Pre-Trial after FTA?

[YBA]

What is the name of your state? California

Is there a pretrial after you return to court after a failure to appear if you already had a pretrial years ago (but then never went to trial after being told the charges were being dropped only to find out after going to the police station to report a crime that the individuals did not want to press charges anymore but the state maintained them)?

We talk to the attorney next week, and at first the attorney said yes the date given at the time of bail was pre-trial, but I was wondering about this since the pre-trial had already taken place. Would you, in this case, have more than one pre-trial?

 

[CdwJava]

There can be a number of hearing before trial (ergo, "pre-trial"). These can include an arraignment, a preliminary hearing, evidence suppression hearings, readiness conferences, motions, etc.

If you had just showed up originally, you wouldn't have to go through it all over again.

- Carl

 

[YBA]

Thank you for your reply Carl. However, you will notice - as I have said before - that my wife did show up to her arraignment and pretrial almost 8 years ago when all of this happened. She was then told by her mother who contacted the manager of Walmart that they were dropping the charges. Thus, my wife, who at that time was barely 18, left after her pretrial when she was told about this, to move in with me. No police ever came to her mother's house, nor did they send a notice of any warrant in the mail.

I know that many police officers look at the world in terms of everything being black and white, but unfortunately for those of us held to higher scrutiny, it is not. It's taken this situation for two police officers in my close family to realize this.

My wife didn't know she still had charges pending or that she had a warrant out. Otherwise she wouldn't have walked into a police station and asked to file a report for a missing purse. It would seem that a person who knew they were a fugitive would want the last place they were to be a police station, writing down their name, date of birth, social security number and the like.

So here we are, all these years later, spending thousands upon thousands of dollars to clear up charges that she should not have legally been charged with in the first place: Assault with a deadly weapon for throwing a stapler that never hit anyone (which is not actually assault as far as my research has uncovered so far, since no contact was made), and petty theft for a snack that my mother in law was in line paying for... All whilst the store security was illegally physically grabbing her for an alleged petty theft.

I wish the world WERE as black and white as a lot of Police, Prosecutors and the like think, because then my wife would not be in trouble for eating something under $1.00 in a store while her mother was paying for it, and then throwing a stapler at those who illegally made a false citizens arrest (placing your hands on someone to detain them for a misdemeanor theft is in fact a false arrest).

No disrespect is intended Carl. In fact, I thank you for the answers that you have provided so far. However, it would be nice if you tried to open your mind to the fact that everyone who ends up in the back seat of your cruiser doesn't belong there, even if the security of a store that donates thousands to your specific department every year thinks they should be (as was the case with the situation at hand).

 

[CdwJava]

Thank you for your reply Carl. However, you will notice - as I have said before - that my wife did show up to her arraignment and pretrial almost 8 years ago when all of this happened.

Of course, you had not mentioned this so how was anyone to notice. And that still does not change the fact that many (probably all) of the pretrial issues would have to be dealt with again.

And it was not until I read the stapler comment (from your reply) that I recalled your particular situation.

She was then told by her mother who contacted the manager of Walmart that they were dropping the charges.

Unfortunately, it is not Wal-Mart that makes that decision.

Thus, my wife, who at that time was barely 18, left after her pretrial when she was told about this, to move in with me. No police ever came to her mother's house, nor did they send a notice of any warrant in the mail.

We rarely notify people ahead of time by mailor any other means of the existance of a warrant. And there can be any number of reasons why they never contacted her mother.

I know that many police officers look at the world in terms of everything being black and white, but unfortunately for those of us held to higher scrutiny, it is not.

What "higher scrutiny" would that be? In my position, my life is held under a microscope. If you are accused of anact away from the work place, can youlose your job? I can. How's that for scrutiny.

And many people look at the world in terms of black and white ... I do, in many things - and did so even before I was a police officer. But, what's that got to do with this situation?

It's taken this situation for two police officers in my close family to realize this.

To realize what?

I see an old case that has re-surfaced and now has to be dealt with. Given the age of the case and the apparent lack of great interest to pursue it, I doubt its going to go very far at all. So I don't know what there is to "realize" here.

And since the police have nothing to do with warrants and very little to do with the court process, it certainly isn't their fault.

My wife didn't know she still had charges pending or that she had a warrant out.

That's very often the case.

Otherwise she wouldn't have walked into a police station and asked to file a report for a missing purse. It would seem that a person who knew they were a fugitive would want the last place they were to be a police station, writing down their name, date of birth, social security number and the like.

We actually catch a number of wanted subjects that way.

People that have dope on the kitchen counter call an officer to report a break-in. Things happen.

I believe she didn't know. And as I said, it's an unfortunate circumstance. But, now it will be behind her.

So here we are, all these years later, spending thousands upon thousands of dollars to clear up charges that she should not have legally been charged with in the first place: Assault with a deadly weapon for throwing a stapler that never hit anyone (which is not actually assault as far as my research has uncovered so far, since no contact was made), and petty theft for a snack that my mother in law was in line paying for... All whilst the store security was illegally physically grabbing her for an alleged petty theft.

Actually, hurling an object at someone CAN and usually IS ADW in CA. As for the petty theft, I really don't know what the security people could have thought.

And as for "illegally physically grabbing her", they do have a right to detain someone for a crime in their presence. The burden of proof would be upon them to justify that use of force, however.

... made a false citizens arrest (placing your hands on someone to detain them for a misdemeanor theft is in fact a false arrest).

That's not true ... it might be battery, but it's not false arrest - at least as a criminal offense. They may have unlawfully detained her as a cause of a tort, but not likely a criminal act aside from battery ... and that would be if they could not justify the force used to make the detention or defend themselves.

The laws of arrest are found under PC 836 and CA case law fleshes some of the force issues out ... and force by a private person appears to be one of those gray areas of CA law when it comes to detaining someone for a crime.

However, it would be nice if you tried to open your mind to the fact that everyone who ends up in the back seat of your cruiser doesn't belong there, even if the security of a store that donates thousands to your specific department every year thinks they should be (as was the case with the situation at hand).

The person in the back of my cruiser DOES legally belong there or I have made a false arrest and violated the law. There might be some situation where I feel kinda sorry for the person, but if they are in the back of my car I have a legal right to do that. And sometimes, I have to arrest people based upon a citizen's arrest that I just don't quite see ... but, I have to accept the arrest.

As for the donations, I guarantee you that the officers involved in the case really didn't care - even if they knew. And the last time I checked, private companies didn't give money to law enforcement. Maybe to a special fund, but not to the PD. And in the case of most agencies, they could not accept it by city or department policy anyway.

From what you have said in this and your other posts, it seems that there was probable cause to justify the arrest and the charges. And as I have said previously, given the length of time that has passed, the chances of the prosecution mounting a successful case are next to nil.

- Carl

 

[YBA]

"Of course, you had not mentioned this so how was anyone to notice. And that still does not change the fact that many (probably all) of the pretrial issues would have to be dealt with again."

Okay, I could have sworn I mentioned that, but if not then I can understand your comment. The point is that she was trying to deal with the situation as best as she could at her age, with the limited information she was provided. Her court appointed attorney was damn-near impossible to ever get a hold of. When she was told that Walmart dropped the charges she had no reason to believe/know that the state would still maintain the charges against her (which would seem difficult without witnesses to testify on their behalf).

"Unfortunately, it is not Wal-Mart that makes that decision."

Yes, she has found that out now. At the time neither her nor her mother knew that. I was never told the particulars of this, only that the charges had been dropped.

"We rarely notify people ahead of time by mailor any other means of the existance of a warrant. And there can be any number of reasons why they never contacted her mother."

The attorney told us over the phone that the police are obligated to try to serve the warrant and if they do not then this can be grounds for that to be thrown out (as it is evidence that you had no idea of it and thus evidence that you were not intentionally dodging it).

"What "higher scrutiny" would that be? In my position, my life is held under a microscope."

Haha, I KNEW you would say that, because this is what my cousins both said when I said the same thing. It is a fact that by definition police are empowered by the community with certain powers and authorities that non-police are not. With that comes a presumption on the behalf of other police (who view whatever officer at hand as part of the same "brotherhood"), that the person is innocent; TRULY innocent.

I'll give you an example. I was legally transporting a firearm in another state. I was not committing a crime, but was arrested. A couple grand later the case was dismissed and practically laughed out of court. Let's say that my cousin was in the car with me, being a police officer. Do you think I would have been arrested? Do you think he would have been? Neither of us would have been doing anything illegal, but I was arrested and he was not.

Another example: I was driving through another state with a number of rifles and handguns, ALL transported legally. Remember I was going to be a police officer myself and was particularly interested in being accepted on SWAT after working a few years on a department. The transportation was 100% legal but I was detained after breaking down on the side of the road. The subsequent search took hours. It was only once I explained to them that I was attending my local University's Criminal Justice program and that I had SWAT aspirations that me and the SWAT member that they called in with his MP5 "talked shop" and they let me go (only after they had killed my car battery from having the light on from the doors being open for so long).

Notice how quickly things changed when I mentioned I was in the process of joining their "brotherhood?" These are just a couple of personal examples. I know of many others that have happened to others.

Take the issue of shootings, or even the excalation of force. Police are given much more lee-way in the escalation of force, and they have to do very little to prove the justness of their escalation of force compared to what non-police have to prove. As well, citizens are commonly arrested for legal self-defense shootings and are forced to essentially prove their innocence in court. Unless the individual is unarmed, police almost never have any problems with cases of them shooting someone armed with just about anything. That's fine, I'm not suggesting that they should have to be put through more. I'm suggesting that neither should "normal" citizens. The first thing that we learned in my very first year of Criminal Justice is that the ONLY REAL difference between police officers and citizens is that police are empowered by the community to arrest for misdemeanor crimes.

Okay one more recent example. My 80 year old Grandfather was accused of fleeing the scene of an accident recently. The problem is that he hasn't driven in months because he cannot walk now and is probably going to die within a few months due to terminal cancer that is too risky to operate on. Now another family member was driving his vehicle and they have no idea what this fleeing the scene of an accident charge is about. They attest that they were never in an accident and there is clearly no mark on the vehicle.

So the department was contacted. The person on the phone said it must be some sort of mistake. The officer was contacted and he angrily insisted that said criminal act took place. Now we find out that he was accusing the driver of having a piece of ice fall off the back of the vehicle and shatter the windshield of someone behind them. This is the "accident" he is wanting to file criminal charges for.

Now apart from how insane that is since no one can be expected to see someone behind them have their window shattered, it also is a violation of the laws of physics. I have had chunks of ice hit my windshield many times and nothing ever happens but the ice shattering, not the windshield. The reason is that if ice falls off of the vehicle in front of you travelling approximately the same speed as your vehicle then there is no unique or independant velocity of the ice. It is merely "falling" with no velocity created by falling. Now if something is HIT by the tire then the turning of the tire, the speed of the vehicle, making contact with the stationary object on the road WILL create a velocity that can shatter a windshield. The problem is that you are not liable for such things and you certainly cannot be charged with a criminal offense for not noticing if you hit some ice on the road that flew up and hit someone else's vehicle.

So as it stood, this cop wanted/wants to charge my grandfather with at least fleeing the scene of an accident. What he doesn't know is that he has two police officer grandsons... Do you think he's going to be harassed with this charge for much longer? I don't, and neither do either of my police officer cousins.

"If you are accused of anact away from the work place, can youlose your job? I can. How's that for scrutiny."

Actually, at my last place of employment I was in fact subject to the very same thing. This is something that you willingly agree to upon employment (as did I), that says you are expected to maintain a certain level of integrity in your day to day life and that if you do not then you can be terminated. People could be fired for just about anything. That's fine though, because we agreed to this upon acceptance of terms of employment.

"And many people look at the world in terms of black and white ... I do, in many things - and did so even before I was a police officer. But, what's that got to do with this situation?"

It has everything to do with it. People who generally look at things in terms of black and white gravitate to jobs in Law Enforcement. I did not. I gravitated towards it because I wanted to help people. I changed my mind for a number of reasons. Honestly the main one was because I could not deal with a job that almost arbitrarily arrested people; the "Arrest 'em all and let the courts sort 'em out" type of mentality. Right when I had four departments offering me jobs, and had passed their screening and testing I walked away from it. I guess I just thought things could be more like Mayberry

"To realize what? "

To realize that sometimes people get in a lot of trouble who don't deserve to be in any trouble.

"I see an old case that has re-surfaced and now has to be dealt with. Given the age of the case and the apparent lack of great interest to pursue it, I doubt its going to go very far at all. So I don't know what there is to "realize" here."

Well even if all of the original trumped up charges are dropped she has to deal with an FTA charge that she had no idea existed. The fact that she went into a Police Station of her own volition demonstrates that she had no idea about this and was no running from anything. Nevertheless, she was arrested for it and will thus likely be treated like a bad person who was "caught" while on the lam. The fact of the matter is that she had no idea and now is facing up to a year in jail away from her family, her young children and her business for not harming a single person financially or physically.

"And since the police have nothing to do with warrants and very little to do with the court process, it certainly isn't their fault."

The Police are responsible for serving warrants, and in the process of doing this the people they serve them on are viewed in a very black and white manner. The fact is that the Sgt. at the station which arrested her told me that if she would have gone in an said "I know I have a warrant out and I want to take care of it" then they would not have arrested her, they would have given her a citation and made her promise to appear in court. But instead she comes into a police station with her children to report a crime and she is hauled off in front of them right before Christmas. Like I said, "Black and White."

 

[YBA]

"Quote:
My wife didn't know she still had charges pending or that she had a warrant out.

That's very often the case."

That probably won't change how the court will view her.

"We actually catch a number of wanted subjects that way."

Which would seem to indicate that they had no idea they were wanted subjects.

"I believe she didn't know. And as I said, it's an unfortunate circumstance. But, now it will be behind her."

Yeah, behind her thousands of dollars later. When all is said and done this will have cost of us $10,000 if it goes to trial. Do you have $10,000 to just drop on accusations of criminal activity? As well, it might take a year in jail to "put this behind her."

Have you ever been in jail? She has. For almost three weeks because she could not afford bail for eating food her mother was in line paying for. I think that every cop, judge, and prosecuting attorney should have to spend a month in jail just to understand what it is that they are condemning people to. Most officers I speak to act like going to jail for 6 months or even a week is nothing at all. Yet at the same time they have never experienced what they are saying people deserve. Jail and Prison amount to far more than the deprivation of freedom. They also amount to psychological terror, physical assault that almost always goes unprosecuted, rape that almost always goes unprosecuted as well as almost non-stop verbal abuse.

"Actually, hurling an object at someone CAN and usually IS ADW in CA."

Insane. So is swinging at someone and not hitting them considered Assualt and Battery? California has a... "unique" way of looking at and defining law.

"As for the petty theft, I really don't know what the security people could have thought."

It doesn't matter what they thought, they are not allowed to touch her. Even the store admitted that.

"And as for "illegally physically grabbing her", they do have a right to detain someone for a crime in their presence. The burden of proof would be upon them to justify that use of force, however."

Even the store admitted that they did not have the right to physically grab her. This constitutes an arrest for a misdemeanor and is only legal when performed by a police officer.

Now if she assaulted them first then they have the right to defend themselves but neither they nor the witnesses there were claiming that. Like I said, I have worked enough security jobs to know that you cannot physically grab someone for thinking that they are about to steal something under $1.00... Again, remember she was not even outside of the store.

"That's not true ... it might be battery, but it's not false arrest - at least as a criminal offense."

Yes, I do not mean in terms of how they would be charged, I mean in the sense of what they are doing, it is a false citizens arrest.

"The laws of arrest are found under PC 836 and CA case law fleshes some of the force issues out ... and force by a private person appears to be one of those gray areas of CA law when it comes to detaining someone for a crime."

The key is misdemeanor.

"The person in the back of my cruiser DOES legally belong there or I have made a false arrest and violated the law."

So everyone you arrest is convicted? Obviously the courts have found that while you had the right based on PC to arrest them, they didn't actually commit any crimes and their charges are thus either dismissed or they are found not-guilty. Doesn't happen all the time. Maybe not even most of the time, but certainly SOME of the time there are completely innocent people in the back of your cruiser.

"There might be some situation where I feel kinda sorry for the person, but if they are in the back of my car I have a legal right to do that. And sometimes, I have to arrest people based upon a citizen's arrest that I just don't quite see ... but, I have to accept the arrest."

Having the legal right to do something doesn't mean that a person morally belongs somewhere. There are people who were legally executed who were later found through DNA evidence to be innocent. There are people in California right now serving 25 to life for non-violent offenses. That is "legal" but does that mean that they deserve to be in prison for the rest of their lives?

"As for the donations, I guarantee you that the officers involved in the case really didn't care - even if they knew. And the last time I checked, private companies didn't give money to law enforcement."

Well check again. Walmart gives a substantial amount to this department's community activities. Walmart has a very "good relationship" with the police department, which means to me that if Walmart accuses someone of a crime then the police are unlikely to say "Sorry guys but you didn't have the right to do this or that. We're not arresting her." I can almost guarantee that such a thing has NEVER happened.

"Maybe to a special fund, but not to the PD. And in the case of most agencies, they could not accept it by city or department policy anyway."

Yes, I should be more clear, it was to the Police Department's activities, their baseball teams, DARE programs, things like that. I'm not saying that the officers were like "Oh sure we'll arrest her because Walmart donates so much money to our activities," but I am suggesting that it influences the relationship between the store security and the local PD.

"From what you have said in this and your other posts, it seems that there was probable cause to justify the arrest and the charges. And as I have said previously, given the length of time that has passed, the chances of the prosecution mounting a successful case are next to nil."

I hope so. The primary concern now is the potential jail time for the FTA.

 

[CdwJava]

Yes, she has found that out now. At the time neither her nor her mother knew that. I was never told the particulars of this, only that the charges had been dropped.

Which is no one's "fault", and is just bad, dumb luck.

The attorney told us over the phone that the police are obligated to try to serve the warrant and if they do not then this can be grounds for that to be thrown out (as it is evidence that you had no idea of it and thus evidence that you were not intentionally dodging it).

It might invalidate the warrant, but not the fact that the charges would have to be answered for. Additionally, this is a very fuzzy area of law as it is not clear as to WHAT constitutes an attempt at service. Though it might remove any charge of failure to appear or such, it would not likely make the previous charges go away.

I'll give you an example. I was legally transporting a firearm in another state. I was not committing a crime, but was arrested. A couple grand later the case was dismissed and practically laughed out of court.

And if there was no probable cause to make the arrest, then you could have sued their pants off. Apparently there was at least probable cause at the scene to believe a crime had been committed.

Sorry, but we don't have the resources to investigate every crime to the nth degree at the scene. In my agency, the officer might have to get back into the field almost immediately. The alternative to letting a suspect go is putting him in jail until further investigation can be conducted. therefore, if probable cause to make the arrest exists, most the time, an arrest will occur. Depending, of course, on the circumstances and the nature of the crime alleged.

Let's say that my cousin was in the car with me, being a police officer. Do you think I would have been arrested? Do you think he would have been?

I have no way of knowing. But, depending on the state, it may not have been illegal for a peace officer to be transporting a firearm.

Notice how quickly things changed when I mentioned I was in the process of joining their "brotherhood?" These are just a couple of personal examples. I know of many others that have happened to others.

I suppose it depends on what state you are in, or where you are traveling. Any yay-hoo can claim to be interested in police work ... we get them all the time. A couple of our biggest crooks in town claim to have aspirations for law enforcement ... yeah, right!

Take the issue of shootings, or even the excalation of force. Police are given much more lee-way in the escalation of force, and they have to do very little to prove the justness of their escalation of force compared to what non-police have to prove.

First of all, the term, "escalation of force" is a misnomer and no longer taught int he academies in CA. It is the "circle of force" as there IS no legal or common sense requirement to work your way up the "force" continuum. Thus, I do not have to attempt to use voice, then hands, then baton, then my gun against a suspect coming at me with a knife. I CAN go straight to guns.

Officers were getting sued for shooting knife-wielding suspects because they failed to use an intermediate step as required by their training and department policy (at the time). Fortunately, this has changed virtually state wide.

And we DO have to prove that force was justified. Internal investigations are not public knowledge, and use of force reviews are commonplace when force is applied or a suspect is injured. Not to mention that if a suspect even complains we have to look in to it. And in some agencies - like LAPD, due to the federal consent decree - all complaints count against you for promotion and transfer applications.

As well, citizens are commonly arrested for legal self-defense shootings and are forced to essentially prove their innocence in court.

Because self-defense is a justifaction to be asserted in court, not in the field. And I have known numerous cases of self defense where the "suspect" has not been arrested because of the situation.

The first thing that we learned in my very first year of Criminal Justice is that the ONLY REAL difference between police officers and citizens is that police are empowered by the community to arrest for misdemeanor crimes.

Actually, there's not a whole lot of difference ... and we cannot arrest for a misdemeanor NOT committed in our presence with the exception of a few - including domestic violence battery (PC 243(e)(1)) and DV TROs (PC 273.6)

836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
and

837. A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not
in his presence.
3. When a felony has been in fact committed, and he has reasonable
cause for believing the person arrested to have committed it.

So as it stood, this cop wanted/wants to charge my grandfather with at least fleeing the scene of an accident. What he doesn't know is that he has two police officer grandsons... Do you think he's going to be harassed with this charge for much longer? I don't, and neither do either of my police officer cousins.

Ultimately, if there was no proof, the DA likely wouldn't file anyway - whether the officer wanted it or not. It's the DA that has to support the case at trial.

It has everything to do with it. People who generally look at things in terms of black and white gravitate to jobs in Law Enforcement. I did not. I gravitated towards it because I wanted to help people.

I did for both reasons. I started off in education and then turned to law enforcement.

I changed my mind for a number of reasons. Honestly the main one was because I could not deal with a job that almost arbitrarily arrested people;

Then you didn't grasp it right, because it is NOT arbitrary - or should not be. We are expected to follow some pretty strict guidelines. And following these rules is what it is about. Certainly there is discretion ... but there are also some things you just cannot leave to chance - hence policies and laws that require an officer to take certain actions.

And, I doubt there are many other careers where one's action - made in a split second, can be analyzed for years by great minds and learned bodies before they can decide if said officer made a good decision or not ... and why.

Right when I had four departments offering me jobs, and had passed their screening and testing I walked away from it. I guess I just thought things could be more like Mayberry

The criminals aren't like Mayberry. The world is a real place. I live in a town that is about as close to Mayberry as one is likely to get, yet we have crime and crooks. If the suspects were like they were in Mayberry, then the police force could mirror it.

To realize that sometimes people get in a lot of trouble who don't deserve to be in any trouble.

That may be true. But, sometimes, what action I take is proscribed by the law and not my feelings on the matter.

The Police are responsible for serving warrants, and in the process of doing this the people they serve them on are viewed in a very black and white manner.

Well, in most cases the warrants are issued at the county level and are the responsibility of the sheriff or marshall and not the local police. And when a suspect on a warrant IS contacted, what are we supposed to do ... the warrant COMMANDS the peace officer to take the person in to custody - it does not simply recommend it.

The fact is that the Sgt. at the station which arrested her told me that if she would have gone in an said "I know I have a warrant out and I want to take care of it" then they would not have arrested her, they would have given her a citation and made her promise to appear in court.

If that was possible. Many FTA warrants in CA do not provide the option of citation ... bail or mandatory appearance only. He may not have read the abstract, as it may well have provided no option.

But instead she comes into a police station with her children to report a crime and she is hauled off in front of them right before Christmas. Like I said, "Black and White."

A judge's order ... I wouldn't want to lose my job for ignoring it. And I wouldn't have any idea if the original charges had any validity or not. And, frankly, that wouldn't be my job at that moment as I woul dbe in NO position to determine that.

- Carl

 

[CdwJava]

Yeah, behind her thousands of dollars later. When all is said and done this will have cost of us $10,000 if it goes to trial. Do you have $10,000 to just drop on accusations of criminal activity? As well, it might take a year in jail to "put this behind her."

Then sue the person that told her mother the charges were dropped and would never be re-filed again. Or get an attorney and see if the Sheriff or the police department's failure to serve the warrant was some sort of violation of her rights.

Sometimes bad stuff happens to decent people. Happenstance does not require malice.

I think that every cop, judge, and prosecuting attorney should have to spend a month in jail just to understand what it is that they are condemning people to.

I don't. Besides, the overwhelming majority of people are there by their own actions, not because the police inflicted it on them.

Most officers I speak to act like going to jail for 6 months or even a week is nothing at all.

Most convicts we speak to will say the same thing. In fact, many commit crimes to go to jail for that amount of time when they are hungry or sick ... all that free medical and dental treatment.

Yet at the same time they have never experienced what they are saying people deserve. Jail and Prison amount to far more than the deprivation of freedom.

Then change the system. Right now the country club option just isn't available. I have only those options available to me by law ... I can't create my own program even if I think it is necessary.

"Actually, hurling an object at someone CAN and usually IS ADW in CA."

Insane. So is swinging at someone and not hitting them considered Assualt and Battery? California has a... "unique" way of looking at and defining law.

A swing and a miss is Assault per PC 240 ... tossing an object that has the likelihood of inflicting great bodily injury is ADW per PC 245. Do YOU want to be hit in the head by a hunk of metal? Or a rock? I am sure the people that had the stapler hurled at them were not keen on getting whacked by the stapler either.

I have seen people killed with a rock to the head, a BB to the eye, and even killed by a plastic phone.

It doesn't matter what they thought, they are not allowed to touch her. Even the store admitted that.

More a matter of policy than law. They have a right to detain someone or defend themselves under the law. The limits of that physical detention are unclear per case law, but the law permits a detention when a citizen's arrest is made.

Even the store admitted that they did not have the right to physically grab her. This constitutes an arrest for a misdemeanor and is only legal when performed by a police officer.

It MIGHT constitute battery ... but, as I said, the issue appears to be unclear under CA law as the law permits a private person to detain someone when making an arrest.

"The person in the back of my cruiser DOES legally belong there or I have made a false arrest and violated the law."

So everyone you arrest is convicted?

Of course not. But, Probable Cause is a lesser burden of proof than "Beyond a reasonable doubt" as needed for trial. Thus I can arrest an innocent person so long as there is probable cause, and a guilty person can go free because there is not proof beyond a reasonable doubt.

It kinda works both ways.

Obviously the courts have found that while you had the right based on PC to arrest them, they didn't actually commit any crimes and their charges are thus either dismissed or they are found not-guilty. Doesn't happen all the time. Maybe not even most of the time, but certainly SOME of the time there are completely innocent people in the back of your cruiser.

Sure. But, I have never placed anyone in the back that "did not belong there" as that would imply that I had made a false arrest. Which would be true if there was no P.C.

There are people in California right now serving 25 to life for non-violent offenses. That is "legal" but does that mean that they deserve to be in prison for the rest of their lives?

If they are career criminals? Darn right! They didn't just get 25 to life because they possessed a joint in their pocket! Most these guys are career predators, and by their actions they have shown that they do not deserve to be out in society.

But, this is another topic.

which means to me that if Walmart accuses someone of a crime then the police are unlikely to say "Sorry guys but you didn't have the right to do this or that. We're not arresting her." I can almost guarantee that such a thing has NEVER happened.

By CA law, the police cannot REFUSE to accept a citizen's arrest, so they couldn't refuse it anyway. And as an individual officer, he doesn't kknow or care what Wal-Mart contributes.

I know what they contribute to the community groups I'm involved in, but besides the Chief and I there is probably not another officer on this department that has a clue - or even cares.

I'm not saying that the officers were like "Oh sure we'll arrest her because Walmart donates so much money to our activities," but I am suggesting that it influences the relationship between the store security and the local PD.

I really doubt it does.

And as I said, if their people make that citizen's arrest, the police have to accept it.

I hope so. The primary concern now is the potential jail time for the FTA.

And given the total circumstances, I would THINK that would be nil or "time served". If the circumstances come down as you say they did, then i would think that it would come down on her side.

But, then, I'm not privy to what the prosecution knows or thinks they know about the case.

- Carl

 

[YBA]

"Which is no one's "fault", and is just bad, dumb luck."

Right, I'm not blaming police in general for this, or even "The System" per se. I'm blaming the police who made the original arrest who should have known better. There is literally no police officer that I ever met, trained with or know as a family member who would have arrested someone under the conditions of my wife's arrest. Again, I view this as a matter of the Police basically doing whatever Walmart said based on their relationship with Walmart. I am blaming them, the Walmart security (first and foremost), and also whoever was responsible for notifying her of the warrant. Perhaps that wasn't the job of the local PD.

"It might invalidate the warrant, but not the fact that the charges would have to be answered for. Additionally, this is a very fuzzy area of law as it is not clear as to WHAT constitutes an attempt at service. Though it might remove any charge of failure to appear or such, it would not likely make the previous charges go away."

Right. The previous charges are less of a problem though since she is still obviously in contact with her sister who witnessed the entire thing at the age of 11 and her mother who will attest to the fact that she had not left the store and that she was in line with the item.

"And if there was no probable cause to make the arrest, then you could have sued their pants off. Apparently there was at least probable cause at the scene to believe a crime had been committed."

They interpreted the state code differently than it was intended. They believed the magazine and bullets were not far enough apart from the firearm. According to the code itself and to the judge, they were more than an arms reach away from each other and were in separate sealed containers and were thus being transported legally. Though the prosecuting attorney wanted to make an example of out me because people with firearms tend to be automatically viewed as criminals if they aren't out shooting ducks or deer, they foolishly took the case to trial. It was over before it began. I don't believe I even spent 5 whole minutes in the actual court room.

"Sorry, but we don't have the resources to investigate every crime to the nth degree at the scene. In my agency, the officer might have to get back into the field almost immediately. The alternative to letting a suspect go is putting him in jail until further investigation can be conducted. therefore, if probable cause to make the arrest exists, most the time, an arrest will occur. Depending, of course, on the circumstances and the nature of the crime alleged."

Yes, but if the individual is innocent then he will have to pay thousands of dollars to essentially prove his innocence. This is what I mean by "arbitrary arrest." I just personally couldn't sleep at night knowing that I might have done something to even one family like what the Police have done to my family just by this one arrest and trumped up charges almost 8 years ago.

But we could debate that back and forth for ever and never agree. That is why you became a cop and I didn't.

"I have no way of knowing. But, depending on the state, it may not have been illegal for a peace officer to be transporting a firearm."

Well I was giving an example of if he was in the car with me while I was transporting my weapon in the same way. Unfortunately he wasn't and he wasn't a cop at that time, nor did I have a Criminal Justice degree yet. If it happened just a few years later I could have probably put the arresting officers' minds at ease better. Nevertheless, I was presumed to be criminal because I had a firearm; the transportation of which was legal according to state code and the judge. The point is that the police didn't reimburse me the $2,000 I was out, and I still never have gotten around to getting that arrest expunged (I'm not actually sure if it just falls off ever or not as it was 10 years ago), which will cost me some more.

"I suppose it depends on what state you are in, or where you are traveling. Any yay-hoo can claim to be interested in police work ... we get them all the time. A couple of our biggest crooks in town claim to have aspirations for law enforcement ... yeah, right!"

Well sure that could be the case. This was in Indiana and I knew enough about different departments, the guy who actually ran the SWAT team in my county who I trained with (as well as with other cops in the county SWAT team). They ran all the serials and found that everything was clean. They were more freaked out than anything because I had a number of weapons.

But I'm not mad at them; they were fairly nice and at no time detained me in cuffs or anything. All I'm saying is that I was held to higher scrutiny than a police officer would have been. That was my only point. Those officers actually were decent guys, as I'm sure you are. Of course, this is now beyond the scope of the original post, but it is interesting discussion nonetheless.

"First of all, the term, "escalation of force" is a misnomer and no longer taught int he academies in CA. It is the "circle of force" as there IS no legal or common sense requirement to work your way up the "force" continuum. Thus, I do not have to attempt to use voice, then hands, then baton, then my gun against a suspect coming at me with a knife. I CAN go straight to guns."

Very true. "Escalation of force" as I understand it (having a degree from a non-California University), would mean that the individual you would be going "straight to guns" with would have already escalated things beyond any intermediary stage. Thus, if a guy was average sized and swinging, then you couldn't normally go straight to firing on him.

"Officers were getting sued for shooting knife-wielding suspects because they failed to use an intermediate step as required by their training and department policy (at the time). Fortunately, this has changed virtually state wide."

Yeah, well in Cincinnati Officer Roach walked for shooting a kid running with no weapon because he was driving with unpaid traffic tickets. Tell me anything remotely like that would happen for a non-police officer.

"And we DO have to prove that force was justified. Internal investigations are not public knowledge, and use of force reviews are commonplace when force is applied or a suspect is injured. Not to mention that if a suspect even complains we have to look in to it. And in some agencies - like LAPD, due to the federal consent decree - all complaints count against you for promotion and transfer applications."

Well between Rodney King, the recent face kicking that was all over the news and Rampart, that may well be a good measure. Nevertheless, internal investigations are far different than being arrested and put on trial.

"Because self-defense is a justifaction to be asserted in court, not in the field. And I have known numerous cases of self defense where the "suspect" has not been arrested because of the situation."

More or less agreed. I have even known an almost 20 year veteran officer to have helped a guy out who was violating the law by illegally carrying when he shot a rapist in the act in a park. He not only didn't arrest the man, but he told him what to say to get off. He did. This is an example of police doing the right thing morally even when required by law to do the wrong thing morally. Thank God for officers like that.

"Actually, there's not a whole lot of difference ... and we cannot arrest for a misdemeanor NOT committed in our presence with the exception of a few - including domestic violence battery (PC 243(e)(1)) and DV TROs (PC 273.6)

836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
and

837. A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not
in his presence.
3. When a felony has been in fact committed, and he has reasonable
cause for believing the person arrested to have committed it."

Interesting. Again, I haven't read much on California law until recently. So what is defined as a "public offense." Certainly this doesn't mean that your average citizens can just go around arresting people for disorderly conduct, public drunkenness, and whatever else!

"Ultimately, if there was no proof, the DA likely wouldn't file anyway - whether the officer wanted it or not. It's the DA that has to support the case at trial."

Good point, and yet another reason why it is soon to go away. Nevertheless, my cousins plan on being in court in uniform if it does go to court. With them testifying on his behalf and against the procedure of the officer it is obvious that my grandfather has literally no chance of the charges (which have not been filed, but have been threatened), sticking.

 

[YBA]

"Then you didn't grasp it right, because it is NOT arbitrary - or should not be."

"Should" is the operative word.

"The criminals aren't like Mayberry. The world is a real place. I live in a town that is about as close to Mayberry as one is likely to get, yet we have crime and crooks. If the suspects were like they were in Mayberry, then the police force could mirror it."

The "criminal" in this case was an 18 year old girl eating less than $1.00 in snacks in a store when he mother was paying for it. This girl struggled against two people who grabbed her without identifying themselves and then threw her to the ground when she pulled away. This girl was charged with outrageous crimes for not hurting anyone. Her actions were very "Mayberry" in nature, yet she was treated like a hardened criminal and thrown in jail with fat, head-shaven women who in some cases threatened to fight, jump, rape and murder her for the next two weeks. Seems fair huh?

Now I'm not suggesting you should play nice with the Bank of America robbers coming out with hundreds of rounds of ammo, vests and AK's (one might have been an FAL, but it's been a while so it's hard to remember). Sure, light dudes like that up. Lock up the *******s doing drive-bys and killing kids on tricycles. Lock up the people who are "upping the ante" with the "Mayberry Ideal" so to speak. But things are out of hand when people are being convicted of Assault for splashing water on someone, or someone is charged with Assault with a Deadly Weapon for tossing a stapler at people falsely making a citizens arrest against them. This is what I mean by "black and white" when ALL accused crime is viewed in very serious light, with no "slap on the wrist" or "let them of with a warning" type mentality for petty crimes anymore. Again, the fact that there are non-violent offenders doing 25 to life in California is a great (but horrifying) example of this.

"That may be true. But, sometimes, what action I take is proscribed by the law and not my feelings on the matter."

I understand that. However, in this situation at hand - the situation I am particularly pissed off about and venting about - police did NOT "have" to make an arrest. Two security officers throwing a girl to the ground because they believed a crime might be committed and then accusing her of assaulting them when she was covered in bruises from them is not something that the police have or should have arrested her for. This, in particular, is why I am so upset. Again, I'm not from California, but I have NEVER met a cop who would have arrested under those conditions unless they were going to arrest the security officers (and I HAVE known that to happen when security has assaulted theft suspects).

"Well, in most cases the warrants are issued at the county level and are the responsibility of the sheriff or marshall and not the local police. And when a suspect on a warrant IS contacted, what are we supposed to do ... the warrant COMMANDS the peace officer to take the person in to custody - it does not simply recommend it."

Point taken.

"If that was possible. Many FTA warrants in CA do not provide the option of citation ... bail or mandatory appearance only. He may not have read the abstract, as it may well have provided no option."

Good point. She did know the situation though, as she was the one counting the bail money and it's not exactly a high crime area (so I think everyone in the station knew what was going on). She was checking it out in the database, so she seemed to know, but of course you are right in saying that she may have only be presuming.

"A judge's order ... I wouldn't want to lose my job for ignoring it. And I wouldn't have any idea if the original charges had any validity or not. And, frankly, that wouldn't be my job at that moment as I woul dbe in NO position to determine that."

Yes I understand that. This is just what makes someone a potential cop or not. I realized along the way that I couldn't deal with arresting people in cases where the law required it but I knew the arrest was not something I should morally do. For example, my mother is a 1st grade teacher and works with another teacher who found out that she had a 20 year warrant on the books for something terribly petty. She was on the side of the road and arrested with her kids in the car. Social Services came and temporarily took the kids while she was hauled off. I don't care what a judge or anyone said, there is no chance in Hell I could do something like that and live with myself. Now put a .308 round through a hostage taker's forehead? I could do that in a second, head home and pick up a comedy at Blockbuster and laugh with my wife later in the evening without caring one way or the other about the schmuck who had a gun to some innocent person's head. Yet arresting someone for a traffic warrant and having their kids taken away is something that would haunt me and keep me sleepless for I don't know how long. But that's just me.

"Then sue the person that told her mother the charges were dropped and would never be re-filed again. Or get an attorney and see if the Sheriff or the police department's failure to serve the warrant was some sort of violation of her rights."

If the attorney thinks that is possible then we will.

"Sometimes bad stuff happens to decent people. Happenstance does not require malice."

We are in 100% agreement there. That is what I mean though when I say that everyone who ends up in the back of your cruiser doesn't necessarily belong there.

"I don't. Besides, the overwhelming majority of people are there by their own actions, not because the police inflicted it on them."

Honestly I was being extreme to say a month. A week seems more rational to me. If a cop isn't tough enough to hang in jail for a week though then he probably shouldn't be working the streets. A week in jail wouldn't be that big of deal to me. I wouldn't like it, but if I knew it was just one week I'd just bring some books and that would be that.

Most people are there because of their own actions, but it can be argued that a person who is shot because they are running from the police died because of their own actions as well. This doesn't change the fact that the punishment didn't fit the crime. For police to know what they are condemning the accused to when they arrest them (and if they are poor then they are assuring them of immediate jail time in the County), then the police need to know what this feels like. I think this would make police be more compassionate towards the accused and would in turn make the public not view police with as much animosity, particularly in lower income areas where the accused are guaranteed jail time right off the bat before arraignment.

"Most convicts we speak to will say the same thing. In fact, many commit crimes to go to jail for that amount of time when they are hungry or sick ... all that free medical and dental treatment."

Sure, that is very true in the case of bad people who feel at home in jail or prison. For stay at home moms who have never been in trouble with the law before or since, who run children's photography businesses, are semi-professional scrapbookers and the like, jail is a HUGE deal and most women such as my wife would rather do just about ANYTHING than spend even a day in jail.

"Then change the system. Right now the country club option just isn't available. I have only those options available to me by law ... I can't create my own program even if I think it is necessary."

Unfortunately the system doesn't allow people to just up and change it in the manner that you are suggesting. No one is suggesting a "country club," though this certainly exists for Enron execs and the like who rip off old people for their own imagined gain. Rather making certain that jail is not a place rife with serious criminal activity would be nice. Making jails and prisons rape free would be a good start, but instead it is almost stereotypical for police to coerce suspects in interrogation with the threat of "being someone's bitch" in prison. This is tantamount to threatening the suspect with torture.

 

[YBA]

"A swing and a miss is Assault per PC 240 ... tossing an object that has the likelihood of inflicting great bodily injury is ADW per PC 245. Do YOU want to be hit in the head by a hunk of metal? Or a rock? I am sure the people that had the stapler hurled at them were not keen on getting whacked by the stapler either."

Well then they probably shouldn't have thrown an 18 year old girl who hadn't done anything illegal to the ground and ripped off her overalls in public. If I was there and they tried to do such a thing to my wife or daughter or anyone that I knew for certain had not harmed anyone then they would not be physical capable of picking up a phone to call the police. Having a stapler thrown at them would have been the least of their worries. It is amazing to me that the victim is viewed as the criminal for throwing a stapler after being physically assaulted and covered with bruises.

"I have seen people killed with a rock to the head, a BB to the eye, and even killed by a plastic phone."

The question is was there a "likelihood of inflicting great bodily injury." The reality is that there wasn't any "likelihood" of it, though these same individuals DID cause photographed injury to her before this event even took place. The police didn't seem to care about that. So if a rape victim gouged out the rapist's eyes... even though this would be severe, should she be charged?

"More a matter of policy than law. They have a right to detain someone or defend themselves under the law. The limits of that physical detention are unclear per case law, but the law permits a detention when a citizen's arrest is made."

Where I studied at least and in surrounding states it is 100% illegal to physically restrain an individual suspected of committing a misdemeanor. They are free to detain her, but they are not free to physically restrain her in the detention, nor to physically search her. They CAN ask her to "open your purse" or "open your jacket" or "pull open your pockets," etc... Anything like that is 100% Kosher. But they can't go through someone's pockets, purse, jacket, NOR physically grab the suspect in any way unless that suspect were to attack them first (THEN they have the right to defend themselves). Imagine if you were in a store and two people came up, didn't identify themselves to you and grabbed you, pulling you towards them. If it were me instinct would take over and without even thinking about who they "might" be or what they "might" have though, I would have probably knocked them out. Non-Police are simply not given that sort of lee-way under any of the codes of states I have examined. I seriously doubt California is an exception to this.

"It MIGHT constitute battery ... but, as I said, the issue appears to be unclear under CA law as the law permits a private person to detain someone when making an arrest."

Detaining is one thing. You can detain someone by saying "We think you have stolen something and you need to come with us." This is far different than physically grabbing someone and just saying "come with us," then throwing the person to the ground for pulling away forcefully.

"Of course not. But, Probable Cause is a lesser burden of proof than "Beyond a reasonable doubt" as needed for trial. Thus I can arrest an innocent person so long as there is probable cause, and a guilty person can go free because there is not proof beyond a reasonable doubt."

Right, and thus those people who there was "probable" cause to arrest turn out to be the exception to the statistical "probability" that caused the arrest and accordingly they did NOT deserve to be in the back of your cruiser.

"Sure. But, I have never placed anyone in the back that "did not belong there" as that would imply that I had made a false arrest. Which would be true if there was no P.C."

There being PC doesn't mean that they deserved to be there. Probable just means that they probably committed a crime. It doesn't mean that they did. If they didn't commit a crime then they don't deserve to be in the back of your cruiser.

"If they are career criminals? Darn right! They didn't just get 25 to life because they possessed a joint in their pocket! Most these guys are career predators, and by their actions they have shown that they do not deserve to be out in society."

Most people do not believe that non-violent criminals - career or not - should be in prison for 25 to life. That law was pitched to the public based on the false belief that it would be directed at violent criminals alone. The prisons are already over crowded. You average citizen does not believe that we should be putting non-violent offenders in prison for the rest of their lives. Even the person who this law was based "on behalf" of does not believe this.

"But, this is another topic."

Indeed, but it is another example of the "black and white" thinking that I can't work with.

"By CA law, the police cannot REFUSE to accept a citizen's arrest, so they couldn't refuse it anyway. And as an individual officer, he doesn't kknow or care what Wal-Mart contributes."

So I could call up the department, have my neighbor beaten to a pulp and say "This guy tried to steal my outdoor grill and then when I arrested him he resisted so I fought back?" You MUST be joking. If not California really is as crazy as everyone in the Mid-West thinks it is.

"I know what they contribute to the community groups I'm involved in, but besides the Chief and I there is probably not another officer on this department that has a clue - or even cares."

Good point.

"And as I said, if their people make that citizen's arrest, the police have to accept it."

Yes if the citizens arrest is valid. You cannot just claim to make a citizens arrest because you think someone was going to steal something and then beat the person for pulling away from you and still maintain a lawful citizens arrest. The police DO NOT have to accept such a B.S. citizens arrest. I simply cannot believe that even California law is THAT insane.

"And given the total circumstances, I would THINK that would be nil or "time served". If the circumstances come down as you say they did, then i would think that it would come down on her side. But, then, I'm not privy to what the prosecution knows or thinks they know about the case."

Good, I would hope so, and this would really help to reaffirm my nearly negatively existing faith in the system as it stands currently. We'll see.

 

[CdwJava]

Right, I'm not blaming police in general for this, or even "The System" per se. I'm blaming the police who made the original arrest who should have known better.

How do you mean? What SHOULD they have done when presented with a citizen's arrest for shoplifting and assault and battery with an object that could cause great bodily injury? Should they have disobeyed the law and declined to accept the arrest? Or should they have filed lesser charges than those requested.

And since it is the DA that files charges with the court and NOT the police, it is not their charges in the first place.

There is literally no police officer that I ever met, trained with or know as a family member who would have arrested someone under the conditions of my wife's arrest.

So, the police officers you have met, know, or trained with, would have committed a misdemeanor by refusing the arrest? I find that hard to believe.

Again, I view this as a matter of the Police basically doing whatever Walmart said based on their relationship with Walmart.

Sorry, I don't buy it. I don't make my decisions based on anything Wal-Mart gives to the local PAL or any of the orginzations I am a member of, and I really doubt that the beat cop that hasn't a clue of Wal-Mart's donations would care either.

Right. The previous charges are less of a problem though since she is still obviously in contact with her sister who witnessed the entire thing at the age of 11 and her mother who will attest to the fact that she had not left the store and that she was in line with the item.

Just as a point of legal interest, one does not have to leave the store for the crime of shoplifting to be complete. If the item has been removed from packaging, consumed, damaged, or is headed toward an exit and not passing a cahier is also sufficient.

I just personally couldn't sleep at night knowing that I might have done something to even one family like what the Police have done to my family just by this one arrest and trumped up charges almost 8 years ago.

Well, that beef is against Wal-Mart And maybe against the DA who filed the charges, not the cops who accepted the arrest. But, it is obvious that the elements were met or it never woul dhave gotten past prelim.

But we could debate that back and forth for ever and never agree. That is why you became a cop and I didn't.

Yep. To help people ... and sometimes that means arresting people. And on occasion the people are innocent - that's why we have citizen's arrests - and probable cause ... it minimizes or removes legal liability from the police.

Very true. "Escalation of force" as I understand it (having a degree from a non-California University), would mean that the individual you would be going "straight to guns" with would have already escalated things beyond any intermediary stage. Thus, if a guy was average sized and swinging, then you couldn't normally go straight to firing on him.

The same theory exists int he continuum of force ... that amount of force necessary to effect the arrest or overcome resistance. The force must still be reasonable, it just removes the onus of having to go through the lesser steps prior to the force used.

Yeah, well in Cincinnati Officer Roach walked for shooting a kid running with no weapon because he was driving with unpaid traffic tickets. Tell me anything remotely like that would happen for a non-police officer.

I can give you quite a number of tales of killers walking free. So yes, it does happen to non-cops.

And I don't recall a whole lot about the incident to comment on it.

Well between Rodney King, the recent face kicking that was all over the news and Rampart, that may well be a good measure. Nevertheless, internal investigations are far different than being arrested and put on trial.

IN LAPD a number of completely unfounded complaints have almost the same effect as unfounded ones, so, officers who are simply doing their jobs have to risk complaints that will end their careers. And the bad guys DO know this. Hence the reason that proactive policing and arrests have been on the down turn there. Officers want to keep clean records to go to new assignments and get out of the high crime areas.

Its easier - and safer on the career - to respond to calls after the fact than prevent crimes with their new system.

And, of course, Rampart was exposed BY the LAPD as a result of internal procedures ... just shows that something was working.

He not only didn't arrest the man, but he told him what to say to get off. He did. This is an example of police doing the right thing morally even when required by law to do the wrong thing morally. Thank God for officers like that.

And potentially tainting the case and making the guy guilty as sin when the circumstances would have made him 'not guilty' by a jury if it went that far.

That kind of help can - and often does - backfire on both parties. Theer are other ways than coaching someone on what to say! Good Lord!

Interesting. Again, I haven't read much on California law until recently. So what is defined as a "public offense." Certainly this doesn't mean that your average citizens can just go around arresting people for disorderly conduct, public drunkenness, and whatever else!

A "public offense" is essentially a crime. Any crime.

I have the formal definition at the office, but, it can be boiled down to: An act or omission, by a person, against a stautory law, for which there is a proscribed penalty.

Good point, and yet another reason why it is soon to go away. Nevertheless, my cousins plan on being in court in uniform if it does go to court. With them testifying on his behalf and against the procedure of the officer it is obvious that my grandfather has literally no chance of the charges (which have not been filed, but have been threatened), sticking.

Interesting ... in every agency I have worked in, we would violate department policy to show in uniform for a case where we were not involved int he course and scope of our employment with the agency. Things are different out there.

Not that I am opposed to their supporting him, just that they might want tobe careful about wearing their agency's uniform while testifying in a case - or even attending it - and they are not involved as representatives of their agency.

- Carl

 

[CdwJava]

It is amazing to me that the victim is viewed as the criminal for throwing a stapler after being physically assaulted and covered with bruises.

It may well seem that way to you ... the opinion of the people that made the statement to the officers at the scene may have had a different interpretation that would have been at least as valid as hers.

The question is was there a "likelihood of inflicting great bodily injury." The reality is that there wasn't any "likelihood" of it,

Well, looking at the stapler on my desk, I can see how it sure could. The dang thing has some very sharp corners. Would it cause great bodily injury? Who knows. Could it? Sure.

And by the law it can be ADW ... it can be reduced, but it certainly qualifies as ADW.

though these same individuals DID cause photographed injury to her before this event even took place. The police didn't seem to care about that. So if a rape victim gouged out the rapist's eyes... even though this would be severe, should she be charged?

Should she? No. Could she? Yes.

However, the rapist can't argue that he was involved in a legal detention or self defense. So it is not quite an apt comparison.

Where I studied at least and in surrounding states it is 100% illegal to physically restrain an individual suspected of committing a misdemeanor.

Not so in CA. Or at least not a bright line rule here. We generally advise people to keep their hands off, but sometimes they do have to get hands on - and that IS permissable. They can even handcuff shoplifters.

Asking or 'hands off' tends to be a store or company policy and not a matter of the law here.

Non-Police are simply not given that sort of lee-way under any of the codes of states I have examined. I seriously doubt California is an exception to this.

Well, it seems to be.

And, if two people failed to ID themselves and came up and grabbed me, yeah, there would be a problem and it would not likely be seen as a crime for me to pop them ... at least UNTIL they identified themselves.

Right, and thus those people who there was "probable" cause to arrest turn out to be the exception to the statistical "probability" that caused the arrest and accordingly they did NOT deserve to be in the back of your cruiser.

From a legal standpoint they did. Whenyou say they did not "deserve" to be there it implies some manner of wrongdoing on the part of the arresting officer, and this is not the case if the arrest was made with cause.

Most people do not believe that non-violent criminals - career or not - should be in prison for 25 to life.

I would disagree with you. You talk to burglary victims, auto theft victims, and the like, and many of them are traumatized for life for that one "non-violent" act against them. yet the criminal is rarely punished with prison (in CA) until he has a parade of felony convictions under his belt.

The "non-violent" felon does a great deal of damage to society - billions in thefts and lost productivity.

That law was pitched to the public based on the false belief that it would be directed at violent criminals alone.

We had career criminal enhancements long before three strikes. Three strikes has just, blessedly, made it better. And the will of the people to continue it was affirmed in CA in the last election.

So I could call up the department, have my neighbor beaten to a pulp and say "This guy tried to steal my outdoor grill and then when I arrested him he resisted so I fought back?" You MUST be joking. If not California really is as crazy as everyone in the Mid-West thinks it is.

He could also have you arrested.

You're taking it to the absurd end.

If your neighbor steals your grill, you have the right to place him under citizen's arrest. The police in CA cannot refuse to accept that signed arrest. You can try beatiung himto a pulp, but he'd get cited for petty theft and you might go to jail for felony battery. Not a fair exchange I'd say.

Yes if the citizens arrest is valid. You cannot just claim to make a citizens arrest because you think someone was going to steal something and then beat the person for pulling away from you and still maintain a lawful citizens arrest. The police DO NOT have to accept such a B.S. citizens arrest. I simply cannot believe that even California law is THAT insane.

IF there is reason to believe that probable cause exists - even MINIMAL probable cause, we have to accept the arrest.

Depending on the offense, we are given several options: If we believe there is NO cause, than we can release the person per PC 849(b) ... we can cite them out for a misdemeanor ... or arrest and book in to jail.

And I know you keep pointing these out to try and make a point about your wife's situation. Unfortunately, none of this can easily be argued now because of the time that has passed. Did the security people cross the line? Maybe. Did they commit the offense of battery? Maybe. Did your wife commit the offense of shoplifting or ADW? Maybe.

Whoknows? I don't. I am just trying to point out the other side of the coin here. What seems so clear to you is not so clear to everyone else.

Besides, your opinion IS biased ... she IS your wife, after all. And I would be similarly biased if it were my wife.

I still think that given the time and the nature of the offenses and the parties involved, that she faces virtually nothing here ... maybe time served. Probably still a conviction ... maybe, but no real time to be served.

Good luck.

- Carl

 

[YBA]

"How do you mean? What SHOULD they have done when presented with a citizen's arrest for shoplifting and assault and battery with an object that could cause great bodily injury? Should they have disobeyed the law and declined to accept the arrest? Or should they have filed lesser charges than those requested."

Let me put it this way... If I see someone standing around my car with keys in their hand can I beat them to the point that they are covered with bruises and then call the police on them for throwing a stapler towards me and whoever is with me? Can I just say "I thought they were going to key my car?" Of course not.

These people violated my wife's rights by physically assaulting her when no actual crime had been committed. Her kicking while on the ground is not assault, and her throwing a stapler towards them is not assault with a deadly weapon because THEY are the ones who illegally assaulted her in the first place.

So what should the police have done? They should have told the Walmart employees that:

1). She never left the store so she can't be arrested for petty theft; as well her mom is here saying she was in the line with the item and you have video footage of her mom in the line with the item so your arrest for petty theft is false.

2). You did not identify yourselves, you physically grabbed her and then through her to the ground covering her with noticable bruises and thus you cannot arrest her for assault.

3). You subjected her for a false arrest for these things and told her she was going to jail for things that were not actually crimes and now you are trying to say that her throwing something at you is assault with a deadly weapon when she shouldn't even have been detained in the office with the stapler? Get real.

Then they should have asked her and her mother if they wanted to file charges for whatever was appropriate and accordingly arrested the two individuals who subjected her to assault and battery and false arrest.

"And since it is the DA that files charges with the court and NOT the police, it is not their charges in the first place."

Well the police arrested the victim. That is the point. The fact that the victim who happens to be black was turned into the victimizer in the notoriously racist Ventura County is not surprising to any attorney that we talked to before selecting the one which we did. They say that they have heard many such stories, all involving white security and cops charging a black person in Ventura County with outrageous things when no actual crime has been committed.

"So, the police officers you have met, know, or trained with, would have committed a misdemeanor by refusing the arrest? I find that hard to believe."

It's not a misdemeanor to refuse to arrest someone who didn't commit a crime, especially when acting in their own self defense against assault and false citizens arrest.

"Just as a point of legal interest, one does not have to leave the store for the crime of shoplifting to be complete. If the item has been removed from packaging, consumed, damaged, or is headed toward an exit and not passing a cahier is also sufficient."

The package with the barcode was IN line with the cashier.

"Well, that beef is against Wal-Mart And maybe against the DA who filed the charges, not the cops who accepted the arrest. But, it is obvious that the elements were met or it never woul dhave gotten past prelim."

Yes it would have in Ventura County. And it was the police who arrested her FOR such things. Again, defending yourself against assault is not a crime. Eating part of an item that your mother is paying for is not a crime.

"Yep. To help people ... and sometimes that means arresting people. And on occasion the people are innocent - that's why we have citizen's arrests - and probable cause ... it minimizes or removes legal liability from the police."

Then you're not actually helping those admitted innocent people that are occasionally arrested and forced to pay thousands to defend themselves, are you?

"I can give you quite a number of tales of killers walking free. So yes, it does happen to non-cops."

Admitted killers? Officer Roach never denied killing Timothy Thomas. He never denied that he was unarmed. He never denied he only had parking tickets. Timothy Thomas' problem was that he was black and Roach was from Oxford, Ohio which has less than one percentage of black people living there. He was used to being around black people and what he was not used to scared and intimidated him. That's why he was running with his gun drawn in the first place.

"In LAPD a number of completely unfounded complaints have almost the same effect as unfounded ones, so, officers who are simply doing their jobs have to risk complaints that will end their careers. And the bad guys DO know this. Hence the reason that proactive policing and arrests have been on the down turn there. Officers want to keep clean records to go to new assignments and get out of the high crime areas."

Sort of like how innocent people have to go thousands of dollars in debt to prove their innocence and then sometimes still end up doing at least some jail time (gauranteed right off the bat if they are poor and can't get bailed out). Life's not fair for LAPD? It's not fair for us either.

"And, of course, Rampart was exposed BY the LAPD as a result of internal procedures ... just shows that something was working."

Sure, and that means there were good cops in LAPD. Nevertheless it means there were a lot of bad cops... VERY bad cops. Now each one of those very bad cops made lots of arrests which were left unscrutinized in the light of what was later uncovered about them. It could well have been that many of the people they arrested outside of the context of that scandal were innocent people who they knew were poor and couldn't fight the charges against them. Why do you think that almost EVERY poor person HATES police? Seriously, have you talked with people in LA? No one likes police. There's a reason for that. One bad apple spoils the bunch. And LAPD has a whole lot more than one bad apple. And believe me, I'm not anti-police by any stretch of the imagination. I'm just a realist, and it's not just a matter of the poor LAPD never getting a break.

"And potentially tainting the case and making the guy guilty as sin when the circumstances would have made him 'not guilty' by a jury if it went that far."

Well the case is long closed. He walked.

"That kind of help can - and often does - backfire on both parties. Theer are other ways than coaching someone on what to say! Good Lord!"

The man would have done at least a year for carrying concealed (illegally at that time). This was at that time a felony and even if he beat the rap for killing the rapist (which he would have no matter what), then he still would have done very real time for doing a heroic act. Sometimes the law is wrong.

"A "public offense" is essentially a crime. Any crime."

So are you then saying that your average citizens can just go around arresting people for disorderly conduct, public drunkenness, and whatever else?

"I have the formal definition at the office, but, it can be boiled down to: An act or omission, by a person, against a stautory law, for which there is a proscribed penalty."

So this means that it must be so serious that there is a mandatory minimum correct? Wouldn't that be what "proscribed penalty" means? Thus Petty Theft, which has no mandatory minimum would not be an offense which there is a proscribed penalty by law. Thus, the arrest was illegal.

 

[YBA]

"Interesting ... in every agency I have worked in, we would violate department policy to show in uniform for a case where we were not involved int he course and scope of our employment with the agency. Things are different out there."

Could be, maybe I am jumping to conclusions to say that they would show up in uniform. That is just what my Grandfather said they said, but he could have gotten it wrong. Nevertheless, they would certainly identify themselves as Police Officers and their testimony would be gold.

"It may well seem that way to you ... the opinion of the people that made the statement to the officers at the scene may have had a different interpretation that would have been at least as valid as hers."

My point is that her statement would not have been viewed as valid because police general give the benifit of the doubt to security workers (again, I've worked security enough to know), and on top of that Ventura County is notorious for being a bastion of prejudice against black people. Her interpretation was thus disregarded.

"Well, looking at the stapler on my desk, I can see how it sure could. The dang thing has some very sharp corners. Would it cause great bodily injury? Who knows. Could it? Sure."

Do you think that this situation is what the crafters of the law had in mind when the law was written? I don't.

"Quote:
though these same individuals DID cause photographed injury to her before this event even took place. The police didn't seem to care about that. So if a rape victim gouged out the rapist's eyes... even though this would be severe, should she be charged?

Should she? No. Could she? Yes."

Horrifying. Don't you see that as a problem that she even COULD be charged with a crime for this?

"However, the rapist can't argue that he was involved in a legal detention or self defense. So it is not quite an apt comparison."

Neither can they. They threw her to the ground without her striking them in any way. Their assault began with her merely pulling away from them grabbing her.

"Not so in CA. Or at least not a bright line rule here. We generally advise people to keep their hands off, but sometimes they do have to get hands on - and that IS permissable. They can even handcuff shoplifters."

Amazing.

"And, if two people failed to ID themselves and came up and grabbed me, yeah, there would be a problem and it would not likely be seen as a crime for me to pop them ... at least UNTIL they identified themselves."

Yes, and she was charged with Assault for struggling with them BEFORE they identified themselves. When they told her she was going to jail for doing what was not illegal, then she in frustration flung the object at them. So it was their false arrest that led to this situation. Are citizens not allowed to resist false citizens arrests?

"From a legal standpoint they did. Whenyou say they did not "deserve" to be there it implies some manner of wrongdoing on the part of the arresting officer, and this is not the case if the arrest was made with cause."

Right. I'm talking about real people with real lives that are ruined. I'm talking about real bank accounts that get drained over night because of people being in that cruiser when they didn't commit a crime; credit cards maxed out to pay for attorneys. I don't necessarily mean that the officer did anything illegal... Just that he ruined innocent people's lives.

"I would disagree with you. You talk to burglary victims, auto theft victims, and the like, and many of them are traumatized for life for that one "non-violent" act against them. yet the criminal is rarely punished with prison (in CA) until he has a parade of felony convictions under his belt."

Let me give you an example. Most people do not believe that an 18 year old kid who writes 3 $500 checks should go to prison for the rest of his life.

"The "non-violent" felon does a great deal of damage to society - billions in thefts and lost productivity."

Which singular non-violent felon has cost "billions?" I think you are exaggerating a little. As well, millions will probably be spend of tax-payer dollars to imprison him for life. He might as well been out passing bad checks, stealing cars or the like. It probably would have cost the public LESS money than putting him in prison for life.

"We had career criminal enhancements long before three strikes. Three strikes has just, blessedly, made it better. And the will of the people to continue it was affirmed in CA in the last election."

When you have a big time movie star telling you that you should vote for it then a lot of times people won't even look into what he's telling you to vote for. Most people thought this was still about VIOLENT felons. Most people voting for it didn't look into it. That is why the Arnold was put on the ads, because it would sell. Arnold could tell people to vote for just about anything and they would without even thinking much about it. That's the nature of celebrity.

"He could also have you arrested."

That's my point. Just as he could and SHOULD have me arrested for that, so could and SHOULD the security people at Walmart have been arrested for assualting my wife when she was 18. Police should not have been charging their victim with crimes for resisting their beating and false arrest.

"If your neighbor steals your grill, you have the right to place him under citizen's arrest. The police in CA cannot refuse to accept that signed arrest. You can try beatiung himto a pulp, but he'd get cited for petty theft and you might go to jail for felony battery. Not a fair exchange I'd say."

Then why were these people not charged when there were dozens of witnesses there saying "They just attacked her," "She didn't do anything to them" and the like? They don't have ONE SINGLE witness to affirm that they didn't just attack her, and on the spot there were many people telling the police that they attacked her. Why then would they not have been charged with the crimes that they committed if not for the racist Ventura County attitude?

"Whoknows? I don't. I am just trying to point out the other side of the coin here. What seems so clear to you is not so clear to everyone else."

It was clear to the people there who witnessed it and who were telling the police that the assault was upon my wife and that she was defending herself.

"Besides, your opinion IS biased ... she IS your wife, after all. And I would be similarly biased if it were my wife."

If I heard a similar story about anyone I would say "If what you are saying is true, then I absolutely think the security officers acted in an unjust and illegal manner." My opinion would not change. Now based on the fact that I know my wife personally; know that she hasn't been in trouble with the law before or since; know that she isn't a kleptomaniac; know that she doesn't go around assaulting anyone, etc. this makes my belief all the stronger that she didn't do what they accused her of. It simply doesn't make sense that she would have just decided "My mother is in line buying food for everyone, but I think instead of having my mom buy this, I will just steal it even though it is less than $1.00." Sorry, it just doesn't pass the smell test.

If it were CD's or something, then I would be a little more skeptical. I would in fact maintain that they just dealt with the situation improperly and illegally, NOT that she didn't commit the petty theft.

It just doesn't make any sense to believe that a person with their mother in the line with the package you are eating from is in fact shoplifting the item. The security saw a black girl opening something so they assumed guilt when there was none. The police saw a black girl who was accused by Walmart security so they assumed guilt when there was none.

"I still think that given the time and the nature of the offenses and the parties involved, that she faces virtually nothing here ... maybe time served. Probably still a conviction ... maybe, but no real time to be served."

Yes, I hope so. It's kind of funny how we got off on all of these other issues. Funny, but interesting, and I certainly thank you for sharing various California laws with me as well as your opinion an experience. Even if I seem heated at times when responding, I'm not upset with you. Thanks again.