Skip to comments.Firearm incident sparks debate over rights
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.
Ed Cutler, legislative director for Gun Owners of Vermont, said what police in Rutland did wasnt 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 ...
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.
If someone is cuffed, yet not “under arrest” it is at best, unlawful detention and possibly kidnapping.
It reminds me of the semi-satirical/semi-cynical
crime of Failure to Respect.
>>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.
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.
“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
Police state? You tell me are we getting there?
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.
That happened to my nephew this spring.
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”.
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).
Unlawful detainment and deprivation of rights under the color of law...
“We dont know who you are and until we determine youre not a threat to people in the area were 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..
Don’t give them any ideas.
It's something new to some people I guess. It's only been going on for about a hundred and fifty years.
No. Maybe an Obama appointed judge would agree with you, but the overwhelming majority of judges, including the USSC would disagree with that.
Notice how the left and the complicit media poison the waters from the beginning by even suggesting that rights are debatable.
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.
Maybe that is a hidden provision of Obamacare, but it is otherwise stupid to claim.
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.
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.
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.
“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?
“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.
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.
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.
“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.
Care to tell the story?
Habeus Corpus was suspended via the latest NDAA.
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.
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.
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.
And it might not hurt to state that you believe that your captors have just committed a crime, before asking for the attorney....
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.
That sure sounds self contradictory. There aren’t semi-arrests.
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.
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.
That’s the way it works in real life though.
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?
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.
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.
...and, glad to be here for one more day.
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.
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.
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  other grounds, 980 F.2d 746 (D.C. Cir. 1992).
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?
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.
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?
He is lucky he wasn’t walking his dog at the time.