A question for the Law experts here (might be off topic)

Jeff - I'd like to see the memo you're working from, it may well be that there are subsequent S. Ct. decisions that answer the questions left unanswered in the 1983 case. I checked to insure that the 83 case wasn't overturned, and it hasn't been -- at least not directly. But there clearly can be other law out there.

I agree that the cop has VERY broad latitude in situations involving a stop of a motor vehicle. The S. Ct. has upheld routine stops at sobriety check points at which a driver can be compelled to produce a driver's license, and therefore id.

Also, the S.Ct. ruled within the last two years that the cop has a right to demand that everyone in the car exit, for their own safety. I frankly don't recall if that case said the cop could also demand an id of all occupants; I'd be surprised if that was the case.

But cars and boats are classic exigent circumstances, these suckers can get up and go away in the time it takes to get a warrant. That makes them not necessarily the best guide to what is going to happen in your own home.

I agree that there is a very low probability of civil liability for any officer in the kind of scenario described. The cop was apparently trying to determine if someone was a victim of domestic violence. It aint a crime or a tort to be diigent in your job. Persistence is a virtue in most cases like the one laid out here.

I don't think that one cop could lawfully stay in the premises for two hours while the other left to get a warrant. If they have exigent circumstances which require immediate action to protect life, they can probably get by with skipping a warrant.

If they don't have exigent circumstances, and a warrant is required, the cop that remains in the premises is effectively seizing the residence for the interim.

Again, it may seem pedantic, but the cop has a right to stand on public property and observe, to the best of his abilities, the comings and goings at a residence. He does not have a right to camp out inside while somebody chases a piece of paper.

PS 18 USC 1001, the federal false statement statute, is punishable by five years, not 18, my mistake. There are similar statutes in some but not all states. So the distinction between silence and disception is a big one.

[This message has been edited by abruzzi (edited October 24, 1999).]

[This message has been edited by abruzzi (edited October 24, 1999).]
 
There's a split of authority as to whether anyone is required to identify themself on an LEO's demand. Some states view it as an exercise of a person's 5th Amendment rights or say no obstruction/interference/ delay of an officer and uphold dismissals of the charge or overturn convictions; others deem it an obstruction/interference/delay of an officer in the discharge of his duties. If you're in an automobile and are pulled over, you're essentially engaged in an activity whereby an officer can reasonably demand (1) proof of "eligibility" to drive on taxpayer supported public roadways, and (2) confirmation of identity as to whom the officer is dealing with. NCIC checks confirm both.

It's a slightly different story, though, in your own home. There, the LEO's primary interest is preventing injury to those present (LEO especially included) and #2 above - again, safety factors for all present and possible outstanding warrants for previous violent acts. Generally, if there's been a complaint to LE, who responds accordingly, LEO's have a duty to ensure the safety of ALL present and determine whether the individual they're dealing with is legitimately present and if they present a threat to any other people there.

In any event, there are 3 levels of the criminal process that will hopefully protect your individual rights: officer discretion, prosecutorial discretion, and jury discretion. With any luck, you never get beyond the first or second level.

However, bottom line is, you're dealing with folks (LEO's)who have the authority to detain and arrest you under suspicion without ever having to charge you with anything, and you can't do squat about it until you hit the "reasonable" amount of time they can hold you without formally charging you and/or presenting you to a judge. Most cases, that's 48 hours, excluding saturdays, sundays, and holidays. Supreme Court rulings and civil rights violation lawsuits are all well and good, especially given the possibility of getting more than reimbursed for your troubles while waiting out that time period. Problem is, you're dealing with state statutes regarding resisting/obstructing/delaying an officer, and the criminally accused often has to wend his way through the state system before he hits the federal one, and we all know how long it takes to get to the Supremes, if they even agree to hear the case. At what cost do you exercise our rights, then? Your job? Time away from your loved ones? Embarassment at being hauled away in front of the neighbors and rubberneckers? The look on your kids' faces? Police blotters in the local daily rag with a wide circulation? Sadly, the slight possibility of potential monetary compensation years in the future is hardly worth that. The cost is far too great to stand up for yourself; it's been made easier to submit to authority. Something's sick and wrong here. Suggestions?
 
Ray, aren't you confusing assault with battery, assault being an attempt to batter therfore leaving no mark as it was only an attempt to hit and battery a successfull hit. That's how it reads here in the Cal. penal code.

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The beauty of the second Amendment is that it is not needed until they try to take it. T JEFFERSON
Do you really think that we want those laws to be observed? We want them broken. We're after power and we mean it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, 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 breakings laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted-and you create a nation of law breakers--and then you cash in on guilt.

A RAND




[This message has been edited by oberkommando (edited October 26, 1999).]
 
TR, looks like you forgot your history, "must be italian to fight"? I didn't know that Germans were such a passive people.

I once saw a book about German history (way back) and the Greek or Romans I believe said they (the barbarians) were not even capable of art they were to warlike, remember the three roman legions sent to germany and the 27,000 legionairs that died in three days at the hands of the germans? Before firearms, just axes and swords.
 
oberkommando,
Here in Iowa the only charge is assault, there are however, degrees of assault.
The lowest is as you stated is the attempt or threat to touch that would be Offensive, insulting or painful and the aparant ability to carry it out.
The next step up is assault with injury, (what you would call battery)without the intent to cause serious injury.
Next is Assault with intent to cause seriuos injury.
Then assault with a weapon.

We leave the battery under the hood of the car. :)
 
Thanks for clearing this up Ray, My reserve deputy buddy and I often wondered at hearing people being charged on TV with assault when it seemed to be battery, didn't know other states used just the one term. I think your states nomenclature is better, What average person would think that Assault would leave no damage? Probably none.
 
Abruzzi,
Sorry for the late response, but I haven't had a lot of time lately. I got my information from a criminal law update that circulated through the department. I can scan and e-mail to you if you want to see. There was no Supreme Court decision since the one you mentioned, I was in error from "patrol room talk". I discussed this with our two senior patrol sergeants last night, we got the criminal law update out and sort of hashed it out. Generally in Illinois we can demand ID from all occupants of a vehicle and anyone arrested. The case you cited involving the 5th ammendment protection for a pedestrian is still in force. However one of our midnight shift officers got around it just last week when he watched two subjects he wanted to ID walk into the park. The park closes at 11:00 pm so he was legal in demanding ID because he had caught them in the commission of a crime (trespassing).

Demanding ID from someone in their home during investigation of a domestic disturbance is a little stickier. Everyone who was working last night said that they would, and were reasonably sure it'd get trhough the local court. It's a judgement call. You certainly want to determine who everyone is at a call like that, simply to establish if they belong there or not. I guess we'll just have to say what the courts would say. I will bring it up when at the next law review class I attend.
Jeff
 
It looks like there's more fodder for jury nullification in these cases.

Raymond, I have to hand it to you, you apply the laws as written about as well as they can be. Now it's time to rewrite some.

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"In many ways we are treated quite like men." Erich Maria Remarque
 
Ober, the "Italian" comment was in relation not to fighting in general (because, being German, I know how to do that), but in relations to fighting loudly :) as all of the Italians I have know tend to be a bit loud just in conversational level, and get even more so when agitated. :)

I must say that this has indeed been more informative than I thought. First, I've completely ruled out moving back to Illinois, and Wisconsin is on the "black" list (almost ruled out) ... But also because it has given some insight into world of the LEO. So many laws, so little time to make a decision, take action, etc... and not get tangled in some legal red tape. I do have a lot of respect for most of you guys (LEO's) out there - right up to the point where you pass the bar exam :) ... just kidding. Of those here on TFL, I'd say these are the ones we want to become lawyers.

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I know not what course others may take, but as for me, give me liberty or give me death! - RKBA!
 
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