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  1. #11
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    Default Re: Is an unlawful arrest kidnapping?

    Quote Quoting cdwjava
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    The officer in the field is in no position evaluate the status of someone's "affirmative defense". Suspects say things like, "I was with my mother!" all the time. It may be incumbent upon the officer to look into that, but it does NOT mean that he has to let the guy go until he has had a chance to check out the alibi. He can hook the suspect then later look into the alibi. if the alibi is solid, he can then have the suspect released.

    And, of course, alibi witnesses can lie or be unreliable.

    An "affirmative defense" can be anything. And the police are not going to be strapped to avoid arresting someone simply because he claims he didn't do it and might be able to prove it. If there is sufficient probable cause to make the arrest, they can.

    - Carl
    Carl, I was referencing this case, a Civil case, where the officers knew beyond doubt the DF's had an absolute affirmative defense. The appeals court ruled the officers were NOT entitled to qualified immunity for arresting the DF's.

    Conclusion:

    The district court in this matter correctly determined that the defendant officers who arrested the Dietrichs for carrying concealed weapons knew that the plaintiffs were legitimately carrying firearms for protective purposes and had not engaged in, were not engaged in, nor were about to engage in criminal activity. The arrest of the plaintiffs thus violated Fourth Amendment principles, and the defendants were, therefore, appropriately denied summary judgment on the plaintiffs' false arrest claims.


    http://www.law.emory.edu/6circuit/fe...a0053p.06.html

    Opinion?

  2. #12
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    Default Re: Is an Unlawful Arrest Kidnapping

    That was a very specific case and, apparently, the officers knew full well that the parties had the lawful right to carry a weapon pursuant to state law. This is not the same as making an arrest based upon probable cause even when a claim of a valid defense is present. The court also wrote in the decision that under other circumstances, an officer who would not have known the parties' occupation might lawfully make an arrest for probable cause.

    It appears that OH allows for concealed carry if it is for a legitimate business purpose (at least that's what I inferred ... though it seems VERY odd). Out here the only equivalent might be that the officers definitively knew the party had a CCW and had not otherwise violated the law.

    The general premise that an unlawful arrest will equate to kidnapping is just plain wrong on its face.

    - Carl

  3. #13
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    Default Re: Is an Unlawful Arrest Kidnapping

    Quote Quoting cdwjava
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    That was a very specific case and, apparently, the officers knew full well that the parties had the lawful right to carry a weapon pursuant to state law. This is not the same as making an arrest based upon probable cause even when a claim of a valid defense is present. The court also wrote in the decision that under other circumstances, an officer who would not have known the parties' occupation might lawfully make an arrest for probable cause.


    - Carl

    The officer's argument was the Plaintiff's/arrestees asserting a valid affimative defense at the time of investigation is not binding on them in determining whether to make and arrest. The Plaintiff's stated it was, the court agreed.

    Statutorily, the law only provided an affirmative defense, meaning per se in court, it did not say the officers were to consider it in the field, however, the court, citing Carroll, indicated the totality of the facts at the officer's hands were NOT sufficient to support PC and they should have known this, regardless of facial statutory language.


    Bottom line is, in the 6th Circuit, IF an officer knows of a valid affirmative defense to ANY alledged crime, they can not make an arrest and just let the defendant plead such in court. If they do, they may be subject to a civil rights lawsuit.

    I also suspect it is given "great weight" in a criminal proceeding for any charge and dismissal.

    BOR

  4. #14
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    Default Re: Is an Unlawful Arrest Kidnapping

    Quote Quoting BOR
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    The officer's argument was the Plaintiff's/arrestees asserting a valid affimative defense at the time of investigation is not binding on them in determining whether to make and arrest. The Plaintiff's stated it was, the court agreed.
    An affirmative defense is something usually brought up at trial. What you are discussing here is something that effectively removes probable cause. If there is no probable cause, then no arrest can lawfully be made.

    Statutorily, the law only provided an affirmative defense, meaning per se in court, it did not say the officers were to consider it in the field, however, the court, citing Carroll, indicated the totality of the facts at the officer's hands were NOT sufficient to support PC and they should have known this, regardless of facial statutory language.
    That's what i said. Probable cause for the arrest did not exist in that particular case.

    Bottom line is, in the 6th Circuit, IF an officer knows of a valid affirmative defense to ANY alledged crime, they can not make an arrest and just let the defendant plead such in court. If they do, they may be subject to a civil rights lawsuit.
    That's not quite what it said. Again, it effectively said if there is no probable cause, no arrest can be made. In the case cited the officwers apparently knew that there was no probable cause to make the arrest and made it anyway. This issue of an "affirmative defense" does not mean quite what you think it means, I think. It is not an issue generally applied in the field.

    affirmative defense n. when a defendant files an answer, in addition to denying some or all of the allegations, he/she can state what are called "affirmative defenses." These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Many of these defenses fall into the "boilerplate" (stated in routine, non-specific language) category, but one or more of the defenses may help the defendant.


    An explanation for a defendant's actions that excuses or justifies his behavior. For example, acting in self-defense is a common affirmative defense to a charge of battery or homicide. Other affirmative defenses include insanity, duress and intoxication.


    And there are many others that vary along the same theme.

    If there si no probable cause, you cannot make a lawful arrest. It's that simple.

    - carl

  5. #15
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    Default Re: Is an Unlawful Arrest Kidnapping

    Quote Quoting panther10758
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    In the reverse if Police only arrested guilty people there would be no need for courts
    Good point.

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