I would say that Hopfinger is an unreliable witness, as he was emotionally involved when he was caught up in the moment. He may well have touched one of the moonlighting military personnel AFTER he was himself shoved (as the independent witness saw). This does not give the security probable cause for assault. I don’t believe you can shove someone, and then claim probable cause for assault if he touches you back. I don’t think the claim would hold up.
Did I read correctly that the “private” security guards were actually active-duty military members?
(Genuine question, as I’ve just been following this story out of the corner of my eye.)
The article mentions that active military can moonlight with permission from their CO.
This article,which is an update of the original article, if I understand correctly, says that the officers did not have permission from their current chain of command. The army is “researching” to see if a previous commander granted them permission.
Also, there’s a Department of Defense Directive 1344.10, from 2/18/08, which states, in part:
Even if they had permission, which they didn’t, they’re not allowed to work for a candidate’s campaign or participate (except as a simple spectator) at a partisan rally or event.
Indeed. If This article also says the two soldiers may not have had permission from their current chain of command to work for the security company.
Not only that, but it seems that the company may have had an expired business license.
Nice.
OK, here’s another question: Is there any requirement in being “lawfully directed to [leave]” that the person doing the lawful directing make it clear who e is and why e has authority to give such a direction? Because it also seems that, when the thugs warned Hopfinger that they were going to arrest him, he asked who they were and they refused to answer. Even if the arrest did occur in the space rented by Miller’s group (despite that it’s undisputed that it did not), that still doesn’t look like a legitimate arrest, to me.
From Bricker’s post #50, it does not look like there is any requirement that the “arresting” person identify themselves , or in fact needs to have any authority whatsoever rather than simply being a “private person”.
The question remains as to whether or not the active duty military guys -who were moonlighting without permission at a job that the military forbids them from doing, and working for an unlicensed company- Whether these guys had probable cause to think a crime was being committed.
A reasonable person might conclude that the real reason that Hopfinger was detained and handcuffed was that he was asking a Republican Senate candidate questions that the candidate did not want to answer.
Actually Chronos, upon further reading, I see what you mean. How was Hopfinger to know that these guys (the moonlighting, active service ones), were actually speaking FOR those who had rented the hall? Presumably only the people who rent a facility, or their designate are able to judge who may or may not be present if the function is deemed “private”.
If a random person came up to me and said “you’re not invited here, you have to leave” Would they not need to show me in some fashion that they had the authority to make such a judgement? They could simply be a crazy person who does not like my shoes.
In other words, can the crime of trespass be occuring before the person is even aware that they are no longer welcome or are on private property? With no notice whatsoever?
According to Bricker’s article, “Miller said Hopfinger blocked his access to a school exit, and he and an aide had to turn back the other way.” If true, would Miller have been justified in shoving Hopfinger?
I don’t know about justified, but I wouldn’t treat it as assault if he shoved him aside in trying to get away. Since this is not the accusation, who cares? The reporter is also a single person, not two or three, and he might not as intimidating as a security guard. But I suppose those are nitpicks. In any event, isn’t this a stupid alternative to answering questions from a reporter?
I doubt any shoving that the reporter did was any more than you might have say in getting through a crowd at a stadium. Let’s be honest, they didn’t cuff him because of any assault, they didn’t cuff him because he posed a physical threat to anybody, they cuffed him because he was asking questions of a candidate that the candidate didn’t want to answer and they wanted to intimidate him. That’s what this is all about. If you’re a hyperpartisan, you can use filtered light and view it through 16 prisms to make it look like there is nothing awry here but when you have candidates intimidating the press by having their hired goons handcuff them, that is very dangerous precedent indeed.
He’s the most transparent candidate? How could the other candidates possibly be less transparent then the guy that refuses to answer questions? I think someone might be lying.
Cite? What probable cause cases are you relying upon to reach that conclusion?
What does a “justified” arrest mean?
The standard needed for an arrest is probable cause. So legally, hearing that someone was shoved is sufficient to establish probable cause.
That does not, of course, suggest that good police work mandates an arrest on these facts. Good police work involves looking beyond the bare minimum of probable cause and deciding whether an arrest makes sense. Is that what you mean by “justified?”
Standard political doublespeak. When you don’t take questions, say you’re transparent. When you have a reporter detained, say you’re a “huge proponent” of the first amendment. I mean, in theory he’s transparent and loves the first amendment. You can’t prove he isn’t since he’s made up his own definitions for all those things.
I understand that. You’ve explained it many times and I’m not entirely dismissing its relevance. But in this situation a discussion of probable cause misses the forest for the trees. Hopfinger wasn’t arrested for breaking the law. He was arrested for doing something the Miller campaign didn’t want him to do, which is ask their candidate questions about something he doesn’t like to talk about. Whether or not the arrest is legal from a technical standpoint, this is harrassment.
Yes. And of course, this is pretty much where post 1 of this thread comes in.
An excellent question.
A moment’s thought will make clear, though, that the standard is simply reasonableness. In other words, you can imagine that it would not be necessary for, say, a homeowner to drive to the courthouse and return with a certified copy of his deed and present that and his passport to an interloper before his command to leave or be guilty of trespass becomes effective.
At the same time, as you say, a lunatic at a movie theater cannot cause a patron to be guilty of trespass simply by ordering him to leave; he has no authority to do so.
At trial, the actual authority of the person to issue the order must be proved beyond a reasonable doubt. What must also be proved at trial is the reasonableness of the interloper’s disbelief in that authority. In other words, the man who comes out of his house at 2 AM in a bathrobe and orders someone off his lawn is very likely to be someone who has the authority to do that, and the trespassing individual’s claim that he didn’t believe the man had the authority is not likely to be believed by the finder of fact.
Similarly, the smelly, unshaven, alcohol breath, cast-off clothes wearing person may turn out to be the theater owner, and may turn out to have had actual authority to order a patron to leave… but the patron’s claim that he didn’t believe it will probably be found reasonable by a jury.
In this case, it’s irrelevant: the reasonableness of Hopfinger’s belief is a matter for trial; it does not affect probable cause.
Then it seems that, rather than continue to try to patch the sinking ship of “no probable cause for the arrest,” resting on such stellar insights as “The arrestee himself admitted the act, but he was an unreliable witness!” perhaps the discussion should focus on that point.
Because if it did, I’d have very little to say, except to nod in agreement.
The arrest was legal. It was also pretextual.
Maybe “kosher” is confusing. To me, kosher refers to those things in compliance with the law of kasruth. So to ask if a detention is kosher is to ask if it was in compliance with the law of detentions.
I agree.
The dictionary pretty much agrees with you, but in my experience people don’t normally use “is this kosher?” that literally. I’m used to the phrase meaning “is this OK, or is something wrong here?”
Perfectly acceptable meaning, of course, but then the response to the first comment about probable cause should be, “I have no idea if it was technically legal and don’t particularly care; I’m pointing out that anyone with a brain can see it was pretextual and exposes the fact that Miller wants to dodge these issues so badly he’ll permit a reporter to be arrested on a pretext instead of answering.”
To which the only possible response is: “Yep.”