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269

Eighth Circuit Says Cops Can Come With Probable Cause For An Arrest AFTER They’ve Already Arrested Someone (www.techdirt.com)

submitted 1 year ago by [email protected] to c/[email protected]

27 comments fedilink hide all child comments

Well, this is a bit of a doozy. This case — via the Institute for Justice — involves a possible First Amendment violation but somehow ends with a judicial blessing of cops who make things up after the fact to justify an arrest that has already taken place.

That’s literally what happened here. Mason Murphy was walking down a Missouri road when he was accosted by Officer Michael Schmitt. From the opening of this very unfortunate decision [PDF]:

Schmitt stopped his car, approached Murphy, and asked Murphy to identify himself. Murphy refused to identify himself, and Schmitt put Murphy in handcuffs after nine minutes of argument. Murphy asked why Schmitt arrested him, and Schmitt refused to answer.

So far, it would appear no criminal act was committed and that the cuffing of Murphy by Schmitt was in retaliation for Murphy’s refusal to identify himself and, First Amendment-wise, his refusal to shut up.

...

all 31 comments

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[–] [email protected] 57 points 1 year ago (3 children)

So now cops can arrest you just because and figure out some law you broke later (since the gargantuan bureaucracy of the government means you're always breaking some law, however minor). Anyone can be arrested at the whim of any cop.

But I guess we already knew that, since you can be charged and found guilty of resisting arrest while being charged with nothing else that would be a reason for you being arrested.

[–] [email protected] 23 points 1 year ago (1 children)

Laws are also written as vaguely as possible so you'd need a lawyer to explain it to you and can be argued in court that it actually encompasses more than what was intended.

[–] [email protected] -5 points 1 year ago* (last edited 1 year ago)

the gargantuan bureaucracy of the government means you’re always breaking some law, however minor

This isn't remotely true, yet somehow people keep repeating it. There are very few laws, be it federal, state, or local, that can plausibly be used to just randomly arrest someone who was unaware of the law.

[+] [email protected] -27 points 1 year ago* (last edited 1 year ago) (3 children)

I mean... what it looks like to me from a first reading is that they arrested him because he was being a dick and refusing to ID and being combative with the cops. It's not like they just put him in some kind of no-win Daniel Shaver bind where no matter what he did he was going to go to jail.

Was it illegal for him to do that? No (this crappy 8th circuit decision notwithstanding). Should they have arrested him for it? No. Is it appropriate for the officers involved to get some sort of consequence because they let him get under their skin and retaliated in an illegal fashion? Yes.

Is this the kind of thing that happens sometimes when you're a dick to some other human being in the world, even if you are within your rights to do so? Yuuuup.

[–] [email protected] 14 points 1 year ago (1 children)

In my opinion, everyone has no reason to be polite and respectful with cops. They don't deserve it. Their entire history (from the beginning) has been as enemies to the general public.

[+] [email protected] -21 points 1 year ago* (last edited 1 year ago) (1 children)

You're free to find some unincorporated land somewhere and some like-minded people, and run the place with no cops. Should be a big improvement yes?

Edit: Downvotes: Unanimous. Upvotes for the dude I replied to: Unanimous. Deafening silence of people who should be saying "Actually that's a great idea, let's organize and we can make it happen": Unanimous.

Come on guys... if I was surrounded by enemies, I'd really appreciate someone pointing out a solution where I wouldn't have to be surrounded by them anymore. Also, there are plenty of places on some continents where you wouldn't have to deal with even police on the county or state level. The techbros at least made a genuine effort to set up their little crypto-backed libertarian paradises. I really think you should look into this. Y'all can do it! 😃

[–] [email protected] 6 points 1 year ago (1 children)

Your "solution" is the exact sort of thing that led to a bunch of libertarian assholes ruining parts of rural New Hampshire, and much to the chagrin of the preexisting community.

There isn't really any open land anymore. It's all owned, overwhelmingly in private hands.

[+] [email protected] -6 points 1 year ago (1 children)

I didn't say unowned, I said unincorporated. You can purchase land outside the jurisdiction of anything below the county level and there will be effectively no police presence for you to worry about.

And yes, I'm aware of the hilarious New Hampshire libertarian experiment. I'm comparing the person I was speaking with to the libertarians. They said police are the enemy, and I was trying to imply that grouping together a bunch of like-minded people together and living in a place with none of those "enemies" would expose the underlying flaws in the idea of how police are just a bad thing in the US from start to finish. I'm obviously being facetious when I say they should do that. If it actually was an accurate summary of what the police do to a community, then what I'm saying would be a sensible idea.

There are actually good examples of takeovers of a place by like-minded individuals to make the government there better. A big part of the reason Vermont is a pleasant place to live even up to the present day is that 50 years ago a whole bunch of liberal-minded people moved there, some of them with the specific goal of concentrating their political power in a single place so they could make it more progressive in its government. So that "takeover" worked, because the people moving up there actually had good, productive ideas for how they wanted their community to be, and Vermont is still a very nice place overall.

In this case though, I'm suggesting that "police are the enemy" is just as childish an idea as "government regulation on my trash disposal is the enemy," and trying to put that attitude into practice would fail just as badly as that libertarian project. But, who knows, y'all can always make it happen and prove me wrong.

[–] [email protected] 4 points 1 year ago (1 children)

Garbage collectors are way more likely to die on the job than cops, and they don’t shoot innocent people on the regular. Peddle your false equivalencies elsewhere.

Plus, unless you’re a complete fool, you know perfectly well that a good percentage of people saying “police are the enemy” are using that as shorthand for “policing as it exists in the US today makes the police the enemy.”

Plus, most people aren’t willing to uproot their lives for a single political belief (assuming they can afford to), so I don’t see why you’re holding this group of people to a higher standard.

[–] [email protected] -2 points 1 year ago

they don’t shoot innocent people on the regular

What percentage of police shoot an innocent person in any given decade that they're on the force? I would be interested in the answer to this question.

policing as it exists in the US today makes the police the enemy

So, being antagonistic to any individual cop when you interact with them is going to make this situation worse? Or better?

That's what strikes me as so childish about the whole thing. If the statement was "Obviously we need to have police, but there are systemic problems with the way policing is done in the United States today, and we need to do X, Y, and Z in order to improve it," then there's a pretty good chance I'd 100% agree with it. That's productive. Saying police are the enemy and always have been, and so implying that it's reasonable to be a dick to any individual cop and try to make the interaction as painful as possible, just seems way counterproductive to anything that'll actually improve anything.

[–] [email protected] 13 points 1 year ago (1 children)

It's fucked up you bring up Daniel Shaver and your outcome is going to jail and not being murdered like he was.

You couldn't just kneejerk your cop jerk off without trying to whitewash his name?

GTFO of here with your copaganda. ACAB. The only good cops got fired for telling the truth. 'Decent' cops keep their mouths shut about the internal criminal behavior they see; complicity means consent, which makes them just as bad. There is no middle ground.

If cops act criminal they should be treated like criminals, full stop. Violating constitutional rights, as a member of government, is criminal.

[–] [email protected] -1 points 1 year ago (1 children)

I wasn't trying to be flippant about Daniel Shaver getting murdered. I was trying to make the point of what a huge gulf there was between what happened to him and what happened here. If it sounded like I was being casual about the wrongness of that instance, then I apologize; that wasn't the intent at all and I think I was a little careless about how I brought up his name, yes.

You couldn’t just kneejerk your cop jerk off without trying to whitewash his name?

You think that I was bringing up Daniel Shaver as a way to... make the police look better? Because I'm obviously a malicious apologist?

I'm fully in agreement with you as to what should happen when a cop does something criminal. We're definitely going to disagree on some things, but on that I can assure you we agree.

[–] [email protected] 2 points 1 year ago* (last edited 1 year ago) (1 children)

Alright I gotchu. We good.

And if anybody is looking for stochastic inspiration his name is Phillip Brailsford. He killed an innocent man, Daniel Shaver, who was pleading for his life. Daniel was guilty of leaving his hotel room to get ice from the hall machine.

This motherfucking murderer, Brailsford, and his enablers/protectors at the precinct had the audacity to claim PTSD from the shooting and then take a medical retirement and get 30k/yr untaxed, for the rest of his life.

He callously murders and then we get to pay him in perpetuity for the honor?

This is what the force has become. Infested and infiltrated with immoral evil serial killers.

If you gotta, I'm just saying, this wrong could be righted. Karmic scales can be balanced.

If ya gotta go, go out with a bang.

[–] [email protected] 0 points 1 year ago (1 children)

Bro that wasn't at all what I was saying. I was talking about criminal penalties. I get it and it's a fucking tragedy everything Brailsford did and the system's response from top to bottom. But:

The problem is that people can be violent with no repercussions, and we need a system that enforces actual justice, because the system doesn't do justice. 100% that's an urgent problem, I agree 100%. Now we're gonna fix the problem by adding more violence and less system.

Oh no now there's more violence and less justice! And the system that enforces justice is even weaker.

How could this have happened

[–] [email protected] 2 points 1 year ago (1 children)

Everything after that first sentence was tongue in cheek explanation for context and was directed towards anyone else reading it.

Not to you amigo, sorry if that wasn't clear. It's hard to keep up with all the abortions of justice (the only abortions conservatives want!).

[–] [email protected] -1 points 1 year ago* (last edited 1 year ago)

Ah, makes sense, no worries.

[–] [email protected] 8 points 1 year ago (1 children)

You're not wrong in your assessment, but part of the point of holding your government to account is that you hold the institution to a higher standard than the individuals it governs.

That doesn't show through in your write-up at all.

[–] [email protected] 0 points 1 year ago

Yah, I agree with that. I think the penalty for, e.g., the police attacking someone illegally, should be a lot greater than the penalty for some random person attacking someone illegally. Like I say, I actually do think the cops in this particular case should face some kind of penalty for overstepping their bounds.

I'm just trying to say that, these two statements are both true for more or less the exact same reason:

The police really should be more aware of the psychology of how their behavior will be perceived and take on a common-sense responsibility to not just come in and say "Stop walking, come over here right now, give me your ID." They should be aware that being a dick in their demeanor will impact the effect of that technically-legal statement and how people react.
This dude should really be more aware of the psychology of how his behavior will be perceived and he has a common-sense responsibility to not just come into the encounter saying "Go fuck yourself, you don't need my ID." He should be aware that being a dick in his demeanor will impact the effect of his technically-legal statement and how people react.

I don't think either one is contingent on the other. Common sense dictates that for any person walking around, it's in that person's own best interest to be aware of how others are going to react to them and interact in a way that is productive.

[–] [email protected] 45 points 1 year ago* (last edited 1 year ago) (1 children)

Not that it's directly related to this case, but: Daily reminder that probable cause refers to the reason the police can conduct an arrest or apply for a warrant. It does not mean they can search without a warrant, except in very specific circumstances. There's a mythology that "probable cause" means they can search, but it doesn't. They can search your person when arresting you, or your car when they're towing it, but that's not because "probable cause."

Be polite, don't be a dick. Being anything other than aboveboard and civil to them will make your interaction with them a lot worse for you. But also, if you're in their crosshairs in any capacity, be clear about saying when you do not consent to a search, and for the love of God shut the fuck up until you talk to a lawyer.

[–] [email protected] 2 points 1 year ago

I thought I saw an open container.

I thought I heard someone cry for help.

I felt threatened for my life.

I used to genuinely respect police but I've seen so much abuse that it's impossible to trust them now.

[–] [email protected] 35 points 1 year ago

Cool. Now, let's talk business. These judges have committed some seriously heinous crimes. I'll let you know what the evidence is soon, but for now let's just get these criminals into a jail cell. We'll work out the details later.

[–] [email protected] 29 points 1 year ago* (last edited 1 year ago) (1 children)

So it appears the problem was what Murphy sued over. His lawsuit claimed his first amendment rights were violated because he was exercising free speech and the cop retaliated. I think the key point is that Murphy agreed there was probable cause to arrest him.

He should have claimed a violation of his fourth amendment rights for the unlawful seizure as he was arrested without probable cause. Once he agreed there was probable cause, that negated that argument.

It sucks, but this is why having a good lawyer can help. And if you want to argue that a court should be able to elaborate beyond what was brought in the lawsuit, consider conservatives would have no qualms about shoving abortion restriction and all manner of bullshit through using tangentially related cases.

[–] [email protected] 3 points 1 year ago

(This is a more detailed summary of the case if you want to read more)

(Also this little grab bag of all kinds of other fascinating decisions and rulings is well worth reading)

[–] [email protected] 17 points 1 year ago

ACAB

[–] [email protected] 15 points 1 year ago (1 children)

#backtheblue? Nah not me.

[–] [email protected] 6 points 1 year ago

I love living in a dystopian police state...