Portland: A Citizen Can Be Handcuffed, Locked Into Car, And Driven To A Different Location But Still Not Be “Under Arrest”

220px-Don't_jay_walk_1937The Portland police and City Attorney are making an argument in federal court this month that gives another glimpse into the increasing claims of authority of police in our society. Scott Miller was stopped for jaywalking by Officer Dean Halley in 2010 and admitted that he committed the common violation of pedestrians. The officer however proceeded to handcuff him, tell him “you’re under arrest,” throw him into the back of a cruiser and then drove him a block away. He was in custody for about 30 minutes, but Deputy City Attorney William Manlove is arguing that citizens cannot sue because such acts do not constitute an actual arrest. They are something between a chat and custody, but not an arrest for purposes of legal action.

So, according to Portland, this constitutes just being detained and is effectively beyond any challenge of a citizen. In other words, police can routinely handcuff citizens, lock them in a police car and even tell them that they are under arrest without being subject to accountability for wrongful arrests.

Deputy City Attorney William Manlove insists that when Miller briefly jaywalked one morning while trying to catch a bus, he could be detained and handcuffed but not treated as an arrested person despite the express statement of the officer. It is an argument that would allow officers virtually unchecked authority in handcuffing citizens and holding them. It is the perfect authoritarian loophole and the city Portland wants to help establish it for future cases.

We have come to this ignoble moment due to the continued passivity of the Supreme Court in the face of rising police powers in America. Portland hopes to expand on a 2008 U.S. Supreme Court decision in Virginia v. Moore, where Justice Antonin Scalia wrote for a seven justice majority that it did not matter that a man was arrested for a crime that was a non-arrestable misdemeanor (of driving with a suspended license) in Virginia. The police could make the arrest for the non-arrestable offense and then use that arrest to search his car “incident to arrest” because they had probable cause for a crime. That still does not mean that police can now cuff, hold, and transport citizens without being held to the standard of an arrest. Notably, driving with a suspended license is still a crime — a misdemeanor — in Virginia where jaywalking is only a “violation” and not a crime.

His counsel also notes that the officer cited Miller’s failure to produce identification though he gave Miller only a second to produce his “papers.”

The fact that a relatively liberal jurisdiction like Portland is trying to establish such precedent is chilling and shows (as with the Obama Administration) that the shift toward police power is being supported by both parties. It is the perfect scene for a new America: an officer demanding a citizen’s paper and then cuffing him and throwing him into a car — only to claim later that the citizen has no basis to complain.

61 thoughts on “Portland: A Citizen Can Be Handcuffed, Locked Into Car, And Driven To A Different Location But Still Not Be “Under Arrest”

  1. I agree that this case is a chilling example of the police being granted broad and sweeping power to “arrest” citizens without the need for evidence or proof because they are only “sort of arrested”! It will be used by Portland and other jurisdictions if it is allowed to stand.

  2. It is incredible to me that people are not up in arms.

    There seems to be a widespread belief among most citizens that an incident like that will never happen to them.

    Hopefully more police/government abuses will start to wake people up; history suggests that we can count on the authorities to do their part.

  3. With the present oath violators we have collecting checks today they need this type of scenario to further the undercover appearance of martial law attributes.Stay Black and Stay Strong.

  4. Hell, this is Portland, I thought that city was progressive! On a related note, some cities are really cracking down on jaywalking. Ostensibly for safety reasons. I’m sure that factors in but it is also a revenue stream. In Coronado, Ca., don’t EVER jaywalk. The police have jaywalk stakeouts and I believe the fine is over $200. It’s the same, only to a lesser degree, in neighboring San Diego.

  5. A possibly related story out of Indianapolis where a supposed escaped jail inmate is taken into custody by a sheriff’s deputy while being filmed and interviewed by a local Fox reporter and placed in the backseat of his unmarked car without handcuffing him and the officer’s gun lying in the backseat next to her unattended:

    The last time Fox 59 News viewers saw Brandy Majors, the 32-year-old mother of two and suspected escapee was uncuffed and unsearched in the back of a Marion County Sheriff’s detective’s car, going back to jail.

    She was also within inches of his gun.

    “He had his briefcase in the back of his car that, to me, looked like he had his weapon in it in the back of his car,” said Majors, who was being transported to the Marion County Jail by Capt. Wayne Sharp at the time.

    She was asked if she was close enough to grab the deputy’s gun.

    “Yeah, I could have. I wasn’t in handcuffs. There was no way I was going to attempt to that.”

    Majors claims she was inadvertently released from the Marion County Jail Friday morning after she was picked up the night before on an outstanding auto theft warrant from Hendricks County.

    “I didn’t escape. I didn’t go running out,” Majors protested. “They’re trying to cover up a mistake that they made and blame me.”

    Marion County Sheriff John Layton told Fox59 News that his investigation into the release continues.

    Read more: http://fox59.com/2013/07/18/uncuffed-unsearched-and-with-a-cops-gun-nearby-brandy-majors-recounts-arrest-on-camera/#ixzz2ZVCqOIPu

  6. I was once detained in exactly this same manner. I was handcuffed and put in the back of a police cruiser for over 30 minutes.

    I was at the University of Florida in Turlington Plaza, expressing my views about the university creating an LGBT affairs department and using the residence halls to recruit people into the homosexual lifestyle. A police officer said that I was trespassing. I disagreed with him and told him that I had a Constitutionally protected right to express my views at a public university, especially when my my daughter was enrolled there as a student. He grabbed my arms, twisted my arm behind me and put the cuffs on. I was locked inside the back of the police cruiser for over 30 minutes with my arms cuffed behind my back. At one point an officer opened the door and asked me if I was going to leave or just keep speaking? I told him I had a right to speak. He got angry and slammed the car door shut. Later a police sergeant opened the police car door and asked me to come out. He wanted to hear my side of the story. I told him exactly what happened. He agreed with me that I had a right to be there and speak. He said he was in the uncomfortable position of not being able to back up his officer who had detained me.

    I do not think it is right for police officers to have this kind of power. In Florida, they are not suppose to be allowed even to ask you for your driver’s license if you are just walking down the street minding your own business. For them to have this power to physically restrain you for 30 minutes without any charges is egregious.

  7. Steve;

    YOU are “the people” who should be up in arms screaming.

    If all we do is beef about it on a blog – the powers that be will keep bullying U.S. at will. They simply have no motivation to cease and desist.

    It is up to all of U.S. to be “We the People”. Unless we Unite and say Hell No to police abuse and/or any abuse of power – the bullying will continue.

    As for the contention that the people can’t complain I would like to see the legal mind of Professor Turley discuss abduction/kidnapping issues.

    If the police did not arrest, then he took someone by force/power – against their will and that is called

    Kidnapping!

  8. Just think, THE WATCHER, could have been gone long ago about the violations of his civil rights, for the recognitionable sum of $350-500K to settle all his claims. Wow.

  9. laserhaas

    I call the police departments and the D.A.’s office to complain, but that is just noise to them.

    I write my representatives, but I don’t believe that they listen.

    I vote, but look at what we have representing us.

    I forward these articles to inform my friends, but I am preaching to the converted.

    I donate to good organizations (eg Institute for Liberty).

    Other than taking up arms in rebellion, what do you suggest?

  10. The detention of an individual under circumstances in which the individual is not free to walk away is called an arrest. A detention that lacks legal justification is called a false arrest. To argue that what happened to Mr. Miller was not an actual “arrest” has the same degree of credibility as the argument that the deposition of Pres. Morsi was not an actual “coup.”

  11. “A detention that lacks legal justification is called a false arrest.” (Mike A.)

    If it’s a false arrest, is the detention then false imprisonment or as it is sometimes called, kidnapping? I’m curious and really don’t know how the law views the misuse of authority in such instances.

  12. Blouise, your hunch is correct. The detention of Mr. Miller in the back of the police car was an imprisonment.

  13. Steve;

    KUDOs much to you – for doing as much as talking.

    email me (laser dot haas @ yahoo) and I’ll give you a review copy of a book from a Washington D.C. insider that’s enlightening (and aggravating)

    The book mentions my personal battle against Mitt Romney on page 230 (pdf page 251) – and it marks how I try to help others in similar dilemmas.

    One Professor is reading the book on the way to Russia for a conference. He – too – desires to know how we can get “up in arms” and make a difference.

    The answer is – Very, VERY c a r e f u l l y…….

    Sonny Bono tried to make a difference as did Phil Marshall on the same subject and Mr. Hastings.

    The only reason I’m still walking among U.S., is that my adversaries consider me too inconsequential.

    They are going to change their minds on that – Real Soon!

    Your fellow mankind comes here to Professor Turley’s blog and demonstrates (greatly) that they are either apathetic and/ or indoctrinated greatly.

    Have a goal, make a plan. Decrease your attention span from all the evils to the ones you feel you can make a difference upon and increase your preparation to achieve the task.

    The GAO came out with a story on the SEC yesterday that is telltale. Detailing the fact that the environment is not conducive to good function. I would argue that the GAO got spanked by Dick Cheney too much; and is scared to do anything other than reprising.

    As for me, since the DOJ and SEC are too scared and/or too bought off to go after Goldman Sachs and Romney’s Bain Capital by prosecution;

    I’m going to do it for them – as a Private Attorney General under the RICO ACT. Stay tuned and watch. If, by some miracle, they let me live and corruption doesn’t bury the case (as it’s done a dozen times before). Then we will have funding.

    Remind me at that time, of this days banter – and will see what WE can do on a United front. Professor Turley does the informing and someone must do the doing!

    N’est-ce pas!

  14. It appears Portland misunderstood Lewis Carroll’s Alice in Wonderland. They thought it was a training and policy manual.

    There seems to be a lot of that going around lately.

  15. “Your fellow mankind comes here to Professor Turley’s blog and demonstrates (greatly) that they are either apathetic and/ or indoctrinated greatly.”-LASERHAAS

    I’ve been reading this blog for a while now, and occasionally comment. I don’t find the posters here to be either of these things:

    Definition of APATHETIC
    1 having or showing little or no feeling or emotion : spiritless
    2 having little or no interest or concern : indifferent

    Definition of INDOCTRINATE
    1 to instruct especially in fundamentals or rudiments : teach
    2 to imbue with a usually partisan or sectarian opinion, point of view, or principle

    There might be a very few folks who could be classified as indoctrinated, but from my point of view, only on certain topics.

    Perhaps you interpret these things differently than I do, but just because someone is not standing in front of the White House or Congress with a sign protesting or filing a law suit against the government doesn’t make them “apathetic”. I’m sure a great many folks who post on here also contact their government representatives on a regular basis and voice their opinions. (If they don’t they should be ashamed).

    Maybe if you had ideas on how folks could become more “engaged” in “action” and suggested them that would be more productive.

  16. You control  a blog based off content aggregation. I control legacies and the way men will be known for their futures in a game where they do not want to be known as for nothing other than good (public servants).I have this control based on Black & White and the PUBLIC relation.

  17. Well if he wasn’t arrested…. Then can they be liable for false imprisonment….. There’s something missing in this story…. Not sure what it is….

  18. City attorneys are not always truthful. If it is not an arrest, then it must have been a kidnapping! City attorneys must protect the city but if the officer went beyond his duty – he can be sued privately.

  19. LC,

    I’ll have to say that it has been my experience that city attorneys are some of the worst of the lot. Politic-ed up to the max.

  20. Well Evelyn; let’s test your premise for validity.

    What happened to Sonny Bono?

    Does Bldg 7 need an investigation?

    What is the the President’s preference – Straight, Gay or Bi?

  21. Chilling is right. I can imagine all manner of abuse beyond being made to sit in a police cruser for 30 minutes. Police are out of control and the people who are supposed to be supervising them don’t care. There is a back story of hate, fesr and resentment that many, many police officers seem to carry with them along with their cuffs and weapons. When that back story is permitted to be translated into official action be it false arrests, pepper spraying peaceful demonstrators or shooting unarmed humans, it is hard to know where to turn.

  22. Max1

    Thanks for the video – and I concur – it is our apathy/laxity that must be turned around like Brazil. Schools without funding, kids hungry and Trillion dollar wars.

    It doesn’t make any sense (except to those making warmonger profits).

  23. about a decade ago I sat on a jury for a high school student who was leaving school grounds during a lock-down with a written permission slip and a teacher by his side. the retired officer who patrolled the grounds told incoming police to take that boy down. they hog-tied him and put him in the back of a cruiser for two hours and then released him to his parents without charges. when the family filed a lawsuit, the city charged the boy with assaulting an officer and resisting arrest. there was videotape of what took place, two tapes to be exact, but the more relevant tape was “lost” by the pd. we selected our foreman who had previous jury experience and he suggested we first vote on each charge to see where we stood. unanimous on both counts, not guilty. later the judge, in answering our question, said “If the city could get a conviction the family wouldn’t win a lawsuit against it.” what a misuse of taxpayer dollars.

  24. rippleton;

    Kudos to you and the jury for making sure justice (partially) was served.

    It is a sad state of affairs in our nation, the amount of open skullduggery and abuse of power that exists; with no remorse or restraint.

  25. I would argue the reasonable person standard, that is would a reasonable person have the belief they were under arrest. When cuffed and placed in the back of the patrol car and being told “You are under arrest” by a LEO it doesn’t get much more clear than that.

    This more like CYA on the part of the city than anything.

    I also don’t see the city getting out of this due to them using Virginia v. Moore since this the jaywalking is not a crime but a civil issue.

  26. I’ll bet if the guy had been an illegal alien, he would have been totally ignored or at the most, given a warning and let go.

  27. Didn’t Jack White and Loretta Lynn do a song about this???

    Portland Oregon

    Portland Oregon and the crazy fuzz,
    Can handcuff you and say, “Just becuz!”
    Uh huh! Uh huh!
    Then drive you around, and you’d never guess,
    The whole darn time, you wasn’t under arrest! in Oregon.

    Squeeky Fromm
    Girl Reporter

  28. Gene,
    Loretta Lynn has had some really bad plastic surgery or is just getting older faster than I am. Wow.

  29. raff,

    Even when well done, I’m just not big on the results of facelifts. Hers isn’t that bad (I’ve certainly seen worse), but on a woman with already high cheekbones, the effect of a face lift (I think) gives them a skeletal appearance that is far more unattractive than lines and/or wrinkles. And if they combine it with (usually overdone) lip work ala Joan Rivers? Yikes. Some people age well (Helen Mirren, Sean Connery) and some don’t. I’m kind of the inverse of Billy Crystal’s old “Fernando” character. “It’s better to feel good than to look good, dah-ling.” If you can do both naturally? Good for you. But no amount of surgery turns back time. Entropy comes for us all.

  30. Why is jaywalking seen as such a crime by US police? In the rest of the world, they just don’t care, and millions of pedestrians cross the street without any harm or accident. To me it seems like a petty use of expressing their authority.

  31. @laserhaas, so, hey instead of clogging up the blogosphere with yadda, yadda are YOU willing to join the many, who for obvious reasons, don’t see the sense in what amounts to a one-man revolt. we can talk all day long, but timing is everything. i too see the need for self defense against rogue authority…but if on monday, i decide to put an end to to it, and i tell you,hoping for a little support (lets be real, I ALONE cannot hope to succeed) but alas! you have other life plans on monday that simply cannot be dismissed…where does that leave me and my plans for a better america? what..you want that i wait until tuesday, when its more convenient? well, that would be nice, in a perfect world, but on tuesday, guess what? the feds have a “drill” planned, yeah that’s right one of their drills, that lo and behold will put an end to all dissent. so,
    maybe that is why it is so easy to TALK about it and goad others into making a move they would not make if thought out just a bit. i mean, we all agree we need to wake up and do something…history herself DEMANDS a response. why do you think we have all this evidence from past centuries? just so we can do a better, perhaps more permanent job of it this time?
    when, laserhaas? when? today, tomorrow? what time? how do we plan without our sworn enemy knowing? how do i know you are not one of them?
    its all talk, isn’t it? we should have done something after JFK, if not then, after vietnam.
    but, no somehow, in a game of randomness that has fluidity instead of fixed rules….NOW appears to be the time when we should really look around and get a clue. those other times, were they practice or a warning?

  32. Supreme Court passivity? This court is the most activist pro-corporate, anti-equality, anti-freedom ever. These people are NOT passive, they’re on a mission.

  33. aelfric;

    Your banter to stop at “[Laser] has other life plans”.

    I’m here on this (and many, many other) blogs as time permits, seeking out the disenfranchised, the activists, non-conformists – Mad as Hell and Can’t Take it Anymore persons.

    Under the premise that We Must Unite.

    Occupy WS clearly shows that the spirit (and sometimes the flesh) is willing. They, however, didn’t have a “plan” (other than the one of not having a plan). Sort of like PCU movie = “We’re Not Gonna Protest” protesters.

    My plan of action is to work with others (including you – if you so wish) to form a network. When the MN corrupt federal courts colluded withe MN press (so strongly that the Star Tribune was put into bankruptcy while the paper was refunding monies to advertisers it said it didn’t need) – we went to the court hearing from all across the country. (Where the court was ruling on a deal that stipulated the Mandatory Victims REstitution Act “MVRA” – would NOT apply in Petters case).

    So a bunch of U.S. (including the man who ran for Governor of MN) put on ACT4 Justice (America Citizens Together 4 Justice) T shirts and stood outside the court shaking our fists, taking pictures of the protest – until we were run off.

    If you need help – in a “specific” plan of action. I will gladly provide what time I can, as often as a I can. If you get a copy of the new book “Presidential Puppetry” pages 230 & 231 tell you that though I’m fighting Romney – I do try to assist others (and have moved into homes to help fight kids beating up elders and others being wrongfully evicted).

    Meanwhile, others are dead and they tried to kill an eToys shareholder (Robert Alber of Kingman, AZ) – who joined me. Even though I do not particularly like Alber – I owe him my time because he joined me (though we were both looking to get back what was stolen from us by Goldman Sachs, Bain Capital and Romney).

    I’ve not seen my grandkids ever, after my daughter was abducted on my birthday in 2004 and my daughters believe I’ve abandoned the family.

    Not trying to making you feel guilty – just pointing out that you are barking at the wrong dog….

  34. By the way, we are NOT alone.

    There are others working behind the scenes with me – to halt bad faith.

    You’d be surprised how accomplished, high up and influential some of them are. But, they too, are suffering from the post traumatic stress disorder that Therapist Karin Huffer has coined the phrase of as

    Legal Abuse Syndrome.

    When people realize how truly ebol the world is around them, it is very disheartening and even depresses most people greatly.

    People are good and want to go behind U.S.

    If we get together and have some wins – They Will Unite….

  35. WrldVoyagr wrote: “Why is jaywalking seen as such a crime by US police? In the rest of the world, they just don’t care, and millions of pedestrians cross the street without any harm or accident.”

    It is not just in the U.S. I was in Singapore last month. There you can get up to three months in prison for Jaywalking.

    The truth is that in the U.S., millions do cross the street without anyone caring. It is only in those few situations where a local authority does stuff like this and abuses authority. Even when there are Jaywalking laws, most of the time they are ignored here in the U.S.

    For the most part people can sit in a park undisturbed, but I know one man who spent 5 days in jail for sitting on a park bench at 10:15 pm because a new local ordinance closed the part after 10pm and this man did not notice the newly erected signs erected that indicated the park hours. If he had been a respectable businessman dressed in a nice suit, he probably would have been given a warning, but he was poor. They seem to love abusing the poor.

  36. Have you noticed how the police now dress for the response they know they should expect, and not the one they receive from citizens?

  37. Plain and simple just like our nation declared independence from the king, we now need to ALL declare independence from our own government! It has become too powerful with not enough checks or balances! And as our Declaration Of Independence states we have a right better yet it is our duty to do so when the necessary time arises! I say to all is now not the time to change something that is 400 yrs+ and built to keep the POWER OVER ALL in the HANDS OF A FEW! This is injustice and as long as things remain the same there will never be justice or equality in this country….EVER!!!!

  38. GANT V. ARIZONA 2009 – look it up. The Supreme court already decided this issue & it is a crime for law enforcement to detain or arrest without probable cause. Especially when it comes to vehicle searches & illegal detention..

  39. The Supreme Court long ago ruled that it is lawful to defend yourself against unwarranted arrest, even to the point of killing the police officer.
    And what will happen when the people rightly refuse to tolerate such behavior and resist as is their right?

  40. one with purpose;

    We have the right to throw the bums out perverting out Government;
    even though it is an arduous task.

    But we have no right to seek independence thereof……

    Such is a much more slippery slope…..

  41. You control  a blog based off content aggregation. I control legacies and the way men will be known for their futures in a game where they do not want to be known as for nothing other than good (public servants).I have this control based on Black & White and the PUBLIC relation.Twitter it. The vampires are getting light.

  42. AND LOOK AT ALL THE AMERICAN SHEEPLE TAKE THIS LYING DOWN LIKE ITS LOGICAL OR EVEN NORMAL….WAKE THE F UP AMERICA, YOU HAVE BEEN INFILTRATED, is it NOTOBVIOUS??????????????????????? Do you really think that a gov’t for the people acts like this, does anythig in the govn’t seem normal in the last 13 years?? It’s been much longer but since some people woke up after the US govn’t /israel attack on teh twin towers, but too many sheeple are still sleeping, so lets wait for everyoe to eake up so we can have enough people to fight back…BUT NO TIME! TIMe IS UP PEOPLE…GAME OVER! And to those of you who could not figure out in all of these years that your “govn’t” was no longer your govn’t and are terrorist’s who have infiltrated your govn’t and Kennedy tried to stop, and bush bent over for and made money and a place in the future, unlike most of us, you morons should go to FEMA CAMPS FIRST! And to theose of you who are simply cowards or told people like me that we were crazy…..GO TO HELL, oh wait you will, it’s called FEMA!

  43. This is disturbing because for practical purposes, a citizen is arrested. However, to avoid legal liability they want to treat him/her as not arrested. That’s another way of saying, “Hey, we are arresting you but you can’t arrest us for wrongful arrest.”

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