When Can A Police Officer Lawfully Order You To Move Along?::
The DC Checkpoint plan I blog about below raises another interesting question: Can a police officer order you to move along -- that is, to leave the area -- without any suspicion that you've committed a crime? Stephen Henderson recently wrote a very interesting article on the topic that is worth reading if you're interested:'Move On' Orders as Fourth Amendment Seizures, recently published in the Brigham Young University Law Review.
This topic also raises something I've long wondered about: What are the Due Process limits on criminalizing failure to obey an officer? In particular, is there a constitutional requirement that the person understands that failure to obey is a crime? Citizens generally have no idea when they have to do what an officer tells them to do, and I would think there is some sort of Due Process requirement of fair notice that the order has to be obeyed before an arrest can be made.
This topic also raises something I've long wondered about: What are the Due Process limits on criminalizing failure to obey an officer? In particular, is there a constitutional requirement that the person understands that failure to obey is a crime? Citizens generally have no idea when they have to do what an officer tells them to do, and I would think there is some sort of Due Process requirement of fair notice that the order has to be obeyed before an arrest can be made.
Related Posts (on one page):
- D.C. Police Checkpoint Plan Likely Violates the Fourth Amendment:
- When Can A Police Officer Lawfully Order You To Move Along?::
- Is the DC Checkpoint Plan Unconstitutional?
- "Lanier Plans To Seal Off Rough ’Hoods in Latest Effort To Stop Wave of Violence":
I'm just curious...what sort of fair notice seems correct, other than the officer saying something to the effect "Do what I say or go to jail."
I only ask because situations as described tend to be quick to develop and certainly subject to time constraints as to resolution.
In response to your first paragraph, I think not, without some public safety consideration, such as crowds who might prevent entrance or egress to emergency personnel, etc. In the instance suggested by the DC police, I don't see how they plan to enforce their scheme, which frankly, sounds moronic to me. And I like cops.
Maybe they claim to be creating private communities, which can be posted.
But I doubt it.
More to the point, I was thinking of the common "Move along now" scenario - fires, auto accidents, public or sporting events, the like.
So I guess, yes, an officer does need to inform someone that a failure to obey can result in arrest, if possible. Of course, the average officer is almost always going to include some type of warning- albeit perhaps profane and scatological - when an order is challenged, even if the officer's authority to arrest is only in his mind.
In my experience, this is also very true of officers as well. It is not a well taught subject.
You didn't seem concerned about due process back in the winter when you blogged about the guy who got tased after refusing to sign a ticket, who was never warned that failure to sign could get him arrested. Or is that case different because the gut could have been arrested with no warning under Atwater?
It suffices to say that the majority of DCians (DCers?) will feel compelled to answer questions.
I second that! Awhile back, I rode around in the back of a cop car with another person. We'd both witnessed vandals in the neighborhood and the cops were asking us questions and verifying what we saw.
The officer gave me a ride back to my house and admonished me not to discuss details of the case with anyone, especially the news media. (For those holding their breath at home, no NYT reporters called my house later even though I was a key witness to petty vandalism.)
I can understand wanting to protect the integrity of the legal process...but do patrol officers really have the power to enjoin the speech of witnesses? Or was his admonishment just a cop way of saying "we'd like it if..."?
I've never understood how these guys can do what they do without themselves going to jail. Pushing people out of the way, forcibly restraining bystanders, screaming and yelling, intimidation, you name it.
Well, the tazer incident arose in the context of a civil suit, in which the man sued the officer for excessive force. We discussed whether the officer had used excessive force. If the man had been prosecuted for failure to obey, then we presumably would have instead discussed whether he could be prosecuted for failure to obey. As it was, I didn't see the issue raised, as I don't think he was prosecuted for that.
The police have no power to enforce that order. The purpose of the order is to prevent cross-contamination between your account and other witnesses. When the case goes to court, the defendant's lawyers could make it seem as if you had colluded with other witnesses to frame their clients. Independent witnesses who tell the same story without talking to each other first make for powerful evidence.
You wouldn't be in trouble with the law, but the case in which you were a victim or witness could be adversely affected.
If it's "legally" permissible for a person to ask that question, is it something that can really be done in practice? I imagine if a police officer here in Chicago told me to "move on" and I impishly said "Do I have to obey?," I'd probably have some form of h--- to pay.
I've lived in a couple of communities--Venice and South Los Angeles--where police behavior has been a matter of great public controversy. The police reacted to organized citizen attempts to monitor their conduct and hold them accountable for it by using their arrest powers to prevent that monitoring.
Any efforts to witness, record, photograph or film questionable police conduct were met by orders to move on, even if the monitoring activity was in no way interfering with the police. Those who refused to move on were arrested on charges like obstructing a peace officer or interfering with an arrest. Usually the charges were never filed or thrown out after they were filed, and the few cases that went to trial ended up with the defendants acquitted. But the police purpose, to prevent citizen monitoring of their behavior, had been accomplished.
The police tried that in Orlando when a group called Cop Watch began filming their activities. Cop Watch simply went into court and got an injunction requiring the police to not interfere with the monitoring activities.
Maybe I'm being dense, but on the facts, without more here, pursuant to what authority did Hiibel have to answer? What was Hiibel doing, if anything, that caused the officer to ask? If giving his name would help in some way to incriminate him (or even if he doesn't know why the officer is asking), could he refuse on the basis of the 5th Amendment?
In our jurisdiction we have IWOA or "interference with official acts" that is too broad IMO but is seldom challenged because it is a simple misdemeanor. It costs too much to be innocent.
Orin: Does the Court's opinion in Morales (meaning the part of Justice Stevens's opinion that was for the Court) not establish the proposition you are wondering about in the post? The antiloitering statute in Morales was vague, but criminal consequences only attached to failure to obey a dispersal order by a police officer (which could only be given to people who were already loitering within the meaning of the statute). The Court held that the dispersal order requirement did not save the underlying statute from its vagueness. Thus, a statute criminalizing failure to obey a clear order, but leaving vague the circumstances under which that order may be given, is unconstitutional. Am I misreading your point (or Morales for that matter)?
I politely replied, "Do I have to answer that question?"
He ordered me to face the front of the car and place my hands on the hood. He then frisked and handcuffed me.
He then asked me if I want to tell him who I was or if I wanted to go down to the station.
Just out of college, I now feared losing my first job where I was scheduled to work in a couple of hours. I wondered what my parents would say. While I have never used illegal drugs, my roommate was a recreational drug user and I was worried that a search of my apartment would turn up drugs.
So I told the cop what he wanted to know and answered all his questions.
He told me that he had seen me hide from him when I went to cross the road to get to the soccer field. Plus there had been burglaries in the neighborhood.
Actually where I crossed the road there was no shoulder and the bushes made it difficult to see if there was traffic. So I had peered out to see if the road was clear and when I saw a car (the police cruisers) I stepped back to avoid being hit. I have no idea of there were any burglaries in the area.
Any officer with an IQ over 70 will be able to present evidence that a subject was acting suspiciously and there are always going to be unsolved crimes with no description of the person who committed them. So in reality, unless you are an independently wealthy and committed civil rights activist, cops can stop and ask you what ever they want, and you are basically at their mercy.
The practical question of how it is wise to respond to arguably unlawful exercises of officer authority tends to be rather clear and uninteresting. The technical legal questions about which exercises are in fact unlawful can be fun if you like that sort of thing -- in some ways, more fun because they diverge so plainly from everyday reality.
Yes, as Holmes reminded us, a right is only a real right if you can go to court and obtain a remedy for its violation. In cases in which there is no credible third party witness (which is often) and no judge or jury predisposition to skeptically examine the testimony of a police officer (also a frequent occurrence), the practical ability to establish such violations is de minimis.
Nope, that's not an analogous scenario.
Why not? Because the law is clearer about your right to refuse? (I would say the two situations are similar precisely because it doesn't much matter, practically, that the law is clearer in the trunk search scenario.) Or for some other reason?
Maybe I'm just unusual in this regard but I was raised with the notion that one ALWAYS does what an officer tells one to do unless the officer tells one to jump under a bus or something. Maybe I'm just a sheep -- I'm obviously not a lawyer since this issue would never have occurred to me to inquire into.
For me, it's simple. He's the police. He's got the badge. He's one of the good guys, presumptively anyway, until he proves that he's not. If an officer asks me to move along or for information, I assume there's good reason for it aside from a general desire on the officer's part to be a bully. I think officers have a tough and dangerous job that shouldn't require them to justify their every action to any and every citizen with which they come into contact.
Furthermore, s/he has authority to arrest people. As a general rule, I do not want to be arrested merely for refusing an officer's request/order or for demanding that the officer justify the request/order...unless, and I stress this, I feel that I am exercising some important right: peacefully protesting at an abortion clinic, standing the required distance from the clinic, not blocking traffic or pedestrians, not hassling clients or personnel entering or exiting the clinic. Under some such situations, I tell the officer that I have the first amendment right to be there doing what I am doing and the only way he/she will get me to move is by arresting me and bodily carrying me away. But if it's just a matter of me hanging out somewhere that is not my personal property, if an officer tells me to move along, I move. I might say, "Yes, of course officer. May I know why?" or "Sure! What's going on?" but I'm just not that into civil disobedience for the sake of making the point that unless the officer of the law goes through chapter and verse of the relevant penal code, I have a right to do pretty much whatever I please.
So am I undermining the Constitution or something by this "Yes officer" attitude?
Nothing in my trunk would be of the slightest interest to the police but maybe my car matches a description of a vehicle involved in a burglary. The sooner I open the trunk, the sooner the officer can go on with whatever s/he's doing to catch the burglar or whatever and the sooner I can get on with whatever I was doing.
because there is a difference between
"can i look in the trunk?"
which is a REQUEST
vs.
"you need to do X now"
which is a demand.
fwiw, i would always (unless some weird exigency prevented it), tell somebody they needed to comply with X or they will get arrested before arresting. in fact, i have, and i have never witnessed an officer arrest somebody for obstruction, etc. who did not give at least one (usually 2 to 3) admonishments that arrest would result upon refusal.
regardless of whether it's legally required (and ime, judges are gonna want to know there was a warning), it's simply good practice - the goal is to gain compliance, not make an arrest.
this makes no sense to me. i CAN'T (in my jurisdiction), even ask for consent w/o at least reasonable suspicion.
here is one caveat. if i am given consent to search and i find sometbing minor (and i have seen other officers with the same policy), i will usually give a warning. did that the other day with some brass knuckles (which are technically illegal to carry in public).
but if the person refuses consent AND the officer has PC, and the officer has to go through the trouble of getting a warrant, there will be no 'breaks'.
that falls under the "waste my time, you don't get the breaks" legal concept.
whit: I agree that there is a formal difference between a request and a command. And that formal difference makes a big legal difference: without individualized suspicion a command may violate the Fourth Amendment but a request (absent unusual circumstances) will not. So a responsible officer who is complying with the law will be careful to distinguish between the two. But do you think that (all, most, many, some) citizens do, in fact, feel free to decline an officer's request because it is phrased as a request? Obviously your experience is from the officer's perspective -- do you find that it was common for people to refuse consent searches? Do you observe people consenting to a search who would clearly rather not, even when you might in your own mind feel that you lacked probable cause and not plan to seek a warrant?
I'm reminded of Lt. Schrank in "West Side Story":
"Yeah, I know it's a free country and I ain't got the right. But I've got a gun and a badge. What have you got?"
If an officer asks you to move along, then move along. Unless you want to rubber-neck or purposely antagonize the officer, you have no real reason to stick around.
Back in the day if an officer asked you to do something, you did it. People were respectful and things generally worked better. Today, we have far too many little Hitlers running around (and, no, they are not the police.) These little Hitlers think that the world revolves around them, that they should be free to prance about and create trouble wherever their can, because it is "their right".
People today are narcissistic, arrogant, rebellions, and believe that license = liberty.
I fear for our country.
For me, it's simple. He's the police. He's got the badge. He's one of the good guys, presumptively anyway, until he proves that he's not. If an officer asks me to move along or for information, I assume there's good reason for it aside from a general desire on the officer's part to be a bully. I think officers have a tough and dangerous job that shouldn't require them to justify their every action to any and every citizen with which they come into contact.
You must be from the Old School. Back in the day when people understood that they were not the center of the universe. When people didn't run around creating trouble just to create trouble.
You know, back when people actually had common sense.
Ooops, "Rebellions" should have been "Rebellious".
i'd say a pretty fair %age of people refuse consent searches ime. probably at least 1/3 or more.
fwiw, a large percentage of consent searches are suspect initiated, so not sure how to count those. i've asked people "anything in the car that's illegal" and people voluntarily say "no, go ahead and look.", w/o even a request to look. i know defense attorneys might not believe it, but it's pretty frigging common. that's, i guess a consent search, but not initiated by the officer. pretty common, fwiw.
as for your last question, i'd say about 50% of consent searches i do are based on probable cause. in those cases, i ALWAYS say "i believe i have probable cause to APPLY for a search warrant. based on that, i am asking if you would voluntarily let me look in your...".
that holds up 100% in court (so far), and i have seen people get that resigned look on their face, where it's clear they don't "want to" in one way, but clearly do in another way.
and note that as long as you use the word "Apply" not "get" you are not vitiating the consent. i guess if it was later determined you did have PC, "get' might be ok, but i prefer Apply since it makes it much more open ended and that's the whole point of consent.
i used to work in a jurisdiction where we didn't HAVE any real search incident (for the vehicle even if they were in it, for closed containers, even on the person etc.--- HI), so you get very good at knowing consent case law.
also, contrary to claims/beliefs by many, you are much more likely to get consent by being friendly, non-threatening, and asking in a matter of fact tone than by playing "bad cop" and sounding intimidating, etc.
in summary, based on the rather high # of people who refuse consent, i would say - yes to your question.
i also note that (again), when people refuse consent and a search is later conducted (pursuant to warrant), there will be no breaks, like there would be with consent.
happened the other day at a juvenile drinking party. kid refused consent to enter. we got a warrant. everybody with any alcohol on breat and under 21 got cited and several got arrested (furnishing, etc.). with the consent, would have been warnings most probably and cites at worse for the most egregious offenders.
again, the "waste my time" philosophy.
A desire to be as helpful to the police as possible. They are out there every day protecting me and my neighborhood. Who were the Jets and the Sharks but gang members willing to carve one another up along with anyone who got in their way. Me? I prefer law and order to the law of the streets enforced by gangs. Maybe that's just me, I don't know, but I never really identified with the gang members. I'd just as soon the police move-along-ed the gang members right out of my neighborhood. The neighborhood is likely to be much better off.
Interesting. I find the former much more intrusive - and emotionally grating - even though I know they're going to do it long before I pull up to the gate.
No, sadly, they are not presumptively the good guys. At best, they are the average guys -- which means half of them are below average.
Treat them as you would treat any other average guy who has been given a gun and a club, and the privilege to use either without legal repercussion.
I noticed a guy in a nice sport coat looking at me hard. He’d been hovering around the entrance ushering in the arriving guests, generally appearing to be a maitre’d of some sort. Finally he says to me, "Ok, that's enough."
So I say, "Isn’t this America? Don't I have free speech?"
"Yeah, but you've made your point. Be nice"
"What? Is there a limit?"
"You've made your point"
"That's your opinion. Opinions are like a**h*les, everyone's got one"
"Did you call me an a**h*le? Come over here"
He then grabs my arm. My first thought was to execute kote-gaeshi (an aikido move that would have broken his wrist) but my wiser self prevailed. It turns out he's a plain clothes officer (a controversial Boston homicide detective I discovered later). He and another uniformed officer who joined him forced me away from the crowd.
"Nobody calls me an a**h*le"
He shoves his hand in my back pocket. “Got an ID?” I immediately prevented him from pulling out my wallet and said, “Sure. Take your hand out of my pocket and I’ll gladly show you.”
So finally I apologize for not calling him an a**h*le and they let me go after running my name through their computer looking for some excuse to arrest me. As they walk away I yelled, "More crushing of dissent in the Cradle of Liberty! Is this a police state? Did you see those Gestapo tactics?" Then the uniformed cop comes back and warns me, politely, that if I persist in my behavior they were going to arrest me for disturbing the peace. So realizing that I might just be pushing their limit, I relented and left. I didn’t want to be the guy arrested for heckling Gray Davis.
"Civil disobedience is the only way to mask such governmental abuses, ask Washington, Adams, and Jefferson."
Surely you meen "to UNmask such governmental abuses."
Well, sure. But it goes back to my original comment where I said, "...I was raised with the notion that one ALWAYS does what an officer tells one to do unless the officer tells one to jump under a bus or something."
I humbly suggest that "Move along" and "What's your name" are rather easily distinguishable from "Leave your home and belongings and get in this rail car to destination 'Shut up and get in'" as being more akin to "Jump in front of that moving bus."
And some officers MAY be apathetic browboot (?) bureaucrats just out to throw their weight around just because they can but I think it not only prudent and wise but proper to assume otherwise. That is, to assume that the officer has a good reason for his request and is acting in good faith. I'll let someone else unmask them if getting arrested and being dragged off to the station-house and all that will likely ensue is really all they have to do with their time. I've got better things to do.
Do you mean "unmask"?
I know of--used to know many more forty years ago--the folks who would try to provoke cop trouble. Not the big rally where you tried to get a cop to look mean in time for the six thirty news. But just because, one fine day, and then start howling about the police state. This type of activity is confined to adolescents of all ages.
The problem is, as much as they merit contempt, from time to time they are actually pushing back against the envelope, which the grownups rarely do.
For example, if, during a traffic stop, a cop asks me if he can look into my trunk, I say he can, I might feel I'm not pushing back against the envelope. But I'd probably do it because I'm an adult and have other things on my mind and schedule.
The cop could tell me to go on my way. He could, if there's nothing else pressing, punish me by telling me to wait until he gets a drug sniffer out there. He could make we wait until he gets a drug sniffer dog and then pop a worn baggy of grass into my trunk.
I have to give those graying-ponytailed narcissists some credit. They're willing to take the hits that result from provoking trouble, one provocation in one hundred resulting in actual social good.
I'm sure this won you sympathy from virtually every bystander involved.
So a policeman who posts here (which suggests to me that he is more interested in and knowledgeable about civil rights than most police) boasts that he uses his discretionary authority in enforcing laws against victimless crimes to punish people who invoke their rights.
Why are you blaming the police for enforcing stupid laws? It says something about the quality of the laws when police officers find enforcing them to be largely a waste of their time.
So wait, I know that carrying brass knuckles is against the law, I carry them anyway, and I should expect, as a matter of course, no punishment if the police catch me breaking the law?
I humbly suggest that "Move along" and "What's your name" are rather easily distinguishable from "Leave your home and belongings and get in this rail car to destination 'Shut up and get in'" as being more akin to "Jump in front of that moving bus."
You said it for me. Again, you must have common sense.
There was a monarchy in the 1950's? That's news to me. And if you can't distinguish between "jews being loaded onto railcars" and "ok move along now" then our country is worse off than I thought.
As I said, we have narcissistic hitlers running around creating trouble for no reason other than to create trouble.
If a cop asks you to move along, move along. If a cop asks your name, just give them your name.
You are not the center of the universe.
The people outside the restaurant was an adoring crowd waiting breathlessly for Hillary or some other Dem deity to exit (they cheered when Michael Moore arrived and you probably don't want to know how I greeted his arrival), so they weren't exactly with me from the beginning.
Someguy,
Thank you for the kind words, you'll be hearing from my lawyer.
My story was meant to elicit opinions of whether or not the police were within their rights during this encounter.
i stand by my statement.
regardless of whether u think possession of a dangerous weapon is a victimless crime, it is a misdemeanor in WA state, and i thus have DISCRETION
and yes, *if* i have PC to search, AND i have to go through the trouble of getting a search warrant, i am going to use my DISCRETION to charge the person with possession of the dangerous weapon.
i find nothing wrong with that. sorry if it upsets your tender sensibilities.
officer discretion does not violate the constitution and it is common sensical.
i'll give you another example. the other day i went to a juvenile party (reports of juveniles drinking, botherning the neighbors, etc.)
the kid refused to come to the door. she would have gotten a warning. so, i looked up his parents name in my computer, called her mom and told her what was up (note: she could not technically give me consent to enter iiuc because WA is a all-parties present rule state for consent to enter a residence, but that;'s arguable). regardless, she was #$(#$ pissed, and i let her handle the discipline.
officer discretion. it's what's for breakfast.
and she was especially #$#$( her child (who was supposed to be at a friend's house) was inviting kids over to her unoccupied house to drink and get rowdy. and she thought it was bad that she wouldn't cooperate with police. good parent.
And those type of people are becoming more and more common. Seriously, why anyone would go into law enforcement at all at this point is beyond me.
Let the "entire world revolves around me and my rights" find out the reality of what Judge Learned Hand said: "[Liberty] is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow."
These libertine fools don't realize that their actions would create complete and utter anarchy.
the "innocent" explanation is for self-defense. there are all sorts of weapons you can carry for self-defense
gun (don't need a permit if openly carried in WA state or can carry concealed with permit), most knives, etc.
but certain weapons are NOT legal to carry in public.
btw, the knuckles person was a "she" not a he.
If we lived in an ideal world where the police spent all their time -- or even most of their time -- fighting *real* crime with *real* victims, then I would tend to agree with you.
Unfortunately, my impression is that the average Law Enforcement Officer (notice how they don't even call themselves "Peace Officers" anymore) spends most of his time and effort enforcing dumb laws of dubious constitutionality involving victimless or consensual 'crimes.'
Apologies to our friend 'whit.' but in most cases, Officer Friendly isn't anymore. I wish that weren't the case.
Yes, he's a d-bag. He also has the right to not "let it go at that" and to be a d-bag. Period. End of issue. No self-important tin wearing schmuck need try and address the situation further. Is that so hard to grasp?
i'm not sure whether the brass knuckles law is stupid. there are lots of stupid laws i have to enforce. since this is a discretionary misdemeanor, i don't HAVE to.
otoh, i HAVE to arrest people for violation of a protection order even when the "victim" didn't want the order but the judge ordered it, and even when the "victim" invited the suspect to contact her.
i have to arrest people for felony drug crimes that in many cases i don't think should even be illegal (certainly not mj), but if it's felony weight - i have no discretion.
part of being a cop is accepting that the ignoramuses make the laws, not us :)
i'd like far less laws in general, and far more liberty. fat chance that'll happen
instead of having an impression, why not have an opinion supported by evidence?
go do a ride-along with your local constabulatory. i suggest you would be surprised at what the average cops spends the majority of his time doing
Once again I'm in the unenviable position of being offended by people on both sides. No need to say much more about why/how Lovernios was being a jerk, other folks pretty much covered it.
I also have to agree with the previous poster who said that Whit's attitude of a citizen insisting on his rights as being a "waste of my time" is extremely troubling. I'll honor your rights...as long as you don't exercise them?
But I suggest that the police officer is hardly to blame for the laws he is required to enforce. That he enforces laws that the citizens of the state or community have elected legislators to pass, that is no reflection at all upon the officer carrying out his duty. Enforcing dumb laws does not make the officer presumptively a bad guy out to bully people. It makes him a faithful servant of his community.
The bad guys, from your point of view, it seems to me, are, first, your fellow citizens who elected legislators to pass laws you find objectionable and of dubious constitutionality or, at least, refused to replace the legislators who passed said laws with others who would repeal said laws. Then, second, the legislators who passed said laws and directed the officer to enforce them.
To presumptively assume the officers who enforce laws they did not enact are NOT the good guys because they enforce laws they did not enact seems illogical to me. The solution is not to fight the police officer but to (a) convince your fellow citizens that the laws you find objectionable are, in fact, objectionable so that your fellow citizens will insist those laws be repealed, to (b) lobby lawmakers for the repeal of objectionable laws, or (c) get yourself arrested for refusing a request/demand by an officer and take it to the highest court that will hear your appeal when the initial part of the judicial system is done with you.
There may be other options, I don't know. As I say, I'm not a lawyer but those seem to be the options available. As for myself, I prefer the former two to the latter.
That's funny, I've always had the impression there were plenty of ignoramuses to go around....some in the legislature, some in law enforcement, some on the bench, some in the prosecutor's office, some in the defense bar and a whole bunch of others that are just citizens.
I fully supported the Davis recall as I had voted against Davis the first time he ran for governnor, would had voted for his recall if I still lived in California and have voted for Cheney twice. I still think Lovernios was being a major jerk. I do not think harassing people as they go out to eat is a polite thing to do and he should have listened to the officer and "be nice". Protest their speeches and outside their offices, but after they have been driven out of office do not yell at them as they leave a restaurant. That is Polite Adult Behavior 101.
One of the reasons I have a lot of sympathy for cops is that they spend so much of their time time dealing with jerks who think the world revolves around them.
Remember that I didn't know the man was a police officer, he didn't identify as such and I didn't call him an a**h*le. I was merely (albeit colorfully) reminding him of the value of his opinion that I refrain from further speech. Apparently, that specific epithet roused his ire and his subsequent use of police authority.
My question remains unaddressed: was my speech constitutionaly protected and did the police officer abuse his power?
That would no doubt be an interesting experience, but since most of us probably won't ever get around to actually doing it, how about telling us, based on your personal experience, what approximate percentage of your time do you spend on:
A.) Investigating or preventing serious violent crime (including DUI).
B.) Non-violent crimes with a clearly defined victim (e.g. burglary, fraud, trespassing, etc.)
C.) All the other crap. E.g.: Drug laws, possession of drugs/guns/knives/beer/ or whatever, domestic violence with no obvious victim, underage possession of alcohol/tobacco, statutory rape, broken tail-lights, cracked windshields, prostitution, gambling, etc., ad nauseum.
Just because the officer asks you to look inside? There may or may not be an argument for complying with a request to give the officer your name (I don't like it, but it seems a fairly small sacrifice), but there is no argument for opening the trunk of your car to inspection just because a cop asks (without PC).
I have a used car. How do I know what the previous owner had in the trunk? Maybe he left behind a pot seed or two? Maybe my spare is improperly inflated. Maybe I have a dirty magazine I don't want him to see. The point is he has no legal right to look in the trunk, and to allow it simply because it is too much of a hassle to object is to give the police too much power.
not from conversionalists. but in WA state you need reasonable suspicion to ask for consent to search.
i can TALk to anybody. but in order ot have valid consent, i must have RS.
No. No. No.
However, I suggest that you add prudence to what appears to be your native penchant for boisterous public displays. There are likely to be limits to your fellow citizens' patience with such behavior and, therefore, limited sympathy for your plight when a plainclothes policeman molests you under circumstances that you described above. People tend not to back the play of people whom they see as being obnoxious jerks. That doesn't make them right or you wrong. It just means that if you want to gain public support for misbehavior of police officers, you need to be seen as a decent, upstanding fellow-citizen with respect for others...as they prefer to see themselves. If others see you as one of them, in a situation where it might just as easily be them being molested by the police, they'll support you. If not, they're more likely to ascribe your troubles to your behavior and yawn when you get molested.
Pete, brings up inadvertantly in his effort to pile on to the ad hominems, when does speech become behavior (i.e. hrrassment)?
From my perspective, yes you were clearly within your protected constitutional rights. And, if I were to guess, that's why no one wanted to talk about it. It was pretty clear you were right, but also pretty clear you were being an ass.
Why would you do this? Why would you use your discretion more harshly against someone who demands a warrant than someone who doesn't?
while in patrol capacity (obviously, when working narc's i spent the vast majority of my time with drug stuff...
i'd say "B" takes up maybe 1/3+ of my assigned time - either investigating initial complaint, following up, or writing paperwork
"A" maybe 1/6 or so of my time. a lot more when i was younger and worked night shift exclusively.
"C" maybe 1/3 or so. a lot of "C" is also included with crap that we have to go to because somebody called "area checks for this or that", "verbal DV's" (turn out to be nothing more than an argument but we had to go), and other bull.
"[W]as I a constitutionaly protected jerk?" Yes you were.
"Can a police officer who is not in uniform, not informing me of his status as a police officer lay a hand on me for speaking?" I'm not a lawyer but I would hope not. No.
"Can he fish in my pocket for whatever?" I would hope not. No.
"[D]o only nice, obliging, decent, non-libertines have rights?" No.
There. The rest of my above comment, I stand behind but my initial answers are all askewed by failing to respond to the first of the series of questions. Sorry for the confusion.
Statutory rape is "crap"? A "victimless crime"?
of course. i had a social contact (actually a contact with a potential witness) turn into RS, then pat-frisk, then arrest (for burglary) just last week.
i didn't use consent in that case, but if i had asked for consent PRIOR to RS, it would have been thrown out. WA is also REALLY bad with accepting inevitable discovery doctrine stuff, so you don't want ot go there.
initially, the guy had been seen in the area of the burglarly by the victim and TOLD him that he thought the house down the street (vic's) was being burglarized.
later, when i saw him in the area, potential witness, he started giving conflicting info - claimed he had never talked ot the victim (clearly a lie) and had not been in the area.
THAT's when it became RS.
my RS developed sufficient "frisk factors' to justify pat frisk, whereupon i discovered a bunch of broken glass fragments (ouch) in his pocket from the window he had broken.
then, i arrested him.
then, i found porcelain fragments (used to break glass. google it) matching a porcelain fragment at the scene, cigarettes, consistent iwht a cig butt at the scene, and lot of burg tools.
if i had asked him for consent (not that this juggalo would have given it, i suspect) prior to RS, i would have found all that stuff, but would have been tossed guaranteed.
it's called the wasting our time principle. i'm being honest here.
1) you have PC
2) you ask for consent
3) consent is refused, so you end up getting a warrant
4) you are not going to cut the guy a break for the (insert minor misdemeanor here) that you would otherwise probably give him a break for.
sorry, but that's reality. i have no problem with that.
For the record, I was being a jerk, however I would like to plead extenuating circumstances, to whit: the Democratic Convention creating pandimonium and panic in a conservative Bostonian, a tension filled political climate, the disruption the convention caused in getting around town for the locals, I wasn't feeling well, my dog ate an important presentation that was due that day, my wife had a headache, I missed my train that morning...
I'm really a sweetheart.
I am in general opposed to plain clothes police officers doing work like what you described precisely because citizens do not know that they are police. At the worst end of such situations are the Dialo like case where citizens do not know they are intereacting with armed police officers until it is too late.
examples are LEGION
i'll give you one. (WA is a mandatory arrest state for many DV misdemeanors).
dood is arrested in january for assault, even though wife doesn't want to make a complaint, because there is PC and it's mandatory.
JUDGE , against wife's desires issues no-contact order pending trial.
wife calls up husband and wants to go out to dinner with him
husband says ok
later, they are driving home, and cop pulls them over for expired license plate. runs name. oops. wife has no-contact against husband. that's a MANDATORY arrest. doesn't matter if wife admits she called him and invited him out. it's still illegal. of course you'd take statements to that effect, but you can't NOT arrest.
Thanks!
yea. i assume the prosecutor (and defense attorney if the guy was actually innocent lol,... which he aint) could request DNA off the butt, but with the metric a**load of evidence against him (proximity, conflicting statements, burglar tools (porcelain), glass from the window in the pocket (same side he would have used to reach through to unlock the door) yada yada... it would be overkill.
Iolo, you have not been reading this site long have you/ A good chunk of the commetners are opposed to statuatory rape laws and you should go back and the threads about the FLDS raids a few weeks back for examples. (I am not opposed to these laws for the most part) The basic reasoning is that teenage minors can willingly consent and that there are many examples of societies that have much younger consent laws than we do so our laws are arbitrary. Therefore no victim.
...Sometimes compliance can be it's own reward, as can noncompliance. Keep moving the 'Achtung Minen' signs, Lovernios. You will forever be the source of funny stories told at 0300hrs around coffee pots in dirty stationhouses.
Whit says he refuses to give a break to those who waste his time by insisting on a warrant although he would give that break to those who consented to the search. He does this although he recognizes that his own judgment as to probable cause is not the equivalent of a neutral magistrate's judgment. Whit calls it police discretion based on the wasting time principle, but its effect is to punish the individual for exercising a constitutional right. It happens all the time.
In both these tales, that of Malvolio and of Whit, there is a common element: the exercise by the people of their constitutional rights is an annoying inconvenience to police officers. It must be prevented!
"So, I stop this stupid looking kid walking down that street and order him to remove the box that was stuck under the squad car...Long hair, green teeth and purple bell bottoms"
"Ho, ho, ho", the crowd roars.
"So then, the little hitler says 'No way, man. I got rights'"
"Ha, ha, ha", the place is rolling.
"And then I smack the little punk so hard his stupid John Lennon glasses went flying into the street."
"Hoo, hoo, hoo... You're killin' us"
"And a car runs them over! You should have seen the look on his face! The cryin' little sissy"
"Ha, ha, ha"
[true story]
Exactly. And in response, government officials (not just police) make it very inconvenient on those who do exercise their rights. "Well, if you won't let me search your car, you'll have to sit here for 45 minutes while I diddle around on the computer in my car and make you sweat on the side of the road for everyone in town to see. So I ask again, mind if I look in the trunk?"
i didn't "recognize" that my own judgment as to probable cause is not the equivalent of a neutral magistrate. imo, (IMO), mine's better. but this has nothing to do with opinion. it has to do with the law.
again, i am being totally honest here and i expected the reaction. but again. snotnose kid at juvenile drinking party says "get a warrant" . fine. there is such thing as give and take.
you do have the right to exercise your constitutiobnal right not to consent to search. but in cases where i have PC (and i will tell you if i do, as mentioned), *i* have the constitutional authority to get a search warrant
there are two sides to this. rights vs. authority.
and if you exercise your rights and i exercise my authority, the system worked. but given the execution of the warrant i am going to charge the misdemeanor (like say the brass knuckles) that i might very well give a warning for in other circ's.
in the case of the person i gave a break for the knuckles, (and the suspended license i might add), she later gave me location info for a wanted escapee (escape from community custody DOC warrant) which helped get a dangerous wanted felon off the streets.
give. and take
rubbish.
1) in order for consent to be valid, i must first make a clean break on a traffic stop. iow, tell the person they are free to leave, or else it will almost certainly be thrown out.
2) if the otoh consent is being asked based on PC (as mentioned wit the warning as such), then it SAVES time for the person to consent, and also saves the impound of the vehicle, etc. for the warrant, etc.
3) like i said, at least 1/3 of consent requests are denied, and those people (assuming only RS) go on their merry way lickety split. that is ABSOLUTELY THEIR RIGHT
4) it not your right NOT ot have your car searched IF the cops have PC. in those cases, it is your right to refuse CONSENT, but assuming the warrant is issued, it will be searched. you always have a right not to consent. but we have the authority to search given warrant exception (incident to arrest, etc.) or warrant.
give and take. two sides.
The fact that you tell me you have PC most certainly does not make it so. If you really have PC, get a magistrate to agree. If not, we can all wait. Of course, let's face it, PC is not the hardest standard to meet, especially when it is your word against no one's.
In any case, this give and take policy should be pretty troubling to people since as best I can tell we are "giving" our rights in return for what . . . less inconvenience? All you are "giving" is the mere possibility of leniency (with no guarantees of anything).
sure they do. if the judge refuses to sign the warrant, no search made.
bwahahahaha!
that's incredibly ridiculously false.
given misconduct, a very large %age will make a peep. heck, lots of people peep even when there is no misconduct whatsoever (i say this with 20 yrs on and not a single IIU beef fwiw )
rubbish. if i tell you i have PC, i am more than happy to tell you WHY. and if you KNOW you are guilty of X, and i tell you i have PC as to X and here's why. guess what? you know i'm telling the truth.
and like i said, i DO get a magistrate to sign the warrant. where did i say i didn't?
no, it's called the real world. give and take works great. that's how good informants are developed. that's how we caught that bad guy violent felon escapee.
here's a hint. most people like the police, especially those who are not career criminals. heck, even many career crim's begrudgingly like us, imo.
most people realize that wasting our time is not in their best interest. some people, otoh will lie even when honesty will save them. if i have PC to search your car, and you refuse consent, i am going to get a search warrant (time permitting). that's a given.
the reality is, especially in urban areas, cops are far more interested in catching the real bad guys than some kid with brass knuckles or a few grams of bud. the other reality is that cops have duty and authority that also need to be taken into account. if the cops have PC to search X and you refuse consent with knowledge we are going to get a warrant, then don't blame us if we charge you for the brass knuckles or whatever you know you have (not to mention the stolen property, etc.)
fwiw, i was only asked for consent once when i was snot nosed college kid. and i refused. and that was it. cop said have a nice day. but he didn't have PC.
and again, if the cops have PC to search you do not have a right to prevent your X from being searched. only to refuse consent. that's your choice. but i think it's perfectly acceptable to understand that if the cops are going to wake up judge and spend the XX amount of time to get a warrant, they are not going to cut you a break for your contraband. file under: tuff cookies.
Nazi: "Vere are your papaz?"
In my mind, it is the same thing. ALso, the fact that my rather onerously inflicted tax contributions go to pay for the rude and "brownboot" treatment I receive from some "peace" officers is all the infuriating. I also second the point that if I were some "tree-hugger" or gay rights activist, instead of a guy in a suit, the police would assume less that I will simply go along with their infringment on my rights as an American, and more that I will call the ACLU. The fact is that most bureaucrats assume nice middle class worker bee types will just "go with the flow" and not ask questions. I, for one, am glad that the founders of this country and the countless patriots that have followed them, did not think so much of the "stuff they have to do" that they would subvert their own convictions. right is right and wrong is wrong.
So says, the typical libertine idiot.
this post is about as valid as yer average bigoted post by a racist etc. different target, but same broad brush unsupported by evidence
And 'officer flatfoot' disappeared when patrol cars took over, resulting in a lack of contact with the wider public. Its easier to order folks around when you view them as an ever changing mass instead of individuals you meet repeatedly over your shifts.
On the flip side 90% of law-abiding people have no problems answering a few questions, opening the trunk, etc. The 10% who do make a stink about this are a bunch of crusader types trying to make some point, start a lawsuit, etc. Or put differently the guy who refuse to open the trunk is far more likely to have drugs or a dead body than just be some ACLU type trying to make a point.
Given this, its reasonable for an honest cop to assume that when someone won't just say what my name is, they're more likely than not dealing with a criminal.
Now wait, you object... certainly, one can avoid bringing brass knuckles in the trunk, and therefore having brass knuckles is still at least partly the crime? I wish it were so: but the fact remains that so many behaviors can sub in for the knuckles, that effectively it remains that wasting the officer's time is a crime that no citizen ever voted to criminalize.
And Whit doesn't see the problem with that.
And it's not really whit's fault. Based on previous comments that he has made on this Blog, he sounds like he is probably about ten times more sensitive to civil liberties issues than the average LEO. The real villains are the *&^%$ politicians who keep passing this endless stream of feel-good laws without giving any thought to their unintended consequences.
"There's no way to rule innocent men. The only power government has is the power to crack down on criminals. When there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws." -- Ayn Rand
no, i don't. if you (or more specifically a state legislature) wants to do away with officer discretion and make all misdemeanors a REQUIRED by law charge/prosecution, then feel free.
but guess what? we get DISCRETION! as do judges for instance. i am sure you are against mandatory sentencing aren't you? iow, a judge can take into account various factors in making a sentence within a range?
well, guess what? we get to take the totality of circumstances into account when investigating crimes. when the crime is a misdemeanor we can decide - charge, or give a warning. we can decide cite for the offense, if we do decide to charge, or make a custodial arrest. again, officer discretion.
you may not like it, but that's how our legislators passed most laws (exceptions are, for example - DV crimes where we often have no discretion).
i believe you hire good people and you give them some discretion. if you want automaton service, then lobby your legislature for it. good cops know how to use discretion. all sorts of factors are taken into account, including - frankly- time. and there are many crimes that don't get charged (minor ones) due to all sorts of discretionary factors.
"Officer, I don't want to prevent you from doing your job, but I also want to preserve my rights, and I don't consent. I'm no lawyer, so I'm trusting that as a police officer, sworn to uphold the law, you'll tell me the truth. Am I legally required to answer that question/obey that order?"
In my head, that seems to do all the right things. It's non-confrontational. It makes clear that I'm not voluntarily complying. If I obey when it turns out I didn't have to, it makes it clear that he was acting under color of law. Members of the bar, what do you think?
excellent! you know, i've had a few people ask similar questions, and they got a straight answer. i can't imagine any cop not liking this.
contrary to the defenseattorneyivorytowermindset, what cops want (nearly universally) is voluntary compliance. and the VAST majority of people will, when given sufficient verbal warning - comply. there will be people who want a 6 page dissertation from the cop as to why he thinks he has the authority to give them such an order before they comply. that's not always feasible, and it's certainly not required. dave d's above barstow example is a classic one.
Jesus whit, you really need to get out more. I agree that good cops shouldn't mind this. But, a lot of the cops in my area would. Therefore....
I'd say, rather, they demonstrate not how little popular support there is for the exercise of first amendment rights but how great the dislike of uncivil behavior, whether exercising first amendment rights or not and how little popular sympathy there is for those who appear to be purposefully provocative when they provoke what they appear to have set out to provoke via their exercise of first amendment rights. There's a difference. As for the response here, the seemingly universal response is that the police officer was wrong and that Lavernio was being a (self-admitted) jerk.
The exercise of first amendment rights in no way requires being a jerk. Being a jerk in the exercise of one's first amendment rights is more counterproductive to one's cause than it is productive. People generally dislike incivility. Right or wrong, they inwardly think, "Good. Serves him right" when uncivil people get a forceful response from authorities and, as I argued earlier, are less likely than more to be sympathetic to the jerk than to the object of the jerk's words.
I don't think that has anything to do with support of the first amendment, per se.
Choice 1: I move along without argument.
Cost: A dimunition of self-esteem as I truckle to the uniformed fascist and fail to stand up for my rights.
Benefit: I go about my business without any further loss of time, energy, or risk of arrest and prolonged, expensive legal action. The policeman is able to continue with his presumably important business.
Choice 2: I refuse to move, and demand an explanation!
Cost: I become embroiled in a discussion with the policeman that, if it does not result in arrest, at minimum wastes my time and his. Risk of arrest and prolonged, expensive legal action.
Benefit: I have stood up for my rights!
I think the right choice is clear...
But guess what? you MISUSE discretion!
Discretion is for sorting out the serious problems from the not-so serious ones, not for deciding some peon is using more civil liberties that he really needs and showing him who's boss.
But it doesn't help when so many assert that exercising first amendment rights (or fourth, etc) in and of itself constitutes being a jerk.
I suspect that's probably true, that the majority of police officers are good guys trying to do a hard job. Unfortunately, however a certain number are "bullies, racists, total idiots or what have you" and the rest of us need protection from them. IMO, the current system is woefully inadequate at protecting the rest of us from them.
The old line about a few bad apples spoil the bunch applies to police officers as well.
to paraphrase. it's the worst system out there... except for all the other ones :)
"A**hole" is questionable. ;-)
But, "F. U." is protected speech.
U. S. v. POOCHA
259 F. 3d 1077 (9th Cir. 2001)
Defendant did not violate federal disorderly conduct regulation in uttering words “fuck you” to officer because such speech was constitutionally protected.
After all, there is no requirement that protected speech be polite, articulate, or respectful. Usually it isn't.
But, once the dance was over and I had carried the vomiting young lady from the restroom to her embarrassed father's car, I noted some kids screaming at the deputies.
"Pigs! Fucking pigs!" and so forth.
Now, there had been no interaction between the kids and the cops. I'd done the Bud patrol, dumping the occasional beer and getting the crap.
But it wasn't me getting the majority of the crap.
Where did the kids learn to act this way (it was about 1974)? From their parents who were not hippies. The cops=pigs meme came from their parents who were not--I knew some of them--the stereotypical SDS hippies.
Officer Murphy did not get called a "pig" as he flatfooted his way around his beat.
You want to alienate the cops? Don't be surprised when the cops act as if they're alienated.
My experience has been that local cops are pretty decent folk, actually much in the way whit describes them.
On the other hand, whit's description does not fit state troopers. I have yet to meet a state trooper (in the Deep South state I'm referring to) that comes even close to whit's description.
That is a difference I have observed several times. I wonder why. (I really don't know. Maybe it's the hat.)
-Gene
1. Mr. Davis is a public figure by his own choice. As such that subjects him to a different level of interaction no matter what. I agree that it's bad taste, but a well known politician attending events in and around a political convention is exposing himself to a very large dose of potential speech. If he wishes to avoid it, I recommend he remain in California during conventions.
2. Isn't the right answer when political speech in bad taste is being performed more speech and not assault under color of law? How do the supposed cooler heads here actually support their contention that speech in bad taste allows a state executive officer to lay hands on a citizen? Mr. un uniformed should behave like the citizen he is and say whatever he'd like to say to Mr. Bad Taste without assaulting him or threatening him with arrest.
I love how folks always assume they have nothing to hide and are never on the wrong side of "good taste..."
As journalists, who do dastardly things and hide behind the First amendment going NYAHNYAH are the First's worst enemies, so buttheads like the motormouth are the second worst enemies.
As others have said, the First defends even stupid speech, but the public, quite naturally, will be more sympathetic to non-stupid, non-egregious speech. Larry Flynt is, I guess, protected by the First. It's hard to take that when he's the highest-profile case of free speech law. Partly, it's because otherwise, we are so free.
Since buttheads like motormouth are not agents of the state, or for some other reason, they feel no compunction about shutting down the "more speech" by violence, by destroying publications, by threat. Thus, while always victims, they manage to stifle free speech. And think it quite slick, too.
Imagine getting between this guy and Davis and yelling at him. Either you'd get shoved, or he'd switch his whining about "free speech" to you.
All in all, a bad advertisement for free speech. But, free as we are, it has to be that bad to generate any state push back. I except college campuses, of course.
..Things you may not know: Most people at these events don't want to do anything violent, but want to see everything. Due to the heigth limits of the human body, and the noise, everyone more than 3 people back can't see or hear squat. They are characterized by their constant refrain " What's happening "
...Some folks there want very much to break things and hurt people. They want to steal and start fires, settle scores and garner bragging rights. Many have done it before and look forward with great longing to civil disturbances. It's their kind of fun.
..Once control is lost, it's gone until the event runs it's course. Bones will break, shops will be looted and cars will burn. For the mouth that roared, it's just good clean first amendment fun. His kind of folks.
Absolutely true in my southern state. It may simply be that highway patrol is a more dangerous job than local patrolman (don't know if that is true, but . . .).
It's an accomplishment of stunning proportions.
Yours, TDP, ml, msl, &pfpp
Because they choose to do so. They could always find honest work.
Given the laws we have, and what people tend to go to jail and prison for here, and the fraction of our population which is, has been, or will be incarcerated...
...I have to presume a policeman can't be good guy, until they prove otherwise.
Yours, TDP, ml, msl, &pfpp
And regarding that, I second what Hattio1 said.
whit needs to socialize with his colleagues more with the rose colored glasses off.
Yours, TDP, ml, msl, &pfpp
No it doesn't but who is doing that here?
Okay, but I think the question is two-fold: one, is the officer performing his duty or just throwing his weight around? And two, do not citizens have a right to ascertain that the officer is, indeed, properly performing his duty before yielding their right to peacefully occupy a space that is open to the public while doing nothing clearly criminal?
We live in a society where citizens can do anything that is not forbidden by law, not one in which citizens can do only those things permitted by authority. It is the difference in predilection of the citizen that seems to separate the two sides of the question here: does one assume good faith on the part of the police and move along/cooperate without inquiring into what cause the officer has for his actions or whether one assumes bad faith and, therefore, insists upon knowing for what cause the police are interacting with them in the manner in which they are. Surely it cannot be against the law for a person to attempt to make such a determination before yielding his rights.
As for me, I'm mostly in the 'assume good faith and cooperate' category but that doesn't mean that people who do not make such an assumption are wrong to ascertain the foundation for the officer's actions.
I think the right choice is clear too but I'm not certain which choice you think is clear from your comment.
But let's change the initial situation a bit. What about if one has, or thinks s/he has, a compelling reason to be there? Suppose you are peacefully picketing outside of a porn shop in protest against such an establishment in your neighborhood -- say your children and many others walk past the shop to go to their school and home each day and say you are the sort who finds that objectionable for some reason. Suppose that, in picketing, you are in compliance with all the laws governing protest. Suppose a police officer comes up to you and tells you to move along. Assuming that you think the right thing to do in your scenario is to just cooperate, does that new scenario change your view of what the right thing to do is?
How compelling would your reason for being there have to be before you asserted your rights and risk possible 'refusing a direct order by an officer of the law in the conduct of his duty' charge (or whatever the appropriate legal terminology might be)?
no, hatio1 needs to drop his (consistent in every thread where cops come up) constant anti-cop bigotry. fwiw, i suggest a big part of it comes from (iirc it is called ) selection bias. if you only see the problematic cases that go to court, you overestimate their representation in the grand sample size.
analogy: people don't call me when they are doing JUST FINE and eating a nice dinner and everybody is getting along swimmingly. they call when the arguments have gotten out of hand, or mommy punched daddy, or junior pulled a knife on mommy, or whatnot.
if i were to employ the same type of hattio1 bias(tm), i would overestimate how often family dinner devolves into knife/gunplay/assault.
ime, generally speaking, cops are going to nearly always err on the side of protecting first amendment rights. heck, ime, it is citizens (not cops) who try to turn lawful exercise of first amendment rights into a police matter, and have to be told "sorry" vs. the other way around.
example: guys calls us because a person down the street from him has been distributing flyers claiming his son is a thief, etc. i can sit there and explain to the guy his options - sue, try to get a restraining order prohibiting the guy from doing this, get a lawyer, etc. but that i am not even going to take any action because it's a free speech issue.
this kind of stuff happens all the time. our job is to protect people's rights, and often that entails what other people view as THEIR rights being violated, but that's a fundamental element of rights - is that they are always about tradeoffs. my free speech means you are frequently going to have to hear things you don't want to hear, etc.
NO street cop is going to cite anybody for picketing or tell them to move along without AT LEAST "orders coming from on high" preferably from a city attorney. when in doubt, you assume a free speech issue is exactly that.
heck, during WTO our agency (and several others) had members on both the riot squad side (protecting people's civil rights to protest - and enforcing the law when it got WAY out of hand and criminal) and on the protestor side.
if i was picketing in the above example, and i was told to move along, i would respectfully ask if that was an ORDER, and if it was, i would move and THEN call the police and request to speak to supervisor, etc. and try to get the issue cleared up. at a minimum, you are denied 15 minutes or so of protest (it's not like the building is going anywhere. it will still be there 15 minutes later), and if you are right, you'll get an apology, and the errant cop will get schooled.
i realize that is a nuanced, reasonable approach, so probably not popular among many here :)
you could do what many "progressive lefty" types did during WTO N-30 etc. which was to stand in front of a line of cops (many of whom WERE anti-WTO i might add) and yell "N***ER" at all the black cops to try to goad them into a reaction that would look wicked pissah on their video cameras so they could complain about police quashing people's first amendment rights. of course, we did nothing except ignore them. but those incidents DON'T make the paper.
..Mr. Harmon, cops may or may not have the time or knowledge to explain their actions or orders. Knowledge of the law is a citizens duty, and most arrests require both knowledge of the law and understanding of events beyond a citizens ability. You will never be privy to what is said on police radio or know the background of some of the players as the beat cop does. Asking questions is a common ploy to stall and gain time. If you watch " COPS " on TV, you will often see a resisting, escaping suspect yelling " what did I do ? " while trying to wiggle free. And you got to see him/her do the crime just prior to the arrest. You know damned well they know what they did. I cannot count the number of irate witnesses who told me " I didn't know that " when I explained an arrest after the fact.
...It is usually the case that the info reported from witnesses is wrong in some respect, and often contradictory and incomplete. The first cops arriving have a duty to find out the facts and correct the mistakes, but witnesses often disagree or lie. Most crime scenes include supporters and those who dislike the suspect. Telling the cops that He-went-thataway is a tried and true ruse.
...Just like paramedics, getting the job done is more important than answering questions. You often see a cop ask another cop, or paramedic a question and not get a reply right away. Maybe later, maybe not. It's not personal, just the way it is.
..When I worked in Marin county, a judge called me into his chambers and asked me if I trusted a trooper who worked for me. " Not as far as I can throw him " I replied. The judge smiled and told me he dismissed his cases out of hand. Within the year I was the investigator of the IA that fired the puke. Most judges know whats what. It's hard to fire someone in civil service, but they do get fired. If you are wronged, complain. If you are wrongly charged, fight it. I do. But I don't argue with the folks in the field. They almost always know more about whats going on than I do.
I'm sorry to have to say this, because you do seem like a 'good guy' who's really trying to do you level best to make this world a better place, but you scare the hell out of me. I've never run into a cop that's acted reasonable to me, except one's I know personally. My personal experiance is that police want no talk back, no questions, and certainly nothing short of me bending over backwards to make their jobs easier. The even tempered "is this an order or a suggestion/ I just want to know what you are saying" has only ever given me a long night answering tedious questions, and in one case, a ticket.
It's sad that you, someone I really think is looking to do the best you can, fit that description as well. Your discretion should be there to make everyone safer, not to make your job easier.
I'm sorry to have to say this back at you, but you might consider moving to a more freedom-loving part of the United States. While I can't say exactly what agency Whit works for (and wouldn't say out loud here even if I did have a good guess), I do know he works in Western Washington, which is at the moment in the open stages of a burgeoning movement toward open carry of firearms*.
If you read through the Washington forum on www.opencarry.org , you'll find a number of cases where people have, in fact, asked "Am I free to go / Am I being detained?" to some very unhappy officers, who though they weren't well-trained on WA firearm rights, were well-trained enough in the basics of arrest / detention / investigation / RS and the like, to realize that the didn't have any justification for detaining the person.
There are a few problem jurisdictions here and there, and the political leadership including the appointed Police Chiefs are often terrible (imo), but overall the LE agencies in Western WA seem to adhere to the concept that we are citizens, not subjects.
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*To clarify, open carry of loaded handguns is completely legal in WA, having no legal restrictions on it whatsoever; it just hasn't been very common in urban areas.
http://www.hulu.com/the-academy
Yes.
How compelling would your reason for being there have to be before you asserted your rights and risk possible 'refusing a direct order by an officer of the law in the conduct of his duty' charge (or whatever the appropriate legal terminology might be)?
There isn't anything that I would want to picket badly enough to risk getting arrested for.
I'm also not certain why moving along should entail a diminution in self-esteem.
Why then, there is no cost whatsoever for moving along when the policeman asks you to!
Your discretion should be there to make everyone safer, not to make your job easier.
How does it make you "safer" when police officers have to waste their time explaining themselves to you? Assuming you are a law-abiding citizen, seems to me you are "safer" if he's doing his job rather than talking to you.
i have the exact opposite experience.
in college (california), i played in a loud (is there any other kind) rock band. thus, i frequently came into contact with the local constabulary on noise complaint issues. they were ALWAYS professional and courteous. otoh, i didn't talk back. On one occasion, i was walking down the street at 3:00 am with an expensive guitar and amp - mine. cops stopped me, Id'd me, and got the serial # off my amp - a basic terry stop. they asked my name, id , etc. and i gave it to them. i didn't QUESTION their authority to do so. Again, no problem.
The only time i had one rude to me was when i was riding my bicycle behind two of them on bikes and rather loudly commented to my buddy "hey, aren't cops supposed to stop at stop signs?" as they rolled through on their bikes. the cop made some vaguely threatening, snide, snarky comment. did i deserve it? imo, yes. if i was a portland lawyer, i probably would have made a complaint. sigh...
i got stopped a few times by the CHP (a very professional agency), and they were hella courteous. and i was a long haired scummy surfer driving an old beater.
I got another terry stop once in RI in a parking lot, and again - they id'd me etc. if i was a jerk and started questioning them, who knows what they would have done, but i didn't and the encounter was short and professional. i had been looking at car windshields (i was trying to see if i needed a sticker to park in the parking lot). they (rightly so), assumed i might be a car prowler, and even pat frisked me.
i got stopped twice for suspected DUI (i wasn't.) i did the FST's and they let me go. again, they were totally professional.
for about 2 years, i worked DEEP undercover (only a few people knew my real identity/job), and got stopped a couple of times by cops (who of course had no idea who i was). again, they were firm and professional, but again *i* was courteous and when they gave me an order - i obeyed the order. period.
i was felony stopped once in cali. at gunpoint. i obeyed their orders. turns out the van i was driving matched a description of one that had just been used in an armed robbery. i didn't get out of my car and start waving my hands and complaining "what's going on" as i have seen some (morons) do on my felony stops.
so, i not-so-subtly suggest that almost certainly the reason CrazyGoatIdol has had such negative contacts with police was because HE was probably a jerk to them, insubordinate, etc. etc. attitude goes a long way, and complying with orders is simply what you should do. people tend to create their own reality, and if you go looking for trouble and have an attitude with cops, it will generally result in what you perceive as a negative experience. that's YOUR fault.
heck, once when i was undercover, i was holding a bunch of cocaine and i was sweating bullets that they would find it, but even then i obeyed orders, and it was all good - and got away with my cocaine.
Dave D is (as usual) spot on. some people just create their own problems and then when being arrested scream "what did i do?" or my personal favorite "i'm not resisting" as they resist.
How does it make you "safer" when police officers have to waste their time explaining themselves to you?
Because only a fool would assume that because someone is a cop, they can do no wrong. I hope that makes them less likely than the population as a whole to do no wrong, but I wouldn't count on it being absolute.
whit,
I fully expect a number of people, potentially a very, very large number of people, to have nothing but good encounters with the police. The rule of big numbers and all that. However, 1)That doesn't discount the fact that a very, very large number of people have had nothing but bad encounters with the police. Bad encounters with the police are not like bad encounters with your local engineer, school teacher, mail man, desk clerk, or bum.
I am a former eagle scout. I am a young professional working in a very high stress, structured, 'stuck in the old ways' industry. I am a grad student in a very prestigious research university. I was born and raised Catholic. I understand how to deal with people in authority positions.
I am nothing but curtious and polite to those who think themselves my better. When a police officer said to me "I know you didn't run that stop sign, but I can't go home till I give out a ticket," I said "very well. I understand. I guess I'll just challenge it in court then?". He said "No, I show up to all my court dates, and I don't like to loose," Is that my fault? In fact, at this point I am almost to drunk to type because I'm celebrating something that happened earlier today, and my first reaction was to explain where I'm coming from, not to make a fuss or try to insult you for a comment that could be interpreted as insulting, but probably was not meant to be.
Were those negative encounters with the police my fault? Was that me failing to realize his pov and substituting my own? Was that a time when I didn't have to put my hand on my brother's shoulder before he began to argue with the cop?
The only thing I am trying to suggest is:
1)There is a fatal flaw to the mentality of the police in this country at this time, and the fact that an apparently good natured police officer shows those flaws should demonstrate that those flaws are well spread.
2)When a cop fucks up, it's a bigger deal than when a your local engineer, school teacher, mail man, desk clerk, or bum fucks up.
Do you think either of these suppositions are incorrect?
Regarding your second suggestion--you're right, one would have to be crazy to think that anything bad ever happens when engineers mess up.
That being said, I would take issue with your first supposition. Even granted that all your experiences occurred exactly as you describe them, with no hint of exaggeration on your part, nor leaving out any salient details that might tend to support the police, still... how on earth does that qualify you to make a blanket statement about all police officers in the entire country?
Even if they are "wrong" it still does not make you "safer" to waste their time talking to you. Even if their basis for talking to you is legally incorrect, they have better things they should be doing instead of dealing with you.
Yup; often -- most of the time -- cops do have better ways to spend our time -- the time that we, the public are buying -- than talking to me. I've only very rarely been a witness to criminal behavior, after all.
..Back to necessity. You probably can't know, since it's not usually visible, what necessitates a cop asking you to move along. Is ethyl-methyl-deathyl bubbling up from the sewers ? Is he closing the street and sidewalk because a Presidential Limo is imminant ? Hostage situation ? Sniper ? Donut truck overturned ? He's probably been sent there based on sketchy info that may be wrong or insufficient. I can guarantee you he doesn't want to arrest you, and his supervisor is relying on him to stay there and not hook you up. If he has any time on at all, he doesn't care what you say or call him. He cares very much that you comply and he will threaten you into doing so if you don't. Compliance is everything to accomplishing his assignment. He could care less about you individually, if you act the jerk, you're just one more in a career spend with them. You can't hold a candle to a real jerk, anyway. If you comply he won't remember you at all. It's not personal to him, he didn't know you before, he won't know you later. He's not there because HE chose to be there, he's there because WE sent him there. He'll be just as petty or grand a tyrant as he needs to be to do what he's been sent to do. That's why we hired him, to use appropriate force and threat of force to satisfy the law and keep order. You get to dial up the tyrany from scowl to wood shampoo. Your choice. Lots of folks behind you want their turn at him so they can too can do the same. Now move along.
the point that you are missing is what you THINK is beyond their authority very well may not be. and GENERALLY SPEAKING, your venue to question their authority is in court, or to ask for a supervisor, etc. AFTER complying with the order.
the perfect example was the time i was held at gunpoint as mentioned above. i had done NOTHING wrong. and of course i didn't know a store had just been robbed in the vicinity by somebody in almost the exact same vehicle. but i OBEYED their order, and then after everything was sorted out, it was all good and i went on my way.
like i said, in non-exigent circ's (and since i had a gun pointed at me, i knew it was exigent), i have no problem with citizens asking "do i have to comply with this" or some such, and PLENTY of citizens do and 99% of the time cops have no problem with that. it's when people PERSIST in non-compliance, that they run afoul of the law and get arrested.
in 20 yrs of law enforcement, i have relatively infrequently had to arrest people for such things, and in 20 yrs i have never even had a IIU complaint because MOST people realize in retrospect that THEY screwed up, even when AT THE TIME it seemed so clear to them.
i am ALL ABOUT questioning authority. i don't like authority, i think govt. has WAY too much of it, etc. however, in dynamic street situations, it is not a good idea to question a direct order from a police officer. you don't know why they are giving the order (sometimes) and MORE IMPORTANTLY you don't know if the order is valid or not. comply with it, and then question LATER.
if a cop says "put your hands behind your back", telling him "you don't have the right to pat frisk me as your suspicions don't rise to the level required by terry v. ohio" is not to going to get you anywhere (except possibly jail) and more importantly YOU DON'T KNOW what the facts and circ's are based on the totality of his knowledge. and it is not required for us to give you a justification for a pat frisk. we CAN and i usually do, but it is not legally required, nor should it be.
i question whether things REALLY happened the way crazygoat idol claimed . but if they did, fine - he dealt with a jerk cop. NOBODY denies they exist.
The first sentence is sooooooo true but irrelevant as the tazer zaps you or they "hook you up" for twenty minutes just to show you who is "boss." Besides, "attitude adjustment" is one of the perks of the low-paying job. It only gets a cop in trouble when he does it to someone with some wealth and self-esteem. Like most posters on VC.
The second sentence is a joke, Right? Not in Chicago it's not. Nor Minneapolis or even in tiny St. George, Missouri. The bigger the jerk, the more accolades. That's why cops (and their Unions) fear and fight Civilian Review Boards with any authority at all. It takes irrefutable videotape PLUS media pressure to get anyone disciplined, much less terminated (then another Department will just hire them).
..But I gather that the system you work in wasn't set up to hunt down and fire jerks. It would appear.
There isn't anything that I would want to picket badly enough to risk getting arrested for.
Alright, well, that was just a suggestion. Is there any reason compelling enough that you would risk asking an officer why he's ordering you to move from where you are breaking no laws being?
Well, yes, but there are definite limits to inductive arguments based upon one person's experience and then basing assertions of the general applicability of that one person's experience as you do when, later in that same comment, you write:
All due respect but you have way of knowing what every street cop does or would do in any given situation since every officer is an individual (and so different in temperament, character, experience and so forth from every other officer). You describe the ideal police officer who has had a good day and always acts as he's told. Again, with respect, that does not describe everyone's experience with police officers.
i will amend my "no cop would..." statement with "almost never would a street cop...".
picketing and protesting are exceptionally common, and there is no epidemic of cops walking up and telling picketers or protesters to move along, then arresting them. it's about as close to a "baseless worry" as i could imagine.
personally, i did come close to arresting a picketer once after he was blocking ingress/egress to the facility and had been given two orders to move. i told him if he did not move in 30 seconds he would be arrested, and he finally did. but that was the protocol that came down from on high to deal with these issues and make them as non-subjective as possible.
cops deal with this stuff all the time. people with picket signs, protesters etc. and 99.9% of the time it is simply not an issue.
but the more germane point is that *if* a cop tells you to move (or sit, or stand, or drop the X, put your hands behind your back, or whatEver), it is your duty to comply.
like my situation i referenced above (where i was ordered various and sundry at gunpoint even though i did nothing wrong, but it was totally justified), there is a time and a place to sort things out, but when the cop gives an ORDER, you obey it.
i cannot tell you how many people get handcuffed then released, for instance, in all sorts of circumstances, where they run a very high risk of arrest if they don't comply, but it later turns out they get field released in a few minutes...
example: you are driving your car, but unbeknownst to you, somebody who stole a car last night replaced your "clean" plates with the plates from his stolen car, and you get pulled over as a suspected (rightly so ) stolen vehicle. i had to prone out a soccer mom at gunpoint for such a few weeks ago. once we checked the VIN, it was all good, and we realized what had happened, which auto thieves do somewhat frequently. but we have to ASSUME the grey Chevrolet minivan with plate ABCDEF that returns as a stolen vehicle IS in fact the stolen vehicle, UNTIL we check the VIN.
again, i don't like authority, and i don't like to be told what to do - by anybody. you can FEEL the same way. but when given an order by a cop OBEY IT and question later.
heck, you may even get some sweet lawsuit money out of it if it's a major #$(#$(up.
but by disobeying the order you RAISE the cops perception of your threat level (rightly so), and why would you want to increase the risk that force be used against you? it's simply stupid.
Well, if I happen to know that I am in compliance with federal, state and local laws and rules governing my protesting activities, as I see it, no policeman has any business just issuing me an order to move along to the detriment of my first amendment rights even for 15 minutes it might take to call the precinct, nor seeing me as any sort of threat to anyone or anything other than to the precious feelings of whoever or whatever I am protesting.
The only possible valid explanation that I can think of is that remaining where I am might place me in danger -- as, for example, there's been a gas leak or a leak of some toxic substance or a dangerous criminal who has escaped and is thought to be in the area and the officer feels that I might be exposed to danger in some way. In which case, he should preface his polite, "We're asking all citizens to clear the area," (and decidedly NOT "Move along!") with the reason he's asking me to leave.
Unless you can think of a reason why an officer would just order someone to leave who is peacefully and in orderly fashion, protesting in full compliance with all laws and regulations that I'm not thinking of, I'd ask politely the reason for the order and, if he refused, I'd tell him just as politely, "No, sir." Some principles are worth being arrested for. It's just a matter of individual temperament what principle and under what circumstances. For all I know, the officer is the brother of the owner of the porn shop or has a monetary interest in it and he's just trying to drive off someone he views as a trouble-maker. Again, I value your perspective but you are not every police officer. If you were, I suspect there would be much less resistence expressed here at VC to meek obedience as opposed to standing up for one's rights. Most of that resistance is from people who see police as people with power of the sort that tends to corrupt its possessor and who have either themselves experienced police misconduct or have had clients who have experienced said misconduct and, for that reason, are less than inclined to see the police officer as exercising a valid use of necessary force rather than just exercising force because they can.
While I, myself, am much more the "Yes officer!" type, I think it more a matter of wisdom. I certainly think even someone who does not have any compelling reason for being somewhere has a right to inquire the reason for an order to move on from an officer of the law.
the article deals mostly with the fourth amendment problem-and as you point out-there is the question off the 5th/14th due process limitations on 'failure to obey with lawful police order'
if the police officer tells me to stand on my head and quack like a duck-and the order is not 'illegal' under state law-(meaning i guess-the activity ordered is not illegal) then can i be arrested and sent to jail/prison for not doing so?
i think thats really the question here-not the fourth as much.
Can't think of one offhand. It would have to be literally a life-or-death situation of some sort.
Okay. Thank you for responding.
but despite your protestations, you don't KNOW in that situation that you are in compliance with blah blah blah. you BELIEVE it. furthermore, there may be any # of other reasons he is telling you to move along, and yes as i have said multiple times, ASKING FOR AN EXPLANATION AS TO WHY is fine as long as you OBEY THE ORDER.
there may be an armed robbery next door, a bomb threat, god only knows what. GENERALLY SPEAKING, i would expect an officer to be able to give a quick explanation, but not always - and that's tangential to the point.
you SHOULD obey the order, and THEN question.
and if you have a problem with that, then expect to have problems in the future. you don't KNOW that you are in compliance, you have the opinion. and assuming he DOES have a lawful reason to order you to move along (or put your hands up or whatever), and you don't do it, you subject yourself to arrest, which is a stupid waste of time for the officer, as well as yourself.
like it or not, we vest officers with certain authority, and there are numerous reasons you may not be privy to in any given situation that might prompt an officer to tell you to do something. your VENUE for protest is with a supervisor, or even the officer AS LONG AS YOU COMPLY.
a few months ago i pulled up to a silent commercial robbery alarm. there were two people standing near the store. needless to say i directed them away from the store. if they were holding picket signs, like you in all your arrogance, they might have assumed they were "fully in compliance" with picketing laws, but that wasn't WHY i was telling these people to move.
so stop thinking you are mr. omniscient. if you don't know why you are being told to move, or suspect the cops are wrong to order you to do so, comply with the order and then ask.
and if that offends your precious sensibilities and your 100% certainty that you are right, then that's just tough.
your post displays exactly the ignorance that i am explaining is frequently present when people are given an order by the police. it is NICE and OFTEN FEASIBLE for the cop to explain, but not always.
and as i explained, if you are given an unlawful order to move, then OBEY THE ORDER, and THEN MAKE A COMPLAINT.
you have many ways to question the cops order. but until YOU know all the facts/circumstances known to the officer who gave you the order, you do not have the basis of knowledge to know whether the order was lawful or not.
pride goes before a fall, dude. and you are the perfect example with your "perfect knowledge".
if it comes down to a pissing match with the cop telling you to move, and you refusing, you are probably gonna be arrested. and if in retrospect it turns out you were right, the case will be dismissed, or you'll be found not guilty. it will take even more than that (given certain good faith protections that cops enjoy, etc. ) to win any money in a lawsuit.
but i can tell you in the NUMEROUS examples i have seen, the VAST majority of time the person thinks the cop has no authority to tell them X, it is the citizen is wrong. not necessarily because they are stupid, but because they don't know all the facts and circumstances that prompted the cop to give the order in the first place.
a reasonable person obeys the order, and THEN questions.
If given an order to move along by another cop (suppose you are in plainclothes and off duty), do you, (a) immediately comply, no questions asked, (b) inform the officer that you're on the job and ask what's going on and can you help, or (c) something else? Remembering, of course, that even though you don't like being told what to do, when given an order by a cop, you obey is your advice to others.
(A).
i would obey the order THEN ask if i can help. when given an order, i comply.
downtown seattle at bar close, rowdy crowd. cop tells me to move along. i did.
clearly, in that case, after a few beers, i'm not going to ask him if i could help.
if i am stopped by a cop while off duty, i will also always inform him that i am armed. no legal requirement to do so, but it;'s always appreciated. i've had people do the same with me many times when i've stopped them (DUI, traffic, whatever), and it is appreciated by me as well.