Unfortunately, if you ask a police officer "Am I free to leave?" He may well refuse to answer, or try to deflect your question. The problem is that police and prosecutors "want it both ways." If they question you and you say something incriminating, then they want to claim that you were not in custody and it was a "consensual encounter." On the other hand, if you don't say anything incriminating or try to leave, they want to be free to charge you with "resisting" or "disorderly." There really are no 'bright line' rules on when someone is/isn't in custody (the courts use terms like "totality of the circumstances"), but most of the time the state (police and prosecutors) will prevail in having the situation called what they wish.

Arresting someone like this (for "disorderly" or "resisting") where there is not an underlying charge, is often a case of "complaint insurance." If the officer thinks a person will complain, they will arrest them and charge them, so if/when a complaint does come they can protest that the person was simply a complaining law-breaker. The charge is BS and dropped quickly by the prosecutor, but the police will still use it to try and tar the complainer.

I routinely represent people on these "BS" resisting charges. The prosecutor won't touch them, and if the officer insists on going forward I just request the taser logs and records and the case disappears in a puff of smoke. The police don't want to release those records. But the police really don't care. They figured "I tasered the M**F** and he spent a night in jail. That'll teach him." What makes it really frustrating is that the vast majority of these cases come from a few problem officers, whom their fellow officers will complain about -- but never on the record.

Contrary to what at least some police seem to think, people in this country still have some "rights" and simply because a cop barks an order doesn't mean that people are legally obligate to jump to comply, let alone get arrested/tased if they don't. What is really scary is the number of people who seem to think that unthinking compliance is a virtue. Many people say "you should just always do what the police say" and "the Cop is always right." Such people are not law-abiding, they are law-ignorant.

good post.

What is even more saddening is how many jury's will always believe a police report that is full of BS. In court, their word usually stands up, especially when an illegal search without probable cause does produce something such as a weapon or drugs.

Guess i found the sane corner on this issue. Most people forget the adage that great power comes with great responsibility. If you are wearing the badge and gun, you should always be the cooler head. he yelled at me, is not a good enough excuse to arrest an old lame man.

 

Yet many on this site happily proclaim that they don't talk back to cops.

I'm one of those people who don't talk back to cops. Why? Because cops can do pretty much whatever they want or whatever they feel they can get away with. This can range from bullying and making threats right up to arresting someone for whatever trumped-up reason they choose, even though they know the charges will be dropped. Unless you're lucky enough to get a recording of the encounter, it's your word against theirs. And 99 percent of the time, their word prevails.

My exposure to cops has mainly been on traffic stops. Based on my experience and the experiences of family and friends, cops generally treat people according to what they perceive your financial and social standing to be. If you're young or a minority, or you appear to have little money, you'll get much different treatment than the white person who looks prosperous and therefore powerful. Preferential treatment pretty much goes out the window, through, if you argue or contradict them; then you're questioning authority. How dare you, citizen!

I don't blame Mr. Gates at all. I'd be angry if a cop came to my home late at night, after I'd just returned from a long, tiring trip, and started demanding to know who I was. That's just stupid. Even if a neighbor thought someone was trying to break in, how likely is it that the would-be burglar would answer the door? Please...what happened to common sense?

America is well on the road to becoming a police state. Cops been given too much power to stop, question, search and otherwise intervene in the lives of people simply going about their business. That threatens the freedom of every one of us, regardless of race.

Amen. It's scary how many people on this "Fray" get vein-poppingly angry at anyone who suggests that Americans shouldn't have to be subservient mice around the police. It's as if they don't want to be free.

So, correct me if I am wrong, I could break into a house and if a policeman comes up on the porch and asks me to step out, I could refuse. If he asks for my identification, I could refuse and then ask him if I can go about my business, without any legal requirements? Thanks for the tip.

Another thing I have learned about this case, if I see anyone (of any race or colour) breaking into a home I should just assume they live there and not call the police, because they really can't do anything about the situation. Seems counterintuitive, but I guess that's the new world we live in.

Thanks for the clear interpretation of the law.

You are correct in many of your assertions, but show your defense attorney bias. Here's my police officer bias: the officer in question goes to the home due to a reported break in and contacts this gentleman. Should he be compelled to show his ID proving he is the resident? Yes. Was he being detained or was this a consentual encounter? This is clearly initially a lawful detention that should have ended once the officer cleared the man of any suspicion. Should the officer investigate, maybe a little further, what if this man has a domestic violence restraining order and he shouldn't be in the house? If he shows his ID and things check out, case closed. I'm not sure what happened outside to culminating in his arrest: do we have a severly jet-lagged professor (the poor guy just got in from China!) who responded poorly to being contacted by the police? Was this a "contempt of cop" arrest because the prof came outside and started badgering the cop (which the officer should have just walked away from)? I wasn't there, I don't know. If if were the DA would I file? Heck no. That doesn't mean the arrest was not lawful. In California, my peace cannot be disturbed under the penal code because I get paid to get my peace disturbed. I've seen the prof in seminars and he is by all accounts an intelligent and polished man ... but even good folks can act boorishly when angry and sleep deprived. Yes, as with any profession, we have bone-heads and we try to get rid of them. Question: if the prof had just handed over his ID, explained the circumstances and allowed the officer to do his job, would this even be a blip on anyone's radar screen.

They will get treated as if they are not complying and will be subject to adverse treatment.

Correct InDoubt, I was a bit confused on the law too. I will add that after such an ordeal at a residence, the police may be a bit apprehensive to send a patrol car the next time they get a call to the same residence. Nah, I am sure that wouldn't happen........

I have an idea. How about the cops show up at my door after a neighbor sees myself and another man breaking into it. I respond with "I know how this looks but I live here. Here's my drivers Licesnse Thanks for doing your job and stopping by. Have a nice day." Wow no self righteous indignation. No TV and Media face time, No cause celeb. If you want to fix the police force and all authoritarian positions of power, join them. Do thier job. Most people wouldn't last a week. Way to go Gates you're a nucklehead.
By the way, criminals can be brazen and have been known act like they own the place when caught.

Police have a saying...You may beat the crime, but you won't beat the time.

Hear, hear, fozzy.

-from another defender of Contempt of Cop cases.

I posted this earlier, after continuing to read more and more I have not been obliged to feel differently, I wish there was a real answer for all of us though.

I must say that I have to agree with many on this subject who have noted the area of responsibility to Mr. Gates in the initial insuing of the confict. After searching for and finding some very revealing information about Mr. Gates and his prominate reputation he should have risen above his own racist prejudices and complied with the reasonable and justified request of the law enforcement officer. His attitude in this situation suggests that he was automatically ready to jump to the racist issue and in doing so has limited my opinion of the man greatly. Actually I would have to say in this case he demonstrated a demeanor and attitude much more liken to a reverse-racist, or at a minimum, some on who has deep unrealized prejudice towards law enforcement. Also, perhaps he should be wondering who among his neighbors did not recognize him and instead called the police to report 2 black men trying to break into another black man's house. Strange. I would also add that having been in a short career as a police officer, the prejudice towards officers of any color is as real and often abusive as a racist can be. Having been cussed out, hit, spit on, and threatened almost every day in the line of duty, I knew that one day I might become angry and intolarable to such treatment. I am in a new career now. The uniform carried too much baggage for me to accept regardless of color, we were all treated the same. Mr. Gates has only added to the baggage, something he claims his life and work is opposed to doing.

If I locked myself out of my home, had to climb through the window, then had the police at my door asking for my ID, as they were responding to a call for a break in, I'd give them my ID. I'd never dream of screaming at the police that they were sexist and refusing to come out and show my ID. Why do people assume this is appropriate behavior?

One would wonder why the Professor Gates didn't simply give his ID to the police officer, rather than going off about him being a racist. It seems as though the police officer was responding to a call about 2 AA males breaking into a home and, upon arriving at that home, the officer encountered an AA male there. A simple, "Here is my ID officer, this is my residence. My front door was jammed and I was getting help from another friend in order to get it opened. Thanks so much for checking up on the report." would have sufficed. Automatically taking the defense makes a police officer think that something is wrong. Telling him he is a racist might just make him angry. Refusing to show your ID and refusing to come out of the house just seems childish to me.

Maybe the officer overreacted in arresting the professor, but I think the Professor overreacted as well. I would think that if Professor Gates expects an apology from the officer for the arrest, the professor should also apologize for jumping to conclusion rather than simply complying with the request for ID.

.

When a man of any shape or color is unjustly confronted in his own home by government forces, what is his duty?

Meekly to comply? Or to shout, loudly enough that the neighbors hear, "I'll come out for yo' mama"?

This country exists only because of men who bet their lives and their sacred honor on the latter.

That is why I cheered fozzy's top-post, and particularly its concluding sentence.