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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsCOPS COMPLAIN ABOUT WHITE PEOPLE WASTING POLICE TIME CALLING 911 WITH IRRATIONAL FEARS OF BLACKS
This is from over a year ago - but the more things change, the more they stay the same
COPS COMPLAIN ABOUT WHITE PEOPLE WASTING POLICE TIME CALLING 911 WITH IRRATIONAL FEARS OF BLACK PEOPLE
http://afropunk.com/2017/05/cops-complain-about-white-people-wasting-police-time-calling-911-with-irrational-fears-of-black-people/
We know the way that Blackness is inherently seen as a threat makes even living while Black a dangerous activity, but what does the irrational and deadly fear of Black people actually sound like when communicated in words? On a Reddit law enforcement forum called “ProtectAndServe“, a verified police officer going by the name sf7was started an insightful thread called “People, please stop making my job so difficult” highlighting just that. Officers flocked to the thread to vent about white people panicking at the mere sight of people of color and calling the police.
Sf7was gave this example: “So I’m working last week and get dispatched to a call of ‘Suspicious Activity.’ Ya’ll wanna know what the suspicious activity was? Someone walking around in the dark with a flashlight and crow bar? Nope. Someone walking into a bank with a full face mask on? Nope. It was two black males who were jump starting a car at 930 in the morning. That was it. Nothing else. Someone called it in. People. People. People. If you’re going to be a racist, stereotypical jerk… keep it to yourself.”
Other examples given by former and currently serving officers included a Black person fishing in a community pond and “someone from the Middle East looking mean.”
Tellingly, the thread was centered around the problem of “making [police officers’] jobs so difficult,” not the problem of how white fear is often a death sentence for Black people. Even when self-aware of its own irrationality, whiteness still finds a way to center itself at the expense of Black life.
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Fullduplexxx
(7,859 posts)
ProudLib72
(17,984 posts)Just an idea. Might be crazy. 
EffieBlack
(14,249 posts)
ProudLib72
(17,984 posts)
Hoyt
(54,770 posts)as some white wing gun toters seem to believe is OK.
Racist police, scared white people, white wing racist gun-lovers, trump's admin, etc. -- all sick and disgusting.
EffieBlack
(14,249 posts)beachbum bob
(10,437 posts)EffieBlack
(14,249 posts)
Phoenix61
(17,003 posts)A little island of liberal surrounded by an ocean of evangelical conservative. Not too surprising as college towns seem to lean liberal.
Mariana
(14,854 posts)Some of them know perfectly well the people they're calling on aren't doing anything wrong. They call the police just so the cops will come around and hassle them.
Lee-Lee
(6,324 posts)Had lots of those “suspicious person” calls.
It was kinda fun watching the callers squirm to explain to the brown skinned mixed race deputy who showed up exactly why they called....
First question I always asked was “do you know all the people on this street”
“Well no”
“So how do you know he isn’t a resident or doesn’t have a perfectly good reason to be here”
“Well, he. Umm. Just doesn’t fit the neighborhood”
“What do you mean?”
“Uhhh, well, I don’t know it just seems suspicious”
“Uhh huh, I see”
Then I would go talk to the guy, get the perfectly good reason he was there, and make sure to go back to whoever called and make them feel like a total asshole while being tactful and polite.
Our dispatchers would make it a point to have me go on those types of calls whenever possible because when they realize they are not getting a while deputy to respond to their racist complaints it seemed to make them call less.
EffieBlack
(14,249 posts)But I don’t understand why, given how willing you were to ask the right questions and put the onus on the caller to justify why they thought the young men looked “suspicious,” you so adamantly defended the cops who didn’t subject the Starbucks manager to similar - or any - scrutiny before arresting the two men for trespassing solely on her say so? In that case
I’m not trying to give you a hard time - I LOVE what you did here. Just trying to understand how you can be so pitch perfect here but take such a different approach when looking at the Starbucks case?
Lee-Lee
(6,324 posts)A “suspicious person” call isn’t a report of a crime or an allegation of a crime. It’s a “come check this out please”. And it’s really in many ways a courtesy than a response to an actual crime. We always went because policy was every call got a response.
As such, it’s a far more open situation. I have to get an idea of who the person is and what was suspicious and from there I have to determine if there was anything illegal or potentially illegal that they observed.
Being “suspicious” isn’t a crime, trespassing is.
If that same person had called and said “those people are on my property and they don’t have permission” then that is a specific claim of a crime against them. I don’t have to ask a bunch of questions other than “is that your property, and they don’t have permission to be there?” before I act on the landowners behalf. I tell the person to leave, and if they don’t I remove them and likely at that point arrest.
EffieBlack
(14,249 posts)The manager told 911: "There are two gentlemen in my cafe who won't purchase anything and won't leave." That's not a crime. It's certainly not trespassing. And she didn't allege they were trespassing and she didn't even report the elements of trespassing. For example, she didn't say that people had to buy something in order to stay and she didn't say she had asked them to leave (probably because she hadn't)
When the dispatcher put out the call, she didn't say anything about a trespass. She said, "A group of men are creating a disturbance." (Where in the hell did THAT come from?).
Based on that, the police should have at least done what you did when you arrived on the scene to respond to a report of someone "looking suspicious."
You said repeatedly in earlier posts that cops have no duty to do any investigating or ask any questions when responding to a trespass complaint other than to determine that the manager has the legal authority to tell someone to leave and whether the people are still there But the police weren't responding to a trespass complaint. They thought they were responding to a complaint that a group of men were "creating a disturbance" - which sounds very similar to "some men are acting suspicious."
Yet when you responded to the latter call, you didn't just take the complainant's word for it and just assume the men were acting suspicious. You conducted your own investigation first and, as part of that, you questioned the complainant's basis for believing that someone was behaving suspiciously, determined that their motive was racism and then made a point of making them "feel like a total asshole" good for you!
Yet this seems to go against what you have repeatedly said before - that it wasn't the cops' job to assess the Starbucks manager's motives or to do determine that there really was probable cause to arrest the two men - that if the manager wants them out and they don't leave, they should be arrested. But not only were the men not trespassing when the police arrived - since they hadn't been asked to leave - it is pretty clear that the manager's desire to have them removed was based on bigotry, not the fact that they hadn't bought anything - the police didn't even make a cursory effort to confirm that the manager had a lawful (i.e., non-discriminatory) reason to remove them nor did they bother to investigate whether they had actually been asked to leave before the police were called. And, on top of that, when the suggestion was made by their friend that they all leave, the cops said "No. Too late" and arrested them anyway. And no one seemed to care that they'd been brought there on false pretenses since there was no group of men creating a disturbance at all.
It's too bad the cops weren't as conscientious as you were and didn't make the effort to resolve the situation instead of trespassing and arresting two men who weren't trespassing and certainly weren't engaging in the behavior - creating a disturbance - that the police were called to the scene to address.
Lee-Lee
(6,324 posts)Last edited Wed Apr 25, 2018, 09:27 AM - Edit history (1)
What was dispatched and what was told to the cops when they arrived by the manager was obviously different. Lacking body camera footage to review we can only go off reports.
So maybe a better analogy would be I get dispatched to a suspicious person call but when I arrive t e caller tells me “those people are on my property and I don’t want them there”. At that point it’s a trespassing call now, regardless of how it was dispatched.
It’s not uncommon for what is dispatched to not match what is found when you arrive. Especially in big cities where one person may be answering the 911 call and they are typing on a screen that a dispatcher who may not even be in the same building is is then reading and dispatching.
So yes, the cops were responding to a trespassing complaint by the time they talked to the men. It became that as soon as the manager told them she wanted the men to leave. They don’t get to say “well this was dispatched as a disturbance so I can’t do anything about trespassing”. If the complaint changes from when the dispatch is made to when you talk to the complainant then you act on the latest inform.
I wish we had body camera footage to review to see just what she told them when they arrived.
And, once again for you, trespassing is a crime. “Suspicious” is not.
You are right that the men were not trespassing when the police arrived since they had not yet been asked to leave. But then the police told them that they needed to and they refused at that moment it became trespassing. From all accounts there was about a 5-6 minute period where the men were being asked to leave by the cops and refused. During that period they were trespassing.
The cops cannot refuse to enforce a trespassing law becuse they think the manager may be bigoted. It’s not in the law that the cops get to make that judgement. They don’t have that written into the law. State law in PA doesn’t have a provision that says trespassing is refusing to leave after being asked “unless the cops think the person asking may be a bigot or the reason is unfair”
The only elements needed to judge or investigate if the persons are trespassing is if the person has the authority, the manager did, and if they have been asked to leave. Being asked to leave includes the police telling them, and they did tell the men so they were sure that happened as they did it themselves, regardless of if she had done so or not.
That’s it. That’s all the law requires and indeed it’s all the law allows the cops to check. They can’t refuse because they question the managers motives or sincerity or if she applies her rules fairly or arbitrarily. They have to act on the complaint at hand.
As for the friends suggestion that they leave, it will depend on when he arrived. I know in NC I was not allowed to “unarrest” someone. From the moment I told the person they were under arrest I had to then take them into custody and only the Magistrate or Judge could release them. If I said “you are under arrest” then I had to take you in. So depending on when in the process they told the friend “too late” that may have been legally true, it may have been too late for that option. I would need a more specific timeline to judge.
Now, if this were a case I was called on what I would have done is made sure that in my report I noted that while the call was for a disturbance I found no disturbance upon my arrival, that many witnesses said there was no disturbance, that many witnesses inside said that they also had not made purchases and were not asked to leave but those patrons were white, and that the men although refusing to leave were calm and did not act in any way violent or cause any problem up through the arrest process, and that they had not been asked to leave prior to my arrival and could not understand why they were asked to leave. Because while I would have to legally act on the complaint at hand I could make sure my report reflected the facts that would support the affirmative defense of being in a public area lawfully. And make sure my report would also support a complaint to the authority that enforced the cities non-discrimination policy and would also be good for them in a civil court. And I would have made sure the men knew that was all in the report, how to contact me as a witness, and what avenues to take if they felt the manager was racially biased in calling us but that we had to act as we did based on the law.
I would have also explained that to them when asking them to leave that if they did without forcing the issue to an arrest that I would make sure the report reflected the entire circumstances so they could act on it and wouldn’t have to refuse to leave and get arrested to make the point.
A friend who went through BLET had a case like this, but more blatant racism than this. It was a restaurant owner who demanded a group of black customers leave for being loud, and when the cops arrived he said “I want these loud ass coons out of here they are bothering everyone else”. Of course he was too much a coward to have asked them himself.
Legally my friend had to ask them to leave. They did leave instead of refusing, so nobody was arrested. But then in the parking lot he got all their statements (and really pissed the racist owner off by having a cop car with a bunch of mad black folks standing around it right out front, he asked twice for them to move in back to stop scaring away customers). He put every detail right in the report, including the owners racist statement. He then told the diners that they would probably want to get a copy of the report.
He filed his report, then when his shift was over somebody anonymously dropped a tip to every newspaper and TV station in the area that they may want to get a copy of that report number. By the time he woke up to go back on shift about 4:30 that afternoon it was starting to hit the fan for that restaurant owner. I just dug in trying to find any copies of the reports from them but mid-90’s local news stories are tough to find out of small towns, the newspaper there wasn’t online yet or if they were anything from those years is not now and the TV station that covered it doesn’t have stuff that old. But he was closed in a few months for “retirement” after losing 70% of his business when it came out.
EffieBlack
(14,249 posts)accusation and they DID have an obligation to conduct at least a cursory investigation before hauling these men off to jail – just as you did before even considering taking seriously an allegation that someone was behaving suspiciously.
I certainly agree with you that “the cops cannot refuse to enforce a trespassing law because they think the manager may be bigoted. It’s not in the law that the cops get to make that judgement.” That’s true. But this isn’t about whether or not the cops should have “enforced” the trespass law. This is about whether the cops should have first determined WHETHER the trespass law had actually been violated before making an arrest.
The police DO have the discretion and power – and, indeed, the obligation – to make sure that the people a complainant is accusing of a crime actually broke the law they’re being arrested under. If it appeared that the manager accused the men of a crime, not because they actually broke the law, which they hadn’t, but because she is biased against black people - as was readily apparent here given the disparate application of the so-called rule - the police do not have to – and shouldn’t - make an arrest.
Do you really believe the police at Starbucks were prohibited from acting in the responsible manner that you did on your call? Just as you didn’t act like a potted plant, but used your discretion and common sense to read the situation and, as a result, inferred that the complainant likely didn’t really have grounds to think the men were suspicious, what if these cops had used THEIR discretion and common sense to read the situation and confirm that whether the manager had grounds to accuse the men of trespassing beyond just saying they did - especially given that she was making this accusation against the only black people in the place while several white people who were "guilty" of the same "crime" were not asked to leave?
If, for example, when the police arrived at Starbucks, the manager said, "I want those two men to leave because they're wearing sneakers and we don't serve anyone with sneakers on, so they're trespassing." Should the police have gone straight over to the men – the only black people in the place - and ordered them out of the restaurant and arrested them if they refused to go - even if they couldn’t see their shoes under the table, so they didn’t know for sure if they had broken the rule or not, but they could see that half of the other customers, all white, were wearing sneakers? Or would it have been appropriate and advisable for them to ask the manager a few more questions about the no-sneakers rule she was claiming, to ask why she was applying the no-sneaker rule to all of the black people but none of the white people who were also wearing sneakers, and to confirm that the men were actually wearing sneakers?
What if, instead of just taking her word for her claim that the men were trespassing - since they weren't trespassing at that time anyway because they were never put on notice and not asked to leave – the cops subjected the manager to a mild cross-examination like the one you gave to the complainant and asked her a couple of questions, just like you did. For example, "Does the store have a policy that no one can stay if they don't buy anything?" Or "Did you tell them they had to buy something or leave?" Or "Did you ask them to leave?" Or "Did everybody else in here buy something?" Are you saying that would have been inappropriate?
And what if, instead of going over to the men, telling them the manager wanted them out, ordering them to leave and threatening that, if they didn’t leave immediately, they’d be charged with trespassing and arrested, the officers treated the men with the same respect that you treated the men you encountered? Perhaps asking them if they knew that Starbucks had “no buy no sit” rule and ask them how long they were planning to stay and if they were planning to buy something while they were there. If they said no, then the police could have simply issued them a ticket, rather than arresting them, handcuffing them and marching them off to jail like the criminals they weren’t.
What if the complainant in your situation told you the men weren't just "suspicious," but they were annoying her by making too much noise and she wanted you to arrest them for disturbing the peace or disorderly conduct, even though other neighbors said the men were doing nothing of the kind? Would you have gone over to them and ordered them to quiet down and threaten them with arrest if they didn’t? After all, that woman had every legal right to accuse them of disturbing the peace or engaging in disorderly conduct if they were truly annoying her – and aside from the fact that she was white and they were black, you had no way of knowing that she was motivated by racism and, as you’ve said, it's not your job to analyze someone's views on race. And, unlike the Starbucks manager, she’s a private citizen on private property and, thus, isn’t prohibited by law from discriminating against these men on the basis of their race.
We’ve surely beaten this dead horse into the next life, but one of the reasons I am pushing back on you so hard is that your “Arrest Them Now, They Can Sort it Out Later"approach you’re taking is very dangerous. It feeds directly and perfectly into the hands of bigots and others who don’t want to follow civil rights laws. Expecting our institutions – in this case, the police – to mindlessly follow and enforce the will of bigots as if they have no discretion, no say, no ability to do anything but go along with whatever and, worse, act as an instrument and enforcer of their bigotry and leave the discrimination victims to sort everything out AFTER the damage was done to them is the very definition of institutional racism.
Under this approach, if I’m a restaurant owner who hates and doesn't want to serve black people, civil rights laws be damned, I don’t have to even bother to post any “Whites Only” signs or deny them service. All I’d have to do is call the police every time a black person sets foot in my restaurant and, when the police arrive, accuse them of trespassing because I don’t want them there or because they’re violating some rule I just made up. If the police truly have no choice but to arrest them without question or thought, just because I said so, I can make sure pretty quickly that black people stop coming to my restaurant in very short order. And saying they can sue me later doesn’t work, since black folk – or any other target of discrimination – just don’t have the time, resources or energy to hire lawyers, go to court and try to win a case every time they’re denied a cup of coffee. After awhile, we’d just avoid certain places because it’s not worth the trouble and limit our choices to only those "public" accommodations where we're "welcome." And then, we’re right back in the Jim Crow era.
Fortunately, I think you are in a distinct minority when it comes to defending this position (and I don't think your defense of this position means that you support or condone racism and discrimination). The very fact that the Philadelphia DA refused to press charges, the police chief and mayor are apologizing their asses off, the police department is doing an internal investigation, and Starbucks is not only apologizing but is shutting down 8,000 stores for “anti-bias training,” is pretty solid evidence that the police screwed up by arresting someone just because a racist store manager told them to. And I have no doubt that a civil jury will disagree with your position and award the men some rather big bucks – if the department doesn’t settle with them first in order to avoid a humongous verdict a jury will surely award after finding that the police violated all sorts of policies, procedures and protocols by making an arrest just because a racist white store manager pointed at two innocent black men and screamed, “TRESPASS!
Lee-Lee
(6,324 posts)You seem to believe that the police have the authority to double question the manager to judge if she was enforcing a policy fairly.
They don’t.
They could have asked those questions, but even if she said “I don’t always enforce it the same” it wouldn’t matter one bit. That doesn’t negate the facts at hand there. They could have said they made up and implemented the “no buy no sit” rule on the spot right then and it wouldn’t have changed the elements of the crime.
You seem to think that if the police question the motives of the manager or anything else that changes the elements of the crime, or allows them to not enforce the law as written. It doesn’t.
To fit with my previous analogy, if someone called for a suspicious person and when I got there they said “those people are fishing in my pond and trespassing” it wasn’t my place to say “well do you let other people fish there? Do you only call when black people fish there? What are your rules for fishing in the pond and do you enforce them fairly?”. It wouldn’t be my job to ask that because the answers would not matter, the law said I had to act on the trespass. Even if that person only called on black people fishing and never called on white people. Even if there was a white guy right there fishing too.
Could they have handled asking them to leave better? Probably. I would still love if there was body cam footage to show the entire interaction. But it doesn’t matter how nicely or rudely you tell someone they must leave, if they refuse to leave it’s the same.
The store manager totally jacked up. The charges didn’t get followed trough on because the comparing victim, Starbucks, decided that they were not going to follow through on the complaint and withdrew. That wasn’t a reflection on if the cops made the right decision in the moment. I have made shoplifting arrests and domestic violence arrests and all other kinds before where the complainant later decideded not to follow up on the charges so they were not prosecuted. That doesn’t mean my arrests were wrong.
Was the call wrong? Yes.
Was the managers claim discriminatory and racially biased? Absolutely
Despite all that, did the offense of trespassing still occur when the men were asked to leave and did not? Yes.
What happened was the law was abused. And the police were put in a position where they were stuck having to enforce the law for a racist person, because the law is still the law even when abused.
Does it suck that the law can be abused like that? Absolutely. People manipulate and use the law in manners that are despicable all the time.
But that doesn’t allow the officers on the scene to refuse to enforce the law as written. You seem to think the police are allowed to say “I think your a racist so I’m not bothering to act on your complaint”. They can’t. I think that’s your Hangul here. No matter what amount of questions they asked the manager, no matter if they thought her actions were bigoted, no matter if they thought her enforcement of rules was arbitrary or unfair they still had to act on the complaint. The elements of the crime, remaining on the premises after being asked to leave, are not changed by any of that.
Now, there are absolutely other remidies under the law for the persons who are discriminated against like this can have under the law? Absolutely! But those would be the same had they left when asked or if they had refused and forced the issue to an arrest.4
EffieBlack
(14,249 posts)wants it enforced against the black people and not the white people who are all engaging in the same behavior? And you would go ahead and arrest just the black people and not the white people, knowing that she's applying the law differently to the black people than to the white people? And you still think that the cops' obligation to enforce the law requires them to enforce the law "on behalf of a racist person," but you don't think the police also have any obligation to enforce the law on behalf of members of the public and are not required to allow themselves to be used to enforce racial discrimination?
Really?
OK.
Fortunately, your view is neither well-grounded in the law nor is it the policy of most police departments - at least any that have advanced beyond Chief Gillespie's tenure.
But I've done my best.
Lee-Lee
(6,324 posts)First, they were not arrested at the insistence of the manager.
They were asked to leave at her request.
They were arrested for refusing to leave when asked by the police.
That’s a big difference. It may not be a big distinction in your eyes, but legally it is.
Now yes, I would have asked them to leave even if she had said she was unfairly enforcing policy. And I would have made sure that her admission the rules were arbitrarily enforced and anything else she said was in my report so that it was on record when the men went to seek legal remedy for the ejection.
Like it or not, it’s not the role of the street cop to judge a person degree of racial bias and then choose when to enforce the law for them or not.
If a store owner let white people who shoplifted off with a warning but called the cops on any black shoplifter we couldn’t say “well you let the white person go so we are not going to act on this call either”. All we could do was see if the elements of the crime of shoplifting existed and if they did then act on it.
If a person who owned a pond let white people fish there and called the cops saying every black person who fished could we refuse to enforce the law? No.
Does it suck that racist people can choose to make legal complaints differently for different people based on race? Absolutely.
EffieBlack
(14,249 posts)That's some pretty circular reasoning you got going there.
They were asked to leave by the police because the manager told them they were trespassing. They didn't do a thing to confirm that the manager had the legal right to make them leave.
You didn't respond to my hypo earlier, so I'll pose it again, along with another one.
1. If the police walked in to the restaurant and the manager said, "I want those two men out of here because they're wearing sneakers and we don't serve anyone with sneakers on, so they're trespassing" and the police couldn't see the men's shoes but could see that several white people in the restaurant were wearing sneakers but weren't being asked to leave, you're saying the police would be required to go up to the men, order them to leave and, if they didn't, they would have no option other than to arrest them for trespassing without asking any further questions because the owner wanted them to leave?
2. What if the police went into the restaurant and the manager said, "I want those two men out of here because it's my job to keep this restaurant clean and safe and reputable studies show that black people are dirty and dangerous, so they need to leave." Would the police be required to order the two men out of the restaurant and arrest them if they didn't leave because the manager wanted them out or could they refuse to arrest the men because it was clear that racial discrimination was the motive for the manager's trespassing accusation?
Lee-Lee
(6,324 posts)In some states maybe in the second example the police would have cause to not enforce, depending on how the Stars anti-discrimination laws are written and if they are written in a way that allows that kind of negation of the rights of a property owner. But that’s a maybe, and would depend a lot on case law.
Essentially when it comes to trespassing laws I am not aware of any states that have the laws written to allow the police to second guess a property owners reasons for trespassing a person or persons. There are plenty of anti-discrimination statutes that allow action to be taken after the fact if it was done in a discriminatory manner, but none of them render the trespassing laws void on the spot on the judgement of the cops on scene.
As I have said before, that doesn’t mean that the property owner isn’t violating another law. If the state or city has an anti-discrimination law it may violate it or it may violate federal laws. However, that doesn’t cancel out any trespassing statute.
I know it doesn’t seem fair or just, and perhaps your right.
The person wronged by the discriminatory act has act still has recourse against the property owner or manager if the act violated anti-discrimination laws.
I will go back to my example of a landlord. Let’s say a landlord has an apartment building. He allows white tenants to often pay late and have pets in violation of the lease, but any black tenants who are a little late or violate the same rules in the lease he immediately moves to evict.
Even though the landlord is being discriminatory in how he enforced the rules, if he uses the proper procedures to effect the eviction then the police still have to serve the eviction. The eviction is still legal, because all the grounds for an eviction were legally met.
It doesn’t matter if he evicted the person for having one dog and the white guy across the hall has 12, when the police are called to serve the eviction they must. They ant question the landlord about why he is evicting the person or why he didn’t evict someone else for the same reason.
However, that doesn’t mean the landlord was totally legal. If he evicted them in a way that showed racial bias and they can show that he did then there is a case for them to go to civil court or file with the proper government agency.
But that doesn’t mean the cops were wrong to do the eviction when they did.
One thing you may not be considering here. If you want the cops to be allowed to judge if every complainant has motivations that are “pure enough” in a complaint, well that’s a very, very subjective thing. Where does that line get drawn? Who gets to second guess the cops? And if you allow them that leeway what’s to stop them from using it the exact opposite of how you want, to dismiss complaints by minority citizens against white people based on the same standard that they get to make up? Let’s say a group of people in confederate flag shirts come into a black owned restaurant known for its activism and start saying a bunch of racist things. Not disruptive or loud, but at normal tones. What if the cops come and say “I know I’ve been in here and heard people use the N word who were black and you didn’t kick them out, and you allow other forms of controversial speech in here, I see people wearing Malcolm-X shirts that are a political statement, so I can’t kick them out because you are not evenly applying the rules”?
That’s the kind of judgement call your looking for cops to make and be empowered to, and you have to think about how anything like that may be exercised in a way you don’t like and not just the way you want it to assuming everyone will have the same subjective standard you do.
EffieBlack
(14,249 posts)Cops make these kinds of judgments all the time. It's called "establishing probable cause." See below.
Maybe you're looking in the wrong place. It is well-settled federal law that cops not only are "allowed" but are required to "second-guess" property owners if they - the cops, not the property owner - believe there's not probable cause to make a trespassing arrest, no matter what the property owner says.
As a law enforcement officer, you no doubt know that, before making any arrest, the Fourth Amendment REQUIRES the police to determine that probable cause for the arrest exists. E.g., Rogers v. Powell, 120 F.3d 446, 452 (3d Cir.1997). What constitutes probable cause can vary from case to case, but in defiant trespass cases in Pennsylvania, the police must confirm the existence of all of the elements of the crime of defiant trespass set forth in 18 Pa.C.S.A.§3503(a):
1. knowing that he is not licensed or privileged to do so
2. enters or remains in any place
3. as to which notice against trespass is given by:
(i) actual communication to the actor;
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders
As I've noted before, the statute contains several "affirmative defenses" to the crime, which the defendant can raise during trial. One of the affirmative defenses to defiant trespass is that "the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises." 18 Pa.C.S.A.§3503(c)(2)
Notwithstanding the claims by some here that this affirmative defense is irrelevant to the arrest, the courts have clearly stated otherwise. In fact, the courts have expressly recognized that the existence of this affirmative defense is critical to the determination of whether the police had probable cause to make an arrest.
For example, the U.S. Court of Appeals for the Third Circuit, the federal appellate court with jurisdiction over Pennsylvania, and the U.S. District Court for the Eastern District of Pennsylvania (which includes Philadelphia) have explicitly held, in several cases, that, before making an arrest for defiant trespass, police officers MUST determine that probable cause exists to support an arrest and, if the potential arrestee could later raise an affirmative defense of compliance with all lawful conditions, the police must consider that defense before making the arrest. If they don't consider it, they have not established probable cause and the arrest is illegal. And if they consider it and believe that it's a valid defense, they also lack probable cause to make an arrest.
"The standard for probable cause turns not on the actual guilt or innocence of the arrestee, but rather, whether the arresting officer reasonably believed that the arrestee had committed the crime." Radich v. Goode, 886 F.2d 1391 (3rd Cir., 1989) The dispositive inquiry [is] whether an officer, 'acting reasonably ... under the facts and circumstances' known to him, would conclude that the affirmative defense applied. If the answer was yes, then probable cause did not exist.
In other words, before the police can make an arrest for defiant trespass, they MUST determine whether or not one of the affirmative defenses set out in the statute - in this instance, the compliance with all lawful conditions defense - would apply. If the suspect claims to be on the property lawfully and not to have violated any lawful condition of being on the property - which these men and several other people in the place did - the cops were required by federal law to consider their claim before making an arrest and their failure to do so meant that they did not have probable cause and, therefore, the arrest was illegal.
Where a potential arrestee argues, prior to arrest, an affirmative defense that is specifically included in the statute setting forth the elements of the crime, then an officer must act "reasonably ... under the facts and circumstances" known to him or her to determine whether that affirmative defense applied. Holman v. City of York, PA, 564 F.3d at 230 (3rd Cir. 2009)(quoting Radich, 886 F.2d at 1396), 96 F.Supp.3d 523 (E.D. Pennsylvania 2015)
Therefore, it is indisputable law that police officers do indeed have an obligation - an unequivocal one - to make a judgment about whether an trespass arrest is warranted and whether an affirmative defense might be applicable. If they fail to do that - i.e., if they just arrest someone because a manager said so without determining that the condition on which the manager is basing their complaint is valid, they have failed to establish probable cause and the arrest is, per se, illegal.
When applied to the Starbucks case, federal law required that the police officers confirm that the sole rationale the manager gave for wanting the men off of the property - the alleged No Buy No Sit policy - was a lawful condition for entry and remaining on the property. This was particularly necessary since several people told the officers that there was no such condition and, obviously, in order for a condition to be lawful, it must actually exist. When it became apparent to the police officers that the two men, along with several other people, were questioning the existence of this condition, the officers were legally required to determine whether there was really such a policy and whether it was a lawfully applied (e.g., not applied in an illegally discriminatory manner). As we all know, they didn't do so, relying instead only on the manager's assertion of a condition. Therefore, they failed to find probable cause under the law and the arrest was illegal.
This should put the argument to rest.
BumRushDaShow
(128,894 posts)
DiverDave
(4,886 posts)My ex and I had just bought a house in Delaware, a working class neighborhood.
We hadn't been in the house 3 days when a well dressed black couple knocked at the door. I answered it and noticed they had a page printed with a picture and description of our house. They asked politely if the house was still for sale.
I told them we had just bought the house, they thanked me and left.
My crazy (and I don't use that term lightly) ex
FREAKED THE FUCK OUT. Said they were trying to rob us. She called the cops. When they arrived I told them the story and just left.
No police report.
I sure am glad we didn't have a gun. She probably would have shot them.
I'm so glad to be away from her.
cyberswede
(26,117 posts)
Link to tweet
@BlazinBajan
Replying to @Freeyourmindkid
I'm a black cop. On the scene of a shooting one night. Using a flashlight to look for bullet casings between houses to collect as evidence. Dispatch gets a call of a suspicious looking black male in "police clothes" using a flashlight to "look into ppls houses" #LivingWhileBlack
EffieBlack
(14,249 posts)“A black male in police clothes” aka, a “police officer.”
Scurrilous
(38,687 posts)
Hortensis
(58,785 posts)when trying to excite interest in old articles telling us what we already know.
This is a color issue, of course, but suspicion of "others" is an intrinsic conservative characteristic, the stronger socially conservative, the more suspicious and even hostile people are of "others."
I'd like to suggest that people who want to reduce racism need to think less in terms of black and white and more in terms of empowering liberalism and lessening conservatism.
tulipsandroses
(5,123 posts)Thank you for the welcome,
I copied the title directly from the blog it was posted, I didn't think to change it. It was not my intention to shout to excite interest. I simply copied the title and posted it from another blog.
Hortensis
(58,785 posts)
