Student arrested for refusing to be searched (Empty Holster)

[WildBill]

Wow...so dramatic. Not that many will believe me, but there are quite a few checks and balances on LEOs.

If your comment was directed at me, I respect and value your opinions. I have never questioned your veracity as a person or LEO.

[puma guy]

Wow...so dramatic. Not that many will believe me, but there are quite a few checks and balances on LEOs.

If you are referring to my comments! I have a deep respect and admiration for LEO's and I include you in that group since I assume by reading your posts you are a law officer. Do I detect a bit of condescension in your post? I don't think I was disrespectful in my comments. If you took it that way I'm sorry.

You're correct; there are checks and balances on LEO's and one is the justice system. Police officers are charged with enforcing the law or what they interpret as the law and the courts decide if they are correct. If the law was correctly applied to this gentleman as adjudicated by the courts I have to accept that. It doesn't mean I agree with the law. I think the framers of our constitution would abhor what we've done to individual rights in this country. My point is similar to someone living with a cluttered garage. It happened a little at a time and pretty soon it looks normal to that person. The O ring failure on the shuttle boosters is a perfect example of how something that is wrong becomes "normal" and accepted.

[Ameer]

...a lot we're not getting here...SOMETHING made them "pick on" him...

Are there a lot of black college students on the campus? I'm not saying that is the answer but it's one possible answer.

[b322da]

Would you consider a gun t-shirt or 5.11 pants reasonable suspicion for a search too?

I think gigag04 has taken quite enough flak on this, particularly him being a guy who really has to know the law here, a guy for which this not a hypothetical semantic game, but a real demand for good judgment, with his life and well-being perhaps at stake, so I will offer an answer to your question in his absence.

Under the proper circumstances, when coupled with other relevant factors, I would without hesitation say "YES," 5.11 pants could support a reasonable suspicion authorizing a lawful "Terry frisk," not necessarily a "search" subject to the 4th Amendment.

This from an old guy who carries under or in the pockets of 5.11 shorts almost daily, but I must admit that I have no idea what a gun t-shirt is, so I have to reserve on that.

Elmo

[Ameer]

I found the stats for UWy

109 Black students out of 12067 total students = less than 1%

[b322da]

Please elaborate. How is a frisk not a search?

I believe I have been misunderstood, and I will accept the fault for that. In my post I offered two different theories advanced by judges about what a Terry frisk is. Lawbooks discussing the 4th Amendment take up a shelf of their own, and I cannot paraphrase them all.

What I said was, "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.'"

I see no point in my personally opting for one over the other here. My opinion doesn't really matter, because I submit that they are both result-oriented judicial reasoning. Only one of the two options says a Terry frisk (not just any "frisk") is not a search. Both options are practical judicial efforts to ease the law of the 4th Amendment for cops down and dirty on the streets.

Elmo

[b322da]

DELETED. DOUBLE POST. TOO TIRED OF THIS, I GUES.

[puma guy]

Please elaborate. How is a frisk not a search?

I believe I have been misunderstood, and I will accept the fault for that. In my post I offered two different theories advanced by judges about what a Terry frisk is. Lawbooks discussing the 4th Amendment take up a shelf of their own, and I cannot paraphrase them all.

What I said was, "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.'"

I see no point in my personally opting for one over the other here. My opinion doesn't really matter, because I submit that they are both result-oriented judicial reasoning. Only one of the two options says a Terry frisk (not just any "frisk") is not a search. Both options are practical judicial efforts to ease the law of the 4th Amendment for cops down and dirty on the streets.

Elmo

Elmo sorry if I parsed your comments in mine. The court will decide this case regardless of our opinions. I believe we have taken the road off the cliff when we start injecting any issues of race in this. My hope is the gentleman will be vindicated based on 1st and 4th Amend rights. That's based on what I know from the posts. There are as we all know details that are lacking.

[WildBill]

Please elaborate. How is a frisk not a search?

I believe I have been misunderstood, and I will accept the fault for that. In my post I offered two different theories advanced by judges about what a Terry frisk is. Lawbooks discussing the 4th Amendment take up a shelf of their own, and I cannot paraphrase them all.

What I said was, "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.'"

I see no point in my personally opting for one over the other here. My opinion doesn't really matter, because I submit that they are both result-oriented judicial reasoning. Only one of the two options says a Terry frisk (not just any "frisk") is not a search. Both options are practical judicial efforts to ease the law of the 4th Amendment for cops down and dirty on the streets.

Elmo

Elmo sorry if I parsed your comments in mine. The court will decide this case regardless of our opinions. I believe we have taken the road off the cliff when we start injecting any issues of race in this. My hope is the gentleman will be vindicated based on 1st and 4th Amend rights. That's based on what I know from the posts. There are as we all know details that are lacking.

Best case, it gets dismissed by the DA or judge. Worst case, he will go to trial and get convicted of a low level misdemeanor.

[b322da]

Please elaborate. How is a frisk not a search?

I believe I have been misunderstood, and I will accept the fault for that. In my post I offered two different theories advanced by judges about what a Terry frisk is. Lawbooks discussing the 4th Amendment take up a shelf of their own, and I cannot paraphrase them all.

What I said was, "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.'"

I see no point in my personally opting for one over the other here. My opinion doesn't really matter, because I submit that they are both result-oriented judicial reasoning. Only one of the two options says a Terry frisk (not just any "frisk") is not a search. Both options are practical judicial efforts to ease the law of the 4th Amendment for cops down and dirty on the streets.

Elmo

Elmo sorry if I parsed your comments in mine. The court will decide this case regardless of our opinions. I believe we have taken the road off the cliff when we start injecting any issues of race in this. My hope is the gentleman will be vindicated based on 1st and 4th Amend rights. That's based on what I know from the posts. There are as we all know details that are lacking.

I am in complete agreement with everything you say here, Puma guy. I have tried, perhaps unsuccessfully, to avoid giving my personal opinion of this individual's guilt or innocence. I got trapped just by pointing out the difference, innocently I do believe, between a Terry frisk and a 4th Amendment search.

Elmo

[b322da]

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?

I am not about to convert a hopefully intelligent discussion into an exchange of resumes here, as that would prove nothing. I will, however, offer you a fairly simple definition of The Rule of Law, which I hope, with a little thought, answers your question:

"That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals."

There are many definitions of "The Rule of Law," and they have existed for hundreds of years. You might note, however, that the definition I offer, like all those I have seen, nowhere mentions our Constitution or our Bill of Rights, nor would I expect it to. The source of the law is not part of the definition, nor does it exist in only one country -- for example, ours, occasionally.

With respect, in other words, I was speaking of The Rule of Law, not the rule of law.

Elmo

[gigag04]

Wow...so dramatic. Not that many will believe me, but there are quite a few checks and balances on LEOs.

If your comment was directed at me, I respect and value your opinions. I have never questioned your veracity as a person or LEO.

Not at all. The dramatic comment refers to the statements about the 4th amendment being dead and causing the framers to take up arms. I'm definitely not frustrated w/ anyone in the thread!

[puma guy]

Wow...so dramatic. Not that many will believe me, but there are quite a few checks and balances on LEOs.

If your comment was directed at me, I respect and value your opinions. I have never questioned your veracity as a person or LEO.

Not at all. The dramatic comment refers to the statements about the 4th amendment being dead and causing the framers to take up arms. I'm definitely not frustrated w/ anyone in the thread!

Please get the facts straight. I made no statement that the 4th amendment was dead. My comment about heros of Texas Independence taking up arms was rhetorical and was in regard to Texas Tort laws and the inability of individuals to seek legal remedy against the government not the Fourth Amendment of the Constitution. We lost the right to sue in Texas. It was off topic and I apologized for straying. Your comment "Wow...so dramatic" was made before I said anything about the framers and the erosion of individual rights and I didn't suggest they take up arms. On that note I'll put it in terms of the RTKBA. I don't think you'd argue that there have been attempts to minimize, control and at times eliminate that right. If people stood idly by we would not have seen the recent changes in law in DC and Chicago. The LE system had to enforce those laws even though they were wrong. There were also times when the laws were misinterpreted in enforcement and challenges were made. Thankfully people did not stand idly by and we have an expanded (correctly) the interpretation of the Second Amendment. That is dramatic though not in the sense you meant. I have completed my flagelation of the equine beast.

[speedsix]

...a lot we're not getting here...SOMETHING made them "pick on" him...

Are there a lot of black college students on the campus? I'm not saying that is the answer but it's one possible answer.

...what brings race into this? the news article didn't... OK...I read on to find the picture...so because he's black race enters the picture...if he was white and claimed race he'd be laughed down...and ONE of the officers is now a bigot, right?!!!

[speedsix]

...gigag04's right on with his logic...I think any straight judge'd buy it...I've searched many a car because an empty holster or some loose bullets were there...if you step in it in the yard, prolly a dog nearby...

"One size fits all" law enforcement?

Shameful IMO.

easy to say when you haven't been there...and had to do it...Monday morning football rides again...