Posted on 11/24/2013 9:02:20 AM PST by DariusBane
It is not about my personal experiences. The news is replete with abuses. The State is too powerful.
I advocate small government and individual freedoms. The modern Police institution is adversarial to that aim. All you have to do is look.
I have no argument against Patrick Henry.
I will agree that the “state has to much power”
From my own personal experience , the anti cop sentiment expressed has been rightfully earned by the behavior of the cops themselves. At one point in time, most of the cops were decent individuals, now the decent ones are in the minority and are leaving every day for other lines of work. When I first joined this forum, the police were overwhelmingly supported. The police have inflicted their wounds upon themselves.
It is good that it is superceded. Any time one was not traveling, one could assert that you were just about to travel to a location in a third county, and that could be accepted by law enforcement, or rejected by law enforcement and one would be brought to trial.
Of couse that gave a great deal of discretion to law enforcement, which led to abuse and corruption, which was the purpose of the law.
I’m not really seeing how this is different than things have been for a long time. If the cops decide you’re a “suspicious character” they can detain you and ask questions and if you answer wrong bad things happen. Friends of mine almost got arrested for trying to rob a convenience store they’d never entered, they were hanging around in a car in an empty lot behind the store, this made the clerk nervous, clerk called the cops, cops came and talked to them, they foolishly allowed the cops to search the car, cops found an air pistol, then came a period of heavy discussion. That was in the 80s. In the early 90s when I was still working fastfood I got stopped by the cops going to work, understand going to work was something I did at 4:30 in the morning and I had a dufflebag with my change of clothes over my shoulder, so it was kind of reasonable (thinking about it it’s surprising I only got stopped once in the years I worked the opening shift), we chatted, they ran me through the computer, then they felt bad for making me late and gave me a ride to work.
When cops decide somebody is suspicious they detain. And honestly when you got 2 guys wandering around suburban Dallas 2 days before the 50th anniversary of the Kennedy assassination nobody should really be surprised that the cops were a little twitchy. Not saying the guys were in the wrong, just saying it’s not terribly surprising they got talked to.
No, the cops were never decent. They just hewed to the sensibilities of the communities then as today, but the communities have changed.
“There is no native Criminal class in America, excepting Congress.” Mark Twain.
What’s wrong with Texas? No open carry?
Even Mi has open carry, handguns or long-guns, no permits required!
What, the cops were twitchy because they were afraid that another Communist would shoot Kennedy again?
When the only thing being talked about on TV for a whole week is the exploits of a guy with a rifle people, especially cops, are going to find guys with rifles a bit worrisome. Cops in Austin are probably going to get the same kind of twitchy come summer of 2016 too, it’s a normal human reaction.
The cops did not arrest them. The cops did not search them. The cops did not dis arm them. They did however detain them. That is an arrest. Where is the probable cause? The law says you can open carry long guns in Texas.
Why were they arrested?
A detain is NOT an arrest, even if they use cuffs for the detain it is still very much NOT an arrest. Arrest involve going to the station and being booked, if that doesn’t happen you were just detained. They were detained.
The law says you can carry long guns. But the law also says the cops can investigate suspicious behavior. In a Dallas suburb when the TV is not talking about anything other than the Kennedy assassination walking around with a rifle is going to tag as suspicious, it probably shouldn’t on a logical level, but on a human emotional level it will. So they investigated, said investigation included detaining them, but it did NOT include an arrest. It was all pretty legit, maybe paranoid, but I’m sure it was a very paranoid week around Dallas.
The cops cannot detain without probable cause. They knew they could not conduct a search, so how could they detain.
Detentions vs. Arrests: If not handled properly, a “detention” could become an “arrest” which, if not supported by “probable cause” to arrest, would be illegal. (Orozco v. Texas (1969) 394 U.S. 324 [22 L.Ed.2nd 311].)
The Grey Area:
Exceptions:
Exceptions: The use of firearms, handcuffing, a non-consensual transportation, and/or putting a subject into a patrol car, if necessary under the circumstances, particularly if precautions are taken to make sure that the person knows he is only being detained as opposed to being arrested, or when the use of force is necessitated by the potential danger to the officers, may be found to be appropriate and does not necessarily elevate the contact into an arrest. (See People v. Celis (2004) 33 Cal.4th 667, 673-676.)
In General
In general, the investigative methods used should be the least intrusive means reasonably available. Although the use of some force does not automatically transform an investigatory detention into an arrest, any overt show of force or authority should be justified under the circumstances. (See, e.g., United States v. Holzman, 871 F.2d 1496, 1502 (9th Cir. 1989), restraints justified by belief suspect was attempting to flee; United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987), given officer’s knowledge of suspect’s history of violence, show of force justified by fear for personal safety.” (In re Ricardo D. (9th Cir. 1990) 912 F.2nd 337, 340.)
So this is one for the lawyers. However I would recommend dragging the P.D. into court and make them justify the action. They may even lose.
“...Funny how there is just as much anti-cop attitude on conservative sites as the liberal ones....”
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What I’ve seen is an anti-BAD-cop attitude (usually well justified IMHO) attitude on conservative sites. When it comes to GOOD cops, the attitude is positive.
The cops in this instance were not particularly bad. One of the detainees appeared to be a Sikh (all of whom I have known have been law abiding, righteous citizens) so this may have been a borderline situation where the cop may have thought the person was Muslim and consequently had a well-justified (IMHO again) suspicion.
Bottom line, the cops, the two detainees and the guy videotaping the occurrence handled themselves well.
I am having a problem with the handcuffing part. Borderline arrest.
Cops can detain to investigate, they don’t need probable cause for that, just a reason to be suspicious. And they very well could have conducted a search, if the people allowed it (reference my original post in this thread, people can just let a search happen). Detaining people is just for questioning, which is what the cops did.
I doubt it is one for the lawyers, everything went according to the laws as you posted. Cuffs were used, but part of detention NOT arrest. Nobody submitted voluntarily to a search, and no search happened. Questions were asked, answers were accepted, the guys weren’t sent on their way free men, probably a little shaken, but otherwise none the worse for wear. I wouldn’t drag anybody into court, there’s nothing to gain, with no arrest happening they wouldn’t have anything to really complain about. They were detained and questioned, the cops have the right to detain and question people, they DON’T need probable cause for it, they just need reasonable suspicion or cause for concern (again look at my original post). They need probable cause for searches (or permission) NOT to detain and question.
But as stated once you handcuff or use excessive force (the presence of three or four cops) it can be construed as arrest.
My problem with this is that it is not unlawful to open carry long guns in Tx. In fact it is expressly a legal action.
Once you put on the handcuffs if it were me I would challenge the action in court.
The other issue is the presupposition that the Police have a MORE legal right to carry than the citizen. The Police Officer is licensed to open carry a handgun. The citizen is expressly empowered to openly carry a rifle. Yet the Officer handcuffs the citizen. If you use the Officers logic for handcuffing the citizen, then the Officer should lock his hand gun in the trunk prior to approaching a citizen. The LEO is still a citizen. Just a citizen with some extra legal protections and a background check.
What I challenge is the supposition that the Officer can detain a citizen, handcuff him (borderline arrest) for an expressly legal action. To accept that action is to accept an explicitly anti 2nd Amendment tyranny.
Florida has very similar language. Concealed carry only, then only with a CWP, unless on ones own property, including ones own commercial business, or when hunting. Open carry is never permitted. The state only recently amended the law to “allow” for inadvertent exposure of a concealed firearm by a CWP holder, i.e., windblown covering garment. Floridas rules are pretty clear but a lot of them have never been adjudicated.
You didn’t bother to actually read what you quoted:
“The use of firearms, handcuffing, a non-consensual transportation, and/or putting a subject into a patrol car, if necessary under the circumstances, particularly if precautions are taken to make sure that the person knows he is only being detained as opposed to being arrested”
As long as the cops said they were being detained not arrested it was clean.
Nobody said it was unlawful. But something about the situation made the cops decide it was SUSPICIOUS, and that’s all they need to detain and question.
You’d lose. There was no arrest, the cuffs have no meaning in and of themselves.
The cops DO have more legal right to carry than the citizens, it’s part of their job. Once you pass the tests necessary to become a cop you automatically have permission to be armed on or off duty in many situations where regular citizens need special license (like schools). It’s not a presupposition, it’s a fact.
Sorry but you’re off the farm in bad thinking. The logic of the cops cuffing the citizens is they wanted to detain them and prevent them from both leaving and using the guns, none of that says the cops should have locked their guns away.
Your challenge has lost. It lost over 150 years ago when standing police forces were invented. These standing police forces were SPECIFICALLY given the ability to detain a citizen, handcuff him (which is NOT an arrest no matter how many times you insist it is) for an action that they suspect may be tied to something illegal. To not accept that reality is to live in a land of make believe.
I suppose that after an arrest of a fire bomber, they should arrest everyone coming out of the supermarket with bottles.
The idea of the police protecting people before the fact is laughable. All they can do is arrive after the fact.
No crime yet means nothing for the police to do, so they get switched to ‘revenue enhancement’ activities.
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