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. 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.

  2. “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.

  3. 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.

  4. 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!

  5. Mike A.

    Thanks

    Kidnapping would be quite an expansion of Virginia v. Moore

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

  7. “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.

  8. 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.”

  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. 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.

  11. 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!

  12. 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.

  13. 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

  14. 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.

  15. 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.

  16. 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.

  17. 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.

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