Open carrier wins $23,500 settlement from Colorado Springs

[jmra]

I'd be rather surprised if not one of seven officers really didn't know about a change in Colorado law that occurred 10 years prior to the arrest. However, it does appear that this incident was caused by an outdated Ops Manual as well as a belligerent subject. I'm sure everyone involved wishes this incident had not happened, but in hindsight it came out well. No one was injured or killed, the arrest was groundless meaning it was not a good faith arrest, the victim sued and received a damage award. This is about as good as it can get when an unlawful, bad faith arrest is made and a citizen suffers as a result.

In Texas, one cannot use force to resist an unlawful arrest or search, unless before the subject offers any resistance, the officer uses excessive force to effectuate the arrest. The rationale for this law is to prevent injury to anyone. The city or county can then respond in damages.

To head off an expected response, I'm not saying it's okay to make an unlawful arrest; I'm saying it better to recover money damages than to get injured or killed, or to injure or kill a LEO.

Chas.

(b) The use of force against another is not justified:

. . .

• (2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

. . .

(c) The use of force to resist an arrest or search is justified:

• (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
  
  (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

THIS

As for WHEN can you resist unlawful order. Whenever you want. Just understand that - as detailed in statute above, it is not legal to resist an arrest - even an unlawful arrest - for the reasons Chas elaborated.

Correct. Also note that the code is dealing with an arrest, not a rape or child porn session. TPC §9.31(b) doesn't apply to those crimes.

Chas.

Just so I am clear if a LEO says I am under arrest and I know it is wrong I must still comply, If I resist it is resisting. Where as if I am told I am under arrest and I fully comply and the LEO starts using excessive force I can use force to protect myself? EG... I place hands on top of head or behind back and LEO slams me to the hood or pavement.

I don't think just getting slammed on the hood would automatically justify resisting.
About the only way I would resist is if I feared for my life. If I thought he was going to kill me I would resist.

Ya, But I would suspect if you waited to the point you feared for your life it is already to late.

Catch 22

[gringo pistolero]

An honest and competent surgeon would not operate to remove an internal organ if they weren't sure that internal organ was a real body part. Likewise an honest and competent police officer would not arrest somebody for violating a law if they weren't sure that law was a real law.

Honestly, somebody who can't take a moment for a reality check is a menace to society and would be kicked out of any profession where competence matters. On the other hand, if professional competence doesn't matter to some employers or some licensing/certification agencies, that's a sad situation and public opinion should reflect that. Especially if it's widespread, such a group of seven members of some profession working together, and not a single one of them was professional enough to do a reality check.

That's not bashing. I would say the same about seven surgeons operating to remove the gooniegoogoo gland or seven A/P mechanics who completely tore down a 747 trying to locate the left handed smoke shifter.

[A-R]

jmra I agree with that. Unfortunately I don't believe anyone would have much of a chance defending themselves when that point arrived.

As to the LEO's in this post. I find it absurd we have active Police Officers enforcing Law in the United States without knowing the Law and creating conflicts with Law Abiding Citizens for no reason at all. We Citizens are told "Ignorance of the Law is no excuse". This is not an isolated event to just these Colorado Springs Officers either.

People should be automatically fired for Dereliction of Duty when this happens and mandatory training needs to be initiated to go over every single Law on the books with annual testing. Fail the test? Badge and Gun are removed for retraining until one passes or gets replaced by one who can comprehend those Laws they are paid to enforce.

Too many Laws to keep up with? The State created them, the State is responsible for them. Can't pass the test? Find another profession.

OK, recite every CHL-related law from memory right now or you lose your CHL (and CHL laws amount to about 1/1,000th of the number of laws a LEO might need to enforce).

You're taking your argument to illogical extremes. No one - not even lawyers and judges - knows every law.

Your point about not arresting unless you're certain about the law is a good one. In this particular case, apparently all LEOs thought they were certain - but were obviously wrong. Kinda goes back to reasonableness standard we all live by with use if force. Look at example I gave earlier - many folks have stated they would put their hands on their gun or even draw if a stranger kept approaching them at night after being told to stay away. It's not necessarily unreasonable to do so. But the stranger is not necessarily breaking any law either. Reasonable = grey area. The Colorado officers thought they were being reasonable based on the version of the law they consulted.

And do not forget, their incorrectness cost their city 5 figures and most certainly cost each of them serious reprimand on their employment record that could hold them back from future promotion or be combined with other infractions to lead to a future termination.

All of this is reasonable to most.

What's unreasonable is to expect perfection. And it goes both ways. Ever received a warning instead of citation for a traffic violation? Good cops know when to give benefit of the doubt or just cut someone a break. And I honestly believe if this guy had been calmer, and politely asked the officers to double-check the city ordinance he may have been sent in his way with a handshake and a sincere apology. Aggressive response toward any LEO on the street just adds to your problems. EVERY suspect says they're innocent. Cops hear it all day.

None of the above dismisses the officer's unlawful arrest. They DESERVE their reprimands and the city DESERVED to pay out that settlement. But you seem to suggest taking it to an illogical extreme.

LEOs have great responsibility and with that they have more leeway to do their jobs. Bad cops who abuse this deserve to be prosecuted. Bad cops who ignore this deserve to be fired. But imperfect cops who occasionally fumble this deserve to be reprimanded. Just like the rest of us.

[A-R]

An honest and competent surgeon would not operate to remove an internal organ if they weren't sure that internal organ was a real body part. Likewise an honest and competent police officer would not arrest somebody for violating a law if they weren't sure that law was a real law.

Honestly, somebody who can't take a moment for a reality check is a menace to society and would be kicked out of any profession where competence matters. On the other hand, if professional competence doesn't matter to some employers or some licensing/certification agencies, that's a sad situation and public opinion should reflect that. Especially if it's widespread, such a group of seven members of some profession working together, and not a single one of them was professional enough to do a reality check.

That's not bashing. I would say the same about seven surgeons operating to remove the gooniegoogoo gland or seven A/P mechanics who completely tore down a 747 trying to locate the left handed smoke shifter.

Apples vs oranges. Your surgeon analogy deals with life and death. And when cops deal in life and death they are held to an extraordinarily high standard (or should be). Example: New Mexico State police officer fired for shooting at tires of fleeing felon's minivan.

But this situation in Colorado was not life and death. A guy was unlawfully arrested and his feather were ruffled. For that he "earned" $23,500.

Apples and oranges.

[Alf]

OK, recite every CHL-related law from memory right now or you lose your CHL

Apples vs oranges.

How about a more honest analogy? If I get caught open carrying a handgun in a bar in Texas, I can be sent to prison. Saying I didn't know the law isn't a defense in court. Knowing that', why should people who deal with the law for a living be held to a LOWER standard than laymen who don't?

[A-R]

OK, recite every CHL-related law from memory right now or you lose your CHL

Apples vs oranges.

How about a more honest analogy? If I get caught open carrying a handgun in a bar in Texas, I can be sent to prison. Saying I didn't know the law isn't a defense in court. Knowing that', why should people who deal with the law for a living be held to a LOWER standard than laymen who don't?

CAN BE. But there is discretion, and opportunity to plead your case in court, in nearly any scenario you can dream up. It's easy to get lost in the supposed finality of maximum punishments (I do it all the time). But do you honestly believe every open carrier is automatically arrested, charged, convicted, and given max sentence every time they ignorantly break the law? Yes, "ignorance is no defense" but discretion exists in nearly all levels of criminal justice system (except where removed by legislative action, see Florida).

My point is to counter these reactive "they should be automatically fired" type posts.

I think the punishment here (the monetary damages and what I infer were serious reprimands) fit the "crime" very well.

Obviously many disagree. Again, I argue against perfection as an acceptable standard.

But I think it really boils down to this simple conclusion. Many do not like the AUTHORITY that LEOs are granted under law. They don't think it's "fair" that LEOs get "special treatment".

There's really no way to counter such feelings with logical argument because the feelings are rooted in illogical assumptions, motives, biases etc.

There are legitimate and logical reasons why LEOs are granted more authority and discretion to do their jobs than you or I are granted in going about our lives as law-abiding citizens. Charles attempted to elaborate on a few.

But unless you're willing to accept that some valid differences exist between LEOs performing their duties and citizens living their lives, what more is there to discuss?

Again, keep repeating this for emphasis - these officers WERE punished and the victim here WAS compensated.

[rbwhatever1]

Seems very logical to me. Law enforcers should know the Law. Pretty basic requirement for enforcement. This wasn't some casual J Walking issue on a side street, it involved a felony firearm arrest in Colorado that wasn't. Seems to me that Firearms Laws would be taken seriously by the entire chain of Leadership in Colorado Springs. No?

Seizing the Property of the Citizens to pay for the Dereliction of Duty from the top to the bottom is also a travesty but we won't go there. Looks to me like the Citizens of Colorado Springs lost on both the unlawful 2nd Amendment Infringement as well as the settlement. So what exactly did the State Servants get? 1 day closer to pension benefits..:

Edited to add: I don't have a clue if a firearms incident is always a felony...just assuming.

[EEllis]

Seems very logical to me. Law enforcers should know the Law. Pretty basic requirement for enforcement. This wasn't some casual J Walking issue on a side street, it involved a felony firearm arrest in Colorado that wasn't. Seems to me that Firearms Laws would be taken seriously by the entire chain of Leadership in Colorado Springs. No?

Ummm wasn't this an arrest for violating a City Ordinance that ended up being revoked a year before because of conflicts with a state law? So yes it was like a J Walking arrest, just the city got rid of the JW ordinance.

The whole deal was OC in a city park and a Local Ordinance. I don't see that as some sign that gun laws are some joke to the cops.

[A-R]

Seems very logical to me. Law enforcers should know the Law. Pretty basic requirement for enforcement. This wasn't some casual J Walking issue on a side street, it involved a felony firearm arrest in Colorado that wasn't. Seems to me that Firearms Laws would be taken seriously by the entire chain of Leadership in Colorado Springs. No?

Ummm wasn't this an arrest for violating a City Ordinance that ended up being revoked a year before because of conflicts with a state law? So yes it was like a J Walking arrest, just the city got rid of the JW ordinance.

The whole deal was OC in a city park and a Local Ordinance. I don't see that as some sign that gun laws are some joke to the cops.

THIS. I was going to ask for documentation that this was a FELONY arrest for this same reason (city ordinance doesn't typically - ever? - carry felony weight).

Even a 30.06 violation is not a felony under Texas law.

Also what property of the citizens of Colorado Springs was "seized"? The settlement money? That was either paid for with general revenue (taxes) or some sort of insurance. Are you now saying taxes (much as I dislike paying them) are a "seizure" (implicitly illegal by your tone) of private property? Just a guess, but those taxes were probably collected legally after deliberation and affirmation by either direct vote or representative vote.

[rbwhatever1]

Well, that's good to know. I being a Law Abider I don't have a clue about felonies but most of them I read about are DUI's or Firearms.

[EEllis]

Well, that's good to know. I being a Law Abider I don't have a clue about felonies but most of them I read about are DUI's or Firearms.

At first they just wanted the guy to take his gun out of the park. The only reason it was an issue is because the guy was a colossal pain and he himself didn't have the law right either.