No, Sen. Casey Calling Police Kidnappers Is Not “Mostly Right”

440px-Bob_Casey_Jr._official_photoI was recently called by the Philadelphia Inquirer on a fact check of Sen. Bob Casey (D., Pa.) claim that officers in Portland of “kidnapping and holding citizens without charges.” I explained that the common hyperbolic claim of kidnapping is legally unfounded. The newspaper still found that Casey was “mostly right.”  This is why I believe he was wrong. He was not alone however in his judgment.

First, the controversy. There have been a couple of incidents that I believe raise serious issues of unlawful arrest.  One is the much discussed arrest of Mark Pettibone, who was taken into an unmarked minivan after being stopped on street. He said that he was taken to a cell and read his Miranda rights.  However, he was later released without a charge.

The case is under investigation.  It is not clear if the police had probable cause for the arrest. Police are not allowed to remove people from the streets to determine later if they are being sought for federal crimes. Notably, Judge Michael Mosman stated in court that

“There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone’s sworn statements. Defendants have not refuted the state’s allegation that Mr. Pettibone’s seizure lacked probable cause.”

So, for the purposes of analysis, this appears an unconstitutional arrest. However, does that make it a kidnapping?  The answer is no.

The Oregon criminal code expresses states “A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another’s personal liberty, and without consent or legal authority, the person.”  The government would argue that the arrest was done with legal authority, even it if was mistaken on the identity of the individual.
The federal kidnapping provision states is worded differently:

(a)Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—

(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;

(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;

(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49;

(4) the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title; or

(5) the person is among those officers and employees described in section 1114 of this title and any such act against the person is done while the person is engaged in, or on account of, the performance of official duties, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

(b) With respect to subsection (a)(1), above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce. Notwithstanding the preceding sentence, the fact that the presumption under this section has not yet taken effect does not preclude a Federal investigation of a possible violation of this section before the 24-hour period has ended.

(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.

(d) Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than twenty years.

Some professors have stated that this is clearly criminal kidnapping.  In the story, Berkeley Dean Erwin Chemerinsky states “Apprehending a person by force and holding him or her in captivity without legal authority is the definition of kidnapping.”

The problem with Chemerinsky’s view is that it sweeps too broadly. It would literally make every unlawful arrest by police into cases of kidnapping. That would treat officers in thousands of such cases in history as kidnappers. Before we decides that we had have the equivalent of thousands of Lindbergh babies, we might want to check the criminal code and cases.

These cases are uniformly handled as unlawful arrests because they lack of the intent associated with kidnapping. Officers make mistakes.  I have both sued and represented law enforcement officers. According to the federal government, dozens of arrests have been made and charged. It has insisted that the officers suspected Pettibone of being a person accused of federal offenses. That does not make the arrest lawful.  Moreover, the government is wrong in claiming that this was not an arrest. Pettibone was not free to leave.  He was in custody. As the Supreme Court held in Ybarra v. Illinois, “seizure of a person must be supported by probable cause particularized with respect to that person.”

However, courts have rejected even claims of unlawful arrest in cases of mistake. In Hill v. California, 401 U.S. 797, 802 (1971), the Supreme Court held a mistaken arrest was still constitutionally valid if there was probable cause to arrest the person sought and there was a reasonable belief that the arrestee was, in fact, the person sought.

There has not been an allegation in Portland of the type of massive arrests conduct by the DC police in our World Bank case to suppress protests.  The federal government is claiming that most of those detained were charged. Absent such evidence of systemic suppressive arrests, this is more likely to be viewed as a standard unlawful arrest.  Under Chemerinsky’s view and that of Senator Casey, we would have thousands of kidnapping cases.  I cannot find a single case that fits this fact pattern where a court has a classified the act as kidnapping. Perhaps one exists but, given the unfortunate regularity of unlawful arrests, the record is telling.

Where we have seen “kidnapping” raised is where police officers are acting outside of their jurisdiction or even in another country. For example, in Frisbie v. Collins, 342 U.S. 519, 520 (1952), the defendant alleged that he was kidnapped in Chicago by Michigan police to face trial for murder in Michigan. The Court found that the act met the definition of the Federal Kidnapping Act in 1932. since Michigan police officers acted outside their territorial jurisdiction, without legal authority. It did not however toss out the charges:

“Despite our prior decisions, the Court of Appeals, relying on the Federal Kidnaping Act, held that respondent was entitled to the writ if he could prove the facts he alleged. The Court thought that to hold otherwise after the passage of the Kidnaping Act “would in practical effect lend encouragement to the commission of criminal acts by those sworn to enforce the law.” In considering whether the law of our prior cases has been changed by the Federal Kidnaping Act, we assume, without intimating that it is so, that the Michigan officers would have violated it if the facts are as alleged. This Act prescribes in some detail the severe sanctions Congress wanted it to have. Persons who have violated it can be imprisoned for a term of years or for life; under some circumstances violators can be given the death sentence. We think the Act cannot fairly be construed so as to add to the list of sanctions detailed a sanction barring a state from prosecuting persons wrongfully brought to it by its officers. It may be that Congress could add such a sanction. We cannot.”
That was a case where officers knew that they had no authority to conduct the arrest since they were outside of their jurisdiction.  In these cases, the federal officers will claim that, if this was an arrest, they were simply mistaken on the identity or made a mistaken decision under extreme conditions to remove the individual.
As I stated to earlier, my greatest concern is that these officers may have removed an individual to another location because they wanted to question the suspect without particularized suspicion.  They have cited the dangerous conditions of the encounter given attacks on police.  That is not a defense.  It would effectively gut the requirement and limits under Terry v. Ohio as well as other foundational cases.  You cannot remove an individual for the purposes of questioning without consent or probable cause.  I fail to see the reasonable basis for the belief that an officer can do so.
However, that is not what is generally treated as kidnapping.  We need lawmakers and law professors to frame these very serious issues for the public, not engage in hyperbolic exaggeration or embellishment. The fact is that no one seriously believes that an unlawful arrest of a couple individuals in a volatile area of rioting would ever be viewed as actual kidnapping.  We need to focus on the real issue: the unlawful arrest.  I am very concerned that any federal officer would think that he or she could remove an individual against their will just to talk to them or decide if they had probable cause. That is why the inspector general investigation on these controversies are so important.
If the facts turn out that there was no individual suspicion, let alone the needed probable cause, this is an egregious violation of the Fourth Amendment.  Thus, it could be claimed that this is done without legal authority, but it was carried out with either mistaken belief of such authority or a mistaken identity of the suspect.   That is why Sen. Casey’s statement is mostly wrong.

 

52 thoughts on “No, Sen. Casey Calling Police Kidnappers Is Not “Mostly Right””

  1. “I would not look to the US constitution, if I were drafting a constitution in the year 2012.”

    – Ruth Bader Ginsburg, Justice of the U.S. Supreme Court, Sworn to support the U.S. Constitution
    _____________________________________________________________________________

    The communists (liberals, progressives, socialist, democrats, RINOs) have thrown out the Constitution as fundamental law;

    why not the police?

    1. George, I’m sure there’s more to that quote which would provide better context than the cherry picked quote.

      P.S. nobody has thrown out the constitution, but trump sure loves abusing it.

      1. “…nobody has thrown out the constitution,…”

        – Svelaz
        _______

        Are you out of your ——- mind?

        The Progressives “progressed” America into communism but the truth is, Olde “Crazy Abe” Lincoln commenced the process by confiscating private property, eliminating “classes” from society, conducting a brutal dictatorship, etc., etc., etc.

        Article 1, Section 8 provides Congress the power to tax only for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, charity or any other form of redistribution of wealth. Congress has the power to regulate ONLY the value of money, the “flow” of commerce among nations, States and Indian tribes, and land and naval Forces.

        The 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute. Congress has no power to “claim or exercise dominion” in any way, by any method or means, over the private property of individuals.

        The entire communistic American welfare state is unconstitutional including, but not limited to, affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare,
        Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

        The Constitution provides maximal freedom to individuals while it severely limits and restricts government to its sole charge of providing security and infrastructure in order to facilitate the maximal freedom of individuals.

        Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

        That affirmative action and generational welfare you enjoy, that’s not legal. The right of private property owners to preclude you from their neighborhoods through CC&Rs, that’s constitutional. See what I mean. Oh, no. You don’t want to see the truth and the facts do you? You want to “interpret” the rights, freedoms, privileges and immunities of Americans out of existence. Do you think they will continue ad infinitum to let you?

  2. Democrats are openly pathological about lying. The only thing they have going for them is they seem to have the largest assemblage of castrati in the world.
    Should we expect a CD sometime this Fall?

    1. I think there is a recording of one of the last castrati singing. Extraordinary voices. We could have quite a lovely choir if we scooped up the Antifa in Portland and Seattle and put them to rights.

      1. they had to work at practice singing too just like any other vocal range.

        antifa attracts the sort of heroin addict type of disorderly weasal who lacks all impulse control and discipline whatsover.

        they are a magnet for the worst kind of freaks in all of society

        BLM discredited itself from the start most of all due to their open and obvious cooperation with these nutjobs

      2. The New Castrati, brought to you by the 19th Dumbmendment, the Death Warrant for America, commencing with a fertility rate in a “death spiral”…not to put too fine a point on it. Seems like a fine day for a revolution! No, a “devolution,” back to the “manifest tenor” of the Constitution and Bill of Rights, 1789.

    2. Cindy Bragg, so is trump. It seems even conservatives, republicans in general are perfectly fine with pathological lying.

      Why complain now?

  3. we’re now at the point where US Senators are simply flat out lying. I get that all politicians bend the truth for political reasons, but this has gotten absurd.

      1. You’ve got the wrong president. You’re talking about:

        “…If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what.”

        “What we do know [about Benghazi] is that the natural protests that arose because of the outrage over the video were used as an excuse by extremists to see if they can also directly harm U.S. interests.”

        “[In the IRS scandal] That’s not what happened,…” “There were some bone-headed decisions,…” “Not even mass corruption — not even a smidgen of corruption.”

        – Eminently Ineligible Barack Obongo

  4. Declare a riot and give everyone an opportunity to leave or face arrest. Quietly and out of sight where possible cordon off the entire area so there is no avenue of escape. Then collapse the circle and arrest everyone. They are all in violation for failing to disburse and are fair game for cuffs, lying on the ground while sorting and then being hauled away. Find out where bail might be coming from and what promises were made to the rioters regarding bail.

    Be nice to sweep up a couple of feckless mayors and radical politicians with the rest.

    Magistrates and judges to hold sessions in the besieged courthouse. That’s what it’s for. If they have to run the gauntlet of the mob every day maybe they won’t be so soft.

    1. Can’t declare a riot when one isn’t occurring. Those people picked up by the federal agents were not rioting.

      1. and yet, most nights in portland a riot gets declared.

        strange world where a riot is and is not happening at the same time and place.

      2. Some were rioting. When a riot is declared and people given an opportunity to disperse then everyone who remains is complicit and subject arrest whatever he may be doing. Failing to disperse puts one in immediate legal jeopardy. That’s why I want them surrounded quietly. Then tighten the cordon and haul away everyone who has remained.

  5. They were not police! They had no badges or identification. Professor, you really are embarrassing yourself. Snatching peaceful protestors off the streets and shoving them into unmarked vehicles may or may not fit the statutory definition of kidnapping but what Trump’s secret police did looked like it and smelled like it. Following orders as a defense to abuse like this is a “defense” that went out with the Nuremberg Trials. Trump is like a copy cat Pinochet. Would you really want to defend him?

      1. Absurd, none identified themselves or showed any identifying which federal organization they belonged to. That’s why this was so controversial.

          1. Absurd, prove it is false. Show us these officers identified themselves when arresting these people. Pls show us.

    1. Holmes– You have the vapors. But what if holding the police back leads to masked men who have nothing at all to do with the police taking Antifa for rides? That is what happened when law enforcement collapsed in Latin America and the Old West. Who ya gonna call then?

    2. “They were not police!”
      And yet they were.

      “They had no badges or identification.”
      They had both badges and identification,
      They were clearly identified as police, and they had unique individual identifiers on their uniforms.

      BTW the law merely requires that they verbally identify themselves as police.

      “Snatching peaceful protestors off the streets and shoving them into unmarked vehicles may or may not fit the statutory definition of kidnapping”
      In all instances the portland police had declare a riot before anyone was arrested.
      There is no such thing as a “peaceful protestor” at a riot. They were ordered to disburse, they did not, Their assembly was declared illegal, they did not end it.
      You are not a “peaceful protestor” when you are present at a riot, merely because you are not personally throwing the bombs, or blinding officers with lasers or throwing the molitov cocktails or throwing the rocks or ….

      You are a rioter. You are subject to arrest.
      You may be a lessor criminal that those who actually engaged in violence, but you are none-the-less criminal.

      If you are marching ont he federal courthouse in Portland after the city enacted curfew you are a criminal and subject to arrest.

      This never should have been an issue.

      Only wing nuts can make crap like this up.

      “Trump’s secret police”
      Not secret, quite out in the open, with uniforms that were clear and said “police” and badges and identifying tags.

      “Following orders as a defense”
      There is no need for a defense. They were arresting criminals.

      Would I really want to defend Trump ?

      Certainly.

      Are you really going to defend anarchy and violence as peaceful protest ?

    3. “They had no badges or identification”. You mean the DHS patches on their sleeves albeit in camouflage? Maybe they were Putin’s Russian mercenaries from the Wagner group.

    4. If there actually were an active “secret police,” you would not be published here or anywhere else.

      You would not want to be published here or anywhere else.

      You would not be speaking in opposition to said “secret police.”

      You would not want to speak in opposition to a truly “secret” “secret police.

      Seriously.

      No, I know.

      You’re not serious.

      And that’s understandable.

  6. Grabbing and holding, abducting, detaining arbitrarily, physical force overwhelming basic rights, etc. potato-potatoe, tomato-tomatoe. Casey is no less right or wrong as any self gratifying lawyer, rubbing one off. Just as a thug uses force to subdue an innocent victim for whatever reason(s), these ‘officers of the law’ used force to subdue innocent victims for reasons of intimidation and to create expressions of retribution. Turley constantly avoids responsibility through semantics and, well, rubbing one off.

      1. “ More stupid from issac, our loon from the North.”

        Actually Isaac is right. Turley is parsing words to avoid labeling some of those incidents as kidnappings. Ironically Turley provides the rationale that confirms it. He makes excuses by making theoretical assumptions. Federal agents roaming around in unmarked vans is not protecting federal property. The cases where individuals were grabbed outside federal grounds is much under their “legal authority”.

        Not reading their rights, not stating why they are detained and not charging them after being taken to another location IS kidnapping according to Turley’s own column.

        Unlawful arrest is an excuse to avoid the more damaging charge of kidnapping. Both charges should be considered. Dictators employ these same tactics. I’m surprised Turley didn’t mention this inconvenient fact that ties out president’s authoritarian tendencies.

        1. Wrong, Svelaz, police can and do use undercover unmarked vehicles and plainclothes officers on a daily basis
          federal police can do exactly the same

          trust me every city of considerable size has unmarked fed vehicles in action carrying undercover DEA and ATF and marshalls.

          This is totally within the range of lawful federal police conduct. Totally! You are being lied to when they say it is not.

          Havent you ever been pulled over by an unmarked car? I have, back before I got my law license and became an angel of legal compliance.

          1. Mr Kurtz – so, we are to believe that since you have been beknighted into the Bar, you are been without sin? No speeding? No running a red light? No rolling stops?

          2. “ Wrong, Svelaz, police can and do use undercover unmarked vehicles and plainclothes officers on a daily basis
            federal police can do exactly the same”

            Nope. Police that have jurisdiction can and only if they have warrants for the apprehension of such individuals.

            Federal agents do not have jurisdiction if their orders are to protect federal property. Taking people off the streets outside federal property when no crime is occurring is illegal.

            Undercover police officers identify themselves upon arresting someone. These federal agents didn’t identify themselves, didn’t read them their rights when they got arrested and didn’t charge the individuals in question.

            All of those actions are illegal. Just because there is rioting going on in another part of town doesn’t mean your rights are suspended.

    1. Issac is just quoting from Mao’s big Red Book on revolutionary tactics. The left doesn’t really want “no cops.” What they want is to get rid of civilian police, and instead have their own KGB instead.

    2. Isaac claims Turley is involved in masturbation here? That’s what “Rubbing off” means, isnt it Isaac.
      If so then Isaac is some kind of perv to come read it and comment daily.

      But this was just an insult. Turley actually informs the readers about relevant topics in law and society. You are ungrateful and rude Isaac son of Bacon

  7. “We need lawmakers and law professors to frame these very serious issues for the public, not engage in hyperbolic exaggeration or embellishment.”

    Then we’d better replace these brainwashed clowns blindly pushing their stupid ideology with people actually committed to the rule of law and well-being of this nation’s citizens.

  8. If you have seen the videos of the attacks on officers when they arrest a member of Antifa, you would see why they are using the tactic they are. You do NOT stay anywhere near where you picked the person up.

    Sen. Casey is completely wrong and you are a little bit wrong. However, the 9th Circuit will let us all know how right we are. 🙂

    1. “ If you have seen the videos of the attacks on officers when they arrest a member of Antifa, you would see why they are using the tactic they are.”

      Whether officers were attacked elsewhere is irrelevant. Your rights don’t get suspended because officers deem their concerns about being attacked as justification.

      Federal officers are outside their jurisdiction when they apprehend people outside federal property which they are charged in protecting.

      Being grabbed without identifying themselves or stating the reason why they are being arrested and ultimately not charged is kidnapping. If they are using that tactic as a form of intimidation it’s still kidnapping because it’s not about arresting an individual for a crime if they simply grab them off the street. That’s not a crime. Wearing black clothing is not a crime either.

      Turley goes to great pains to finagle a justification for not calling it a kidnapping, but those few cases that were filmed make it hard to justify just calling it an unlawful arrest.

        1. Paul C. Shulte, federal officers were sent to those locations to protect federal property. They cannot take over responsibility for local policing action unless they are directly threatened.

          Once they started roaming around in unmarked vans. They were already outside their jurisdiction. It was an intimidation tactic that didn’t consider the ramifications of just plucking people off the streets without just cause or an actual crime. They were only charged with protecting federal court houses and other property. They went beyond their purpose.

          1. Svelaz – the jurisdiction of federal officers is anyplace in the United States or its territories, Unmarked vehicles are used by police forces across the nation, including the feds. They were not “roaming” they have been keeping an eye on particular people during the riots and then following them to a relatively safe place to pick them up.

      1. no, actually, federal jurisdiction to arrest people for destruction of federal property, is throughout the United states without geographic limitation

        moreover, there are guidelines which allow them to extend security operations into local jurisdiction’s adjacent streets and property if the emergency calls for it

        surely svelaz you are aware of the outcome of the Civil War which established with painful clarity, the principle of federal supremacy?

        as a lawyer I confess that I must adhere to the doctrine of “federal supremacy” due to my respect for our constitutional order.

        of course we value the ninth and tenth amendments but they are not operative in this context.

        1. “ no, actually, federal jurisdiction to arrest people for destruction of federal property, is throughout the United states without geographic limitation”

          Sorry, but you’re wrong here. There are limitations. In fact you listed them.

          They can extend their jurisdiction. But protecting federal property only allows them to go as far as the threat of violence can go towards vandalizing the property. That doesn’t allow them to roam around downtown picking up people who are not actively protesting or damaging property.

          Federal supremacy has its limits. In this case federal supremacy doesn’t apply. This is why these arrests are not legal. Even Turley recognizes it.

  9. See Glenn Reynolds on the activities of Glenn Kessler and other ‘fact-checker’ columnists. It was never done in good faith; it’s political messaging.

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