Wednesday, September 19, 2007

Oh, come on.

Law Dog, you miss an essential point: the talk was open to the public. That means it's a public event. Doesn't matter who sponsored it. You make a decision to open it to the public, you don't have a right to interfere with anyone's First Amendment rights.

So, you are arguing that once a entity opens to the public, they cede all rights and control to the public?

In other words, if a restaurant -- open to the public -- decides they have the right to refuse service to anyone, you would disagree?

Wal-Mart is "open to the public" but if someone starts raising Cain and acting a total oik, Wal-Mart doesn't have the right to kick them out anymore? Is that what you're saying?

If you decide to sell your house, and in doing so, you have an "Open House" to show off the architecture -- Open House being just that, your house is "open to the public" -- your argument is that you no longer can interfere? If someone decides they don't want to leave, you can't throw them out -- because your house was "open to the public"? If someone decides they want to sing all seventy squillion verses of "Henry the Eighth, I am, I am" at the top of their lungs, you can't make them stop -- because your house was "open to the public" and you can no longer interfere with his First Amendment rights?

Rights, I believe, we already established limit the government -- not private citizens?

Are you sure you want to take this tack?

If you decide to open anything to the public, you can decide to close it to the public. Or to any part of the public you see fit. At any time.

I say again, If I pay the piper, I bloody well get to call the dance -- I don't care who is there, I don't care if the entire bloody public is there: they didn't pay for it -- I did.

Stores, restaurants, theatres and every other privately owned business are all "open to the public", yet all maintain the right to refuse service to anyone.

Or are you arguing that they do not, in fact, have that right?

LawDog

53 comments:

dracphelan said...

I wish I knew why people think that the 1st Amendment allows you to say whatever you want, anywhere you want, without repercussions. It says the government can not prevent you from speaking your mind. And, the United States Supreme Court has ruled that freedom of speech does not cover speech that can endanger others (shouting fire in a crowded theater) or that is libelous. The 1st Amendment does not say you can not be kicked out of a venue or be boycotted for saying things people don't like.

William the Coroner said...

Actions have consequences. And as Robert Heinlen said, "there is no free lunch." You want to make a speech, hire a hall. You take away the hall from someone who has hired it, that's THEFT.

Mad Jack said...

If you decide to open anything to the public, you can decide to close it to the public. Or to any part of the public you see fit. At any time.

Not so. Check your discrimination laws. Case in point, if I own a restaurant I can't refuse to serve minority groups.

Anonymous said...

Put your own twist on it there, didn't you, mad jack?
Actually, although you can't discriminate against a minority per se, you can definitely refuse service or eject an individual or a group who is being obstructive and/or disruptive.
And I speak as one who has managed three different restaurants in the far South.
LawMom

Snigglefrits said...

I want to interupt briefly to say LawMom, you seem to be a truly outstanding person.

You're son seems alright too. ;-)

Back to the subject at hand, I have to agree completely with LawDog, both in this post and the one that spawned it.

If this fellow wanted his chance to speak freely, he should have put on his own shabang and when the nice officer says "Hands up and shut up" anybody with a thimble full of good sense should know to say "Yes Sir/Ma'am" and comply.

Want to fight? Do it with a lawyer in court.

reno said...

"if I own a restaurant I can't refuse to serve minority groups."

True, but that is because minority groups are protected under the Civil Rights Act of 1964. Not because you have relenquished your authority by opening it to the public.

If I decide to climb on a table, strip down to my skivvies and perform interpretive dance during your chili cook off, you have every right (and quite frankly an obligation) to have my idiot arse removed from said event. Just because you grant me access to some place doesn't mean that I can just run amuck and act however I please.

Mad Jack said...

It wouldn't make any difference if you'd managed thirty three different restaurants in the deep South or anywhere else, or managed none at all. I didn't put my own twist on it there, LawMom. I read what was written and pointed out the obvious.

In reality the situation goes even further, and these days the only business that is on extremely safe ground for refusing to serve someone is the gun business. Any FFL holder that refuses to serve any person at all is very, very unlikely to have to defend himself and his actions in civil court.

Now, in the example Reno used, if I toss him out for dancing the hula during dinner time and barking at the moon, I must be prepared. Reno could file suite in civil court, and all his attorney has to do is convince the majority of the jury with a preponderance of the evidence that poor Reno has had his civil rights violated. It isn't real likely that Reno would win, but it's very likely that I'd have to hire a lawyer and defend myself.

phlegmfatale said...

I would think that reno doing interpretive dance on a table in his smalls would be an added attraction for a chili cook-off, rather than a repellent. Good for a grin, anyhoo.

Beaker said...

I've enjoyed reading your take on this story. It's nice to know that not everyone is listening only to their emotions and that people can still use thier brains. THANK YOU!

Tolewyn said...

Madjack...in truth I can sue anyone for anything...whether or not the judge in the initial hearings decides it is trial worthy or not is a different story. At least that'sthe way it works in TX, and if the judge decides I am bringin a frivilous suit, I get to pay all of my and my intended victim's court and legal costs.

Phlegmfatale, reno dancing in his skivvies will be an image that keeps me awake at night, twitching a broken out in a cold sweat from fear for at least a week....thanks Reno.

csp schofield said...

Mad Jack; you seem to have missed my comment on LawDog's last post on this subject - or ignored it, so I will repeat myself:

The 1st amendment protects your right to speak. It does not assure that you will have a venue. Obtaining one is YOUR business, and you may not bull your way into someone else's, because that interferes with THEIR right to speak - or to not speak.

The Race laws have nothing to do with this case, as nobody is (yet) claiming that he was silenced because of Race. In any case, anti-discrimination law is based on the idea that one should not discriminate based on factors that the individual has no control over, such as race or sex.

Unless you are asserting that he has been a loudmouthed, egocentric twit from birth?

Tolewyn said...
This comment has been removed by the author.
Digital Falcon said...

Bravo LawDog! Bravo!

I know not a particularly articulate retort from me, but it sums up my reaction.

Mad Jack said...

Unless you are asserting that he has been a loudmouthed, egocentric twit from birth?

Although I have no proof, it seems like the kind of assertion I could get away with.

Any dissenters?

Gay_Cynic said...

There is actually USSC case law on this sort of thing. The St. Paddies Day Parade decision (I don't have a better reference handy at this hour), wherein the USSC handed down that while the St Paddies day parade in Boston (I think, could've been NYC) was (a) a public event, and (b) sponsored by a private organization, and finally that (c) the sponsoring bodies freedom of speech and to express their message untrammelled allowed them to exclude whomsoever they wished from their event. (In this case a GLBT Irish group that wanted to march)...

I ran across it in the great Pride Parade debates when dealing with liberal whiners claiming "we're a ** whine FREE SPEECH EVENT whine ** we can't exclude ANYBODY whine " we'll lose our Free Speech status!!"...

The St. Paddies day decision came in rather handy about then, debating that claim.

I would suggest the same principle applies to this more recent event - that as LD says, that them as pays the piper, calls the tune.

Anonymous said...

Checked the text of the 1st Amendment again, which doesn't seem to have changed in the intervening years since school:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Still appears to apply to Congress, much as I thought.

I agree with The Dog-if you come into anyplace where I am, I do not have to give you an audience for whatever you wish to say. The 1st A. does not guarantee an audience, and other laws regarding trespass, disorderly conduct and the like can certainly override your desires in a private place or gathering.

dfwmtx said...

There are some who think freedom of speech means it's ok for people to scream "fire" in a crowded theatre. They also think "freedom of the press" means you can make lies legitimate by quoting a source who "wishes to remain nameless", and that reporting troop movements is legitimate reporting instead of aiding the enemy.

Hobie said...

People think such things because they are either poorly educated and thus ignorant or so goll durned stupid to be able to understand some rather simple concepts. It is amazing to us, but I grown accustomed to being the smart one in the room and realize that some folks can't learn anything in the time I might be willing to give to their enlightenment.

Now doesn't that sound arrogant? True maybe, but still sounds arrogant...

Hobie said...

Obviously, my great intelligence only being really about average, I'm not able to consistently type well... *sigh*

CDH said...

The bottom line that the self centered egotists can't seem to fathom:

Yes you have rights. So do I. Your rights most certainly do NOT supercede mine.

Checkmate!

Anonymous said...

Oh, sure it makes a difference. Our government has made sure anyone can sue for any stupid reason. I can get a splinter on a neighbor's porch and sue him if I please, even if I was dancing naked on it (thank you, Reno). The point being that law-abiding citizens and businesses and organizations have rights just as the abusers of those rights have the right to sue. They can do that (so can we), and unfortunately we actually have judges who will award them damages-the reason being that we must feel ourselves to be guilty since we didn't counter-sue; you might keep that for future reference.
Point being that you CAN refuse service, and, if you don't have some radical groupies whose day isn't complete until they've yelled "discrimination!" or "racist!" your decision to do this won't cause a ripple.
On the other hand, I have been refused service in a national seafood restaurant chain because I was a different color than the people who ran it. Being that wrong color, I didn't yell "discrimination!" or "racist!" I just went to another restaurant and have never gone back to the seafood chain. Get them where it hurts: in the money.
In my time, I have not just refused service, but had removed i.e. kicked out: a critter who sent his steak back three times then threw it at the waitress and threatened to come back with his Japanese sword and decapitate her; a guy who imagined he was important because he was a prison guard and who was harrassing a quiet mixed race group of gays who just wanted their breakfast, simply because they were gay; mother who refused to stop her child from climbing on the railings above other diners' heads; a famous wrestler who advanced on the St Patrick's Day entertainment yelling "Shake them shamrocks, baby!"; and assorted others for various offenses, none of them having anything to do with race, color, or creed. Their behavior was simply unacceptible. Never had to chuck an American Indian out, which says something for their mothers' idea of how to behave in polite society.
Ok, time to yell "discrimination!" and "racist!"
You just need me to manage your restaurant mad jack; you would either be broke and in jail or you'd be rich and famous.....
LawMom

Mad Jack said...

In my time, I have not just refused service, but had removed

This sounds like a right lively place. The key being that these ex-customers were ejected due to abhorrent behavior.

For my part, I'll take rich and famous. I've been broke, and it's no fun. I've never been in jail, but I hear that jail isn't much fun either.

So... who was the famous wrestler?

Ray said...

I guess i will be the one to go straight to stupid. I don't really care what the kid was saying. He is just a college kid and doesn't know better. Kerry paid the band so he can call the dance. I am down with all that. My question is why 6 or 7 cops have to use a Taser? In my Navy days i used to be a bouncer for several of the bars in Norfolk. I could clear a rowdy person out the bar with no problem. Why couldn't 6 cops escort/drag the kid out of the room and deal with him? An elbow to the chin would have sufficed to get his attention and then he could have been dealt with.

Police officers are trained professionals. They should know that in most situations they are called into, that emotions are running the event. No one wants to be dragged out and most people, especially me, don't like people laying their hands on them. It is only natural that when someone grabs you, you pull away. This isn't resisting arrest or an attack. It is a reflex.

In my humble opinion, the cops should have handeled it better. The kid shouldn't have been tasered because the cops couldn't control him. The cops need to be better tempered and remove the subject from the area.

Anonymous said...

check this out.."An Omaha man was sentenced to jail for trying to access his own home"
http://www.ketv.com/news/14157452/detail.html

KBCraig said...

I believe the responses largely hinge around the mistaken notion that this was somehow "private" because it was sponsored by ACCENT. It was not private. ACCENT is not a private group. It is an arm of the university's Student Government Association.

joelr said...

It's pretty clear that:

1. The sponsors of the speech had the right to ask the idiot to leave. (Whether or not they did isn't clear; that they ordered the cops to haul him away is pretty clear.) It was probably stupid of them to; any politician should be able to handle a heckler. But stupidity isn't necessarily criminal.

2. The idiot resisted arrest. (It's not legal, most places, to resist even an unlawful arrest. It's almost always stupid to do so, even when lawful.) That's a no-no; depending on the nature of the resistance and local law, it can be anywhere from a misdemeanor to a felony.

3. The tasing happened -- according to at least two eye witnesses -- not to get the idiot into the handcuffs, but after he was cuffed, but was refusing to get up.

Unless the witnesses are lying or mistaken (neither impossible, but not particularly likely), that's a no-no.

The purpose of the less-than-lethal weapons isn't to save cops sweat -- say, from hauling somebody out the door -- but to reduce injuries to both cops and civilians, say, from cops getting stabbed by a guy with a concealed knife that they haven't seen, and who they haven't been able to cuff because he's resisting -- without having to club him into insensibility (excuse me: I meant: "apply the standard issue baton in a lawful albeit vigorous manner").

I think the cops involved need to get some remedial kindergarten; that's probably where people should learn that another's bad behavior doesn't justify one's own bad behavior.

As to the idiot, well, as my grandmother used to say, nicht gehelfen.

Anonymous said...

without having to club him into insensibility (excuse me: I meant: "apply the standard issue baton in a lawful albeit vigorous manner").

AKA "Hickory Shampoo"....at least when and where I grew up. Wasnt used often..but when deserved, it was applied with vigour.

AaronE

Laurel Zimmer said...

Just wanted to give you a hat-tip...

I invoked your wisdom in my "Media Law and Ethics" class earlier this morning. Everyone was postulating their theories on the tazing incident, and questions like "Why didn't they pepper spray him - do cops with tazers not carry pepper spray?" and "Why didn't they just wrestle him out?" and "Why did they taze him - they already had him on the ground?!" were flying about the classroom, with all of my oh-so-knowledgeable lefty liberal peers giving their "answers." I finally raised my hand and said, "Well, a friend of mine happens to be a cop, and he said..."

I thought I saw a few lightbulbs go off, so... Thanks, friend, for helping me make a few of my college compatriots think for a change. *grins*

Simeron said...

I could be wrong here but, I believe you can have something open to the public that most definately can say you can't be here or won't be served based on your race.

Let's take LULAC, NAACP, many of the (insert racial description here) patrolman's unions in Houston or any other "minority" themed organinzation as examples.

You can then look at colleges for minorities only, the many clubs and private schools that are also able to say "you can't be here because XXXX" or anything else you can imagine.

As long as I don't take government money, for the most part, I'm fine because, its my money I am using and I can pick and choose who gets to spend it.

In the case of businesses that require government sanction, read licenses, then you might have a leg to stand on provided the person is not breaking other laws, such as being a public nusiance, disorderly conduct or whatever.

Until recently, women were not allowed in the Skull and Bones club and were only included because the MEMBERSHIP wanted to allow them. The Masons STILL do not allow women among thier ranks. These are private groups that are open to the public but are very much allowed to say "No you can't be a member." to whomever they want.

Finally, I would simply add one little thing. A LEO can not tell you to do something illegal and then arrest you for not following thier orders...legally. But, I defer to a simple point of fact or three...

1) The LEO has a weapon and training to use it most of the time which gives them a decided advantage, especially if they are in fact abusing thier power.

2) The LEO normally has the law on thier side and more experience first hand with the law and therefore, you better be REALLLLLY sure you are in the right or your opening up a rather large can of worms.

3) The vast majority of LEOs are, by definition, good folk and won't do something like this. If one does appear to be doing it, chances are you got a FAKE LEO and need to call a real one.

4) As per #3, if you think you are in the right and the LEO is in the wrong, have them call the supervisor to the scene. If you are being REASONABLE and ask for this, I believe most are required to get a supervisor to the scene asap, not immediately, but asap.

5) If you are worried you are getting railroaded, then you can move to a "safer" location such as the police station. I don't think many LEOs would have a problem if you wanted to go to the station before going into custody as most times, if you are going into the custody of the LEO, you're headed there anyway.

But, I am NOT a lawyer, nor do I think many here are and this is most definately a LEGAL issue and question that even THEY have trouble with...sooooo...nuff said.

Divemedic said...

To those of you that think a public University is required to allow free speech:

So a person is allowed to come into class, and interrupt the professor during the lecture, and the professor is prohibited under the Constitution from shushing or expelling said student from class? How much are you going to learn in that school?

I teach classes, and I can tell you that if that were the case, every class would degenerate into discussion about booze, sex, and football, and no learning would take place.

Dan Reisner said...

http://www.countertopchronicles.com/?p=1425

Dan Reisner said...

www.countertopchronicles.com/?p=1425

TBeck said...

There seems to be some confusion about where a taser falls in the continuum of force.

Tasers are used so that the arresting officer does not have to wrestle the suspect, beat them with a stick, or apply chokeholds. The idea is to drop the dork quickly, with a minimum of fuss, and in a manner that is unlikely to result in serious injury. Given said dorks behavior following the arrest, it was clear that he sustained no serious injury.

If I had been present, I would not have thanked the officers for releasing a cloud of OC oil into the atmosphere of an enclosed area.

reno said...

I think the biggest problem that John Q. Public has with the use of taser is just from a lack of understanding. All most people see are the flailing, weeping drama queens that are shown on the evening news. If anyone would like to see what a taser hit looks like without the dramatics, follow the link below.

http://www.youtube.com/watch?v=SFSW44UPgwQ

Laughing, joking and jumping to their feet after the barbs were removed.

Kaerius said...

Tasering someone for asking a political question... at a political questioning... huh? Still, I can't really speak for either side in this case, as I do not know all that preceded the tasering. Seemed excessive though.

Now for a REALLY bad tasering case:
http://www.whiotv.com/news/14170462/detail.html
A woman who gets tasered multiple times, including TWICE after she's handcuffed.

LawDog said...

He was not tasered for asking his question.

He was tasered because he got stupid and started fighting with the cops who were escorting him out of the function.

csp schofield said...

In the several posts on several Blogs that I have read concerning this incident, I keep running into the idea that it is valid behavior to resist arrest if the arrest s unjust.. Two points:

1) Regardless of Right and Wrong, it is quite naturally ALWAYS illegal to resist arrest. Think about it.

2) While you may be, in some circumstances, justified in resisting arrest, rather than fighting in court with lawyers, common sense suggests that those circumstances START at the point when you think that a life may be endangered by your NOT fighting.

If Motor-mouth seriously thought he was being dragged away to be disappeared, he needs medication. Badly. Even if the minions of Bushitler were suddenly going to start acting like the fascists the Loudmouthed Left is so certain they are, they aren't going to START with some college twit who was heckling John Kerry. When Ward Churchill and Rosie vanish under suspicious circumstances, THEN college twits can start worrying.

Agami-Ryu said...

LawDog, I've followed your posts for a while now and as a retired military person, have enjoyed a majority of the subjects and tirades. This, I can tell you. The ahem, gentleman that was arrested, in my opinion just wanted to see how far he could push the system and the people that are there for one purpose, to keep the environment safe and secure for everyone.
In my opinion he was trying to incite a riot, and the nice people in dark blue should have tazed his butt from jumpstreet, slapped the braclets on, and dragged him to the hoosecow.
The gentleman will get his day in court as he deserves and I hope and pray he gets some time in the gray bar hotel to think about the freedom that he exploited that the volunteers in the forces fight to give him.

Dion said...

I completely agree with LawDog!
If a suspect resists arrest there is a great potential for injury to the arresting officer.
There is absolutely no reason for that to happen.
It is the same for a cilivian. If someone is potentially going to hurt you, you need to do the least leathal thing to stop that action.

joelr said...

He was not tasered for asking his question.

You're clearly right.

He was tasered because he got stupid and started fighting with the cops who were escorting him out of the function.

That's at best, unclear. No question -- he was resisting being escorted out, sure. (That said, as a pro, what do you think of the at best thumbfingered attempts to kindasorta grab him? Looks to me, as an entire amateur at that sort of things, as half-hearted and wimpy to the point of almost inviting resistance.) Crime? Well, yeah. While there are times when it may be legal to resist an arrest, this pretty clearly wasn't one of them, and "the cops don't know how to grab a guy" isn't a defense.

So, fine: charge him with that. Fair enough.

He resisted; they took him to the ground, and handcuffed him. Also fair enough -- that's one of the reasons not to resist arrest. A takedown becomes legitimate, and you can get hurt.

It appears that he was tasered, while in handcuffs, because he didn't get up quickly enough to suit the cops. And rather than use sweat and grunt some, they zapped him.

Is that what professional LEOs are given not-usually-lethal devices for?

I hope not.

Divemedic said...

Watch the video again. He was not handcuffed. He was Tazed because he was resisting being handcuffed, in other words, resisting arrest.

Even if handcuffed, a person can still put up a pretty effective fight. I have seen it myself.

ord03 said...

Lest we leave the subject too early, since the number of posts seem to be increasing due to the popularity of Mr. LD his very own personal self, I would like to toss out another comment regarding the tasering incident:

The police there had no way of knowing whether mr. loudmouth was simply what he appeared to be or was acting as a diversion for some other individual / group with more sinister motivations in mind.

The police had a real need to get this guy out as quickly as possible, something 'the guy' did his best to resist, perhaps for his own reasons, perhaps not. The more police it took to remove this guy, the fewer providing security.

Think about it in these days and times.

joelr said...

Even if handcuffed, a person can still put up a pretty effective fight. I have seen it myself.

Maybe, if he's a cross between Steven Segal, Bruce Lee, and Houdini, and has the scriptwriter working overtime for him. If four or five professional police officers can't haul out a tall nerd who has his hands cuffed behind his back, I think there's a problem that needs more than a zap to solve.

As to him not being cuffed when zapped, it appears to me that he was -- although the videos, plura, are not clear -- and at least two of the witnesses said he was.

As to the notion that these officers needed to zap him to get him out quickly so that they would be ready to repel an attack from an Al Qaeda death squad, I think that's kinda, well, lame.

All in all, I think it would have been best if the sponsors of the event had treated this heckler as something for Senator Kerry to handle -- I'd have loved to hear his answer to the loon, m'self, although I'd much rather have heard him quizzed about his Christmas in Cambodia fantasy -- and left it at that. Their choice, of course, but I think part of the deal with this whole question and answer thing for politicians, is that there should be an expectation that not all of the questions will be comfortable ones.

phlegmfatale said...

Thank Gawdess that the speaker at the taze event was John Kerry and not some conservative, else we'd be awash in endless waves of whining about brownshirts and baloney of that ilk.

KBCraig said...

Two things I never thought would happen have just come to pass: John Kerry gained just the tiniest bit of respect from me (although he's still <0), and LD lost some of my respect as a fellow LEO.

It really pains me to say that, because I believe LD to otherwise be the epitome of a Texas Peace Officer, vice Law Enforcement Officer.

This is a classic case of being "Arrested for resisting arrest". It's purely circular logic. There was no underlying arrest for him to resist. No one said, "You have to leave now, or you'll be arrested for criminal trespass." No one said, "Okay, that's it, you refused to leave, so you're under arrest."

Instead, his mic was cut, he made a comment about his mic being cut, and started to walk away, at which time University police made a very poor choice: they started laying hands on him immediately.

If the point of the "hands-on exercise" was to escort him out, they failed miserably. He said several times, loudly, that he would leave. But no, it was dog-pile time: it was a house of cards, and from the first "Whoah! Are you arresting me? Why are you arresting me?" as he walked away from the mic, the officers on scene only had one tool in their bag: the hammer. And he was going to leave in cuffs, arrested, and charged with a crime, by golly, no matter if he was right or wrong.

"Arrested for resisting arrest" is always a bogus charge.

I'm saddened that so many people don't understand that simple fact.

tanksoldier said...

[i]Not so. Check your discrimination laws. Case in point, if I own a restaurant I can't refuse to serve minority groups.[/i]

You can refuse service for no reason at all... and you can kick someone you HAVE agreed to serve out for being disruptive to other diners.

It's not like this was an "open mic" event...

Oana said...

Regardless of the situation in question, I now have a new word in my vocabulary: Squillion. That Henry VIII line made me crack up. Thanks! :D

Ray said...

arrest
verb arrested, arresting

1. To take someone into custody, especially by legal authority.



noun

1. The act of taking, or state of being taken, into custody, especially by the police.

2. A stopping.
3. A halting or slowing down in the progress, development or growth of something; the act of doing this.

Derivative: arrestable
adj

Example: an arrestable offence
Derivative: arrester
noun

Idiom: under arrest

Taken into police custody pending a decision on whether or not there is sufficient grounds to make formal charges.
Thesaurus: seized, apprehended, jailed, imprisoned, detained, arrested, caught, slang: busted, snagged (US), collared, nabbed, booked, sent up the river.

No where in this definition does it talk about handcuffs. Do the police always put handcuffs on those they arrest? On cops they handcuff people for holding and then release them.

Sceneraio: The cops say your under arrest. I say OK, Lets go. The cops then proceed to handcuff me. Me being a person who has extreme claustrophobia, if someone grabs my hands, restrains me or puts my hands behind my back, i will freak out. Have i resisted arrest? I don't think so. I resisted being handcuffed but was willing to be arrested. I am 6'5" and 300 pounds. If i was to be placed in handcuffs i would simply reflex from the claustrophobia and get dog piled like a sumbitch i am sure. It would not be intentional and who knows what injuries i would sustain.

When i was in the Navy i was supposed to be handcuffed and it ended, not fun. 3 of us ended up in Captains Mast with a whole host of charges. We tore up some windows when someone got tossed out the 2nd floor. All purly accidental and all charges were dismissed.

So Lawdog i pose this question: How would you handle someone like me that would freak out if i were handcuffed? I am not trying to be a smartass, i want to know. Has this ever happened to you before?

Anonymous said...

AN entity, son, AN.
Sigh. I dispair.
LawMom

Mad Jack said...

I like KBCraig's post which neatly quantifies the difficulty - well, one of the difficulties - I've always had with the resisting arrest charge.

reno said...

We are really getting off the topic of this post but I have one last question for kbcraig.

You said, "Arrested for resisting arrest" is always a bogus charge." Ok I can go along with that.

However, the Penal Code reads:
§ 38.03. RESISTING ARREST, SEARCH, OR
TRANSPORTATION

Officer: Lets go, you need to come with me.
Knucklehead: F* You! Get off of me. AAAHHHHH They're arresting me. -insert kicking screaming hissy fit- Get off! AAAAAHHHHH!

How is that not resisting arrest,search or transportation?

kbcraig said...

Reno, that "transportation" is an arrest. Any time someone is denied freedom of movement by an officer, they are under arrest. As far as Texas courts are concerned, even a traffic stop is an arrest. Your "transportation" is not only an arrest in itself, it has to involve some underlying arrest for there to be a reason to transport someone.

This incident took place in Florida, so our discussions of Texas code are purely hypothetical.

Still, you shouldn't overlook PC 9.31(c):
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search;
and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.


Walking away (to leave the microphone, in this case), without having had any interaction with the police, is not resisting. The UF officers' first contact was not to ask him to leave, nor warn him to leave or face arrest. The first thing they did was grab him without warning, which was greater force than was necessary to either: a) tell him to leave; or, b) give him a chance to submit to arrest.

LawDog said...

Why do I bother?