, did I say I hate coons..I am sorry if I repeat myself...:O)
You are sly and mean, I like that in a man..:O)
Not if they were not shot with a hand gun.
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