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. 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.

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

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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).

  8. 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.

  9. Super;

    The remark that “no one likes a dishonest man” is errant.

    We elect dishonest men and women all the time – by popular vote.

  10. As for your remarks on constructive results.

    Which of the 1 billion plus problems on the planet do you seek to resolve?

  11. 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?

  12. 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.

  13. 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.

  14. 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….

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