# Detention of reporter - kosher or not? **URL:** \ **Category:** Great Debates\ **Created:** [October 19, 2010, 4:46pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672 "2010-10-19T16:46:25Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2010, 7:52pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/61 "2010-10-19T19:52:48Z")
> [@Euphonious\_Polemic](#): > > I’d like you to point out where I said that, or alternatively, please stop putting words in my mouth. > > thank you. > > ETA: In other words I contend that “citizen’s arrest” is not the same as “arrest by a police authority”. Here is what you said: > [@](#): > > There was no arrest. The police did not detain or arrest anyone. There was a detainment by hired security. Let’s get the terminology straight. I agree that the police did not arrest or detain anyone. But I don’t agree there was no arrest. As the law clearly establishes, there was an arrest. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [October 19, 2010, 7:57pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/62 "2010-10-19T19:57:04Z")
Do you know what OTHER political candidate used hired goons to commit crimes when confronted by their political opposition in the public arena? Palin, that’s who! ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [October 19, 2010, 8:01pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/63 "2010-10-19T20:01:54Z")
“The elements of the false arrest-imprisonment tort are (1) a restraint upon the plaintiff’s freedom, (2) without proper legal authority.” _Waskey v. Municiaplity of Anchorage_, 909 P.2d 342, ?? (Alaska 1996) \*citing \*_Hazen v. Municipality of Anchorage_, 718 P.2d 456, 461 (Alaska 1986). I guess it comes down to what an arrest is - does a false arrest constitute an arrest? If a person was asked if they had ever been arrested, and the only thing in their past was detention by a security guard, which later had been determined in a tort action constituted false arrest-imprisonment, which way should they answer that question? ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [October 19, 2010, 8:08pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/64 "2010-10-19T20:08:23Z")
> [@Bricker](#): > > The standard for arrest is probable cause. > > His admission that he pushed someone is enough evidence to sustain an arrest for assault. A trial may later determine that he was privileged to use self-defense, which is an affirmative defense that, if believed, negates criminal culpability. But that doesn’t remove the probable cause that exists for the initial arrest. Thanks. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2010, 9:56pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/65 "2010-10-19T21:56:11Z")
> [@villa](#): > > “The elements of the false arrest-imprisonment tort are (1) a restraint upon the plaintiff’s freedom, (2) without proper legal authority.” _Waskey v. Municiaplity of Anchorage_, 909 P.2d 342, ?? (Alaska 1996) \*citing \*_Hazen v. Municipality of Anchorage_, 718 P.2d 456, 461 (Alaska 1986). > > I guess it comes down to what an arrest is - does a false arrest constitute an arrest? > > If a person was asked if they had ever been arrested, and the only thing in their past was detention by a security guard, which later had been determined in a tort action constituted false arrest-imprisonment, which way should they answer that question? This is why convictions, rather than arrests, are typically the benchmark by which previous adverse law enforcement encounters are measured. You could as well ask what answer should be given if an officer performed the arrest and it was later found to be illegal. But since Alaska law clearly contemplates a completed arrest the moment the offense is observed and the arrestee restrained, this is an arrest. ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [October 19, 2010, 11:13pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/66 "2010-10-19T23:13:05Z")
Arrest records are apparently part of the public record in most states, and may include detailed information about the person arrested, the incident leading to the arrest and the victim. Some job applications do ask about arrests, even though applicants may not be legally required to answer. [One cite](http://www.privacyrights.org/fs/fs11-pub.htm) states that “If the person arrested is found innocent of the charges, he or she may ask to have the record sealed and claim they have never been arrested.” Would it be your contention **Bricker** that the “arrest” of this reporter would be in the public record in that it would be searchable in police or court archives? Will Hopfinger be required to request that his record be sealed? Or is the “arrest” effectively non-existent in terms of official records? ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [October 19, 2010, 11:17pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/67 "2010-10-19T23:17:43Z")
An arrest by a hired retard for “trespassing” in a public space is effectively no arrest at all, particularly when subsequent investigation by an actual police officer results in no official action whatsoever. If a mentally ill guy chains you to a fence and arrests you for murder, is it a real “arrest”. No it is not. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2010, 11:32pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/68 "2010-10-19T23:32:11Z")
> [@Euphonious\_Polemic](#): > > Arrest records are apparently part of the public record in most states, and may include detailed information about the person arrested, the incident leading to the arrest and the victim. Some job applications do ask about arrests, even though applicants may not be legally required to answer. The [EEOC advises](http://www.eeoc.gov/policy/docs/arrest_records.html) that this practice is generally not permissible, and when it is, it must be accompanied with an opportunity for the indivdual to explain the attendant circumstances and the arrest must have been for conduct that is directly relevant to the job. > [@](#): > > Conviction records constitute reliable evidence that a person engaged in the conduct alleged since the criminal justice system requires the highest degree of proof (“beyond a reasonable doubt”) for a conviction. In contrast, arrests alone are not reliable evidence that a person has actually committed a crime. Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957) (“[t]he mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct”). Thus, the Commission concludes that to justify the use of arrest records, an additional inquiry must be made. Even where the conduct alleged in the arrest record is related to the job at issue, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he\she was arrested and that conduct is job related, **the Commission further concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests**. I’d be extremely curious to learn of any employer that asked such questions on interview forms. Do you have an example? > [@Euphonious\_Polemic](#): > > [One cite](http://www.privacyrights.org/fs/fs11-pub.htm) states that “If the person arrested is found innocent of the charges, he or she may ask to have the record sealed and claim they have never been arrested.” > > Would it be your contention **Bricker** that the “arrest” of this reporter would be in the public record in that it would be searchable in police or court archives? Will Hopfinger be required to request that his record be sealed? Or is the “arrest” effectively non-existent in terms of official records? What typically creates a public record is the booking process, not the arrest. In this case, the arrest won’t be found in public records, so there is nothing to seal. The cite you quote says that the person “may ask” to have the record expunged, but does not say that they are entitled to such expungement as a matter of right. It appears to draw heavily on the law of California. I have not researched California, but in my state, you may also ask, but the judge is not obligated to grant your request. The law provides: > [@](#): > > If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records relating to the charge. Otherwise, it shall deny the petition. In practice, this translates to, “How bad is his prior record?” A clean prior record will result in expungement. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2010, 11:35pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/69 "2010-10-19T23:35:38Z")
> [@Euphonious\_Polemic](#): > > An arrest by a hired retard for “trespassing” in a public space is effectively no arrest at all, particularly when subsequent investigation by an actual police officer results in no official action whatsoever. And how do you square that claim with Alaska law? You are, in other words, making a Diogenes-like pronouncement, declaring that your opinion of what constitutes an “arrest” is more compelling than the actual Alaska law on the subject, and demanding that all readers resolve conflicts between unambiguous Alaska law and your unsupported claims in your favor. I decline your invitation to do so. > [@](#): > > If a mentally ill guy chains you to a fence and arrests you for murder, is it a real “arrest”. No it is not. If not supported by probable cause, the arrest is void. If it is supported by probable cause, then, yes, it is a “real arrest.” ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [October 19, 2010, 11:35pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/70 "2010-10-19T23:35:50Z")
> [@Euphonious\_Polemic](#): > > An arrest by a hired retard for “trespassing” in a public space is effectively no arrest at all In that case, isn’t it kidnapping or false imprisonment? ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [October 19, 2010, 11:45pm UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/71 "2010-10-19T23:45:28Z")
I note with appreciation that MOST news sites are referring to Hofinger being “detained” by private security rather than “arrested”. Common sense seems to prevail. I would argue that the security guys did not have probable cause. There was no “trespass” because the incident occured in an area that the candidate did not rent. It was public space. There was no “assault”. You cannot surround a person, prevent them from moving and then claim assault when he touches you. From the independent witness at [this page](http://alaskadispatch.com/dispatches/politics/7195-witness-reporter-was-rude-but-not-a-threat) : > [@](#): > > Symbol said after Miller fled, she turned and saw Hopfinger trying to get around the security guards who were blocking his way. “They kept pushing him back. He kept saying, ‘I have a right to be here, I have a right to be asking these questions.’ Tony would try to walk forward and they would push him back.” > > Symbol said she did not see Hopfinger push anyone in the time she was watching the confrontation. Does not sound like probable cause for assault to me. The “arrest” is void. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 20, 2010, 12:16am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/72 "2010-10-20T00:16:22Z")
> [@Euphonious\_Polemic](#): > > I would argue that the security guys did not have probable cause. There was no “trespass” because the incident occured in an area that the candidate did not rent. It was public space. Agreed. (Obviously we may learn other facts, but for the moment it appears an uncontroverted claim that the supposed trespass was in the hall, an area the event organizers did not rent and thus did not control.) > [@](#): > > There was no “assault”. You cannot surround a person, prevent them from moving and then claim assault when he touches you. Why is that? Specifically, please. What are the elements of the crime of assault, and which one(s) are not in evidence here? > [@](#): > > Does not sound like probable cause for assault to me. The “arrest” is void. I agree. Drawing from her account alone, there is no probable cause for assault. But in the article [I linked to above](http://www.adn.com/2010/10/18/1507982/questions-surround-use-of-security.html#ixzz12pnSmJyw), we see a quote from Hopfinger himself: > [@](#): > > At some point in those moments, Fulton told Hopfinger he was trespassing. **Hopfinger said he was surrounded by hostile people and shoved someone to get some space.** That is probable cause for assault. He admits the fact that he shoved someone to get some space. What authority are you relying upon to conclude that it isn’t? ---
**Author:** ![SmartAleq](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smartaleq/32/163_2.png) [@SmartAleq](https://boards.straightdope.com/u/SmartAleq)\ **Post date:** [October 20, 2010, 1:01am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/73 "2010-10-20T01:01:53Z")
[QUOTE=Bricker] That is probable cause for assault. He admits the fact that he shoved someone to get some space. What authority are you relying upon to conclude that it isn’t? [/QUOTE] How about that there’s nobody claiming they were shoved by Hopfinger, and no corroborating witness that claims there was any sort of physical contact initiated by him? If I wander into a police station and claim I done kilt someone but nobody can find any evidence that I’d done any such thing, the cops can’t send me willy nilly to court to be tried for a murder they can’t establish ever happened, right? At this point, Hopfinger appears to be doing his level best to be very objective about what happened, including the possibility that, in his perception at the time, he might have shoved someone but I don’t think an assault charge is gonna stick on him if nobody makes a complaint or is able to ascertain that an assault actually took place. The only assault that is undisputed is the one that the security goons made on Mr Hopfinger. Per the video made after the “detainment,” Mr Hopfinger reports to the officer who showed up that he was slammed into a locker during the handcuffing. That’s a pretty clear assault, no? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 20, 2010, 1:21am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/74 "2010-10-20T01:21:05Z")
> [@SmartAleq](#): > > How about that there’s nobody claiming they were shoved by Hopfinger, and no corroborating witness that claims there was any sort of physical contact initiated by him? How about it? What does that have to do with whether or not probable cause exists? If Hopfinger himself says he shoved someone else, we have probable cause to arrest Mr. Hopfinger. Why do you believe that is insufficient? Do you imagine that a corroborating witness is necessary to create probable cause? > [@](#): > > If I wander into a police station and claim I done kilt someone but nobody can find any evidence that I’d done any such thing, the cops can’t send me willy nilly to court to be tried for a murder they can’t establish ever happened, right? Perhaps you should be asking, “If I wander into a police station and claim I done kilt someone but nobody can find any evidence that I’d done any such thing, can the cops arrest me?” Answer: yes. Because they will have probable cause to believe you commited a crime. But you ask if the cops can send you into court to be tried based solely on that evidence, which is a step or two past the determination of probable cause to support an arrest. The answer to that question is no, because the prosecution can’t call you as a witness, and apart from your testimony, there is no evidence of a crime. So the state could not convict you under those circumstances. Which has nothing whatsoever to do with the question of whether they have probable cause to arrest you. > [@](#): > > At this point, Hopfinger appears to be doing his level best to be very objective about what happened, including the possibility that, in his perception at the time, he might have shoved someone but I don’t think an assault charge is gonna stick on him if nobody makes a complaint or is able to ascertain that an assault actually took place. True. But again: now you’re talking about an assault charge “sticking.” That means, I assume, surviving past the probable cause stage and sustaining a case on which the prosecution could successfully convict Mr. Hopfinger. This is different from simply having probable cause to arrest Mr. Hopfinger. > [@](#): > > The only assault that is undisputed is the one that the security goons made on Mr Hopfinger. Per the video made after the “detainment,” Mr Hopfinger reports to the officer who showed up that he was slammed into a locker during the handcuffing. That’s a pretty clear assault, no? Yes. Are you now asking if probable cause ALSO existed to arrest one or more of the security goons? Answer: yes. But, yet again, that has nothing to do with whether or not there is probable cause to arrest Mr. Hopfinger. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [October 20, 2010, 1:22am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/75 "2010-10-20T01:22:26Z")
This is fantastic news for people like me, who’ve tried everything to get rid of people they don’t like but never found the solution. It turns out that any time I’m on private property and someone bugs me, I can start getting in his face and being all “I’m not touching you, I’m not touching you” (I won’t touch him, just block his way) and if he puts a hand on me, I can go “that’s assault!” and handcuff him to a pipe or something. And sure, you could argue that I’m handling the situation in an unwise and deliberately provocative manner, that it’s absurd to confront someone and then do a citizen’s arrest when they try to get around me, particularly when they don’t know who I am and they’re not doing anything dangerous or illegal. But if you make that argument, the next time we’re on private property, I’ll block your way, say you’re under arrest, chain you to a radiator and call the cops. Sucker! ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [October 20, 2010, 1:27am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/76 "2010-10-20T01:27:40Z")
The person could be arrested by civilians for a crime. No crime, false arrest. Nice juicy lawsuit for ist amendment transgressions. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 20, 2010, 1:27am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/77 "2010-10-20T01:27:43Z")
> [@Marley23](#): > > This is fantastic news for people like me, who’ve tried everything to get rid of people they don’t like but never found the solution. It turns out that any time I’m on private property and someone bugs me, I can start getting in his face and being all “I’m not touching you, I’m not touching you” (I won’t touch him, just block his way) and if he puts a hand on me, I can go “that’s assault!” and handcuff him to a pipe or something. > > And sure, you could argue that I’m handling the situation in an unwise and deliberately provocative manner, that it’s absurd to confront someone and then do a citizen’s arrest when they try to get around me, particularly when they don’t know who I am and they’re not doing anything dangerous or illegal. But if you make that argument, the next time we’re on private property, I’ll block your way, say you’re under arrest, chain you to a radiator and call the cops. Sucker! Are you only reading, like, every other line of my posts? Do you need me explain to you why the results of that strategy may not be to your liking, or would you like to try to figure it out by going back over the posts I have made here and re-reading for comprehension? I’m happy to help, but based on your post here, I feel you would benefit from the exercise. Let me know. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [October 20, 2010, 1:39am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/78 "2010-10-20T01:39:05Z")
> [@Bricker](#): > > Are you only reading, like, every other line of my posts? Maybe. Are you not arguing that the guards had probable cause to arrest Hopfinger because he shoved one of them after they confronted him, blocked his way, and told him to leave? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 20, 2010, 1:45am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/79 "2010-10-20T01:45:30Z")
> [@Marley23](#): > > Maybe. Are you not arguing that the guards had probable cause to arrest Hopfinger because he shoved one of them after they confronted him, blocked his way, and told him to leave? I am indeed arguing that. But nowhere am I arguing that this step somehow immunizes the guards from the legal consequences of thier actions. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [October 20, 2010, 2:02am UTC](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672/80 "2010-10-20T02:02:02Z")
> [@Bricker](#): > > But nowhere am I arguing that this step somehow immunizes the guards from the legal consequences of thier actions. Of course not. I wasn’t intending to suggest you were and even on a message board I’m sure you wouldn’t give such shoddy legal advice. Here’s what I do think: it’s absurd to treat this as an assault and a justified arrest when Hopfinger didn’t initiate the confrontation. The detainment started as soon as he began asking questions; they only handcuffed him after that. I don’t think he’s going to sue or challenge his arrest because generally, reporters and papers don’t press charges against people they are trying to cover. And I also think it has to be noted that the tactic of arresting Hopfinger for trying to do his job worked. It doesn’t matter if the arrest is sustained in court or even if he does press charges. [Previous page](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672.md?page=3) [Next page](https://boards.straightdope.com/t/detention-of-reporter-kosher-or-not/557672.md?page=5)