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My question would be why did the officer put his hands on the rifle? What was he trying to accomplish? And why did he draw his weapon? It seems to me that the encounter was not handled well at all. He could have simply questioned CJ and, determining that he wasn't breaking any laws, let him go. Instead he's created a huge brouhaha in a state that doesn't take kindly to messin' with people's rights.

JSThane wrote:Whew, ten pages (and counting!) of back and forth.

I sincerely doubt the notion that EEllis is a Law Enforcement Officer.

You may be right. OTOH, as I suspect, he may be one just like the one involved in this case, which would explain why he has labored so diligently to justify his behavior.

JSThane wrote:The thing is, while the courts do recognize the subjectivity of an officer's observations on a stop, and take them into account during deliberations of what is reasonable or not, it remains that the officer has to have a little thing called "articulable facts" to back up Reasonable Suspicion. A man standing on a street corner with a rifle in hand or slung counts as an articulable fact. I, as the responding officer, can articulate that we received a call of a man with a rifle, and I observed a man with a rifle.

Now, if openly carrying a rifle is NOT a crime, then I have an articulable fact that goes nowhere. The fact supports a legal conclusion. Legally, I can do nothing against him. As a gunnie, I may walk up to him to ask what it is, and keep my eyes/ears open just in case he -might- be doing something, but I have absolutely zero justification to detain him, place him in cuffs, take his gun, or search his pockets. If he says he doesn't want to talk to me, and walks away, I can legally do nothing, no matter how rude or confrontational his attitude may be, no matter whether or not I think he's showing "contempt of cop."

Thank you. Thank you for your service. Thank you for articulating the law as you see it and as you've been trained.

jimlongley wrote:Do you ever actually just answer a question presented to you?

Oh, that's easy. No. He's right and everyone else is wrong, and if you don't interpret the law the way he does you're stupid, but he'll do his best to educate you.

EEllis wrote:

baldeagle wrote: Why do you insist on repeating this falsehood? Terry [1] says that, if you have RS, then you can perform a pat down search for weapons. It does not say you have the right to search the suspect thoroughly and completely. That is called search incident to an arrest. [2] It does not say you can seize items that the suspect has in their possession. For those things you MUST have PC unless something is in plain view. [3] There is a world of difference between a pat down for weapons and searching a suspect's pockets for evidence. A custodial search [4] (removing all items from a suspect's pockets can only be done after an arrest has been effected.

[1] http://www.law.cornell.edu/supct/html/h ... 01_ZS.html" onclick="window.open(this.href);return false;
[2] http://www.law.cornell.edu/supct/html/07-542.ZO.html" onclick="window.open(this.href);return false;
[3] http://caselaw.lp.findlaw.com/scripts/g ... 4&page=559" onclick="window.open(this.href);return false;
[4] http://caselaw.lp.findlaw.com/scripts/g ... &invol=800" onclick="window.open(this.href);return false;

The office seized his weapons and searched his pockets. He'd better have articulable PC or the case will be thrown out. Given the video, which begins before the officer's physical interactions with CJ, (and I guess I've asked this numerous times now) what is the PC that justifies the search and seizure?

Because it is true you don't need a warrant which is what you claimed repeatedly.

I have never claimed that. I didn't claim that in the post you quote. In fact I gave you SCOTUS cites for all four cases that address what officers can do without a warrant in the field in the circumstances that surround this case.

EEllis wrote:Terry shows one set of limited circumstances where you don't need a warrant but there are others.

All of which I gave you above - unless you're contending there is one I didn't address, in which case please cite the case and precedent.

EEllis wrote:That I keep calling you on that doesn't mean that I think this stop is a Terry stop just that Terry is the most well know thus easily mentionable exemption. The officer did and does need RS for their stop, which people seem to ignore that I have prob mentioned more than anyone else, but they don't have to tell anyone what their RS is until later. If they did have RS then they can question a person and disarm them while they are stopping them, again if they have reason to do so.

Officers may disarm you during a stop if they feel threatened. The rifle was slung across his chest in the normal manner of carry. At no time did he threaten the officers, which he pointed out. The officer didn't even know about his .45 until he told him about it. Or are you contending that the mere presence of the rifle is threatening? If so, that's an interesting claim, because that seems to be precisely the reason the officer chose to disarm him.

EEllis wrote:After a certain point when a person obstructs officers in an attempt to investigate because of the RS it becomes a crime in and of itself obstruction

Precisely at what point did he obstruct the officers? Please be specific.

EEllis wrote:and while they may or may not arrest for PC, obstruction I mean, as soon as they believe they have that PC then they can search and seize to their hearts content just like they can after the person has been formally arrested. Given the video starts with what could easily be considered obstruction I don't see the legitimacy of claiming illegal search or seizure. The RS led to the contact his actions lead to PC for an arrest. I'm not saying the deck isn't stacked but ignoring the realities as they stand now is not something I'm interested in doing.

So you consider a law abiding citizen asking an officer why they are being detained and disarmed obstruction?

And BTW, he was not charged with obstruction. He was charged with interfering with public duties.

Sec. 38.15. INTERFERENCE WITH PUBLIC DUTIES. (a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:

(1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law;

Please describe where the criminal negligence occurred.

I'm becoming more and more convinced that you are a LEO. (No offense meant to the many fine LEO members of this forum, for whom I have the greatest respect.)

EEllis wrote:

baldeagle wrote:

EEllis wrote:

baldeagle wrote: You're too full of yourself. I've confronted your beliefs (and I'm glad you finally admit they are beliefs) with facts and you've sidestepped answering them.

Sidestepped my rosey red patootie, If the cop had RS then he could do what he did plain and simple. The only way to know is a ruling by a court or the DA thinking the RS might be weak so asking the court to drop or dismiss all charges leading from the stop. Mind you the DA can also drop charges for any number of other reasons but it would make me suspicious, at the least, if he did. RS does not require that everyone who views the event perceive the same level, or any suspicious behavior at all, just that he be able to make the judge believe that a reasonable person could think so. You may want there to be a higher burden of proof but right now there isn't.

So you think RS gives the police the right to seize your property and search your person without a warrant. You're wrong, but you clearly don't think so, so there's not much point in arguing any further.

Terry says Scotus also thinks so.

Why do you insist on repeating this falsehood? Terry [1] says that, if you have RS, then you can perform a pat down search for weapons. It does not say you have the right to search the suspect thoroughly and completely. That is called search incident to an arrest. [2] It does not say you can seize items that the suspect has in their possession. For those things you MUST have PC unless something is in plain view. [3] There is a world of difference between a pat down for weapons and searching a suspect's pockets for evidence. A custodial search [4] (removing all items from a suspect's pockets can only be done after an arrest has been effected.

[1] http://www.law.cornell.edu/supct/html/h ... 01_ZS.html" onclick="window.open(this.href);return false;
[2] http://www.law.cornell.edu/supct/html/07-542.ZO.html" onclick="window.open(this.href);return false;
[3] http://caselaw.lp.findlaw.com/scripts/g ... 4&page=559" onclick="window.open(this.href);return false;
[4] http://caselaw.lp.findlaw.com/scripts/g ... &invol=800" onclick="window.open(this.href);return false;

The office seized his weapons and searched his pockets. He'd better have articulable PC or the case will be thrown out. Given the video, which begins before the officer's physical interactions with CJ, (and I guess I've asked this numerous times now) what is the PC that justifies the search and seizure?

EEllis wrote:

baldeagle wrote: You're too full of yourself. I've confronted your beliefs (and I'm glad you finally admit they are beliefs) with facts and you've sidestepped answering them.

Sidestepped my rosey red patootie, If the cop had RS then he could do what he did plain and simple. The only way to know is a ruling by a court or the DA thinking the RS might be weak so asking the court to drop or dismiss all charges leading from the stop. Mind you the DA can also drop charges for any number of other reasons but it would make me suspicious, at the least, if he did. RS does not require that everyone who views the event perceive the same level, or any suspicious behavior at all, just that he be able to make the judge believe that a reasonable person could think so. You may want there to be a higher burden of proof but right now there isn't.

So you think RS gives the police the right to seize your property and search your person without a warrant. You're wrong, but you clearly don't think so, so there's not much point in arguing any further.

EEllis wrote:

jmra wrote:

EEllis wrote:

baldeagle wrote:

EEllis wrote:How do you know? You can mind read over the internet????? If an officer swears to the accuracy of a report unless there is something to impeach it I would have to go with it.

Well, that's not surprising. Out of curiosity, are you a LEO? Related to a LEO?

Why having trouble shooting down my argument so you want to make a personal attack as to why my argument should be discarded?

If you think that was an attack you're not going to fair very well here.

No but I'm suspicious that he wanted to know so he could try diminish my beliefs without having to bother with confronting those beliefs with logic..

You're too full of yourself. I've confronted your beliefs (and I'm glad you finally admit they are beliefs) with facts and you've sidestepped answering them.

I asked if you were a LEO or related to a LEO for the reasons that mojo84 articulated, which was apparently obvious since he picked up on it.

EEllis wrote:How do you know? You can mind read over the internet????? If an officer swears to the accuracy of a report unless there is something to impeach it I would have to go with it.

Well, that's not surprising. Out of curiosity, are you a LEO? Related to a LEO?

EEllis wrote:

Originalist wrote:A search based on what? Better get a warrant!!!

When I said search I was referring to Terry which also says you don't need a warrant with RS.

A Terry stop gives you the right to do a pat down, not to rifle through the person's belongings or remove their wallet from their pants pocket. And Terry says you don't need PC, not RS, to perform the pat down. You have to have RS. Otherwise the search is illegal.

EEllis wrote:One cop even said that they would just check the guy out and he could be on his way but the guy tried his best to disrupt the police and went to jail for it.

Have you even bothered to watch the video? He was cooperating even when the police became abusive. He never resisted. He got verbally loud, but that was it.

EEllis wrote:

baldeagle wrote:

EEllis wrote:He didn't go to jail for the gun. He went to jail for not cooperating with police when they stopped him. You continue your childish insults if you wish, unless you come up with something factual I'm done wasting my time.

Think about what you're saying. The gun was the pretense for the stop. No law was violated. But, because the citizen asked what law he had violated and by what law they were justified in seizing his weapon, he can now be charged with obstruction. IOW, there really doesn't need to be PC or RS. All you have to do is stop someone, claim you're seizing your weapon for some bogus reason, and when you protest, you've now committed a violation for which you can be arrested.

That's baloney, pure and simple, and you are wrong, no matter how right you might think you are. You can't manufacture a confrontation and then claim that the citizen resisted and arrest them for that. You can only charge someone with obstruction if they are resisting a lawful arrest. The chicken doesn't come before the egg.

That isn't how the law works. I'm sorry you just don't understand. You can be doing something perfectly legal and circumstances can still cause your behavior to rise to the level of RS. One cop even said that they would just check the guy out and he could be on his way but the guy tried his best to disrupt the police and went to jail for it. And no when writing the arrest report for obstruction they still must give RS for the stop. If they cannot then there was no legal police activity for him to obstruct and he's off the hook. RS must come before obstruction but the fact that the gun was legal doesn't eliminate the possibility of RS.

And for the umpteenth time, the RS was what? According to the police it was "rudely displaying a weapon", which is not even a law, much less RS for a lawful arrest. So what was the RS that initiated the encounter?

You seem to think the police have unlimited power to arrest anyone they want, and all they have to do is make up some plausible RS after the fact and they're good to go. Under that standard anyone at any time can be arrested for anything and the law becomes meaningless. The police are our servants, not our masters.

So we're not comparing apples to oranges, here is Texas Law.

Sec. 38.03. RESISTING ARREST, SEARCH, OR TRANSPORTATION. (a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.

(c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.

(d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.

Before an officer can search someone, he has to have effective consent of the party to be searched, unless there are exigent circumstances. Effective consent is defined in the Penal Code section1.

(19) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by force, threat, or fraud;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or

(D) given solely to detect the commission of an offense.

A police officer cannot use force or the threat of force to get a citizen to provide effective consent for a search. When the officer withdrew his wallet, CJ stated clearly that he did not consent. The officer didn't care. He had CJ in handcuffs and he was going to do what he wanted, regardless of what the law says. He even stated that.

EEllis wrote:He didn't go to jail for the gun. He went to jail for not cooperating with police when they stopped him. You continue your childish insults if you wish, unless you come up with something factual I'm done wasting my time.

Think about what you're saying. The gun was the pretense for the stop. No law was violated. But, because the citizen asked what law he had violated and by what law they were justified in seizing his weapon, he can now be charged with obstruction. IOW, there really doesn't need to be PC or RS. All you have to do is stop someone, claim you're seizing your weapon for some bogus reason, and when you protest, you've now committed a violation for which you can be arrested.

That's baloney, pure and simple, and you are wrong, no matter how right you might think you are. You can't manufacture a confrontation and then claim that the citizen resisted and arrest them for that. You can only charge someone with obstruction if they are resisting a lawful arrest. The chicken doesn't come before the egg.

This is a good stop.

[youtube][/youtube]

This is an illegal detention and seizure.

[youtube][/youtube]

Originalist wrote:

baldeagle wrote:I've noticed a conspicuous absence of any comments from our LEO's on this forum with regard to this. I find that interesting.

I am in the LE Community (USAF) and I chimed in.... lol

My apologies. I wasn't aware of that.