How do you assert non-compliance against an illegal police order without going to jail?

[Gary_T]

@watchwolf49

…since when does an SDMB moderator have the right to seize my phone?

I would say since he became a police officer.

[Orwell]

@urban1a

You know, there is a lot of ‘get bail and fight it out in court’ posted here. NOT everyone is in a position to pay bail and pay for a lawyer to fight it in court and may not qualify for public legal either. In these cases, and I think there are lots of the, an officer gets off scot free, possibly violating rights. There needs to be someone to stand up for these people and if it never gets to the court they are SOL.

Defending yourself, even in a traffic case, can be very expensive.

Bob

Well, that’s just the way it is, for the most part. Do you really want to argue with a cop who is armed with batons, pepper spray and a firearm, and who is asserting power, used to intimidating people, and has a great deal of leeway in claiming resistance of arrest?

What you should tell the cop, if you think he is overstepping his bounds, is “I will comply, but I do not consent”. Be polite, and follow orders, but state loudly and repeatedly that you are complying, but do not consent to any search or forfeiture of any items. Having audio or video records will help, as I’m fairly certain you can’t depend on the cops keeping or turning over faithful written or recorded records of what happens. Having an audio or video record unfortunately means doing so covertly with some type of recorder, however.

In general the time to have legal arguments is in court and not on the street.

Good advice, unfortunate though it may be in some cases.

[Martin_Hyde]

@scoots

Glad someone (at least obliquely) made reference to the fact that you’re perfectly entitled to resist arrest. These type of threads always get overwhelmed with people saying accept it and argue later. Whilst this may be the wisest course of action to avoid getting hurt, it’s not strictly speaking entirely correct legally.

If you really are being unlawfully arrested then that is assault which you are entitled to resist using reasonable force - even if that means kicking the shit out of the police officer (if that is what needs to reasonably be done). It’s the same as if any member of the public tried to unlawfully restrain you. It’s a common law right.

The trouble is that whether the attempted arrest was unlawful and whether you used reasonable force would all have to argued out later in court. If you win then you walk away because you were entitled to use that reasonable force. Of course I would stress that you would never actually do this in real life for a number of reasons but you could do it if you were 100% convinced it was an unlawful arrest and if we had a 100% perfect legal system and judges/juries were like robots who always applied the law 100% consistently and accurately.

Actually what you’re saying isn’t that true, in most States you have the legal right to resist unlawful force. This means a police officer, for example, just comes up and starts assaulting you. Or a police officer puts you in fear of your life/limb. You can legally resist that and if you kill the police officer your conviction very well may be thrown out. Check out the case of Plummer v. State, a case from the Indiana Supreme Court in the 1890s.

But in most jurisdictions you do not not have the authority to resist an unlawful arrest in which the officer isn’t doing anything illegal or dangerous to you. A simple unlawful arrest, in which an officer lacked proper PC or made some procedural error, or an error of law, isn’t a “crime” or an “illegal action.” It’s just not lawful, and not sustainable by the court system. Depending on the particulars it may expose the agency or the officer to civil liability.

The legal system is structured such that it’s understood you can’t have “perfect police.” They aren’t lawyers, and aren’t paid like them either. They’re going to arrest people that ultimately they shouldn’t. It’s not legal to “kick the shit out of the police” because he thinks littering is an arrestable offense when it turns out it actually isn’t. At least not in most jurisdictions in the United States.

[Shodan]

[QUOTE=watchwolf49]

…since when does an SDMB moderator have the right to seize my phone?
[/QUOTE]
It says he can on his coffee mug.

Regards,
Shodan

[Omar_Little]

@DataX

That’s what courts are for.

Ding Ding Ding…this is the only answer to the OP’s question.

[LH75]

@scoots

Glad someone (at least obliquely) made reference to the fact that you’re perfectly entitled to resist arrest. These type of threads always get overwhelmed with people saying accept it and argue later. Whilst this may be the wisest course of action to avoid getting hurt, it’s not strictly speaking entirely correct legally.

If you really are being unlawfully arrested then that is assault which you are entitled to resist using reasonable force - even if that means kicking the shit out of the police officer (if that is what needs to reasonably be done). It’s the same as if any member of the public tried to unlawfully restrain you. It’s a common law right.

The trouble is that whether the attempted arrest was unlawful and whether you used reasonable force would all have to argued out later in court. If you win then you walk away because you were entitled to use that reasonable force. Of course I would stress that you would never actually do this in real life for a number of reasons but you could do it if you were 100% convinced it was an unlawful arrest and if we had a 100% perfect legal system and judges/juries were like robots who always applied the law 100% consistently and accurately.

This may be true in the long run, but “even if that means kicking the shit out of the police officer (if that is what needs to reasonably be done” often ends up in serious damage to your person, and can end up in a fatality. Attempting to “kick the shit” out of someone with a gun, a nightstick and many more officers just a quick radio call away is stupid.

[Czarcasm]

@watchwolf49

Remember, folks, 99.99% of police officers are responsible, bound by duty, and an asset to our communities. I’m not saying they’re the brightest, but they are the bravest of us all. In a very real way, it’s their job to “take the bullet” for you … please treat them that way.

Of those 99.99%, what percent will look the other way and/or cover in any way the actions of the other .01%? Bad cops are a small problem-the Blue Wall is the big problem.

[zwede]

@Martin_Hyde

A simple unlawful arrest, in which an officer lacked proper PC or made some procedural error, or an error of law, isn’t a “crime” or an “illegal action.” It’s just not lawful, and not sustainable by the court system.

So what happens after an unlawful arrest where a judge agrees with you that it was unlawful. Will it disappear?

Don’t job applications ask if you ever been arrested? Can you say “no” in this case? What if an employer won’t hire you due to your arrest record? Or if your job requires “top secret” clearance?

[Kenm]

@watchwolf49

Remember, folks, 99.99% of police officers are responsible, bound by duty, and an asset to our communities.

Cite?

Maybe 20% or less, after they hit their quotas. But no one should get out of bed the last day of the month.

[UltraVires]

@scoots

Glad someone (at least obliquely) made reference to the fact that you’re perfectly entitled to resist arrest. These type of threads always get overwhelmed with people saying accept it and argue later. Whilst this may be the wisest course of action to avoid getting hurt, it’s not strictly speaking entirely correct legally.

If you really are being unlawfully arrested then that is assault which you are entitled to resist using reasonable force - even if that means kicking the shit out of the police officer (if that is what needs to reasonably be done). It’s the same as if any member of the public tried to unlawfully restrain you. It’s a common law right.

The trouble is that whether the attempted arrest was unlawful and whether you used reasonable force would all have to argued out later in court. If you win then you walk away because you were entitled to use that reasonable force. Of course I would stress that you would never actually do this in real life for a number of reasons but you could do it if you were 100% convinced it was an unlawful arrest and if we had a 100% perfect legal system and judges/juries were like robots who always applied the law 100% consistently and accurately.

By my last count, only 10 U.S. states still recognize this common law right. And it doesn’t necessarily go so far as “kicking the shit” out of the officer. It is using only that force reasonably necessary to prevent the unlawful arrest. (on preview: what you said)

But this isn’t 1587 England where you duke it out with the local constable. The police are going to arrest you one way or the other. It’s like the Ron White saying “I don’t know how many of them it would take to whip my ass, but I know how many they are going to use. That’s a useful piece of information.”

They have helicopters, swat teams, automatic weapons and the like. You will not win that fight. Politely voice your objection, comply, and call your lawyer when you post bail.

[DrDeth]

@urban1a

You know, there is a lot of ‘get bail and fight it out in court’ posted here. NOT everyone is in a position to pay bail and pay for a lawyer to fight it in court and may not qualify for public legal either. In these cases, and I think there are lots of the, an officer gets off scot free, possibly violating rights. There needs to be someone to stand up for these people and if it never gets to the court they are SOL.

Defending yourself, even in a traffic case, can be very expensive.

While this is true, defending yourself and getting bail on higher charges like Resisting arrest or Assaulting a Police officer will just make things much worse.

[DrDeth]

@zwede

So what happens after an unlawful arrest where a judge agrees with you that it was unlawful. Will it disappear?

Don’t job applications ask if you ever been arrested? Can you say “no” in this case? What if an employer won’t hire you due to your arrest record? Or if your job requires “top secret” clearance?

I dont think they are supposed to ask that anymore. They are only supposed to ask if you have ever been convicted.

True, on a Top Secret clearance, they will look into arrests, but if you divulge them, you will be fine.

[Martin_Hyde]

@zwede

So what happens after an unlawful arrest where a judge agrees with you that it was unlawful. Will it disappear?

I don’t know to be honest, I think it’s supposed to disappear. I know (but can’t find) I’ve heard of a case in which police had a guy’s fingerprints on file from an earlier arrest that was unlawful. They used that information to arrest him on a charge some years later, and they ultimately were disallowed from using the fingerprint evidence and had to release him on the second charge–because they were not legally entitled to have the fingerprint evidence and were supposed to have deleted it but had failed to do so.

Don’t job applications ask if you ever been arrested? Can you say “no” in this case? What if an employer won’t hire you due to your arrest record? Or if your job requires “top secret” clearance?

What job applications ask varies tremendously based on corporate HR policies as well as local and State laws, which can specifically disallow certain questions.

[Lemur866]

There’s a difference between not consenting to a search, or a seizure of your property, and resisting an officer who is searching you or your property, or seizing your property.

If the officer ask you to hand over your camera, you can tell him no, you don’t want to. He can then order you to hand over your camera. Either he has the legal right to seize your camera at that time, or he doesn’t, but either way fighting him isn’t going to establish that, it’s just going to get you arrested. If the cops ask to search your car, you tell them you don’t consent to a search. If they search your car anyway you can complain, but you don’t have the right to physically resist them. Either they didn’t need your consent, in which case your lack of consent is irrelevant, or they did need your consent, in which case whatever evidence they find can be thrown out by your lawyer. But you aren’t going to stop them from searching your car, all you can do is repeat that you don’t consent to the search.

You do NOT have the legal right to resist arrest just because you believe the arrest is bullshit. You do not have the legal right to refuse to get out of your car. It may very well be that the cop doesn’t have the legal right given the facts of your situation to arrest you. That doesn’t matter at the time of the arrest, or the search.

And of course, a cop can always lie about stuff, or plant evidence, or beat the crap out of you, or shoot you in the head. If a murderous cop pulls out his gun and shoots you, and then later claims you reached for your waistband, he’s very likely to get away with murder unless there’s some sort of video or physical evidence or witnesses that aren’t cops.

[watchwolf49]

@Kenm

Cite?

There is no citation for this … Loach has never issued a warning to me … I insist 99.99% of police officers are honest almost to a fault … [adorable grin]

[Duckster]

@Lemur866

And of course, a cop can always lie about stuff, or plant evidence, or beat the crap out of you, or shoot you in the head. If a murderous cop pulls out his gun and shoots you, and then later claims you reached for your waistband, he’s very likely to get away with murder unless there’s some sort of video or physical evidence or witnesses that aren’t cops.

There is a saying, “You cannot cheat an honest man.” Recording the police goes a long way in just how honest police can, and cannot be honest. Many officers are afraid of being found out.

[clairobscur]

@watchwolf49

Remember, folks, 99.99% of police officers are responsible, bound by duty, and an asset to our communities. I’m not saying they’re the brightest, but they are the bravest of us all. In a very real way, it’s their job to “take the bullet” for you … please treat them that way.

There’s no group that includes 99,99% of responsible people or honest people or people who are an asset for the community.

And power corrupts. Especially people who might be attracted to a job for the power it gives them. Police officers need to be closely kept in check.

Note that I’ve nothing against police officers in general, my grand father was one, and my brother is one. I just think that you cannot give them too much of a break without it ending up badly.

And from this external point of view, you guys (Americans) seem to leave them go AWOL way too easily. American LEOs precisely don’t seem to be very willing to “take a bullet” for you, in particular. They seem at the contrary to be very willing to put bullets in you at the slighest hint that a remote danger might conceivably exist (like a 12 yo moving his hand).

(and for the record, even though I understand that an American LEO is more at risk to face an armed individual, I don’t buy that this explains everything, by far. Especially obvious when you compare exactly similar situations, like police facing someone who is actually armed. That’s the general public who’s too accepting of police resorting to violence, even lethal violence, at a low threshold of danger. The public discourse in the USA, even on this leftist board, is incredibly lenient wrt police violence).

[Orwell]

@clairobscur

There’s no group that includes 99,99% of responsible people or honest people or people who are an asset for the community.

And power corrupts. Especially people who might be attracted to a job for the power it gives them. Police officers need to be closely kept in check.

Note that I’ve nothing against police officers in general, my grand father was one, and my brother is one. I just think that you cannot give them too much of a break without it ending up badly.

And from this external point of view, you guys (Americans) seem to leave them go AWOL way too easily. American LEOs precisely don’t seem to be very willing to “take a bullet” for you, in particular. They seem at the contrary to be very willing to put bullets in you at the slighest hint that a remote danger might conceivably exist (like a 12 yo moving his hand).

(and for the record, even though I understand that an American LEO is more at risk to face an armed individual, I don’t buy that this explains everything, by far. Especially obvious when you compare exactly similar situations, like police facing someone who is actually armed. That’s the general public who’s too accepting of police resorting to violence, even lethal violence, at a low threshold of danger. The public discourse in the USA, even on this leftist board, is incredibly lenient wrt police violence).

Absolutely excellent post.

[EdelweissPirate]

Seconded!

ETA: oops—I didn’t mean to rouse a zombie.