Discussion in 'General Topics' started by GX, Mar 4, 2012.
I wonder how the FAA feels about another agency doing their job (ramp checks)
This comes down to knowing your rights. Were you being detained as in a Terry stop, or were you being met in consentual conversation? I'm not a lawyer or LEO, but I believe they aren't required to tell you right away if you're being detained, or if you are being detained they aren't required to read you your rights (that comes at Arrest). Since you started this thread, I've been reading on the subject, and it seems like the best way to discern whether or not you are being detained or if it is a consentual conversation is to simply ask if you are being detained or if you are free to go. Generally (and I'm no lawyer) there is not supposed to be any middle ground; you are either being detained, or you are free to go. Remember, LEOs are not required to inform you of your rights, that being said, as Mike D pointed out, don't try to be smart and act like a roadside lawyer.
It's a question I'm going to need to add to the arsenal. I've never thought I'd get to a point where I'd need to reduce myself to retard level to relate with these individuals. I never thought I'd be the one needing to broken record "Am I under arrest? Am I free to go? Am I being detained? Am I under arrest? Am I free to go?" I had always been taught, even in POW training that being politely courteous, but limitedly cooperative was my best avenue. Answer all questions honestly without revealing classified info (they already know most of it anyways) but avoid mission details. Seems as though name, rank, serial number is the way to go here. Not like they can stuff me in a wooden slatted box and beat the snot out of me.
Is there case law defining 'reasonable request'?
I mean, I consider it reasonable for the FAA to view these documents on a ramp check. It's their job.
For the border patrol to request documents any time I'm not crossing a border does not seem reasonable.
For local law enforcement to request a pilot certificate seems reasonable, to request a medical certificate does not.
Border Patrol Agent falls under "any Federal, State, local" officer, no different than an ICE agent, Secret Service Agent, a New Mexico State Trooper, a Maricopa County Sheriff's Deputy, or a Chandler Police Officer, in that regard for which the particular FAR is intended, especially as they fall under the umbrella of Department of Homeland Security (ICE, USCG, CBP, USSS, etc) and do many overlapping job functions (drug enforcement, smuggling, etc).
Watching those videos they all say the same thing.
Suspect: Am i being detained?
Suspect: Am I free to go?
So which is it? If they say youre not being detained then can you just walk away?
Without seeing the videos (no youtube access where I am), Ill just say generally that a traffic stop is a brief detention as-is, however it shouldn't last more than is reasonably necessary to complete the reason for the stop, barring other circumstances such as evidence of another crime, etc. Now, "reasonably necessary" is subjective, without any kind of specific timeframe applied to it.
I'm not a lawyer either but everyone in my family is. It depends on the states, but most of the time you are considered "seized" when a police officer makes a traffic stop.
I wondered the same thing. When they answer "no" to "Am I being detained?", what would happen if you just left at that point? Isn't it a binary question? You either are being detained or you aren't? Unless there is something less than detained.
A policeman pulling you over for a traffic infraction is different, although in these videos that's not happening. In these videos its ICE stopping all passerby and checking citizenship status. When they say "no" to "am I being detained"-and its on video- and you hit the gas, I wonder how the subsequent arrest will hold up in court?
The videos and websites I posted on this thread were prepared in cooperation with lawyers who specialize in this area of the law. Below is some additional explanation that may be useful to pilots. This area of the law is more nuanced than dealing with the FARs that pilots are accustomed to. Although most LEO interactions don't require this, if you must, utilizing this area of law effectively involves a bit of strategy and gamesmanship.
Not Black and White
As a pilot, I got used to black-and-white answers based on operating manuals and regulations. There was very little gray area or nuance to be found, particularly among military pilots. Later, when my work took me into preparing Cases for DOJ and law firms, I was frustrated at my inability to get lawyers and judges to settle on one, correct, right answer. I had to adjust to the idea that it's legal for lawyers (and law enforcement, although I rarely deal with LEOs in my type of work) to intentionally lie, posture and mislead in order to get their way. That's not something we expect to deal with when conversing with ATC, the FAA or our A&P. What lawyers innocently call "zealous representation" or "posturing" is something pilots would call "lying." It's not only legal, they don't consider it unethical.
In Frazier v. Cupp, 394 U.S. 731 (1969), the US Surpreme Court heard a case of a Marine accused of murder who was tricked into confessing due to deceptive interrogation tactics in which the police lied to him. The Marine tried to have his confession ruled as inadmissible and thrown out. In this landmark case, on appeal the Court held that"The fact that the police misrepresented the statements [lied] is, while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible."
MikeD has repeatedly said on this thread that it's not a Police obligation to teach you your rights. You have to know them and exercise them appropriately. This could be viewed similarly to a situation in which ATC gives you an instruction that you feel is unsafe. As pilot-in-command, it is ultimately your call. As a pilot you are required to cooperate with others in the system, but in the end, it's your obligation to make the decision. Same thing here. What makes it harder in this situation is that, unlike dealing with ATC and the FAA, the other side (lawyers or LEOs) may me actively lying and trying to trick you.
It's a game both sides play until one side blinks
Sometimes there is no "right answer" in these situations. It's a game of chicken and effective documentation. In this video a lawyer protesting alleged inhumane bird hunting is confronted by a police supervisor who tries to convince her that what she is doing is illegal, and he implies severe consequences if she does not comply. Watch how she plays the game (with the protection of a video camera to document the encounter).
A test of gamesmanship - "Take me into custody.....I dare you."
On the other hand, there are a few LEOs who don't care what the law is in their jurisdiction. They have been arresting citizens who assert their rights or pull out a video camera. However, even when this has happened, in most jurisdictions, the Prosecutors have refused to prosecute and the LEOs often end up in some trouble over this if they can prove it with witnesses or video.
Citizen asserts his rights, pulls out a video camera, ends up in hospital.
Disclaimer: In a few States like Illinois, it is illegal to tape police or tape people in public without their consent. However, in most States, there is no "expectation of privacy" in a public place and taping is legal. Check your own state's statutes.
A little Turtle Wax and that'll buff right out.
BP checkpoints where questions of citizenship are being asked have been determined by case law [United States vs Martinez-Fuerte, 428 US 543, 1976] to not be a violation of any kind of 4th Amendment detention, as the brief stop and question has been determined to be a minimal intrusion to one's rights.
In terms of the brief stop and question of "are you a US citizen", the court had this to say:
"The court ruled 7 to 2 that the internal checkpoints were not a violation of the 4th Amendment, but rather were consistent with the amendment. They went on to say that it would be impracticable for the officers to seek warrants for every vehicle searched and that to do so would eliminate any deterrent towards smuggling and illegal immigration. The court felt that any intrusion to motorists was a minimal one and that the government and public interest outweighed the constitutional rights of the individual.
The court also ruled that the stops were Constitutional even if largely based on apparent Mexican ancestry."
In terms of any further search beyond just the brief stop and question mentioned above, the court had this to say:
"However the court added that restrictions still exist: "We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search" (though the court did hold that the probable cause bar was low for permanent checkpoints with limited impact on motorists). The Court also held, "our holding today is limited to the type of stops described in this opinion. -[A]ny further detention...must be based on consent or probable cause. Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols [as opposed to permanent checkpoints]." 428 U.S. 543, 567 (1976)."
Even Martha and John King have been held up by Law Enforcement... At gunpoint!
Their Cessna carried the same tail number as a previously stolen aircraft.
This has been a subject I am always curious of. I certainly have much appreciation for the knowledge given by those informed individuals. I am irked though.
The mantra is to" know your rights". Then throw in "nuanced", "zealous prosecution", or those behaviors we would likely label as lying and would hardly knows where they stand.
I haven't even mentioned the LEO or other govt officer who engages in illegal behavior. The state of IL mandating consent before filming in a public place is just another thing to make me avoid that state.
I take it that they didn't rule whether or not you could be "held up" for not answering their questions to the LEO's satisfaction?
If I'm ever in that situation, they can wait until I have a lawyer. That way its documented before I sue the crap out of them.
Which situation? There are many presented in this 6 page thread.
The one about the stuff.
Maybe he means the last news station video I put up, where the minute the citizen traffic-stop witness pulled out his camera, the Denver Police knocked him to the ground and arrested him (resisting arrest charge).
Dangerous Camera Criminal - Mark Ashford
(LEOs didn't realize they were in view of another video camera while they were slugging him.)
Separate names with a comma.