What We Know About the Killing of Elijah McClain

[The Barbarian]

Question:

caller: There is a person acting strange wearing a ski mask and waving his hands around.

Police cannot go and investigate?

Here's what the law says:
Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business. However, the Fourth Amendment prohibits police officers from detaining pedestrians and conducting any kind of search of their clothing without first possessing a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. Terry v. Ohio, 392U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 (1968). Police may not even compel a pedestrian to produce identification without first meeting this standard.

It's surprising to learn how many police officers don't even get Law Enforcement 101. I suspect that many of them know, but hope that citizens don't know. Hence the frequent whines of "where did you get your law degree", when faced with Americans who actually know their rights.

Thus ends crime prevention because police cannot interact unless there is a crime committed, or suspected of being committed.

You still don't get it. You can investigate all you like. What you can't do, unless you have reasonable articulable suspicion of a crime, is detain a person or insist that he identify himself. So you can approach him, and ask a question. If he chooses to not answer, and continues on his way, you'll have to meet the requirements of Terry vs. Ohio in order go stop him.

Law Encorcement 101. This is in the certification training every state requires of its law enforcement officers.

Officers who don't like it, need to find a job they can do competently.

Edit: or move to a country where there are no limits on the power of the police. There, any police officer can detain anyone for any reason he dreams up. Sound better to you?

 

[The Barbarian]

And here's the real problem. Dealing with a mentally ill person requires training and intelligence. Since police departments often screen out exceptionally bright applicants early on, few law enforcement officer are equipped to deal with such people.

This is a good example of a need that shouldn't be handled by police, but by competent and trained public safety officers, apart from the police department. Tossing criminals and the mentally-ill into the same bin will always lead to failures like this, and we pretty much set up police to fail when we ask them to do it.

Doesn't have to be that way; in places like Japan and Finland, police are trained (and paid) to be effective at crises like these, as well as being law enforcement officers. We're seeing more abuses, because in the last few decades, we've moved away from the cop as protector and toward a militarized version of policing that conditions officers to see their fellow citizens as potential enemies.

There has to be revolutionary change to either build police forces that see service and protection as the first duty, or we can break out functions like this to people trained and able handle them.

 

[hislegacy]

You still don't get it. You can investigate all you like. What you can't do, unless you have reasonable articulable suspicion of a crime, is detain a person or insist that he identify himself. So you can approach him, and ask a question. If he chooses to not answer, and continues on his way, you'll have to meet the requirements of Terry vs. Ohio in order go stop him.

How does that work in real life? I'd request your personal answer - not a cut and paste please.

John Q. Public is a white male, 50yrs old 5'10' brown hair medium build wearing a white tee shirt and blue jeans. John just got into and argument with his wife and assaulted her. He is wanted for questioning.

Bob L. Johnson is a white male, 50yrs old 5'9" brown hair, medium build wearing a white tee shirt and blue jeans .

You are officer Smith

What do you do?

Bob Johnson has chosen not to stop or answer any questions you have. How do you know it isn't John Q. Public walking away from you?

 

[hislegacy]

A personal note:

There is a local casino here that has a Ruth Chris Steakhouse (one of my Favorites). It's about 9pm and I am leaving through the main casino doors when I hear someone yelling - hey you, stop!

Now I am one of those 'poor brown people' the left is always speaking of. I stop turn around to see three armed officers running in my direction. I stand still, thinking they are running past me, but no, they aren't. Hands on weapons, the one officer asks, who are you? I respond with my name. Let me see some ID was his response. I ask what is wrong? He repeats the 'let me see some ID', so I give it to him. He looks, says, OK, you can go. I respond by asking why he stopped me in the first place, where he replied 'nothing, have a good night'.

I could have stood there and made a scene, but instead I went home and the next day called, made an appointment with the head of their security. We met, had a cup of coffee together - he explained how I looked like a known card cheat that they were looking for. His officers did not explain that because of the crowd that had gathered around. They didn't want people to know there was a cheat there.

The 30 min meeting ended with him expressing his thanks for my handling it so nicely, a week later I received a letter of thanks and a voucher for two free meals.

I am 100% convinced it would have ended much differently if I just ignored them and 'exercised my rights'.

 

[tulc]

A personal note:

There is a local casino here that has a Ruth Chris Steakhouse (one of my Favorites). It's about 9pm and I am leaving through the main casino doors when I hear someone yelling - hey you, stop!

Now I am one of those 'poor brown people' the left is always speaking of. I stop turn around to see three armed officers running in my direction. I stand still, thinking they are running past me, but no, they aren't. Hands on weapons, the one officer asks, who are you? I respond with my name. Let me see some ID was his response. I ask what is wrong? He repeats the 'let me see some ID', so I give it to him. He looks, says, OK, you can go. I respond by asking why he stopped me in the first place, where he replied 'nothing, have a good night'.

I could have stood there and made a scene, but instead I went home and the next day called, made an appointment with the head of their security. We met, had a cup of coffee together - he explained how I looked like a known card cheat that they were looking for. His officers did not explain that because of the crowd that had gathered around. They didn't want people to know there was a cheat there.

The 30 min meeting ended with him expressing his thanks for my handling it so nicely, a week later I received a letter of thanks and a voucher for two free meals.

I am 100% convinced it would have ended much differently if I just ignored them and 'exercised my rights'.

so...you were wearing a ski mask, had social anxiety and were walking down the street while listening to your music (because it helps you deal with your social anxiety) and because you didn't respond quickly enough the police did the one thing guaranteed to throw you into a full on panic attack, they grab you, and when you try and pull away (because you're in panic mode) they throw a choke hold on you? and then they drug you. Because it sounds a lot like your experience bears no resemblance at all to what ended with Elijah McCain brain dead in the back of an ambulance.
tulc(just a thought)

 

[The Barbarian]

How does that work in real life?

Learn about it here:

Do you really, not know how it works? I suppose you're not a law enforcement officer, but it's really sad that an American citizen would not know this.

You can stop anyone and ask a question. Unless you have a reasonable suspicion that there is a crime, you cannot lawfully detain them, or even demand that pedestrians identify themselves. They can, if they choose, refuse to say anything to you and go about whatever they were doing. That's the law.

John Q. Public is a white male, 50yrs old 5'10' brown hair medium build wearing a white tee shirt and blue jeans. John just got into and argument with his wife and assaulted her. He is wanted for questioning.

Bob L. Johnson is a white male, 50yrs old 5'9" brown hair, medium build wearing a white tee shirt and blue jeans .

You are officer Smith

What do you do?

Bob Johnson has chosen not to stop or answer any questions you have. How do you know it isn't John Q. Public walking away from you?[/QUOTE]

The question comes down to "do you have a reasonable articulable suspicion that this white guy in blue jeans is the perp." Do you? Can you say with any reasonable certainty that he has to be the right guy? I'd say you can't. And if you can't, you don't get to detain him. That's the law. Officers have lost their jobs and some have gone to prison for resorting to violence in such cases. As cell phones become more ubiquitous, there will be more of those. "You fit the description" never happened to me, but it's happened several times to a co-worker I know. And yes, he's at risk because, well you know...

I know of a guy who is a former fire fighter. He got jacked up leaving his apartment to go work out. Seems there was a guy who exposed himself to several people in the complex, and he "fit the description." He took the time to get the dispatch information. Wrong height, wrong clothes, wrong build. Guess what it was that "fit the description."

Yep. And that's why it's a problem.

 

[The Barbarian]

I am 100% convinced it would have ended much differently if I just ignored them and 'exercised my rights'.

Yes, that's the usual police excuse. "If you had just surrendered your rights, when we tried to violate them, we wouldn't have hurt you, so it's your fault."

That's not playing so well with the courts anymore, is it?

 

[disciple Clint]

Sorry, no. The law requires, that to detain a person, the officer must have a reasonable, articulable suspicion that a crime has been committed, or is about to be committed. Someone concerned about a person's attire does not meet the legal standard. "Someone was upset about the way he was acting" doesn't meet that standard, either.

So the officer's unlawful command is not a defense. Nor is, "we thought he was emotionally disturbed, and he wouldn't do what we asked, so we shot him."

They were free to contact him; they were not free to detain him.

You need stop practicing law, post after post of misinformation helps no one. What concerns me most is that you are encouraging people to not cooperate with the police. That is exactly why this problem started. The police officer said stop, the subject responded I have a right.... He started the problem with his failure to respond to the officer, who did by the way have a lawful reason to stop and interview the subject. There is no reason for a person not want to stop and talk with an officer if they not broken any laws. That situation would have involved a short conversation with the officer and the officer may have been able to help the subject who seemed to be suffering some kind of mental distress. But instead of that false pride or misinformation about the law contributed to an unfortunate conclusion to this event.

 

[disciple Clint]

Just after 10:30 p.m. on August 24, 2019, the Aurora Police Department received a call about a “suspicious person” wearing a mask and waving his hands. They dispatched three officers — Nathan Woodyard, Jason Rosenblatt, and Randy Roedema — who subsequently said McClain “resisted contact” and continued down the street.

Where's the crime here or the suspected crime?

From my Post: Note someone does not have to commit a crime to qualify for contact by the police.

 

[The Barbarian]

You need stop practicing law,

I'm just showing you what the law says. You see, as Americans, we are supposed to know what our rights are, and to uphold them.

post after post of misinformation helps no one.

Terry vs. Ohio is a Supreme Court decision. I thought you knew.

What concerns me most is that you are encouraging people to not cooperate with the police.

I'm just pointing out that the Supreme Court says that citizens have no obligation to cooperate with the police. If you don't like that, you'll have to take it up with them.

That is exactly why this problem started. The police officer said stop, the subject responded I have a right....

A right which he is perfectly justified in asserting.

He started the problem with his failure to respond to the officer, who did by the way have a lawful reason to stop and interview the subject.

No. Asserting a Constitutional right cannot be criminalized in any way. That's the Supreme Court's decision, too. And absent a reasonable articulable suspicion of a crime, the officer has no right to demand an interview, or even for the individual to stop and listen to him.

There is no reason for a person not want to stop and talk with an officer if they not broken any laws.

That's the thing that infuriates the bad guys the most; a citizen doesn't need a reason to not want to stop and talk. If he decides he doesn't want to, the Supreme Court says he has the right to just ignore the officer and go on with whatever he was doing.

And the officer who violates this right, is committing a crime. Don't like it? Get a petition up to revoke the first amendment, or find a country without freedoms.

Your choice.

 

[The Barbarian]

From my Post: Note someone does not have to commit a crime to qualify for contact by the police.

But the police, according to the Supreme Court, must have a reasonable, articulable suspicion of crime to detain the person, who otherwise has the right to ignore the officer and just walk away.

 

[hislegacy]

Yes, that's the usual police excuse. "If you had just surrendered your rights, when we tried to violate them, we wouldn't have hurt you, so it's your fault."

That's not playing so well with the courts anymore, is it?

Being polite is not surrendering rights. It is called being secure in who you are and being mature.

 

[The Barbarian]

Being polite is not surrendering rights.

It is perfectly possible to be polite without surrendering your rights. "Sorry, I don't want to talk to you."

End of story. The problem is the delicate egos of some officers who imagine that they are all-powerful and able to bark orders at anyone with impunity. A professional officer would simply acknowledge the citizen's right, and move on.

It is called being secure in who you are and being mature. But there are a minority of officers who just don't have the maturity to deal with the fact. They are the ones who are increasingly doing jail time when their egos overcome their training.

 

[disciple Clint]

I'm just showing you what the law says. You see, as Americans, we are supposed to know what our rights are, and to uphold them.



Terry vs. Ohio is a Supreme Court decision. I thought you knew.



I'm just pointing out that the Supreme Court says that citizens have no obligation to cooperate with the police. If you don't like that, you'll have to take it up with them.



A right which he is perfectly justified in asserting.



No. Asserting a Constitutional right cannot be criminalized in any way. That's the Supreme Court's decision, too. And absent a reasonable articulable suspicion of a crime, the officer has no right to demand an interview, or even for the individual to stop and listen to him.



That's the thing that infuriates the bad guys the most; a citizen doesn't need a reason to not want to stop and talk. If he decides he doesn't want to, the Supreme Court says he has the right to just ignore the officer and go on with whatever he was doing.

And the officer who violates this right, is committing a crime. Don't like it? Get a petition up to revoke the first amendment, or find a country without freedoms.

Your choice.

Lets look at exactly what the law has to say:
The Terry decision states Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous."
I would suggest that having on a face covering ski mask in August would provide reasonable suspicion that the subject may intend to commit a crime. I think the concern of the police in this event was more centered on the mental health of the individual and the potential harm to himself or others. Still a legitimate reason for the investigative stop.
From the ACLU Stopped by Police
Your rights

• You have the right to remain silent. For example, you do not have to answer any questions about where you are going, where you are traveling from, what you are doing, or where you live. If you wish to exercise your right to remain silent, say so out loud. (In some states, you may be required to provide your name if asked to identify yourself, and an officer may arrest you for refusing to do so.)
• You do not have to consent to a search of yourself or your belongings, but police may pat down your clothing if they suspect a weapon. Note that refusing consent may not stop the officer from carrying out the search against your will, but making a timely objection before or during the search can help preserve your rights in any later legal proceeding.
• If you are arrested by police, you have the right to a government-appointed lawyer if you cannot afford one.
• You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports as well as for individuals on certain nonimmigrant visas, including tourists and business travelers. For more specific guidance about how to deal with immigration-related questions, see our immigrants’ rights section.)

How to reduce risk to yourself

• Stay calm. Don’t run, resist, or obstruct the officers. Do not lie or give false documents. Keep your hands where the police can see them.

 

[disciple Clint]

But the police, according to the Supreme Court, must have a reasonable, articulable suspicion of crime to detain the person, who otherwise has the right to ignore the officer and just walk away.

And in this case they had his behavior that caused a question about his state of mental health and the ski mask in August which causes the question about the intent to commit a crime.

 

[disciple Clint]

It is perfectly possible to be polite without surrendering your rights. "Sorry, I don't want to talk to you."

End of story. The problem is the delicate egos of some officers who imagine that they are all-powerful and able to bark orders at anyone with impunity. A professional officer would simply acknowledge the citizen's right, and move on.

It is called being secure in who you are and being mature. But there are a minority of officers who just don't have the maturity to deal with the fact. They are the ones who are increasingly doing jail time when their egos overcome their training.

Except for the fact that the police officer was acting in accordance with the law and the subject was not.

 

[The Barbarian]

It is perfectly possible to be polite without surrendering your rights. "Sorry, I don't want to talk to you."

End of story. The problem is the delicate egos of some officers who imagine that they are all-powerful and able to bark orders at anyone with impunity. A professional officer would simply acknowledge the citizen's right, and move on.

It is called being secure in who you are and being mature. But there are a minority of officers who just don't have the maturity to deal with the fact. They are the ones who are increasingly doing jail time when their egos overcome their training.

Except for the fact that the police officer was acting in accordance with the law

If he could not tell the individual what crime he suspected him of committing, then any attempt to detain that individual was, per the Supreme Court of the United States, unlawful. Just that simple.

and the subject was not.

Unless the officers told him what crime they suspected him of committing, he was (again, according to the Supreme Court) perfectly within his rights, to just walk away from them.

Don't like it? Amend the Constitution or find another place to live.

 

[The Barbarian]

And in this case they had his behavior that caused a question about his state of mental health and the ski mask in August which causes the question about the intent to commit a crime.

Sorry, courts have ruled on that, too. It's not illegal to wear a mask in public. Some anti-Klan laws against masks are still on the books here and there, but every time they've been challenged, they've been struck down. The mere wearing of a mask, according to a number of court decisions, cannot be used to infer a crime without other evidence.

Stores and other private businesses can, of course, ban masks if they like. (this might be affected by COVID-19 orders, though)

 

[hislegacy]

What do you do?

so...you were wearing a ski mask, had social anxiety and were walking down the street while listening to your music (because it helps you deal with your social anxiety) and because you didn't respond quickly enough the police did the one thing guaranteed to throw you into a full on panic attack, they grab you, and when you try and pull away (because you're in panic mode) they throw a choke hold on you? and then they drug you. Because it sounds a lot like your experience bears no resemblance at all to what ended with Elijah McCain brain dead in the back of an ambulance.
tulc(just a thought)

All which would have been avoided if he simply stopped and spoke with the officers. His actions escalated the violence.

Just a thought on reality here

 

[hislegacy]

It is perfectly possible to be polite without surrendering your rights. "Sorry, I don't want to talk to you."

End of story. The problem is the delicate egos of some officers who imagine that they are all-powerful and able to bark orders at anyone with impunity. A professional officer would simply acknowledge the citizen's right, and move on.

You still have not directly answered my question:

Summation - what do the officers do, if the person they are stopping fits the description of a suspect?