Student arrested for refusing to be searched (Empty Holster)

[b322da]

Elmo, I agree. I was taking exception to what gigag said about not leaving the area. The other thing I am not sure of is that if a holster really=gun. If this is true where do we draw the line? For most of us on this board here are a bunch of other things that equal a gun:

- vest in the summer
- fanny pack with a full zipper
- goofy loose fitting pattern shirt
- exposed clips underneath belt (tuckable holster)
- etc...

I could easily aritucalte why any of the above would make me think a weapon may be present.

Steve,

Apologies for my unwarranted assumption about your earlier post. I do not think you and I are far apart.

I do not think that the issue here is whether or not "a holster=gun," or whether or not the other things you mention=gun.

Instead, the issue, in my opinion, is whether or not the situation faced by an LEO at some particular time, at some particular place, under the particular circumstances at hand, may = a reasonable suspicion of the presence of a gun, coupled with his good faith opinion that the safety of himself and/or others may be at imminent risk.

After all, this would only justify a Terry frisk, a pat-down, not a body search, indeed any kind of search. As a matter of law, a Terry frisk is not a "search" when it is a lawful frisk, or, depending on how a constitutional scholar might look at it, "a search exempted from the demands of the 4th Amendment." Of course the frisk may generate probable cause to support a search. For example, it would be quite different if the pat-down disclosed an empty holster -- the incident is closed; than when the pat-down disclosed the presence of a gun in the holster, the possession of which may be unlawful.

I think if you looked at precisely what the LEO appears to have seen in the case at hand under differing circumstances, the legality of a Terry frisk might be different, if,

1. The student was casually walking alone down the sidewalk on an otherwise normal day, and

2. The student was at the time clearly demonstrating with his or her colleagues at an "empty holster" protest march at the university, the demonstration having been approved in advance by the appropriate authority.

Elmo

[DoubleJ]

maybe it's just me, but I'd think that seeing an *empty* holster, kinda excludes a gun. I mean, it's empty, after all.
The the Law Enforcers were genuinely worried about the guy, they coulda just watched and waited for a real reason to do something, other than picking a fight, and being surprised a fight broke out (and by fight I mean "confrontation").

I'm not sure if anyone else has touched on this, but what right do cops have to just tell people "you gotta leave" and they have to leave? If it's in a business, I understand. But he's on campus!

I'm also surprised Al Sharpton hasn't raised (risen?) a stink about this guy being arrested, basically for nothing, and being black! (or is it more appropriate to say "of color?")
Where's Jesse Jackson????

[puma guy]

After all, this would only justify a Terry frisk, a pat-down, not a body search, indeed any kind of search. As a matter of law, a Terry frisk is not a "search" when it is a lawful frisk, or, depending on how a constitutional scholar might look at it, "a search exempted from the demands of the 4th Amendment." Of course the frisk may generate probable cause to support a search. For example, it would be quite different if the pat-down disclosed an empty holster -- the incident is closed; than when the pat-down disclosed the presence of a gun in the holster, the possession of which may be unlawful.

I think if you looked at precisely what the LEO appears to have seen in the case at hand under differing circumstances, the legality of a Terry frisk might be different, if,

1. The student was casually walking alone down the sidewalk on an otherwise normal day, and

2. The student was at the time clearly demonstrating with his or her colleagues at an "empty holster" protest march at the university, the demonstration having been approved in advance by the appropriate authority.

Elmo

Please elaborate. How is a frisk not a search?

[WildBill]

After all, this would only justify a Terry frisk, a pat-down, not a body search, indeed any kind of search. As a matter of law, a Terry frisk is not a "search" when it is a lawful frisk, or, depending on how a constitutional scholar might look at it, "a search exempted from the demands of the 4th Amendment." Of course the frisk may generate probable cause to support a search. For example, it would be quite different if the pat-down disclosed an empty holster -- the incident is closed; than when the pat-down disclosed the presence of a gun in the holster, the possession of which may be unlawful.

I think if you looked at precisely what the LEO appears to have seen in the case at hand under differing circumstances, the legality of a Terry frisk might be different, if,

1. The student was casually walking alone down the sidewalk on an otherwise normal day, and

2. The student was at the time clearly demonstrating with his or her colleagues at an "empty holster" protest march at the university, the demonstration having been approved in advance by the appropriate authority.

Elmo

Please elaborate. How is a frisk not a search?

The search of the suspect’s outer garments, also known as a patdown, must be limited to what is necessary to discover weapons; however, pursuant to the “plain feel” doctrine, police may seize contraband discovered in the course of a frisk, but only if the contraband’s identity is immediately apparent

It may get handled a little differently in "real life".
http://en.wikipedia.org/wiki/Terry_stop" onclick="window.open(this.href);return false;

[Barbi Q]

Long hair = OK to search for drugs

Short hair = OK to search for guns

The 4th Amendment is dead.

[WildBill]

Long hair = OK to search for drugs

Short hair = OK to search for guns

The 4th Amendment is dead.

No hair = OK to Search for Guns, Drugs and Explosives.

[Barbi Q]

Long hair = OK to search for drugs

Short hair = OK to search for guns

The 4th Amendment is dead.

No hair = OK to Search for Guns, Drugs and Explosives.

http://tinyurl.com/4t2zoe5" onclick="window.open(this.href);return false;

[flintknapper]

I had a chance to chew on this some more, and it still seems crazy that one would not instantly think gun when they see a holster being worn. It's easy to armchair quartback and say of course he didn't have a gun. But when it's your butt on the line, and your families' well being at stake, you will think differently I assure you. Especially with the number of slain officers this year.

Now we seem to have taken a different course.

We've had the "Officer Safety at all costs" discussions before. That wasn't at all at play in this circumstance.

I partially understand the hyper-sensitivity....since the scene was at a School, but I still think the officers acted on a whole lot of "better safe than sorry"....than they did on any articulable (reasonable) suspicion.

[Barbi Q]

Officer safety. Officer safety.

What about STUDENT SAFETY?

Kalifornia Avocados coming to Texas and opposing SB 354 so Texas students get killed.

[WildBill]

Officer safety. Officer safety.

What about STUDENT SAFETY?

Kalifornia Avocados coming to Texas and opposing SB 354 so Texas students get killed.

Yeah, turn them into Guacamole!

[flintknapper]

b32da wrote:

My lifetime dedication to, and service to, the Rule of Law, just cannot let this statement be ignored.

Please inform me as to your profession, so I will know how to respond to this. In the course of your dedication to the LAW, I will assume you also considered the Constitution and the Bill of Rights?

What would you do with the other eleven on that jury?

What I always do....when on a jury. Listen carefully and respectfully to the thoughts of others. If there is disagreement...I clearly state WHY and ask for more discussion. But, you have made an Assumption that the other eleven would take a position opposite of mine, convenient for your argument...but not likely in real life. BTW....more times than not...I am selected Jury Foreman...and I do NOT go into the jury room with a pre-decided position.

Pull your illegal-in-the-courtroom gun on them to force them to vote for acquittal as you ignore your duty as a juror to follow the instructions of the judge?

This is just so bizarre...I don't even know how to answer it. Please clarify!

Or force a mistrial and a new trial with you off the jury?

Well...now, you've really painted me as the ominous decenter, huh? Wild guess..(you are/were a DA)?

Do you think you would ever be on the jury in such a case after you tell the DA, defense counsel, and judge, at voir dire, that you have already made up your mind as to the guilt or innocence of the defendant simply because of what you have learned from the media?

How did you extract this from what I have written here? IF the same information presented in the news article were presented in court (as testimony/evidence), and NO substantial rebuttal made (beyond what gigag offered), then YES..my decision would be as stated. Did that really throw you?

Or would you continue to rant from a jail cell after you lie and tell them that you can be an impartial juror, and your post here is made known to the judge?

I believe any judge worth his salt....would NOT have read into it...what you did. I've been on about 12 Juries in my lifetime and never lied about anything. Apparently...during voir dire, both attorneys have been suitably impressed that I would be impartial.

When you put it on the internet you may assume that the whole world knows it.

Thank you...for that epiphany.

[McKnife]

I've been in a few situations where authorities wanted to search and I said no. I could see the flame in their eyes and steam from their nostrils , but they never went over the line. Unfortunately, I've heard that it's quite common for some authorities to rig up false charges in order for them to get their search, in hopes of finding something resulting in a stronger charge.

I suspect the same happened to Mr. Richards when he refused.

Similar example below, but it was in a vehicle, not a campus.

Example of Refusing a Search in Texas, but charged with Resisting Arrest for Not Handing Over Keys:
[youtube][/youtube]
I don't know the outcome of the video, but I suspect it resulted in lawsuit$$$.

This video ought to be a reminder to all of us to "fully comply, but never consent."

[WildBill]

I've been in a few situations where authorities wanted to search and I said no. I could see the flame in their eyes and steam from their nostrils , but they never went over the line. Unfortunately, I've heard that it's quite common for some authorities to rig up false charges in order for them to get their search, in hopes of finding something resulting in a stronger charge.

I don't know the source of this video, but it seems bogus.

[tacticool]

What would you do with the other eleven on that jury?

What I always do....when on a jury. Listen carefully and respectfully to the thoughts of others. If there is disagreement...I clearly state WHY and ask for more discussion. But, you have made an Assumption that the other eleven would take a position opposite of mine, convenient for your argument...but not likely in real life.

Even if you disagree with 11 other people, there's nothing illegal or unethical about that.

[gigag04]

What would you do with the other eleven on that jury?

What I always do....when on a jury. Listen carefully and respectfully to the thoughts of others. If there is disagreement...I clearly state WHY and ask for more discussion. But, you have made an Assumption that the other eleven would take a position opposite of mine, convenient for your argument...but not likely in real life.

Even if you disagree with 11 other people, there's nothing illegal or unethical about that.

here actually.

I suspect the same happened to Mr. Richards when he refused.

Similar example below, but it was in a vehicle, not a campus.

Example of Refusing a Search in Texas, but charged with Resisting Arrest for Not Handing Over Keys:
[youtube][/youtube]
I don't know the outcome of the video, but I suspect it resulted in lawsuit$$$.

This video ought to be a reminder to all of us to "fully comply, but never consent."

Seems a bit of a stretch to apply that video to a situation you didn't witness, no? I can assure you that the limited number of outlets telling the story means we don't have all the information. Suspect what you wish...but I feel that many of our musings, mine included, are mere speculation with limited facts known.