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Thread: Federal Judge Rules Lawfully Exercising Right = Nullification of 4th Amendment

  1. #11
    Quote Originally Posted by AndeyHall View Post
    So was he arrested or just detained?
    In the first paragraph of the linked article this summary explained how they got to the civil suit involving the judge's ruling.
    ~
    While taking a walk one day, legally open carrying a firearm, Christopher Proescher was stopped by police, questioned and arrested. The local prosecutor, seeing the Mr. Proeshcer committed no crime dropped all charges. In response to the false arrest Proescher reasonably filed a lawsuit against the officers.
    ~
    Read more at Federal Judge Rules Lawfully Exercising Right = Nullification of 4th Amendment - Bullets First | Bullets First
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  3. Quote Originally Posted by dogshawred View Post
    In the first paragraph of the linked article this summary explained how they got to the civil suit involving the judge's ruling.
    ~
    While taking a walk one day, legally open carrying a firearm, Christopher Proescher was stopped by police, questioned and arrested. The local prosecutor, seeing the Mr. Proeshcer committed no crime dropped all charges. In response to the false arrest Proescher reasonably filed a lawsuit against the officers.
    ~
    Read more at Federal Judge Rules Lawfully Exercising Right = Nullification of 4th Amendment - Bullets First | Bullets First
    Technically he could have resisted and there would have been nothing they could still do about that. You can resist an illegal arrest up to and including deadly force.


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  4. I just read the entire opinion. Of course, going to the source to see what it really says is contrary to internet gun forum culture, which too often prefers to rely on agenda-driven reports of others' takes on the case.

    This was not a case of Proescher taking an innocent walk only to find himself singled out for carrying a gun. He was, in fact, open-carrying a properly-licensed gun, but was walking quickly, with determination, and agitatedly (i.e., not the usual way people walk in parks) in a park in which there were children in a playground nearby. He was dressed in black boots, a black hoodie sweatshirt, and apparently a camo jacket, not the usual and expected walking clothes. That aroused the suspicion of a security guard, who called a town cop. The town cop detained Proescher IAW the Terry v. Ohio Supreme Court decision back in the 1960s (stopping and frisking based on reasonable belief that the detainee is committing or planning to commit a crime is permissible even if it later turns out that the detainee did not commit and was not preparing to commit a crime). Proescher told the policeman that he was exercising, and gave his photoless gun permit to the policeman. He evaded answering questions about providing his driver's license and was acting confused (including chatting about dogwood leaves and the policeman's eyes and legs, and stating that he "had a license for whatever he needed a license for) and provided conflicting information about his birthday. He was arrested for trespass after refusing to leave the park after being told to do so. When he emptied his pockets during the routine search incident to arrest, the police found a recorder with which he had been recording the entire discussion. Proescher sued based on the constitutional tort theory which saw its heyday in the 1980s. The court found that the detention, stop-and-frisk, and arrest (for trespass) were lawful under the totality of the circumstances, not just because he had a gun. As plaintiff, Proescher simply didn't meet his burden of proof on some highly technical legal issues.

    Could the security guard and policeman have handled this differently? Yes, of course, but the law recognizes that police are necessarily afforded wide discretion. It's always easy to second-guess them with benefit of hindsight--especially if you have a pro-gun, anti-cop ax to grind. Here, they appear to have acted out of an abundance of caution (guns, kids, detainee acting strangely...) Could Proescher have avoided the situation and eventual legal hassles? Yes, definitely, by using common sense and not acting bizarrely while carrying a gun and by simply leaving the park. But he seems to have been out to force an open-carry confrontation over his right to be where he was, acting as he was, carrying what he was. That's not a bright way to make a statement with or about guns or open carry. The basis for the order to leave the park is unclear from the opinion, but the judge's obvious satisfaction with it suggests that more information justifying the order was in the underlying case file evidence. Could the judge have decided differently? Yes, but his application of the law seems to have been correct, and more importantly he didn't contrive the legal analysis to fit a predetermined outcome one way or the other. While it's possible to see how he could have arrived at different fact-based conclusions of law that would have looked pretty tortured and very likely wouldn't have survived appeal by the defendants, had they lost.

    In short--interesting case but it doesn't come close to standing for what most seem to want to think it does, i.e., that cops illegally seek out people just for carrying guns especially in a place where they have a right to be, and that this judge warped the law to make an anti-gun statement.

  5. Quote Originally Posted by AndeyHall View Post
    Technically he could have resisted and there would have been nothing they could still do about that. You can resist an illegal arrest up to and including deadly force
    This is not only flat-out wrong, it's irrational and dangerous.

  6. #15
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    Quote Originally Posted by nosreme View Post
    I just read the entire opinion. Of course, going to the source to see what it really says is contrary to internet gun forum culture, which too often prefers to rely on agenda-driven reports of others' takes on the case.

    This was not a case of Proescher taking an innocent walk only to find himself singled out for carrying a gun. He was, in fact, open-carrying a properly-licensed gun, but was walking quickly, with determination, and agitatedly (i.e., not the usual way people walk in parks) in a park in which there were children in a playground nearby. He was dressed in black boots, a black hoodie sweatshirt, and apparently a camo jacket, not the usual and expected walking clothes. That aroused the suspicion of a security guard, who called a town cop. The town cop detained Proescher IAW the Terry v. Ohio Supreme Court decision back in the 1960s (stopping and frisking based on reasonable belief that the detainee is committing or planning to commit a crime is permissible even if it later turns out that the detainee did not commit and was not preparing to commit a crime). Proescher told the policeman that he was exercising, and gave his photoless gun permit to the policeman. He evaded answering questions about providing his driver's license and was acting confused (including chatting about dogwood leaves and the policeman's eyes and legs, and stating that he "had a license for whatever he needed a license for) and provided conflicting information about his birthday. He was arrested for trespass after refusing to leave the park after being told to do so. When he emptied his pockets during the routine search incident to arrest, the police found a recorder with which he had been recording the entire discussion. Proescher sued based on the constitutional tort theory which saw its heyday in the 1980s. The court found that the detention, stop-and-frisk, and arrest (for trespass) were lawful under the totality of the circumstances, not just because he had a gun. As plaintiff, Proescher simply didn't meet his burden of proof on some highly technical legal issues.

    Could the security guard and policeman have handled this differently? Yes, of course, but the law recognizes that police are necessarily afforded wide discretion. It's always easy to second-guess them with benefit of hindsight--especially if you have a pro-gun, anti-cop ax to grind. Here, they appear to have acted out of an abundance of caution (guns, kids, detainee acting strangely...) Could Proescher have avoided the situation and eventual legal hassles? Yes, definitely, by using common sense and not acting bizarrely while carrying a gun and by simply leaving the park. But he seems to have been out to force an open-carry confrontation over his right to be where he was, acting as he was, carrying what he was. That's not a bright way to make a statement with or about guns or open carry. The basis for the order to leave the park is unclear from the opinion, but the judge's obvious satisfaction with it suggests that more information justifying the order was in the underlying case file evidence. Could the judge have decided differently? Yes, but his application of the law seems to have been correct, and more importantly he didn't contrive the legal analysis to fit a predetermined outcome one way or the other. While it's possible to see how he could have arrived at different fact-based conclusions of law that would have looked pretty tortured and very likely wouldn't have survived appeal by the defendants, had they lost.

    In short--interesting case but it doesn't come close to standing for what most seem to want to think it does, i.e., that cops illegally seek out people just for carrying guns especially in a place where they have a right to be, and that this judge warped the law to make an anti-gun statement.
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  7. Federal Judge Rules Lawfully Exercising Right = Nullification of 4th Amendment

    Quote Originally Posted by nosreme View Post
    This is not only flat-out wrong, it's irrational and dangerous.
    So you're saying the police can just walk up to you and say "hey you're going to jail today", and you just have to go?

    Read the very first sentence or 2 of this link. There are many many many court cases upholding what I just said, which is apparently "flat-out wrong": http://www.constitution.org/uslaw/defunlaw.htm


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  8. Quote Originally Posted by AndeyHall View Post
    Technically he could have resisted and there would have been nothing they could still do about that. You can resist an illegal arrest up to and including deadly force.
    "Judge, I was just walking down the street minding my own business while carrying a full-auto SMG with a silencer for neither of which I had a BATF tax stamp. The constitution says my right to bear that firearm came directly from god and 'cannot be infringed.' By the way, have you read the constitution lately, judge? So when the police started to illegally arrest me for possession and brandishing of a god-given, constitutionally-protected firearm I need for self defense because everybody knows there's a gunfight just around the corner all the time I first politely said, 'arresting me for possessing these god-given constitutionally protected items would be an unconstitutional infringement of my right to bear arms and therefore an illegal arrest, so what part of 'shall not be infringed' do you not understand?' One of them started to grab the weapon--which was god-given and constitutionally protected, by the way--and the other was clearly getting ready to put handcuffs on me, and that's when I said, 'molon labe' to give them fair warning. When they commenced to proceed, in spite of the illegality of their actions and in spite of my fair warning, I blew them away with a full auto burst. I had the right to use deadly force because they were trying to make an illegal arrest. I read a post in an internet gun forum that said that the law says I can do that."

  9. Federal Judge Rules Lawfully Exercising Right = Nullification of 4th Amendment

    Quote Originally Posted by nosreme View Post
    "Judge, I was just walking down the street minding my own business while carrying a full-auto SMG with a silencer for neither of which I had a BATF tax stamp. The constitution says my right to bear that firearm came directly from god and 'cannot be infringed.' By the way, have you read the constitution lately, judge? So when the police started to illegally arrest me for possession and brandishing of a god-given, constitutionally-protected firearm I need for self defense because everybody knows there's a gunfight just around the corner all the time I first politely said, 'arresting me for possessing these god-given constitutionally protected items would be an unconstitutional infringement of my right to bear arms and therefore an illegal arrest, so what part of 'shall not be infringed' do you not understand?' One of them started to grab the weapon--which was god-given and constitutionally protected, by the way--and the other was clearly getting ready to put handcuffs on me, and that's when I said, 'molon labe' to give them fair warning. When they commenced to proceed, in spite of the illegality of their actions and in spite of my fair warning, I blew them away with a full auto burst. I had the right to use deadly force because they were trying to make an illegal arrest. I read a post in an internet gun forum that said that the law says I can do that."
    I'm sorry, the post I read says the guy was legally open carrying a firearm and was arrested for that. You just described a story (pulled out from way way deep in your ass if I might add) where the guy was clearly breaking the law, in which case the officers would NOT be making an illegal arrest, and you're trying to construe what I said to apply to that situation? Case law CLEARLY says that you have every right to resist an UNLAWFUL arrest, up to and including deadly force. I guess the take away message here is that if a cop walks up to you and for no justifiable reason tells you you're going to jail, or even tells you to get on your knees and show him a good time, you're going to comply because anything else is "not only flat-out wrong, it's irrational and dangerous" as well.


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  10. #19
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    Federal Judge Rules Lawfully Exercising Right = Nullification of 4th Amendment

    Quote Originally Posted by sdprof View Post
    What crime? Walking while free?

    Just because one is a judge, does not mean they make good judgements.
    It also means that they aren't good judges!
    Tar and feather then kick them onto the street for additional entertainment!


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  11. Quote Originally Posted by AndeyHall View Post
    ... Case law CLEARLY says that you have every right to resist an UNLAWFUL arrest, up to and including deadly force...
    Then you should be able to easily back up that deadly force statement with case law cites. Reporter cites only please, as I no longer subscribe to Lexis and Westlaw now that I've retired from the practice and teaching of law.

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