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Firearm incident sparks debate over rights
timesargus.com ^ | 2 August, 2013 | NA

Posted on 08/03/2013 9:13:44 AM PDT by marktwain

RUTLAND — Joshua Severance says his Second Amendment rights to openly carry a firearm were violated, but Rutland police say they were following the law when they handcuffed and briefly detained the Milton man this week.

In a case that appears destined to end in a courtroom, Severance, 26, says he was walking down a residential Rutland street Monday afternoon with his shirt off and his 9mm Beretta semiautomatic handgun holstered on his hip when a city police cruiser stopped in front of him and an officer ordered him to place his hands on the hood.

“I figured they wanted to run the serial number and do a background check which is all well and good and part of being a responsible gun owner,” Severance said Thursday. “The next thing I knew I was being handcuffed, told I was ‘not under arrest’ and was put into the back of a cruiser.”

(snip)

Ed Cutler, legislative director for Gun Owners of Vermont, said what police in Rutland did wasn’t wrong, it was illegal.

“I think what they did was harassment and I would be happy to sue (Rutland),” he said. “Just because someone is carrying open the police have no right to detain them in any way.”

(Excerpt) Read more at timesargus.com ...


TOPICS: Constitution/Conservatism; Culture/Society; News/Current Events; US: Vermont
KEYWORDS: banglist; donutwatch; govtabuse; guncontrol; leocorruption; opencarry; police; rapeofliberty; secondamendment; tyranny; vt
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I am seeing this more and more, saying "you are not under arrest" as they snap on the handcuffs. Is this a new lie being circulated among LEO groups to attempt to stave off lawsuits? Anytime you are put in handcuffs, your have been placed under arrest by definition.

It reminds me of the meme that has been going around of police beating on unresisting people as they shout "stop resisting, stop resisting".

As far as I am concerned, any officer engaged in either of the above two deceptions should be fired and prosecuted.

1 posted on 08/03/2013 9:13:44 AM PDT by marktwain
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To: marktwain

If someone is cuffed, yet not “under arrest” it is at best, unlawful detention and possibly kidnapping.


2 posted on 08/03/2013 9:17:22 AM PDT by Graybeard58 (_.. ._. .. _. _._ __ ___ ._. . ___ ..._ ._ ._.. _ .. _. .)
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To: marktwain
When they put on the badge the Napoleon complex takes over.
3 posted on 08/03/2013 9:20:12 AM PDT by immadashell
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To: marktwain
It reminds me of the meme that has been going around of police beating on unresisting people as they shout "stop resisting, stop resisting".

It reminds me of the semi-satirical/semi-cynical crime of Failure to Respect.

It's stuff like this, and the general master/slave mentality government officials have adopted, that prompted the creation of my brochure:
Stop, Drop, and Cower
[Direct Link]

4 posted on 08/03/2013 9:20:14 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: marktwain

>>I am seeing this more and more, saying “you are not under arrest” as they snap on the handcuffs.

They claim that its for “officer safety”. I guess its for your safety too since, the cowards with a badge will overreact and kill you if you even sneeze in their presence.


5 posted on 08/03/2013 9:21:20 AM PDT by Bryanw92 (Sic semper tyrannis)
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To: marktwain

Yep, and they can question you too. Miranda only kicks in when you’re under arrest. Otherwise they can question all day and detain you. So they’ll typically put it off until the last second possible. It’s a shakedown method.


6 posted on 08/03/2013 9:22:41 AM PDT by Monty22002
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To: marktwain

“you are not under arrest” as they snap on the handcuffs”

would this not be kidnapping and unlawful containment if you are not under arest? seems to me to be a criminal act and you should be able to sue their pants off


7 posted on 08/03/2013 9:22:45 AM PDT by munin (MSNBC?)
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To: marktwain

Police state? You tell me are we getting there?


8 posted on 08/03/2013 9:23:27 AM PDT by Logical me
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To: marktwain

I don’t have a problem if the police politely ask for ID to verify you are not a convicted felon, while you stand there unencumbered and unrestrained. Frankly, I would have no problem if they asked me to remove the magazine and verify the chamber was empty while they checked the ID; as long as I retained possession of the gun and was not restrained.

Cuffing someone (same thing as locking them up) so you can essentially look at their ID is unlawful detention. Doing it “politely” doesn’t make it lawful.


9 posted on 08/03/2013 9:28:39 AM PDT by ChildOfThe60s (If you can remember the 60s.....you weren't really there)
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To: OneWingedShark
It reminds me of the meme that has been going around of police beating on unresisting people as they shout "stop resisting, stop resisting".

That happened to my nephew this spring.

10 posted on 08/03/2013 9:32:46 AM PDT by rustbucket
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To: marktwain
Being detained in handcuffs, wile being told that you are “not under arrest”, is the definition of a habeas corpus violation.

I say that, because they are parsing the definition of “arrest”. If you cannot be arrested indefinitely without being charged, then neither can you be detained indefinitely without being “arrested”.

I have lost about all the respect that I ever had for the police. They are not on a mission to protect and to serve the citizenry, they simply treat everyone they encounter as a known felon (until proven differently).

For those cops that say, “hey I just want to get home alive tonight”, well so do I, so am I justified in treating every policeman as a felon in a phony cop uniform, or a crooked cop, or a stupid cop? Because, “hey, I just don't want you to shoot my family to death, before you go home safe tonight”.

11 posted on 08/03/2013 9:32:49 AM PDT by SampleMan (Feral Humans are the refuse of socialism.)
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To: marktwain
As far as I am concerned, any officer engaged in either of the above two deceptions should be fired and prosecuted.

As far as I am concerned, any officer engaged in violating constitutionally protected rights should be "not Tasered", and "Not arrested" and then fired (bye bye pension) and prosecuted as a felon (and lose 2A rights).

12 posted on 08/03/2013 9:36:05 AM PDT by Rodamala
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To: marktwain

Unlawful detainment and deprivation of rights under the color of law...


13 posted on 08/03/2013 9:37:37 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: marktwain

“‘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.”

I’m assuming the cops are pulling over EVERY SINGLE vehicle that rolls into that neighborhood, handcuffing the drivers, and running a background check on them...because vehicles are used as deadly weapons on a regular basis..


14 posted on 08/03/2013 9:39:41 AM PDT by moovova (Sell everything, folks. Be poised to run.)
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To: moovova

Don’t give them any ideas.


15 posted on 08/03/2013 9:41:19 AM PDT by sport
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To: marktwain
"I am seeing this more and more, saying "you are not under arrest" as they snap on the handcuffs."

It's something new to some people I guess. It's only been going on for about a hundred and fifty years.

16 posted on 08/03/2013 9:45:45 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: Graybeard58
"If someone is cuffed, yet not “under arrest” it is at best, unlawful detention and possibly kidnapping."

No. Maybe an Obama appointed judge would agree with you, but the overwhelming majority of judges, including the USSC would disagree with that.

17 posted on 08/03/2013 9:48:06 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: marktwain

Notice how the left and the complicit media poison the waters from the beginning by even suggesting that rights are debatable.


18 posted on 08/03/2013 9:48:31 AM PDT by SpaceBar
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To: marktwain

The instant any officer handcuffs you is the time to say nothing but “I want to call my lawyer”.

Handcuffing without arrest is an intimidation tactic and a violation of civil rights.

Americans must defend freedom against all enemies,foreign and domestic.


19 posted on 08/03/2013 9:50:03 AM PDT by hoosierham (Freedom isn't free)
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To: Bryanw92
"I guess its for your safety too since, the cowards with a badge will overreact and kill you if you even sneeze in their presence."

Maybe that is a hidden provision of Obamacare, but it is otherwise stupid to claim.

20 posted on 08/03/2013 9:50:20 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: marktwain
acting under the color of law, is not lawful if you're doing something illegal.

Now wouldn't it be amazing to find out (checking the County commissioners manual) that these; “law enforcement officers” are nothing more than private contractors, who have neither the authority to arrest anyone, or carry a weapon.

And these phony firearms charges are exactly that, phony.

If you look up the definition of a firearm you will find “according to the law” that 90% of the people in jail are there due to fraud by the courts , for firearms violations.

Title 26 USC 5845.,

just remember, it's their laws used against us and your lawyer can't help you, because they're gagged from actually representing you, regardless of what they say they are only there to represent the state, and of course the bar.

21 posted on 08/03/2013 9:51:11 AM PDT by SERE_DOC ( “The beauty of the Second Amendment is that it will not be needed until they try to take it.” TJ.)
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To: Monty22002
"Miranda only kicks in when you’re under arrest."

Correct. And being in handcuffs is an "arrest" for purposes of the Miranda warning. Statements given while in handcuffs will generally be suppressed, with the exception of "exigent circumstances."

"Otherwise they can question all day and detain you."

Give an example of your statement.

22 posted on 08/03/2013 9:56:28 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: munin
"would this not be kidnapping and unlawful containment if you are not under arest? seems to me to be a criminal act and you should be able to sue their pants off"

It is not a kidnapping or unlawful containment, whatever that is. You can go ahead and sue but you might be wasting your time and money.

23 posted on 08/03/2013 9:57:56 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: Respond Code Three; All

“No. Maybe an Obama appointed judge would agree with you, but the overwhelming majority of judges, including the USSC would disagree with that.”

I am not clear about your position. Are you saying that someone who is placed in handcuffs against their will, is not under arrest?

Could you please explain that a bit further?


24 posted on 08/03/2013 9:59:48 AM PDT by marktwain (The MSM must die for the Republic to live. Long live the new media!)
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To: immadashell

“When they put on the badge the Napoleon complex takes over.”

I believe that that was traditionally case in earlier times with respect to individuals. Today it is Elitism . Now they ALL do it to enforce the order they see as theirs.


25 posted on 08/03/2013 10:00:00 AM PDT by TalBlack (Evil doesn't have a day job.)
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To: marktwain

Got pulled over in Rutland in ‘99 just because we had out of state plates. Absolutely no reason for the pull over and when challenged the cop did not ever bother to give one. No ticket.


26 posted on 08/03/2013 10:01:40 AM PDT by ExpatGator (I hate Illinois Nazis!)
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To: SampleMan
"Being detained in handcuffs, wile being told that you are “not under arrest”, is the definition of a habeas corpus violation."

Will you post the appropriate court ruling? A couple hundred thousand police officers and lawsuit happy lawyers would like to know about it.

"If you cannot be arrested indefinitely without being charged, then neither can you be detained indefinitely without being “arrested”."

Both are correct. The circumstances of each individual case will determine when it has been excessive.

"they simply treat everyone they encounter as a known felon "

I didn't do my job that way. But that was just me.

27 posted on 08/03/2013 10:02:31 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: Respond Code Three; All

“It is not a kidnapping or unlawful containment, whatever that is. You can go ahead and sue but you might be wasting your time and money.”

Of course, any lawsuit is uncertain. However, there have been many similar cases in other states that have resulted in monetary settlements. I am familiar with several in Wisconsin, for example.


28 posted on 08/03/2013 10:03:16 AM PDT by marktwain (The MSM must die for the Republic to live. Long live the new media!)
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To: rustbucket

Care to tell the story?


29 posted on 08/03/2013 10:03:42 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: SampleMan
Being detained in handcuffs, wile being told that you are “not under arrest”, is the definition of a habeas corpus violation.

Habeus Corpus was suspended via the latest NDAA.

30 posted on 08/03/2013 10:05:02 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: moovova
"I’m assuming the cops are pulling over EVERY SINGLE vehicle that rolls into that neighborhood, handcuffing the drivers, and running a background check on them...because vehicles are used as deadly weapons on a regular basis.."

It could be embarrassing to assume something like that. But then, there have been some jaw dropping assumptions made by FReepers on this thread already, so you're in good company. Well, maybe less than good company.

31 posted on 08/03/2013 10:06:49 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: marktwain

If you’re not under arrest you are free to go. Ask to go... if they do not immediately state your arrest then they have committed a crime.


32 posted on 08/03/2013 10:06:54 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: hoosierham
"The instant any officer handcuffs you is the time to say nothing but “I want to call my lawyer”."

You sir, win the golden handcuff key for today. I have told any number of family, friends, and even strangers to invoke their Miranda rights as soon as they are being questioned, and definitely upon being cuffed.

33 posted on 08/03/2013 10:09:24 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: Respond Code Three

And it might not hurt to state that you believe that your captors have just committed a crime, before asking for the attorney....


34 posted on 08/03/2013 10:10:36 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: marktwain
"I am not clear about your position. Are you saying that someone who is placed in handcuffs against their will, is not under arrest?"

I'm explaining it the way judges look at it. If you are handcuffed, you are under arrest for purposes of the Miranda warning, and statements given without that warning can be suppressed. However, if the police decide at some point that you are not going to booked you will be released and you have only been detained. The overwhelming number of lawsuits claiming "false arrest" will fail because someone has been handcuffed. Trust me on that.

35 posted on 08/03/2013 10:14:03 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: Respond Code Three

That sure sounds self contradictory. There aren’t semi-arrests.


36 posted on 08/03/2013 10:15:10 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: Respond Code Three

Has this matter hit the USSC? Just curious. It sounds more like for the amount of compensation one might get, most parties figure it is not worth sinking the money into the aggressive legal maneuvers needed to get a vindication.

Of course this is one of those times in which one is tempted to doubt there is a God, but people disobeying God and lying does not mean God ceases to exist or ceases to hold people accountable for truth and falsity.


37 posted on 08/03/2013 10:17:17 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: HiTech RedNeck
"And it might not hurt to state that you believe that your captors have just committed a crime, before asking for the attorney...."

You are free to say anything you want. But wise people just clam up because they understand that anything they say can be used against them in a court of law. Let the lawyer do the talking.

38 posted on 08/03/2013 10:17:43 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: HiTech RedNeck

That’s the way it works in real life though.


39 posted on 08/03/2013 10:18:38 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: Respond Code Three

Well if you don’t actually have a lawyer then what... they say go ahead call him, and you have nobody in mind let alone a number? What now, ask for a phone book and a phone? Is that a right too?


40 posted on 08/03/2013 10:18:55 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: Respond Code Three

Again has it hit the USSC for a definitive ruling in this land? Sounds like a legitimate constitutional question, much has been made over vaguer matters.


41 posted on 08/03/2013 10:19:45 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: HiTech RedNeck

The courts give latitude to the police in an investigation relative to the safety of the officers and the complexity of the investigation. Each case has to be evaluated on its merits whether a detention was excessive and constituted an arrest.


42 posted on 08/03/2013 10:20:56 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: Respond Code Three

...and, glad to be here for one more day.


43 posted on 08/03/2013 10:21:33 AM PDT by moovova (Sell everything, folks. Be poised to run.)
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To: Respond Code Three

Wouldn’t it be better to request “an attorney of my choice” rather than “my attorney” if there is none specific in direct mind? Otherwise you are asking for a nonentity. And chiding for not having one in mind is not an answer to the question.


44 posted on 08/03/2013 10:23:20 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: HiTech RedNeck

Your best source would be to search for rulings on detentions and arrests. There are any number of things that will come up on you search. These things have been litigated endlessly already in practically every State and Federal Court. In some civil cases, the plaintiff prevails. In most cases, they fail.


45 posted on 08/03/2013 10:24:03 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: marktwain
Anytime you are put in handcuffs, your have been placed under arrest by definition.

That is an incorrect statement of law, though may lay persons think such to be the case. The Courts have held that handcuffing is a factor in determining whether a finding of custody is necessitated, but it is not determinative.

"Handcuffing a suspect does not necessarily dictate a finding of custody." See United States v. Purry, 178 U.S. App. D.C. 139, 545 F.2d 217, 220 (D.C.Cir.1976).

"Strong but reasonable measures to insure the safety of the officers or the public can be taken without necessarily compelling a finding that the suspect was in custody." See United States v. Coades, 549 F.2d 1303, 1305 (9th Cir. 1977) See also United States v. Patterson, 648 F.2d 633 (9th Cir. 1977).

For further discussion, also see: United States v. Esieke, 940 F.2d 29, 36 (2d Cir. 1991); Flowers v. Fiore, 359 F.3d at 30; United States v. Pratt, 355 F.3d 1119, 1123 (8th Cir. 2004); Meredith v. Erath, 342 F.3d 1057, 1062-63 (9th Cir. 2003); United States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003); United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002); United States v. Jordan, 232 F.3d 447, 449 (5th Cir. 2000); United States v. Gil, 204 F.3d 1347, 1351 (11th Cir. 2000); Houston v. Does, 174 F.3d 809, 815 (6th Cir. 1999); United States v. James, 40 F.3d 850, 875 (7th Cir. 1994), vacated on other grounds, 516 U.S. 1022, 133 L. Ed. 2d 515, 116 S. Ct. 664 (1995); United States v. Jones, 297 U.S. App. D.C. 356, 973 F.2d 928, 931 (D.C. Cir.), reh'g granted and opinion vacated in part on [675] other grounds, 980 F.2d 746 (D.C. Cir. 1992).

46 posted on 08/03/2013 10:24:28 AM PDT by JohnGerald
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To: Respond Code Three

Even if it were a likely (but not certain) lose wouldn’t it be virtuous if practical to at least put up the resistance afterwards, make a lot of noise etc? The more the government is tied up in court and against public opinion the less it can harass?


47 posted on 08/03/2013 10:25:34 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: HiTech RedNeck

The statement that you want to talk to an attorney is sufficient for Miranda. It conveys the information that you don’t want to answer any questions without legal guidance. It doesn’t matter at that time if the attorney is the public defender or Zimmerman’s attorneys.


48 posted on 08/03/2013 10:27:13 AM PDT by Respond Code Three (Support Free Republic lest we eventually get a Republic which is not free.)
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To: JohnGerald

Well lets get to nuts and bolts; they took his gun which they had no proof was being borne illegally or with malicious intent. Should not one be privileged upon request to be released and to leave, sans gun (to be reclaimed later via writ of replevin), perhaps after cursory frisk?


49 posted on 08/03/2013 10:27:25 AM PDT by HiTech RedNeck (Whatever promise that God has made, in Jesus it is yes. See my page.)
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To: immadashell

He is lucky he wasn’t walking his dog at the time.


50 posted on 08/03/2013 10:27:35 AM PDT by jospehm20
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