Pepper Spray an Illegal Weapon?

[sjfcontrol]

I think it was DPS that told us the larger "fire extinguisher" size used for crowd control is the one illegal for civilians. As well as the O.C. grenades.

If your not in the military and subject to the UCMJ, you are a civilian. If you recall recently, the Ft Hood reports went to great lengths to differentiate between military police and civilian police.

Relevance?

[Skiprr]

The Texas Penal Code definition, for those who might want it, is PC §46.01(14).

[03Lightningrocks]

Reading that story makes my blood boil. I am no lawyer but I can darned well promise I would be seeking legal damages against that cop and the City of Wylie. At the least the cop should be fired. That whole deal was obvious harassment.

[ScottDLS]

I think it was DPS that told us the larger "fire extinguisher" size used for crowd control is the one illegal for civilians. As well as the O.C. grenades.

If your not in the military and subject to the UCMJ, you are a civilian. If you recall recently, the Ft Hood reports went to great lengths to differentiate between military police and civilian police.

Relevance?

Citizens who are not law enforcement officers resent police referring to them as "civilians". Police who are not on active duty in the Armed Forces of the United States are civilians too. This whole militarization of the civil law enforcement forces encourages an us vs. them attitude. Police have legitimately upped their firepower in the past few decades as they have faced more heavily armed criminals. However it seems there has also been a trend toward military style tactics, uniforms, behavior, etc. that is not really appropriate in a CIVILIAN law enforcement context. Citizens are not the "enemy" and police are not the "Army".

[sjfcontrol]

Ah! Now the comment makes more sense -- I agree!

[srothstein]

And he persisted in believing so, despite his sergeant's doubts. "It's in the Penal Code somewhere. I don't know where, but I can look it up."

Here's the thing about arresting someone on probable cause that a crime has been committed: unless you can lay your finger on the exact line of the law that has been violated, don't arrest someone. Unless there's some exigent circumstance that endangers the public, refer the matter to the DA.

While I am probably debating mere semantics, the correct answer is to arrest, but don't book the person. The arrest was made when the cop stopped the person from leaving the scene. If the cop had probable cause to believe a law was broken, then placing him under arrest, cuffing him, and placing him in the patrol car is the correct action. Then the cop should be digging out his penal code and checking the exact wording of the law to see if he has all of the elements met. If he is missing an element, or cannot articulate it properly, then the suspect should be released while still at the scene. This is known as "unarresting" the person.

Then the officer can take his time and do more investigating and file charges if needed.

The reason you do not want to not arrest is the potential danger in checking the law while the suspect is still walking around. For some unknown reason, a lot of criminals do not like it when the police arrest them and may decide to fight or escape if they know the officer is looking up the law to make the arrest. So, you secure the suspect instead. That make it an arrest at that point. Just because you arrested him is no reason to book him though. You can figure out other ways.

This is why all cops SHOULD be required to have the code books in their briefcase. I do not expect every cop to know every law. I do expect them to know where to find it and to be able to look it up.

[ScottDLS]

Ah! Now the comment makes more sense -- I agree!

Saw your signature. Good luck getting your plastic...I hear things are running a little faster these days...so if you went pending 11/2 I hope you'll see it before the end of the year. I started my CHL in May 1996 and it took me until that October to get it. I've had renewals go through in around 30 days, but my last one was in '06 good till '11.

Anyway, back on topic. I think the "chemical dispensing device" part of Texas Penal Code is to prohibit poison gas bombs and massive chemical dispensers. Looks like the typical pepper spray device is specifically exempted. What would Dog the Bounty Hunter do without his big ole pepper sprayers in double holsters?

[casingpoint]

People like to cooperate with cops, and cops love to take advantage of that fact. However, when you solicit somebody's good nature and then use the results against them for something frivolous as in this case, you start to erode one of the basic tenants of policing, the support of the local community. A cop who fishes for information and turns it against the informer commits something akin to fraud by hiding his true intentions within his misleading inquiries.

[chabouk]

And he persisted in believing so, despite his sergeant's doubts. "It's in the Penal Code somewhere. I don't know where, but I can look it up."

Here's the thing about arresting someone on probable cause that a crime has been committed: unless you can lay your finger on the exact line of the law that has been violated, don't arrest someone. Unless there's some exigent circumstance that endangers the public, refer the matter to the DA.

While I am probably debating mere semantics, the correct answer is to arrest, but don't book the person. The arrest was made when the cop stopped the person from leaving the scene. If the cop had probable cause to believe a law was broken, then placing him under arrest, cuffing him, and placing him in the patrol car is the correct action. Then the cop should be digging out his penal code and checking the exact wording of the law to see if he has all of the elements met. If he is missing an element, or cannot articulate it properly, then the suspect should be released while still at the scene. This is known as "unarresting" the person.

Then the officer can take his time and do more investigating and file charges if needed.

The reason you do not want to not arrest is the potential danger in checking the law while the suspect is still walking around. For some unknown reason, a lot of criminals do not like it when the police arrest them and may decide to fight or escape if they know the officer is looking up the law to make the arrest. So, you secure the suspect instead. That make it an arrest at that point. Just because you arrested him is no reason to book him though. You can figure out other ways.

You're right, I played a bit loosely with the word "arrest", since the driver is already "arrested" in a traffic stop. When he has five officers detaining him and searching his truck, he meets all the criteria of "under arrest", even without the steel bracelets.

I did mean that the officer shouldn't charge/book/process/whatever the accused until he knows what the law is, not what he thinks it is. What he said at the roadside ("See that right there? 'Law enforcement strength'? You can't have that.") isn't what the law actually says, and isn't what he charged him with. This was a case of arrest and book first, then find some way to make the law fit the charge.

[KD5NRH]

Officers also saw a police scanner and a law enforcement type light switch often used to activate emergency strobes. The scanner isn't illegal to have and no one tried switching on the lights, which would have illuminated nothing more than fog lights.

What's a "law enforcement type light switch?"

[Skiprr]

What's a "law enforcement type light switch?"

[sjfcontrol]

The arrest was made when the cop stopped the person from leaving the scene.

Hmmm, In a 'normal' traffic stop, like for issuing a speeding ticket, is that an arrest? I thought you were considered "detained", as you were not allowed to leave (if you do, expect to see an aerial view of your moving vehicle on the Fox News channel), yet you were not under arrest.

If you're arrested, don't they have to tell you "you're under arrest", and Mirandize you?

Now, they COULD do that, put you in the back of the unit, then look up the law, and subsequently release you at the scene, I suppose.

[sjfcontrol]

What's a "law enforcement type light switch?"

[chabouk]

The arrest was made when the cop stopped the person from leaving the scene.

Hmmm, In a 'normal' traffic stop, like for issuing a speeding ticket, is that an arrest? I thought you were considered "detained", as you were not allowed to leave (if you do, expect to see an aerial view of your moving vehicle on the Fox News channel), yet you were not under arrest.

If you're arrested, don't they have to tell you "you're under arrest", and Mirandize you?

Yes, a normal traffic stop is an arrest.

The term the courts use is "seized". Any time a reasonable person believes they are not free to leave, they are "seized". You can call it an arrest, or a detention, but that's semantics. No handcuffs have to be involved, nor an enclosed space, nor even being told they're can't leave.

[KRM45]

The arrest was made when the cop stopped the person from leaving the scene.

Hmmm, In a 'normal' traffic stop, like for issuing a speeding ticket, is that an arrest? I thought you were considered "detained", as you were not allowed to leave (if you do, expect to see an aerial view of your moving vehicle on the Fox News channel), yet you were not under arrest.

If you're arrested, don't they have to tell you "you're under arrest", and Mirandize you?

Now, they COULD do that, put you in the back of the unit, then look up the law, and subsequently release you at the scene, I suppose.

If you are stopped, you have been detained. If you are issued a ticket you have been arrested. If you sign the ticket and are sent on your way you have been released based on your promise to appear before the magistrate at some later date. If you refuse to sign the ticket you can be brought before a magistrate at that time. Unfortunately you may need to wait in a cell for a while before the magistrate is ready to see you.

An officer only needs to "Mirandize you" if hew is going to perform a "custodial interrogation". In a traffic ticket situation he likely has all the evidence he needs to convict you without iterrogating you.