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Thread: Bodycam footage shows Jersey Shore beachgoer beatdown

  1. #31

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    Quote Originally Posted by Jan2017 View Post
    Here, on the public beach, she consented to be breathalyzed in the first place - but since it was negative anyway, why is she being detained anyway ?
    From what I have read, New Jersey beaches don't allow any alcohol on the beach -- even if it is unopened and not being consumed (as was in this case). Apparently just the fact that it was there is illegal. According to Emily Weinman, the bottle of Twisted Tea belonged to her 40 year old Aunt who had stepped away from their beach encampment. Emily completely cooperated not once, but twice, in taking a breathalyzer test which showed she had not been drinking. She furthermore cooperated in calling her Aunt who at that point was then heading back to their beach encampment. During all of this she was very calm and respectful. It was only after the officer asked her her last name that she felt her rights were being abused. My question is: was she obligated, by law, to tell him her last name?

    • How could probable cause be established if there was no proof that this unopened bottle was hers, especially since she stated it belonged to her Aunt who she then called and who she told the officers was heading back to their beach encampment?
    • If probable cause cannot be established, are innocent citizens expected to provide last names?
    • If probable cause can be established, isn't a warrant required for asking such questions as last name?



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  3. #32

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    Quote Originally Posted by charrob View Post
    From what I have read, New Jersey beaches don't allow any alcohol on the beach -- even if it is unopened and not being consumed
    • If probable cause can be established, isn't a warrant required for asking such questions as last name?
    Well, they ask for an ID or ask last name so they can run the ID and see if there are any outstanding warrants.
    Trump
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    (circa June 2016) : "How could the FBI NOT indict her !? "





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  5. #33

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    Quote Originally Posted by charrob View Post
    From what I have read, New Jersey beaches don't allow any alcohol on the beach -- even if it is unopened and not being consumed (as was in this case). Apparently just the fact that it was there is illegal. According to Emily Weinman, the bottle of Twisted Tea belonged to her 40 year old Aunt who had stepped away from their beach encampment. Emily completely cooperated not once, but twice, in taking a breathalyzer test which showed she had not been drinking. She furthermore cooperated in calling her Aunt who at that point was then heading back to their beach encampment. During all of this she was very calm and respectful. It was only after the officer asked her her last name that she felt her rights were being abused. My question is: was she obligated, by law, to tell him her last name?

    • How could probable cause be established if there was no proof that this unopened bottle was hers, especially since she stated it belonged to her Aunt who she then called and who she told the officers was heading back to their beach encampment?
    • If probable cause cannot be established, are innocent citizens expected to provide last names?
    • If probable cause can be established, isn't a warrant required for asking such questions as last name?
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  6. #34

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    Quote Originally Posted by charrob View Post
    From what I have read, New Jersey beaches don't allow any alcohol on the beach -- even if it is unopened and not being consumed
    • If probable cause can be established, isn't a warrant required for asking such questions as last name?
    Your question is more interesting than it might appear at first -
    I think it is definitely more of a problem if you give them a wrong name or certainly a false ID . . .
    But yeah . . . what if you just don't answer?

    Here, she gets taken down and punched - an unconstitutional use of force and an irrational insult to the Constitution.

    A jury of the her peers can weigh the penalties these officers should face, imho.
    Trump
    (circa July 2015) : "John McCain is NO 'war hero' . . . - I like people who weren't captured, ok!"
    (circa June 2016) : "How could the FBI NOT indict her !? "



  7. #35

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    Quote Originally Posted by Jan2017 View Post
    Your question is more interesting than it might appear at first -
    I think it is definitely more of a problem if you give them a wrong name or certainly a false ID . . .
    But yeah . . . what if you just don't answer?
    From what I am reading below, it appears to depend on whether you are detained under reasonable suspicion or are being arrested under probable cause. It also depends upon what State the detainment occurs in.

    In the State of NJ, it appears she was within her 5th Amendment rights not to give the officer her name. That the officer threatened to attack her ("You're about to get dropped."), and did attack her because she exercised her 5th Amendment (and 1st Amendment) rights is outrageous.

    My problem with all of this is that there is a large threshold of distinction between reasonable suspicion and probable cause. He had reasonable suspicion to detain her. But upon investigation, any chance of probable cause was diminished because not only did she not drink any alcohol, but even more importantly there was no way for the officer to prove that bottle was hers and not her Aunt's. Reasonable suspicion was decreased not increased upon investigation. Since it appears he could not establish the higher threshold of probable cause, presumably her arrest was illegal. Did the officer have the right to dispose of the alcohol at their beach encampment? Yes. Could the officer establish probable cause that Emily, and not her Aunt, was the owner of the bottle? No.

    Reasonable Suspicion:
    Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch'";[1] it must be based on "specific and articulable facts", "taken together with rational inferences from those facts",[2] and the suspicion must be associated with the specific individual.[3] If police additionally have reasonable suspicion that a person so detained is armed and dangerous, they may "frisk" the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard,[4] in which said person in the same circumstances could reasonably suspect a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.
    Probable Cause:
    In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. The principle behind the standard is to limit the power of authorities to perform random or abusive searches (unlawful search and seizure), and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.[1]

    The term comes from the Fourth Amendment of the United States Constitution:


    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Probable in this case may relate to statistical probability or to a general standard of common behavior and customs. The context of the word probable here is not exclusive to community standards, and could partially derive from its use in formal mathematical statistics as some have suggested;[2] but cf. probō, Latin etymology.[3]

    https://en.wikipedia.org/wiki/Probable_cause
    Stop and identify statutes:

    "Stop and identify" statutes are statutory laws in the United States that authorize police[1] to legally obtain the identification of someone whom they reasonably suspect of having committed a crime. If there is no reasonable suspicion that a crime has been committed, is being committed, or is about to be committed, an individual is not required to provide identification, even in "Stop and ID" states.

    The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. Terry v. Ohio, 392 U.S. 1 (1968) established that it is constitutionally permissible for police to temporarily detain a person based on an articulable reasonable suspicion that a crime has been committed, and to conduct a search for weapons based on a reasonable belief that the person is armed. The question whether it is constitutionally permissible for the police to demand that a detainee provide his or her name was considered by the U.S. Supreme Court in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), which held that the name disclosure did not violate the Fourth Amendment prohibition on unreasonable searches and seizures. The Hiibel case also held that, because Hiibel had no reasonable belief that his name would be used to incriminate him, the name disclosure did not violate the Fifth Amendment right against self-incrimination; however, the Court left open the possibility that Fifth Amendment right might apply in situations where there was a reasonable belief that giving a name could be incriminating.[2] The Court accepted the Nevada supreme court interpretation of the Nevada statute that a detained person could satisfy the Nevada law by simply stating his name. The Court did not rule on whether particular identification cards could be required, though it did mention one state law requiring "credible and reliable" identification had been struck down for vagueness.[3]




    Police–citizen encounters:
    In the United States, interactions between police and citizens fall into three general categories: consensual ("contact" or "conversation"), detention (often called a Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968)), or arrest. "Stop and identify" laws pertain to detentions.

    Reasonable Suspicion:
    A person is detained when circumstances are such that a reasonable person would believe he is not free to leave.[9]

    Police may briefly detain a person if they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Many state laws explicitly grant this authority. In Terry v. Ohio, the U.S. Supreme Court established that police may conduct a limited search for weapons (known as a "frisk") if they reasonably suspect that the person to be detained may be armed and dangerous.

    Police may question a person detained in a Terry stop, but in general, the detainee is not required to answer.[10] However, many states have "stop and identify" laws that explicitly require a person detained under the conditions of Terry to identify himself to police, and in some cases, provide additional information.

    Before Hiibel, it was unresolved whether a detainee could be arrested and prosecuted for refusing to disclose his name. Authority on this issue was split among the federal circuit courts of appeal,[11] and the U.S. Supreme Court twice expressly refused to address the question.[12] In Hiibel, the Court held, in a 5–4 decision, that a Nevada "stop and identify" law did not violate the United States Constitution. The Court opinion implied that a detainee was not required to produce written identification, but could satisfy the requirement merely by stating his name. Some "stop and identify" laws do not require that a detainee identify himself, but allow refusal to do so to be considered along with other factors in determining whether there is probable cause to arrest. In some states, providing a false name is an offense.[13]

    As of February 2011, the Supreme Court has not addressed the validity of requirements that a detainee provide information other than his name, however some states such as Arizona have specifically codified that a detained person is not required to provide any information aside from their full name.

    Arrest:
    A detention requires only that police have reasonable suspicion that a person is involved in criminal activity. However, to make an arrest, an officer must have probable cause to believe that the person has committed a crime. Some states require police to inform the person of the intent to make the arrest and the cause for the arrest.[14] But it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, his or her belongings, and his or her immediate surroundings.

    Whether an arrested person must identify himself may depend on the jurisdiction in which the arrest occurs. If a person is under arrest and police wish to question him, they are required to inform the person of his Fifth-Amendment right to remain silent by giving a Miranda warning. However, Miranda does not apply to biographical data necessary to complete booking.[15][16] It is not clear whether a "stop and identify" law could compel giving one’s name after being arrested, although some states have laws that specifically require an arrested person to give his name and other biographical information,[17] and some state courts[18][19] have held that refusal to give one’s name constitutes obstructing a public officer. As a practical matter, an arrested person who refused to give his name would have little chance of obtaining a prompt release.

    Obligation to identify: States with "stop and identify" laws:
    Alabama Ala. Code §15-5-30
    Arizona Ari. Rev. Stat. Tit. 13, §2412 (enacted 2005) & Tit. 28, §1595
    Arkansas Ark. Code Ann. [1]§ 5-71-213 - Loitering
    Colorado Colo. Rev. Stat. §16-3-103(1)
    Delaware Del. Code Ann., Tit. 11, §§1902, 1321(6)
    Florida Fla. Stat. §901.151 (Stop and Frisk Law); §856.021(2) (loitering and prowling)
    Georgia Ga. Code Ann. §16-11-36(b) (loitering)
    Illinois Ill. Comp. Stat., ch. 725, §5/107-14
    Indiana Indiana Code §34-28-5-3.5
    Kansas Kan. Stat. Ann. §22-2402(1)
    Louisiana La. Code Crim. Proc. Ann., Art. 215.1(A); La. Rev. Stat. 14:108(B)(1)(c)
    Missouri (Kansas City Only) Mo. Rev. Stat. §84.710(2)
    Montana Mont. Code Ann. §46-5-401
    Nebraska Neb. Rev. Stat. §29-829
    Nevada Nev. Rev. Stat. §171.123
    New Hampshire N.H. Rev. Stat. Ann. §594:2, §644:6
    New Mexico N.M. Stat. Ann. §30-22-3
    New York N.Y. Crim. Proc. Law §140.50
    North Dakota N.D. Cent. Code §29-29-21 (PDF)
    Ohio Ohio Rev. Code §2921.29 (enacted 2006)
    Rhode Island R.I. Gen. Laws §12-7-1
    Utah Utah Code Ann. §77-7-15
    Vermont Vt. Stat. Ann., Tit. 24, §1983
    Wisconsin Wis. Stat. §968.24

    States not listed do not have a requirement to show Identification to law enforcement officers. Some states listed have "Stop and ID" laws which may or may not require someone to identify themselves during an investigative detention.

    While Wisconsin statutes allow law enforcement officers to "demand" ID, there is no statutory requirement to provide them ID nor is there a penalty for refusing to, hence Wisconsin is not a must ID state. Henes v. Morrissey, 194 Wis.2d 338, 353-54 (1995). Annotations for Wisconsin §968.24, however, state "The principles of Terry permit a state to require a suspect to disclose his or her name in the course of a Terry stop and allow imposing criminal penalties for failing to do so", citing Hiibel as authority. Hiibel held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement. The Wisconsin Supreme Court held in Henes v. Morrissey that "A crime is made up of two parts: proscribed conduct and a prescribed penalty. "The former without the latter is no crime. ... In this case no statute penalizes a refusal to identify oneself to a law enforcement officer, and no penalty is set forth in the statute for refusing to identify oneself. This statute is part of Chapter 968 entitled "Commencement of Criminal Proceedings. By its very terms sec. 968.24 empowers a law enforcement officer to stop and question "in the vicinity where the person was stopped." The statute does not authorize a law enforcement officer to make an arrest." Additionally Henes v. Morrissey held that a detained person not providing their name isn't on its own a violation of 946.41 Resisting or obstructing officer as the act of not identifying ones self isn't a false statement with intent to mislead the officer in the performance of his or her duty.

    Neither is Illinois, since the Illinois Second District Appellate Court Decision in People v. Fernandez, 2011 IL App (2d) 100473, which specifically states that section 107-14 is found in the Code of Criminal Procedure of 1963, not the Criminal Code of 1961, and governs the conduct of police officers. The fact remains that there is no corresponding duty in the Criminal Code of 1961 for a suspect to identify himself or herself.[20]

    By contrast, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 181 (2004), a Nevada statute (Nev. Rev. Stat. § 171.123 (2003)) specifically required that a person subjected to a Terry stop “shall identify himself.” The Supreme Court held that the statute was constitutional.

    As of February 2011, there is no U.S. federal law requiring that an individual identify himself during a Terry stop, but Hiibel held that states may enact such laws, provided the law requires the officer to have reasonable and articulable suspicion of criminal involvement,[21] and 24 states have done so.[22] The opinion in Hiibel implied that persons detained by police in jurisdictions with constitutional[23] "stop and identify" laws listed are obligated to identify themselves,[24] and that persons detained in other jurisdictions are not.[25] The issue may not be that simple, however, for several reasons:

    --The wording of "stop and identify" laws varies considerably from state to state.
    --Noncompliance with a "stop and identify" law that does not explicitly impose a penalty may constitute violation of another law, such as one to the effect of "resisting, obstructing, or delaying a peace officer".
    --State courts have made varying interpretations of both "stop and identify" and "obstructing" laws.

    Variations in "stop and identify" laws:

    • Four states’ laws (Arizona, Indiana, Louisiana, and Nevada) explicitly impose an obligation to provide identifying information.

    • Fifteen states grant police authority to ask questions, with varying wording, but do not explicitly impose an obligation to respond:
      • In Montana, police "may request" identifying information;
      • In Ohio, identifying information may be required "when requested"; an obligation exists only when the police suspect a person is committing, has committed, or is about to commit a criminal offense, is witness to a violent felony offense, or is witness to an attempt or conspiracy to commit a violent felony offense;
      • In 12 states (Alabama, Delaware, Illinois, Kansas, Missouri, Nebraska, New Hampshire, New York, North Dakota, Rhode Island, Utah, Wisconsin), police "may demand" identifying information. Of note, though, in New Hampshire for example (RSA 594:2), statutory language authorizing a 'demand' for identity does not establish a legal requirement to provide documentation of identity (ID), or even a requirement to respond in the first place. Further, a law enforcement officer is authorized to make such 'demand' only of individuals for "whom he has reason to suspect is committing, has committed or is about to commit a crime."

    • Identifying information varies, but typically includes:
      • Name, address, and an explanation of the person’s actions;
      • In some cases it also includes the person’s intended destination, the person’s date of birth (Indiana and Ohio), or written identification if available (Colorado). Ohio does not require the person's intended destination. Ohio requires only name, address, or date of birth. Date of birth is NOT required if the age of the person is an element to the crime (such as underage drinking, curfew violation, etc...) that the person is reasonably suspected of.[26] Indiana requires either name, address, and date of birth, or driver's license, if on the person's possession, and only applies if the person was stopped for an infraction or ordinance violation.[27]
      • Arizona law, apparently written specifically to codify the holding in Hiibel, requires a person’s "true full name".
      • Nevada law, which requires a person to "identify himself or herself", apparently requires only that the person state his or her name.
      • Texas law requires a person to provide their name, residence address and date of birth if lawfully arrested and asked by police. (A detained person or witness of a crime is not required to provide any identifying information, however it is a crime for a detained person or witness to give a false name.)

    • In four states (Arkansas, Florida, Georgia, and Rhode Island), failure to identify oneself is one factor to be considered in a decision to arrest. In all but Rhode Island, the consideration arises in the context of loitering or prowling.

    • Seven states (Arizona, Florida, Indiana, Louisiana, New Mexico, Ohio, and Vermont) explicitly impose a criminal penalty for noncompliance with the obligation to identify oneself.


    Recommendations of legal-aid organizations:
    Some legal organizations, such as the National Lawyers Guild and the ACLU of Northern California, recommend to either remain silent or to identify oneself whether or not a jurisdiction has a "stop and identify" law:

    And in any state, police do not always follow the law, and refusing to give your name may make them suspicious and lead to your arrest, so use your judgment. If you fear that your name may be incriminating, you can claim the right to remain silent, and if you are arrested, this may help you later.

    https://en.wikipedia.org/wiki/Stop_a...ntify_statutes
    Quote Originally Posted by Jan2017 View Post
    A jury of the her peers can weigh the penalties these officers should face, imho.
    They can but will they? From my perspective, most of the U.S. population are bootlickers who would have welcomed Hitler and the brownshirts had they lived in 1938 Germany. Take a look at the comments online regarding this whole brouhaha: most haven't a clue of their rights under the U.S. Constitution/Bill of Rights, nor do they care. They welcome the boot of government and revel in the ability to castigate a member of their own class no different than the Puritans who castigated and burned witches at the stake: they smell blood and are going in for the kill. Americans are a nasty, vindictive bunch and i hold no hope this woman will ever see justice. Even in the case in South Carolina where video proves a cop shot a man in the back and killing him, and the video shows the cop illegally planted a gun on the man after the fact, the jury let that cop go. Even the Governor came out strongly against the cop! Yet the jury let him go. It was only because Obama had the Feds pursue a Civil Rights case against the cop that the cop is now serving time in prison. So even in such clear cut cases, Americans choose the brown shirts. Americans are a very sick bunch of people if you ask me. The Founders were true Liberals who must be turning in their graves to see the kind of tyranny Americans choose to live under.
    Last edited by charrob; 07-03-2018 at 06:35 PM.

  8. #36

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    Quote Originally Posted by Danke View Post
    Are you another anarchist?
    Danke I'm no more of an anarchist than the Founding Fathers of our country who wrote the Bill of Rights to protect the citizenry from the unjust boot of Government.

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