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 ...
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 [675] 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.
I believe what was stated above was, however, “MY” attorney. One would hope not to make technically nonsensical statements though some flustering is understandable at the time. And “AN” attorney might mean they then call the county prosecutor to greet you... it really should be in logic “an attorney of my choice.”
Also the attorney means you want to be able to litigate...?
I try to take the long view in trying to alleviate such problems before they become problems, by starting with some axioms.
1) Police on patrol are essentially acting as predators. This means that first, something attracts their attention, and then they try to determine is it legal or unlawful. In a way they are like young men girl-watching (as someone said, “like lions watching a gazelle”); because they too are content to just watch intently, unless something compels them to go hit on that attractive gazelle.
So the important lesson here is that if you are carrying, open or concealed, you are not looking or doing something else that attracts the eye.
In this case, his being shirtless, plus his unknowingly being in a place with recent property and gun crime, tipped the balance of attention.
2) Being known to the police as an open or concealed carry person does wonders in their attitude, but is not always practical. But there is also “community standards”, of which it is very important to be aware of. For example, in a “liberal” area, assume that a lot of people will get agitated by just seeing a gun. And that it is going to take a while for them to get over their irrational fear, or at least their willingness to call the police about their irrational fear.
3) This all points to the value of public relations. If you want to carry in an area, you can “inoculate” the area ahead of time about the legality of gun carry, your good intentions, how business owners should approach their employees, etc. Such inoculation can last several years, and avoids a lot of unwanted stress and harassment.
Likewise a friendly conversation with a police officer can inoculate his entire department, again for several years. And they might not even know your name, just that “some people are now legally carrying open and concealed, which is okay, so don’t get upset about it unless you see them doing something else. I’ve mentioned it to dispatch, so if some upset citizen calls in, they will settle them down.”
Here is we might start getting slightly off topic. We have a Government headed by a man who doesn't care what the law says, and the DOJ is headed by another man who has already been ruled in contempt of congress. The "government" has an infinite supply of money and lawyers and doesn't care about public opinion. The officer on the beat who screws up is a small fish compared to the ravenous sharks of the Feds. The rogue officer threatens one citizen at a time, the Feds constantly threaten us all.
A request for an attorney in the immediate actions of being arrested is a request for legal counsel before answering questions. Civil litigation is possible, but that is not why the Miranda warning is mandated.
Well what does that have to do with Vermont popo?
I suppose they could call the County Prosecutor. But the case would be summarily dismissed as a “conflict of interest.” And I think disciplinary proceedings would be instituted against all persons involved in such a stunt.
Am I being detained? Am I free to go? I do not consent to a search. I choose not to answer any questions. ... lather rinse repeat, over and over. That is all an officer would get from me.
It’s sad that these police departments are not Andy Griffith who can be civil and, like, ask why the gun. Upon which one could say for the sake of safety. How does being shirtless add to anyone’s being a menace. The popo problem isn’t just a popo problem, it is a humanity problem which is a devil problem which is a God problem. (Maybe if they did that to me I’d preach the gospel to them explaining that there is a God ready to put them in eternal bonds if they are not saved from their sins.)
Nothing I guess. Just getting a little off the subject.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.