Resisting Arrest; Charlena Michelle Cooks

[I'mTheFather]

Intolerable semantics warning!

Here's what I got:




Not "the pregnant woman", or "this pregnant woman in particular"... but "a pregnant woman" which suggests "any pregnant woman".

Semantics aside, it's clear that none of us are going to change the minds of anyone else.

(And I freely admit that was atrocious grammar/sentence structure on my part Also, I'm posting sans coffee)

That makes sense.

 

[HighwayMan]

I have no idea what the details of this particular case are.

However, as Carl pointed out I believe, the arrested person dictates what level of force is used. The police can and will use enough force to overcome any resistance.

 

[davew128]

Yep, just as there is a segment of the population who strongly believe that women and men should be treated equally, neither a man nor a woman should strike another, and women are still equal when pregnant.

So....does Caitlyn have to return her 1976 gold medal because there was no women's heptathlon at the time?

 

[justalayman]

I agree that she was not free to leave and that a detention was warranted, but, an arrest for failing to provide ID was not. Now, they might be able to articulate an arrest for attempting to leave the detention ... not that I think that the DA will file, given the circumstances. The department may be able to articulate a valid arrest on that basis. We shall see.

Sure if she actually attempted to leave. At the time of the arrest she was speaking with her brother on her phone telling him about the cop wanting her name. She made no attempt to walk away.

You say there was a valid cause for detention; what? The cop already stated he saw nothing illegal. If he does not believe anybody broke the law, no rs for detention, correct?

 

[justalayman]

I just watched the video.
I have no problem with the officer's actions.
The officer was polite throughout the encounter.

In viewing this I think Ms. Cook's problems began when she introduced race into the situation and then when she walked away from the officer. The officer was speaking with her. She was not free to leave. He even cautioned her and told her to stop.

TD

Since when is a cop talking to a person cause to detain them? It's been ruled time and time again that unless the cop has reasonable suspicion the person has, is, or is about to commit a crime they cannot detain the person. A person has no legal requirement to speak with the police.

 

[CdwJava]

Sure if she actually attempted to leave. At the time of the arrest she was speaking with her brother on her phone telling him about the cop wanting her name. She made no attempt to walk away.

You say there was a valid cause for detention; what? The cop already stated he saw nothing illegal. If he does not believe anybody broke the law, no rs for detention, correct?

A DETENTION requires very little. There was reasonable suspicion that criminal activity may have been afoot (possible threats, attempted vandalism, who knows?). The detention is easy ... what you do when the person refuses to ID themselves is something else. Whether she was attempting to walk away from the detention or not, I cannot say - it didn't appear to be the case, but, I'm not the one trying to make that case.

 

[justalayman]

if a cop says; there was no crime as far as he sees it ever give rise to there being reasonable suspicion a person they wish to detain having, is, or is about to commit a crime?

Doesn't one have to believe a crime has possibly been committed to be able to form reasonable suspicion a person has committed a crime? Not only was there no "gut feeling" there was a crime committed, the cop specifically stated he believed there to be no crime committed.

At that point it became nothing more than obtaining info so as to be able to file his report with as much info as possible. A person has no legal obligation to aid the officer in that task.

 

[CdwJava]

if a cop says; there was no crime as far as he sees it ever give rise to there being reasonable suspicion a person they wish to detain having, is, or is about to commit a crime?

Not seeing one does not mean that there is no right to investigate further. Reasonable suspicion is a low bar. Whether they met it or not would depend on what the officer has to say on eht matter - something we don't know.

Doesn't one have to believe a crime has possibly been committed to be able to form reasonable suspicion a person has committed a crime?

No. Only that criminal activity might have been afoot. So, only that a crime may have been committed or was about to be committed. At the very least there was a disturbance in public which is a possible crime. Fortunately, a detention does not require much of an evaluation since the bar is so low.

Not only was there no "gut feeling" there was a crime committed, the cop specifically stated he believed there to be no crime committed.

And while that might make any further argument regarding an arrest for 148 to be difficult, it doesn't mean that there was definitively no reasonable suspicion for a further detention.

But, since she was apparently being arrested for 148 solely for not showing ID (not a lawful reason for such an arrest) and not walking away from the detention, this may be a moot point.

At that point it became nothing more than obtaining info so as to be able to file his report with as much info as possible. A person has no legal obligation to aid the officer in that task.

In this instance - a detention - you would be correct. But, that doesn't mean the officer has to end the detention at that instant of refusal, either.

 

[justalayman]

CdwJava;3336207]Not seeing one does not mean that there is no right to investigate further. Reasonable suspicion is a low bar. Whether they met it or not would depend on what the officer has to say on eht matter - something we don't know.

I'm sorry Carl but I simply cannot see how one can get from:

I don't see any crimes here to;

I have reasonable suspicion there is criminal activity afoot.

but, since she did not attempt to leave, it becomes a moot point.

In this instance - a detention - you would be correct. But, that doesn't mean the officer has to end the detention at that instant of refusal, either

if he had no basis for a detention, any continuation of a detention is a violation of her civil rights.

and along with that, has it not been ruled that a person does not have to comply with an unlawful order of a cop? Even if she was being detained, she did not have to comply with the demand to identify herself. Since she could not be compelled to id herself, the arrest was unlawful and as such, her resistance was also lawful. It was in fact the cop that was committing the crime which she had all rights to resist.

granted, it could sway very easily to the opposite but with no justification to demand ID which was his basis for arrest, he could not legally arrest her, which if I recall requires probable cause rather than reasonable suspicion. You cannot have probable cause a crime was committed if the presumed crime is not in fact a crime. Cop is obviously not well trained from what I see.

 

[I'mTheFather]

Did you also notice in the video that the officer's accent sounded like Arnold's? Maybe he's between movies.

 

[CdwJava]

I'm sorry Carl but I simply cannot see how one can get from:

I don't see any crimes here to;

I have reasonable suspicion there is criminal activity afoot.

Because he was still investigating. The requirement for a detention is NOT simply whether a crime had been committed.

but, since she did not attempt to leave, it becomes a moot point.

I would tend to agree.

I brought it up ONLY because it is a possible argument that might be made (that she attempted to leave the detention or failed to comply with an officer's directions while detained). An officer does have a legal right to control a detention and that can include telling someone to get off and stay off the phone. These may not be issues here, but, they could potentially be raised.

if he had no basis for a detention, any continuation of a detention is a violation of her civil rights.

You're assuming there was no basis for the detention. I disagree. I see good cause for a detention, but no cause to compel identification as that is not required under CA law.

and along with that, has it not been ruled that a person does not have to comply with an unlawful order of a cop?

The onus is on the person doing the disobeying. And, in CA, you do not have a legal right to resist even an unlawful arrest. Though, since one might argue that since you can use reasonable force to resist the excessive use of force, an argument can be made that ANY use of force to affect an arrest is excessive force ... the argument with the what ifs becomes circular and dizzy.

Even if she was being detained, she did not have to comply with the demand to identify herself.

Correct. But, that does not mean she could leave or even make a phone call if the officers did not want her to.

Since she could not be compelled to id herself, the arrest was unlawful and as such, her resistance was also lawful.

No. The detention does not end the moment she decides not to ID herself. They could have kept her detained while they returned to speak with the original reporting party to see if she wanted her banned from the property, to leave, sign a C/A for something, or if they could call someone who might be able to identify Ms. Cooks. The detention does not end the moment one of the parties tells the cops she is not going to provide ID.

It was in fact the cop that was committing the crime which she had all rights to resist.

Maybe. As I have previously mentioned, under CA law you have no lawful right to resist an unlawful arrest, only to use reasonable force to overcome excessive force. And then the onus is upon the person attempting to exercise that force to show that their actions were reasonable.

granted, it could sway very easily to the opposite but with no justification to demand ID which was his basis for arrest, he could not legally arrest her, which if I recall requires probable cause rather than reasonable suspicion. You cannot have probable cause a crime was committed if the presumed crime is not in fact a crime. Cop is obviously not well trained from what I see.

If the arrest was for failure to provide ID, then, yes, the officer was in grave error and either missed out on that training or the agency (and/or DA) has been remiss on providing legal updates for a looong time to their officers.

 

[properwhowon]

Resisting is legal

Im sick and tired of cops thinking they have more rights. The Supreme court has already ruled that one can defend oneself against an illegal arrest. In California you dont have to ID if the requirements for Penal code 148 are not met. Lets face it cops for the most part because there are exceptions are just a bunch of C average high school graduates. They feel the need to bully people and intimidate. Well I say we need to start fighting back, the supreme court ruled “Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
These idiots with shields need to get a grip, most people are fed up. If they were to ask me for my ID I would tell them to take a hike, In addition Supreme court Justice Joseph Story wrote “Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

 

[HighwayMan]

" "Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306 [sic].

The above quote is a fabrication. Modern sources citing Plummer have tended to discuss the issue as defense against unlawful force; under contemporary law in most jurisdictions, a person may not use force to resist an unlawful arrest. The Plummer quote has been noted to be a fabrication, not appearing in the text of the opinion."

 

[quincy]

Here is a link to Paul Plummer v. State of Indiana followed by a link to the US Supreme Court decision in John Bad Elk v. US, so people can read what they actually say.

http://www.in.gov/judiciary/opinions/pdf/09281202mpb.pdf

https://supreme.justia.com/cases/federal/us/177/529/case.html

I agree with HighwayMan on what was said in Plummer decisions (or, rather, on what was NOT said in Plummer).

 

[justalayman]

and it should be mentioned that the Plummer decision is from 1893 and is from Indiana so only holding on Indiana, if there is no newer law.


and to newer law in Indiana:

http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf

Barnes v. Indiana

A jury convicted Richard Barnes of Class A misdemeanor battery on a law enforcement
officer, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly
conduct. Barnes contests that the trial court‘s failure to advise the jury on the right to reasonably
resist unlawful entry by police officers constituted reversible error and that the evidence was
insufficient to sustain his convictions. We hold that there is no right to reasonably resist
unlawful entry by police officers. We further hold that the evidence was sufficient and affirm
Barnes‘s convictions.

I suspect it can be inferred from that ruling that in general there is no right to resist what one believes may be unlawful force by the police.

there has since been statute created that speaks ONLY to when a person is within their residence or other specifically noted situations:

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) In enacting this section, the gen
(i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:
(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;
(2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or
(3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.

but that leaves the right to resist as unlawful other than in the specific conditions in the new law.