failed driver test due to DMV interpreting laws to suit itself, in nevada
dumb_fishie99
hi all,
Yesterday I took my second DMV driving test, and they gave me an
automatic fail for something that is neither in the Driver's Handbook,
nor specifically
spelled out in the Nevada Revised Statutes. Not specifically enough.
I made a right turn at a major intersection that had crosswalks and
all the usual lights everywhere.
That is, for both vehicle traffic and pedestrians. I waited until the
pedestrians were well into the
second lane before making the right turn into the first lane. That is
the far right lane, which they
had just exited.
Ok, I was informed that they have "curb-to-curb" right of way, and I
should not have turned
until they had reached the median. This was an automatic fail.
It's not in the Handbook, and the NRS does not cover this kind of
crosswalk, it only covers crosswalks that have no signals:
NRS 484.325 Right-of-way in crosswalk; obedience to signals and other
devices for control of traffic. Except as otherwise provided in NRS
484.327, 484.328 and 484.356:
1. When official traffic-control devices are not in place or not in
operation the driver of a
vehicle shall yield the right-of-way, slowing down or stopping if need
be so to yield, to a pedestrian
crossing the highway within a crosswalk when the pedestrian is upon
the half of the highway upon
which the vehicle is traveling, or when the pedestrian is approaching
so closely from the opposite
half of the highway as to be in danger.
This is from the "Pedestrians" section of the NRS, and the main URL
is:
[url=http://www.leg.state.nv.us/NRS/NRS-484.html]NRS: CHAPTER 484 -
TRAFFIC LAWS[/url]
the url specific to this section is:
[url=http://www.leg.state.nv.us/NRS/NRS-484.html#NRS484Sec325]NRS:
CHAPTER 484 - TRAFFIC LAWS[/url]
I want to go down there and ask them to take the automatic fail off of
my
test, because this regulation does not apply to crosswalks with
lights.
There is no mention of crosswalks with lights, so how could it apply?
Would I have a legal leg to stand on?
The pedestrians were in no way in any danger. They were absolutely
clear
of the lane I was turning into.
Thanks!
PS: I've been driving for 30 years. The only reason I have to do this
is I forgot
to renew, and the DMV did not send me any reminder notice.
This is not the only example I have, of the DMV coming up with things
that
are neither in the handbook nor in the Nevada revised Statutes. So if
I have
to study the NRS to pass this, AND guess at how the DMV will apply it,
there is no way I can ever pass.
I'm thinking of asking them for their secret rule book, except I don't
think they are allowed to make the laws.
Mike Jacobs
> Yesterday I took my second DMV driving test, and they gave me an
> automatic fail for something that is neither in the Driver's Handbook,
> nor specifically
> spelled out in the Nevada Revised Statutes.
Wouldn't it be easier to just re-take the test, being mindful of this
(non)-issue at least for purposes of passing the test next time?
That's a lot easier than beating your head against the wall of a
stubborn bureaucracy.
> I made a right turn at a major intersection that had crosswalks and
> all the usual lights everywhere.
> That is, for both vehicle traffic and pedestrians. I waited until the
> pedestrians were well into the
> second lane before making the right turn into the first lane. That is
> the far right lane, which they
> had just exited.
>
> Ok, I was informed that they have "curb-to-curb" right of way, and I
> should not have turned
> until they had reached the median. This was an automatic fail.
Whether they are right or wrong on that, legally, is not the issue.
Whether most drivers actually do that in the "real world" (hint - they
don't) is not the issue. The issue is, WHAT THE DMV EXAMINERS WANT
YOU TO DO to pass the driving test. When they say "jump," the proper
answer is, "how high?" or "Yes, Sir!" not second-guessing and
backtalk.
I say that in full awareness of how petty, and WRONG, some bureaucrats
can be, and how some of them almost seem to enjoy torturing the
populace with ridiculous requirements found nowhere in the written
law; but also with the awareness that, within their own petty
fiefdoms, SUCH EXAMINERS _ARE_ given very wide discretion by the law
in HOW they carry out their tasks and how they judge your abilities.
So, no court judge or higher-up in the DMV is going to "second guess"
this examiner's decision to give you an "automatic fail" if you don't
mind pedestrians' right-of-way in the way _HE_ expects and wants you
to.
To re-iterate, each examiner (or each DMV office) is perfectly free to
come up with their own list of things that, in their opinion, would
lead them to "fail" an applicant as soon as it happens, because
(again, in the examiner's sole view) such an act is too dangerous to
allow him to certify that you are safe to be let loose on the roads
again unsupervised. THAT IS WITHIN THEIR DISCRETION as to how they
enforce the laws, just like (to pick a random example) it is within
the discretion of a traffic cop to set HIS OWN (or for his department
to set their own) UNWRITTEN "speed limit" threshold beyond which a
ticket will be written, and below which speeders will not be stopped
or will only be given a warning.
> It's not in the Handbook, and the NRS does not cover this kind of
> crosswalk, it only covers crosswalks that have no signals:
I'm not going to review the Nevada statutes for you, and I don't
practice there, but is it possible you are missing some other section
that applies the non-signal rule also to intersections with signals?
Usually that is true, just not the other way around.
> NRS 484.325 Right-of-way in crosswalk; obedience to signals and other
> devices for control of traffic. Except as otherwise provided in NRS
> 484.327, 484.328 and 484.356:
>
> 1. When official traffic-control devices are not in place or not in
> operation
<snip>
What do parts 2, 3, etc. say? You only quote the first subsection of
this statute. Its caption indicates that it ALSO deals with
"obedience to signals and other devices for control of traffic." I'm
guessing that your tie-in may be found somewhere in those other
subsections, which probably apply ADDITIONAL rules in case there is a
signal operating, and which also incorporate by reference the general
rule of subsection 1. But, I'm not going to look for it, that's just
a hint of where _you_ might want to look.
> I want to go down there and ask them to take the automatic fail off of
> my
> test, because this regulation does not apply to crosswalks with
> lights.
IMO that would be a Very Bad Idea. Do you want the DMV to blacklist
you as a troublemaker for the rest of your motoring life? Don't grab
a tiger by the tail unless you're fully prepared to ride it wherever
it takes you.
> There is no mention of crosswalks with lights, so how could it apply?
What do subsections 2, 3, etc. of the statute you quoted, say about
crosswalks with lights?
> Would I have a legal leg to stand on?
In a word, no. Just re-take the stupid test. Easier, less hassle,
better karma.
> The pedestrians were in no way in any danger. They were absolutely
> clear
> of the lane I was turning into.
Great arguments if you were GIVEN A TICKET for "failure to yield" but,
that's a DIFFERENT situation. When you are accused of a moving
violation the State has the burden of proving your guilt beyond a
reasonable doubt. During a DRIVING-TEST-TAKING situation, however,
the examiner has almost complete discretion on whether HE thinks you
are safe enough to be let loose on the street on your own. So, you
have to be ULTRA-careful and follow HIS rules, no matter how much you
may feel that his rules are stricter that what the law requires to
avoid a ticket.
> Thanks!
You're welcome. Good luck when you re-take the test.
> PS: I've been driving for 30 years. The only reason I have to do this
> is I forgot
> to renew, and the DMV did not send me any reminder notice.
Okay. I'm not going to guess whether there may be some other issues
the examiner felt, e.g. attitude issues, that may have influenced his
decision. If you went into the test P.O.'d that you had to take it in
the first place, the examiner may have been _looking_ for examples of
inappropriate "road rage," aggressiveness, etc. on which to fail
you. Again, that's just a surmise and I'm not saying it's what
happened, just another possibility.
Go into your next test as fresh as new-fallen snow, as though you were
a nervous 16-year-old and not a seasoned, jaded middle-ager with 30
years' driving experience under his belt who thinks he "knows
everything." Be ULTRA-CAUTIOUS, as though you were a rabbit stuck in
the middle of an open field in broad daylight, and be courteous and
yield to EVERYBODY who might POSSIBLY be in a position for you to
yield to. Take a deep breath and remain calm. Then, pass the test.
> This is not the only example I have, of the DMV coming up with things
> that
> are neither in the handbook nor in the Nevada revised Statutes.
I'm shocked. SHOCKED, I tell you.
> So if I have
> to study the NRS to pass this, AND guess at how the DMV will apply it,
> there is no way I can ever pass.
If you go into the test with a chip on your shoulder against the DMV
and the world in general, they can sense that, and so there's no way
you can ever pass.
> I'm thinking of asking them for their secret rule book, except I don't
> think they are allowed to make the laws.
Sarcasm to the DMV reps will not improve your chances of having them
exercising their near-absolute and highly subjective discretion to
award you a "pass" on your driving test.
Remember - to pass your test, be a cautious and yielding rabbit, not a
prowling predator asserting your "rights."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Stuart A. Bronstein
> Yesterday I took my second DMV driving test, and they gave me an
> automatic fail for something that is neither in the Driver's
> Handbook, nor specifically spelled out in the Nevada Revised
> Statutes. Not specifically enough.
Looks specific enough to me.
> I made a right turn at a major intersection that had crosswalks
> and all the usual lights everywhere. That is, for both vehicle
> traffic and pedestrians. I waited until the pedestrians were well
> into the second lane before making the right turn into the first
> lane. That is the far right lane, which they had just exited.
I don't understand. Were they walking toward you or away from you?
In other words would they complete their walk to the curb at the
curb nearest you or the one on the other side of the street?
>
> NRS 484.325 Right-of-way in crosswalk; obedience to signals and
> other devices for control of traffic. Except as otherwise
> provided in NRS 484.327, 484.328 and 484.356:
>
> 1. When official traffic-control devices are not in place or not
> in operation the driver of a vehicle shall yield the right-of-
> way, slowing down or stopping if need be so to yield, to a
> pedestrian crossing the highway within a crosswalk when the
> pedestrian is upon the half of the highway upon which the vehicle
> is traveling, or when the pedestrian is approaching so closely
> from the opposite half of the highway as to be in danger.
To me this is clear. If the pedestrian were walking away from you
and on the half of the roadway going opposite to the direction you
were turning into, the tester was wrong. You are allowed to turn
under those circumstances.
But if the pedestrian had passed only the lane into which you were
turning, but were still in an adjacent lane going the same
direction, he was "upon the half of the highway upon which the
vehicle is traveling...."
> I want to go down there and ask them to take the automatic fail
> off of my
> test, because this regulation does not apply to crosswalks with
> lights.
> There is no mention of crosswalks with lights, so how could it
> apply?
There may be another statute that does apply. For example section
484.283 says,
"Vehicular traffic facing the signal may proceed straight through
or turn right or left unless another device at the place prohibits
either or both such turns. Such vehicular traffic, including
vehicles turning right or left, must yield the right-of-way to
other vehicles and to pedestrians lawfully within the intersection
or an adjacent crosswalk at the time the signal is exhibited."
Sounds to me like it means you must not turn right as long as
someone is in the crosswalk.
You may have a technical argument that since the statute doesn't
contain the same language about "half of the roadway" that you
don't have to wait for the pedestrian to fully clear half the
roadway like you would under the other statute. I can't predict
your chances, but it certainly is not a clear win for you.
> I'm thinking of asking them for their secret rule book, except I
> don't think they are allowed to make the laws.
Look in the code of regulations, and you may find nuances that
aren't contained in the code or even the published condensation of
the rules.
Doug McCrary
"dumb_fishie99" <dumb_f...@yahoo.com> wrote in message
news:bad7ede1-859d-40fe...@36g2000yqu.googlegroups.com...
>
> hi all,
>
> Yesterday I took my second DMV driving test, and they gave me an
> automatic fail for something that is neither in the Driver's Handbook,
> nor specifically
> spelled out in the Nevada Revised Statutes. Not specifically enough.
>
> I made a right turn at a major intersection that had crosswalks and
> all the usual lights everywhere.
> That is, for both vehicle traffic and pedestrians. I waited until the
> pedestrians were well into the
> second lane before making the right turn into the first lane. That is
> the far right lane, which they
> had just exited.
>
> Ok, I was informed that they have "curb-to-curb" right of way, and I
> should not have turned
> until they had reached the median. This was an automatic fail.
>
I think you read too far, too fast:
############
NRS 484.043 "Crosswalk" defined. "Crosswalk" means:
1. That part of a highway at an intersection included within the
connections of the lateral lines of the sidewalks on opposite sides of the
highway measured from the curbs or, in the absence of curbs, from the edges
of the traveled portions of highways; or
2. Any portion of a highway at an intersection or elsewhere
distinctly indicated for pedestrian crossing by lines or other markings on
the surface.
(Added to NRS by 1969, 1477)
############
This is pretty obscure in California law, too, FWIW.
But now you know, so you shouldn't have any problem on your next retest.
Good luck.
LDC
<dumb_f...@yahoo.com> wrote:
>
>hi all,
>
>Yesterday I took my second DMV driving test, and they gave me an
>automatic fail for something that is neither in the Driver's Handbook,
>nor specifically
>spelled out in the Nevada Revised Statutes. Not specifically enough.
>It's not in the Handbook, and the NRS does not cover this kind of
>crosswalk, it only covers crosswalks that have no signals:
>
>NRS 484.325 Right-of-way in crosswalk; obedience to signals and other
>devices for control of traffic. Except as otherwise provided in NRS
>484.327, 484.328 and 484.356:
You are selectively quoting to try to defend an untenable position.
Note that the title of the section mentions "obedience to signals".
Nor did you quote the remainder of 484.325 because paragraph 4
discusses signals.
You should also read 484.141.
>I want to go down there and ask them to take the automatic fail off of
>my test,... Would I have a legal leg to stand on?
Obviously no, since your premise is faulty.
>
>The pedestrians were in no way in any danger. They were absolutely
>clear
>of the lane I was turning into.
Have you never seen a pedestrian have a change of mind and suddenly
reverse direction? Have you ever heard of a driver's hand slipping
off the wheel or becoming distracted so they didn't turn properly?
What if a trailing vehicle didn't notice your signal and rear-ended
you as you were part way through your turn?
Each of these would endanger the pedestrian in the circumstances you
describe.
>Thanks!
>
>PS: I've been driving for 30 years. The only reason I have to do this
>is I forgot
>to renew, and the DMV did not send me any reminder notice.
That you lost or overlooked their reminder is your problem, not
theirs. You license expires on your birthday. Did you forget that
too?
>This is not the only example I have, of the DMV coming up with things
>that
>are neither in the handbook nor in the Nevada revised Statutes. So if
>I have
>to study the NRS to pass this, AND guess at how the DMV will apply it,
>there is no way I can ever pass.
>
>I'm thinking of asking them for their secret rule book, except I don't
>think they are allowed to make the laws.
You likely will have problems passing if your attitude doesn't
change. Irritate the test administrator and she/he will be extra
alert for infractions. All of this could have been avoided if you
had fulfilled your responsibility to renew your license on time.
Robert Bonomi
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>dumb_fishie99 <dumb_f...@yahoo.com> wrote:
>
>> Yesterday I took my second DMV driving test, and they gave me an
>> automatic fail for something that is neither in the Driver's
>> Handbook, nor specifically spelled out in the Nevada Revised
>> Statutes. Not specifically enough.
>
>Looks specific enough to me.
>
>> I made a right turn at a major intersection that had crosswalks
>> and all the usual lights everywhere. That is, for both vehicle
>> traffic and pedestrians. I waited until the pedestrians were well
>> into the second lane before making the right turn into the first
>> lane. That is the far right lane, which they had just exited.
>
>I don't understand. Were they walking toward you or away from you?
>In other words would they complete their walk to the curb at the
>curb nearest you or the one on the other side of the street?
>From the description, they were walking _away_ from him. They had
cleared the curb-side lane, and were into the center lane of the
4 lane cross-street.
>> NRS 484.325 Right-of-way in crosswalk; obedience to signals and
>> other devices for control of traffic. Except as otherwise
>> provided in NRS 484.327, 484.328 and 484.356:
>>
>> 1. When official traffic-control devices are not in place or not
>> in operation the driver of a vehicle shall yield the right-of-
>> way, slowing down or stopping if need be so to yield, to a
>> pedestrian crossing the highway within a crosswalk when the
>> pedestrian is upon the half of the highway upon which the vehicle
>> is traveling, or when the pedestrian is approaching so closely
>> from the opposite half of the highway as to be in danger.
>
>To me this is clear. If the pedestrian were walking away from you
>and on the half of the roadway going opposite to the direction you
>were turning into, the tester was wrong. You are allowed to turn
>under those circumstances.
*BUT*, 484.325 does -not- apply to an intersection _with_ "traffic-control"
devices, which this intersection *did* have, per the OP.
>But if the pedestrian had passed only the lane into which you were
>turning, but were still in an adjacent lane going the same
>direction, he was "upon the half of the highway upon which the
>vehicle is traveling...."
Agree. _Without_ a traffic-control device at the intersection, it would have
been a no-no to turn before the pedestrians reached the median. See above for
the relevancy of this 'agreement' to the situation the OP describes.
>
>> I want to go down there and ask them to take the automatic fail
>> off of my
>> test, because this regulation does not apply to crosswalks with
>> lights.
>> There is no mention of crosswalks with lights, so how could it
>> apply?
>
>There may be another statute that does apply. For example section
>484.283 says,
>
>"Vehicular traffic facing the signal may proceed straight through
>or turn right or left unless another device at the place prohibits
>either or both such turns. Such vehicular traffic, including
>vehicles turning right or left, must yield the right-of-way to
>other vehicles and to pedestrians lawfully within the intersection
>or an adjacent crosswalk at the time the signal is exhibited."
>
>Sounds to me like it means you must not turn right as long as
>someone is in the crosswalk.
Yup. There is the 'curb to curb' "lawfully within the intersection,
or an adjacent crosswalk" right-of-way that the examiner failed
him on.
>You may have a technical argument that since the statute doesn't
>contain the same language about "half of the roadway" that you
>don't have to wait for the pedestrian to fully clear half the
>roadway like you would under the other statute. I can't predict
>your chances, but it certainly is not a clear win for you.
Looks to me like _this_ statute requires that they wait until the
pedestrian has cleared the _entire_ roadway.
There -might- be a special case if there is a "median"/"island"
in the middle of cross-street. Then one -might- be able to argue
That the cross-walk extends from the curb to the median, and that
there is a -second- crosswalk from the median to the far curb. I
would not want to bet the Mustang Ranch (A Nevada asset) on the
success of that argument. :)
dumb_fishie99
>
> I agree with you in principle, and it certainly sounds like you got
> screwed by a mindless bureaucrat.
>
> But practically speaking, is it really necessary to make this an
> adversarial situation? �I mean, wouldn't it be easier and cheaper just
> to go take the test again?
Dear A. Michigan,
It would lbe easier if it wasn't for my situation. My car isn't
perfect enough for the DMV, so I have
to rely on borrowing friends cars, since Nevada won't allow me to rent
one for this test.
That means I have to make appointments, and appointments then to be
about 5 weeks
apart. So every time I fail it, it's a big deal.
And, for those who would like to assume this is whining, and would
like to dig for
any imperfections as if I'm on the witness stand: whatever. I'm going
to focus on
the issue at hand.
dumb_fishie99
wrote:
> dumb_fishie99 <dumb_fishi...@yahoo.com> wrote:
> > Yesterday I took my second DMV driving test, and they gave me an
> > automatic fail for something that is neither in the Driver's
> > Handbook, nor specifically spelled out in the Nevada Revised
> > Statutes. Not specifically enough.
>
> Looks specific enough to me.
yes, it specifically only applies to crosswalks with working lights.
>
> > I made a right turn at a major intersection that had crosswalks
> > and all the usual lights everywhere. That is, for both vehicle
> > traffic and pedestrians. I waited until the pedestrians were well
> > into the second lane before making the right turn into the first
> > lane. That is the far right lane, which they had just exited.
>
> I don't understand. �Were they walking toward you or away from you? �
> In other words would they complete their walk to the curb at the
> curb nearest you or the one on the other side of the street?
They were walking away from me. They did not decide to turn around
and come back.
So they would complete their walk at the far curb - at the median,
and then on to the far corner.
>
>
>
> > NRS 484.325 Right-of-way in crosswalk; obedience to signals and
> > other devices for control of traffic. Except as otherwise
> > provided in NRS 484.327, 484.328 and 484.356:
>
> > 1. When official traffic-control devices are not in place or not
> > in operation the driver of a vehicle shall yield the right-of-
> > way, slowing down or stopping if need be so to yield, to a
> > pedestrian crossing the highway within a crosswalk when the
> > pedestrian is upon the half of the highway upon which the vehicle
> > is traveling, or when the pedestrian is approaching so closely
> > from the opposite half of the highway as to be in danger.
>
> To me this is clear. �If the pedestrian were walking away from you
> and on the half of the roadway going opposite to the direction you
> were turning into, the tester was wrong. �You are allowed to turn
> under those circumstances.
That's what I'm saying!
>
> But if the pedestrian had passed only the lane into which you were
> turning, but were still in an adjacent lane going the same
> direction, he was "upon the half of the highway upon which the
> vehicle is traveling...."
They were halfway through the second lane, traveling away from me,
when I signalled and moved forward, and they were at the third lane by
the time
I made the turn. They had not reached median.
There were not going east, as I was, once I made the turn. They were
going
north.
>
> > I want to go down there and ask them to take the automatic fail
> > off of my
> > test, because this regulation does not apply to crosswalks with
> > lights.
> > There is no mention of crosswalks with lights, so how could it
> > apply?
>
> There may be another statute that does apply. �For example section
> 484.283 says,
>
> "Vehicular traffic facing the signal may proceed straight through
> or turn right or left unless another device at the place prohibits
> either or both such turns. Such vehicular traffic, including
> vehicles turning right or left, must yield the right-of-way to
> other vehicles and to pedestrians lawfully within the intersection
> or an adjacent crosswalk at the time the signal is exhibited."
But I did yield the right of way, unless I misunderstand what yielding
is,
and there is no definition for the world "yield" in the NRS.
I do not see how that applies. It does not say that, at crosswalks
with working lights, pedestrians have "curb-to-curb" right of way.
No, it doesn't say that at all. It simply doesn't address it.
Thank you for looking that up though; that was nice of you.
>
> Sounds to me like it means you must not turn right as long as
> someone is in the crosswalk.
...at intersections with no working lights!
>
> You may have a technical argument that since the statute doesn't
> contain the same language about "half of the roadway" that you
> don't have to wait for the pedestrian to fully clear half the
> roadway like you would under the other statute. �I can't predict
> your chances, but it certainly is not a clear win for you.
>
> > I'm thinking of asking them for their secret rule book, except I
> > don't think they are allowed to make the laws.
>
> Look in the code of regulations, and you may find nuances that
> aren't contained in the code or even the published condensation of
> the rules.
Do you mean the Nevada Administrative Code? There is nothing in
there about pedestrians or crosswalks at all. If there was another
code book, I would love to have it; since it seems I cannot prepare
for the next driving test adequately with all these secret DMV
interpretations.
To Mike Jacobs: parts 2, 3, and etc. have nothing to do with the
issue:
" 2. A pedestrian shall not suddenly leave a curb or other place of
safety and walk or run into the path of a vehicle which is so close
that it is impossible for the driver to yield.
3. Whenever a vehicle is stopped at a marked crosswalk or at an
unmarked crosswalk at an intersection, the driver of any other vehicle
approaching from the rear shall not overtake and pass the stopped
vehicle until the driver has determined that the vehicle being
overtaken was not stopped for the purpose of permitting a pedestrian
to cross the highway.
4. Whenever signals exhibiting the words �Walk� or �Don�t Walk�
are in place, such signals indicate as follows:
(a) While the �Walk� indication is illuminated, pedestrians
facing the signal may proceed across the highway in the direction of
the signal and must be given the right-of-way by the drivers of all
vehicles.
(b) While the �Don�t Walk� indication is illuminated, either
steady or flashing, a pedestrian shall not start to cross the highway
in the direction of the signal, but any pedestrian who has partially
completed his crossing during the �Walk� indication shall proceed to a
sidewalk, or to a safety zone if one is provided.
(c) Whenever the word �Wait� still appears in a signal, the
indication has the same meaning as assigned in this section to the
�Don�t Walk� indication.
(d) Whenever a signal system provides a signal phase for the
stopping of all vehicular traffic and the exclusive movement of
pedestrians, and �Walk� and �Don�t Walk� indications control
pedestrian movement, pedestrians may cross in any direction between
corners of the intersection offering the shortest route within the
boundaries of the intersection when the �Walk� indication is
exhibited, and when signals and other official traffic-control devices
direct pedestrian movement in the manner provided in this section and
in NRS 484.283.
(Added to NRS by 1969, 1492; A 1981, 669, 1918; 2003, 364)"
OK there IS a definition for "right-of-way" in the NRS:
"NRS 484.141 �Right-of-way� defined. �Right-of-way� means the right
of one vehicle or pedestrian to proceed in a lawful manner in
preference to another vehicle or pedestrian approaching under such
circumstances of direction, speed and proximity as to give rise to
danger of collision unless one grants precedence to the other.
(Added to NRS by 1969, 1480)"
But you see, I did give precedence to the pedestrians, and did so in a
manner I thought was lawful.
dumb_fishie99
> On Thu, 21 Jan 2010 15:19:02 -0800 (PST), dumb_fishie99
>
>
> >hi all,
>
> >Yesterday I took my second DMV driving test, and they gave me an
> >automatic fail for something that is neither in the Driver's Handbook,
> >nor specifically
> >spelled out in the Nevada Revised Statutes. Not specifically enough.
> >It's not in the Handbook, and the NRS does not cover this kind of
> >crosswalk, it only covers crosswalks that have no signals:
>
> >NRS 484.325 Right-of-way in crosswalk; obedience to signals and other
> >devices for control of traffic. Except as otherwise provided in NRS
> >484.327, 484.328 and 484.356:
>
> You are selectively quoting to try to defend an untenable position.
> Note that the title of the section mentions "obedience to signals".
> Nor did you quote the remainder of 484.325 because paragraph 4
> discusses signals.
Paragraph 4 discusses signals, but I'm covered there too. The light
was green,
I waited for the pedestrians to pass before I eve started to make the
turn,
and I was not "too close." Paragraph 4 does not say that pedestrians
do have "curb-to-curb" right-of-way" in an intersection with working
lights!
The traffic light was green; the pedestrians had a "walk" signal, and
I waited
until they were past the lane I wanted to turn into, before I even
started to
make the turn. So Paragraph 4 does not preclude my action either.
Thanks very much for looking that up though.
There is no definition of "yield" given at all, and no specific
distance
they have to be away from the driver, in a crosswalk with working
lights!
>
> You should also read 484.141.
Yes, here it is:
" NRS 484.141 �Right-of-way� defined. �Right-of-way� means the right
of one vehicle or pedestrian to proceed in a lawful manner in
preference to another vehicle or pedestrian approaching under such
circumstances of direction, speed and proximity as to give rise to
danger of collision unless one grants precedence to the other.
(Added to NRS by 1969, 1480)"
The thing is, I did give precedence to the pedestrians! So it all
keeps coming back to NRS 484.325, which does *not* specifically
state that pedestrians in a crosswalk with working lights, do have
"curb-to-curb" right-of-way.
>
> >I want to go down there and ask them to take the automatic fail off of
> >my test,... Would I have a legal leg to stand on?
>
> Obviously no, since your premise is faulty.
I don't think that's been proven.
>
>
>
> >The pedestrians were in no way in any danger. They were absolutely
> >clear
> >of the lane I was turning into.
>
> Have you never seen a pedestrian have a change of mind and suddenly
> reverse direction? �Have you ever heard of a driver's hand slipping
> off the wheel or becoming distracted so they didn't turn properly?
> What if a trailing vehicle didn't notice your signal and rear-ended
> you as you were part way through your turn?
>
> Each of these would endanger the pedestrian in the circumstances you
> describe.
So I have to second-guess what the DMV intends?
I know very what could have been avoided if I had renewed on
time, you don't need to remind me of that. Also, you don't know
what my attitude is *while* taking the test, do you now?
No, you don't.
dumb_fishie99
> >Sounds to me like it means you must not turn right as long as
> >someone is in the crosswalk.
>
> Yup. �There is the 'curb to curb' "lawfully within the intersection,
> or an adjacent crosswalk" right-of-way that the examiner failed
> him on.
I don't think the language specifically states that.
I don't see anything that says that when the "walk" signal is
falshing green, that then drivers in vehicles may not make
a right turn until after the pedestrian has reached the median
or opposite curb.
>
> Looks to me like _this_ statute requires that they wait until the
> pedestrian has cleared the _entire_ roadway.
Then why doesn't it say that either? If I knew I had to do that,
I would have.
>
> There -might- be a special case if there is a "median"/"island"
> in the middle of cross-street. �Then one -might- be able to argue
> That the cross-walk extends from the curb to the median, and that
> there is a -second- crosswalk from the median to the far curb. I
> would not want to bet the Mustang Ranch (A Nevada asset) on the
> success of that argument. :)
There *was* a median/island in the middle of the street. But the
tester
did not try to claim the pedestrian should have had the whole
intersection,
before I tried to turn.
I'm sure you're right, that nothing I can argue will make any
difference
whatsoever.
The thing that bugs me, is how am I going to pass it, when I cannot
even adequately prepare myself for the secret DMV interpretations?
No reasonable people give tests in that manner.
I probably don't even want to get into them telling me why I should
stop behind the crosswalk at a green light, that is just stupid and
dangerous.
Thank you very much everyone for discussing it with me.
Robert Bonomi
dumb_fishie99 wrote:
>On Jan 23, 5:13�pm, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
>
>> >Sounds to me like it means you must not turn right as long as
>> >someone is in the crosswalk.
>>
>> Yup. �There is the 'curb to curb' "lawfully within the intersection,
>> or an adjacent crosswalk" right-of-way that the examiner failed
>> him on.
>
>I don't think the language specifically states that.
Then you can't read statutes -- it is just that simple.
re-quoting material you elided:
484.283 says,
"Vehicular traffic facing the signal may proceed straight through
or turn right or left unless another device at the place prohibits
either or both such turns. Such vehicular traffic, including
vehicles turning right or left, must yield the right-of-way to
other vehicles and to pedestrians lawfully within the intersection
or an adjacent crosswalk at the time the signal is exhibited."
>I don't see anything that says that when the "walk" signal is
>falshing green, that then drivers in vehicles may not make
>a right turn until after the pedestrian has reached the median
>or opposite curb.
It says, in so many words, a vehicle "must yield right-of-way to pedestrians
lawfully within the intersection, or an adjacent crosswalk when the vehicle
has a green light."
In other words, if they are _anywhere_ within the designated areas, you have
to yield -- i.e. *WAIT*YOUR*TURN*, until they are _out_ of that area.
Just 'not hitting them' is not good enough, as you seem to believe.. That
area is forbidden to you to use _at_all_ *while* they occupy *ANY*PART* of it.
>> Looks to me like _this_ statute requires that they wait until the
>> pedestrian has cleared the _entire_ roadway.
>
>Then why doesn't it say that either? If I knew I had to do that,
>I would have.
It _does_ say so. 'Yield' does -not- mean just "avoid hitting them", as
you apparently believe. It means you =wait= until they are _out_of_ the
area where you must yield to them. *COMPLETELY* out of it, not just 'not
blocking your way'.
>> There -might- be a special case if there is a "median"/"island"
>> in the middle of cross-street. �Then one -might- be able to argue
>> That the cross-walk extends from the curb to the median, and that
>> there is a -second- crosswalk from the median to the far curb. I
>> would not want to bet the Mustang Ranch (A Nevada asset) on the
>> success of that argument. :)
>
>There *was* a median/island in the middle of the street. But the
>tester did not try to claim the pedestrian should have had the whole
>intersection, before I tried to turn.
>From reading _just_ 424.283 there is insufficient information as to what
constitutes the bounds of the crosswalk area. You reported that the tester
said 'curb to curb' -- which _could_ mean 'near curb' to the curb on the
median/island, *OR* it -could- mean 'near side curb' to 'far side curb' of
the street itself. If there is no median/island, it is clear that it _does_
mean the _entire_ street, not just the near half of it.
>I'm sure you're right, that nothing I can argue will make any
>difference whatsoever.
>The thing that bugs me, is how am I going to pass it, when I cannot
>even adequately prepare myself for the secret DMV interpretations?
>No reasonable people give tests in that manner.
The hard part of the preparation is going to be changing your attitute.
When you accomplish that, the rest will be easy.
>I probably don't even want to get into them telling me why I should
>stop behind the crosswalk at a green light, that is just stupid and
>dangerous.
Again, that *IS* the law. In _ALL_ states in the U.S.
When required by a traffic control device, you _always_ stop at the 'stop
line', which is before the crosswalk. The law does require this, WHETHER OR
NOT there are pedestrians in the crosswalk at the time you drove up to it.
(They may come up _while_ you are blocking crosswalk, and you have now made
it 'unsafe' for them to cross by your illegal failure to stop before the
crosswalk.)
Sometimes -- when there is a 'visibility' problem, for example -- you may
be required by law to make a _second_ stop just before the 'curb line' of
the cross-street, to see if it is 'clear' to proceed across said cross-
street.
Making two stops, when needed, is the *smart* and *safe* way to drive.
As for stopping at a "green light", yes, sometimes that _is_ required.
A green light does NOT guarantee you the right to drive through an intersection;
it merely means that you are _allowed_ to *IF* it is 'otherwise safe' to do
so. Making the determination that it is 'safe' _can_ require that you make
a stop before proceeding.
Stuart A. Bronstein
> I don't see anything that says that when the "walk" signal is
> falshing green, that then drivers in vehicles may not make
> a right turn until after the pedestrian has reached the median
> or opposite curb.
Then what does it mean when the statute says "when the pedestrian is
upon the half of the highway upon which the vehicle is
traveling...."?
Or with respect to the other statute I quoted that may apply, what
does it mean when it says when a pedestrian is, "within the
intersection or an adjacent crosswalk..."?
>> Looks to me like _this_ statute requires that they wait until
>> the pedestrian has cleared the _entire_ roadway.
>
> Then why doesn't it say that either? If I knew I had to do
> that, I would have.
Because it says the car must wait while the pedestrian is in the
crosswalk - not just when he's in the crosswalk and in your way.
Stuart A. Bronstein
> "Stuart A. Bronstein" <spamt...@lexregia.com> wrote:
>>
>> Looks specific enough to me.
>
> yes, it specifically only applies to crosswalks with working
> lights.
Ok, look at the statute you quoted, dealing with crosswalks without
working lights. It says the car must yield, "when the pedestrian
is upon the half of the highway upon which the vehicle is
traveling..." Sure seems clear to me that the car must yield when
the pedestrian is in the crosswalk, not just when he's walking
toward you or in front of you.
>> I don't understand. �Were they walking toward you or away from
>> you? � In other words would they complete their walk to the
>> curb at the curb nearest you or the one on the other side of
>> the street?
>
> They were walking away from me. They did not decide to turn
> around and come back.
You still haven't responded to whether they were walking toward
your side of the roadway or the other side of the roadway. In the
former case the statute you quoted is quite clear that you have to
wait until they clear the intersection.
>> To me this is clear. �If the pedestrian were walking away from
>> you and on the half of the roadway going opposite to the
>> direction you were turning into, the tester was wrong. �You are
>> allowed to turn under those circumstances.
>
> That's what I'm saying!
But you didn't specify, as far as I can tell, that the pedestrian
was doing that. Was it a divided road with a median? Were they
walking away from you and you waited just until they had passed the
median, or at least the middle of the road? You haven't specified
that.
> They were halfway through the second lane, traveling away from
> me, when I signalled and moved forward, and they were at the
> third lane by the time
> I made the turn. They had not reached median.
Second lane? Going the same direction you were going or the other
direction? You still haven't clearly stated that. If the second
lane was going the same direction as the lane you were turning
into, the pedestrian is still on your half of the roadway.
> There were not going east, as I was, once I made the turn. They
> were going
> north.
Still unclear. Were you heading north or south before you made the
turn? Was it a right turn or a left turn? These are all relevant
facts you seem to have left out.
> But I did yield the right of way, unless I misunderstand what
> yielding is,
> and there is no definition for the world "yield" in the NRS.
Yield the right of way means not to make a turn that causes you to
enter the intersection while the pedestrian is in the intersection,
whether coming toward you or going away from you. That's how the
statute defines it.
> I do not see how that applies. It does not say that, at
> crosswalks with working lights, pedestrians have "curb-to-curb"
> right of way. No, it doesn't say that at all. It simply doesn't
> address it.
It's a curb to median, or median to curb right of way. As far as
I'm concerned you have not given enough details to determine just
what happened.
Barry Gold
[on the subject of taking the driving test again]
>The thing that bugs me, is how am I going to pass it, when I cannot
>even adequately prepare myself for the secret DMV interpretations?
>No reasonable people give tests in that manner.
Simple. Go back and read the handbook that the DMV passes out.
Whenever you get to a rule that _could_ be interpreted more than one
way, interpret it in the way that most restricts you.
The pedestrian right-of-way is an example. The rule is (perhaps)
unclear over how long you should wait for a pedestrian. So, take the
most cautious approach: wait for the pedestrian to step up on the curb
on the opposite side of the street, or onto the island if the street
is divided.
Another example: say the examiner says, "Make a U-turn at your next
opportunity." It's 500 feet to the next street, but there's no
traffic on the street. There houses along one side of the street, the
other side is a mixture of storefronts and apartment buildings.
Assume the law in your state is like CA -- you are allowed to make a
U-turn at an intersection, but not in the middle of a block in a
business district. Should you turn now? Or wait until you get to the
street?
One could argue that the houses and apartments make it a residential
rather than business district(*). But you take the cautious approach:
drive to the intersection and make your U-turn there. You won't fail
for being overcautious -- in fact, you probably won't even lose
points.
Of course, if the examiner tells you to make a "3-point turn" (and he
probably will at some point), you can't use an intersection. So just
make sure that all the buildings on the street are houses before you
start your turn.
Be cautious. If you are overcautious, the examiner will give you more
specific instructions. E.g., if he thinks it's OK for you to make
that U-turn in this block, he'll tell you, "Go ahead, turn in this
block." AFAIK, he _won't_ tell you to do something that's illegal or
an automatic fail. (But he might tell you to do X, when you shouldn't
do X right now but may in another 100 feet or 10 seconds from now when
that pedestrian is out of the street, etc. So, treat "do X" as "do X
soon, when you can safely and legally do X" rather than as "do X RIGHT
NOW")
Take the advice of another poster (Jacobs?): pretend you're a brand-
new driver, taking the test for the very first time. You're not sure
of yourself, so you (we hope) drive slower than a more experi enced
driver might, yield the right of way in doubtful situations, etc.
In short: drive defensively. Assume every other driver on the road is
either drunk and barely able to control their car, or recently escaped
from Bellevue, and the pedestrians are crazier than that. Now, do
your best to get where you're going (as directed by the examiner)
without having an accident.
(*) According to a traffic school instructor, to be "residential" the
street must have more than 50% _detached_ single family residences.
Apartment buildings count as businesses for that purpose.
Keep in mind something that a co-worker observed in the 1970s. He had
gone to the local DMV to take the test for a motorcyle license. This
is an incredibly simple test compared with the automobile license.
You have to get on the bike, make a figure eight around two pylons in
the parking lot, come back and stop next to the examiner.
This 18 year old gets on his motorcycle, revs the engine, and pops the
clutch. Off he goes, starting his figure-8. When he gets to the far
end, he going nearly 20mph (this is in a parking lot, remember). So
he turns wide around the far pylon, tires screaming, nearly drifting
out of the lot. Then he comes back, still too fast, crosses his path
and tries to complete the figure eight around the near pylon. He's
out of control and nearly hits the examiner, who jumps out of the way.
Then he nearly goes out onto the sidewalk.
Then he decides to go back for a second try. Still going too fast, he
manages the far turn by a miracle. But when he comes back, he can't
make the second turn, and plows into the side of the DMV building, his
front wheel climbing about 3 feet up the concrete wall before he falls
back down again.
He walks over to the examiner. "Did I pass? Huh?"
The examiner tells him, "You had two automatic fails. First of all,
you forced a pedestrian -- me -- to move to avoid being hit. Second,
you hit a stationary object: to wit, the DMV building."
"Can I try again?"
"Son, we only allow _one_ failure, per person, per day, at this DMV
office."
After the dejected teenager gets on his motorcycle and drives away, my
co-worker came up to take the test. He cautiously drives around the
two pylons, and comes to a stop next to the examiner.
"Well, did I pass or fail?"
"Did you hit anything?"
"No."
"You pass."
The moral: don't be a smart aleck. Just do what you're told, and do
it cautiously. It's not that hard to pass a behind the wheel test,
millions of people do it every year. In CA, at least, you only need
70% to pass. And of course avoiding one of a handful of automatic
fails. That means you can get a _lot_ of markdowns for, e.g.,
stopping too early at a stop sign or driving too slow (if that's even
a markdown) and still pass.
Your making this a big deal. You passed when you first got your
driver's license. You have more skill now. Just don't show off, and
don't be aggressive about "your" right of way. (Rule: right of way
isn't something you _have_, it's something you _yield_ to someone
else.)
He can't control the
examiner sees him
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Stuart A. Bronstein
> The traffic light was green; the pedestrians had a "walk"
> signal, and I waited until they were past the lane I wanted to
> turn into, before I even started to make the turn. So
> Paragraph 4 does not preclude my action either.
The lane you were in is not relevant. It's the half of the roadway.
Did you wait for them to clear your half of the roadway/
Mike Jacobs
> It would lbe easier if it wasn't for my situation. My car isn't
> perfect enough for the DMV,
Well, there's another issue What's wrong with it? What's your
history with DMV on that? Maybe they already had you on some kind of
"watch list" or something.
If your car doesn't comply with statutory equipment requirements,
shouldn't you get it fixed, _anyway_? What's up with that?
> so I have
> to rely on borrowing friends cars, since Nevada won't allow me to rent
> one for this test.
That sounds bizarre. Why does the state care _who_ owns the car you
are going to be driving for the test? Or do you mean, the
_rental_agency_ won't let you rent a car (or drive one of their cars a
friend rents for you) unless you have a current driver's license?
If you meant the state won't let you _drive_yourself_ to the test,
that's a different issue than _whose_ car you will drive once you're
there, behind the wheel during the test, with the examiner beside
you. It would make sense that you need to bring a friend along, both
to drive you there and to have the friend, in doing so, also transport
the car that will be used for the test to the DMV office, before your
test begins. Otherwise, you would be operating a car on the public
street while unlicensed, on your way to the test venue, and that would
be illegal.
> That means I have to make appointments,
With your friend? Or with the DMV?
They don't have walk-in service, where you are? Is this a tiny
county, with part-time help at DMV, or something? Big-city DMVs
usually do not require appointments for driving tests, at least in my
experience.
> and appointments then to be
> about 5 weeks
> apart. So every time I fail it, it's a big deal.
5 weeks sounds like an _awfully_ long time. Who is it you say that
is imposing this requirement? Most states allow you to come back the
next _day_ to re-take a failed driving test.
How many times have you failed the test, since forgetting to renew
your license on time?
*
I assume you have failed for a different reason each time - that is, I
_hope_ so. Otherwise, you are not learning from your mistakes.
How old are you? Is that perhaps an issue too? Many states have
more restrictive renewal requirements on elderly drivers. FYI, a few
years ago when I also forgot to renew my MD license before leaving the
country for awhile on vacation, during which it expired, getting it
renewed was no problem when I got back, and I did not have to take
either a driving or written test (just an eye test) and they back-
dated it to my birthday. But, I was younger then.
> And, for those who would like to assume this is whining, and would
> like to dig for
> any imperfections as if I'm on the witness stand: whatever. I'm going
> to focus on
> the issue at hand.
The issue at hand is how to get your license renewed with the least
amount of hassle to you. That's what we're all trying to help you
figure out.
Mike Jacobs
> > vehicular traffic, including
> > vehicles turning right or left, must yield the right-of-way to
> > other vehicles and to pedestrians lawfully within the intersection
> > or an adjacent crosswalk at the time the signal is exhibited."
>
> But I did yield the right of way, unless I misunderstand what yielding
> is,
I think you _do_ misunderstand. True, "yield" does not ALWAYS mean
"stop," the way a stop sign does - but it _does_ mean that ONLY ONE
potentially conflicting person or vehicle - the favored one - is
allowed to be in the stationary "yield zone" while the favored person
is there, or (looked at another way) no one is allowed to breach the
moving "safety bubble" surrounding the favored person, at any given
time. If the favored driver or pedestrian is ALREADY in the defined
zone where he has the right-of-way, or is APPROACHING closely enough
to that zone to create a potential conflict, or has NOT YET LEFT that
zone, then you the unfavored driver must WAIT until the favored person
has comipletely cleared that zone, before YOU can legally enter it.
If that means, as a practical matter, that you have to stop and
proceed no further until you wait for the favored person to clear the
zone, in order to make that happen, then that's what you need to do.
The only time you can enter the "yield" zone WITHOUT stopping AND
WAITING for the favored person to clear it, is the following:
Before entering, if you have LOOKED to make sure NO ONE ELSE in a
potentially conflicting and favored position is either IN, or CLOSE TO
ENTERING, that yield zone, AND if you are sure that you can enter,
transit, AND LEAVE the "yield" zone BEFORE anyone else favored with
the right-of-way over you ALSO gets to the point where he is entering
the "yield" zone - in other words, so that YOU DO NOT FORCE the other
(favored) person to slow down or stop or change course or do anything
else in order to avoid colliding with YOU in the zone - THEN and only
then, you may enter, without slowing down or stopping until the
favored person has completely cleared the zone. If you make any of
the favored persons slow down or change direction or do ANYTHING to
avoid having their "safety bubble" be in conflict with yours, at a
time when THEY HAVE THE RIGHT TO USE THE WHOLE ZONE, then YOU have
"failed to yield" the right-of-way to those favored persons. In other
words, a "close shave" _IS_ a failure-to-yield, BECAUSE you have
PENETRATED the favored guy's "safety bubble" even if no actual
collision occurs.
How does that apply to your pedestrians and right-turning vehicles
situation? Simple. The pedestrian has the right-of-way to occupy THE
ENTIRE YIELD ZONE (that is, the entire zone within which he has the
right-of-way) until he has CLEARED that zone, and ONLY THEN are you,
the right-turning vehicle, permitted to enter that zone.
In the case of an uncontrolled (no signal) intersection, the
subsection (1) you originally quoted applies, and its terms _define_
the applicable "yield zone" to include ONLY the near half of the
roadway; so, if there is no signal, you ARE permitted to make your
right turn once the pedestrian who is walking away from you has
crossed the centerline of the cross street onto which you are turning
right. So, your approach would be correct, in THAT instance.
But, what if there IS a signal? Now, below, for the first time you
quote for us what the other subsections say:
> To Mike Jacobs: parts 2, 3, and etc. have nothing to do with the
> issue:
Well, you're right that 2 and 3 apparently don't deal with that issue,
but 4 _does_. So your "etc." is demonstrably incorrect, because at
least ONE of the subsections following subsection (1) _DID_ have
something to say on the issue of pedestrian right-of-way at signal-
controlled intersections. That was what I guessed; and the fact that
it was not the very next subsection, but one farther down the list, is
a red herring.
<irrelevant subparts 2 & 3 snipped>
> 4. Whenever signals exhibiting the words �Walk� or �Don�t Walk�
> are in place, such signals indicate as follows:
>
> (a) While the �Walk� indication is illuminated, pedestrians
> facing the signal may proceed across the highway in the direction of
> the signal and must be given the right-of-way by the drivers of all
> vehicles.
That part could not be clearer. In case of a signal-controlled
intersection, there is NO LIMITATION on the "yield" zone as there is
in subsection (1) for un-controlled intersections; thus, the "yield"
zone for pedestrians who have a green "walk" signal in their favor
covers the ENTIRE INTERSECTION. Any time the pedestrian has the
"walk" signal, HE HAS THE RIGHT-OF-WAY, period, until he is completely
OUT OF the intersection. The rule of subsection (1) for uncontrolled
intersections actually allows you to begin your turn SOONER than you
could at intersections where there is a signal light.
> OK there IS a definition for "right-of-way" in the NRS:
>
> "NRS 484.141 �Right-of-way� defined. �Right-of-way� means the right
> of one vehicle or pedestrian to proceed in a lawful manner
"Lawful manner" (for a pedestrian) includes the RIGHT to turn around,
change his mind and walk back to the curb he had just come from, drop
something on the tarmac and turn back to pick it up, stop in the
middle of the crosswalk and do jumping jacks, have a rock in his shoe
or a sprained ankle or a heart attack or seizure and stop to take care
of that before he has reached the other side, etcetera, SO LONG AS he
still has the green "walk" light in his favor. The fact that he is
perhaps not LIKELY to do any of those things, in your estimation, does
not take away his RIGHT to do any or all of those things, and you must
YIELD THAT RIGHT to him - he has the RIGHT to use the entire width of
the public WAY, and his right to do so takes precedence over your
subordinate right to enter that protected zone with your vehicle,
which you may do only AFTER the pedestrian is done doing whatever it
is he is going to do there and has left the zone.
> in
> preference to another vehicle or pedestrian approaching under such
> circumstances of direction, speed and proximity as to give rise to
> danger of collision unless one grants precedence to the other.
Note that the question whether an ACTUAL collision almost happened is
not the issue. Rather, the issue is whether the favored vehicle or
pedestrian is already in, or is about to enter, the zone in which
"circumstances of direction, speed and proximity" mean a collision
COULD happen if all the "bad" possibilities come together at once.
In practice, the best way to think of this is to picture an invisible
"bubble" surrounding EACH pedestrian or vehicle - their "zone of
safety" as taught in "defensive driving" courses - and to take
whatever steps are necessary to prevent an unfavored vehicle from
penetrating the "bubble" surrounding the favored person or vehicle.
At an uncontrolled intersection, the pedestrian's "bubble" is
protected by right-of-way only on the half of the roadway he is
actually walking on OR IS ABOUT TO ENTER at the time the vehicle
driver has to decide whether to yield. A corollary of that is, the
pedestrian at an uncontrolled intersection who has already walked more
than halfway across the street DOES NOT have the legal "right" to
change his mind and turn around to go back where he came from. Once
he has crossed the center line, CARS now have the right to cross
behind him, and so if the pedestrian DOES choose to turn around and go
back, he does so AT HIS OWN PERIL because he NO LONGER has the "right
of way" to do so (even though he _does_ still have the right-of-way
over any other traffic if he chooses to CONTINUE going in the
direction he was originally walking, and to finish crossing the
street.
But what is missing from your analysis of the signal-controlled
intersection is that the pedestrian with the green "walk" signal in
his favor, has the right to do ANYTHING (legal) HE WANTS while in the
crosswalk, so long as that "walk" signal remains green for him. Of
course, once the "walk" sign starts blinking or turns red, he has to
CLEAR the intersection as soon as practicable, just as if he were in
an uncontrolled intersection, and he still has the right-of-way until
he does so. But, if you made your right turn behind this pedestrian
while he was still in the crosswalk on a "green" signal, I'm led to
the conclusion that, at least in NV and under these statutes, you WERE
in the wrong; you should have waited until ALL pedestrians still in
the crosswalk had safely reached the other side.
The concept of "right-of-way" as I have laid it out here is not unique
to Nevada, nor to the situation of vehicular right-turn-on-green with
a pedestrian green "walk" sign showing. Nor does the fact that MOST
people seem to mis-understand and ignore the concept in everyday
driving, serve as grounds to get _you_ off the hook for also mis-
understanding it and thus failing your driving test.
Here's another example, not involving any pedestrians. You're
northbound and stopped at the intersection on a stop-sign-controlled
side street, preparing to turn right (eastbound) onto, and enter the
flow of traffic on, a multi-lane, through boulevard whose traffic has
no signal or sign. Obviously, you know that means the lawful traffic
on the boulevard has the right-of-way over you. BUT, what does that
mean IN PRACTICE?
Let's say you see just ONE eastbound car coming toward you from your
left, and he is in the #1 (centermost) eastbound lane - the rightmost
eastbound lane is completely clear. So, even though the car you see
_is_ close enough to create a danger of collision IF YOU WERE ENTERING
HIS LANE, you are not planning on doing so, and thus you go ahead and
make your right turn into the rightmost eastbound lane, whereupon the
car that was already on the boulevard HITS YOU FROM BEHIND.
Unbeknownst to you, while you were in the process of making your right
turn, he had CHANGED LANES from the centermost lane to the rightmost
lane just behind you before he collided with you. WHO IS IN THE
WRONG?
<tick, tick, tick>
Thought about it? Okay, put down your pencils. The answer, in almost
all USA states, is, YOU ARE. How many of us would get that one
wrong? Most drivers do, of course, in daily practice, completely
ignore this rule, and they DO go ahead and turn into the empty lane
even though there are cars dangerously close behind them in ANOTHER
lane - AND they usually get away with it, as long as no collision
actually does occur. Most drivers on the boulevard in this scenario
would also, in daily practice, "drive defensively" and ANTICIPATE that
a right-turning vehicle entering from a side street might cut in front
of them in the next lane over (or will blindly cut across into their
own lane), and thus the favored drivers WILL slow down, stay in lane,
etc. as necessary to avoid an actual collision, just for their own
safety, although they have no legal DUTY to do so.
In comparison to the entering right-turner, the favored vehicle has
the right to use the ENTIRE width of the favored boulevard, NOT just
the lane he happens to be occupying when the entering motorist sees
him. Th favored driver has the RIGHT to change lanes without
notifying or warning the unfavored driver and without any
_interference_ from the unfavored driver. If you, the unfavored
driver, move YOUR vehicle into any position where a collision is
possible to happen unless THE OTHER driver slows down or changes lanes
to avoid YOU, then YOU are in the wrong, because HE HAS NO DUTY to
slow down, change lanes, STAY IN THE SAME lane he's already in, or do
ANYTHING ELSE just to avoid hitting you - the duty is the OTHER way
around. YOU have to wait until ALL risk of collision is safely past,
THEN you can legally make your right turn onto the boulevard. That's
what "yield" means.
Sorry, pal, suck it up and take the test again. And, be ESPECIALLY
cautious not to step on ANYBODY's toes you think might POSSIBLY have
the right-of-way over you while you are doing so - that will increase
your chances of a "pass." The examiner is STILL correct to be
looking at your attitude and aggressiveness behind the wheel as much
as your strict letter-of-the-law avoidance of collisions, so, don't
even COME CLOSE to infringing on someone else's right-of-way. Good
luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> But you see, I did give precedence to the pedestrians, and did so in a
> manner I thought was lawful.
--
David Chesler
not enter until the person or vehicle with the right of way is not
there at all.
This is certainly not true in practice, and I don't know that it's
true at law. In my state (as in most) vehicles entering a traffic
circle must yield to vehicles already in the traffic circle. This
does not mean you may not enter unless the traffic circle is empty. It
does mean you can't get in the way of a vehicle already in the traffic
circle. Not only may you not put yourself where it can't help but hit
you, you may not even force it to slow down. But you may share share
the facility.
I'd have understood the same for pedestrians in an intersection: As
long as they can do what they're there for, without noticing you, you
have yielded. Unlike Barry Gold's motorcycle test story, where the
inspector had to jump out of the way.
On the other hand, as Barry and other's have said, when you're taking
a road test, like when you're taking a job interview, be overly
cautious, But not stupidly so. What has worked for me (and I've taken
a bunch of road tests, changing states, getting motorcycle and
commercial licenses) is to maintain a patter, as in "Turn right here"
"OK, I see a pedestrian who is in the crosswalk, I'm waiting until the
pedestrian is clear of the crosswalk to enter it."
--
- David Chesler <che...@post.harvard.edu>
New York's home, but it ain't mine no more
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>If you meant the state won't let you _drive_yourself_ to the test,
>that's a different issue than _whose_ car you will drive once you're
>there, behind the wheel during the test, with the examiner beside
>you. It would make sense that you need to bring a friend along, both
>to drive you there
Not necessary: before taking the test, I had a Learner's Permit, so I
could legally have driven to the test providing there was a licensed
driver in the car with me.
>They don't have walk-in service, where you are? Is this a tiny
>county, with part-time help at DMV, or something? Big-city DMVs
>usually do not require appointments for driving tests, at least in my
>experience.
I know that NYC does, with fairly long wait times (depending on which
test center) (at least as of when I took the test, a couple of
decades ago).
Seth
Seth
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>In article <4c22a288-b8e4-46f4...@c29g2000yqd.googlegroups.com>,
>dumb_fishie99 wrote:
> 484.283 says,
> "Vehicular traffic facing the signal may proceed straight through
> or turn right or left unless another device at the place prohibits
> either or both such turns. Such vehicular traffic, including
> vehicles turning right or left, must yield the right-of-way to
> other vehicles and to pedestrians lawfully within the intersection
> or an adjacent crosswalk at the time the signal is exhibited."
>
>>I don't see anything that says that when the "walk" signal is
>>falshing green, that then drivers in vehicles may not make
>>a right turn until after the pedestrian has reached the median
>>or opposite curb.
. . .
>Just 'not hitting them' is not good enough, as you seem to believe.. That
>area is forbidden to you to use _at_all_ *while* they occupy *ANY*PART* of it.
When a car is entering a limited-access highway, it is required to
yield right-of-way to a car already on that highway. Doesn't that
mean just waiting until it passes, rather than until it leaves the
highway?
So at least in that context, yielding right-of-way is closer to OP's
interpretation.
Seth
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>In comparison to the entering right-turner, the favored vehicle has
>the right to use the ENTIRE width of the favored boulevard, NOT just
>the lane he happens to be occupying when the entering motorist sees
>him. Th favored driver has the RIGHT to change lanes without
>notifying or warning the unfavored driver
Isn't there a requirement to signal a lane change?
> If you, the unfavored
>driver, move YOUR vehicle into any position where a collision is
>possible to happen unless THE OTHER driver slows down or changes lanes
>to avoid YOU, then YOU are in the wrong, because HE HAS NO DUTY to
>slow down, change lanes, STAY IN THE SAME lane he's already in, or do
>ANYTHING ELSE just to avoid hitting you
Isn't there a general duty to avoid collisions (the "reasonable man"
standard)?
That's not saying the unfavored driver lacks the duties you describe;
he does. But I assert that the favored driver also has duties.
Seth
John F. Carr
>In article <6067fc8d-9007-4fdb...@h2g2000yqj.googlegroups.com>,
>Mike Jacobs <mjaco...@gmail.com> wrote:
>
>>In comparison to the entering right-turner, the favored vehicle has
>>the right to use the ENTIRE width of the favored boulevard, NOT just
>>the lane he happens to be occupying when the entering motorist sees
>>him. Th favored driver has the RIGHT to change lanes without
>>notifying or warning the unfavored driver
>
>Isn't there a requirement to signal a lane change?
Probably, but that does not necessarily excuse the unfavored driver.
Mike Jacobs posts from Maryland which has an unusually strict
version of the "boulevard rule". This exact situation happens
often enough that there is clear precedent -- the person entering
the favored highway is at fault if the person on the favored
highway changes lanes.
You could argue that this is not the best law, but it is the law.
In my state, which has abolished contributory negligence, a jury
could be asked to decide who was more at fault. More likely,
insurance companies would negotiate liability. State insurance
regulations offer conflicting guidance if a car entering a highway
hits a car in the middle of a lane change. Maybe they'd split
the claim 50-50.
--
John Carr (j...@mit.edu)
Mike Jacobs
> Robert Bonomi and Mike Jacobs suggest that to yield the yielder may
> not enter until the person or vehicle with the right of way is not
> there at all.
Not in all circumstances - only in the statutory circumstances OP
described.
It's obviously not true in the non-controlled intersection example in
NV, since the car _does_ have the right to proceed across the
intersection and/or crosswalk as soon as the pedestrian has left, or
is not yet close to entering, the _half_ of the roadway that the car
intends to use. My reading of the effect of the various NV statutes
that various folks have quoted on this thread is that, when the
pedestrian has a "green" walk signal, pedestrians are entitled to
occupy the _entire_ crosswalk as long as any of them are still in it,
meaning, the car must wait until all pedestrians have cleared the
crosswalk.
> This is certainly not true in practice,
I agreed to that from the beginning. Especially in places like
Manhattan or Washington DC, where a pedestrian takes his life in his
hands crossing the street, even if he is doing so with a signal in his
favor.
> and I don't know that it's true at law.
The _general_ rule of yielding, at law, is that the person required to
yield must not do anything that _could_ interfere with the use-of-way
rights of the favored person, even if the favored person is not
actually _doing_ that thing at that time. A pedestrian, as I noted
earlier, has the right to _change_directions_ on a dime while in a
crosswalk, and return to the curb from which he came. The car is
_not_ allowed to assume the pedestrian will not do that; crossing the
crosswalk behind a pedestrian who has not completely left it, would
infringe on that pedestrian's right to turn around and walk back into
the path of the car. In NV, at uncontrolled intersections, as I
noted earlier, the pedestrian does _not_ have that right after he has
crossed over 1/2 of the roadway; which means the car driver is _not_
infringing on the pedestrian's right-of-way by proceeding as soon as
the pedestrian has left that half of the roadway.
> In my state (as in most) vehicles entering a traffic
> circle must yield to vehicles already in the traffic circle.
Traffic circles are a fine example of a yield situation, and they
comply with the general rule. Each vehicle using the circle has a
"safety bubble" or "yield zone" representing the "defensive driving"
perimeter for that vehicle - and, if the vehicle already in the circle
has to slow down or stop to avoid having some entering vehicle
penetrate that "safety zone" of his, then the entering vehicle _has_
faled to YROW, even if no collision actually occurs. It's easier to
see than to describe, but each vehicle entering the circle must wait
IF AND ONLY IF another vehicle already in the circle is so close that
it would have to slow down or stop to protect its own "safety zone" or
to avoid penetrating that of the entering vehicle. Ideally, circles
_keep_ the traffic moving at near-full speed if all drivers using it
are knowledgeable and alert in how to merge into the circle safely and
efficiently. MD has just started using traffic circles in a big way;
I like them, but it is maddening how many drivers here _mis_-interpret
the "yield" duty in just the way you describe below, thus _holding_up_
traffic instead of expediting it. These mikquetoasts will come to a
complete stop if there is someone else in the circle, even if that
other driver is completely on the other side of the circle and
presents no danger of collision or of penetrating each other's safety
zone or of having to make the driver already in the circle slow
down. Instead, the timid entering driver makes everyone +else+
behind him, slow down or come to a stop, while he waits. Sheesh.
> �This does not mean you may not enter unless the traffic circle is empty.
Correct. And that incorrect conclusion that you reject is _not_ one
that naturally flows as a corollary from the analytical approach I am
taking in this thread. Why? Because a traffic circle is unlike the
pedestrian situation, where the pedestrian _does_ have the right to
instantaneously change directions 180 degrees in mid-stream, and
therefore is entitled to use the _entire_ crosswalk until he has left
it. The motorist in a traffic circle can only go in _one_ direction
legally, and also cannot change lanes (assuming we are talking about a
single-lane circle, for ease of analysis) once he is in the circle
(other than to leave the circle, when he gets to the desired exit) so
the _only_ thing the entering driver has to look out for, for yielding
purposes, is to avoid penetrating the favored driver's defensive-
driving safety bubble and making the favored driver slow down or stop
to avoid collision.
> It
> does mean you can't get in the way of a vehicle already in the traffic
> circle.
Yes. You've got it.
> Not only may you not put yourself where it can't help but hit
> you, you may not even force it to slow down.
Exactly.
> But you may share share
> the facility.
Bingo. Because you're _all_moving_in_the_same_direction_ and at the
_same_speed_ once you're _in_ the circle. That is not true of
pedestrians and cars in a crosswalk where the pedestrian has a green
"walk" signal.
> I'd have understood the same for pedestrians in an intersection: As
> long as they can do what they're there for, without noticing you, you
> have yielded.
And I agree that _is_ what most motorists actually do, in practice.
How would you analyze fault, though, if the pedestrian reversed course
suddenly, and then got run over by the car that was trying to pass
behind him (which suddenly, upon the course reversal, became "in front
of" the pedestrian instead)?
> Unlike Barry Gold's motorcycle test story, where the
> inspector had to jump out of the way.
Sure. That one was an obvious breach of the general rule that any
time you make the favored person stop, slow down, jump out of the way,
or do anything else to avoid colliding with you, you have failed to
yield the right of way to him.
> On the other hand, as Barry and other's have said, when you're taking
> a road test, like when you're taking a job interview, be overly
> cautious,
Yes, I have agreed with that strategy in this thread previously too.
> But not stupidly so.
Good point. If the test-taker gets carried away to the point where
he is driving like an idiot, he is also likely to fail.
(tongue-in-cheek definition break - anyone who's driving slower than
the flow of traffic and holding up traffic is, from the POV of others,
an "idiot." Anyone who's driving _faster_ than the flow of traffic,
dangerously weaving in and out, is a "maniac")
> What has worked for me (and I've taken
> a bunch of road tests, changing states, getting motorcycle and
> commercial licenses) is to maintain a patter, as in "Turn right here"
> "OK, I see a pedestrian who is in the crosswalk, I'm waiting until the
> pedestrian is clear of the crosswalk to enter it."
Good advice for OP.
Mike Jacobs
> In article <ab61f283-4313-4e27-b085-cb7676dc8...@l30g2000yqb.googlegroups.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> >If you meant the state won't let you _drive_yourself_ to the test,
> >that's a different issue than _whose_ car you will drive once you're
> >there, behind the wheel during the test, with the examiner beside
> >you. It would make sense that you need to bring a friend along, both
> >to drive you there
>
> Not necessary: before taking the test, I had a Learner's Permit, so I
> could legally have driven to the test providing there was a licensed
> driver in the car with me.
Maybe not necessary for _you_, Seth, sure, but I was addressing OP's
situation, not yours, "_IF_" (the first word in my quoted statement,
making it conditional in form) "the state won't let [OP} drive
[himself] to the test." OP's situation is very likely different from
yours - he is not a new driver with a learner's permit, but is a
formerly licensed driver who allowed his license to expire. I don't
know whether or not his state allows him to drive to the test venue in
that circumstance, which accounts for the conditional "if."
> >They don't have walk-in service, where you are? Is this a tiny
> >county, with part-time help at DMV, or something? Big-city DMVs
> >usually do not require appointments for driving tests, at least in my
> >experience.
>
> I know that NYC does, with fairly long wait times (depending on which
> test center) (at least as of when I took the test, a couple of
> decades ago).
NYC is sui generis in many ways. I propose NYC is not typical of
other "big cities" which have enough population reasonably close to
the site of a given DMV office for it to make economic sense for the
State to have that DMV office simply remain open during set hours and
accept walk-in test-takers. Smaller venues with less population
density nearby would probably not do that, because the examiner would
be sitting around doing nothing (on the public payroll) for long
periods of time between test drives. There, it makes sense to do tests
by appointment only. Huge venues like NYC may have the opposite
problem, in that the large potential number of test-takers near a
given DMV site could swamp the available services, resulting in
excessively long waits for the license candidates cooling their heels
on-site before they could take the test, even possibly resulting in a
situation where many of those angry citizens could not even be reached
to take their test by the end of that day, forcing them to come back
and waste yet another day waiting.
Perhaps it would have been more accurate if I had stated my reply to
OP in terms of "mid-size" cities of approx. a hundred thousand or so
people up to maybe a million or so, not applicable to densely
populated "mega-cites" like NYC. But I did take into consideration
that OP was posting from NV, where the biggest cities they have _are_
mid-sized. According to various sources I just checked, Washoe County
(home of Reno) currently has approximately 410,000 people and Clark
County (Las Vegas and its environs) has about 1,300,000 out of approx.
2 million in the whole state. So, the other 15 counties in NV have
only about 290,000 people altogether, scattered about among the
110,000 sq. mi. of wide-open spaces in the Great Basin Desert, which
makes that State still pretty thinly populated per square mile once
you get outside of the 2 main urban centers.
Or, on reflection, maybe the state-government economic factor as to
DMV locations and walk-in policy is better considered in terms of
population _density_ compared to density or number of available nearby
DMV offices, rather than by raw population numbers. Los Angeles,
frex, is in the same mega-city category as NYC, but LA is spread out
over far more square miles of area, almost as big as the entire State
of Rhode Island, so LA's urban density (in most parts of that great
city) is about the same as that of a typical mid-sized American city
or large suburb, with multiple DMV offices scattered around at
appropriate intervals to serve the driving public. The City of
Angels is also much more car-conscious and car-dependent than NYC is,
so I would not be surprised (although I lack statistics to prove it)
if NYC has far fewer DMV offices per 100,000 population within the
city than does either Los Angeles or a typical mid-sized USA city of
half a million or so.
But, getting back to what I actually said, I did end the part you
quoted with, "at least in my experience." I have taken driving tests
in Las Vegas NV, Los Angeles CA, and Baltimore MD, and in none of
those moderate-density cities did I have to make an appointment before
coming in to take the test. Of course, back when I got my NV license,
Vegas only had about 100,000 people, so (if the State of NV has not
kept up its DMV budget to match its explosive population growth) maybe
Vegas is now in the same category as NYC in terms of population
density per available number of DMV test-taking sites, and now
requires test-takers to make an appointment 5 weeks in advance. One
would hope, though, even in that circumstance, that they would make an
exception for a _repeat_ test taker, allowing him to come back sooner
(like, the next day) since chances are the repeat takers are only a
tiny fraction of the total, and doing that would not have a
significant impact on the "flow" of the process as a whole.
Anyway, all that is speculation until we hear from OP what he really
meant about having to wait 5 weeks before re-taking the test.
Mike Jacobs
> In article <MPWdndovPpFim8LWnZ2dnUVZ_tGdn...@posted.nuvoxcommunications>,
> Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
> >In article <4c22a288-b8e4-46f4-8187-e9cd9786e...@c29g2000yqd.googlegroups.com>,
> >dumb_fishie99 wrote:
> >>I don't see anything that says that when the "walk" signal is
> >>falshing green, that then drivers in vehicles may not make
> >>a right turn until after the pedestrian has reached the median
> >>or opposite curb.
> . . .
> >Just 'not hitting them' is not good enough, as you seem to believe.. That
> >area is forbidden to you to use _at_all_ *while* they occupy *ANY*PART* of it.
I agree with Robert
> When a car is entering a limited-access highway, it is required to
> yield right-of-way to a car already on that highway.
Correct. The entering car must yield to any car
_within_the_"protected_zone"_ that is, not literally to _ANY_ car
already upon that highway. If I am going to merge onto I-95 in my
neighborhood in Maryland, am I forbidden to do so as long as ANYBODY
is on that 2000-mile-long highway, from Maine to Miami? Of course
not. Only if the other car already there is in the same Zip code, and
is so close that my entering the highway in front of him migh pose a
danger of collision.
A good "rule of thunb" or "litmus test" of how big the "protected
zone" is, and where its limits are, would be the following: any time
the favored vehicle or person would be forced to slow down, stop,
swerve, or jump out of your way before THEY could do ANYTHING that
they, as the "favored" ones, are legally allowed AND PHYSICALLY
POSSIBLE to do (considering the place where they are and the direction
they are moving at the point in time where the decision must be made,
the two actors' relative speed, maneuverability, etc.) in order to
avoid colliding with the intruder who has just caused the favored one
to jump out of the way and/or who collided with the favored one, then
_you_ the intruder have come WITHIN the other guy's protected zone,
and your violation of that protected space around the favored one is
what constitutes "failure to yield the right-of-way" to the favored
one.
> Doesn't that
> mean just waiting until it passes, rather than until it leaves the
> highway?
Of course. I don't have to wait until you and your Astronaut friend
get to Fort Lauderdale on your nonstop Iron-Butt Cannonball Spring
Break Run from Bangor (with in-flight refueling from a gas can and
funnel and rubber tube in the back seat, and "port a potty" services
from a funnel and rubber tube in the front seat - DAMHIKT) before I
can enter I-95 southbound in Baltimore.
> So at least in that context, yielding right-of-way is closer to OP's
> interpretation.
No, it's not. The size and shape and vector direction of the favored
one's impenetrable "safety zone" depends on the physical traffic
situation. On a high-speed, divided, multi-lane limited access
highway consisting of two adjacent but separate ONE WAY roadways with
occasional exit and entrance ramps, the "safety zone" in which the
favored driver is entitled to protection of the yield law extends as
far in front and in back of his vehicle as would be reasonably and
foreseeably necessary to avoid a collision if EITHER the favored
driver, OR the entering driver, were in front and had to make a sudden
panic stop (considering reaction time before the following driver hits
the brakes, weather and road conditions, etc) and also extends THE
ENTIRE WIDTH of the favored one's lane (except in Calif and a few
other states that allow a motorcyclist or bicyclist to legally perform
a "lane splitting" maneuver riding between two lanes of cager
traffic). That is the favored driver's protected "box."
Most well-designed entrance ramps for freeways include (or lead into)
an acceleration lane, parallel and adjacent to the through travel
lane, in which the entering driver can accelerate to match his speed
to the traffic already in the through lane, at which point he can move
over (with proper signal of course) into the clear space between the
"protedced zone" of the car just in front of him, and that of the car
just in back of him. But, if there is no acceleration lane, as on
some older or poorly-designed roads, then yes, "yield" means the
entering driver must stop and wait until there are NO cars approaching
from behind him in the through lanes that would be even CLOSE to
penetrating his "safety zone" if he were to start moving from a dead
stop at that point in time, accelerate to highway speed, and assume
his place on the through roadway. That usually requires a much bigger
gap between oncoming cars than does a properly designed, acceleration-
lane entrance ramp.
For a pedestrian-vs-car interaction, however, the pedestrian (at a
controlled intersection, with the green "walk" signal) has the legal
right AND the physical ability to go ANYWHERE in the crosswalk while
his green "walk" signal is on - he can stop on a dime in the middle,
turn around and go back, wander aimlessly back and forth, and so on -
UNTIL the "don't walk" signal comes on, at which point (if he is still
in the crosswalk) he must proceed expeditiously to the curb in the
direction he is currently travelling. Meanwhile, his protected "box"
extends the ENTIRE WIDTH OF THE CROSSWALK and, except in the
uncontrolled NV situation where it's okay to pass behind him after he
has left (or not yet entered) the half of the roadway the car intends
to use, THE ENTIRE LENGTH of the crosswalk too. That's the
_pedestrian's_ protected "box."
Mike Jacobs
> In article <6067fc8d-9007-4fdb-aa74-0a11cec63...@h2g2000yqj.googlegroups.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> >In comparison to the entering right-turner, the favored vehicle has
> >the right to use the ENTIRE width of the favored boulevard, NOT just
> >the lane he happens to be occupying when the entering motorist sees
> >him. Th favored driver has the RIGHT to change lanes without
> >notifying or warning the unfavored driver
>
> Isn't there a requirement to signal a lane change?
Sure. But what if the unfavored driver could not see that signal
because he was looking in a different direction (to the side, or
ahead) at the time the favored driver made his signal? My point is,
it is NOT SAFE for the entering driver to ASSUME that the favored
driver will stay in lane; rather, the opposite. The entering driver
must assume that the favored driver IS entitled to the use of the
ENTIRE WIDTH of the half of the roadway going in that favored driver's
direction of travel, and the entering driver must also anticipate that
the favored driver MAY choose to make a legal lane-change (or any
other legal maneuver) WHILE the entering driver is simultaneously
attempting to enter the roadway in front of him. The right-of-way
law puts the burden on the ENTERING driver, not the favored driver, to
anticipate the other's POSSIBLE actions and avoid any possibility of
traffic conflict. The favored driver IS legally entitled to assume,
though, that the unfavored one WILL obey the law and thus that the
entering driver will NOT do anything to improperly penetrate the
favored driver's protected zone.
As I note in another post, a different rule applies to limited-access
highways with dual one-way carriageways and dedicated entrance and
exit ramps - there, the favored driver's protected "box" extends the
entire width of HIS LANE he is currently occupying, _not_ the entire
northbound or southbound half of the roadway. The situation we are
discussing here assumes we are on a surface street of more than one
lane in a given direction, which has unfavored, two-way side streets
(with stop signs) crossing it or entering it at more-or-less right
angles.
> Isn't there a general duty to avoid collisions (the "reasonable man"
> standard)?
Sure - but that "reasonable man" standard only applies to someone who
is in a position to make some kind of _decision_ on whether to do
something or not, and cannot impugn someone who has no real choice in
the matter, or inadequate time to react. That duty comes into play
_after_ the entering driver has already made a bonehead maneuver that
violates the law, and basically amounts to a "last clear chance to
avoid the accident" defense that might be raised by the entering
driver, in the event the favored driver sues the entering driver for
causing a crash.
Seth is right that the favored driver cannot recklessly or heedlessly
or aggressively run into someone who has just violated his right-of-
way, IF he can reasonably take steps to prevent it - in that event, if
the favored driver failed to take such preventive steps, it would mean
that the danger imposed by the original negligence of the entering
driver had already dissipated, and that the favored driver's
aggression is what created the NEW hazard and in fact caused the
collision. But, if the entering driver catches the favored driver by
surprise, and the favored driver just can't react in time to avoid the
collision, that is the entering driver's fault, NOT the favored
driver's.
> That's not saying the unfavored driver lacks the duties you describe;
> he does. But I assert that the favored driver also has duties.
He does. But those duties are not quite as extensive as you imply.
Also, I was over-simplifying the analysis to look ONLY at the right-of-
way issue, since that's what we were discussing. The right-of-way
violator will get a ticket, and be convicted of that traffic
violation, just as readily if the favored driver also did something
wrong that caused a collision, as if they were both able to avoid the
collision. The favored driver who violates some traffic law may also
have HIS OWN ticket(s) to deal with, but that was beyond the scope of
the thread.
Robert Bonomi
David Chesler <che...@post.harvard.edu> wrote:
>Robert Bonomi and Mike Jacobs suggest that to yield the yielder may
>not enter until the person or vehicle with the right of way is not
>there at all.
Speaking only for myself, I was addressing _strictly_ the state of affairs in
Nevada.
Unlike the original poster, I have a degree of faith that the license examiner
_did_ actually know what he was talking about as regards the law. And it was
that person, per the OP's griping, who said that Nevada gave the pedestrian
the right of way "curb to curb", and that driving across the crosswalk, while
the pedestrian was _anywhere_ within it, was a violation, and test failure.
The Nevada statutory language _does_ bear out that interpretation, It says
that you must yield to a pedestrian that is _anywhere_ within the designated
area. Not just one that is at risk of getting hit by the vehicle -- i.e.
"in such close proximity as to be a hazard".
>This is certainly not true in practice, and I don't know that it's
>true at law.
It _very_much_ depends on the state, and *exactly* how the specific statutes
are written.
I can guarantee it _is_ "true at law" in Calif., for instance, as regards ped-
estrians in marked crosswalks -- with or without any traffic-control signals
being present.
Note: in Calif if a pedestrian steps off the curb, into a crosswalk -- WHETHER
OR NOT there are traffic-control signals present, and if present, whether or not
the pedestrian paying attention tao them -- *all* the cross-traffic comes to an
abrupt halt. It is a sight to behold, seeing _eight_lanes_ of traffic (four in
each direction) _immediately_ stop for the person at the crosswalk. Of course,
out there, the cops write _pedestrians_ tickets for running red lights, too.
"One step off the curb" 'against the light' _is_ enough to draw a citation.
(This Illinois boy got grabbed by the scruff of the neck and hauled back onto
the curb -- _more_than_once_ -- when he was visiting friends in L.A. -- by
friends `trying to keep him from getting a "moving violation while walking".
<wry grin> )
Calif. also regards making left turn in the face of oncoming traffic to be a
yield failure -- practically if you can so much as _see_ the vehicle. _Some-
times_ one gets lucky on mounting a defense, and a case where the 'oncoming'
vehicle was too far away to pose even a remote chance of a problem, _does_ get
tossed at trial, but such cases are fairly rare.
(A relative once managed to get exactly such a charge dismissed, by (a)
contesting the officer's description of how close the oncoming vehicle was,
and (b) _proving_ that the officer's recollection was inaccurate -- to wit,
if the vehicle _had_ been anywhere near as close as the officer said it was,
and going at anything approximating the speed the officer claimed, that the
vehicle simply 'must' have hit her car, since it was not physically possible
for it to have cleared the intersection in the time it would have taken, per
the officer's testimony, for that vehicle to reach the intersection. The
officer also admitted, on cross, that the oncoming vehicle had not had to slow
down, apply their brakes, or maneuver to avoid a collision. Oops! There went
the evidentiary credibility of the officer's testimony, and reasonable doubt t
bus existed. :)
> In my state (as in most) vehicles entering a traffic
>circle must yield to vehicles already in the traffic circle.
The vehicle 'on the right' does -not- have right-of-way, you say?
*evil grin*
There is no single rule of 'right-of-way' that applies to all situations.
Different situations _are_ handled differently in law. That means one
has to read the law for what it -actually- says, and not what you 'want' it
to say. More importantly, at least with regard to the Cop's 'frustration',
one cannot assume "they couldn't possibly `/lean -that-, because if they did,
there were clearer ways to state _that_ intent".
> This
>does not mean you may not enter unless the traffic circle is empty. It
>does mean you can't get in the way of a vehicle already in the traffic
>circle. Not only may you not put yourself where it can't help but hit
>you, you may not even force it to slow down. But you may share share
>the facility.
I strongly suspect you will find the governing language for -that- situation
to be significantly different than what controls when pedestrians in cross-
walks are involved.
In Illinois, for example, for a 'T intersection' -- of which a 'traffic circle'
is a special case -- the rules are:
Sec. 11901.01. Vehicles approaching or entering a "T" intersection.
The driver of a vehicle approaching the intersection of a highway from
a highway which terminates at the intersection, not otherwise regulated
by this Act or controlled by traffic control signs or signals, shall
stop, yield, and grant the privilege of immediate use of the inter-
section to another vehicle which has entered the intersection from
the nonterminating highway or is approaching the intersection on the
nonterminating highway in such proximity as to constitute a hazard
and after stopping may proceed when the driver may safely enter the
intersection without interference or collision with the traffic using
the nonterminating highway.
Note here that you are _expressly_ free to proceed as soon as you can do so
'without interference {to}, or collision with' the other traffic.
"Merging Traffic" (e.g., a freeway on-ramp) has even narrower language -- the
the "unfavored" driver (the one required to yield) is, merely "required to
adjust his vehicular speed and lateral position so as to avoid a collision
with another vehicle."
Contrast those with the Nevada crosswalk language, -- which explicitly says
that you must yield to a pedestrian _anywhere_ within the cross-walk. If they
had meant to say 'you can't hit them', language such as "in such proximity
as to be a hazard' could/should have been used to describe _where_ a
pedestrian -- one that you must yield to -- is to be found.
John F. Carr
Mike Jacobs <mjaco...@gmail.com> wrote:
>>
>> "NRS 484.141 �Right-of-way� defined. �Right-of-way� means the right
>> of one vehicle or pedestrian to proceed in a lawful manner
>
>"Lawful manner" (for a pedestrian) includes the RIGHT to turn around,
>change his mind and walk back to the curb he had just come from, drop
>something on the tarmac and turn back to pick it up, stop in the
>middle of the crosswalk and do jumping jacks, have a rock in his shoe
>or a sprained ankle or a heart attack or seizure and stop to take care
>of that before he has reached the other side, etcetera, SO LONG AS he
>still has the green "walk" light in his favor.
Many right of way laws grant right of way to pedestrians _crossing_
the street, not to pedestrians _occupying_ the street. My state
says "crossing the roadway." The Nevada law quoted in this thread
permits the pedestrian to "proceed across the highway in the direction
of the signal."
I don't know of any legal precedent on this precise point. It doesn't
come up often in my experience. Usually the pedestrian is clearly
crossing lawfully or unlawfully, not pushing the limits of what the
law allows.
I have been in traffic stopped for a pedestrian doing something that
looked a lot like jumping jacks in the middle of the street. Under
the circumstances we decided he was legally wrong but morally right
and waited the ten or twenty seconds for him to finish rather than
going around him.
--
John Carr (j...@mit.edu)
Timothy
> hi all,
>
> Yesterday I took my second DMV driving test, and they gave me an
> automatic fail for something that is neither in the Driver's Handbook,
> nor specifically
> spelled out in the Nevada Revised Statutes. Not specifically enough.
>
> all the usual lights everywhere.
> That is, for both vehicle traffic and pedestrians. I waited until the
> pedestrians were well into the
> second lane before making the right turn into the first lane. That is
> the far right lane, which they
> had just exited.
>
> should not have turned
> until they had reached the median. This was an automatic fail.
>
> crosswalk, it only covers crosswalks that have no signals:
>
> NRS 484.325 Right-of-way in crosswalk; obedience to signals and other
> devices for control of traffic. Except as otherwise provided in NRS
> 484.327, 484.328 and 484.356:
The dispute centers around the meaning of the phrase "other half of
the highway." The definition used to fail you when you took your
drivers test is a perfectly reasonable one. The DMV's "other half" of
a divided highway consists of the lanes on the other side of the
median, where the traffic is flowing in the opposite direction. Even
if it was unreasonable, they're the ones giving the test, and the most
pragmatic thing to do is to use their definition when you re-take the
test.
Stuart A. Bronstein
>> Not necessary: before taking the test, I had a Learner's
>> Permit, so I could legally have driven to the test providing
>> there was a licensed driver in the car with me.
>
> Maybe not necessary for _you_, Seth, sure, but I was addressing
> OP's situation, not yours, "_IF_" (the first word in my quoted
> statement, making it conditional in form) "the state won't let
> [OP} drive [himself] to the test." OP's situation is very
> likely different from yours - he is not a new driver with a
> learner's permit, but is a formerly licensed driver who allowed
> his license to expire. I don't know whether or not his state
> allows him to drive to the test venue in that circumstance,
> which accounts for the conditional "if."
I don't know what state Seth lives in, but in California, and every
other state I'm aware of (except New Hampshire, which apparently does
not have learners' permits), a "learner" can't drive alone, but must
be accompanied by a licensed driver. So I suspect Seth's trip to the
DMV was in violation of the law.
Barry Gold
[snip]
>Note: in Calif if a pedestrian steps off the curb, into a crosswalk --
>WHETHER OR NOT there are traffic-control signals present, and if present,
>whether or not the pedestrian paying attention tao them -- *all* the
>cross-traffic comes to an abrupt halt. It is a sight to behold,
>seeing _eight_lanes_ of traffic (four in each direction) _immediately_
>stop for the person at the crosswalk. Of course, out there, the cops
>write _pedestrians_ tickets for running red lights, too.
>"One step off the curb" 'against the light' _is_ enough to draw a citation.
>(This Illinois boy got grabbed by the scruff of the neck and hauled back onto
>the curb -- _more_than_once_ -- when he was visiting friends in L.A. -- by
>friends `trying to keep him from getting a "moving violation while walking".
><wry grin> )
Yes, and it _is_ a moving violation. That is, if you have a driver's
license, the "jaywalking" ticket will be a "point" on your license,
and will show up on the record that is sent to insurance companies.
Moral: if you are a driver and stopped for Jaywalking, do _not_ show
the cop your D/L or give him your D/L number. Remember, the law does
_not_ require you to _show_ ID; it merely requires you to "identify"
yourself -- that is, to give your correct name and address.
There is, of course, a risk here. The cop might decide you're a "smart
alec" and take you to the station for further investigation. This
will not only be highly inconvenient (loss of time, you end up some
distance from your originally planned path of travel), but when they
inventory your possessions, they will find the D/L and the Jaywalking
ticket will end up charged to it anyway.
So maybe your best bet is to let the cop have your D/L and then
explain to the insurance company at renewal that the "moving
violation" is for Jaywalking, not for something you did while driving.
OTOH, keep in mind that "taking you to the station" not only uses up
_your_ time, it uses up the cop's time. Probably more of his time
than yours. SO most of the time, if you seem otherwise cooperative,
my guess is the cop will just write up the ticket with the info you
supply.
Hamish Reid
<uNSdnfFMy_Jyl__W...@posted.nuvoxcommunications>,
bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
> In article
> <ea587e39-31cd-4a40...@b35g2000vbc.googlegroups.com>,
> David Chesler <che...@post.harvard.edu> wrote:
[...]
> I can guarantee it _is_ "true at law" in Calif., for instance, as regards
> ped-
> estrians in marked crosswalks -- with or without any traffic-control signals
> being present.
>
> Note: in Calif if a pedestrian steps off the curb, into a crosswalk --
> WHETHER
> OR NOT there are traffic-control signals present, and if present, whether or
> not
> the pedestrian paying attention tao them -- *all* the cross-traffic comes to
> an
> abrupt halt. It is a sight to behold, seeing _eight_lanes_ of traffic (four
> in
> each direction) _immediately_ stop for the person at the crosswalk.
In twenty five years of living and working in a bunch of different parts
of California, I've never -- ever -- seen anything like this happen,
(ever). Anyone who relied on that sort of behaviour would be dead in
seconds. I cross a major four-lane road at least twice a day on my ten
minute walk to work here in California, and I've lost count of the
number of times I've narrowly missed being hit by cars that don't even
slow down for me as a pedestrian in a crosswalk (one of them was even an
Oakland PD cop car). Sure, traffic is more likely to stop than it ever
was when I lived in London, but the idea that all eight lanes of traffic
would stop dead for a pedestrian here is, well, ludicrous.
> Of
> course,
> out there, the cops write _pedestrians_ tickets for running red lights, too.
> "One step off the curb" 'against the light' _is_ enough to draw a citation.
Out here, I've never seen this either. Even the Alameda PD, a noted
stickler for laws, will not normally ticket a pedestrian for things like
that unless it's particularly egregious. Much of San Francisco would
stop dead in its tracks were it true.
> (This Illinois boy got grabbed by the scruff of the neck and hauled back onto
> the curb -- _more_than_once_ -- when he was visiting friends in L.A. -- by
> friends `trying to keep him from getting a "moving violation while walking".
> <wry grin> )
>
> Calif. also regards making left turn in the face of oncoming traffic to be a
> yield failure -- practically if you can so much as _see_ the vehicle. _Some-
> times_ one gets lucky on mounting a defense, and a case where the 'oncoming'
> vehicle was too far away to pose even a remote chance of a problem, _does_
> get
> tossed at trial, but such cases are fairly rare.
As someone who sees traffic regularly turn left in the face of oncoming
traffic here in California -- even in front of waiting police cars -- I
doubt this one, too...
Hamish
David Chesler
> In article <ea587e39-31cd-4a40-b603-1890fbad7...@b35g2000vbc.googlegroups.com>,
> David Chesler �<che...@post.harvard.edu> wrote:
>
> >Robert Bonomi and Mike Jacobs suggest that to yield the yielder may
> >not enter until the person or vehicle with the right of way is not
> >there at all.
>
> Speaking only for myself, I was addressing _strictly_ the state of affairs in
> Nevada.
>
> Unlike the original poster, I have a degree of faith that the license examiner
> _did_ actually know what he was talking about as regards the law. �And it was
> that person, per the OP's griping, who said that Nevada gave the pedestrian
> the right of way "curb to curb", and that driving across the crosswalk, while
> the pedestrian was _anywhere_ within it, was a violation, and test failure.
>
> The Nevada statutory language _does_ bear out that interpretation, �It says
> that you must yield to a pedestrian that is _anywhere_ within the designated
> area. �Not just one that is at risk of getting hit by the vehicle -- i.e.
> "in such close proximity as to be a hazard".
I agree that the driver must yield to such a pedestrian. I disagree
that yielding requires not being in any part of the crosswalk at the
same time that the pedestrian is in any part of the crosswalk (the
same crosswalk on the same half of the highway, etc -- not any
crosswalk in the state of Nevada.)
The quoted inapplicable (because it this intersection was controlled)
statutes say in part:
>>>>>> 1. When official traffic-control devices are not in place or not in
>>>>>> operation the driver of a vehicle shall yield the right-of-way,
>>>>>> slowing down or stopping if need be so to yield, to a pedestrian
>>>>>> crossing the highway within a crosswalk when the pedestrian is upon
>>>>>> the half of the highway upon which the vehicle is traveling
Note that it says "slowing down or stopping if need be so to yield".
If they'd meant yielding requires not co-occupying, they could have
said so. There is a middle ground between
>>>>>Just 'not hitting them' is not good enough, as you seem to believe.. That
and
>>>>>area is forbidden to you to use _at_all_ *while* they occupy *ANY*PART* of it.
Robert Bonomi further said:
>>>>> It _does_ say so. 'Yield' does -not- mean just "avoid hitting them", as
>>>>> you apparently believe. It means you =wait= until they are _out_of_ the
>>>>> area where you must yield to them. *COMPLETELY* out of it, not just 'not
>>>>> blocking your way'.
OP had quoted:
> > > > "NRS 484.141 �Right-of-way� defined. �Right-of-way� means the right
> > > > of one vehicle or pedestrian to proceed in a lawful manner in
> > > > preference to another vehicle or pedestrian approaching under such
> > > > circumstances of direction, speed and proximity as to give rise to
> > > > danger of collision unless one grants precedence to the other.
It's a little circular, but seems to say "Don't do what makes a
collision [more?] possible". When I did air traffic software, we
assumed planes flew at less than Mach 2 to detect potential hazards.
Similarly one may assume pedestrian speeds. Even if we allow the
pedestrian to reverse course and sprint in that direction, a vehicle
can co-occupy the same half-crosswalk and pass through it without the
danger of a collision. (On the other hand it doesn't mean the vehicle
may pass so close behind the pedestrian that the pedestrian could
reverse course and hit the vehicle.)
Of course the practical advice remains, that the easiest course for
the OP is to take the road test again in 5 weeks keeping in mind the
(incorrect, overly) strict interpretations used by examiners.
BTW, IIRC, in Massachusetts a rental car may not be used for a road
test. Besides, the rental agreement wouldn't allow operation by an
unlicensed driver.
OP might well to contract with an auto school for one lesson in
exactly this situation (I've been driving a long time but need to take
the exam, what's it like these days?) and to provide a car and sponsor
for the exam, things they must know very well. Teenagers can afford
auto school; an hour or two isn't all that expensive. (Last time I
did that was when the truck rental place only had standard shifts,
which I did not until that time know how to operate. It cost me $20
right outside NYC, about 30 years ago.)
> > � � � � � � In my state (as in most) vehicles entering a traffic
> >circle must yield to vehicles already in the traffic circle.
>
> The vehicle 'on the right' does -not- have right-of-way, you say?
> *evil grin*
That was exactly the issue in Massachusetts, which had to explicitly
change the rule for rotaries (traffic circles). It's not clear if
there is a yield-to-the-vehicle-on-the-right rule - I ased a cop about
the precidence rules for a particularly gnarly uncontrolled X
intersection (where the usual practice of the more major way having
right of way couldn't be determined) and he told me it was the vehicle
that arrived there first. That's good for a 4-way stop as long as they
don't arrive simultaneously (it forces alternate feed) but didn't help
here. I think it reverted to precedence goes to the driver with the
bigger or more beat-up vehicle, or the driver whose bigger [nerve]
allowed him to win the game of chicken. John F. Carr can correct me,
but a lot of our traffic laws, like a lot of our laws in general, seem
to be common law received from England.
What rule gives the vehicle on the freeway the right of way over the
vehicle on its right entering the freeway?
And doesn't a "No Turns" sign prohibit the entering vehicle not only
from making the acute left turn and going the wrong way, but also from
making the oblique right turn to go in the right direction? (I
thought of that a while. Then I thought first I have to go halfway to
the merge point, then I have to go half the remaining distance, and so
on, so that I'll never actually get to the merge point, so I don't
have to worry about it.)
> In Illinois, for example, for a 'T intersection' -- of which a 'traffic circle'
> is a special case -- the rules are:
>
> � � Sec. 11901.01. Vehicles approaching or entering a "T" intersection.
> � � � � The driver of a vehicle approaching the intersection of a highway from
> � � � � a highway which terminates at the intersection, not otherwise regulated
> � � � � by this Act or controlled by traffic control signs or signals, shall
> � � � � stop, yield, and grant the privilege of immediate use of the inter-
> � � � � section to another vehicle which has entered the intersection from
> � � � � the nonterminating highway or is approaching the intersection on the
> � � � � nonterminating highway in such proximity as to constitute a hazard
> � � � � and after stopping may proceed when the driver may safely enter the
> � � � � intersection without interference or collision with the traffic using
> � � � � the nonterminating highway.
In my neighborhood there is an uncontrolled T intersection -- I don't
know what's incumbent upon the driver entering from the minor side
street.
[reprise]
> Contrast those with the Nevada crosswalk language, -- which explicitly says
> that you must yield to a pedestrian _anywhere_ within the cross-walk. �If they
> had meant to say 'you can't hit them', language such as "in such proximity
> as to be a hazard' could/should have been used to describe _where_ a
> pedestrian -- one that you must yield to -- is to be found.
> > > > proceed in a lawful manner in
> > > > preference to another vehicle or pedestrian approaching under such
> > > > circumstances of direction, speed and proximity as to give rise to
> > > > danger of collision unless one grants precedence to the other.
Strikes me as closer to "proximity" than "co-occupy the same half
crosswalk".
Timothy
wrote:
>
> I don't know what state Seth lives in, but in California, and every
> other state I'm aware of (except New Hampshire, which apparently does
> not have learners' permits), a "learner" can't drive alone, but must
> be accompanied by a licensed driver. �
A bill to require learners permits in NH was killed in the House of
Representatives a few days ago.
Even in NH a learner must be accompanied by a teacher: you just don't
need to get a permit (and you don't need to pass a written test)
before
you begin your on-the-road practice. Even in NH you do need to pass a
test and get a permit before training for the Commercial Drivers
License.
Deadrat
news:hr-801E89.19...@news.supernews.com:
<snip/>
Times have changed, I guess. When I lived in LA close to forty years
ago, this is exactly what happened. Sometimes I'd cross Wilshire Blvd
just to see the traffic stop.
>
> Hamish
>
LDC
wrote:
>Moral: if you are a driver and stopped for Jaywalking, do _not_ show
>the cop your D/L or give him your D/L number. Remember, the law does
>_not_ require you to _show_ ID; it merely requires you to "identify"
>yourself -- that is, to give your correct name and address.
>
>There is, of course, a risk here. The cop might decide you're a "smart
>alec" and take you to the station for further investigation. This
>will not only be highly inconvenient (loss of time, you end up some
>distance from your originally planned path of travel), but when they
>inventory your possessions, they will find the D/L and the Jaywalking
>ticket will end up charged to it anyway.
However being a "smart alec" is not a violation of any law. Nor can
you be taken "to the station for further investigation" without
being placed under arrest, an extremely unlikely event. It would be
interesting to see what the officer would come up with for probable
cause.
Daniel R.Reitman
wrote:
>Yes, and it _is_ a moving violation. That is, if you have a driver's
>license, the "jaywalking" ticket will be a "point" on your license,
>and will show up on the record that is sent to insurance companies.
>
>Moral: if you are a driver and stopped for Jaywalking, do _not_ show
>the cop your D/L or give him your D/L number. Remember, the law does
>_not_ require you to _show_ ID; it merely requires you to "identify"
>yourself -- that is, to give your correct name and address.
>. . . .
Many states do have "show papers" statutes and "obey the cop" statutes
that may apply.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>> Not necessary: before taking the test, I had a Learner's
>>> Permit, so I could legally have driven to the test providing
>>> there was a licensed driver in the car with me.
>I don't know what state Seth lives in, but in California, and every
>other state I'm aware of (except New Hampshire, which apparently does
>not have learners' permits), a "learner" can't drive alone, but must
>be accompanied by a licensed driver. So I suspect Seth's trip to the
>DMV was in violation of the law.
Even though (1) I didn't drive ("could have"), and (2) there was a
licensed driver in the car?
Seth
Seth
John F. Carr <j...@mit.edu> wrote:
>In article <hjpou9$91j$1...@reader1.panix.com>, Seth <se...@panix.com> wrote:
>>In article <6067fc8d-9007-4fdb...@h2g2000yqj.googlegroups.com>,
>>Mike Jacobs <mjaco...@gmail.com> wrote:
>>
>>>In comparison to the entering right-turner, the favored vehicle has
>>>the right to use the ENTIRE width of the favored boulevard, NOT just
>>>the lane he happens to be occupying when the entering motorist sees
>>>him. Th favored driver has the RIGHT to change lanes without
>>>notifying or warning the unfavored driver
>>
>>Isn't there a requirement to signal a lane change?
>
>Probably, but that does not necessarily excuse the unfavored driver.
As I specifically mentioned later in the post. I merely pointed out
that the favored driver lacked the absolute right.
Seth
Stuart A. Bronstein
>>>Isn't there a requirement to signal a lane change?
>>
>>Probably, but that does not necessarily excuse the unfavored
>>driver.
>
> As I specifically mentioned later in the post. I merely pointed
> out that the favored driver lacked the absolute right.
Nobody on the road ever has an absolute right. Remember the last
clear chance doctrine.
Stuart A. Bronstein
>>>> Not necessary: before taking the test, I had a Learner's
>>>> Permit, so I could legally have driven to the test providing
>>>> there was a licensed driver in the car with me.
>
>>I don't know what state Seth lives in, but in California, and
>>every other state I'm aware of (except New Hampshire, which
>>apparently does not have learners' permits), a "learner" can't
>>drive alone, but must be accompanied by a licensed driver. So I
>>suspect Seth's trip to the DMV was in violation of the law.
>
> Even though (1) I didn't drive ("could have"), and (2) there was
> a licensed driver in the car?
You implied that you were alone in the car. Because you could have
gotten to the DMV by having the licensed driver drive you there.
Barry Gold
>On Fri, 29 Jan 2010 21:19:41 +0000 (GMT), bg...@nyx.net (Barry Gold)
>wrote:
>
>>Yes, and it _is_ a moving violation. That is, if you have a driver's
>>license, the "jaywalking" ticket will be a "point" on your license,
>>and will show up on the record that is sent to insurance companies.
>>
>>Moral: if you are a driver and stopped for Jaywalking, do _not_ show
>>the cop your D/L or give him your D/L number. Remember, the law does
>>_not_ require you to _show_ ID; it merely requires you to "identify"
>>yourself -- that is, to give your correct name and address.
>
>>. . . .
>
>Many states do have "show papers" statutes and "obey the cop" statutes
>that may apply.
Except that
1) "Obey the cop" cannot be constitutional unless the cop's order is
lawful. And of course possible to comply with. YOu cannot show the
cop your Drivers License if you don't have one.
2) "Show papers" would IMHO be subject to the same rules as apply to
Terry Stops. That is, a citizen cannot, in the normal course of
events, be required to "show your papers, please".
Now, of course, you shouldn't lie to a cop. Therefore, if the cop
asks to see your D/L, the proper response is, "I'm not driving,
officer, so I don't need a Driver's License." And if he asks for your
state ID, you can respond, "I'm not required to have one, officer."
Note that you have told the exact truth, while dodging the cop's
demand for your D/L. If asked a direct question, e.g., "Do you have a
driver's license?" I think the correct response would be "On advice of
counsel I respectfully refuse to answer."
Mike Jacobs
> On Jan 28, 5:08�pm, Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>
> > >Robert Bonomi and Mike Jacobs suggest that to yield the yielder may
> > >not enter until the person or vehicle with the right of way is not
> > >there at all.
>
> > Speaking only for myself, I was addressing _strictly_ the state of affairs in
> > Nevada.
Speaking for _my_self, the "there" I was talking about was, whatever
that state's law defines as the "protected zone" for the favored user
of the roadway. What its extent might be in a particular situation
is entirely up to state law. However, the general princple of what
"yield right of way" means, as I described it, is something I believe
applies in _all_ YROW situations, including pedestrian crosswalks,
traffic circles, through boulevard/cross street situations, and
freeway merges. That rule being, the unfavored user must do whatever
is necessary (slow down, stop, etc) to avoid penetrating the favored
driver's "protected zone," and the favored user has _no_ legal duty to
stop, slow down, or change course to avoid collision with the
unfavored one.
This has been the "rule of the road" ever since long before cars were
invented - the concept originated with water navigation, was applied
to animal-drawn wagons and bicycles before motor vehicles, and for the
last century or so also applies to aircraft as well.
I am not a NV attorney and do not know NV law any better than anyone
else on MLM who has read this thread, and the statutory sections
quoted therein. All I'm saying is, whatever the authorities in that
jurisdiction say is the "favored zone" for a pedestrian at controlled
intersection, it would behoove OP to comply with that opinion. OP
(and some others) seem to be making this into a black-or-white, right-
or-wrong issue, and it's not - it's a continuum, with the only issue
being HOW BIG the protected zone is. And, that may not necessarily be
specifically stated in the written law; it's also a matter of how that
state's LEOs typically interpret and enforce the law. The examiner
is doing OP a _favor_ if he insists on OP interpreting the law the
same way the NV cops do, ISTM. Otherwise, OP is going to find himself
getting into more confrontations with NV cops when he violates the ROW
of pedestrians (in the cop's opinion).
<snip>
> Note that it says "slowing down or stopping if need be so to yield".
> If they'd meant yielding requires not co-occupying, they could have
> said so. �There is a middle ground between
An interesting thought. Apparently, though, NV simply means that the
duty to slow down or stop applies only if the pedestrian is in the
crosswalk on the near half of the roadway (relative to the motorist)
at an uncontrolled intersection and has no duty to do either of those
things if the pedestrian is on the far half.
<snip NV statute where ROW is defined>
> �It's a little circular, but seems to say "Don't do what makes a
> collision [more?] possible".
Not at all. What it says is, in a situation where a collision IS
possible if neither vehicle takes action (something NOT defined in
statute, but which all users of the highway, airway, or shipping lanes
are supposed to recognize by common sense and application of Newtonian
physics, given each objects' current direction and speed of travel),
then the law WILL (in other sections) define WHICH user of the way
must give precedence to the other, to avoid an "After you, Alphonse /
NO, after you, Gaston" situation (which exchange of courtesies was
always followed, in their shtick, by both comedians trying to squeeze
through a narrow doorway at once).
> When I did air traffic software, we
> assumed planes flew at less than Mach 2 to detect potential hazards.
> Similarly one may assume pedestrian speeds.
Of course. The human mind, in its role as an athlete or motorist or
even merely while controlling the act of walking, is a finely tuned
kinesthetic computer that can solve complex equations of time/speed/
distance over curving paths (e.g. ballistics of a thrown object) with
amazing accuracy, to predict, or avoid, collisions based on visual and
other cues - your airways controller software was simply a substitute
for that natural capacity in situations where the conflicting traffic
is so far apart (due to its speeds) that the human pilots can't see
each other to avoid the other, until they get so close that the danger
of collision is too great. Motorists as well as pedestrians are
expected by the law to use that brain they have, and it's not up to
the law to define the physical equations they must use to recognize an
impending danger of collision.
> Even if we allow the
> pedestrian to reverse course and sprint in that direction, a vehicle
> can co-occupy the same half-crosswalk and pass through it without the
> danger of a collision. �(On the other hand it doesn't mean the vehicle
> may pass so close behind the pedestrian that the pedestrian could
> reverse course and hit the vehicle.)
In MA and many other places, perhaps that is the rule. But OP's
examiner told him the rule in NV is that pedestrians have "curb-to-
curb" ROW in controlled crosswalks when they have the green "walk"
signal in their favor. Nothing anyone has said so far gives me any
reason to doubt the examiner was honestly stating how NV authorities
interpret their ROW law.
> �Of course the practical advice remains, that the easiest course for
> the OP is to take the road test again in 5 weeks keeping in mind the
> (incorrect, overly) strict interpretations used by examiners.
Bizactly.
> �BTW, IIRC, in Massachusetts a rental car may not be used for a road
> test.
That's interesting. Wonder why. Are you saying it's actually
prohibited by law, or merely that....
> Besides, the rental agreement wouldn't allow operation by an
> unlicensed driver.
That makes more sense. Not that I'm doubting your statement that
it's also against the law, but here again we have an example of an
irrational statute that nobody seems to know the reason behind.
> OP might well to contract with an auto school for one lesson in
> exactly this situation
Excellent advice.
> > > � � � � � � In my state (as in most) vehicles entering a traffic
> > >circle must yield to vehicles already in the traffic circle.
Either because they have enacted a special statute to clue in people
unfamiliar with traffic circles on how they work, _or_ as a particular
application of the general ROW rules applicable to T intersections.
> > The vehicle 'on the right' does -not- have right-of-way, you say?
> > *evil grin*
The "yield to the vehicle on the right" situation _only_ applies where
_both_ vehicles arrive at an uncontrolled X-intersection (with no
yield _or_ stop signs indicating which roadway is the favored through
boulevard, and no operating signals) close enough in time and distance
and speed that they would likely collide if one of them did not
yield. Otherwise, the first one there proceeds through first, since
there is no conflict. And, at OTHER kinds of intersections,
different rules apply. A traffic circle is, as someone else mentioned
earlier on this thread, merely a special example of a T intersection
where the traffic on the favored, "through" roadway (the circle) is
all one-way, and so all traffic wanting to enter the favored roadway
from the intersecting roadway that dead-ends at the favored roadway,
must yield to traffic that is already on the favored roadway.
> �That was exactly the issue in Massachusetts, which had to explicitly
> change the rule for rotaries (traffic circles).
Only if their "yield to the vehicle on the right" statute had been
poorly worded. Or, only if too many MA motorists had been mis-
applying the law and needed it spelled out how the ROW rule applies in
that particular situation. Otherwise, generally applicable ROW law
would be enough to cover the duties of both motorists in that
situation.
> It's not clear if
> there is a yield-to-the-vehicle-on-the-right rule - I ased a cop about
> the precidence rules for a particularly gnarly uncontrolled X
> intersection (where the usual practice of the more major way having
> right of way couldn't be determined) and he told me it was the vehicle
> that arrived there first. That's good for a 4-way stop as long as they
> don't arrive simultaneously (it forces alternate feed) but didn't help
> here. I think it reverted to precedence goes to the driver with the
> bigger or more beat-up vehicle, or the driver whose bigger [nerve]
> allowed him to win the game of chicken.
David, now you are simply describing what I have always understood to
be the no-holds-barred, law-of-the-jungle aggressiveness of MA
drivers. Of course, driving in Boston is no contest compared to
driving in Rome, where one may run out of gas or starve to death
(whichever comes first) driving around and around in the rotary
surrounding the Colosseum before any Roman drivers would get out of
your way to let you exit, unless you bull your way through, but I
digress).
>�John F. Carr can correct me,
> but a lot of our traffic laws, like a lot of our laws in general, seem
> to be common law received from England.
The "rules of the road" originated in Admiralty law, as noted above.
AFAIK this is not merely a concept of English common law, but of
international law, given that harbors and bays have always had
shipping traffic from many nations intermingling in them. We can't
have captains of boats from one country thinking that the applicable
rule is one way, while boats from another country are thinking it is
the opposite way, without increasing the risk of collision. So, the
"yield to the vessel approaching from your right" rule has been the
"rule of the road" from time immemorial, on navigable waterways.
> �What rule gives the vehicle on the freeway the right of way over the
> vehicle on its right entering the freeway?
Most states have special rules applicable to limited access highways,
giving the vehicles already established in the through lanes of such
roads precedence over those attempting to enter the roadway. It also
could be merely a special application of the "boulevard rule" in those
states which recognize such a rule.
It is also a recognition that the vehicle already on the freeway is
moving faster, and is more constrained in its ability to maneuver or
stop because of the risk of a rear-end collision by following traffic,
since the whole point of the limited-access scheme is to expedite the
flow of traffic and keep the vehicles in the though lanes _moving_ at
"highway speed" as much as possible. Thus, it is to everyone's
benefit, including that of the person trying to enter the roadway, if
the law grants precedence to vehicles already upon the through roadway
over those on the entrance lanes.
> �And doesn't a "No Turns" sign prohibit the entering vehicle not only
> from making the acute left turn and going the wrong way, but also from
> making the oblique right turn to go in the right direction?
Huh? Where do they have such signs (what jurisdiction / what road
situation)?
Unable to comment on whether this sign is sensible or stupid without
more info.
>�(I
> thought of that a while. Then I thought first I have to go halfway to
> the merge point, then I have to go half the remaining distance, and so
> on, so that I'll never actually get to the merge point, so I don't
> have to worry about it.)
You lost me there, Xeno. ISTM the "no turns" sign, whether or not it
makes sense, would have nothing to do with whether Achilles eventually
passes the tortoise.
> > In Illinois, for example, for a 'T intersection' -- of which a 'traffic circle'
> > is a special case -- the rules are:
<snip>
> �In my neighborhood there is an uncontrolled T intersection -- I don't
> know what's incumbent upon the driver entering from the minor side
> street.
Are you simply admitting your ignorance, David, or are you saying you
think MA has _no_ statutory law controlling that situation? I would
bet MA law is very similar to IL's here.
Seth
Daniel R.Reitman <drei...@spiritone.com> wrote:
>Many states do have "show papers" statutes and "obey the cop" statutes
>that may apply.
The Supreme Court says they don't; the requirement is to "identify
yourself". In the US, you aren't required to carry any identifying
papers, and failing to have them is not a crime.
Seth
Deadrat
news:6qb9m5hom2cib8mup...@4ax.com:
> On Fri, 29 Jan 2010 21:19:41 +0000 (GMT), bg...@nyx.net (Barry Gold)
> wrote:
>
>>Yes, and it _is_ a moving violation. That is, if you have a driver's
>>license, the "jaywalking" ticket will be a "point" on your license,
>>and will show up on the record that is sent to insurance companies.
>>
>>Moral: if you are a driver and stopped for Jaywalking, do _not_ show
>>the cop your D/L or give him your D/L number. Remember, the law does
>>_not_ require you to _show_ ID; it merely requires you to "identify"
>>yourself -- that is, to give your correct name and address.
>
>>. . . .
>
> Many states do have "show papers" statutes
About half have "stop and identify statutes." Under Hiibel v Sixth
Judicial District Court of Nevada, 542US177 (2004), you have to state your
name but you can't be forced to produce identification. Of course, this
doesn't apply if you're driving on public roads. If you're asked for your
DL, then the law requires that you show it.
> and "obey the cop" statutes that may apply.
The law can't demand that you obey a cop who demands something that
violates your Constitutional rights.
> Daniel Reitman
<snip/>
dumb_fishie99
> In MA and many other places, perhaps that is the rule. � But OP's
> examiner told him the rule in NV is that pedestrians have "curb-to-
> curb" ROW in controlled crosswalks when they have the green "walk"
> signal in their favor. � Nothing anyone has said so far gives me any
> reason to doubt the examiner was honestly stating how NV authorities
> interpret their ROW law.
No, the examiner did not say that the rule in NV is that pedestrians
have
"curb-to-curb" ROW in controlled crosswalks when they have the green
"walk" signal in their favor. She merely applied the curb-to-curb
rule
to an intersection with working lights, and said nothing about working
lights or no working lights.
I never said that the examiner said that - where did you get that
idea?
If I'm recalling correctly, you're the one that said I didn't even
specify
whether it was a right or left turn. If you go back to the beginning
you
will see that I did. Did you forget, or did you not read it?
I managed to find the friendly public face of the DMV, and they said
my question about NRS 484.325 number 1 is out of their purview,
and referred me to the State Bicycle and Pedestrian Coordinator
of the DOT. Apparently they are out bicycling or something, so I
will continue to try.
I didn't even get blacklisted by the DMV for asking, imagine that!
Yes I will go find a driving instructor to help me prepare, good
suggestion.
Robert Bonomi
"Details count". Seth would _NOT_ have been in violation. I commend
to your attention the trailing clause on his statement -- starting
with the word 'providing'. <grin>
I would give odds, however, that the licensed driver would have had to
occupy the front seat, while the 'learner' was at the controls.
dumb_fishie99
that I was talking about a right turn. My apologies.
Robert Bonomi
David Chesler <che...@post.harvard.edu> wrote:
>On Jan 28, 5:08�pm, Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>> In article <ea587e39-31cd-4a40-b603-1890fbad7...@b35g2000vbc.googlegroups.com>,
>> David Chesler �<che...@post.harvard.edu> wrote:
>>
>> >Robert Bonomi and Mike Jacobs suggest that to yield the yielder may
>> >not enter until the person or vehicle with the right of way is not
>> >there at all.
>>
>
>that yielding requires not being in any part of the crosswalk at the
>same time that the pedestrian is in any part of the crosswalk (the
>same crosswalk on the same half of the highway, etc -- not any
>crosswalk in the state of Nevada.)
Re-read the NV statute for intersections _with_ traffic-control devices.
It was quoted in a prior message. (NRS 484.283 (2) (a))
BTW, Mass. law on the subject is even more explicit: no motor vehicle shall
"enter a marked crosswalk while a pedestrian is crossing ". (M.G.L. 89-11,
para 2.)
> The quoted inapplicable (because it this intersection was controlled)
>statutes say in part:
[.. sneck ..]
>Note that it says "slowing down or stopping if need be so to yield".
>If they'd meant yielding requires not co-occupying, they could have
>said so.
That statute is, as you say, is irrelevant to the situation under discussion.
The _relevant_ NV statute, quoted previously, uses significantly =different=
language.
>Robert Bonomi further said:
>>>>>> It _does_ say so. 'Yield' does -not- mean just "avoid hitting them", as
>>>>>> you apparently believe. It means you =wait= until they are _out_of_ the
>>>>>> area where you must yield to them. *COMPLETELY* out of it, not just 'not
>>>>>> blocking your way'.
>
>
>OP had quoted:
>> > > > "NRS 484.141 �Right-of-way� defined. �Right-of-way� means the right
>> > > > of one vehicle or pedestrian to proceed in a lawful manner in
>> > > > preference to another vehicle or pedestrian approaching under such
>> > > > circumstances of direction, speed and proximity as to give rise to
>> > > > danger of collision unless one grants precedence to the other.
>
> It's a little circular, but seems to say "Don't do what makes a
>collision [more?] possible". When I did air traffic software, we
>assumed planes flew at less than Mach 2 to detect potential hazards.
>Similarly one may assume pedestrian speeds. Even if we allow the
>pedestrian to reverse course and sprint in that direction, a vehicle
>can co-occupy the same half-crosswalk and pass through it without the
>danger of a collision. (On the other hand it doesn't mean the vehicle
>may pass so close behind the pedestrian that the pedestrian could
>reverse course and hit the vehicle.)
Again, see the "more specific" language in NV statute regarding controlled
intersections.
>> > � � � � � � In my state (as in most) vehicles entering a traffic
>> >circle must yield to vehicles already in the traffic circle.
>>
>> The vehicle 'on the right' does -not- have right-of-way, you say?
>> *evil grin*
>
> That was exactly the issue in Massachusetts, which had to explicitly
>change the rule for rotaries (traffic circles). It's not clear if
>the precidence rules
That is just one more example of why the jurisdiction _is_ important.
In Illinois, for example, there _is_ an explicit 'vehicle on the right
has right-of-way' rule. Which governs unless one of the other situations
itemized in the statute applies, _or_ there is explicit signage.
> for a particularly gnarly uncontrolled X
>intersection (where the usual practice of the more major way having
>right of way couldn't be determined)
For that to apply, per M.G.L. 89-9, there must be signage posted, requiring
the cross-traffic to yield.
> and he told me it was the vehicle
>that arrived there first. That's good for a 4-way stop as long as they
>that arrived there first. That's good for a 4-way stop as long as they
>don't arrive simultaneously (it forces alternate feed) but didn't help
>here.
See: <http://www.mass.gov/legis/laws/mgl/89-8.htm>
> I think it reverted to precedence goes to the driver with the
>bigger or more beat-up vehicle, or the driver whose bigger [nerve]
>allowed him to win the game of chicken. John F. Carr can correct me,
>but a lot of our traffic laws, like a lot of our laws in general, seem
>to be common law received from England.
>
> What rule gives the vehicle on the freeway the right of way over the
>vehicle on its right entering the freeway?
Mass. has an explicit 'vehicle on the right has right-of-way' in statute
(M.G.L. 89-8, para 1), subject to the over-rides that follow in that para.
89-9 would seem to cover the freeway merge situation _postulating_ that
there are yield signs posted on the on-ramp, as required,
>
> And doesn't a "No Turns" sign prohibit the entering vehicle not only
>from making the acute left turn and going the wrong way, but also from
>making the oblique right turn to go in the right direction? (I
>thought of that a while. Then I thought first I have to go halfway to
>the merge point, then I have to go half the remaining distance, and so
>on, so that I'll never actually get to the merge point, so I don't
>have to worry about it.)
Where is such a sign posted? if it is where two roadways *merge*, then
you are prohibited in going other than the 'merged' direction.
>
>> In Illinois, for example, for a 'T intersection' -- of which a 'traffic circle'
>> is a special case -- the rules are:
>>
>> � � Sec. 11901.01. Vehicles approaching or entering a "T" intersection.
>> � � � � The driver of a vehicle approaching the intersection of a highway from
>> � � � � a highway which terminates at the intersection, not otherwise regulated
>> � � � � by this Act or controlled by traffic control signs or signals, shall
>> � � � � stop, yield, and grant the privilege of immediate use of the inter-
>> � � � � section to another vehicle which has entered the intersection from
>> � � � � the nonterminating highway or is approaching the intersection on the
>> � � � � nonterminating highway in such proximity as to constitute a hazard
>> � � � � and after stopping may proceed when the driver may safely enter the
>> � � � � intersection without interference or collision with the traffic using
>> � � � � the nonterminating highway.
>
> In my neighborhood there is an uncontrolled T intersection -- I don't
>know what's incumbent upon the driver entering from the minor side
>street.
MGL doesn't seem to make any distinction for that situation, *assuming*
no yield signage -- left turning vehicle has to yield to other traffic,
otherwise first-come first-serve -- if simultaneous arrival, right-hand
vehicle has right-of-way.
Aside: I'm -not- impressed with M.G.L. 89 -- there are a -lot- of things
that do not seem to be covered. Maybe there is another relevant chapter
I'm missing (some stuff seems to be scattered in chap. 90)
>
>[reprise]
>> Contrast those with the Nevada crosswalk language, -- which explicitly says
>> that you must yield to a pedestrian _anywhere_ within the cross-walk. �If they
>> had meant to say 'you can't hit them', language such as "in such proximity
>> as to be a hazard' could/should have been used to describe _where_ a
>> pedestrian -- one that you must yield to -- is to be found.
>
>> > > > proceed in a lawful manner in
>> > > > preference to another vehicle or pedestrian approaching under such
>> > > > circumstances of direction, speed and proximity as to give rise to
>> > > > danger of collision unless one grants precedence to the other.
>
> Strikes me as closer to "proximity" than "co-occupy the same half
>crosswalk".
I say again, see the _explicit_ language in the NV statute regarding pedestrian
traffic in a crosswalk at a controlled intersection.` You are quoting the
general Right-of-way statute.`
Robert Bonomi
Mike Jacobs <mjaco...@gmail.com> wrote:
>
....
>In MA and many other places, perhaps that is the rule.
Mass M.G.L. 89-11 says, in part: "... nor shall any such operator enter a marked
crosswalk while a pedestrian is crossing ..."
That looks to me like an even _more_ explicit curb-to-curb prohibition than
the NV statute.
> But OP's
>examiner told him the rule in NV is that pedestrians have "curb-to-
>curb" ROW in controlled crosswalks when they have the green "walk"
>signal in their favor. Nothing anyone has said so far gives me any
>reason to doubt the examiner was honestly stating how NV authorities
>interpret their ROW law.
>
....
>
>Either because they have enacted a special statute to clue in people
>unfamiliar with traffic circles on how they work, _or_ as a particular
>application of the general ROW rules applicable to T intersections.
>
>> > The vehicle 'on the right' does -not- have right-of-way, you say?
>> > *evil grin*
>
>The "yield to the vehicle on the right" situation _only_ applies where
>_both_ vehicles arrive at an uncontrolled X-intersection
"Not necessarily." This is another thing that does vary by jurisdiction.
Mass., for example does -not- have anything in their rules of the road
(M.G.L. chap. 89) regarding 'T' intersections. They are, apparently,
statutorily identical to 'any other' intersection.
> (with no
>yield _or_ stop signs indicating which roadway is the favored through
>boulevard, and no operating signals) close enough in time and distance
>and speed that they would likely collide if one of them did not
>yield. Otherwise, the first one there proceeds through first, since
>there is no conflict. And, at OTHER kinds of intersections,
>different rules apply. A traffic circle is, as someone else mentioned
>earlier on this thread,
That someone was me, the party dangling that shiny piece of metal you bit on. :)
> merely a special example of a T intersection
>where the traffic on the favored, "through" roadway (the circle) is
>all one-way, and so all traffic wanting to enter the favored roadway
>from the intersecting roadway that dead-ends at the favored roadway,
>must yield to traffic that is already on the favored roadway.
>
>> �That was exactly the issue in Massachusetts, which had to explicitly
>> change the rule for rotaries (traffic circles).
>
>Only if their "yield to the vehicle on the right" statute had been
>poorly worded. Or, only if too many MA motorists had been mis-
>applying the law and needed it spelled out how the ROW rule applies in
>that particular situation. Otherwise, generally applicable ROW law
>would be enough to cover the duties of both motorists in that
>situation.
M.G.L. chap. 89 _is_ very limited. It currently contains specific language
for rotaries/traffic-circles. There is -no- other language in chap 89 that
would cover a traffic-circle that did not have traffic-control signage of
some sort -- e.g. a stop or yield sign at each entrance to the circle.
>> It's not clear if
>> there is a yield-to-the-vehicle-on-the-right rule
Note to prior poster -- it *is* very clearly spelled out in the beginning of
M.G.L. 89-8, para 1.
>
>>�John F. Carr can correct me,
>> but a lot of our traffic laws, like a lot of our laws in general, seem
>> to be common law received from England.
>
>The "rules of the road" originated in Admiralty law, as noted above.
>AFAIK this is not merely a concept of English common law, but of
>international law, given that harbors and bays have always had
>shipping traffic from many nations intermingling in them. We can't
>have captains of boats from one country thinking that the applicable
>rule is one way, while boats from another country are thinking it is
>the opposite way, without increasing the risk of collision. So, the
>"yield to the vessel approaching from your right" rule has been the
>"rule of the road" from time immemorial, on navigable waterways.
And, of course, the waterway rule isn't that simple anymore. <*grin*>
Craft under sail have right-of-way over motorized ones.
I'm not sure where watercraft propelled by oars fit in. :)
And, IIRC, there are some special considerations for amphibious aircraft
during a take-off or landing. (normal maritime rules _do_ apply while
they're 'taxi-ing', as it were.)
>
>> �What rule gives the vehicle on the freeway the right of way over the
>> vehicle on its right entering the freeway?
>
>Most states have special rules applicable to limited access highways,
>giving the vehicles already established in the through lanes of such
>roads precedence over those attempting to enter the roadway. It also
>could be merely a special application of the "boulevard rule" in those
>states which recognize such a rule.
Mass doesn't appear to have any such rules -- either limited access highways,
or 'boulevard rule'. It looks like yield signs have to be posted towards
the end of every on-ramp.
>
>It is also a recognition that the vehicle already on the freeway is
>moving faster, and is more constrained in its ability to maneuver or
>stop because of the risk of a rear-end collision by following traffic,
>since the whole point of the limited-access scheme is to expedite the
>flow of traffic and keep the vehicles in the though lanes _moving_ at
>"highway speed" as much as possible. Thus, it is to everyone's
>benefit, including that of the person trying to enter the roadway, if
>the law grants precedence to vehicles already upon the through roadway
>over those on the entrance lanes.
"Yahbut" applies. There doesn't appear to be any such provision in Mass
statute. <wry grin>
>> > In Illinois, for example, for a 'T intersection' -- of which a 'traffic circle'
>> > is a special case -- the rules are:
><snip>
>
>> �In my neighborhood there is an uncontrolled T intersection -- I don't
>> know what's incumbent upon the driver entering from the minor side
>> street.
>
>Are you simply admitting your ignorance, David, or are you saying you
>think MA has _no_ statutory law controlling that situation? I would
>bet MA law is very similar to IL's here.
You lose. <grin> Mass state statute says -zilch- about T intersections.
Apparently they are just 'one side short' of a regular intersection.
M.G.L. chap 89 'rules of the road' is woefully silent on a _lot_ of things
that many people would expect to be there. Some of it is mixed in in
chap. 90 'motor vehicles and aircraft', but -that- chapter is a mostly
administrative stuff -- licensing, equipment standards, etc, -- with a
bit of 'operational' stuff -- seat belts, drunk driving, reckless driving,
etc. -- mixed in in seemingly random locations.
Mike Jacobs
> On Jan 31, 9:22 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > In MA and many other places, perhaps that is the rule. But OP's
> > examiner told him the rule in NV is that pedestrians have "curb-to-
> > curb" ROW in controlled crosswalks when they have the green "walk"
> > signal in their favor. Nothing anyone has said so far gives me any
> > reason to doubt the examiner was honestly stating how NV authorities
> > interpret their ROW law.
>
> No, the examiner did not say that �the rule in NV is that pedestrians
> have
> "curb-to-curb" ROW in controlled crosswalks when they have the green
> "walk" signal in their favor. � She merely applied the curb-to-curb
> rule
> to an intersection with working lights,
Right. She _applied_ the general rule to the _particular_
intersection where this happened. I imagine she said something to
the effect of, "Pedestrians have curb-to-curb ROW _here_." with "here"
meaning _where_you_were_ at the time she failed you. In your OP, you
said that was an intersection that had "all the usual lights
everywhere ... for both vehicle traffic and pedestrians...." I
wasn't quoting the examiner as _saying_ the curb-to-curb rule applies
_only_ at intersections with green "walk" signals; but I was not
_assuming_ that she meant the rule to apply any more broadly than at
the exact type of intersection where you made your right-turn-on-green
behind a retreating pedestrian.
I _was_ assuming, however, that you made your turn on "green," and
that the pedestrian also had a "green" signal in his favor - either a
"walk" sign, which you said +did+ exist at that particular corner, or
the general, circular green light which, in the absence of a specific
"walk/don't walk" signal, would apply to _all_ traffic going in that
direction. Surely you do not intend to suggest the pedestrian would
have had the ROW, if he were crossing _against_ the light, with an
applicable "red" signal facing the pedestrian? No one here has
argued _that_.
> and said nothing about working lights or no working lights.
Regardless of what she _said_, you were _at_ an intersection with "all
the usual" working lights when this happened. I was limiting my
comments to _that_ type of intersection although it is quite possible
the rule your examiner stated would apply in other, less-well-
controlled situations as well - but not at a _completely_ uncontrolled
intersection, which is the _only_ thing that subsection (1) you
originally quoted applies to.
> I never said that the examiner said that - where did you get that
> idea?
I didn't put quote marks around anything in my sentence you take issue
with - I was paraphrasing you both, and also putting 2 + 2 together
from the layout of the scene where this occurred as well, not using
her exact words. The place where you got busted was, according to
you, an intersection with "all the usual lights everywhere ... for
both vehicle traffic and pedestrians...." which, I assumed, would
include having a green "walk" signal in favor of the pedestrians at
the time you got busted.
> If I'm recalling correctly, you're the one that said I didn't even
> specify
> whether it was a right or left turn.
Not me. I knew you said it was a right turn, at the beginning of
your second paragraph of your OP.
>�If you go back to the beginning you
> will see that I did. � Did you forget, or did you not read it?
No need to be snippy. We're all trying to help you understand why
this happened so you can avoid it next time, not dump on you for no
reason.
> I managed to find the friendly public face of the DMV, and they said
> my question about NRS 484.325 number 1 is out of their purview,
> and referred me to the State Bicycle and Pedestrian Coordinator
> of the DOT. Apparently they are out bicycling or something, so I
> will �continue to try.
Good idea.
> I didn't even get blacklisted by the DMV for asking, imagine that!
No, of course not. "No harm in asking" (politely), as I always say.
But, in the above sentence and at a couple of other places in this
latest reply post, I can still see that chip on your shoulder that was
there in your OP. All I was suggesting, with my original "blacklist"
comment, was that any DMV clerk who dealt with you for any length of
time would probably see that chip there too, unless you've done
something to get rid of it in the meantime - and the DMV clerks have
_plenty_ of discretionary power to make your life miserable if the one
you are dealing with decides you are being a horse's ass. The best
way to avoid that is, don't be a horse's ass when you are dealing with
the DMV.
> Yes I will go find a driving instructor to help me prepare, good
> suggestion.
That was David Chesler's suggestion, which I agreed was a good idea.
Glad you also agree. What matters is not only the letter of the law,
but how the local authorities are currently interpreting it. It's
quite possible that, in the years since you first took the driving
exam, the official interpretation has changed even if the written
language of the statute has stayed the same. We could all use a
refresher course from time to time.
David Chesler
> On Jan 30, 11:44 am, David Chesler <ches...@post.harvard.edu> wrote:
> I am not a NV attorney and do not know NV law any better than anyone
> else on MLM who has read this thread, and the statutory sections
> quoted therein. All I'm saying is, whatever the authorities in that
> jurisdiction say is the "favored zone" for a pedestrian at controlled
> intersection, it would behoove OP to comply with that opinion. OP
> (and some others) seem to be making this into a black-or-white, right-
> or-wrong issue, and it's not - it's a continuum, with the only issue
> being HOW BIG the protected zone is.
There are several zones:
The zone where the pedestrian has the right of way - the entire
crosswalk.
The zones where a collision has or will occur - a point. Better not
be here. Favored pedestrian or vehicle should try not to be there.
The zone where if the unfavored vehicle is, the favored must take
evasive action. Being there is right out.
The zone where there will only be a collision if the favored does
something unexpected. Most drivers go there, but they're violating
YROW if they do.
The zone we're discussing, whose boundary is somewhere between just
outside where the favored could cause a contention and a statutory
zone that might be the entire crosswalk.
The zone we're discussing, which is the bound somewhere between
> And, that may not necessarily be
> specifically stated in the written law; it's also a matter of how that
> state's LEOs typically interpret and enforce the law. The examiner
> is doing OP a _favor_ if he insists on OP interpreting the law the
> same way the NV cops do, ISTM. Otherwise, OP is going to find himself
> getting into more confrontations with NV cops when he violates the ROW
> of pedestrians (in the cop's opinion).
Weak analogy: I might lose points on a job interview for a bad suit,
even if the dress code for employees is only business casual. And if I
wear a suit to work everyday, my co-workers will think it odd (just as
motorists behind me will think it odd, or annoying, if I drive as
cautiously most of the time as I would on a road test. Traffic
wouldn't flow if everyone drove the posted speed limit.)
> > When I did air traffic software,
> Of course. The human mind, in its role as an athlete or motorist or
> even merely while controlling the act of walking, is a finely tuned
> kinesthetic computer that can solve complex equations of time/speed/
> distance over curving paths
Off-topic, but this was our frustration. One of the domain experts
(Aero Engineers) told me his professor said a sparrow with a brain the
size of a pea can time its wing flappings, on a curved path, to fly
through a chain link fence better than the best software.
> Motorists as well as pedestrians are
> expected by the law to use that brain they have, and it's not up to
> the law to define the physical equations they must use to recognize an
> impending danger of collision.
Have we just switched sides? Because the statutes seem to define a
zone that includes the margin of safety.
> > That was exactly the issue in Massachusetts, which had to explicitly
> > change the rule for rotaries (traffic circles).
>
> Only if their "yield to the vehicle on the right" statute had been
> poorly worded. Or, only if too many MA motorists had been mis-
> applying the law and needed it spelled out how the ROW rule applies in
> that particular situation. Otherwise, generally applicable ROW law
> would be enough to cover the duties of both motorists in that
> situation.
From other bits it seems you hold that the "boulevard rule" is
generally applicable. That does not seem to be the case.
>
> > It's not clear if
> > there is a yield-to-the-vehicle-on-the-right rule - I ased a cop about
> > the precidence rules for a particularly gnarly uncontrolled X
> > intersection (where the usual practice of the more major way having
> > right of way couldn't be determined) and he told me it was the vehicle
> > that arrived there first. That's good for a 4-way stop as long as they
> > don't arrive simultaneously (it forces alternate feed) but didn't help
> > here. I think it reverted to precedence goes to the driver with the
> > bigger or more beat-up vehicle, or the driver whose bigger [nerve]
> > allowed him to win the game of chicken.
>
> David, now you are simply describing what I have always understood to
> be the no-holds-barred, law-of-the-jungle aggressiveness of MA
> drivers. Of course, driving in Boston is no contest compared to
> driving in Rome, where one may run out of gas or starve to death
> (whichever comes first) driving around and around in the rotary
> surrounding the Colosseum before any Roman drivers would get out of
> your way to let you exit, unless you bull your way through, but I
> digress).
It's not aggressive, it's just a different set of rules. (New York
drivers are aggressive. They will cut you off because they can. I've
found Boston drivers are completely willing to yield in various
circumstances like allowing someone to turn left in front of them, or
at a particular intersection known simply as The Cloverleaf there is
an almost choreographed move in lieu of a proper C/D lane, where
vehicles entering and moving from the acceleration lane to the first
travel lane alternate with vehicles preparing to exit.) (I see your
digression and raise.)
In any case the issue for this intersecton (and it wasn't a right-
angle) was that the boulevard rule (whether or not it's law) doesn't
apply. Go through in order doesn't help when it's such a long
intersection. The cop I asked wasn't even concerned with the tie-break
yield to the right, he thought the first-there rule was enough.
>> And doesn't a "No Turns" sign prohibit the entering vehicle not only
>> from making the acute left turn and going the wrong way, but also from
>> making the oblique right turn to go in the right direction?
>
>Huh? Where do they have such signs (what jurisdiction / what road
>situation)?
They are common here in two situations: where an entrance ramp meets
the freeway, and where the street-grade ramp (the one that puts
traffic making a right turn into its own roadway for a few dozen
yards) meets the street turned onto. It means when you get to the
freeway you've got to keep going in this direction, it's one way so
you can't make a left and go back in the wrong way. But especially at
the street-grade you're making either a 45 degree turn or a 135 degree
turn. (I asked in a local transporation forum if a right turn on red
is allowed when the ramp has its own signal.)
>> In my neighborhood there is an uncontrolled T intersection -- I don't
>> know what's incumbent upon the driver entering from the minor side
>> street.
>
>Are you simply admitting your ignorance, David, or are you saying you
>think MA has _no_ statutory law controlling that situation? I would
>bet MA law is very similar to IL's here.
My ignorance is vast and its full potential is yet to be tapped. I
don't know what law controls that case. I didn't find the boulevard
rule, and other haven't found the analog of the Illinois T-
intersection rule.
Later in the thread, on February 1, Robert Bonomi said
(alluding to Stuart Bronstein, who had posted:
} For example section 484.283 says,
}
} "Vehicular traffic facing the signal may proceed straight through
} or turn right or left unless another device at the place prohibits
} either or both such turns. Such vehicular traffic, including
} vehicles turning right or left, must yield the right-of-way to
} other vehicles and to pedestrians lawfully within the intersection
} or an adjacent crosswalk at the time the signal is exhibited."
}
} Sounds to me like it means you must not turn right as long as
} someone is in the crosswalk.
)
] > I agree that the driver must yield to such a pedestrian. I
disagree
] >that yielding requires not being in any part of the crosswalk at
the
] >same time that the pedestrian is in any part of the crosswalk (the
] >same crosswalk on the same half of the highway, etc -- not any
] >crosswalk in the state of Nevada.)
]
] Re-read the NV statute for intersections _with_ traffic-control
devices.
] It was quoted in a prior message. (NRS 484.283 (2) (a))
And I still don't see it that way. The operator must yield, but this
doesn't spell out that yield means "Don't enter the crosswalk anywhere
while there is a pedestrian in it."
] BTW, Mass. law on the subject is even more explicit: no motor
vehicle shall
] "enter a marked crosswalk while a pedestrian is crossing ". (M.G.L.
89-11,
] para 2.)
I had to re-read that. The full sentence says "No driver of a vehicle
shall pass any other vehicle which has stopped at a marked crosswalk
to permit a pedestrian to cross, nor shall any such operator enter a
marked crosswalk while a pedestrian is crossing..." (the rest is about
gridlocking). All I can read the first clause, that you omitted, as
saying is you can't pass that vehicle even after the pedestrian is
long gone. I thought it was just about following the judgement of the
first operator who stopped (since once the pedestrian sees that a
vehicle has stopped, the pedestrian is more likely to walk, and the
sight-lines are reduced by that stopped vehicle. We don't want to
force the pedestrian to step out from the far side of a car and get
hit by passing traffic). But I concede the second clause does say
exactly what you've been saying is the correct interpretation of the
Nevada rules.
] Mass. has an explicit 'vehicle on the right has right-of-way' in
statute
] (M.G.L. 89-8, para 1), subject to the over-rides that follow in that
para.
One listed exception being rotaries. Rotaries however aren't defined
there. There are degenerate cases. I know of one (Cozza Circle -
Alewife Brook Parkway and Powder House Blvd, Somerville - and they may
have added yield signs to make it not a rotary since it was part of my
commute ten years ago) where most drivers would be unaware that it's a
rotary, and almost all the traffic is through going. Very little takes
advantage of the rotary to make a left turn onto what would otherwise
be a street that ends at the parkway. One the other hand there is
another (Woodland Rd/Pond St, Stoneham) that sure looks like a rotary
(though the straight-through paths have two lanes) but it's treated as
a left turn must yield to oncoming, straight-going traffic situation
(which is another listed exception.)
] 89-9 would seem to cover the freeway merge situation _postulating_
that
] there are yield signs posted on the on-ramp, as required,
Where they say "state highway" and "through way" those are
designations that apply at least as much to streets as to freeways.
The later bits of 89-9 say you've got to stop at a stop sign, and
yield at a yield sign, and explain that that means. (There is no
applicability to crosswalks, but there is other stuff including about
collisions at yield signs, but not at stop signs, have a look.) So
here is a situation where the state or municipality may but up stop or
yield signs. It's not the only such places. And it's the signs that
control, not the boulevardiness of the through way.
]> ... "No Turns" ...
] Where is such a sign posted? if it is where two roadways *merge*,
then
] you are prohibited in going other than the 'merged' direction.
By the sign? Or by fundamental common sense? Signs that indicate
"Merge ahead, and this side is preferred/non-preferred" are useful. A
"No Turns" sign meaning the same thing is less useful.
] > In my neighborhood there is an uncontrolled T intersection -- I
don't
] >know what's incumbent upon the driver entering from the minor side
] >street.
]
] MGL doesn't seem to make any distinction for that situation,
*assuming*
] no yield signage -- left turning vehicle has to yield to other
traffic,
] otherwise first-come first-serve -- if simultaneous arrival, right-
hand
] vehicle has right-of-way.
It's completely uncontrolled. No lights, no stop sign, no yield sign.
Are you sure left-turners have to yield to all traffic? I thought it
was merely to oncoming traffic in 89-8.
That seems to be how I read it also, first-come-first serve.
According to the rules the vehicle pulling onto the through street
from the street that is barely bigger than a driveway has the right of
way if it makes a right turn, since it was on the right of vehicles
going through from left to right across the little street. It got
there first, so the simultaneity tiebreaker of "right" doesn't even
apply. And 89-8 seems to address only the simultaneous arrival
situation.
It all strikes me as sloppy. (The second half of 89-8 is about right
turn on red.)
T Intersections that are into rotaries (traffic circles) are covered
in 89-8 (and I don't see that the rotary intersection must have the
yield sign -- most don't, they have a sign that says "State Law, yield
to vehicles in the rotary".)
Rich Carreiro
>> That was exactly the issue in Massachusetts, which had to explicitly
>> change the rule for rotaries (traffic circles).
>
> Only if their "yield to the vehicle on the right" statute had been
> poorly worded.
As I recall, the problem was that the law used to require
traffic in the rotary to yield to entering traffic (ouch!)
It was changed (what, 20? 25 years ago?) to the more
rational approach of entering traffic yielding to traffic
in the rotary.
--
Rich Carreiro rlc-...@rlcarr.com
Seth
>
>>>>> Not necessary: before taking the test, I had a Learner's
>>>>> Permit, so I could legally have driven to the test providing
>>>>> there was a licensed driver in the car with me.
>>
>>>I don't know what state Seth lives in, but in California, and
>>>every other state I'm aware of (except New Hampshire, which
>>>apparently does not have learners' permits), a "learner" can't
>>>drive alone, but must be accompanied by a licensed driver. So I
>>>suspect Seth's trip to the DMV was in violation of the law.
>>
>> Even though (1) I didn't drive ("could have"), and (2) there was
>> a licensed driver in the car?
>
>You implied that you were alone in the car.
No, I implied that I did not drive legally to the test. That's true,
because I didn't drive at all to the test.
> Because you could have
>gotten to the DMV by having the licensed driver drive you there.
And I did, but the question was about someone driving to the test
center to take the test, which doesn't involve having a licensed
driver drive me there.
Seth
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Jan 27, 11:17 am, se...@panix.com (Seth) wrote:
>> In article <6067fc8d-9007-4fdb-aa74-0a11cec63...@h2g2000yqj.googlegroups.com>,
>> Mike Jacobs <mjacobs...@gmail.com> wrote:
>>
>> >In comparison to the entering right-turner, the favored vehicle has
>> >the right to use the ENTIRE width of the favored boulevard, NOT just
>> >the lane he happens to be occupying when the entering motorist sees
>> >him. Th favored driver has the RIGHT to change lanes without
>> >notifying or warning the unfavored driver
>>
>
>because he was looking in a different direction (to the side, or
>ahead) at the time the favored driver made his signal?
I was challenging the claim that the favored driver has such an
unrestricted right; you agree, he doesn't.
> My point is, it is NOT SAFE for the entering driver to ASSUME that
>the favored driver will stay in lane;
I agree; I don't think the obligation on the favored driver provides
any change in the obligations of the non-favored one.
Seth
Seth
>Daniel R.Reitman <drei...@spiritone.com> wrote:
>>Many states do have "show papers" statutes and "obey the cop" statutes
>>that may apply.
>
>Except that
> 1) "Obey the cop" cannot be constitutional unless the cop's order is
> lawful. And of course possible to comply with. YOu cannot show the
> cop your Drivers License if you don't have one.
"lawful" is an interesting term. Certainly, you don't have to obey
orders to violate the law, except sometimes ("Move your car ahead,
through the red light, and go away.") For other orders, while it
would certainly be lawful to do the thing ordered, it isn't required
to obey ("Tell me where you were one hour ago.") So I wonder just
what the distinction actually is.
> 2) "Show papers" would IMHO be subject to the same rules as apply to
> Terry Stops. That is, a citizen cannot, in the normal course of
> events, be required to "show your papers, please".
How does that accord with "lawful orders"?
>Now, of course, you shouldn't lie to a cop. Therefore, if the cop
>asks to see your D/L, the proper response is, "I'm not driving,
>officer, so I don't need a Driver's License." And if he asks for your
>state ID, you can respond, "I'm not required to have one, officer."
You certainly can do that, but it would tend to annoy him, which
probably isn't to your benefit. "I didn't know I needed to have one
to walk around in LA; I can show you a credit card, or go back to my
hotel room and get my passport." Said with a NYC accent, it's quite
believable, and you're _trying_ to be helpful.
>Note that you have told the exact truth, while dodging the cop's
>demand for your D/L. If asked a direct question, e.g., "Do you have a
>driver's license?" I think the correct response would be "On advice of
>counsel I respectfully refuse to answer."
"Isn't a passport good enough? They let me fly here with it."
Seth
Timothy
> > � My point is, it is NOT SAFE for the entering driver to ASSUME that
> >the favored driver will stay in lane;
>
> I agree; I don't think the obligation on the favored driver provides
> any change in the obligations of the non-favored one.
This thread is full of talk about who does or doesn't have the "right
of way" in various situations. There actually is no "right of way" on
the highway. You are always supposed to avoid hitting pedestrians and
other vehicles, even when you think they don't have the "right" to get
in your way.
Even in the most clearcut case, when you are on a major highway and
you have a green light, there are some circumstances where someone
else might have a valid reason for running the red light. And even if
they don't have a good reason, you still don't want to get into a
collision with them if you can avoid it.
Barry Gold
>This thread is full of talk about who does or doesn't have the "right
>of way" in various situations. There actually is no "right of way" on
>the highway. You are always supposed to avoid hitting pedestrians and
>other vehicles, even when you think they don't have the "right" to get
>in your way.
>
>Even in the most clearcut case, when you are on a major highway and
>you have a green light, there are some circumstances where someone
>else might have a valid reason for running the red light. And even if
>they don't have a good reason, you still don't want to get into a
>collision with them if you can avoid it.
An excellent point. To repeat something I mentioned earlier, "Right
of Way" isn't something you _have_, it is something that you are
legally required to _yield_ (that is, to give up).
If you are operating the disfavored vehicle in one of the situations
described elsewhere, you must stop, slow down, or otherwise maneuver
so as to let the favored vehicle go first. If you fail to do so, you
are subject to legal sanctions:
a) a citation for unsafe driving, citing some applicable section
of the vehicle code
b) a downcheck (or automatic failure) on a driving test (as with
the post that started this thread)
c) if a collision _does_ result, being found "at fault" (or more
than 50% at fault in comparative negligence states) for the
resulting "accident".
Here lies John Gray
Who died defending his Right of Way
He was right, dead right, as he sped along,
But he's just as dead as if he'd been wrong.
Moral:
If you know you are supposed to yield the right of way, do so. If you
think the other guy is supposed to yield to you, be careful -- he may
not see you, he may be in a bad mood, he may just be an aggressive
driver who thinks he can intimidate you.
The object of driving is to get from point A to point B without
injuring yourself or anyone else, or getting your property or anybody
else's property damaged.
If you keep that in mind, you will be a better driver than the average
in most major cities, and _far_ better than the average Boston driver.
(I drove there once. *shudder*)
Deadrat
4dab-8f7c-3...@z26g2000yqm.googlegroups.com:
>
>> > � My point is, it is NOT SAFE for the entering driver to ASSUME that
>> >the favored driver will stay in lane;
>>
>> I agree; I don't think the obligation on the favored driver provides
>> any change in the obligations of the non-favored one.
>
>
> This thread is full of talk about who does or doesn't have the "right
> of way" in various situations. There actually is no "right of way" on
> the highway.
That's interesting. Why is Charpter 11, Article IX of the Illinois
Vehicle Code (625ILCS5) titled "Right of Way"?
> You are always supposed to avoid hitting pedestrians and
> other vehicles, even when you think they don't have the "right" to get
> in your way.
You may not intentionally hit pedestrians or vehicles who have illegally
taken the right of way. That doesn't mean that "right of way" doesn't
exist in the law.
> Even in the most clearcut case, when you are on a major highway and
> you have a green light, there are some circumstances where someone
> else might have a valid reason for running the red light.
And on minor highways as well. An emergency vehicle giving a warning
signal or a vehcile directed by a police officer both have a valid reason
for proceeding against a red light. But, of course, in those
circumstances the vehicles have the right of way despite the light.
> And even if
> they don't have a good reason, you still don't want to get into a
> collision with them if you can avoid it.
Of course not. You seem to think that posters in this thread regard
"right of way" as a license to run into or run over another person. No
one takes that position. Right of way is a set of guidelines for the
legal use of public roads.
John F. Carr
Mike Jacobs <mjaco...@gmail.com> wrote:
>> �In my neighborhood there is an uncontrolled T intersection -- I don't
>> know what's incumbent upon the driver entering from the minor side
>> street.
>
>Are you simply admitting your ignorance, David, or are you saying you
>think MA has _no_ statutory law controlling that situation? I would
>bet MA law is very similar to IL's here.
At an uncontrolled T intersection Massachusetts _statute_ requires
drivers to yield to the right, same as at an uncontrolled four way.
Massachusetts _custom_ requires drivers on the stem of the T to
yield to through traffic. Police are happy with drivers following
the custom. Insurance regulations require insurers to assign fault
to the driver with statutory right of way who fails to yield to
through traffic. As far as I know no court has ruled on this
conflict, and no court is likely to because recent changes in
insurance law give insurers more discretion in setting rates.
In some states T intersections are an exception to the usual rule
about yielding to the right. (I think the text I snipped mentioned
one.) Such exceptions conform law to expectation of American drivers.
--
John Carr (j...@mit.edu)
Mike Jacobs
> In article <1264958493.145...@irys.nyx.net>, Barry Gold <bg...@nyx.net> wrote:
> > �1) "Obey the cop" cannot be constitutional unless the cop's order is
> > �lawful. �And of course possible to comply with. �YOu cannot show the
> > �cop your Drivers License if you don't have one.
>
> "lawful" is an interesting term.
I believe Seth's confusion arises from not knowing to whom, or more
accurately to whose actions, the "lawful" adjective applies - although
IMO Barry was crystal clear that it is the _order_ which must be
lawful. That means the order must be something that THE COP is
legally (constitutionally, and by statute) PERMITTED to order a
civilian to do, before any legal obligation to "obey a lawful order of
a LEO" devolves upon the civilian to whom the cop is giving the order.
>�Certainly, you don't have to obey orders to violate the law,
Wrong meaning of "lawful order." The question for analysis is, "Can
this cop legally order me to do that?" If the answer is "Yes," then
yes, the civilian does have to obey. How can the civilian tell if the
order is lawful or not? Well, since most of them _can't_ tell,
frankly, the safe course is simply to obey _all_ orders of an LEO
unless you _know_ there is something _inherently_ wrong in what he is
ordering you to do (frex, to commit something that amounts to a crime
of moral turpitude, something not justified under any circumstances,
something that you _know_ will cause substantial harm to someone else
without any justification or excuse you know of). However, the
narrowly technical answer to that query is, the civiliam must be
cognizant of all applicable law and must be correct in his analysis
that the order being given is UN-lawful, if he wants to exercise the
legally protected right to refuse to obey such an order.
> except sometimes ("Move your car ahead, through the red light, and go away.")
Running a red light is not a crime of moral turpitude that any
reasonably intelligent and conscientious person would know is beyond
the permitted scope of what a LEO can order him to do. To the
contrary, any licensed motorist is supposed to know the Traffic Code
of his jurisdiction well enough to remember, when faced with a real-
life situation, that the Code says traffic signals legally control the
flow of traffic EXCEPT where there is an LEO present and directing
traffic, in which case it is the LEO's directions that should be
followed, not the light's.
OTOH, if the cop says, "Shoot this guy," you know that's not something
a cop is permitted to order a civilian to do, right? Hopefully.
>�For other orders, while it
> would certainly be lawful to do the thing ordered, it isn't required
> to obey ("Tell me where you were one hour ago.")
It doesn't matter whether it would otherwise be lawful for THE
CIVILIAN to do the thing ordered. What matters is whether the COP
has any legal right to ORDER the civilian to do that thing. In the
example Seth gave, the constitution (via the 5th and 14th am. due
process protection against compelled self-incrimination, and possibly
through other protections such as the "privacy" right as read into the
prohibition on unreasonable search and seizure) protects the civilian
from being forced to reveal his former whereabouts when stopped and
questioned by a cop.
>�So I wonder just what the distinction actually is.
The distinction is, THE COP must have some statute giving him legal
authority to give the order he is giving; and that statute, as applied
in the particular circumstance, must not yield an unconstitutional
result, before the civilian has any duty to obey that order, whether
or not it would be otherwise legal for the civilian to do that thing
in the absence of being compelled to do so by an LEO's order.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Feb 6, 8:33嚙緘m, se...@panix.com (Seth) wrote:
>> In article <1264958493.145...@irys.nyx.net>, Barry Gold <bg...@nyx.net> wrote:
>> > 嚙締awful. 嚙璀nd of course possible to comply with. 嚙磐Ou cannot show the
>> > 嚙箱op your Drivers License if you don't have one.
>>
>> "lawful" is an interesting term.
>
>I believe Seth's confusion arises from not knowing to whom, or more
>accurately to whose actions, the "lawful" adjective applies - although
>IMO Barry was crystal clear that it is the _order_ which must be
>lawful.
That was my question.
> That means the order must be something that THE COP is legally
>(constitutionally, and by statute) PERMITTED to order a civilian to
>do,
Don't the police have freedom of speech? To the extent that an
"order" is a series of words, what orders is it illegal for a police
officer to give?
> before any legal obligation to "obey a lawful order of
>a LEO" devolves upon the civilian to whom the cop is giving the order.
Is "tell me where you were one hour ago" a lawful order? Clearly, I'm
not required to obey it. If a police officer gives that order, can he
be sanctioned for it?
>Wrong meaning of "lawful order." The question for analysis is, "Can
>this cop legally order me to do that?" If the answer is "Yes," then
>yes, the civilian does have to obey.
Are you saying that it's illegal for a police officer to order me to
tell him something? Clearly, I don't have to obey such an order, but
I've never heard of a police officer being disciplined for giving it
(before the person he gave it to said anything).
> How can the civilian tell if the
>order is lawful or not? Well, since most of them _can't_ tell,
That's generally the case with respect to laws. Even attorneys
generally require research involving the specific facts at issue, and
then their opinion isn't definitive. (Only a Supreme Court ruling is
definitive, and that only for the case at hand; whether a different
case is sufficiently similar to be covered isn't obvious.)
>frankly, the safe course is simply to obey _all_ orders of an LEO
>unless you _know_ there is something _inherently_ wrong in what he is
>ordering you to do (frex, to commit something that amounts to a crime
>of moral turpitude,
The usual legal advice I get about answering questions (even when
ordered to) is to say "I wish to speak with my attorney and I do not
consent to any search" rather than obeying the order to answer.
> However, the
>narrowly technical answer to that query is, the civiliam must be
>cognizant of all applicable law and must be correct in his analysis
>that the order being given is UN-lawful, if he wants to exercise the
>legally protected right to refuse to obey such an order.
On the other hand, he could be waiving his rights by obeying.
> To the
>contrary, any licensed motorist is supposed to know the Traffic Code
>of his jurisdiction well enough to remember, when faced with a real-
>life situation, that the Code says traffic signals legally control the
>flow of traffic EXCEPT where there is an LEO present and directing
>traffic, in which case it is the LEO's directions that should be
>followed, not the light's.
What if he considers following the orders to be unreasonably
dangerous?
>>嚙瘤or other orders, while it
>> would certainly be lawful to do the thing ordered, it isn't required
>> to obey ("Tell me where you were one hour ago.")
>
>It doesn't matter whether it would otherwise be lawful for THE
>CIVILIAN to do the thing ordered. What matters is whether the COP
>has any legal right to ORDER the civilian to do that thing.
I think the issue here is the difference between the legal right to
issue an order, and the legal authority (that word again!) to enforce
obedience to that order. Since police are allowed to lie, it isn't
even safe to ask if one is required to obey. And with orders of the
"do this right now!" form, the option of calling an attorney to get
his opinion (even if he could give one immediately) isn't available.
>>嚙磅o I wonder just what the distinction actually is.
>
>The distinction is, THE COP must have some statute giving him legal
>authority to give the order he is giving;
So I decided to look at the Minneapolis municipal code to see what it
said on the topic.
171.40: Authority to summon assistance. Each police officer shall be
active and vigilant in enforcing the provisions of this Code and
all the ordinances of the city, and shall if necessary call to the
officer's aid any person above the age of eighteen (18) years to
assist therein; and no such person shall refuse to give assistance
when so called upon. (Code 1960, As Amend., ' 630.040;
Pet. No. 252561, ' 1, 6-15-90)
Driving across a parade or race requires police permission.
Stuff relating to pawnbrokers (licenses, reports, etc.)
Stuff relating to second-hand dealers similar to pawnbrokers.
Stopping, standing, or parking in various places prohibited unless
necessary to avoid conflict with other traffic or in compliance with
the directions of a police officer. (But note that this is a "you may
only do this if told to", not "you must do this if told to".)
Finally, a very general (wrt traffic) law:
466.130. Obedience to police officers. No person shall willfully fail
or refuse to comply with any lawful order or direction of a
peace officer invested by law with authority to direct,
control or regulate traffic. (Code 1960, As Amend., '
421.110)
Other than those cases, there don't seem to be ANY statutes about
obeying police officers.
Looking at MN state statutes, the only ones with "Police" in their
titles are about assaulting police horses, and using police radios
during crimes. I didn't find any that involved civilians having to
obey police orders.
Seth
Mike Jacobs
> So the issue is not whether THE COP can give the "order". �The issue
> is what he can do if the order is disobeyed.
What the cop can _legally_ do, that is. Sure, he may arrest you or
shoot you, but if he had no authority to order you to do whatever it
was he asked you to do in the first place, then the cop's use of force
to compel compliance with his order is itself unlawful. So, we wind
up with circular reasoning, and a still-undefined concept of what is a
"lawful" order.
However, IMO that's still a good way of looking at it. As I'm fond
of saying, "It doesn't hurt to ask," and the cop, like anyone else,
has the First Amendment right to make a _request_ of someone even if
he doesn't have legal authority to _order_ that person to do or
refrain from doing the subject of the request. What makes the cop's
speech an "order" rather than a "request"? I think you are saying,
and I would agree, that it's not simply the grammatical form, whether
it is precative ("Hey, Bud, hold up a minute, okay? May I ask you a
few questions?") or imperative ("Stop! In the name of the law!") -
no, either form could lead to a "stop and frisk" situation, or use of
force. If the cop doesn't use force to compel you to act, or
subsequently arrest you for your refusal, it was merely a "request,"
while if he does do so, restraining you by force if you refuse to
stop, or arresting you for failing to carry out some task he ordered
you to do, then it was an "order." I assume that's what you meant by
saying the issue is what the cop can do if the order is disobeyed.
So, what makes a cop's request a "lawful order" is something that must
be reconstructed from predicting the probable jury verdict that would
come in at the conclusion of a future trial of the civilian for the
crime of "refusing a lawful order of a law enforcement officer."
ISTM the jury would have to find that (a) the cop had been duly
granted authority by some statute to issue an order to a civilian, (b)
the cop did clearly order the civilian to do or refrain from doing
something that was within his authority to command, (c) circumstances
were such that the civilian could not reasonably refuse to obey the
order, and (d) the civilian did actually refuse to obey, leading to
his arrest and his being charged with that refusal.
I think Seth's problem, and mine too, as thus rephrased, is: How do we
determine what sort of request is "within the officer's authority to
command," and also, how do we determine what "circumstances" make it
unreasonable for the civilian to disobey such an order? Aha, that is
where _juries_ come in, and the "rule of reasonableness," and Justice
Potter Stewart's pithy "I know it when I see it" rubric. At least,
IMO that's what it ultimately comes down to.
Cy Pres
>> That means the order must be something that THE COP is legally
>>(constitutionally, and by statute) PERMITTED to order a civilian to
>>do,
>Don't the police have freedom of speech? To the extent that an
>"order" is a series of words, what orders is it illegal for a police
>officer to give?
Any that would invoke the power of the state to violate someone's
rights. "Beat that child." "Have sex with me or I'll arrest you."
"Give me all the money in your wallet." "Steal that newspaper
vendor's money and give it to me." "Light this crack pipe for me so I
can get my geek on."
Any of these would give rise to civil liability under 42 USC 1983, and
many of them would also give rise to criminal liability for inciting
an immediate crime, since a police officer could expect the coercive
threat of his office to get people to obey and commit the crime.
Barry Gold
>>> "Obey the cop" cannot be constitutional unless the cop's order is
>>> the cop your Drivers License if you don't have one.
>Mike Jacobs <mjaco...@gmail.com> wrote:
>> That means the order must be something that THE COP is legally
>>(constitutionally, and by statute) PERMITTED to order a civilian to
>>do,
Seth <se...@panix.com> wrote:
>Don't the police have freedom of speech? To the extent that an
>"order" is a series of words, what orders is it illegal for a police
>officer to give?
A police officer can make any request, except for a few that are
prohibited by law. (For example, "Here's $250, give me a blow job"
would be soliciting an act of prostitution.) In one sense, an "order"
is simply a request, strongly worded.
*But*, when speaking of laws that "require a civilian to obey a
(lawful) order of a peace officer", it seems clear that "order" means
an order that an officer is allowed to give *and expect to be obeyed*.
So, "Tell me where you were on the night of January 15" is not such an
order, because the civilian has a right not to answer questions from
the police. Neither is "jump off that cliff", assuming that the cliff
is high enough to pose a danger to life and limb. Nor is "show me
your driver's license" under circumstances where the civilian is not
legally required to possess one -- that is, when he is(*) not operating
a motor vehicle. Similarly for an order to show your state ID,
because the courts have repeatedly ruled that people are _not_
required to "show your papers" in the US(+).
(*) Depending, of course, on your definition of "is". In this case,
it would include "has recently been observed -- by the officer or a
reliable witness, such as another officer -- operating a motor vehicle.
(+) With a few exceptions. Operating a motor vehicle is one.
Entering the country is another -- if you are "outside" the customs
barrier, the immigrations officer may demand your passport or other
proof of citizenship, and deny you entry if you do not produce it.
And even inside the US, if an immigration officer has "probable cause"
to believe you do not have a right to be in the US, he can demand
proof of your status, and begin deportation proceedings if you do not
produce it. (But you can delay, and produce it later at the
hearing.)
>Finally, a very general (wrt traffic) law:
>
>466.130. Obedience to police officers. No person shall willfully fail
> or refuse to comply with any lawful order or direction of a
> peace officer invested by law with authority to direct,
> control or regulate traffic. (Code 1960, As Amend., '
> 421.110)
And that one seems pretty clearly to mean _only_ orders relating to
the traffic. E.g., move that vehicle within 10 seconds or get a
ticket -- I received that one at an airport during a busy period(@).
Or, do not cross the street until I tell you to. Or, go through the
intersection now, I don't care if the light is red.
(@) I loaded my luggage into the trunk in one bundle instead of
stopping to unstrap it from the portable cart. I also wondered what
would have happened if -- as was quite possible -- I had strained my
back in the process and ended up flat on the pavement, unable to
stand, and asked him to call a paramedic.
Mike Jacobs
> Mike Jacobs �<mjacobs...@gmail.com> wrote:
> >On Feb 6, 8:33�pm, se...@panix.com (Seth) wrote:
> >> Barry Gold <bg...@nyx.net> wrote:
> >> > �1) "Obey the cop" cannot be constitutional unless the cop's order is
> >> > �lawful. �And of course possible to comply with. �YOu cannot show the
>
> >> "lawful" is an interesting term.
>
> >I believe Seth's confusion arises from not knowing to whom, or more
> >accurately to whose actions, the "lawful" adjective applies - although
> >IMO Barry was crystal clear that it is the _order_ which must be
> >lawful.
>
> That was my question.
>
> > � That means the order must be something that THE COP is legally
> >(constitutionally, and by statute) PERMITTED to order a civilian to
> >do,
>
> Don't the police have freedom of speech? �To the extent that an
> "order" is a series of words, what orders is it illegal for a police
Thank you for noticing that, which I hadn't. As A Michigan Attorney
also points out today, what matters is, what the cop can do next if
you _refuse_ to comply with his demand. If he is not legally
empowered to do anything about it, then it was not an "order."
> > before any legal obligation to "obey a lawful order of
> >a LEO" devolves upon the civilian to whom the cop is giving the order.
>
> Is "tell me where you were one hour ago" a lawful order? �Clearly, I'm
> not required to obey it. �If a police officer gives that order, can he
> be sanctioned for it?
No - he's allowed to ask. In that example, and others where the
civilian is constitutionally privileged against being compelled to
answer, he's just not allowed to use force to compel obedience to his
order.
But IMO that's what makes it the difference between a "request," and
an "order." That still does not tell us whether, _if_ an apparent
command is indeed an "order," one where the cop is apparently ready,
willing and able to use force to compel obedience to it, it is the
kind of order that he is _legally_authorized_ to compel the civilian
to comply with. So, despite the circular reasoning, and even
_assuming_ the cop's speech was intended as an "order" and was not a
mere "request," we still come back to the factors I mentioned in my
first post, i.e. whether, under all the circumstances, whatever it is
the cop is asking the civilian to do is something that the cop has the
legal authority to _demand_ that the civilian do, under pain of
forceful arrest or worse.
> >Wrong meaning of "lawful order." � The question for analysis is, "Can
> >this cop legally order me to do that?" � If the answer is "Yes," then
> >yes, the civilian does have to obey.
>
> Are you saying that it's illegal for a police officer to order me to
> tell him something?
No, I'm at an earlier level of analysis in that situation. To me,
such a saying by the cop is simply not an "order" but a mere
"request," before we even get to analyze whether the "order" -
ASSUMING IT IS an "order" - is to do something that the cop is legally
authorized to compel me to do.
>�Clearly, I don't have to obey such an order,
Correct. But that's because it's not an "order." And if the cop
_tells_ you it is - "I'm not kidding - do what I say - that's an
order!" and then arrests you if you fail to comply, THEN (at your
upcoming trial for "refusing to obey lawful order of an LEO") the
issue will be whether that was a _lawful_ order, i.e., whether the cop
had the authority to order you to do whatever it was he ordered you to
do.
> but
> I've never heard of a police officer being disciplined for giving it
> (before the person he gave it to said anything).
He would be, if he attempted to _force_ the civilian to do a thing
that the cop had no authority to order the civilian to do, rather than
making a polite request and accepting with equanimity the civilian's
(legal) response refusing to comply with that request.
> > �How can the civilian tell if the
> >order is lawful or not? � Well, since most of them _can't_ tell,
>
> That's generally the case with respect to laws. �Even attorneys
> generally require research involving the specific facts at issue, and
> then their opinion isn't definitive. �(Only a Supreme Court ruling is
> definitive, and that only for the case at hand; whether a different
> case is sufficiently similar to be covered isn't obvious.).
Yes, I agree. And, as I began to explore this morning in response to
A Michigan Attorney's post on this thread, there really is no firm
answer to that question until the jury comes back with its verdict at
the conclusion of the civilian's trial for the crime of "failing to
obey a lawful order of an LEO" (FTOLOOLEO). At which, some of the
issues might be: (1) was it an "order" and not a mere request? (2)
was the order something the cop was statutorily authorized to order
the civilian to do? (3) did the civilian actually refuse to comply?
(4) was it reasonable, under the circumstances, for the civilian to
refuse to comply? And so on.
> >frankly, the safe course is simply to obey _all_ orders of an LEO
> >unless you _know_ there is something _inherently_ wrong in what he is
> >ordering you to do (frex, to commit something that amounts to a crime
> >of moral turpitude,
>
> The usual legal advice I get about answering questions (even when
> ordered to) is to say "I wish to speak with my attorney and I do not
> consent to any search" rather than obeying the order to answer.
Sure. But somehow we got off onto this track of a "Terry stop"
situation, where what the cop is "ordering" the civilian to do
involves SAYING something, e.g. consenting to a search, answering
potentially incriminating questions, and so forth. Frankly, when I
jumped into this discussion I was thinking more in terms of an order
to DO something physical (other than give a verbal answer), such as
real-time directions from a traffic cop in lieu of a robo-signal, or
an order to physically assist in some emergency situation.
> >However, the
> >narrowly technical answer to that query is, the civiliam must be
> >cognizant of all applicable law and must be correct in his analysis
> >that the order being given is UN-lawful, if he wants to exercise the
> >legally protected right to refuse to obey such an order.
>
> On the other hand, he could be waiving his rights by obeying.
He could, if we're talking about the situation you segue'ed into,
involving an "order" to give a verbal response. IMO we can with
fairly strong certainly state here that a cop is NEVER authorized to
COMPEL any verbal response from a civilian, other than to identify
himself when asked. There have been many, many threads on MLM in
recent years about "what to do" when stopped and questioned by a cop,
and I have more than once recommended everyone download, print, and
keep a copy in their pocket, of the "ACLU Bust Card" which can be
readily found on the 'Net by Googling just that phrase, or, if you do
it while reading this, by going to
http://www.aclu.org/racial-justice/know-your-rights-bustcard
But IMO that is a side issue from the very interesting, and +new+
topic of this sub-thread, which I would prefer not get hijacked back
into a mere "bust-card" discussion, that being: what sort of PHYSICAL
things can a cop legally order a civilian to do?
> > � To the
> >contrary, any licensed motorist is supposed to know the Traffic Code
> >of his jurisdiction well enough to remember, when faced with a real-
> >life situation, that the Code says traffic signals legally control the
> >flow of traffic EXCEPT where there is an LEO present and directing
> >traffic, in which case it is the LEO's directions that should be
> >followed, not the light's.
>
> What if he considers following the orders to be unreasonably
> dangerous?
That is something he should take into consideration in deciding what
to do, yes. If the cop disagrees, he may arrest the civilian for
refusing to comply. Then, it will be up to the jury, at the
civilian's future trial for FTOLOOLEO, to decide whether all the
circumstances justified the civilian's refusal.
> >>�For other orders, while it
> >> would certainly be lawful to do the thintg ordered, it isn't required
> >> to obey ("Tell me where you were one hour ago.")
>
> >It doesn't matter whether it would otherwise be lawful for THE
> >CIVILIAN to do the thing ordered. � What matters is whether the COP
> >has any legal right to ORDER the civilian to do that thing.
>
> I think the issue here is the difference between the legal right to
> issue an order, and the legal authority (that word again!) to enforce
> obedience to that order.
Agreed. Although, to me, what makes it an "order" and not a mere
"request" is, whether the LEO has legal "authority" to compel
compliance with his demand.
>�Since police are allowed to lie, it isn't
> even safe to ask if one is required to obey.
There I would disagree. Cops can lie to induce admissions of
evidence, true, but this is a different situation. The cop saying
"you don't have to obey" is not a declarative statement of the state
of the world, with an independently determinable truth value, but is
OPERATIVE WORDS which the civilian is legally entitled to RELY UPON,
which words, by being said, CONVERT the cop's apparent "order" into a
mere "request." Similarly, in a contracting situation, "I agree" IS
NOT a statement with any independently verifiable truth value; it
doesn't matter if the person saying that has his fingers crossed
behind his back, those words have operative effect to CREATE a binding
contract whether he "really meant it" or not.
>�And with orders of the
> "do this right now!" form, the option of calling an attorney to get
> his opinion (even if he could give one immediately) isn't available.
Agreed again. It's a judgment call. And, if the civilian honestly
feels that what the cop is asking him to do is unsafe, and could risk
life and limb of himself or others, he OUGHT TO refuse such an order
EVEN IF he winds up getting arrested and tried for doing so. And, if
and when such an arrest and trial does occur, the reasonable
circumstances of the refusal (assuming they actually _were_
reasonable) will provide a valid affirmative defense to the charge.
> >>�So I wonder just what the distinction actually is.
>
> >The distinction is, THE COP must have some statute giving him legal
> >authority to give the order he is giving;
>
> So I decided to look at the Minneapolis municipal code to see what it
> said on the topic.
>
> 171.40: Authority to summon assistance. �Each police officer shall be
> � � active and vigilant in enforcing the provisions of this Code and
> � � all the ordinances of the city, and shall if necessary call to the
> � � officer's aid any person above the age of eighteen (18) years to
> � � assist therein; and no such person shall refuse to give assistance
> � � when so called upon. (Code 1960, As Amend., ' 630.040;
> � � Pet. No. 252561, ' 1, 6-15-90)
Okay, there's an example of what we were talking about. That's the
statutory authority to order a civilian to do something to help out in
an emergency.
<irrelevant sections snipped>
> Stopping, standing, or parking in various places prohibited unless
> necessary to avoid conflict with other traffic or in compliance with
> the directions of a police officer. �(But note that this is a "you may
> only do this if told to", not "you must do this if told to".)
This would fit in with the operative-words protocol we were discussing
above, where the cop's saying "Yes, you can park here if you want" is
not a declarative statement with any independent truth value, but
rather (simply by being said) CREATES a situation the civilian is
entitled to rely upon, and he can then take than action without
suffering legal consequences, just as if the cop had said (to the
person wondering if he was undergoing a Terry stop), "Yes, you are
free to go, I'm not ordering you to stay." A cop cannot say that,
and then legally collar and cuff the dude because he then tries to
walk away. That would ISTM constitute a prima facie "unreasonable
seizure" in violation of the 4th Amendment and/or a violation of due
process under the 5th...
> Finally, a very general (wrt traffic) law:
>
> 466.130. �Obedience to police officers. No person shall willfully fail
> � � � � � or refuse to comply with any lawful order or direction of a
> � � � � � peace officer invested by law with authority to direct,
> � � � � � control or regulate traffic. (Code 1960, As Amend., '
> � � � � � 421.110) �
Again, a fine example of a statute authorizing the cop to order a
civilian to DO something in a traffic situation.
> Other than those cases, there don't seem to be ANY statutes about
> obeying police officers.
Under what other circumstances would you even expect to find such
authorization, besides (a) assisting in an emergency, and (b) orders
re-routing traffic differing from the "default" rules implied by
posted traffic signs or signals or in the absence of any physical
traffic control devices? I can't think of any, where I would WANT
cops to be able to order civilians around, at least not in a free
society.
> Looking at MN state statutes, the only ones with "Police" in their
> titles are about assaulting police horses, and using police radios
> during crimes. �I didn't find any that involved civilians having to
> obey police orders.
Other than the two, very pertinent ones you _did_ find....?
Daniel R.Reitman
>. . . .
>Finally, a very general (wrt traffic) law:
>
>466.130. Obedience to police officers. No person shall willfully fail
> or refuse to comply with any lawful order or direction of a
> peace officer invested by law with authority to direct,
> control or regulate traffic. (Code 1960, As Amend., '
> 421.110)
>
>Other than those cases, there don't seem to be ANY statutes about
>obeying police officers.
>. . . .
Here's the Oregon statute:
(1) A person commits the offense of failing to obey a police officer
if the person refuses or fails to comply with any lawful order, signal
or direction of a police officer who:
(a) Is displaying the police officer�s star or badge; and
(b) Has lawful authority to direct, control or regulate traffic.
(2) The offense described in this section, failing to obey a police
officer, is a Class B traffic violation.
Or. Rev. Stat. � 811.535. This implies that the statute applies based
on the officer's authority, not whether the officer is actually
engaged in enforcing the traffic laws. It turns out, however, that
the statute has been construed to require that the order in question
relate to traffic regulation. State v. Rodinshy, 653 P.2d 551 (Or.
App. 1982).
And since OP is in Nevada, I thought I'd look that one up. There,
it's a traffic enforcement statute only.
It is unlawful for any person willfully to fail or refuse to comply
with any lawful order or direction of any police officer while he is
performing his duties in the enforcement of this chapter.
Nev. Rev. Stat. � 484.253.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Jan 27, 10:57 am, se...@panix.com (Seth) wrote:
>> In article <ab61f283-4313-4e27-b085-cb7676dc8...@l30g2000yqb.googlegroups.com>,
>> Mike Jacobs <mjacobs...@gmail.com> wrote:
>>
>> >If you meant the state won't let you _drive_yourself_ to the test,
>> >that's a different issue than _whose_ car you will drive once you're
>> >there, behind the wheel during the test, with the examiner beside
>> >you. It would make sense that you need to bring a friend along, both
>> >to drive you there
>>
>> Not necessary: before taking the test, I had a Learner's Permit, so I
>> could legally have driven to the test providing there was a licensed
>> driver in the car with me.
>
>situation, not yours, "_IF_" (the first word in my quoted statement,
>making it conditional in form) "the state won't let [OP} drive
>[himself] to the test."
I took it to be the "generic you" since, after all, the rules are the
same for everybody. So I was just pointing out that the statement
wasn't correct in the general case.
> OP's situation is very likely different from
>yours - he is not a new driver with a learner's permit, but is a
>formerly licensed driver who allowed his license to expire.
I believe (and I could easily be wrong) that NYS doesn't allow someone
to take the test unless he has a learner's permit, so anyone taking
the test is allowed to drive to it (given a licensed adult driver with
him).
> I don't know whether or not his state allows him to drive to the
>test venue in that circumstance, which accounts for the conditional
>"if."
I agree; I think it's unlikely any state allows someone to drive
without a valid license (except, perhaps, in an emergency, and "going
to take the driver test" doesn't qualify).
> The City of
>Angels is also much more car-conscious and car-dependent than NYC is,
>so I would not be surprised (although I lack statistics to prove it)
>if NYC has far fewer DMV offices per 100,000 population within the
>city than does either Los Angeles or a typical mid-sized USA city of
>half a million or so.
IIRC, New York City has more people per
DMV-office-where-driving-tests-can-be-taken than all but maybe the
next 5 cities have people, period.
> Of course, back when I got my NV license,
>Vegas only had about 100,000 people, so (if the State of NV has not
>kept up its DMV budget to match its explosive population growth) maybe
>Vegas is now in the same category as NYC in terms of population
>density per available number of DMV test-taking sites, and now
>requires test-takers to make an appointment 5 weeks in advance.
Even NYC doesn't _require_ 5 weeks, depending on where you're willing
to go to take the test and when, it can be one week (perhaps less if
you're lucky). On the other hand, if you want the first (or last)
appointment of the day in Manhattan, it might take even longer.
> One would hope, though, even in that circumstance, that they would
>make an exception for a _repeat_ test taker,
In NY, the delay is due purely to the appointment schedule being full,
I don't believe there's any actual minimum requirement.
>Anyway, all that is speculation until we hear from OP what he really
>meant about having to wait 5 weeks before re-taking the test.
True. It could easily be his schedule that required the delay.
Seth
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>However, IMO that's still a good way of looking at it. As I'm fond
>of saying, "It doesn't hurt to ask," and the cop, like anyone else,
>has the First Amendment right to make a _request_ of someone even if
>he doesn't have legal authority to _order_ that person to do or
>refrain from doing the subject of the request. What makes the cop's
>speech an "order" rather than a "request"? I think you are saying,
>and I would agree, that it's not simply the grammatical form, whether
>it is precative ("Hey, Bud, hold up a minute, okay? May I ask you a
>few questions?") or imperative ("Stop! In the name of the law!") -
I disagree; I think it's primarily the grammatical form (and, perhaps,
to a lesser extent, the tone of voice). An order is an order, whether
or not it's legal or enforceable. After all, the concepts of "legal
order", "illegal order", "legally (or lawfully) enforceable order",
and "legally (or lawfully) unenforceable order" are all meaningful and
it would be easy to give examples of each. (Some combinations
wouldn't be possible.)
>no, either form could lead to a "stop and frisk" situation, or use of
>force.
What does that have to do with whether the interaction starts with an
order?
> If the cop doesn't use force to compel you to act, or
>subsequently arrest you for your refusal, it was merely a "request,"
So there's no such thing as an unenforced order? Police Officer (on
foot) to bicyclist riding the wrong way on a 1-way street: "Hey, you,
stop right now." Bicyclist speeds up and rides away fast. Police
officer doesn't give chase. Does that mean his demand wasn't an
order, or merely that he was unable to enforce it?
>while if he does do so, restraining you by force if you refuse to
>stop, or arresting you for failing to carry out some task he ordered
>you to do, then it was an "order."
Guy is walking quickly. Cop says "May I ask you a question?" Guy
replies "Sorry, I'm late for work" and keeps going. Cop grabs him.
Does that mean the request was an order?
> I assume that's what you meant by
>saying the issue is what the cop can do if the order is disobeyed.
So you acknowledge that things might be orders, yet have different
values for "what the cop is allowed to do if the order is disobeyed."
That implies that the latter does not define "order".
>So, what makes a cop's request a "lawful order" is something that must
>be reconstructed from predicting the probable jury verdict that would
>come in at the conclusion of a future trial of the civilian for the
>crime of "refusing a lawful order of a law enforcement officer."
I think that applies in the military, where one is _required_ to obey
orders (from a superior) that aren't unlawful. In civilian life,
people generally aren't required to obey orders from police (as other
articles, describing various laws, have shown, particularly when one
isn't driving).
>ISTM the jury would have to find that (a) the cop had been duly
>granted authority by some statute to issue an order to a civilian,
Or, rather, that some statute requires a civilian to obey such an
order if issued. (How likely is a statute that allow an officer to
give orders without requiring obedience? There are at least some that
require obedience from specific types of people (e.g. "over 18") while
the order might be given to someone under 18.)
> (b) the cop did clearly order the civilian to do or refrain from
>doing something that was within his authority to command,
As above.
> (c) circumstances were such that the civilian could not reasonably
>refuse to obey the order,
How does "reasonably" enter into it? Something could easily be
reasonable and still illegal.
> and (d) the civilian did actually refuse to obey,
Yes.
>I think Seth's problem, and mine too, as thus rephrased, is: How do we
>determine what sort of request is "within the officer's authority to
>command," and also, how do we determine what "circumstances" make it
>unreasonable for the civilian to disobey such an order?
^^^^^^^^^^^^
I'd say "illegal" there. There could be orders that it would be
unreasonable to disobey, yet still not illegal to do so.
> Aha, that is where _juries_ come in, and the "rule of
>reasonableness," and Justice Potter Stewart's pithy "I know it when I
>see it" rubric. At least, IMO that's what it ultimately comes down
>to.
Doesn't it always come down to what a court (or the highest court that
decides) determines?
Seth
Mike Jacobs
> >What makes the cop's
> >speech an "order" rather than a "request"? I think you are saying,
> >and I would agree, that it's not simply the grammatical form
<snip>
> I disagree; I think it's primarily the grammatical form (and, perhaps,
> to a lesser extent, the tone of voice).
We are not just talking about a mere semantic quibble. This is, in
fact, a highly challenging inquiry into a little-explored corner of
psycholinguistics. How do humans communicate? How is meaning
transmitted from one human to another? What resources do we draw upon
(cultural, psychological, physical) to send, and to receive,
messages? This is the stuff of graduate seminars, and the stuff that
appellate judges would have to do when they conference to hammer out a
legal opinion defining "lawful order," _not_ just a kindergarten-level
"I know it when I hear it" common-sense issue (although, hopefully
both scholars and judges also never lose sight of common sense and of
how their constructs relate to reality). So, I welcome the
discussion.
What I'm about to say in response to your post is NOT an _ex-cathedra_
disquisition from Jacobs On The Law. Nor is it derived from any
specific legal precedent, since I'm not aware of any cases ruling on
this particular point. Rather, it's the beginning of a discussion of
something that may lead to a refinement of existing concepts of what
an "order" is, and what a "lawful order" is. I'm not just relying on
a dictionary definition, or dicta from a case. Your guess is as good
as mine, so long as we are logical about it, and try to find terms
that _more_ accurately describe the empirical reality we are trying to
understand. Because, at another level, even toddlers, and dogs, let
alone kindergartners, "KNOW" (at an intuitive level) what an "order"
is - because they generally recognize it when they see it, and they
generally respond appropriately. What we are engaging in here is
(hopefully) a scientific/legal dissection of what actually goes into
MAKING an order be an order, and what makes a "LAWFUL order" be a
"lawful order," so we can understand the process better from an
analytic perspective.
> An order is an order,
That begs the question, doesn't it? We are, ab initio, trying to
discuss what MAKES a certain communication be deemed an "order" rather
than a "request." Contra your statement 2 sentences ago, it cannot
be just or even primarily the grammatical form of the words, because
an order can also consist of a NON-verbal command, one communicated by
gesture, as are probably the majority of those orders given by traffic
cops to motorists.
Let's start with a basic description of the process - for any
communication of meaning to take place, there must be a sender, a
message, and a recipient. Various factors in _each_ of those can
affect how well the _intended_ message actually gets communicated.
The sender may be unable to articulate what he means, or may send
nuances of meaning that depend in part on who, and what, HE is. He
may use inartful words that don't quite say what he really means, even
if one looks at those words apart from considering the source. And,
the recipient may not understand the words in quite the same way as
the sender meant them, or as an objective outside observer would
typically interpret them, either because of the recipient's own biases
and preconceptions, or because he simply fails to see an ambiguity or
interprets an ambiguity differently than the sender intended. That
said, it is a wonder any communication of meaning ever takes place at
all.. That's the scientific side - the legal side is, under the
modern theory, an OBJECTIVE view of meaning. In law, words mostly are
interpreted to mean what a REASONABLE PERSON would normally expect
them to mean in the context in which they are said, relying neither on
an unusual subjective interpretation nor on a strained formalism that
ignores context.
So, as a starting proposition - I'm NOT vouching for this as the final
word, mind you, just running an initial idea up the flagpole to see if
anyone shoots down my trial balloon (you knew what I meant there
despite the awkward mixed metaphor, right? Ain't language amazing?)
- consider this formulation:
An "order" is any communication that, considering all the context,
both an objective sender and an objective recipient would consider (a)
gives directions to the recipient, (b) was meant to be obeyed rather
than providing an option, and (c) carries undesirable consequences for
disobedience. Those consequences either are previously known by the
recipient as part of the cultural context, or are communicated to the
recipient as part of the communication, and only such consequences as
a reasonable recipient will see as likely to occur if the "order" is
not obeyed really matter. If all those elements are met, we are
probably dealing with an "order" rather than a "request," regardless
of the grammatical form in which the order is given.
> whether or not it's legal or enforceable.
True that. But, backing up a step or two, this thread was about what
constitutes a "LAWFUL order" of a law enforcement officer. We can
all see that LEOs may give commands in the form of orders sometimes,
even though they have no legal right to demand such a thing, and even
though the recipient of that communication has no legal duty to obey.
We already clarified much earlier in this thread, and it is not a
reasonable subject for continued discussion, that what the LAW means
by "a lawful order" is, FIRST of all, an "order" (as defined a few
paragraphs above) - that is, it is a communication which both the
sender, and the recipient, would reasonably interpret as a
_command_. In addition, to be a "lawful order," it must be one given
by a law enforcement officer, directing the recipient to do or to
refrain from doing something, which (a) the LEO actually HAS a legal
right to request, _and_ (b) the recipient has a legal duty to obey,
which means the LEO has the right to use or threaten _force_ to obtain
compliance.
If we only have (a) but not (b), then it's a request, not a "lawful
order," regardless of how commanding the LEO makes his voice sound and
his use of verbs in the imperative grammatical mood. We cannot have
only (b) but not (a), since the lack of any legal right for the LEO to
even ask for what he asked for in his "order" would mean that the
civilian has NO corresponding duty to obey it (and, of course, that
the LEO also has no right to use or threaten force to obtain
obedience, which is the flip side of the civilian's duty if it
exists).
But, if the cop CLAIMS to have a legal right, and DOES in fact
exercise force or threat of force to compel obedience, when he does
NOT have any such legal right, then YES his command is still an
_order_, but then it is an UNLAWFUL order, one which goes BEYOND the
legal right of the LEO to insist upon obedience. If the LEO uses
force or threat to _compel_ obedience to such an illegal order, he can
be sued for violating the recipient's constitutional right to due
process and right to be free of unreasonable seizure. Also any
evidence he obtains illegally may also be thrown out, per the
exclusionary rule, and will be unavailable for use in any subsequent
criminal prosecution of the recipient of that illegal order which led
to discovery of the evidence.
> After all, the concepts of "legal
> order", "illegal order", "legally (or lawfully) enforceable order",
> and "legally (or lawfully) unenforceable order" are all meaningful and
> it would be easy to give examples of each. (Some combinations
> wouldn't be possible.)
Agreed.
> >no, either form could lead to a "stop and frisk" situation, or use of
> >force.
>
> What does that have to do with whether the interaction starts with an
> order?
We had segued from the traffic-cop situation (original topic of this
thread) to a situation where an LEO gives an order (or a request) to a
civilian to stop so the cop can question him. I forget who started
that side issue, but it also dealt with whether what the cop tells the
civilian to do is an "order" so this thread went into that side issue
at some depth.
> > If the cop doesn't use force to compel you to act, or
> >subsequently arrest you for your refusal, it was merely a "request,"
>
> So there's no such thing as an unenforced order?
There can be. So, we should modify the above "working hypothesis"
about what a "lawful order" is, to something more like the _new_
working hypothesis I stated for the first time a few paragraphs above,
where what matters is the RIGHT of the cop to insist upon obedience,
not whether he actually DOES insist upon and enforce obedience in a
particular case.
> Police Officer (on
> foot) to bicyclist riding the wrong way on a 1-way street: "Hey, you,
> stop right now." Bicyclist speeds up and rides away fast. Police
> officer doesn't give chase. Does that mean his demand wasn't an
> order, or merely that he was unable to enforce it?
The latter. The cop had a right to order the cyclist to stop
(because the cyclist was violating the traffic law in the presence of
the cop), AND the cyclist had a legal duty to obey, but the cop was
physically unable to enforce his order. so the cyclist "got away with
it."
> >while if he does do so, restraining you by force if you refuse to
> >stop, or arresting you for failing to carry out some task he ordered
> >you to do, then it was an "order."
Not necessary. See above. I submit, for your picky review and
comment, that what matters to our analysis is (a) the RIGHT to ask for
compliance, and (b) the DUTY to obey, not whether the cop actually
DOES use force, or whether the civilian actually DOES obey.
> Guy is walking quickly. Cop says "May I ask you a question?" Guy
> replies "Sorry, I'm late for work" and keeps going. Cop grabs him.
> Does that mean the request was an order?
By the rubric stated above, it does make it an "order." Whether it
was a "LAWFUL" order depends on whether the cop had any legal RIGHT to
so restrain the guy; if the cop was exceeding his authority, it was an
UNLAWFUL order. The authority to conduct, and the lawfulness of, any
particular compelled "Terry stop" depends on _all_ the surrounding
circumstances, not just the semantics of the communication between
sender and recipient as you seem to assume here.
> > I assume that's what you meant by
> >saying the issue is what the cop can do if the order is disobeyed.
>
> So you acknowledge that things might be orders, yet have different
> values for "what the cop is allowed to do if the order is disobeyed."
> That implies that the latter does not define "order".
I'm not sure I follow that entirely. Are we just talking about
"orders" in general again, or "LAWFUL orders" of an LEO in particular?
If you mean that the mere _right_ to compel obedience does not define
an "order," then yes, there could be an _unlawful_ "order" where the
cop has NO right to ask the civilian to do, but where it is still
clear to all that the cop INTENDS to use force or threat of force to
compel obedience. That would indeed be an "order," even if it is an
"unlawful order."
But if you mean, the _right_ to compel obedience is not what defines a
"LAWFUL order," I would disagree, since absent that right, the LEO's
words either are not an "order" but a mere "request," or are an
unlawful "order." Remember, the _actual_ legal right of an LEO to
compel obedience is simply the flip side of the civilian's legal duty
to obey, so you can't have one without the other. Thus, one CAN
define a "lawful order" based only on whether the LEO has the right to
_compel_ obedience to his command, and that holds true whether or not
he actually DOES force the civilian to obey.
> >So, what makes a cop's request a "lawful order" is something that must
> >be reconstructed from predicting the probable jury verdict that would
> >come in at the conclusion of a future trial of the civilian for the
> >crime of "refusing a lawful order of a law enforcement officer."
>
> I think that applies in the military, where one is _required_ to obey
> orders (from a superior) that aren't unlawful.
Civilians are, too. It's just that there are FAR FEWER "lawful
orders" that a civilian is required to obey, and those orders do not
encompass the entire scope of his daily life, the way the regimen of
military discipline does that of a soldier.
Frex, a sergeant can lawfully _order_ a private to tie his shoes, and
the private must comply, or go to the stockade. If he keeps defying
military discipline, the rebellious soldier may face a dishonorable
discharge, or a court-martial and a firing squad (depending on how bad
his disobedience was).
An LEO _cannot_ lawfully order a civilian to tie his shoes; he is
allowed to _request_ it, of course, but there is no duty to obey and
no right to COMPEL obedience.
However, neither the sergeant, nor a police officer, can lawfully
order someone else - soldier _or_ civilian - to kill unarmed civilian
bystanders, or prisoners-of-war, even if they _are_ (and not just
suspected of being) "enemy combatants." That would be an "unlawful
order" for either of them to put forth.
Mostly, a civilian in a free society like ours is free to do anything
that is not specifically forbidden by law. But, if a cop issues a
lawful order to a civilian, the civilian _is_ required by law to
obey. That's part of how I propose we should be _defining_ and
determining what a "lawful order" _IS_.
> In civilian life,
> people generally aren't required to obey orders from police
Yes they are, if it is a "LAWFUL order," as I propose we define them.
One can properly be prosecuted and convicted for disobeying a lawful
order in circumstances where a specific statute compels obedience.
> (as other
> articles, describing various laws, have shown, particularly when one
> isn't driving).
Now you're using the word "order" differently than we have been
throughout this thread, and you are once again, unilaterally, looking
only to the grammatical form of the LEO's words to see whether you
want to call it an "order" and you are also completely ignoring the
factors that should go into determining whether it is a "LAWFUL
order." If there is no duty to obey, then the message the cop is
communicating is by definition not a "LAWFUL order of an LEO" as to
which legal consequences would attach for failure to obey. It is then
just a "request" even if it is stated in a stern tone of voice and
using a verb in the imperative mood: "_DO_ this. _DON'T_ do that."
I certainly agree that civilians have no legal duty to obey a mere
"request" from an LEO despite how imperatively it is phrased, and
despite all the good-citizen reasons why we are _encouraged_ by
bourgeois society and the legal culture to voluntarily do so in most
circumstances. I'm the one who posted the "ACLU Bust Card" link on
this thread, remember? Civilians should KNOW their rights so they do
not inadvertently FAIL to assert them when they have a right to do
so. Here it is again:
http://www.aclu.org/racial-justice/know-your-rights-bustcard
> >ISTM the jury would have to find that (a) the cop had been duly
> >granted authority by some statute to issue an order to a civilian,
>
> Or, rather, that some statute requires a civilian to obey such an
> order if issued.
Those are flip sides of the same coin, if you accept _my_ proposed
definition. Absence of a duty to obey means there was NO legal right
of the LEO to compel obedience, and therefore it was not a "lawful
order," merely a "request" (if he had the right to ask) or an
"unlawful order" (if he did not even have the right to ask nicely -
"Will you kill this guy for me?" is an unlawful order even if the cop
adds, "pretty please?").
> (How likely is a statute that allow an officer to
> give orders without requiring obedience?
You see my point, then. You cannot have one without the other. And
that HELPS us, analytically, to see what a "lawful order" really is.
If there is no duty to obey, then it is NOT a "lawful order"
regardless of how it is worded, and regardless of whether the cop
keeps his hand on the butt of his pistol, with the holster unbuttoned
and the hammer cocked, while he growls commands at the civilian.
I think part of YOUR problem here, Seth, is that you keep abandoning
the rubric "LAWFUL order" and randomly go back to calling the thing we
are discussing a mere "order," which IS a purely grammatical,
psycholinguistically-defined animal, and which even toddlers and dogs
can recognize as such. It does no help to clarity of analysis to
keep interchanging the two terms as if they were synonymous.
Finding that something _IS_, grammatically and psycholinguistically,
an "order" is only STEP ONE to determining whether that "order" is in
fact a "lawful order." Step 2 is, noting that the order comes from
an LEO (or a person acting under color of state law, which at this
level of analysis we can assume is the same thing). Step 3 is to see
if the LEO has actual authority to even REQUEST such a thing (subject
to _voluntary_ compliance by the citizen, such as requesting consent
to a warrantless search). Finally, at step 4 we determine whether
there was a legal _duty_ on the part of the civilian to obey, AND
(flip side) whether the LEO had a legal right under the circumstances
then and there pertaining, to COMPEL obedience. Only then is what
purports to be an "order" really a "lawful order."
> There are at least some that
> require obedience from specific types of people (e.g. "over 18") while
> the order might be given to someone under 18.)
Exactly. The context of determining what a communication means
includes the nature and characteristics of the sender, and of the
recipient, as well as the actual content of the message, and other
surrounding circumstances.
> > (b) the cop did clearly order the civilian to do or refrain from
> >doing something that was within his authority to command,
>
> As above.
If (in your example) a cop commanded someone under 18 to do something
which he only had the right to demand of someone over 18, then it is
not a "lawful order." Of _course_ context must be considered; it's
part of the circumstances that determine whether it is objectively
REASONABLE or not to disobey.
> > (c) circumstances were such that the civilian could not reasonably
> >refuse to obey the order,
>
> How does "reasonably" enter into it? Something could easily be
> reasonable and still illegal.
I qualified that with "reasonably" because one can ALWAYS refuse to
obey an order. All one need do is, "just say NO." Similarly, a
person who refuses to surrender his freedom is ALWAYS free, even if
someone else wants to capture or enslave him or compel obedience to an
order. Fighting to the death, or suicide, are always options. I
didn't say they are a REASONABLE option under all circumstances; we're
only talking about absolutes, vs. possibilities, here.
That doesn't mean it's REASONABLE to disobey, or LEGAL to disobey, in
a particular circumstance. The legality of an order, and the duty to
obey, must be determined from all the context, evaluated
OBJECTIVELY. That's all I, and the law, mean by "reasonable" - an
objective, rather than subjective, analysis.
Whether it was LEGAL to disobey a purported "order" depends on
whether, under all the circumstances, it was objectively REASONABLE
(in the eyes of the judge or jury) for that person to disobey. If
the factfinder finds that it WAS, then ipso facto either the "order"
was not a "lawful order," _OR_ (despite the order being lawful in the
abstract) the recipient had some legally cognizable justification or
excuse for refusing to obey, which made it reasonable and not illegal
FOR HIM under all the circumstances NOT to obey that particular order
at that particular time.
This CANNOT be determined without context. Frex, going back to the
miliary scenario, is "Kill!" a lawful order?
"Kill!" _IS_ a lawful order, if the guy the sergeant orders the
private to kill is in a combat zone, holding a gun or a machete,
running towards them, and is not clearly one of their own allies or
comrades or refused a prior order to stop in an unthreatening manner
(if circumstances allowed), until IFF (identification as friend or
foe) could be determined.
"Kill!" is _NOT_ a lawful order, if the guy the solder orders the
civilian to kill is a babe in arms, or a clearly unarmed youth holding
his hands up and standing still, or (make up your favorite
scenario). My point being, the WORDS ALONE are not enough to
determine whether a command is a "lawful order" or not.
> > and (d) the civilian did actually refuse to obey,
>
> Yes.
And (I might add) if he did NOT obey, the factfinder would then have
to consider whether he had any legal justification or excuse for not
obeying. "Sorry, sir, I can't obey your order to walk over there and
stand up against the wall because this explosion just blew off both my
legs." Or some such.
> >I think Seth's problem, and mine too, as thus rephrased, is: How do we
> >determine what sort of request is "within the officer's authority to
> >command," and also, how do we determine what "circumstances" make it
> >unreasonable for the civilian to disobey such an order?
>
> ^^^^^^^^^^^^
> I'd say "illegal" there. There could be orders that it would be
> unreasonable to disobey, yet still not illegal to do so.
Name one? I can't think of any. Under an objective theory, I
submit those terms are co-extensive. Only if we are adhering to a
rigid and unthinking formalism is it possible to consider
circumstances where it is UNREASONABLE to disobey a lawful order, but
not illegal to do so.
OTOH, the converse is _not_ true; there _may_ be orders that are
REASONABLE to disobey, even though technically it would be LEGAL to
obey them. Somehow, on the flip side, the theme from "Bridge On The
River Kwai" keeps running thru my head here. Did the British officer
act unreasonably by CONTINUING to obey the orders of his Japanese
captors, to command his men to finish building the bridge that would
soon allow the Japanese forces to bring further war materiel to the
front to facilitate further destruction of the still-fighting British
forces? And what about his underlings, the British soldier POWs who
persisted in sabotage, who did everything they could to UNDERMINE
their superior's efforts to give aid to the enemy? Were they acting
"unreasonably?" I think not. Were they acting "illegally?" Sir
Alec Guiness thought so. A Japanese court-martial, if one had been
convened, surely would have thought so. But, I doubt any British
court-martial would think so. They were JUSTIFIED to DISOBEY that
particular unlawful order of their superior British officer, and thus
it was reasonable for them to continue sabotaging the construction of
the bridge, and to blow it up when it was done (sorry if that was a
spoiler - see the movie anyway).
> > Aha, that is where _juries_ come in, and the "rule of
> >reasonableness," and Justice Potter Stewart's pithy "I know it when I
> >see it" rubric. At least, IMO that's what it ultimately comes down
> >to.
>
> Doesn't it always come down to what a court (or the highest court that
> decides) determines?
Pretty much. And those courts, these days, are mostly guided by
social realities, not rigid formalities.
Although, again, as in the River Kwai, it depends in part on WHOSE
court is doing the deciding.
Steve Bartman
<mjaco...@gmail.com> wrote:
>Civilians are, too. It's just that there are FAR FEWER "lawful
>orders" that a civilian is required to obey, and those orders do not
>encompass the entire scope of his daily life, the way the regimen of
>military discipline does that of a soldier.
>
>Frex, a sergeant can lawfully _order_ a private to tie his shoes, and
>the private must comply, or go to the stockade. If he keeps defying
>military discipline, the rebellious soldier may face a dishonorable
>discharge, or a court-martial and a firing squad (depending on how bad
>his disobedience was).
This may be an aside, and if it is please feel free to ignore it. Or,
it may be tangential.
I have been a US Navy officer, and my comments below are in that
context. Since LEOs are at least quasi-military, and the topic here
concerns orders, it might be useful to compare.
In the military context, there is a large, legal difference between a
command and an order (assume both demand a legal action by the
recipient.) The difference involves time. A command legally must be
carried out IMMEDIATELY. It does not give the recipient any room for
subjective action to delay,or to order his other priorities. It must
be executed NOW.
Examples of commands are "Right full rudder", "By the left flank . . .
March!" (actually two commands, a preparatory and a command of
execution), "Fire all main guns", and, as above, "Tie your shoe,
Private."
As such, the recipient is exposed to legal sanction on two dimensions:
failure to execute at all, and failure to execute immediately. It is
easy, from the topic of most commands, to see why time is a crucial
element. If the helmsman is commanded to put his rudder hard over, and
he first thinks about that girl in the last port, scratches his
backside, takes a sip of coffee, and then shifts his rudder, the ship
may already be aground, or worse. Many commands, such as orders to the
helm, are defined in regulation, and must be stated in precise ways in
order to be legal. The common "command" seen in "Star Trek" ("Take us
out of here, Mr. Sulu") is no command at all. It would be an illegal
command. It MIGHT be a legal order, although that is questionable as
it seeks to abrogate the conning officer's legal accountability and
place it on the helmsman, who does not have the conn (another legal
concept out of place here.)
A military order, OTOH, also has a time element, but is far more
subjective. "Get those enlisted evals to me as soon as you can",
"Square away this compartment", "Get a haircut, Seaman Door", and
"Make ready in all respects for sea" do not imply immediate,
drop-everything action, and this is where many discipline issues come
into play. Does "Get a haircut . . ." mean today? As soon as Seaman
Door gets paid? Before I see you again, Seaman Door? Similarly, "Make
ready in all respects for sea" certainly implies "before we go to
sea", a time normally known to the crew from the Plan of the Day or
other formal chain-of-command communication, but does it mean to
prioritize making ready over any other task? It's subjective.
Also, an order does not have to be in explicit imperative mood to be
an order. "I'd like you to square away this compartment" is a legal
order.
Tangentially, in the USN and the USMC (but not, for historical,
cultural reasons in the US army or USAF) there are at least two
affirmative responses allowed the recipient, and they mean very
different things. I believe they have been used in court martial
defenses, but I can't cite. They are "Yes, sir (ma'am)" and "Aye aye,
sir (ma'am.)" The former means "I have heard and understand the
command/order." The latter means "I have heard and understand the
command/order and will comply." Movies get this wrong all the time.
So, in LEO terms, I think there is also a functional difference
between a command and an order. (The issue of legality is separate.) A
suspect running away from a crime scene hears the LEO shout "Halt!"
This is a command. The LEO doesn't mean "when you feel like it." He
means "NOW!" There is a subjective amount of unpleasant action the
suspect can expect afterward if he does not halt. Also, it is
reasonable that the suspect, after he halts, should not then expect to
be at liberty to reach into his jacket pocket for a cell phone to call
his mama, until the LEO gives him permission to do so. That
prohibition is reasonably included in the "Halt!"
OTOH, if an LEO gives an order to a suspect DUI driver, "Get out of
the vehicle", it implies "Pretty much now, not in an hour", but it
does not imply "Get out before you do ANYTHING else." The driver can
put the car in "Park", engage the parking brake, turn off the engine,
release his seat belt, wait for a safe break in traffic, emerge, turn,
close the door, and turn again to face the LEO without being in
violation of the order. In fact, if he didn't take the car out of gear
he would be committing a crime.
I don't know if any of this helps with the semantics of order
communication. I can tell you that in the military context it
sometimes takes highly developed social skills to properly interpret
an order so as to please a superior who may not himself be an
excellent communicator. And the sea lawyer who, after being told to
get a haircut, doesn't get one and then responds "But you didn't say
when!" usually has a chance to develop those social skills while
explaining his side at Captain's Mast.
Steve
Cy Pres
<mjaco...@gmail.com> wrote:
>OTOH, the converse is _not_ true; there _may_ be orders that are
>REASONABLE to disobey, even though technically it would be LEGAL to
>obey them. Somehow, on the flip side, the theme from "Bridge On The
>River Kwai" keeps running thru my head here. Did the British officer
>act unreasonably by CONTINUING to obey the orders of his Japanese
>captors, to command his men to finish building the bridge that would
>soon allow the Japanese forces to bring further war materiel to the
>front to facilitate further destruction of the still-fighting British
>forces? And what about his underlings, the British soldier POWs who
>persisted in sabotage, who did everything they could to UNDERMINE
>their superior's efforts to give aid to the enemy? Were they acting
>"unreasonably?" I think not. Were they acting "illegally?" Sir
>Alec Guiness thought so. A Japanese court-martial, if one had been
>convened, surely would have thought so. But, I doubt any British
>court-martial would think so. They were JUSTIFIED to DISOBEY that
>particular unlawful order of their superior British officer, and thus
>it was reasonable for them to continue sabotaging the construction of
>the bridge, and to blow it up when it was done (sorry if that was a
>spoiler - see the movie anyway).
I will persist in a belief that any civilized person worthy of being
protected from spoilers is already familiar with all of David Lean's
films. However, I believe the common law of spoilers is that if
anyone born in time to see the movie and still remember it is now a
senior citizen, and the bulk of the population was born after the
movie was released, it can be assumed that its contents are common
knowledge.
Similarly, I doubt one could be accused of spoilers for describing the
plot of the Aeneid, or even Beowulf, though I suppose if Methuselah
were still alive, he could conceivably have failed to read it in the
intervening centuries.
Seth
meanings. I'll try to specify, for my parts.
"Order" is a common-language word, with the usual meaning.
"Legally enforceable order" is an order that it is illegal to disobey
(e.g. "Turn right at this corner" from a traffic control officer).
"Lawful" means "not illegal". A "lawful order" is one that it is not
a crime to give.
"Legal" can mean either "not illegal" or "by means of, or related to,
the legal system". I'll try to use "lawful" for the former meaning.
In article <bcf9845d-b4e1-4024...@19g2000yqu.googlegroups.com>,
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Mar 1, 11:45 am, se...@panix.com (Seth) wrote:
>> Mike Jacobs <mjacobs...@gmail.com> wrote:
[definition of "order"]
> This is the stuff of graduate seminars, and the stuff that
>appellate judges would have to do when they conference to hammer out a
>legal opinion defining "lawful order,"
It seems to me you're using that phrase with the definition I gave for
"legally enforceable order"; is that correct?
> _not_ just a kindergarten-level
>"I know it when I hear it" common-sense issue
I think that whether or not something is an _order_ is subject to the
usual "reasonable English-speaking person's judgment" rule. Whether
or not the law requires one to obey it has the typical complexity of
any legal issue.
> Rather, it's the beginning of a discussion of
>something that may lead to a refinement of existing concepts of what
>an "order" is, and what a "lawful order" is.
I think there are three (at least) categories of orders: those that
the law requires obedience to, those that the law permits obedience
and disobedience, and those that the law requires disobedience.
> I'm not just relying on
>a dictionary definition, or dicta from a case.
For the term "order", I think the (ideal) dictionary definition would
suffice.
> What we are engaging in here is (hopefully) a scientific/legal
>dissection of what actually goes into MAKING an order be an order,
That's psycho-linguistics, right?
> and what makes a "LAWFUL order" be a "lawful order," so we can
>understand the process better from an analytic perspective.
The latter (assuming the definition as above) requires that the law
say so.
>> An order is an order,
>
>That begs the question, doesn't it? We are, ab initio, trying to
>discuss what MAKES a certain communication be deemed an "order" rather
>than a "request." Contra your statement 2 sentences ago, it cannot
>be just or even primarily the grammatical form of the words, because
>an order can also consist of a NON-verbal command, one communicated by
>gesture, as are probably the majority of those orders given by traffic
>cops to motorists.
True; in addition to grammatical form and tone of voice, there are
gestures and props. ("I think you might want to very strongly
consider lying face down on the ground with your hands behind your
neck" is probably an order if stated calmly and politely by someone
pointing a gun.)
>Let's start with a basic description of the process - for any
>communication of meaning to take place, there must be a sender, a
>message, and a recipient. Various factors in _each_ of those can
>affect how well the _intended_ message actually gets communicated.
If the intended recipient of an order does not understand it, then it
probably won't be obeyed. If it was a reasonably lack of
understanding, I don't think anyone would be found guilty as a result.
> That's the scientific side - the legal side is, under the
>modern theory, an OBJECTIVE view of meaning. In law, words mostly are
>interpreted to mean what a REASONABLE PERSON would normally expect
>them to mean in the context in which they are said, relying neither on
>an unusual subjective interpretation nor on a strained formalism that
>ignores context.
Isn't that subjective? I take "objective" to mean there's a fixed
definition, not subject to opinions.
>So, as a starting proposition
. . .
>- consider this formulation:
>
>An "order" is any communication that, considering all the context,
>both an objective sender and an objective recipient would consider (a)
>gives directions to the recipient, (b) was meant to be obeyed rather
>than providing an option, and (c) carries undesirable consequences for
>disobedience.
The undesirable consequence should be due to the disobedience per se;
otherwise, good advice is an order (and bad advice, unenforced, isn't).
"Jump off the cliff or I'll kick you in the shins." That's an order,
but I suspect obedience carries more undesirable consequences than
disobedience. If only the first part is stated, I think it's still an
order, though there are no consequences for disobedience.
Or is that meant to be the distinction between "order" and "command"?
> Those consequences either are previously known by the
>recipient as part of the cultural context, or are communicated to the
>recipient as part of the communication, and only such consequences as
>a reasonable recipient will see as likely to occur if the "order" is
>not obeyed really matter. If all those elements are met, we are
>probably dealing with an "order" rather than a "request," regardless
>of the grammatical form in which the order is given.
Does the ability of the speaker to provide undesirable consequences
affect whether the statement is an order? (What about the perceived
ability, by the recipient?)
>> whether or not it's legal or enforceable.
>
>True that. But, backing up a step or two, this thread was about what
>constitutes a "LAWFUL order" of a law enforcement officer. We can
>all see that LEOs may give commands in the form of orders sometimes,
>even though they have no legal right to demand such a thing, and even
^^^^^^enforce their demand of
>though the recipient of that communication has no legal duty to obey.
In the common language, such an order may be lawful (not illegal), but
unenforceable.
>We already clarified much earlier in this thread, and it is not a
>reasonable subject for continued discussion, that what the LAW means
>by "a lawful order" is, FIRST of all, an "order" (as defined a few
>paragraphs above) - that is, it is a communication which both the
>sender, and the recipient, would reasonably interpret as a
>_command_. In addition, to be a "lawful order," it must be one given
>by a law enforcement officer,
Surely there are others who can issue orders that the law says must be
obeyed. (E.g. Fire Marshall says "No more people may enter this party
until some leave.")
> directing the recipient to do or to
>refrain from doing something, which (a) the LEO actually HAS a legal
>right to request, _and_ (b) the recipient has a legal duty to obey,
>which means the LEO has the right to use or threaten _force_ to obtain
>compliance.
That's why I called a "legally enforceable order".
>If we only have (a) but not (b), then it's a request, not a "lawful
>order," regardless of how commanding the LEO makes his voice sound and
>his use of verbs in the imperative grammatical mood.
I say it's still an "order" (and most English speakers would agree
with me), it's just not a legally enforceable one.
>But, if the cop CLAIMS to have a legal right, and DOES in fact
>exercise force or threat of force to compel obedience, when he does
>NOT have any such legal right, then YES his command is still an
>_order_, but then it is an UNLAWFUL order, one which goes BEYOND the
>legal right of the LEO to insist upon obedience.
Suppose it's a command that the LEO has the legal right to give, but
not to enforce. Giving it is not illegal; the enforcement action is
the crime.
> If the LEO uses force or threat to _compel_ obedience to such an
>illegal order, he can be sued for violating the recipient's
>constitutional right to due process and right to be free of
>unreasonable seizure.
Or for whatever else he did; and criminal charges are also
theoretically possible.
>> >no, either form could lead to a "stop and frisk" situation, or use of
>> >force.
>>
>> What does that have to do with whether the interaction starts with an
>> order?
>
>We had segued from the traffic-cop situation (original topic of this
>thread) to a situation where an LEO gives an order (or a request) to a
>civilian to stop so the cop can question him. I forget who started
>that side issue, but it also dealt with whether what the cop tells the
>civilian to do is an "order" so this thread went into that side issue
>at some depth.
Is there any difference between the stop-and-frisk situation whether
the LEO asks the person to stop and he declines, then is grabbed; or
the LEO just grabs him?
>There can be. So, we should modify the above "working hypothesis"
>about what a "lawful order" is, to something more like the _new_
>working hypothesis I stated for the first time a few paragraphs above,
>where what matters is the RIGHT of the cop to insist upon obedience,
>not whether he actually DOES insist upon and enforce obedience in a
>particular case.
Agreed, except for the ongoing quibble over "lawful order" rather than
"legally enforceable order".
>Not necessary. See above. I submit, for your picky review and
>comment, that what matters to our analysis is (a) the RIGHT to ask for
>compliance, and (b) the DUTY to obey, not whether the cop actually
>DOES use force, or whether the civilian actually DOES obey.
Agreed: an order is legally enforceable if the law says it must be
obeyed and gives a penalty for failure. (It isn't clear to me if a
law is "enforceable" when there's no penalty for violation. Such laws
do exist.)
>> Guy is walking quickly. Cop says "May I ask you a question?" Guy
>> replies "Sorry, I'm late for work" and keeps going. Cop grabs him.
>> Does that mean the request was an order?
>
>By the rubric stated above, it does make it an "order."
I think most English speakers would consider it a request.
> Whether it was a "LAWFUL" order depends on whether the cop had any
>legal RIGHT to so restrain the guy;
I agree that if the cop had the right to restrain the guy, then a
"Stop!" order would have been legally enforceable.
Suppose the cop hadn't said anything, but as the guy walked past the
cop suddenly realized he looked like a wanted poster, so the cop
grabbed him. I'll stipulate that the cop had the legal right to; but
was the "nothing" an order?
> if the cop was exceeding his authority, it was an UNLAWFUL order.
I'd say it was unlawful restraint (false arrest, etc.) The statement
itself was protected by the First Amendment; the assault was the
crime.
> The authority to conduct, and the lawfulness of, any
>particular compelled "Terry stop" depends on _all_ the surrounding
>circumstances, not just the semantics of the communication between
>sender and recipient as you seem to assume here.
I understand that; my disagreement is at a different point. If the
cop had the right to stop someone, he had that right whether or not he
first ordered the guy to stop. The order (if obeyed) just minimizes
the effort for both of them.
>> So you acknowledge that things might be orders, yet have different
>> values for "what the cop is allowed to do if the order is disobeyed."
>> That implies that the latter does not define "order".
>
>I'm not sure I follow that entirely. Are we just talking about
>"orders" in general again, or "LAWFUL orders" of an LEO in particular?
That's my point. A (your terminology) lawful order or (my
terminology) legally enforceable order must, by law, be obeyed; and
the officer is permitted to take appropriate action if it's
disobeyed. But whether the utterance (including gestures, tone, body
language, etc.) is an order does not depend on the specific law or
facts.
>If you mean that the mere _right_ to compel obedience does not define
>an "order,"
I say it doesn't. For instance, there's a Minneapolis law
171.40: Authority to summon assistance. Each police officer shall be
active and vigilant in enforcing the provisions of this Code and
all the ordinances of the city, and shall if necessary call to the
officer's aid any person above the age of eighteen (18) years to
assist therein; and no such person shall refuse to give assistance
when so called upon. (Code 1960, As Amend., ' 630.040;
Pet. No. 252561, ' 1, 6-15-90)
which makes a lot of (potential) police orders enforceable, and yet
I believe that a police officer giving such an order, phrased as a
request, would likely have no intention of enforcing that order,
despite having the right to do so.
> then yes, there could be an _unlawful_ "order" where the
>cop has NO right to ask the civilian to do,
Wouldn't Freedom of Speech usually say the cop has the right to _ask_?
> but where it is still clear to all that the cop INTENDS to use force
>or threat of force to compel obedience. That would indeed be an
>"order," even if it is an "unlawful order."
I agree, that if the "asking" is done under circumstances where a
reasonable person would see a threat of force against disobedience,
then it's an order. ("Nice business you have here. Be a shame if
something were to happen to it, don't you think? Things break, you
know." I'd consider that an order to pay off the extortionist.)
>But if you mean, the _right_ to compel obedience is not what defines a
>"LAWFUL order," I would disagree, since absent that right, the LEO's
>words either are not an "order" but a mere "request," or are an
>unlawful "order."
But even with that right, the LEO might make a request and not intend
enforcement.
>> >So, what makes a cop's request a "lawful order" is something that must
>> >be reconstructed from predicting the probable jury verdict that would
>> >come in at the conclusion of a future trial of the civilian for the
>> >crime of "refusing a lawful order of a law enforcement officer."
>>
>> I think that applies in the military, where one is _required_ to obey
>> orders (from a superior) that aren't unlawful.
>
>Civilians are, too.
Soldiers are required to obey any order from a superior that isn't
actually illegal. ("Pick up all the trash in that area.") Civilians
are not required to obey similar orders from police.
>Frex, a sergeant can lawfully _order_ a private to tie his shoes, and
>the private must comply, or go to the stockade.
. . .
>An LEO _cannot_ lawfully order a civilian to tie his shoes; he is
>allowed to _request_ it, of course, but there is no duty to obey and
>no right to COMPEL obedience.
He can make that request as an order; it still need not be obeyed.
>Mostly, a civilian in a free society like ours is free to do anything
>that is not specifically forbidden by law. But, if a cop issues a
>lawful order to a civilian, the civilian _is_ required by law to
>obey. That's part of how I propose we should be _defining_ and
>determining what a "lawful order" _IS_.
In the military, a lawful order is any that isn't illegal. In
civilian life, I think the same definition should apply; civilians are
only legally required to obey legally enforceable orders.
>> In civilian life,
>> people generally aren't required to obey orders from police
>
>Yes they are, if it is a "LAWFUL order," as I propose we define them.
In most places, the only such orders have to do with traffic
(apparently, based on a few posts here).
>One can properly be prosecuted and convicted for disobeying a lawful
>order in circumstances where a specific statute compels obedience.
It's the statute compelling obedience that causes the requirement.
>Now you're using the word "order" differently than we have been
>throughout this thread,
I'm using it in the normal English sense of the word, which is the
only way a person can know if what was just said to him is an order.
Using the "legally enforceable order" meaning, even lawyers don't know
(until the final appeal if it comes to that).
> and you are once again, unilaterally, looking only to the
>grammatical form of the LEO's words to see whether you want to call
>it an "order"
I'll include tone of voice, gestures, etc.
> and you are also completely ignoring the factors that should go into
>determining whether it is a "LAWFUL order."
That's the next step. If it isn't an order, then any action or
inaction can't be "violation of an order" (whether or not obedience is
legally required), because there wasn't any order to violate.
> If there is no duty to obey, then the message the cop is
>communicating is by definition not a "LAWFUL order of an LEO" as to
>which legal consequences would attach for failure to obey.
Agreed. But it's still an order.
> It is then just a "request" even if it is stated in a stern tone of
>voice and using a verb in the imperative mood: "_DO_ this. _DON'T_
>do that."
I disagree.
>> >ISTM the jury would have to find that (a) the cop had been duly
>> >granted authority by some statute to issue an order to a civilian,
>>
>> Or, rather, that some statute requires a civilian to obey such an
>> order if issued.
>
>Those are flip sides of the same coin, if you accept _my_ proposed
>definition.
I prefer to believe that I know when something is an order. (I don't
necessarily know if I have to obey it; but if it isn't an order, then
I don't.)
> Absence of a duty to obey means there was NO legal right
>of the LEO to compel obedience,
Agreed.
> and therefore it was not a "lawful order," merely a "request"
rather, I think, an "unenforceable order".
I could order you not to post messages with an odd number of words in
them. You would acknowledge that it's an order, and that you have no
reason to obey it, right?
But this is the Internet. If some arbitrary person were to do that,
would it be an order? Why should it matter if the person were a law
enforcement officer?
>> (How likely is a statute that allow an officer to
>> give orders without requiring obedience?
>
>You see my point, then. You cannot have one without the other.
One what without which other? You can have orders that there's no
requirement to obey. You can even have orders which are specifically
permitted by statute yet which people are not required to obey.
> And
>that HELPS us, analytically, to see what a "lawful order" really is.
>If there is no duty to obey, then it is NOT a "lawful order"
>regardless of how it is worded,
>I think part of YOUR problem here, Seth, is that you keep abandoning
>the rubric "LAWFUL order" and randomly go back to calling the thing we
>are discussing a mere "order," which IS a purely grammatical,
>psycholinguistically-defined animal, and which even toddlers and dogs
>can recognize as such. It does no help to clarity of analysis to
>keep interchanging the two terms as if they were synonymous.
I'm not; rather, I'm taking the first question to be "Is it an order?"
Only if the answer is affirmative does the second question, "Am I
legally required to obey it?" become an issue.
>Finding that something _IS_, grammatically and psycholinguistically,
>an "order" is only STEP ONE to determining whether that "order" is in
>fact a "lawful order." Step 2 is, noting that the order comes from
>an LEO (or a person acting under color of state law, which at this
>level of analysis we can assume is the same thing). Step 3 is to see
>if the LEO has actual authority to even REQUEST such a thing (subject
>to _voluntary_ compliance by the citizen, such as requesting consent
>to a warrantless search). Finally, at step 4 we determine whether
>there was a legal _duty_ on the part of the civilian to obey, AND
>(flip side) whether the LEO had a legal right under the circumstances
>then and there pertaining, to COMPEL obedience. Only then is what
>purports to be an "order" really a "lawful order."
Agreed. That shows that "order" is not the same as what you call
"lawful order".
>> There are at least some that
>> require obedience from specific types of people (e.g. "over 18") while
>> the order might be given to someone under 18.)
>
>Exactly. The context of determining what a communication means
>includes the nature and characteristics of the sender, and of the
>recipient, as well as the actual content of the message, and other
>surrounding circumstances.
The meaning of that one is clear, and the same whether the recipient
is 17 or 18; the only difference is that the 17-year-old is not
required to obey it.
>> > (c) circumstances were such that the civilian could not reasonably
>> >refuse to obey the order,
>>
>> How does "reasonably" enter into it? Something could easily be
>> reasonable and still illegal.
>
>I qualified that with "reasonably" because one can ALWAYS refuse to
>obey an order. All one need do is, "just say NO."
"Can", yes. But the issue, I think, is whether the person could
*legally* refuse to obey the order, whether or not that refusal is
"reasonable".
> Similarly, a person who refuses to surrender his freedom is ALWAYS
>free, even if someone else wants to capture or enslave him or compel
>obedience to an order.
For a strange definition of "free". (Consider someone else, much
stronger, capturing and immobilizing him.)
> Fighting to the death, or suicide, are always options.
Only if physically permitted.
>That doesn't mean it's REASONABLE to disobey, or LEGAL to disobey, in
>a particular circumstance.
My point is that those are different things.
>Whether it was LEGAL to disobey a purported "order" depends on
>whether, under all the circumstances, it was objectively REASONABLE
>(in the eyes of the judge or jury) for that person to disobey.
Why is that the standard? Suppose there is a purported order
(presumably, that means something that grammatically appears to be an
order but might not be legally enforceable, right?) where it is not
objectively reasonable to disobey, but there's no statute requiring
obedience. I say that disobedience is legal in that case.
> If the factfinder finds that it WAS, then ipso facto either the
>"order" was not a "lawful order,"
But it was still an order.
> _OR_ (despite the order being lawful in the
>abstract) the recipient had some legally cognizable justification or
>excuse for refusing to obey, which made it reasonable and not illegal
>FOR HIM under all the circumstances NOT to obey that particular order
>at that particular time.
But by your definition, that would make it not a "lawful order" (given
to that person, at that time, under those circumstances).
>This CANNOT be determined without context.
I never suggested it could. Even the grammatical issue can require
some context.
>> >I think Seth's problem, and mine too, as thus rephrased, is: How do we
>> >determine what sort of request is "within the officer's authority to
>> >command," and also, how do we determine what "circumstances" make it
>> >unreasonable for the civilian to disobey such an order?
>> ^^^^^^^^^^^^
>> I'd say "illegal" there. There could be orders that it would be
>> unreasonable to disobey, yet still not illegal to do so.
>
>Name one? I can't think of any.
A police officer ordering pedestrians not to walk along a particular
section of sidewalk because there are ice jams on the roof of the
adjacent building that come crashing down and could injure or kill
somebody. It's quite unreasonable to disobey that order, but there's
no statute requiring a pedestrian to obey it.
> Only if we are adhering to a rigid and unthinking formalism is it
>possible to consider circumstances where it is UNREASONABLE to
>disobey a lawful order, but not illegal to do so.
That's because you're defining a lawful order as one that it's illegal
to disobey.
>OTOH, the converse is _not_ true; there _may_ be orders that are
>REASONABLE to disobey, even though technically it would be LEGAL to
>obey them.
. . .
> They were JUSTIFIED to DISOBEY that
>particular unlawful order of their superior British officer,
So we have: 1. lawful order: required to obey; 2: unlawful order:
permitted to obey or disobey; and 3: illegal order: required to
disobey.
>> Doesn't it always come down to what a court (or the highest court that
>> decides) determines?
>
>Pretty much. And those courts, these days, are mostly guided by
>social realities, not rigid formalities.
Except when they aren't (e.g. the recent Supreme Court case on Freedom
of Speech).
>Although, again, as in the River Kwai, it depends in part on WHOSE
>court is doing the deciding.
Of course. Different jurisdictions have different laws.
Seth
Mike Jacobs
> Part of the issue, I think, is terms of art versus common language
> meanings. I'll try to specify, for my parts.
Fair enough.
> "Order" is a common-language word, with the usual meaning.
Agreed, if that word is standing alone in a sentence in a non-
legalistic context. When it is used as merely part of the combined-
form term "lawful order" in various statutes, it has a different,
specific meaning that only partly overlaps that of its common-sense
meaning, in all the ways I talked about last time and won't repeat
here.
> "Legally enforceable order" is an order that it is illegal to disobey
> (e.g. "Turn right at this corner" from a traffic control officer).
That's what virtually all of the statutes that deal with such things
call a "LAWFUL order."
You're free to call it whatever you want, but that just confuses
things, if we are talking about the meaning of specific statutes.
Even if I agree that your formulation makes more grammatical sense, as
noted above this is NOT a mere grammar issue. We are trying to
determine what a statute means when it refers to a "lawful order."
The statutes I'm familiar with _don't_use_ the new term you just made
up, "legally enforceable order," for reasons unknown and probably
unknowable. My guess is, the legislatures decided on a shorter,
pithier, more Anglo-Saxon word ("legal" is Latin derived (from "lex,"
plural "legis," adjectival form "legalis" meaning "of the law") and
came into English usage probably via Norman French at the time of the
Conquest in 1066; while the Germanic-derived synonym "lawful" (Middle
English "laghful," cognate to Old Norse "logfullr," a combining form
of "lagh" (law) and "ful" (a Germanic, not Latinate, suffix for
converting a noun to an adjective indicating derivation from or
relation to something), further derived from Old English
"lagu" (identical to Old Norse "lagu") meaning a layered, stratified,
or ordered pile of something, akin to "lay" and "lie". And the law
is, indeed, a layered, stratified pile (of _something_). Isn't that
amazing? (I didn't know that either until I looked it up on
Dictionary.com a few moments ago.)
> "Lawful" means "not illegal"
In common usage.
> A "lawful order" is one that it is not
> a crime to give.
That's not what it means when used as a specific legal term of art.
> "Legal" can mean either "not illegal" or "by means of, or related to,
> the legal system".
True.
> I'll try to use "lawful" for the former meaning.
Unfortunately, the statutes typically use "lawful" for the former
meaning, in this context. A "legal order" is one which purports to
be given under color of law (whether it is in fact "lawful" or not),
which is a very different thing in legal terminology.
> In article <bcf9845d-b4e1-4024-ad7a-e679f6f23...@19g2000yqu.googlegroups.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 1, 11:45 am, se...@panix.com (Seth) wrote:
> >> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> [definition of "order"]
>
> > This is the stuff of graduate seminars, and the stuff that
> >appellate judges would have to do when they conference to hammer out a
> >legal opinion defining "lawful order,"
>
> It seems to me you're using that phrase with the definition I gave for
> "legally enforceable order"; is that correct?
Yes. Your phrase is one you just made up. The phrase I'm using is
the one that appears in the statutes under discussion, which penalize
a civilian for failing to comply with a "lawful order" of a LEO.
> > _not_ just a kindergarten-level
> >"I know it when I hear it" common-sense issue
>
> I think that whether or not something is an _order_ is subject to the
> usual "reasonable English-speaking person's judgment" rule.
Agreed. At least, as to the grammatical form and intended meaning of
such a communication.
> Whether
> or not the law requires one to obey it has the typical complexity of
> any legal issue.
Of course.
> > Rather, it's the beginning of a discussion of
> >something that may lead to a refinement of existing concepts of what
> >an "order" is, and what a "lawful order" is.
>
> I think there are three (at least) categories of orders: those that
> the law requires obedience to,
AKA a "lawful order" in legal parlance;
> those that the law permits obedience and disobedience,
AKA a "legal request" as I am using it - the law simply does not
consider such a communication, no matter how imperative-sounding, to
be an "order" of any kind, unless _enforcement_ is threatened or
implied, which would make such a communication into an order (lawful
_or_ unlawful, depending on other factors);
> and those that the law requires disobedience.
That would be an "illegal" request (if standing alone) or an "illegal
order" if enforcement is attempted or threatened or implied.
You also left out the FOURTH box of this matrix, which is really a
variant of your second one, because your second option breaks down
into TWO separate situations:
(2)(a) those that the law PERMITS the LEO to ask, but also permits the
civilian to obey or disobey as he chooses; and
(2)(b) those that the law FORBIDS the LEO to even ask, WHETHER OR NOT
the civilian is free to obey or disobey as he chooses, and which
_become_ an order if the civilian reasonably feels he is not free to
refuse to comply.
Frex, a cop cannot ask a nubile young female motorist whom he has
stopped for a traffic violation, "Suck my [Richard Nixon}." That
would be a serious violation by the LEO of the civilian's rights, for
him to even ASK in that circumstance (even though, when he is OUT of
uniform, throwing down a few brewskies at his favorite pub OFF-duty,
and meets the very same young lady there, the applicable rule is
"There's No Harm In Asking" even if that means he's behaving like a
[donkey orifice])
So, this 4-box matrix, as we have just refined it, is defined by TWO
variables with TWO values each:
The LEO either IS, or IS NOT, legally allowed to ASK; and
The civilian either IS, or IS NOT, legally required to COMPLY.
Here's the breakdown (pardon my attempt to draw an ASCII box if your
email readers' formatting may differ:
\ Civilian: MAY FREELY WILL BE FORCED TO OBEY
\ REFUSE (under
compulsion
\ (with no apparent of force or
threat of force,
\ threat of force) whether
legal or not)
\
_________________________________________
LEO: \ |
| |
| legal request | lawful
order |
MAY ASK | (choice allowed) | (legally, must be
obeyed) |
(authorized by law) |__________________|______________________|
|
| |
MAY NOT | illegal request | unlawful
order |
LEGALLY ASK | (need not obey, and | (legally, must DIS-obey |
(forbidden by law) | may sue for asking) | even if force is
applied) |
|___________________|
______________________|
How's that grab you?
This analysis also covers UNLAWFUL orders, those which the person
receiving the order is COMPELLED BY LAW (although not such as he would
hear from anyone present at the time, holding a gun) to DIS-obey, such
as an order to do something whis is INDEPENDENTLY and patently
(clearly) illegal, such as an order to commit some heinous crime.
If the thing you are being asked to do is NOT clearly illegal, AND if
the person asking is allowed to ask it, then the LEO doing the asking
_IS_ allowed to use force to compel obedience (that's what the recent
SCOTUS line of cases on "qualified immunity" for LEOs meant,
immunizing them from complaints of wrongdoing unless they violated
"clearly established" rights in the course of fulfilling their
duties). And, even if the LEO turns out later to be WRONG, the
civilian can STILL be liable for refusing to obey his "lawful order."
As a practical matter, the time for a civilian to determine whether an
order must be obeyed, may be refused, or MUST be refused, is WHEN IT
IS GIVEN, not a long time later in a courtroom.
> > I'm not just relying on
> >a dictionary definition, or dicta from a case.
>
> For the term "order", I think the (ideal) dictionary definition would
> suffice.
Only for its _common_ usage, not when it is part of a legal term of
art.
> > What we are engaging in here is (hopefully) a scientific/legal
> >dissection of what actually goes into MAKING an order be an order,
>
> That's psycho-linguistics, right?
Yeppers.
> > and what makes a "LAWFUL order" be a "lawful order," so we can
> >understand the process better from an analytic perspective.
>
> The latter (assuming the definition as above) requires that the law
> say so.
Say WHAT? I don't know if it's you, me, or your words, but we are
not communicating here.
> >> An order is an order,
>
> >That begs the question, doesn't it? We are, ab initio, trying to
> >discuss what MAKES a certain communication be deemed an "order" rather
> >than a "request." Contra your statement 2 sentences ago, it cannot
> >be just or even primarily the grammatical form of the words, because
> >an order can also consist of a NON-verbal command, one communicated by
> >gesture, as are probably the majority of those orders given by traffic
> >cops to motorists.
>
> True; in addition to grammatical form and tone of voice, there are
> gestures and props. ("I think you might want to very strongly
> consider lying face down on the ground with your hands behind your
> neck" is probably an order if stated calmly and politely by someone
> pointing a gun.)
You would be a wise civilian to so interpret the officer's kind and
gentle words in that situation.
> >Let's start with a basic description of the process - for any
> >communication of meaning to take place, there must be a sender, a
> >message, and a recipient. Various factors in _each_ of those can
> >affect how well the _intended_ message actually gets communicated.
>
> If the intended recipient of an order does not understand it, then it
> probably won't be obeyed. If it was a reasonably lack of
> understanding, I don't think anyone would be found guilty as a result.
>
> > That's the scientific side - the legal side is, under the
> >modern theory, an OBJECTIVE view of meaning. In law, words mostly are
> >interpreted to mean what a REASONABLE PERSON would normally expect
> >them to mean in the context in which they are said, relying neither on
> >an unusual subjective interpretation nor on a strained formalism that
> >ignores context.
>
> Isn't that subjective? I take "objective" to mean there's a fixed
> definition, not subject to opinions.
No, that's not what "objective" means. "Objective" means
"reasonable" as defined by the standards of society at that time and
place and under those circumstances. Even then, though, different
juries can reach different opinions applying the same, objective legal
standard, about whether a given act was negligent or not, about
whether an LEO's statement to a civilian carried the weight of an
order (via implied use of force) or not, and so forth. What makes
these juries' standard objective rather than subjective (even though
they each came to DIFFERENT results), is that they were told to look
NOT to the interior thoughts or motives or feelings of the ACTOR whose
acts were being questioned as to their objective reassonableness, but
rather to a standard OUTSIDE of that actor's own (ultimately
unknowable) hormonal or cognitive situation.
> >So, as a starting proposition
> . . .
> >- consider this formulation:
>
> >An "order" is any communication that, considering all the context,
> >both an objective sender and an objective recipient would consider (a)
> >gives directions to the recipient, (b) was meant to be obeyed rather
> >than providing an option, and (c) carries undesirable consequences for
> >disobedience.
>
> The undesirable consequence should be due to the disobedience per se;
Right, good point.
> otherwise, good advice is an order (and bad advice, unenforced, isn't).
Yep. Hey, as I told you we were working this out as we went along;
this is unexplored territory. Good job.
> "Jump off the cliff or I'll kick you in the shins." That's an order,
> but I suspect obedience carries more undesirable consequences than
> disobedience. If only the first part is stated, I think it's still an
> order, though there are no consequences for disobedience.
In the rubric we are exploring, the first part is only an "order" if
enforceable consequences are threatened or implied (even though not
explicitly stated).
> Or is that meant to be the distinction between "order" and "command"?
No, that was another poster who raised that distinction, particularly
in the miilitary context. And a good distinction it was; I loved his
response, and the anecdotes he provided. I just don't think it's
relevant here, in the LEO-vs.-civilian context.
> > Those consequences either are previously known by the
> >recipient as part of the cultural context, or are communicated to the
> >recipient as part of the communication, and only such consequences as
> >a reasonable recipient will see as likely to occur if the "order" is
> >not obeyed really matter. If all those elements are met, we are
> >probably dealing with an "order" rather than a "request," regardless
> >of the grammatical form in which the order is given.
>
> Does the ability of the speaker to provide undesirable consequences
> affect whether the statement is an order? (What about the perceived
> ability, by the recipient?)
Let's go with (objectively) "perceived" ability and see where that
gets us.
> >> whether or not it's legal or enforceable.
>
> >True that. But, backing up a step or two, this thread was about what
> >constitutes a "LAWFUL order" of a law enforcement officer. We can
> >all see that LEOs may give commands in the form of orders sometimes,
> >even though they have no legal right to demand such a thing, and even
>
> ^^^^^^enforce their demand of
>
> >though the recipient of that communication has no legal duty to obey.
>
> In the common language, such an order may be lawful (not illegal), but
> unenforceable.
Okay. That's what makes it a legal REQUEST rather than an order, on
our 4-box matrix.
I'm not calling it an "order" unless the recipient of the
communication is given NO OPTION other than to obey, on pain of
enforceable and unpleasant consequences being imposed by the person
doing the ordering (and not by karma or the laws of physics). If you
disagree, and look only to the grammatical form of the communication,
we are talking apples and oranges.
> >We already clarified much earlier in this thread, and it is not a
> >reasonable subject for continued discussion, that what the LAW means
> >by "a lawful order" is, FIRST of all, an "order" (as defined a few
> >paragraphs above) - that is, it is a communication which both the
> >sender, and the recipient, would reasonably interpret as a
> >_command_. In addition, to be a "lawful order," it must be one given
> >by a law enforcement officer,
>
> Surely there are others who can issue orders that the law says must be
> obeyed. (E.g. Fire Marshall says "No more people may enter this party
> until some leave.")
In that example, the Fire Marshall _is_ acting as a law enforcement
officer (that is, he is "enforcing the law.") With the emphasis on
FORCE, since he can issue a citation and compel your attendance in
court to explain yourself if you disregard what he is telling you,
just as a police officer can - or a health inspector, or a building
inspector, or any other "law enforcement officer" enforcing some
particular law or set of laws. He is not a POLICE officer, though,
unless he has had delegated to him by the State the power to ARREST
people and/or to use deadly force to compel obedience.
> > directing the recipient to do or to
> >refrain from doing something, which (a) the LEO actually HAS a legal
> >right to request, _and_ (b) the recipient has a legal duty to obey,
> >which means the LEO has the right to use or threaten _force_ to obtain
> >compliance.
>
> That's why I called a "legally enforceable order".
Yes, we know what you're calling it. And you are being subjectively,
internally consistent in doing so. And maybe your Betamax really IS
a much better system than the VHS system the law is using. But, the
law is hooked on VHS, and insists on calling the subject under
discussion a "lawful order" instead. So, if you want to be
objectively understood by people familiar with legal terms of art, you
will use it that way, too.
> >If we only have (a) but not (b), then it's a request, not a "lawful
> >order," regardless of how commanding the LEO makes his voice sound and
> >his use of verbs in the imperative grammatical mood.
>
> I say it's still an "order" (and most English speakers would agree
> with me), it's just not a legally enforceable one.
Again, your terminology is internally consistent and logical, but
that's just not the way it is used in the law. See above.
> >But, if the cop CLAIMS to have a legal right, and DOES in fact
> >exercise force or threat of force to compel obedience, when he does
> >NOT have any such legal right, then YES his command is still an
> >_order_, but then it is an UNLAWFUL order, one which goes BEYOND the
> >legal right of the LEO to insist upon obedience.
>
> Suppose it's a command that the LEO has the legal right to give, but
> not to enforce. Giving it is not illegal; the enforcement action is
> the crime.
That's covered in our 4-part matrix, above. So, that issue DID occur
to you, but just took a bit longer.
> > If the LEO uses force or threat to _compel_ obedience to such an
> >illegal order, he can be sued for violating the recipient's
> >constitutional right to due process and right to be free of
> >unreasonable seizure.
>
> Or for whatever else he did; and criminal charges are also
> theoretically possible.
Yes, if he issues an illegal order.
> >> >no, either form could lead to a "stop and frisk" situation, or use of
> >> >force.
>
> >> What does that have to do with whether the interaction starts with an
> >> order?
It doesn't. That was my _point_. I was responding to your query of
WHY (or _if_) the grammatical form of the LEO's statement made a
difference, and my reply was, NO, either form could apply and be
considered an "order" depending on an objective analysis of the
understood meaning that was communicated, regardless of its
grammatical form. And, in the prior discussion we were talking there
about the side issue of "stop and frisk" situations only, not "traffic
commands," so mentioning that was just re-stating the context. As
noted below:
> >We had segued from the traffic-cop situation (original topic of this
> >thread) to a situation where an LEO gives an order (or a request) to a
> >civilian to stop so the cop can question him. I forget who started
> >that side issue, but it also dealt with whether what the cop tells the
> >civilian to do is an "order" so this thread went into that side issue
> >at some depth.
>
> Is there any difference between the stop-and-frisk situation whether
> the LEO asks the person to stop and he declines, then is grabbed; or
> the LEO just grabs him?
> >There can be.
??? Your snipping made it look like my statement, above, was given
IN ANSWER TO your question above it. The answer was being given to
something ELSE that you snipped out in between, which I'm not going to
go back and try to find. We'll just move on to the next issue: in
answer to the NEW question you pose above, no, I don't see a
difference between the 2 in deciding whether the LEO has "ordered" the
civilian to stop and submit.
> >So, we should modify the above "working hypothesis"
> >about what a "lawful order" is, to something more like the _new_
> >working hypothesis I stated for the first time a few paragraphs above,
> >where what matters is the RIGHT of the cop to insist upon obedience,
> >not whether he actually DOES insist upon and enforce obedience in a
> >particular case.
>
> Agreed, except for the ongoing quibble over "lawful order" rather than
> "legally enforceable order".
Quibble understood. I'll see your apple, and raise you two oranges.
> >Not necessary. See above. I submit, for your picky review and
> >comment, that what matters to our analysis is (a) the RIGHT to ask for
> >compliance, and (b) the DUTY to obey, not whether the cop actually
> >DOES use force, or whether the civilian actually DOES obey.
>
> Agreed: an order is legally enforceable if the law says it must be
> obeyed and gives a penalty for failure. (It isn't clear to me if a
> law is "enforceable" when there's no penalty for violation. Such laws
> do exist.)
Agreed.
> >> Guy is walking quickly. Cop says "May I ask you a question?" Guy
> >> replies "Sorry, I'm late for work" and keeps going. Cop grabs him.
> >> Does that mean the request was an order?
>
> >By the rubric stated above, it does make it an "order."
>
> I think most English speakers would consider it a request.
Even after the cop grabbed the perp against his will? I wouldn't
consider that a mere "request."
> > Whether it was a "LAWFUL" order depends on whether the cop had any
> >legal RIGHT to so restrain the guy;
>
> I agree that if the cop had the right to restrain the guy, then a
> "Stop!" order would have been legally enforceable.
Sure. Either by words, or by gesture (such as, by grabbing his arm).
> Suppose the cop hadn't said anything, but as the guy walked past the
> cop suddenly realized he looked like a wanted poster, so the cop
> grabbed him. I'll stipulate that the cop had the legal right to; but
> was the "nothing" an order?
It wasn't "nothing" - the cop GRABBED him. Do you call that
"nothing?"
> > if the cop was exceeding his authority, it was an UNLAWFUL order.
>
> I'd say it was unlawful restraint (false arrest, etc.) The statement
> itself was protected by the First Amendment; the assault was the
> crime.
The First Amendment only prevents laws from being made that impose a
PRIOR RESTRAINT on speech. It does not, and has never been
interpreted to mean, that the law cannot impose LEGAL CONSEQUENCES
AFTER-the-fact for certain kinds of speech. You can be successfully
prosecuted or sued for creating panic by falsely yelling "FIRE" in a
crowded theater, for defamatory statements, for copyright
infringements, for incitement to violence via hate speech, and for
many other kinds of illegal or tortious statements.
And, where the act _IS_ the communication, one can be prosecuted for
that ACT even though it has expressive meaning as a gesture, in
addition to its operative effect as a direct physical retardation of
the civilian pedestrian's continued forward progress on foot.
> > The authority to conduct, and the lawfulness of, any
> >particular compelled "Terry stop" depends on _all_ the surrounding
> >circumstances, not just the semantics of the communication between
> >sender and recipient as you seem to assume here.
>
> I understand that; my disagreement is at a different point.
Okay.
> If the
> cop had the right to stop someone, he had that right whether or not he
> first ordered the guy to stop.
Correct. And if he grabs the guy without first yelling "Stop," then
the grabbing _IS_ the "order." It is a communicative act, and to any
reasonable person its meaning is crystal clear.
> The order (if obeyed) just minimizes
> the effort for both of them.
I suppose. Although if the cop felt he was going to have to grab the
guy anyway, isn't it easier to just grab him, rather than gab-'n'-
grab?
> >> So you acknowledge that things might be orders, yet have different
> >> values for "what the cop is allowed to do if the order is disobeyed."
> >> That implies that the latter does not define "order".
>
> >I'm not sure I follow that entirely. Are we just talking about
> >"orders" in general again, or "LAWFUL orders" of an LEO in particular?
I was talking about "lawful orders of an LEO." You were talking
about "orders" in general, and I was showing why your term DID NOT
completely define the scope of what might be considered a "LAWFUL
order.". YOU used "order" at the end of the last sentence of that
statement in YOUR sense, not mine, to show why your word wasn't
enough. Sorry if that exchange was confusing.
> That's my point. A (your terminology) lawful order or (my
> terminology) legally enforceable order must, by law, be obeyed; and
> the officer is permitted to take appropriate action if it's
> disobeyed.
Agreed.
> But whether the utterance (including gestures, tone, body
> language, etc.) is an order does not depend on the specific law or
> facts.
No. Now you're using the word "order" only in the common,
grammatical sense. We're getting nowhere.
> >If you mean that the mere _right_ to compel obedience does not define
> >an "order,"
>
> I say it doesn't. For instance, there's a Minneapolis law
>
> 171.40: Authority to summon assistance. Each police officer shall be
> active and vigilant in enforcing the provisions of this Code and
> all the ordinances of the city, and shall if necessary call to the
> officer's aid any person above the age of eighteen (18) years to
> assist therein; and no such person shall refuse to give assistance
> when so called upon. (Code 1960, As Amend., ' 630.040;
> Pet. No. 252561, ' 1, 6-15-90)
>
> which makes a lot of (potential) police orders enforceable, and yet
> I believe that a police officer giving such an order, phrased as a
> request, would likely have no intention of enforcing that order,
> despite having the right to do so.
So what? It _IS_ a lawful order, if he has the RIGHT to so enforce
it.
> > then yes, there could be an _unlawful_ "order" where the
> >cop has NO right to ask the civilian to do,
>
> Wouldn't Freedom of Speech usually say the cop has the right to _ask_?
Officer Fellatio has NO right to ask Ms. Motorist to perform certain
acts on his anatomy when he stops her for a traffic violation, even if
he asks nicely.
> > but where it is still clear to all that the cop INTENDS to use force
> >or threat of force to compel obedience. That would indeed be an
> >"order," even if it is an "unlawful order."
>
> I agree, that if the "asking" is done under circumstances where a
> reasonable person would see a threat of force against disobedience,
> then it's an order. ("Nice business you have here. Be a shame if
> something were to happen to it, don't you think? Things break, you
> know." I'd consider that an order to pay off the extortionist.)
Okay. You get it.
> >But if you mean, the _right_ to compel obedience is not what defines a
> >"LAWFUL order," I would disagree, since absent that right, the LEO's
> >words either are not an "order" but a mere "request," or are an
> >unlawful "order."
>
> But even with that right, the LEO might make a request and not intend
> enforcement.
True. But it's his RIGHT to demand enforcement that makes his
permitted request a "lawful order."
> >> >So, what makes a cop's request a "lawful order" is something that must
> >> >be reconstructed from predicting the probable jury verdict that would
> >> >come in at the conclusion of a future trial of the civilian for the
> >> >crime of "refusing a lawful order of a law enforcement officer."
>
> >> I think that applies in the military, where one is _required_ to obey
> >> orders (from a superior) that aren't unlawful.
>
> >Civilians are, too.
>
> Soldiers are required to obey any order from a superior that isn't
> actually illegal. ("Pick up all the trash in that area.") Civilians
> are not required to obey similar orders from police.
Okay, sure. You snipped out the part where I said, previously, that
the _scope_ of the lawful orders a cop can give a civilian is MUCH
NARROWER than the range of lawful orders (or commands) a superior-
ranking officer can give to a soldier.
> >Frex, a sergeant can lawfully _order_ a private to tie his shoes, and
> >the private must comply, or go to the stockade.
> . . .
> >An LEO _cannot_ lawfully order a civilian to tie his shoes; he is
> >allowed to _request_ it, of course, but there is no duty to obey and
> >no right to COMPEL obedience.
>
> He can make that request as an order; it still need not be obeyed.
No! You're using the word "order" in the same confusing, colloquial,
purely grammatical way you did at the beginning of this discussion, to
refer only to a written or spoken sentence in the imperative mood.
We're getting nowhere. I'm apparently not communicating very
effectively to you what I was getting at. I don't know whether the
fault lies with you, me, or the message, but it's not getting
through. I'm inclined to quit trying, since it's not much fun anymore
to argue the same points over and over.
> >Mostly, a civilian in a free society like ours is free to do anything
> >that is not specifically forbidden by law. But, if a cop issues a
> >lawful order to a civilian, the civilian _is_ required by law to
> >obey. That's part of how I propose we should be _defining_ and
> >determining what a "lawful order" _IS_.
>
> In the military, a lawful order is any that isn't illegal.
Agreed.
> In
> civilian life, I think the same definition should apply;
No, even though that is ONE way tob e internally consistent in usage,
it's not the way the law chooses to do so.
Analytically, the only difference which matters is the SCOPE of the
subject matters on which the superior officer can lawfully order the
subordinate to take some action (fairly broad, to the point where it
covers almost everything in the junior soldier's life except for
patently unlawful orders) versus the much more LIMITED scope (very
_few_ things) an LEO can lawfully order a civilian to do.
> civilians are
> only legally required to obey legally enforceable orders.
Lawful orders, that is. Since your neologism is intended to be
synonymous with that term of art.
> >> In civilian life,
> >> people generally aren't required to obey orders from police
>
> >Yes they are, if it is a "LAWFUL order," as I propose we define them.
>
> In most places, the only such orders have to do with traffic
> (apparently, based on a few posts here).
True. And in a few other, very narrow circumstances, such as a Terry
stop, or an actual arrest. Resisting a lawful arrest is, of course, a
separate crime in most jurisdictions.
> >One can properly be prosecuted and convicted for disobeying a lawful
> >order in circumstances where a specific statute compels obedience.
>
> It's the statute compelling obedience that causes the requirement.
Bingo! Of course! That's what we've been discussing, the term USED
IN THOSE STATUTES, to see whether the statutes APPLY or not in various
circumstances. We have not merely been discussing the variant
meanings of some English words in a legal-contextual vacuum. At
least, I haven't.
> >Now you're using the word "order" differently than we have been
> >throughout this thread,
>
> I'm using it in the normal English sense of the word, which is the
> only way a person can know if what was just said to him is an order.
But it's NOT the only way he can know if that order is LAWFUL.
As stated eons ago in this thread, the SAFE thing for a civilian to
do, whenever he senses that an LEO wants him to comply with the LEO by
doing or refraining from doing something, is TO COMPLY, unless the
civilian has CLEAR knowledge of his own that the LEO is _not_
authorized to ask him to do that, or is willing to take that risk.
EVEN THEN, failure to comply carries with it the risk of further,
unpleasant consequences even if the LEO has NO right to enforce his
words - which will be small comfort, when you are in the hospital
recuperating from the beating you just received, to find out that
y9our lawyer thinks you have a good case of police brutality and
excessive use of force.
> Using the "legally enforceable order" meaning, even lawyers don't know
> (until the final appeal if it comes to that).
True. Do you want to be the guy who gets beaten up, in order to find
that out?
Or would you rather just _submit_, then sue LATER (and physically
unscathed) if the cop made you do something he was not legally allowed
to ask you to do, much less to compel you to do?
> > and you are once again, unilaterally, looking only to the
> >grammatical form of the LEO's words to see whether you want to call
> >it an "order"
>
> I'll include tone of voice, gestures, etc.
Okay. Then, what's the issue on which we differ? Simply that you
are offering a neologism, "legally enforceable order," to replace the
widely understood and used term "lawful order." Are you trying to
create _more_ work for lawyers, with all the confusion and ambiguity
and need for re-construing statutes that would require, or what?
> > and you are also completely ignoring the factors that should go into
> >determining whether it is a "LAWFUL order."
>
> That's the next step. If it isn't an order, then any action or
> inaction can't be "violation of an order" (whether or not obedience is
> legally required), because there wasn't any order to violate.
Agreed. What makes it an "order" rather than a "request" is the
(implicit or explicit) threat or actuality of enforcement.
What makes it a "lawful order" is the RIGHT of the LEO to threaten or
apply the tools of enforcement to the situation.
What makes it an "unlawful order" is the threat or actuality of
enforcement when the LEO has NO right to do so.
And, if the LEO has no right to even ASK the civilian to do something,
even with "pretty please" on top, it is an illegal request. Just ask
Officer Fellatio.
> > If there is no duty to obey, then the message the cop is
> >communicating is by definition not a "LAWFUL order of an LEO" as to
> >which legal consequences would attach for failure to obey.
>
> Agreed. But it's still an order.
Agreed, _IF_ enforcement is implied, threatened, or applied.
> > It is then just a "request" even if it is stated in a stern tone of
> >voice and using a verb in the imperative mood: "_DO_ this. _DON'T_
> >do that."
>
> I disagree.
Sheesh. Now we're back to grammatical square one again. We're not
talking grammar, we're talking LAW.
> >> >ISTM the jury would have to find that (a) the cop had been duly
> >> >granted authority by some statute to issue an order to a civilian,
>
> >> Or, rather, that some statute requires a civilian to obey such an
> >> order if issued.
>
> >Those are flip sides of the same coin, if you accept _my_ proposed
> >definition.
This would be the upper-right corner of the 4-way matrix I just
proposed, above. The cop MAY ASK, and the civilian MUST OBEY.
> I prefer to believe that I know when something is an order. (I don't
> necessarily know if I have to obey it; but if it isn't an order, then
> I don't.)
Okay. If you objectively determine that the LEO did not intend to
back up what he asked you to do with any right to use force, then it
is a "request" no matter how phrased. It goes into one of the left-
hand boxes on the 4-way matrix.
How would you deal with something that YOU KNOW (and let's assume you
are CORRECT in this knowledge) the cop has NO right to ask you to do,
but he threatened to beat the crap out of you if you DID NOT do what
he said anyway?
That _is_ an "order." In the particular example, it is an "UNLAWFUL
order" because he had no legal right to use force to compel you to
obey.
> > Absence of a duty to obey means there was NO legal right
> >of the LEO to compel obedience,
>
> Agreed.
>
> > and therefore it was not a "lawful order," merely a "request"
>
> rather, I think, an "unenforceable order".
Which IMO is SYNONYMOUS with a "request."
> I could order you not to post messages with an odd number of words in
> them. You would acknowledge that it's an order,
No I wouldn't. I would consider it a mere request, and an odd one at
that, as well as one you had no right to compel me to comply with,
even if you DID have the right to ASK (which would put it in the upper
left box of our matrix).
> and that you have no
> reason to obey it, right?
That part you got right.
> But this is the Internet. If some arbitrary person were to do that,
> would it be an order? Why should it matter if the person were a law
> enforcement officer?
It doesn't, which is why I don't call that kooky request an "order"
unless the person making it has some FORCE behind it to back it up
(either actual, or threatened). The mafioso in your earlier
protection-racket example is not an LEO either, but you apparently
agree his gentle "request" to the neighborhood mom-and-pop store
owners was an "order," since he intended to back it up by torching the
place if Mom and Pop did not pay up for "protection."
> >> (How likely is a statute that allow an officer to
> >> give orders without requiring obedience?
>
> >You see my point, then. You cannot have one without the other.
>
> One what without which other?
An order, without the right of enforcement.
> You can have orders that there's no requirement to obey.
Then, it's not an "order" no matter what it sounds like.
> You can even have orders which are specifically
> permitted by statute yet which people are not required to obey.
You mean, you can have things the LEO is specifically permitted to
REQUEST, by statute, but with no legal requirement that the civilian
must obey. That would fall within the upper LEFT box on the matrix, a
"legal request."
> > And
> >that HELPS us, analytically, to see what a "lawful order" really is.
> >If there is no duty to obey, then it is NOT a "lawful order"
> >regardless of how it is worded,
> >I think part of YOUR problem here, Seth, is that you keep abandoning
> >the rubric "LAWFUL order" and randomly go back to calling the thing we
> >are discussing a mere "order," which IS a purely grammatical,
> >psycholinguistically-defined animal, and which even toddlers and dogs
> >can recognize as such. It does no help to clarity of analysis to
> >keep interchanging the two terms as if they were synonymous.
>
> I'm not; rather, I'm taking the first question to be "Is it an order?"
> Only if the answer is affirmative does the second question, "Am I
> legally required to obey it?" become an issue.
Okay. But answering the first question depends on context as well as
grammar. And I'm proposing that part of that FIRST question should
be, does the cop look like he WILL COMPEL me to obey it if I refuse?
That's what makes it an "order." ONLY THEN do you get to question 2,
which we agree is, "Am I legally REQUIRED to obey it?"
First, THE COP has 2 choices - either he will, or will not, be
prepared to use FORCE to back up what he wants.
Then, after reaching HIS OWN conclusion about question #1 (which may
be correct or incorrect, objectively), the civilian also has 2 choices
- either he will, or will not, OBEY what the cop tells him to do.
All of which exists regardless of the form in which the cop's initial
saying or gesture is expressed
> >Finding that something _IS_, grammatically and psycholinguistically,
> >an "order" is only STEP ONE to determining whether that "order" is in
> >fact a "lawful order." Step 2 is, noting that the order comes from
> >an LEO (or a person acting under color of state law, which at this
> >level of analysis we can assume is the same thing). Step 3 is to see
> >if the LEO has actual authority to even REQUEST such a thing (subject
> >to _voluntary_ compliance by the citizen, such as requesting consent
> >to a warrantless search). Finally, at step 4 we determine whether
> >there was a legal _duty_ on the part of the civilian to obey, AND
> >(flip side) whether the LEO had a legal right under the circumstances
> >then and there pertaining, to COMPEL obedience. Only then is what
> >purports to be an "order" really a "lawful order."
>
> Agreed. That shows that "order" is not the same as what you call
> "lawful order".
I never said it was. I thought YOU were saying it was, and using the
two terms interchangeably.
> >> There are at least some that
> >> require obedience from specific types of people (e.g. "over 18") while
> >> the order might be given to someone under 18.)
>
> >Exactly. The context of determining what a communication means
> >includes the nature and characteristics of the sender, and of the
> >recipient, as well as the actual content of the message, and other
> >surrounding circumstances.
>
> The meaning of that one is clear, and the same whether the recipient
> is 17 or 18; the only difference is that the 17-year-old is not
> required to obey it.
Okay. Then that is part of the civilian's "obey or not?" choice he
will have to make, when confronted by such an apparent order.
> >> > (c) circumstances were such that the civilian could not reasonably
> >> >refuse to obey the order,
>
> >> How does "reasonably" enter into it? Something could easily be
> >> reasonable and still illegal.
>
> >I qualified that with "reasonably" because one can ALWAYS refuse to
> >obey an order. All one need do is, "just say NO."
>
> "Can", yes. But the issue, I think, is whether the person could
> *legally* refuse to obey the order, whether or not that refusal is
> "reasonable".
His refusal to obey will be legally evaluated by the jury pursuant to
the OBJECTIVE standard of what that representative sample of the
community feels was reasonable under all the circumstances, that's all
I'm saying.
> > Similarly, a person who refuses to surrender his freedom is ALWAYS
> >free, even if someone else wants to capture or enslave him or compel
> >obedience to an order.
>
> For a strange definition of "free". (Consider someone else, much
> stronger, capturing and immobilizing him.)
You're looking at it too narrowly. I was trying to give a broader
perspective on the CHOICE that the civilian faces.
Patrick Henry said, "Give me liberty or give me death." He didn't
offer a third option, being willingly enslaved or imprisoned. The
Zealots at Masada realized they had the same, either/or choice when
facing the Roman army at the end of the First Jewish Revolt in 79 CE,
too. They died as free men and women rather than being captured and
enslaved, with their leaders soon to be paraded in shackles through
the streets of Rome.
> > Fighting to the death, or suicide, are always options.
>
> Only if physically permitted.
They can tie up your body, but not your soul. You can go on a hunger
strike. Why are we arguing about the means by which a willfully free
person will resist force and compulsion? We might as well be talking
about how a wild animal struggles to free itself from a trap, even
though it is irrevocably and inevitably trapped. THAT's all I meant,
here. For humans, though, that is not simply a matter of instinct as
it is for wild animals, but a CONSCIOUS CHOICE we all must make.
> >That doesn't mean it's REASONABLE to disobey, or LEGAL to disobey, in
> >a particular circumstance.
>
> My point is that those are different things.
They are not. Reasonableness is the objective standard by which
legality (of a refusal to obey) is measured.
> >Whether it was LEGAL to disobey a purported "order" depends on
> >whether, under all the circumstances, it was objectively REASONABLE
> >(in the eyes of the judge or jury) for that person to disobey.
>
> Why is that the standard?
Waxing philosophical, are we? I suppose I started it.
Reasonableness is the standard for LOTS of things in law, because it
BALANCES the strict meaning of the words of a statute (which, being
human, are always a little bit skewed from what the legislature really
MEANT to say) and the totally-one-off interpretations of a single
individual (in which case, there IS NO law because everyone simply
follows HIS OWN internal guiding light, or alien radio signals, or
wherever he is getting his information and commands). It looks
instead to the COLLECTIVE understanding of what the words of a statute
or black-letter rule (such as the tort standard for finding
negligence) "really" mean. That's all "reasonableness" is.
Solipsism (to each his own, and there is no reality existing outside
of oneself) is one antithesis of law. But, "zero tolerance" (strict
enforcement of the letter of the law even when it produces absurd
results) is also, ultimately, the antithesis of law. It erodes public
confidence that the law is FAIR, and that the law even has the ABILITY
to foster ORDER, which after all is the purpose of having laws - to
make life more predictable AND fair at the same time, which in turn
facilitates mutual trust, commerce, credit, division of labor, and
economic prosperity as well as spiritual/emotional freedom of each
person to follow their own conscience WITHIN the fair framework
provided by the law.
> Suppose there is a purported order
> (presumably, that means something that grammatically appears to be an
> order but might not be legally enforceable, right?)
Okay. We can agree to create yet another new term for THAT situation
- a "purported order." That's good, Seth.
It's still not necessarily REALLY an "order," by my matrix. But your
new term "purported order" gives us a handle for continued discussion.
The dividing point between "order" and "request" is NOT whether the
"purported order" _IS_ legally enforceable. What matters, instead,
is whether the LEO appears to stand ready to USE force, legal or not,
to enforce it.
If he DOES objectively appear that way, he is giving an "order." If
there is not even an implied threat of force, by any objective
reasonable standard, then it is CLEARLY not even a "purported
order" (which could, after analysis, be legal or not), since all
parties to that conversation would agree it is a mere "request."
> where it is not
> objectively reasonable to disobey, but there's no statute requiring
> obedience.
You'd better give us an example. I can't think of any. If there's
no statute requiring obedience, AND no (illegal, in that case) threat
by trhe LEO to use force to _compel_ obedience, what that means is,
the "purported order" is NOT in fact a real "order." It is, after
stripping away what it PURPORTS to be, really a mere "request," and
will be determined to be illegal or not, depending on whether the LEO
even has the right to ASK for it.
> I say that disobedience is legal in that case.
Sure. Agreed.
> > If the factfinder finds that it WAS, then ipso facto either the
> >"order" was not a "lawful order,"
>
> But it was still an order.
Correct. IF FORCE WAS USED OR THREATENED OR IMPLIED. Not
otherwise.
> > _OR_ (despite the order being lawful in the
> >abstract) the recipient had some legally cognizable justification or
> >excuse for refusing to obey, which made it reasonable and not illegal
> >FOR HIM under all the circumstances NOT to obey that particular order
> >at that particular time.
>
> But by your definition, that would make it not a "lawful order" (given
> to that person, at that time, under those circumstances).
Correct. It's not an ILLEGAL order, if the cop (mistaken about the
facts, such as the civilian's age, frex) was at least allowed to
ASK. But it is not a "LAWFUL order" (that term of art again) if the
cop had no right to COMPEL that particular person to comply.
> >This CANNOT be determined without context.
>
> I never suggested it could. Even the grammatical issue can require
> some context.
Okay. Great.
> >> >I think Seth's problem, and mine too, as thus rephrased, is: How do we
> >> >determine what sort of request is "within the officer's authority to
> >> >command," and also, how do we determine what "circumstances" make it
> >> >unreasonable for the civilian to disobey such an order?
> >> ^^^^^^^^^^^^
> >> I'd say "illegal" there. There could be orders that it would be
> >> unreasonable to disobey, yet still not illegal to do so.
>
> >Name one? I can't think of any.
>
> A police officer ordering pedestrians not to walk along a particular
> section of sidewalk because there are ice jams on the roof of the
> adjacent building that come crashing down and could injure or kill
> somebody. It's quite unreasonable to disobey that order, but there's
> no statute requiring a pedestrian to obey it.
Okay, now I see what you were getting at. But this is not a two-way
street. You're looking at it backwards. The analysis required for
finding an LEO's command to be a "lawful order" when directed to a
civilian is, firstly, did the LEO have the RIGHT to ask the civilian
to do that, and secondly, was it UN-reasonble for the civilian to
disobey. If the answer to both of those is "yes," then the jury CAN
find that the civilian WAS guilty of "failing to obey a lawful order
of an LEO." The converse is NOT true - there are PLENTY of things
that it would be REASONABLE for the LEO to ask, and REASONABLE for the
civilian to do, but those are not "orders" because there is NO FORCE
involved other than the forces of nature - if the civilian chooses to
disregard the LEO's request and walk on the sidewalk under the
dangerous eaves anyway, that's his own free choice, IF the LEO did not
intend to back up that "request" with FORCE such as to turn it INTO an
"order" (in this case, a lawful one, _IF_ a statute gave the LEO
_authority_ to forcibly forbid civilians from entering a certain
restricted area, either for reasons of safety, health, interference
with an ongiong investigation, or whatever). That's where the crime/
accident scene tape, "POLICE LINE- DO NOT CROSS" comes in. Yes, you
can be arrested and successfully prosecuted for crossing that line
unless YOU are part of the EMT team, or the CSI team, or whatever
gives you a justification or excuse for crossing the line and makes it
REASONABLE for you to do that..
> > Only if we are adhering to a rigid and unthinking formalism is it
> >possible to consider circumstances where it is UNREASONABLE to
> >disobey a lawful order, but not illegal to do so.
>
> That's because you're defining a lawful order as one that it's illegal
> to disobey.
Exactly so. That IMO is the way the statutes use that term although
I am not aware of it being specifically defined yet by any statutory
section or any black-letter law specifically addressing the
definitional issue.
> >OTOH, the converse is _not_ true; there _may_ be orders that are
> >REASONABLE to disobey, even though technically it would be LEGAL to
> >obey them.
> . . .
> > They were JUSTIFIED to DISOBEY that
> >particular unlawful order of their superior British officer,
>
> So we have: 1. lawful order: required to obey;
Yes. Upper right corner of the matrix.
> 2: unlawful order: permitted to obey or disobey;
If the civilian is permitted to disobey, that makes this an illegal
REQUEST, not an order of ANY kind. AND, the fact that the cop is not
even permitted to ASK; is part of the definition of "illegal
request." Lower left corner of the matrix.
> and 3: illegal order: required to disobey.
Okay. That's the lower right corner of the matrix. What makes it an
"order" is that the person giving it stands ready to ENFORCE it. It's
just that such USE of force may itself be violative of a higher law
that requires the person receiving the order to DIS-obey, even though
the guy holding the gun may still do some very bad things to him as a
consequence of that refusal.
AND you left out 4. - illegal request, one which the cop is NOT
allowed to ask for, but which the civilian will NOT get into any
trouble for doing IF the civilian chooses to comply. As in the
[osculate my member of congress] scenario proposed by Officer
Fellatio.
> >> Doesn't it always come down to what a court (or the highest court that
> >> decides) determines?
>
> >Pretty much. And those courts, these days, are mostly guided by
> >social realities, not rigid formalities.
>
> Except when they aren't (e.g. the recent Supreme Court case on Freedom
> of Speech).
Touche. I did say "mostly," and was talking with the perspective of
decades of progress in civil rights and civiil liberties, as well as a
century's worth of use of "Brandeis Briefs" that rely on statistical
and other broad-scope facts outside the narrow evidence and law of a
particular case, to try to persuade appellate judges about how the law
_should_ address those social realities, not just the strict-
constructionist Roberts Court and its angels-on-a-pinhead ruminations.
> >Although, again, as in the River Kwai, it depends in part on WHOSE
> >court is doing the deciding.
>
> Of course. Different jurisdictions have different laws.
True, but trivially so, if we are talking about minor variations
arising from varying sources of legal tradition in the different
jurisdictions. All jurisdictions have some form of law against
murder, frex, but they do differ.
Rather, what I was getting at was, one man's patriotism may be another
man's treason, and one man's freedom fighter may be another man's
terrorist, even if THE SAME law is being applied (as it was in the
case of the rebellious American Colonies after 1776). It wasn't just
application of a different legal tradition that would have led a
Japanese court-martial and a British one to opposite conclusions in
the River Kwai example. And both the Yankee Doodles, and the Tories,
looked to the common law of the British Realm as the basis for their
justification for hanging traitors and spies. Benedict Arnold,
executed by the colonials, and Nathan Hale, executed by the redcoats,
probably got tried under the SAME set of laws, with their judge maybe
even referring to the same law book (Coke, I bet, or Blackstone) which
both sides at that time were applying from the POV of _their_own_
forces' interests.
Seth
>That's what virtually all of the statutes that deal with such things
>call a "LAWFUL order."
I didn't see that in the (few) statutes I found. But that doesn't
seem to necessarily be the case: e.g. Arizona Revised Statutes
13-2911 includes "A.1.3. Intentionally or knowingly refusing to obey a
lawful order given pursuant to subsection C of this section."
Doesn't that imply that there can be many other lawful orders given,
but only those given pursuant to that subsection have obedience
required?
In (I don't know the proper cite, so I'll give the URL)
http://www.publications.ojd.state.or.us/A114387A.htm
the opinion includes "because any order to disperse that violates a
person's constitutionally protected rights is by definition not a
lawful order."
>> I'll try to use "lawful" for the former meaning.
>
>Unfortunately, the statutes typically use "lawful" for the former
>meaning, in this context. A "legal order" is one which purports to
>be given under color of law (whether it is in fact "lawful" or not),
>which is a very different thing in legal terminology.
Agreed.
So it does appear that most of our disagreement was terminology-based,
not factually-based.
>> In article <bcf9845d-b4e1-4024-ad7a-e679f6f23...@19g2000yqu.googlegroups.com>,
>> Mike Jacobs <mjacobs...@gmail.com> wrote:
>> >On Mar 1, 11:45 am, se...@panix.com (Seth) wrote:
>> >> Mike Jacobs <mjacobs...@gmail.com> wrote:
>> I think there are three (at least) categories of orders: those that
>> the law requires obedience to,
>
>AKA a "lawful order" in legal parlance;
CO insurance law includes "OR HAS VIOLATED ANY OTHER PROVISION OF THIS
TITLE OR ANY RULE OR LAWFUL ORDER OF THE COMMISSIONER," (they use caps
to denote new text). So it's clear that lawful orders of the
Commissioner (of Insurance of the state) must be obeyed; but it
doesn't specify what such orders _are_. Maybe it does so elsewhere,
that I didn't find.
>> those that the law permits obedience and disobedience,
>
>AKA a "legal request" as I am using it
I don't like that terminology: it's an _order_. I'd call it a legally
unenforceable order.
> - the law simply does not consider such a communication, no matter
>how imperative-sounding, to be an "order" of any kind,
I'm sure there are cases where it would. Would someone who did
something that he knew would probably be illegal, but was ordered to
by a police officer, be found not guilty because of that order? I
don't think a request would necessarily have the same force.
> unless _enforcement_ is threatened or implied, which would make such
>a communication into an order (lawful _or_ unlawful, depending on
>other factors);
Suppose the enforcement is within the police officer's rights, but the
order is otherwise not enforceable? (E.g. "Cut your hair and wear
clean clothes or I won't let my daughter date you.")
>You also left out the FOURTH box of this matrix, which is really a
>variant of your second one, because your second option breaks down
>into TWO separate situations:
>
>(2)(a) those that the law PERMITS the LEO to ask, but also permits the
>civilian to obey or disobey as he chooses; and
>
>(2)(b) those that the law FORBIDS the LEO to even ask, WHETHER OR NOT
>the civilian is free to obey or disobey as he chooses, and which
>_become_ an order if the civilian reasonably feels he is not free to
>refuse to comply.
I'm looking at this from the viewpoint of the civilian, and I didn't
see any difference between those two cases.
>So, this 4-box matrix, as we have just refined it, is defined by TWO
>variables with TWO values each:
>
>The LEO either IS, or IS NOT, legally allowed to ASK; and
>
>The civilian either IS, or IS NOT, legally required to COMPLY.
My third case was that the civilian IS legally REQUIRED NOT TO COMPLY.
>Here's the breakdown (pardon my attempt to draw an ASCII box if your
>email readers' formatting may differ:
[box formatting broke, but I understand the concept]
>How's that grab you?
I'd make it 3x3: Police officer MUST GIVE the order, MAY GIVE the
order or not, MUST NOT-GIVE the order. Civilian MUST comply, MAY
COMPLY or not, MUST NOT-COMPLY. Even I can't come up with examples of
all of them (especially "MUST GIVE" and "MUST NOT-COMPLY").
>If the thing you are being asked to do is NOT clearly illegal, AND if
>the person asking is allowed to ask it, then the LEO doing the asking
>_IS_ allowed to use force to compel obedience (that's what the recent
>SCOTUS line of cases on "qualified immunity" for LEOs meant,
>immunizing them from complaints of wrongdoing unless they violated
>"clearly established" rights in the course of fulfilling their
>duties).
Wait a minute. Are you saying that the LEO is allowed to use force to
get compliance with what you referred to earlier as a "legal request"?
I would say that if I am not required by law to obey an order, then
forcing me to obey it violates my Constitutional Rights.
> And, even if the LEO turns out later to be WRONG, the
>civilian can STILL be liable for refusing to obey his "lawful order."
A police officer gives me an order. I don't obey. It turns out that
no law requires me to obey it. Yet somehow I'm liable for violating a
law that doesn't exist?
>As a practical matter, the time for a civilian to determine whether an
>order must be obeyed, may be refused, or MUST be refused, is WHEN IT
>IS GIVEN, not a long time later in a courtroom.
Is it disobedience to ask for time to call your attorney to ask for
his advice on how to proceed?
>> > and what makes a "LAWFUL order" be a "lawful order," so we can
>> >understand the process better from an analytic perspective.
>>
>> The latter (assuming the definition as above) requires that the law
>> say so.
>
>Say WHAT? I don't know if it's you, me, or your words, but we are
>not communicating here.
A lawful order (as used by you, the legal term of art meaning one that
must be obeyed) is only made such by a statute saying so. E.g. In
Minneapolis, traffic must obey orders of police officers. Civilians
do not need to obey orders not to hold hands as they walk along the
sidewalk; any such order is not a lawful order because there's no
statute making it one (unlike the traffic case).
>> > That's the scientific side - the legal side is, under the
>> >modern theory, an OBJECTIVE view of meaning. In law, words mostly are
>> >interpreted to mean what a REASONABLE PERSON would normally expect
>> >them to mean in the context in which they are said, relying neither on
>> >an unusual subjective interpretation nor on a strained formalism that
>> >ignores context.
>>
>> Isn't that subjective? I take "objective" to mean there's a fixed
>> definition, not subject to opinions.
>
>No, that's not what "objective" means. "Objective" means
>"reasonable" as defined by the standards of society at that time and
>place and under those circumstances.
Thinking more about it, I realize that such a standard is objective by
my definition: it doesn't refer to any particular person, but is (or
ought to be) the same for everybody. The law that says "You must stop
mailing obscene stuff when the recipient says to" applies a subjective
standard for "obscene": it specifically says that the recipient's
opinion is the only one that matters.
>> "Jump off the cliff or I'll kick you in the shins." That's an order,
>> but I suspect obedience carries more undesirable consequences than
>> disobedience. If only the first part is stated, I think it's still an
>> order, though there are no consequences for disobedience.
>
>In the rubric we are exploring, the first part is only an "order" if
>enforceable consequences are threatened or implied (even though not
>explicitly stated).
In the legal sense, I agree, at least for enforcement purposes. I
think there's more leeway when using "I did as the police officer
commanded" for defense.
>I'm not calling it an "order" unless the recipient of the
>communication is given NO OPTION other than to obey, on pain of
>enforceable and unpleasant consequences being imposed by the person
>doing the ordering (and not by karma or the laws of physics).
With minor quibbles, yes. (I give what grammatically sounds like a
polite request, with a 7' tall 6' wide ugly box of muscles failing
miserably in his attempt to lurk unobtrusively in the background.)
>> >We already clarified much earlier in this thread, and it is not a
>> >reasonable subject for continued discussion, that what the LAW means
>> >by "a lawful order" is, FIRST of all, an "order" (as defined a few
>> >paragraphs above) - that is, it is a communication which both the
>> >sender, and the recipient, would reasonably interpret as a
>> >_command_. In addition, to be a "lawful order," it must be one given
>> >by a law enforcement officer,
>>
>> Surely there are others who can issue orders that the law says must be
>> obeyed. (E.g. Fire Marshall says "No more people may enter this party
>> until some leave.")
>
>In that example, the Fire Marshall _is_ acting as a law enforcement
>officer (that is, he is "enforcing the law.")
I'd say, rather, he's _stating_ the law. He isn't enforcing it; if
you disobey, he'll call the police to enforce it.
Similarly, aren't Regulations orders that must be obeyed? They aren't
generally issued by those who will enforce them.
> With the emphasis on
>FORCE, since he can issue a citation and compel your attendance in
>court to explain yourself if you disregard what he is telling you,
Based on what I know of behavior of Fire Marshalls, they're much more
likely to call the police and just have them close down the whatever;
a citation that someone has to answer next month doesn't do much to
preserve human life in an emergency.
>> > directing the recipient to do or to refrain from doing something,
>> >which (a) the LEO actually HAS a legal right to request, _and_ (b)
>> >the recipient has a legal duty to obey, which means the LEO has
>> >the right to use or threaten _force_ to obtain compliance.
[terminology comments elided]
In order for the recipient to have such a duty, there must be a law
saying so, right? It could be "while you're driving, you must obey
any traffic-related order of a police officer" or "anybody over 18
must obey any order by a police officer to assist him in enforcing the
law" or "everybody must obey all orders of police officers" (though
the latter will likely fail the "overbroad" Constitutional test).
>> >If we only have (a) but not (b), then it's a request, not a "lawful
>> >order," regardless of how commanding the LEO makes his voice sound and
>> >his use of verbs in the imperative grammatical mood.
>>
>> I say it's still an "order" (and most English speakers would agree
>> with me), it's just not a legally enforceable one.
>
>Again, your terminology is internally consistent and logical, but
>that's just not the way it is used in the law. See above.
The law wouldn't consider it an unenforceable order? If I obeyed it
(because I wasn't sure), and it turned out that what I did was illegal
and the order wasn't enforceable, I'd certainly argue that it was an
order in my defense.
>> Is there any difference between the stop-and-frisk situation whether
>> the LEO asks the person to stop and he declines, then is grabbed; or
>> the LEO just grabs him?
> in answer to the NEW question you pose above, no, I don't see a
>difference between the 2 in deciding whether the LEO has "ordered"
>the civilian to stop and submit.
I would certainly agree that the grounds required for stopping him are
the same in both cases. But in the "just grabs" case, surely there's
no possibility of "failing to obey a lawful order", which there can be
in the "Stop!" "Sorry, late for work." Grab! case.
>> >> Guy is walking quickly. Cop says "May I ask you a question?" Guy
>> >> replies "Sorry, I'm late for work" and keeps going. Cop grabs him.
>> >> Does that mean the request was an order?
>>
>> >By the rubric stated above, it does make it an "order."
>>
>> I think most English speakers would consider it a request.
>
>Even after the cop grabbed the perp against his will? I wouldn't
>consider that a mere "request."
The grabbing is an order to stop. When the cop grabs him, he stops.
Is he guilty of violating a lawful order? (Presume the cop had
sufficient articulable reason to stop him.)
>> Suppose the cop hadn't said anything, but as the guy walked past the
>> cop suddenly realized he looked like a wanted poster, so the cop
>> grabbed him. I'll stipulate that the cop had the legal right to; but
>> was the "nothing" an order?
>
>It wasn't "nothing" - the cop GRABBED him. Do you call that
>"nothing?"
No, the grabbing is an order by action.
>> The order (if obeyed) just minimizes
>> the effort for both of them.
>
>I suppose. Although if the cop felt he was going to have to grab the
>guy anyway, isn't it easier to just grab him, rather than gab-'n'-
>grab?
If the cop believed the guy would disobey the order, then it's easier
just to grab. If the cop believed the guy would probably obey the
verbal order, it's easier to speak first. It's up to the cop's
judgment.
>> >If you mean that the mere _right_ to compel obedience does not define
>> >an "order,"
>>
>> I say it doesn't. For instance, there's a Minneapolis law
>>
>> 171.40: Authority to summon assistance. Each police officer shall be
>> active and vigilant in enforcing the provisions of this Code and
>> all the ordinances of the city, and shall if necessary call to the
>> officer's aid any person above the age of eighteen (18) years to
>> assist therein; and no such person shall refuse to give assistance
>> when so called upon. (Code 1960, As Amend., ' 630.040;
>> Pet. No. 252561, ' 1, 6-15-90)
>>
>> which makes a lot of (potential) police orders enforceable, and yet
>> I believe that a police officer giving such an order, phrased as a
>> request, would likely have no intention of enforcing that order,
>> despite having the right to do so.
>
>So what? It _IS_ a lawful order, if he has the RIGHT to so enforce
>it.
If you were on a jury, and all the testimony agreed a police officer
said to someone "Would you mind holding this door open for a few
minutes?" and the person said "Sorry, I have to get to work" and
walked away; that person was on trial for violating 171.40, would you
vote to convict? I wouldn't, because I don't see an _order_.
>> >But if you mean, the _right_ to compel obedience is not what defines a
>> >"LAWFUL order," I would disagree, since absent that right, the LEO's
>> >words either are not an "order" but a mere "request," or are an
>> >unlawful "order."
>>
>> But even with that right, the LEO might make a request and not intend
>> enforcement.
>
>True. But it's his RIGHT to demand enforcement that makes his
>permitted request a "lawful order."
No we're having language issues again. A request, by definition of
that term, need not be obeyed. (If the person declines to obey, and
the officer says "You have to", that makes it an order.)
>> >> I think that applies in the military, where one is _required_ to obey
>> >> orders (from a superior) that aren't unlawful.
. . .
>> Soldiers are required to obey any order from a superior that isn't
>> actually illegal. ("Pick up all the trash in that area.") Civilians
>> are not required to obey similar orders from police.
>
>Okay, sure. You snipped out the part where I said, previously, that
>the _scope_ of the lawful orders a cop can give a civilian is MUCH
>NARROWER than the range of lawful orders (or commands) a superior-
>ranking officer can give to a soldier.
So you're using "order that is not unlawful" to mean "lawful order"?
With the latter being a Term of Art, I don't think the double negative
cancels that way.
>> >> In civilian life,
>> >> people generally aren't required to obey orders from police
>> >Yes they are, if it is a "LAWFUL order," as I propose we define them.
>> In most places, the only such orders have to do with traffic
>> (apparently, based on a few posts here).
>True. And in a few other, very narrow circumstances, such as a Terry
>stop, or an actual arrest. Resisting a lawful arrest is, of course, a
>separate crime in most jurisdictions.
And since the circumstances where police orders are lawful orders are
so narrow, I still contend that people generally aren't required to
obey orders from police. "Generally" is the issue; of the huge set of
possible orders, only a small subset need to be obeyed. In the
military it's the opposite: only a small subset do not need to be
obeyed.
>> I'm using it in the normal English sense of the word, which is the
>> only way a person can know if what was just said to him is an order.
>
>But it's NOT the only way he can know if that order is LAWFUL.
I agree. In fact, a non-lawyer generally can't determine that at the
time; even a lawyer only has a much better chance of being right.
>As stated eons ago in this thread, the SAFE thing for a civilian to
>do, whenever he senses that an LEO wants him to comply with the LEO by
>doing or refraining from doing something, is TO COMPLY, unless the
>civilian has CLEAR knowledge of his own that the LEO is _not_
>authorized to ask him to do that, or is willing to take that risk.
Under the assumption that what he's being ordered to do is illegal,
but not a heinous felony, is it a valid defense that he believed he
was required to obey the police orders? (Even though you've stated
that in such a case, what the officer said wasn't an order.)
>Okay. Then, what's the issue on which we differ? Simply that you
>are offering a neologism, "legally enforceable order," to replace the
>widely understood and used term "lawful order." Are you trying to
>create _more_ work for lawyers, with all the confusion and ambiguity
>and need for re-construing statutes that would require, or what?
I'll accept "lawful order" as a term of art.
>> That's the next step. If it isn't an order, then any action or
>> inaction can't be "violation of an order" (whether or not obedience is
>> legally required), because there wasn't any order to violate.
>
>Agreed. What makes it an "order" rather than a "request" is the
>(implicit or explicit) threat or actuality of enforcement.
Agreed.
>What makes it a "lawful order" is the RIGHT of the LEO to threaten or
>apply the tools of enforcement to the situation.
So it can be a lawful order without being an order? That really
doesn't seem right.
>What makes it an "unlawful order" is the threat or actuality of
>enforcement when the LEO has NO right to do so.
>
>And, if the LEO has no right to even ASK the civilian to do something,
>even with "pretty please" on top, it is an illegal request. Just ask
>Officer Fellatio.
So there are "lawful orders" (civilian must obey), "unlawful orders"
(police officer must not ask), and ??? orders (police officer may make
a request that sounds like an order, civilian is not required to
obey). The fact that "lawful" and "unlawful" don't partition the
space is bothersome.
>> > If there is no duty to obey, then the message the cop is
>> >communicating is by definition not a "LAWFUL order of an LEO" as to
>> >which legal consequences would attach for failure to obey.
>>
>> Agreed. But it's still an order.
>
>Agreed, _IF_ enforcement is implied, threatened, or applied.
Agreed. (Though to me, anything stated as an order ("Halt!") carries
at least an implicit threat of enforcement.)
>> > It is then just a "request" even if it is stated in a stern tone of
>> >voice and using a verb in the imperative mood: "_DO_ this. _DON'T_
>> >do that."
>> I disagree.
>Sheesh. Now we're back to grammatical square one again. We're not
>talking grammar, we're talking LAW.
When a guy with a gun says "DO THIS NOW" would a reasonable person
believe there's a threat of enforcement?
>> >> >ISTM the jury would have to find that (a) the cop had been duly
>> >> >granted authority by some statute to issue an order to a civilian,
>> >> Or, rather, that some statute requires a civilian to obey such an
>> >> order if issued.
>> >Those are flip sides of the same coin, if you accept _my_ proposed
>> >definition.
>This would be the upper-right corner of the 4-way matrix I just
>proposed, above. The cop MAY ASK, and the civilian MUST OBEY.
All the statutes I've seen are phrased in terms of "the civilian must
obey the order". If there were a statute that says "A police officer
may order a civilian to . . ." but no statute requires the civilian to
obey, then I would argue that disobedience is not a crime. (I don't
know why anyone would pass such a statute, but there have been plenty
of errors made in the wording of laws.)
>How would you deal with something that YOU KNOW (and let's assume you
>are CORRECT in this knowledge) the cop has NO right to ask you to do,
>but he threatened to beat the crap out of you if you DID NOT do what
>he said anyway?
More or less the same as I would for an armed non-cop who made the
same threat (except that I'm probably less likely to use the best
defense against the cop, and more likely to try to get him on record,
e.g. by calling 911 on speakerphone, with making the order/threat).
>> rather, I think, an "unenforceable order".
>
>Which IMO is SYNONYMOUS with a "request."
In terms of "required obedience" it is. In other terms (even legal
ones, like for use in defense) I don't think it is.
>> I could order you not to post messages with an odd number of words in
>> them. You would acknowledge that it's an order,
>
>No I wouldn't. I would consider it a mere request,
Suppose I included a threat to have your gmail account cancelled by a
friend at Google if you didn't obey.
> and an odd one at that,
(or an even one :-)
> as well as one you had no right to compel me to comply with,
I agree, I have no right to compel you. But such a right isn't
necessary for something to be an order.
>> But this is the Internet. If some arbitrary person were to do that,
>> would it be an order? Why should it matter if the person were a law
>> enforcement officer?
>
>It doesn't,
But from a law enforcement officer, you seemed to indicate earlier
that it would be an "unlawful order".
>> >> (How likely is a statute that allow an officer to
>> >> give orders without requiring obedience?
>> >You see my point, then. You cannot have one without the other.
>> One what without which other?
>An order, without the right of enforcement.
Just because a statute is unlikely doesn't mean that nobody has ever
passed one by mistake.
>> You can have orders that there's no requirement to obey.
>Then, it's not an "order" no matter what it sounds like.
What about the unlawful orders discussed earlier?
There are laws that there's no requirement to obey.
>> You can even have orders which are specifically
>> permitted by statute yet which people are not required to obey.
>
>You mean, you can have things the LEO is specifically permitted to
>REQUEST, by statute, but with no legal requirement that the civilian
>must obey. That would fall within the upper LEFT box on the matrix, a
>"legal request."
Now we're back to the "order" vs. "request". If I do something
harmful to me because I'm ordered to by a police officer (say, I don't
get a job because he kept me from the interview), and I find out later
that I wasn't required to obey him, am I SOL trying to recover damages
because it was "just a request that I voluntarily chose to obey" or do
I have a chance because it was "an unlawful order that violated my
rights"?
>> I'm not; rather, I'm taking the first question to be "Is it an order?"
>> Only if the answer is affirmative does the second question, "Am I
>> legally required to obey it?" become an issue.
>
>Okay. But answering the first question depends on context as well as
>grammar. And I'm proposing that part of that FIRST question should
>be, does the cop look like he WILL COMPEL me to obey it if I refuse?
>That's what makes it an "order."
But you've stated above that it might still be only a request if I'm
not required to obey. (Or can the "required to obey" come from
apparent physical compulsion as well as a legal requirement?)
>> Agreed. That shows that "order" is not the same as what you call
>> "lawful order".
>
>I never said it was. I thought YOU were saying it was, and using the
>two terms interchangeably.
No, I've said all along that some orders are unenforceable.
>> "Can", yes. But the issue, I think, is whether the person could
>> *legally* refuse to obey the order, whether or not that refusal is
>> "reasonable".
>
>His refusal to obey will be legally evaluated by the jury pursuant to
>the OBJECTIVE standard of what that representative sample of the
>community feels was reasonable under all the circumstances, that's all
>I'm saying.
I still don't understand. The law says "Under these circumstances,
you must do this" and someone is on trial for violating that; the jury
instructions I've heard always say that the judge says what the law
is, and the jury only gets to decide if the facts show a violation of
the law as interpreted by the judge. So even if I feel that the
violation was "reasonable", I've had to tell the judge that I'd vote
to convict if I believed the violation happened or I wouldn't be
allowed on the jury.
>> >That doesn't mean it's REASONABLE to disobey, or LEGAL to disobey, in
>> >a particular circumstance.
>>
>> My point is that those are different things.
>
>They are not. Reasonableness is the objective standard by which
>legality (of a refusal to obey) is measured.
That does not accord with the instructions I've been given as a juror.
>> Suppose there is a purported order
>> (presumably, that means something that grammatically appears to be an
>> order but might not be legally enforceable, right?)
>
>Okay. We can agree to create yet another new term for THAT situation
>- a "purported order." That's good, Seth.
>It's still not necessarily REALLY an "order," by my matrix. But your
>new term "purported order" gives us a handle for continued discussion.
>
>The dividing point between "order" and "request" is NOT whether the
>"purported order" _IS_ legally enforceable. What matters, instead,
>is whether the LEO appears to stand ready to USE force, legal or not,
>to enforce it.
If the order is lawful, but the LEO does not appear to stand ready to
enforce it, then what? If it's demoted to a request, what happens
when I violate it and a _different_ LEO arrests me and charges me with
violating the law requiring obedience?
>If he DOES objectively appear that way, he is giving an "order." If
>there is not even an implied threat of force, by any objective
>reasonable standard, then it is CLEARLY not even a "purported
>order" (which could, after analysis, be legal or not), since all
>parties to that conversation would agree it is a mere "request."
Using standard English terminology, I'd consider it an order.
>> where it is not objectively reasonable to disobey, but there's no
>> statute requiring obedience.
>
>You'd better give us an example. I can't think of any.
A police officer orders me not to walk past a building, but to walk on
the other side of the street, because stuff is falling off the
building's facade. No statute requires obedience, and it is not
reasonable to disobey.
> If there's no statute requiring obedience, AND no (illegal, in
>that case) threat by trhe LEO to use force to _compel_ obedience,
>what that means is, the "purported order" is NOT in fact a real
>"order."
It is neither a lawful order (because unenforceable) nor an unlawful
order (because it wasn't a crime for the officer to give it). Yet
most people would agree it's an order.
> It is, after stripping away what it PURPORTS to be, really a mere
>"request,"
So it requires years of law school and an intense knowledge of local
statutes to know whether something is an order? I agree that's what
is required to know if it's a lawful order (must be obeyed) or an
unlawful order (crime by the officer to give it), but any English
speaker would likely agree on whether it's an order.
>> > If the factfinder finds that it WAS, then ipso facto either the
>> >"order" was not a "lawful order,"
>> But it was still an order.
>Correct. IF FORCE WAS USED OR THREATENED OR IMPLIED. Not
>otherwise.
If it came to the point where a factfinder is involved, then clearly
enforcement was at least attempted.
>> A police officer ordering pedestrians not to walk along a particular
>> section of sidewalk because there are ice jams on the roof of the
>> adjacent building that come crashing down and could injure or kill
>> somebody. It's quite unreasonable to disobey that order, but there's
>> no statute requiring a pedestrian to obey it.
>
>Okay, now I see what you were getting at. But this is not a two-way
>street. You're looking at it backwards. The analysis required for
>finding an LEO's command to be a "lawful order" when directed to a
>civilian is, firstly, did the LEO have the RIGHT to ask the civilian
>to do that, and secondly, was it UN-reasonble for the civilian to
>disobey. If the answer to both of those is "yes," then the jury CAN
>find that the civilian WAS guilty of "failing to obey a lawful order
>of an LEO."
Doesn't the jury have to find the civilian guilty of a crime that's
actually specified in a statute? Since "failing to obey a lawful
order of an LEO" isn't in the Minneapolis Criminal Code (that I could
find), I don't see how I could be convicted of violating it.
> IF the LEO did not intend to back up that "request" with FORCE such
>as to turn it INTO an "order" (in this case, a lawful one, _IF_ a
>statute gave the LEO _authority_ to forcibly forbid civilians from
>entering a certain restricted area, either for reasons of safety,
>health, interference with an ongiong investigation, or whatever).
That was my point: there's no such statute. But the order was given,
and a civilian arrested for violating it. It was an order as you
defined (the arrest proves intent to enforce), and I would hope it's
not one that's illegal for a police officer to give (since it's
possible that obeying precisely such an order has saved my life), so
where does that leave it?
> That's where the crime/ accident scene tape, "POLICE LINE- DO NOT
>CROSS" comes in. Yes, you can be arrested and successfully
>prosecuted for crossing that line unless YOU are part of the EMT
>team, or the CSI team, or whatever gives you a justification or
>excuse for crossing the line and makes it REASONABLE for you to do
>that..
Reaonable? Or as specified by a statute? I would think it reasonable
for a mother to cross it to pick up her crying baby, but the law says
she needs permission from the officer in charge of the scene.
>> So we have: 1. lawful order: required to obey;
>
>Yes. Upper right corner of the matrix.
>
>> 2: unlawful order: permitted to obey or disobey;
>
>If the civilian is permitted to disobey, that makes this an illegal
>REQUEST, not an order of ANY kind. AND, the fact that the cop is not
>even permitted to ASK; is part of the definition of "illegal
>request." Lower left corner of the matrix.
I didn't realize that "unlawful order" was also a term of art, and the
two terms didn't exclude the middle.
>> Of course. Different jurisdictions have different laws.
>
>True, but trivially so, if we are talking about minor variations
>arising from varying sources of legal tradition in the different
>jurisdictions. All jurisdictions have some form of law against
>murder, frex, but they do differ.
Minneapolis has a law about all adults obeying police orders to help
enforce the law. Other cities (as noted by posters here) don't. I'd
consider that a major variation, at least in the context of obeying
police orders.
Seth
Mike Jacobs
> In article <fa981620-b4f0-461e-b41e-2d3dab841...@y17g2000yqd.googlegroups.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 7, 3:56 am, se...@panix.com (Seth) wrote:
> >That's what virtually all of the statutes that deal with such things
> >call a "LAWFUL order."
>
> I didn't see that in the (few) statutes I found. But that doesn't
> seem to necessarily be the case: e.g. Arizona Revised Statutes
> 13-2911 includes "A.1.3. Intentionally or knowingly refusing to obey a
> lawful order given pursuant to subsection C of this section."
>
> Doesn't that imply that there can be many other lawful orders given,
> but only those given pursuant to that subsection have obedience
> required?
No such implication. You're analyzing it backwatrds, and that doesn't
work. In our free society, there must be a specific statue
PROHIBITING something, with the rare exception of ancient common law
crimes in jurisdictions that still allow those to be charged (and
which deal with things _everybody_ knows, or should know, are evil in
themselves). So, a person can only be charged with and convicted of a
crime for violating some specific provision. That doesn't guarantee
there are not OTHER statutes, with similar provisions, that might have
been violated in OTHER circumstances. The analysis has to proceed
from (a) what the perp DID, in most cases together with evidence of
bad motive (mens rea) as a required element of the offense, and THEN
the cops, or the prosecutors, decide which, if any, specific offenses
they can charge the person with. If nothing fits, he walks, even if
the cops didn't like what he did. And, it's possible that MORE THAN
ONE statute was violated by a particular act, or that some slightly
different act would violate some other statute but not this one.
> In (I don't know the proper cite, so I'll give the URL)http://www.publications.ojd.state.or.us/A114387A.htm
> the opinion includes "because any order to disperse that violates a
> person's constitutionally protected rights is by definition not a
> lawful order."
That's a good example. An unconstitutional order is not a "lawful
order" and thus a perp charged with violating an order to disperse
could defend on the grounds that the order itself was unlawful.
> >> I'll try to use "lawful" for the former meaning.
>
> >Unfortunately, the statutes typically use "lawful" for the former
> >meaning, in this context. A "legal order" is one which purports to
> >be given under color of law (whether it is in fact "lawful" or not),
> >which is a very different thing in legal terminology.
>
> Agreed.
>
> So it does appear that most of our disagreement was terminology-based,
> not factually-based.
In which case, I'll snip much of what follows, except for areas where
we still disagree and deserve comment.
<snip>
> > - the law simply does not consider such a communication, no matter
> >how imperative-sounding, to be an "order" of any kind,
>
> I'm sure there are cases where it would. Would someone who did
> something that he knew would probably be illegal, but was ordered to
> by a police officer, be found not guilty because of that order? I
> don't think a request would necessarily have the same force.
No. Once again, you need to consider the sequence of ACT, CHARGE, and
DEFENSE before you get a conviction.
A perp who did something he knew (or should have known) was
independently illegal, especially if it was _malum_in_se_ (something
INHERENTLY evil) as opposed to _malum_prohibitum_ (something the law
arbitrarily prohibits simply as a regulatory measure, such as driving
on the left side of the centerline of a 2-way street in USA - in many
circumstances LEOs have legal authority to waive such requirements and
to _require_ acts that technically violate them, such as in traffic
situations), is NOT EXCUSED from THE ACT ITSELF by the defense "I was
just following orders." That's the Nuremberg Rule, in case you've
forgotten WW2 and the Nazi war crimes trials. If a perp who KNOWS (or
should know) the ACT he is being asked to commit is _malum_in_se_
refuses the cop's order to do that act, he DOES have a good defense to
the charge of failing to obey a lawful order, because the order to do
the act was not lawful. But if he DOES do the act, he will be
charged with committing THE ACT, and his claim of mere obedience is no
defense.
So, in other words, if the ACT ITSELF is illegal, it DOESN"T MATTER
whether the cop merely requested the act, or threatened or used force
to compel the perp to do the act - if it's _malum_in_se_, you can't do
it, period, no matter who orders or asks you to do it.
<snip>
> Suppose the enforcement is within the police officer's rights, but the
> order is otherwise not enforceable? (E.g. "Cut your hair and wear
> clean clothes or I won't let my daughter date you.")
The cop can't arrest you for failing to do that. But, assuming he is
a dictator within the family circle, he _can_ prevent you from dating
his daughter - or more precisely, prevent his DAUGHTER from dating
YOU.. She, not you, would be the one he could control - by familial
authority, not by any legal authority.
> >You also left out the FOURTH box of this matrix, which is really a
> >variant of your second one, because your second option breaks down
> >into TWO separate situations:
>
> >(2)(a) those that the law PERMITS the LEO to ask, but also permits the
> >civilian to obey or disobey as he chooses; and
>
> >(2)(b) those that the law FORBIDS the LEO to even ask, WHETHER OR NOT
> >the civilian is free to obey or disobey as he chooses, and which
> >_become_ an order if the civilian reasonably feels he is not free to
> >refuse to comply.
>
> I'm looking at this from the viewpoint of the civilian, and I didn't
> see any difference between those two cases.
The difference is simple, from the civilian's POV - did the cop, or
did he not, imply or threaten or actually use FORCE to compel
obedience to what he asked you to do? If he did, it's an "order,"
whether legal or illegal. If he did not, it's a mere request, and
the civilian is free to act accordingly, or not, as he chooses, with
no LEGAL consequences AND no cop-will-beat-you-up-and-arrest-you
physical consequences regardless of which choice he makes..
<snip>
> I'd make it 3x3: Police officer MUST GIVE the order, MAY GIVE the
> order or not, MUST NOT-GIVE the order. Civilian MUST comply, MAY
> COMPLY or not, MUST NOT-COMPLY. Even I can't come up with examples of
> all of them (especially "MUST GIVE" and "MUST NOT-COMPLY").
Interesting concept. Care to flesh it out? Personally, I can't think
of any "must give" example - police officers mostly have wide
discretion in their interactions with civilians, and are not REQUIRED
to intervene under penatly of legal consequences to the officer if he
fails to do so. They don't HAVE to catch all the perps, or prevent
every crime. It's not a crime, in other words, for the cop to fail to
do so, or even to fail to try. The only things that would go in a
"MUST GIVE" box would be purely ministerial duties that some
government agent is required by law to fulfill, and for which he would
be subject to a writ of mandamus if he neglected or refused to carry
out his duty. I can't think of any mandamus that would apply to a
cop's interactions with civilians.
Finding something to fit in the "MUST NOT COMPLY" box is easy. How
about, "Hey, Otto, stop wrenching that Mercedes and drive this van
around until the exhaust gas kills all those Jews in the back." Otto
could be charged, later, by the war crimes tribunal, for complying
with that request OR that order. Whether it is a request or an order
depends on whether the Gestapo officer who asks Otto to drive the van
around, gave any indication he would just as happily shoot Otto and
ask someone else, than argue with Otto. If Otto does the right thing,
and refuses the order, and gets shot, that doesn't help Otto. One
more martyr for the anti-fascist cause, but somebody _else_ is still
going to be compelled to drive the van around and gas the Jews. I
didn't say this was going to be easy for Otto to DECIDE what to do; I
just said finding an EXAMPLE would be easy..
> >If the thing you are being asked to do is NOT clearly illegal, AND if
> >the person asking is allowed to ask it, then the LEO doing the asking
> >_IS_ allowed to use force to compel obedience (that's what the recent
> >SCOTUS line of cases on "qualified immunity" for LEOs meant,
> >immunizing them from complaints of wrongdoing unless they violated
> >"clearly established" rights in the course of fulfilling their
> >duties).
>
> Wait a minute. Are you saying that the LEO is allowed to use force to
> get compliance with what you referred to earlier as a "legal request"?
No, perhaps I mis-spoke. What I'm saying is that, under current
SCOTUS precedent, a cop who violates your constitutional rights by
ordering you to do something that is NOT CLEARLY ILLEGAL for him to
use force to compel, is NOT going to be successfully prosecuted or
sued for that violation, AND the perp will NOT be able to use the
cop's violation as a DEFENSE to a subsequent criminal charge (for
whatever unrelated act it was that the cop discovered by means of the
illegal stop) by means of the exclusionary rule.
> I would say that if I am not required by law to obey an order, then
> forcing me to obey it violates my Constitutional Rights.
Of course. I agree. Good luck suing the cop on that grounds, or
getting off on the charge he brought aganist you as a result of his
illegal search and seizure, if the cop's acts were not CLEARLY
illegal.
> > And, even if the LEO turns out later to be WRONG, the
> >civilian can STILL be liable for refusing to obey his "lawful order."
>
> A police officer gives me an order. I don't obey. It turns out that
> no law requires me to obey it. Yet somehow I'm liable for violating a
> law that doesn't exist?
No, again I mis-spoke, factually but not legally. The situation I
was talking about was where the cop was FACTUALLY mistaken, but had
the LEGAL right to ask AND to compel obedience (which is what makes
his request into an "order," I think we agree on that). Even if you
are walking down the street pefectly innocently, and the cop
mistakenly thinks YOU were the perp who was running away from a crime
scene, and he asks YOU to stop, then YES, you do have a legal duty to
comply, and can be charged for violating that order. The law DOES
give him the right to compel you, but he was WRONG in thinking you
were the perp he was looking for. That's what I meant.
> >As a practical matter, the time for a civilian to determine whether an
> >order must be obeyed, may be refused, or MUST be refused, is WHEN IT
> >IS GIVEN, not a long time later in a courtroom.
>
> Is it disobedience to ask for time to call your attorney to ask for
> his advice on how to proceed?
Well, if the order was simply to "stop," you have already complied by
asking for an attorney.
The cop cannot LEGALLY compel you to SAY anything else, until you DO
have a chance to talk to your attorney But assuming he has probable
cause independently of what you might say, if you refuse that doesn't
prevent him from arresting you on the spot, hauling you back to the
station, and letting you sit there and stew for a couple of hours
incommunicado before he actually does let you call your attorney. Do
you want to waste a day, or aa night, sitting in the tank? Be their
guest.
<snip>
> A lawful order (as used by you, the legal term of art meaning one that
> must be obeyed) is only made such by a statute saying so.
Agreed.
<snip>
> >> Isn't that subjective? I take "objective" to mean there's a fixed
> >> definition, not subject to opinions.
>
> >No, that's not what "objective" means. "Objective" means
> >"reasonable" as defined by the standards of society at that time and
> >place and under those circumstances.
>
> Thinking more about it, I realize that such a standard is objective by
> my definition: it doesn't refer to any particular person, but is (or
> ought to be) the same for everybody.
Right. That's the point. Even though reasonable juries may differ
in their ultimate outcome, they are all looking to a standard outside
of the perp's own personal frame of reference.
> The law that says "You must stop
> mailing obscene stuff when the recipient says to" applies a subjective
> standard for "obscene": it specifically says that the recipient's
> opinion is the only one that matters.
That's an example of the opposite situation, a statute with a
_subjective_ standard. Not sure why you raised it here, except as a
counterexample.
First Amendment law no longer allows regulation of obscenity simply by
applying "contemporary community standards." In fact, just about the
only thing that _is_ legally obscene and forbidden these days is
sexually explicit kiddie porn, and that mostly because of the harm its
creation does to kids, not because of the degree of perversion Mr. and
Mrs. Grundy in Peoria may think it represents in either its creators
or its viewers. But reasonable time, place, and manner regulation of
obscenity is permitted, so statutes may Constitutionally require,
frex, adult bookstores be kept a certain distance from schools or
churches, or (as you note) may require that mailers must comply with a
specific, subjective request from a recipient who finds the material
offensive, not to receive such mailings any longer.
> >> "Jump off the cliff or I'll kick you in the shins." That's an order,
> >> but I suspect obedience carries more undesirable consequences than
> >> disobedience. If only the first part is stated, I think it's still an
> >> order, though there are no consequences for disobedience.
>
> >In the rubric we are exploring, the first part is only an "order" if
> >enforceable consequences are threatened or implied (even though not
> >explicitly stated).
>
> In the legal sense, I agree, at least for enforcement purposes. I
> think there's more leeway when using "I did as the police officer
> commanded" for defense.
As long as what the officer requested is not _malum_in_se_ to do,
that's true.
> >In that example, the Fire Marshall _is_ acting as a law enforcement
> >officer (that is, he is "enforcing the law.")
>
> I'd say, rather, he's _stating_ the law. He isn't enforcing it;
Yes he is. If you disobey, he will ultimately bring the power of the
State to bear, to force you to comply.
> if you disobey, he'll call the police to enforce it.
Right. In other words, he is implying, threatening, or applying the
coercive power of the State, which at some point will ultimately come
down to physical force, even if the Fire Marshal is not himself
personally prepared and equipped, at that point in time, to use such
physical force. Neither is a judge, but judges issue their orders
under penalty of all _kinds_ of harsh physical consequences, from
arrest to confiscation of property to imprisonment to sentence of
death, even though someone _else_ is invariably charged with
physically carrying out those orders.
> Similarly, aren't Regulations orders that must be obeyed?
I don't call something an "order" unless it's directed to a particular
person. Otherwise, a regulation is just like a statute, except it's
promulgated by an executive, administrative agency, not passed by a
legislature. Regulations, to have legal force, must be made
_pursuant_to_ a specific authority granted to the agency by the
legislature, but that's a side issue.
All persons are generally required to comply with the law (statutes,
regulations, whatever). That doesn't make those statutes and
regulations "orders." But if a cop, or fire marshal, tells you to do
something, AND he is legally authorized to require you to do that,
then that IS an (enforceable) order and you can suffer consequences
for disobeying that order.
Another example is the discovery rules in litigation. The rules
require exchange of certain information, and usually that gets done
without any court order being required. If a party does not comply
fully, the other party can go to the judge and file a motion to
compel. If granted, the court enters an Order compelling the
noncompliant party to produce the requested discovery. If the
respondent THEN still fails to comply, ADDITIONAL penalties can come
down on his head for failing to obey that Order, in addition to those
he might suffer simply as a result of his initial failure to produce
discovery answers.
> They aren't
> generally issued by those who will enforce them.
Which AGENT does what, is irrelevant. THE STATE is who issues them,
and THE STATE is who enforces them. Different, specially trained
agents may be involved in step A, and step B.
> > With the emphasis on
> >FORCE, since he can issue a citation and compel your attendance in
> >court to explain yourself if you disregard what he is telling you,
>
> Based on what I know of behavior of Fire Marshalls, they're much more
> likely to call the police and just have them close down the whatever;
> a citation that someone has to answer next month doesn't do much to
> preserve human life in an emergency.
Right. They could do _both_. The Fire Marshal may write out an order
that may be, frex, pinned on the door of a noncompliant establishment,
ordering it to be shut down until compliance is proven and a
subsequent order issues. If the proprietors disobey that order, THEN
the fire marshal will call the police, who have guns, not just pens,
to apply force with.
<snip>
> >> > directing the recipient to do or to refrain from doing something,
> >> >which (a) the LEO actually HAS a legal right to request, _and_ (b)
> >> >the recipient has a legal duty to obey, which means the LEO has
> >> >the right to use or threaten _force_ to obtain compliance.
>
> [terminology comments elided]
>
> In order for the recipient to have such a duty, there must be a law
> saying so, right?
Yes. If, that is, we are talking about a SEPARATE CRIME of "failing
to obey a lawful order."
That is really only a _subset_ of what we got into in this thread,
since any "lawful order" compels compliance, and permits the LEO to
use FORCE if the person so ordered refuses to comply, but unless there
is a specific statute that mandates compliance under pain of separate
criminal penalties, the perp will not be chargeable with mere "failure
to comply." Rather, he will be arrested, probably caused great
inconvenience and some pain (Handcuffs too tight? Tough.) and
probably forced to waste money and anguish on defending himself
against some underlying charge. AND, even if he succeeds in proving
that he did nothing wrong in the first place, he will not be able to
successfully sue the cop for misconduct (due to the cop's Qualified
Immunity) unless what the cop did was violative of CLEARLY established
(constitutional) law.
> It could be "while you're driving, you must obey
> any traffic-related order of a police officer"
Yes,
> or "anybody over 18
> must obey any order by a police officer to assist him in enforcing the
> law"
Yes,
> or "everybody must obey all orders of police officers" (though
> the latter will likely fail the "overbroad" Constitutional test).
Agreed that would be overbroad, and I know of no USA statutes that
even attempt to say that. The Gestapo probably had such a law in
their favor, however.
<snip>
> The law wouldn't consider [a legal request, i.e. something the cop
> is permitted to ask but may not legally compel, to be] an unenforceable
> order? If I obeyed it (because I wasn't sure), and it turned out that
> what I did was illegal and the order wasn't enforceable, I'd certainly
> argue that it was an order in my defense.
If WHAT YOU DID WAS ILLEGAL, obeying an order would NOT be a defense
to the UNDERLYING CHARGE (of doing whatever illegal thing it was you
were requested to do). It would, however, get you off the hook if all
you were charged with was "disobeying a lawful order." Fat chance.
Look, this is really a lot simpler than you are making it, Seth.
An ORDER, from the civilian's POV, regardless whether it is legal or
not for the cop to ask, and regardless whether it is legal or not for
the civilian to comply, is any request ACCOMPANIED BY IMPLIED,
THREATENED OR ACTUAL FORCE to compel obedience. IF NO such force is
even REMOTELY involved, then it's a mere "request."
We are not talking only about an IMMEDIATE forceful response (e.g. the
Fire Marshal, or a judge), but we ARE talking about the REASONABLE
PERCEPTION by the civilian that undesirable consequences will occur to
him BY A CONSCIOUS APPLICATION OF THE STATE'S MONOPOLY ON USE OF
PHYSICAL FORCE if he does not, at some point before the actual
physical force gets applied, voluntarily comply with what is being
asked of him.
A person who gets arrested, but voluntarily walks to the station on
his own, without cuffs, is still "under arrest" and is still doing so
"under threat of force" even though he is not being subjected to
immediate physical grabbing and pushing by the cops. Or, he can do
it the HARD way, requiring the cops to physically MANHANDLE him into
shackes and restraints, and CARRY him into the jail cell. It's his
choice.
> I would certainly agree that the grounds required for stopping him are
> the same in both cases. But in the "just grabs" case, surely there's
> no possibility of "failing to obey a lawful order", which there can be
> in the "Stop!" "Sorry, late for work." Grab! case.
Sure.
> The grabbing is an order to stop. When the cop grabs him, he stops.
> Is he guilty of violating a lawful order? (Presume the cop had
> sufficient articulable reason to stop him.)
No, of course not. Why does this scenario even come up at this point
in the discussion? He obviously will not be charged with "failing to
obey a lawful order" if he is not even given the +chance+ to
disobey. But what we were talking about is, what act or gesture or
saying by the cop _constitutes_ a "lawful order" - and the order to
stop and submit to a frisk, in a (colorable) Terry-stop situation,
_is_ a "lawful order," whether it is communicated by words, or by an
initial grab.
> >> grabbed him. I'll stipulate that the cop had the legal right to; but
> >> was the "nothing" an order?
>
> >It wasn't "nothing" - the cop GRABBED him. Do you call that
> >"nothing?"
>
> No, the grabbing is an order by action.
<snip>
> If the cop believed the guy would disobey the order, then it's easier
> just to grab. If the cop believed the guy would probably obey the
> verbal order, it's easier to speak first. It's up to the cop's
> judgment.
Exactly. As are most things involved in a cop's interaction with
civilians. He has very wide discretion, and if he chooses to
"order" (applying threat of force) rather than "request" something,
then he must be obeyed, so long as he does not affirmatively violate
some CLEARLY ESTABLISHED constitutional right of the civilian. Under
the current SCOTUS precedent, that is. Which, IMO, is a serious
erosion of civil liberties, but, there you go, that's what the law is,
currently.
<snip MN statute requiring compliance with an order to a civilian to
assist an LEO>
> >> which makes a lot of (potential) police orders enforceable, and yet
> >> I believe that a police officer giving such an order, phrased as a
> >> request, would likely have no intention of enforcing that order,
> >> despite having the right to do so.
>
> >So what? It _IS_ a lawful order, if he has the RIGHT to so enforce
> >it.
>
> If you were on a jury, and all the testimony agreed a police officer
> said to someone "Would you mind holding this door open for a few
> minutes?" and the person said "Sorry, I have to get to work" and
> walked away; that person was on trial for violating 171.40, would you
> vote to convict? I wouldn't, because I don't see an _order_.
Would _I_ vote to convict? I don't know, as I haven't heard all the
evidence which would put flesh on that bare-bones scenario. What
matters is whether the TOTAL circumstances give rise to a REASONABLE
conclusion that the cop was giving an ORDER rather than a request, and
that it was UNREASONABLE under the circumstances for the civilian to
REFUSE to help out. I can imagine additional facts that would make my
verdict go both ways.
> >> >But if you mean, the _right_ to compel obedience is not what defines a
> >> >"LAWFUL order," I would disagree, since absent that right, the LEO's
> >> >words either are not an "order" but a mere "request," or are an
> >> >unlawful "order."
>
> >> But even with that right, the LEO might make a request and not intend
> >> enforcement.
>
> >True. But it's his RIGHT to demand enforcement that makes his
> >permitted request a "lawful order."
>
> No we're having language issues again. A request, by definition of
> that term, need not be obeyed. (If the person declines to obey, and
> the officer says "You have to", that makes it an order.)
Okay. What if the cop just _arrests_ the person when he refuses, and
doesn't clarify by saying "you have to" because the cop thought the
circumstances made it obvious that he was giving a "order"?
On the flip side, even if the cop DOES clearly have authority to
compel compliance, but makes what appears to be a polite request and
the civilian refuses, after which the cop does NOT arrest or grab the
civilian, then it was clearly NOT intended as an order because he did
NOT intend to enforce it. Why are we arguing about that?
But this is something the civilian CANNOT foretell, other than by
whatever REASONABLE, objective inferences he is able to draw from the
cop's total language and demeanor. And which the jury will second-
guess when THEY evaluate the same evidence later on, _IF_ the perp
gets charged with disobeying a lawful order. Why is that a hard
concept to understand?
No two real-life scenarios are EVER exactly alike. No precedent is
EVER a perfect fit to a later case. Sometimes, not only the
(presumably legally ignorant) civilian, but the (partially legally
educated) LEO, the (fully post-grad legally educated) DA, and one or
more (fully legally educated and specially selected for their judicial
temperament) judges, will get the application of the law to their
facts WRONG, until some appellate court tells them what SHOULD have
been done, by either the civilian or the LEO, in their particular
circumstance. Until then, the best any of us can do is muddle along,
making our predictions based on precedent and common sense, and hoping
we usually guess right.
If you want GUARANTEES, one way or the other, that it is ALWAYS safe
to disobey OR safe to obey, sorry, life doesn't come with such
guarantees.
<military example snipped>
> >Okay, sure. You snipped out the part where I said, previously, that
> >the _scope_ of the lawful orders a cop can give a civilian is MUCH
> >NARROWER than the range of lawful orders (or commands) a superior-
> >ranking officer can give to a soldier.
>
> So you're using "order that is not unlawful" to mean "lawful order"?
> With the latter being a Term of Art, I don't think the double negative
> cancels that way.
No, that's not what I'm saying.
"Lawful order" means the SAME THING, whether the person being ordered
is a soldier or a civilian. That is, it is a command that (a) the
commander is PERMITTED by law to give, and that (b) the person
commanded is REQUIRED by law to obey.
As to the soldier, the scope of things his superior officer is legally
ALLOWED to command him to do, BY STATUTE and by Military Regulation,
covers virtually EVERYTHING in the soldier's life, OTHER THAN things
that are patently ILLEGAL for the soldier to do even if he is
commanded to do so, such as, "commit a war crime."
As to the civilian, the scope of things an LEO is allowed to order him
to do is MUCH NARROWER, as defined by whatever the particular statute
is that is applicable to THAT situation.
Military regulations PERMIT the sergeant to order the private to tie
his shoes.
No civilian statute or regulation could constitutionally permit an LEO
to order a civilian to do the same physical thing.
> >> >> In civilian life,
> >> >> people generally aren't required to obey orders from police
> >> >Yes they are, if it is a "LAWFUL order," as I propose we define them.
> >> In most places, the only such orders have to do with traffic
> >> (apparently, based on a few posts here).
> >True. And in a few other, very narrow circumstances, such as a Terry
> >stop, or an actual arrest. Resisting a lawful arrest is, of course, a
> >separate crime in most jurisdictions.
>
> And since the circumstances where police orders are lawful orders are
> so narrow, I still contend that people generally aren't required to
> obey orders from police.
But now you're back to talking about mere grammatical "orders"
again. What I said, above was, people generally ARE required to obey
"LAWFUL orders" from police. it's just that the scope of things
which an LEO is lawfully PERMITTED to order a civilian to do, is
pretty limited.
> "Generally" is the issue;
Agreed. But, it depends on which "generality" you are looking at, to
derive your statistics.
> of the huge set of
> possible orders, only a small subset need to be obeyed.
Of the SMALL set of LAWFUL orders an LEO may give a civilian, ALL must
be obeyed. Which is what I said.
Of the (only slightly larger, in practice) set of PURPORTED "lawful
orders" that a reasonable LEO would ACTUALLY give, the vast MAJORITY
are in fact "legal orders" and must be obeyed.
That's the part of "generally" that matters TO ME.
But, of course I agree that of the universe of POSSIBLE orders, such
as "tie your shoes," only a very SMALL number of those potential
orders would be "lawful orders" if given from an LEO to a civilian.
I just don't think that's a useful frame of reference. Whether we're
talking about time, or distance, or mass, or whatever, NOTHING of
human scale is of any significance, on an astronomical plane. That
doesn't mean it doesn't MATTER to reasonable humans, or that it isn't
reasonable for your landlord to complain about you being a couple
months' behind in your rent. "What's the hurry, man? The sun's
going to be shining for another few billion years. I'll get around to
it."
> In the
> military it's the opposite: only a small subset do not need to be
> obeyed.
I assume you mean, only a small subset NEED be DIS-obeyed.
There is an AFFIRMATIVE duty on the part of a soldier, as well as a
civilian, to DISOBEY a patently unlawful order.
There are NO orders that could conceivably be given to the soldier
that do NOT legally require obedience, EXCEPT those that affirmatively
require DIS-obedience. The solder NEVER has a legal choice in the
matter, but he still has only TWO options as to any particular order -
either obey, or disobey, it.
The civilian ALSO has only two options, to obey or to disobey.
However, he has THREE possible RESULTS to the analysis when he decides
between comipliance and noncompliance when given a purported order
from an LEO, because, unlike a superior military officer, the LEO is
NOT legally authorized to govern EVERYTHING in the civilian's life
other than ordering him to do things that violate the law.
The first two steps apply to soldiers and civilians alike:
(1) What will happen to me if I DO NOT comply - will I be arrested,
charged with failure to comply, or charged with some other crime? If
so, then it is AN ORDER, which means I understand that FORCE may be
used to make me comply. If not, then it is NOT an order, but a mere
request, which I am free to disobey; I know it is a mere "request"
because I know there will be no consequences imposed for disobedience.
(2) Once we have established that it IS an "order," what will happen
to me if I DO comply - will I be committing a crime, so that I MUST
NOT comply even if the LEO or superior officer tries to force me to?
If so, then legally, I AM FORBIDDEN TO comply, because it an "illegal
order."
For the soldier, if it is not an "illegal order," then legally ALL
other orders are "lawful orders," with which he MUST comply, and that
is the END of the story. Both legally and as a practical matter, he
has no further choice, on pain of severe legal penalties.
For the civilian, however, there is an additional step in the
analysis, since an LEO still may be ordering him to do something that
is NOT ILLEGAL in and of itself, but which the LEO has NO RIGHT to
order the civilian to do. The civilian next needs to ask, having
already established that he was given an "order" rather than a
"request," which the LEO stands ready to use force to compel, _and_
that it would not be ILLEGAL per se for him to comply,
(3) DOES the LEO have the authority to order me to do that? If not,
then it is NOT a "lawful order." I may legally choose between
compliance and refusal, even if the LEO seems ready to APPLY FORCE to
compel my compliance. However, in that instance, I risk suffering the
actual APPLICATION of force to my person, because it _IS_ an "order"
even if it is an "unlawful order." It is my choice to make, whether
to comply now and sue for being forced to give up my constitutional
rights to comply with the unlawful order, _or_ whether to disobey now
and suffer the consequences, then sue for being beaten up, imprisoned,
etc. illegally.
No one said that choice would be easy.
> >> I'm using it in the normal English sense of the word, which is the
> >> only way a person can know if what was just said to him is an order.
>
> >But it's NOT the only way he can know if that order is LAWFUL.
>
> I agree. In fact, a non-lawyer generally can't determine that at the
> time; even a lawyer only has a much better chance of being right.
Exactly. Lawyers get it wrong sometimes too, and no one said this
would be easy.
> >As stated eons ago in this thread, the SAFE thing for a civilian to
> >do, whenever he senses that an LEO wants him to comply with the LEO by
> >doing or refraining from doing something, is TO COMPLY, unless the
> >civilian has CLEAR knowledge of his own that the LEO is _not_
> >authorized to ask him to do that, or is willing to take that risk.
>
> Under the assumption that what he's being ordered to do is illegal,
> but not a heinous felony, is it a valid defense that he believed he
> was required to obey the police orders?
I think we discussed that, above. As long as the act being commanded
is not _malum_in_se_, obedience to the cop's orders gives the perp a
"safe harbor" if he is later charged with the underlying offense that
the cop told him to commit.
Of course, the only time this COMMONLY comes up is in traffic
situations, where every motorist SHOULD know that the orders being
given by a cop ON THE SCENE trump any presumed rules applied by the
traffic laws, at that particular time and place. Thus, the motorist
MUST obey the cop, and MUST ignore the signals or signs if they say
something different. It's not "a choice" at that point. If the cop
on the scene tells you and signals you with his hand to "move on," and
you say, "But officer, there's a red light!" and you continue to
argue, you will most likely be pulled over and charged with disobeying
the cop, assuming he has time to do that (or has a backup officer to
write tickets) and doesn't just growl at you angrily enough to
eventually get you to comply and drive through the red light as he
ordered you to do.
> (Even though you've stated
> that in such a case, what the officer said wasn't an order.)
I DIDN'T say that. What makes it an "order" as opposed to a
"request" is that the LEO stands ready to use, or to call in backup to
apply, FORCE, using the state's legal monopoly on coercive physical
violence. That is true whether the order is a LAWFUL one, or an
illegal one.
> >Okay. Then, what's the issue on which we differ? Simply that you
> >are offering a neologism, "legally enforceable order," to replace the
> >widely understood and used term "lawful order." Are you trying to
> >create _more_ work for lawyers, with all the confusion and ambiguity
> >and need for re-construing statutes that would require, or what?
>
> I'll accept "lawful order" as a term of art.
Great.
> >> That's the next step. If it isn't an order, then any action or
> >> inaction can't be "violation of an order" (whether or not obedience is
> >> legally required), because there wasn't any order to violate.
>
> >Agreed. What makes it an "order" rather than a "request" is the
> >(implicit or explicit) threat or actuality of enforcement.
>
> Agreed.
>
> >What makes it a "lawful order" is the RIGHT of the LEO to threaten or
> >apply the tools of enforcement to the situation.
>
> So it can be a lawful order without being an order? That really
> doesn't seem right.
I didn't say that. Any "request" that can be enforced by use of force
_IS_ an "order." That's how I'm defining it.
Whether such an order is "lawful" or not is the NEXT step of analysis.
> >What makes it an "unlawful order" is the threat or actuality of
> >enforcement when the LEO has NO right to do so.
>
> >And, if the LEO has no right to even ASK the civilian to do something,
> >even with "pretty please" on top, it is an illegal request. Just ask
> >Officer Fellatio.
>
> So there are "lawful orders" (civilian must obey), "unlawful orders"
> (police officer must not ask),
Yes.
> and ??? orders (police officer may make
> a request that sounds like an order, civilian is not required to
> obey).
You said it yourself - that is a "REQUEST that sounds like an order,"
but it is a REQUEST, NOT an order.
> The fact that "lawful" and "unlawful" don't partition the
> space is bothersome.
It's a FOUR-way, not a two-way, space. That's my matrix.
The communicated intention to have the civilian do some thing - i.e.
the underlying "request" - is either lawful, or unlawful, for the LEO
to even ask.
Then, we see that either a lawful, or an unlawful, request may be
accompanied by THREAT OF FORCE, which is what turns a request to do
some thing, into a (lawful or unlawful) ORDER; if NOT, it is still a
mere "request."
As to LAWFUL ORDERS, they MUST be obeyed, under pain of legal
sanction. That's clear.
As to UNLAWFUL ORDERS, there are 2 kinds, as you have noted. Those
that the law PERMITS disobedience (even though the LEO may ILLEGALLY
apply force to try to compel it), and those that REQUIRE disobedience
because of SOME OTHER substantive law being broken (again, even though
the LEO may illegally use force to attempt to compel obedience).
But, for that very last step, the analysis of whether the civilian, or
the soldier for that matter, is REQUIRED to disobey, depends on some
specific, universally recognized substantive law OUTSIDE of the
framework of this analysis. This is simply a recognition that the
"real world" must be taken into account, but it is NOT part of the 4-
way matrix of LEGAL vs. ILLEGAL, and FORCED vs. UNFORCED, which
completely covers the universe of "requests" and "orders."
For Otto, deciding whether the Gestapo agent is going to shoot him for
refusing to drive the monoxide-gas-chamber truck is certainly one step
of his analysis. But that doesn't obviate the fact that Otto, and
everybody else in the world, knows OR SHOULD know that genocide is
illegal, and that an order to commit it _must_ be refused according to
international law, under pain of being penalized for committing war
crimes.
I'm not saying Otto had an easy choice. But I"m guessing most actual
Ottos didn't lose much sleep at night agonizing over whether they made
the right choice. Those who disobeyed and refused to cooperate with
the SS and the Gestapo were mostly shot on the spot. Those who
obeyed mostly did so because they saw nothing wrong with it, OR
because even though they had misgivings, they knew the law of the
realm compelled them to obey. SOME (not nearly all) of them wound up
getting charged with war crimes after the war, and paid with their own
lives at THAT point for their crimes, at which point "I was just
following orders" was no excuse.
> >> > If there is no duty to obey, then the message the cop is
> >> >communicating is by definition not a "LAWFUL order of an LEO" as to
> >> >which legal consequences would attach for failure to obey.
>
> >> Agreed. But it's still an order.
>
> >Agreed, _IF_ enforcement is implied, threatened, or applied.
>
> Agreed. (Though to me, anything stated as an order ("Halt!") carries
> at least an implicit threat of enforcement.)
Okay. Most of the time, in most circumstances, it does. All I'm
saying is, that threat (implied or actual) is what MAKES it into an
order, and the EXISTENCE of such a threat must be determined from all
the circumstances.
Sometimes those circumstances are not perfectly clear. The civilian,
in most cases, _can_ safely ask, "DO I HAVE TO do that?" at which
point the LEO will usually let him know what the LEO feels about it,
one way or the other. Whether or not the LEO is legally correct, it
is what HE thinks and is willing to enforce that makes his command
into an "order," whether it is ultimately found to be a lawful or an
illegal one.
> >> > It is then just a "request" even if it is stated in a stern tone of
> >> >voice and using a verb in the imperative mood: "_DO_ this. _DON'T_
> >> >do that."
> >> I disagree.
> >Sheesh. Now we're back to grammatical square one again. We're not
> >talking grammar, we're talking LAW.
>
> When a guy with a gun says "DO THIS NOW" would a reasonable person
> believe there's a threat of enforcement?
Yes. Most of the time. But each particular case must be decided on
all its circumstances, under that rule of reason.
It's those circumstances, which include but are NOT LIMITED TO the
actual words and tone of voice, that determine the outcome. All I
said was, the tone of voice and grammatical form, standing alone, was
NOT ENOUGH info on which to make that ruling. The need to apply the
rule of reason is why it's a LAW issue, not just a grammar issue.
<snip>
> All the statutes I've seen are phrased in terms of "the civilian must
> obey the order". If there were a statute that says "A police officer
> may order a civilian to . . ." but no statute requires the civilian to
> obey, then I would argue that disobedience is not a crime.
AGREED. But in that case, I wouldn't call the cop's urging the
civilian to take some action, an "order."
It's only an "order" if there is a right on the part of the LEO to
compel obedience.
Keep in mind that, for the most part (other than in directing
traffic), the cops are there to ENFORCE the law as written, not to
MAKE the law. So, there are VERY FEW things a LEO can legally
_order_ a civilian to do, that is, can COMPEL him to do under threat
of force. Other than directing traffic, most of those things have to
do with INVESTIGATING suspected pre-existing breaches of the law, or
CHASING AND CAPTURING fleeing suspects, or other aspects of the LEO's
duty to ENFORCE _OTHER_ laws besides those dealing with civilian-LEO
relations. Just about anything OUTSIDE of the investigatory or
pursuit duties of an LEO would permit the LEO to REQUEST cooperation
from civilians, but he normally CANNOT MANDATE compliance with any
purported "orders" given outside of that framework.
The cop directing traffic _IS_, however, "making the law" insofar as
HE, not the written rules, is the governing authority in telling each
individual motorist at the scene what to do. It is HIS commands that
are to be obeyed, NOT what the signs or signals or street markings
say. That is, of course, so long as his commands have to do with
traffic flow, and not with unrelated matters such as Officer
Fellatio's "frolic and detour" we mentioned last time.
> (I don't
> know why anyone would pass such a statute, but there have been plenty
> of errors made in the wording of laws.)
I don't suppose it would do any HARM to pass a statute that contained
no specific enforcement teeth, other than in the sense of fostering
disrespect for and flouting of such a law. It does happen,
occasionally.
> >How would you deal with something that YOU KNOW (and let's assume you
> >are CORRECT in this knowledge) the cop has NO right to ask you to do,
> >but he threatened to beat the crap out of you if you DID NOT do what
> >he said anyway?
>
> More or less the same as I would for an armed non-cop who made the
> same threat (except that I'm probably less likely to use the best
> defense against the cop, and more likely to try to get him on record,
> e.g. by calling 911 on speakerphone, with making the order/threat).
Okay. My point is, YOU make the decision you feel will be SAFEST for
you, but your choice is basically one between (a) being illegally
forced to give up some constitutional right, or (b) having the crap
beat out of you and getting thrown in jail.
Neither choice is desirable. You are choosing what, according to
your best guess at the time, appears to you to be the lesser of two
evils.
And in BOTH cases, you DO have a right, later on, to SUE the cop, or
to prefer criminal charges against him, if what he did against you was
EGREGIOUSLY wrong (i.e. violated some "clearly settled" law).
Otherwise, the LEO's "qualified immunity" will shield him from your
suits and your criminal complaints, thanks to the Roberts court and
the Rehnquist court.
> >> rather, I think, an "unenforceable order".
>
> >Which IMO is SYNONYMOUS with a "request."
>
> In terms of "required obedience" it is. In other terms (even legal
> ones, like for use in defense) I don't think it is.
Perhaps you are using the term "unenforceable order" to refer to one
that is LEGALLY unenforceable, i.e. an UNLAWFUL order, one which the
cop would get in trouble for giving. If so, I agree there is such an
animal, and there may even be caselaw calling it by such a term,
although that meaning would be clear from context. And, even in such
cases, my point is, what made it an "order" was that the cop giving it
_DID_ intend to, or threaten to, apply force to compel obedience, even
if he had NO LEGAL RIGHT to do so. What makes it an "order" is the
ACTUALITY of the circumstances in which force is used or threatened,
not the legality of such use or threat of force.
Otherwise, if there is no perceived enforcement intent, your
"unenforceable order" is merely a "request." If the civilian asked
(or could have asked but didn't), and if the cop's reply would have
been "Yes, you are free no to comply," then we would know for sure.
Otherwise, if the civilian even THINKS the cop intends to use force,
YES it is an order, BECAUSE the implied or actual threat or use of
force exists. A command may be an "order" even if phrased politely
and even if the civilian _doesn't_ ask, so long as the implied threat
of force can reasonably be read into all the circumstances. But if
force is perceived to be absent, AND no actual enforcement action
ensues when the civilian takes it that way and DOES refuse to comply,
then it's equally clear the cop didn't INTEND it to be an order, and
ipso facto it's NOT an "order" - either a lawful OR illegal one - just
a "request." If the cop really has no enforcement intent, no one will
be arrested and put on trial for disobeying something that even THE
COP didn't think was an "order."
If you persist in disagreeing, give us an example of something you
thing would be an "order" (for use by either the prosecution, OR the
defense as you suggested) where there is NO actual OR PERCEIVED intent
of the cop to use force to compel compliance. I don't think such an
animal exists. Good luck unicorn hunting.
> >> I could order you not to post messages with an odd number of words in
> >> them. You would acknowledge that it's an order,
>
> >No I wouldn't. I would consider it a mere request,
>
> Suppose I included a threat to have your gmail account cancelled by a
> friend at Google if you didn't obey.
Then it might be an "order," in the same sense that the mafioso's
protection-racket chat with the Mom-and-Pop proprietors was an
"order." An extortionate one, and an illegal one, but yes, the
threat of force is what would convert your request into an order.
Of course, neither you, nor the protection-racket mafioso, nor a
Gestapo agent telling Otto to drive the monoxide truck, have any
legitimate AUTHORITY to ask me to do such a thing, and in the end, if
justice prevails, I will be compensated for your tortious or criminal
extortion, _or_ you, the mafioso, and the Gestapo agent will be
punished for your crimes.
None of which protects me, AT THE MOMENT, from having you ACTUALLY
call your friend at Google to shut me off, or having Guido call in
Mugsy and Scarface (his "enforcement" arm) to put a little "pressure"
on Mom and Pop, or Gestapo Officer Shultz from giving his Mauser a
little workout to send Otto to his reward for refusing to drive the
truck. Thus, because each of those (illegal) actors has the POWER,
even if not the legal authority, to force my compliance, and appears
willing to use that power, what they tell me to do _is_, by my rubric,
an "order."
> > and an odd one at that,
>
> (or an even one :-)
<g>
> > as well as one you had no right to compel me to comply with,
>
> I agree, I have no right to compel you. But such a right isn't
> necessary for something to be an order.
Exactly. We're on the same page again. What you left out of your
original Google hypo was, any means of forcing me to comply with your
request. Absent such means, it remains a mere "request" and not an
"order."
> >> But this is the Internet. If some arbitrary person were to do that,
> >> would it be an order? Why should it matter if the person were a law
> >> enforcement officer?
>
> >It doesn't,
>
> But from a law enforcement officer, you seemed to indicate earlier
> that it would be an "unlawful order".
Yes. It's _also_ an "unlawful order" if Seth, or Guido, or Gestapo
Officer Shutlz, order me to do something he has no legal right to
order me to do.
> >> >> (How likely is a statute that allow an officer to
> >> >> give orders without requiring obedience?
> >> >You see my point, then. You cannot have one without the other.
> >> One what without which other?
> >An order, without the right of enforcement.
>
> Just because a statute is unlikely doesn't mean that nobody has ever
> passed one by mistake.
If an statute purported to compel o forbid some action but made no
specific provision for enforcement, the law (meaning, the judges who
have to interpret the statute as a matter of first impression) would
either:
(a) IMPLY the usual and reasonable CIVIL means of enforcing the
stated public policy requirement, such as tort claims, or entry of
regulatory injunctions or other court orders based on the statute and
prohibiting a particular person from a particular instance of
violation with real consequences for further disobeying such court
order, or
(b) find some OTHER criminal statute that permitted a criminal penalty
to apply; or,
(c) if neither of those, the statute would be a useless, vestigial
appendage.
If either (a) or (b) is true, there IS some way to enforce an "order"
regarding the thing mandated or prohibited by that statute. If not,
then nobody else will ever likely be charged with violating it because
it is now a dead letter with no way of enforcing it.
> >> You can have orders that there's no requirement to obey.
> >Then, it's not an "order" no matter what it sounds like.
>
> What about the unlawful orders discussed earlier?
You are confusing the LEGAL requirement to obey, as determined later
in the sanctity of the courtroom per applible law, with the ACTUAL
requirement to obey, enforced by the cop at the point of his gun. It
does not help analysis if you get those two confused.
When I talk about "request" vs. "order," I'm talking about WHAT THE
COP WILL DO TO YOU, ON THE SPOT, if you refuse to comply. Most of
the time, regardless of the legal niceties, that determination can be
made even by someone TOTALLY IGNORANT of the law, because "guns talk."
AFTER one has determined that the cop intends to FORCE YOU to comply
if you were inclined to refuse, ONLY THEN do we get to the LEGAL
analysis of whether he had any RIGHT to use force in that situation.
Which is why, getting back to my practical on-the-street advice, the
FIRST thing I recommend is, KNOW YOUR RIGHTS; read and carry your ACLU
"Bust Card." See
http://www.aclu.org/racial-justice/know-your-rights-bustcard
SECONDARY to that, so long as you know that you are not being asked to
do something EVIL IN ITSELF such as to kill another human being, the
SAFEST course, for persons who value their own skin, is usually TO
COMPLY with what the officer is asking you to do at the point of his
gun (other than politely declining to talk about the matter until you
see your lawyer), then GO SEE YOUR LAWYER (or have him come see YOU,
in jail) as soon as possible after that confrontation.
You're usually better off suing the cops for (a) violating your
constitutional rights by making you do something that is unpleasant to
you or by forcing you to stop doing something that is not illegal,
rather than suing them for (b) violating your constitutional rights by
beating the crap out of you and throwing you in jail for _refusing_ to
do what they asked. But, as noted, it's your call, to determine
which is the lesser of two evils.
Also, keeping in mind that suits vs. the cops are difficult to pursue
except in really egregious cases due to the doctrine of qualified
immunity, meaning your suit will probably NOT succeed in any event,
which would you rather have? The integrity of knowing that you stood
up for your rights, and a couple of broken legs and a bashed skull?
Or, the integrity of an unabused body, while bending a little bit in
doing things the cops asked you to do that you know they had no right
to ask you to do? Your call.
Of course, in the extreme case where the cops tell you to do something
patently evil and illegal, _malum_in_se_, the only legal AND moral
choice is, to refuse, even under pain of extreme punishment for such
refusal. Unless we are talking about life in a fascist state,
though, such instances are thankfully very few and far between.
> There are laws that there's no requirement to obey.
Maybe. But laws completely without teeth foster disrespect for law.
Either that or, a law may provide (or imply) that a person can be
prosecuted in an administrative tribunal, or sued civilly, and either
forced to pay damages or enjoined to obey and behave in a certain way
per court order, even though no _criminal_ penalties attach. There
are plenty of _those_ kind of laws.
OR, the law may exist simply to give the COPS a "safe harbor" so
_they_ will not be successfully sued when and if they stop some
civilian under those circumstances who decides he didn't like the
inconvenience, especially if the civilian puts up a fuss and gets
actual force applied to his body in various unpleasant ways. That is
yet another good reason why legislatures pass such laws without
explicit criminal penalties TO THE CIVILIAN - their purpose is to
legalize what THE COP did TO the civilian even if the cops have no
interest in arresting civilians specifically for disobeying that law.
> >> You can even have orders which are specifically
> >> permitted by statute yet which people are not required to obey.
>
> >You mean, you can have things the LEO is specifically permitted to
> >REQUEST, by statute, but with no legal requirement that the civilian
> >must obey. That would fall within the upper LEFT box on the matrix, a
> >"legal request."
>
> Now we're back to the "order" vs. "request".
Yes, because FORCE is what defines the difference between those two.
> If I do something
> harmful to me because I'm ordered to by a police officer (say, I don't
> get a job because he kept me from the interview), and I find out later
> that I wasn't required to obey him, am I SOL trying to recover damages
> because it was "just a request that I voluntarily chose to obey"
Did the officer imply or threaten FORCE, under all the circumstances?
If so, it was an "order."
If you ASKED him, and said, "Do I have to? I'm on my way to an
important appointment," and he said, "no, you're free to go," that's
your answer, right? Or if you just walked away and he LET you,
ditto.
But if he FORCED you to stay and answer questions, it's an ORDER. If
you reasonably THOUGHT he would use force to compel you to stay, and
if he didn't look like the kind of guy who would take it kindly if you
_did_ have the chutzpah inquire into his intentions or credentials,
and you didn't want to risk a broken arm to find out, that is ALSO an
order. What matters from that POV is, what the civilian reasonably
_thought_ the LEO's intentions were.
> or do
> I have a chance because it was "an unlawful order that violated my
> rights"?
You don't have MUCH of a chance in ANY case, thanks to "qualified
immunity." But the only time you have ANY chance is, if what the
officer asked you to do had, under all the circumstances, at least the
IMPLIED threat of force backing it up, and if it was CLEARLY ILLEGAL
for the cop to detain you (and do whatever else he did to you) in
those circumstances.
> >> I'm not; rather, I'm taking the first question to be "Is it an order?"
> >> Only if the answer is affirmative does the second question, "Am I
> >> legally required to obey it?" become an issue.
>
> >Okay. But answering the first question depends on context as well as
> >grammar. And I'm proposing that part of that FIRST question should
> >be, does the cop look like he WILL COMPEL me to obey it if I refuse?
> >That's what makes it an "order."
>
> But you've stated above that it might still be only a request if I'm
> not required to obey.
The "required to obey" is determined by all the circumstances, from
the POV of the civilian who has to decide whether obedience is being
required of him, WHETHER OR NOT that is the LEO's actual intention.
Otherwise, the cops could easily weasel out of any misconduct
complaint by saying to the judge, while looking all innocent, "Oh,
your honor, that's not what I _meant_ to imply to Mr. Seth here, when
I politely inquired as to his willingness to answer a few questions to
aid in our important investigations."
> (Or can the "required to obey" come from
> apparent physical compulsion as well as a legal requirement?)
Yes, it comes ONLY from the apparent physical compulsion, NOT from the
legal requirement at all. Otherwise, there would be no such thing as
an "illegal" order, one which the cop is NOT legally authorized to
give but gives anyway. I thought that was clear, even from my
previous posts, where I said that what matters (quoting from above)
is, "does the cop LOOK LIKE he will compel me to obey?" Let's make
sure that's explicit, that in making this analysis from the POV of the
civilian, it is the way it appears TO THE CIVILIAN that matters, in
terms of ACTUAL PHYSICAL force the cop appears prepared to use, to
back up his "requests," that turns it into an "order." Whether such
an "order" is LAWFUL or not is the NEXT step in the analysis.
> >> Agreed. That shows that "order" is not the same as what you call
> >> "lawful order".
>
> >I never said it was. I thought YOU were saying it was, and using the
> >two terms interchangeably.
>
> No, I've said all along that some orders are unenforceable.
LEGALLY unenforceable, yes. Those are the "illegal" ones.
But not PRACTICALLY unenforceable. WHAT MAKES something an "order,"
as opposed to a "request," is the THREAT OF FORCE that can be applied
if the person being asked or told to do something refuses to comply,
regardless of the grammatical form in which he is asked or told what
to do, and regardless of the legality of the cop so asking or telling
him.
Are we back on the same page, there? I think you were using
"unenforceable" in the LEGAL sense when I was using it in the
PRACTICAL sense. Guido's protection-racket "enforcement" crew has
PLENTY of practical experience "enforcing" their orders to Mom and Pop
even though such "orders," as well as such "enforcement," are both
patently illegal. Nonetheless, it is the FORCE or threat of force
that makes a request into an "order."
<lots of context snipped by Seth>
> >> "Can", yes. But the issue, I think, is whether the person could
> >> *legally* refuse to obey the order, whether or not that refusal is
> >> "reasonable".
<to which, I said that a finding he "legally" refused depends on the
jury's finding that it was objectively "reasonable" to refuse under
all the circumstances>
> I still don't understand. The law says "Under these circumstances,
> you must do this" and someone is on trial for violating that; the jury
> instructions I've heard always say that the judge says what the law
> is, and the jury only gets to decide if the facts show a violation of
> the law as interpreted by the judge.
Right. And, the jury must objectively consider ALL THE
CIRCUMSTANCES. Which inevitably vary from case to case. So, all the
judge can tell them is WHAT law to apply; he can't tell them HOW to
apply it to those circumstances. That's the jury's job.
Let's say someone is on trial for violating a lawful order of an LEO
by, frex, continuing to walk away on his way to an interview, not even
responding when the LEO tells him to stop. There, you and I both
know what the LAW is, as far as what the judge will say to the jury:
"The civilian must comply if (a) it is reasonably apparent to the
civilian that the officer demands him to stop, and if (b) the officer
has a reasonably articulable suspicion that the defendant is, or may
be, involved in criminal activity and may be carrying a weapon in
circumstances where the officer's safety may be endangered."
Part (b) is the only time a Terry stop-and-frisk is authorized, and
part (a) is necessary to determine mens rea (evil intent) on the part
of Seth in his ACT which (standing alone) factually DID fail to comply
with a lawful order but may not have INTENTIONALLY done so if he
reasonably didn't perceive it as an "order."
The _jury_ would then have to decide: (a) DID Seth reasonably, under
all the circumstances, believe that the LEO asking him to stop was not
making an order, but merely a request, and (b) WAS the officer
reasonable, under all the circumstances, in his suspicion that Seth
may have been recently engaged in criminal activity, and may be
packing heat?
They may also have to decide, _IF_ the parties make it an issue,
whether Seth _did_ in fact stop when requested. However, that's only
ONE PART of the state's case. For purposes of this analysis let's
assume that there is no dispute about _that_ fact, and it's only the
"reasonableness" of both the defendant's AND the cop's actions and
beliefs that are in issue.
See where the "reasonableness" comes in? That's how the law gets
applied to the facts. Endless variations are possible, and the
outcome DOES depend on the precise facts.
> So even if I feel that the
> violation was "reasonable", I've had to tell the judge that I'd vote
> to convict if I believed the violation happened or I wouldn't be
> allowed on the jury.
No, if you believed the defendant's actions were reasonable, you would
thus be finding that he LACKED THE EVIL INTENT ("mens rea") which it
was a required element of the state's case to prove beyond a
reasonable doubt, as I'm sure the defense attorney would point out to
you in closing argument, once the evidence was all in. If you
_agreed_ with the defense assessment that the defendant's purported
belief was reasonable, you would vote to ACQUIT because of the lack of
proof on the essential element of bad intent, rendering the state's
factual case insufficient to convince you beyond a reasonable doubt of
defendant's guilt.
OR, you could vote to acquit if you decided that the LEO lacked a
reasonably articulable suspicion, under all the circumstances, that
the defendant was "armed and dangerous," which goes to a SEPARATE
element of the offense, the legality of the stop in the first place.
All of that is so, even if there is NO DISPUTE that the defendant IN
FACT tried to walk away from the officer when the officer tried to
stop him. it is NOT the mere act that is or may be criminal; it is
the act, IN CONTEXT, seen in the light of reasonableness and intent.
> >> >That doesn't mean it's REASONABLE to disobey, or LEGAL to disobey, in
> >> >a particular circumstance.
>
> >> My point is that those are different things.
>
> >They are not. Reasonableness is the objective standard by which
> >legality (of a refusal to obey) is measured.
>
> That does not accord with the instructions I've been given as a juror.
Then you must have been a juror in a case where there was no intent
element in dispute, and no reasonableness element at issue, where only
the doing or not doing of the act itself was being contested.
If the ONLY defense raised is that "The state didn't even prove I was
there, let alone that I pulled the trigger," but the state has
videotape clearly showing defendant _is_ the one there who pulled the
trigger, end of story, pretty much. Thus, IMO it would be a pretty
stupid defense strategy in that circumstance, destroying the defense's
credibility by denying the obvious. Such defendants, caught red-
handed in the ACT, are the ones most likely to make an "intent"-based
"reasonableness" argument. And, of course, many of those ARE in fact
innocent of any WRONG, even if they DID do the act, assuming they
lacked evil intent.
I suppose some guilty defendants could make that argument even where
there is _no_ slam-dunk video-level evidence, but if they simply
wanted to put the state's case to its proof, most will simply deny
EVERYTHING and hope the state can't even prove they were present or
did the act. Such defendants don't want to anger the jury by making
alternative arguments such as, "I wasn't there, but if I was, I didn't
pull the trigger; but if I did, I didn't mean to, it was an
accident." Most of the time, that would also be a stupid defense
strategy.
No, the reasonableness issues are more likely to come in on a case
where the defendant _IS_ (or has pretty good evidence tending to show
he is) ACTUALLY innocent of any EVIL INTENT, even though there is NO
dispute that he actually DID what the state says he did.
Given the odds, I would say you probably did NOT land on one of
_those_ juries, Seth, since, statistically, most of the criminal
defendants who come to trial (in virtually every jurisdiction) _are_
found guilty, and most of those ARE in fact clearly guilty but simply
were hoping the state would screw up in its proof somehow or not be
sufficient to convince the jury. Such defendants are NOT likely to
admit they did the actual act, nor are they really likely to argue
what their INTENT was, BECAUSE they deny committing the actual act and
that would be, duh, shooting themselves in the foot.
> >> Suppose there is a purported order
> >> (presumably, that means something that grammatically appears to be an
> >> order but might not be legally enforceable, right?)
>
> >Okay. We can agree to create yet another new term for THAT situation
> >- a "purported order." That's good, Seth.
> >It's still not necessarily REALLY an "order," by my matrix. But your
> >new term "purported order" gives us a handle for continued discussion.
>
> >The dividing point between "order" and "request" is NOT whether the
> >"purported order" _IS_ legally enforceable. What matters, instead,
> >is whether the LEO appears to stand ready to USE force, legal or not,
> >to enforce it.
>
> If the order is lawful, but the LEO does not appear to stand ready to
> enforce it, then what?
Then it's a "request."
> If it's demoted to a request, what happens
> when I violate it and a _different_ LEO arrests me and charges me with
> violating the law requiring obedience?
Then you defend on the grounds you REASONABLY thought the original
officer's statement to you was a "request" and not an "order." Then,
the jury will evaluate the reasonableness of both yours, and the first
officer's, actions, and decide who was right.
If you're asking for a guarantee that no cop will ever second-guess
the legality of something you did that was perfectly legal, and arrest
you for it, sorry, life doesn't give those guarantees.
Let's say, you're Joe Naturist, and you want to visit a popular and
well-known nude beach adjacent to, but not on, National Park
property. It's technically against the law to be naked in public on
National Park property (true), but you don't know that, and this beach
is on a state or private parcel that is _not_ federal government
property. People have been sunbathing au naturel there for years,
with not a peep from the rangers, which is how you heard about it from
your nudist friends. Just to be sure, when you arrive you ask Ranger
Bob, who is patrolling the beach (including the private portion), if
it's okay to take your clothes off there, and he says, "Sure, knock
yourself out, and don't forget the sunscreen" as he drives away in his
official Jeep among the scattered bodies, who pay him no mind. A
while later, you are laying there in the sun naked, along with dozens
of other beachgoers, when Ranger Rick comes along and says, "What the
hell are you people doing? Put your clothes on! You're all under
arrest!"
What defense arguments do you think Joe Naturist's lawyer will
raise? You have 15 minutes. Pick up your pencils and begin.
> >If he DOES objectively appear that way, he is giving an "order." If
> >there is not even an implied threat of force, by any objective
> >reasonable standard, then it is CLEARLY not even a "purported
> >order" (which could, after analysis, be legal or not), since all
> >parties to that conversation would agree it is a mere "request."
>
> Using standard English terminology, I'd consider it an order.
Stop writing such silly things, Seth. That's an order.
Is it? What will I do to you if you don't?
> >> where it is not objectively reasonable to disobey, but there's no
> >> statute requiring obedience.
>
> >You'd better give us an example. I can't think of any.
>
> A police officer orders me not to walk past a building, but to walk on
> the other side of the street, because stuff is falling off the
> building's facade. No statute requires obedience, and it is not
> reasonable to disobey.
You already gave us that example, and we already discussed it much
earlier in this thread. To summarize, it's stil not an "order"
unless the cop intended to FORCE you not to walk there, and it's not a
"lawful order" unless some statute gives the cop the _right_ to close
the sidewalk to all traffic under those circumstances, that is, to
legally FORBID people from entering due to the danger. We had a
related thread on MLM, regarding people being legally compelled to
leave their homes in a flood disaster area, some months ago. If a
statute so permits, and the cop may use FORCE to compel obedience,
it's an "order." Otherwise, it's just your friendly local
constabulary trying to save your skin from your own stupidity by
warning you of a danger, a warning which you are free to accept or
disregard at your own peril.
> > If there's no statute requiring obedience, AND no (illegal, in
> >that case) threat by trhe LEO to use force to _compel_ obedience,
> >what that means is, the "purported order" is NOT in fact a real
> >"order."
>
> It is neither a lawful order (because unenforceable)
Not LEGALLY enforceable, I presume you mean in that context.
It is a given, in this hypo, that the cop INTENDS to use force to
compel obedience, whether he is legally permitted to do so or not.
> nor an unlawful
> order (because it wasn't a crime for the officer to give it).
Okay.
> Yet
> most people would agree it's an order.
It's really a "request," but because "most people" mistakenly THINK
it's an order, and TREAT it like an order, even though the officer has
NO intent of forcing them to comply, and no RIGHT to force them to
comply, so they DO obey, knowing that it is NOT ILLEGAL for THEM to do
what the cop told them to do. Did I get that right?
That's what you meant by a "purported order?" Okay. It's still
just a "request" even though expressed in the form of a "purported
order" and seen that way by "most people." That means, "most people"
are not going to get arrested, and "most people" are going to walk on
the safe side of the street, and NOTHING is going to happen to "most
people" that is going to give anybody any reason to COME TO COURT
later on as a criminal defendant, or to sue the cop. The only person
likely to be a sticky wicket is the one who DISOBEYS the "purported
order," at which point he will find out whether the cop INTENDS to use
force, and if the cop DOES use force but did not have the RIGHT to do
so, then Mr. Wicket WILL have either (a) a defense to the charge of
"willfully failing to obey a lawful order of an LEO" or (b) an
affirmative ground on which to SUE THE COP for violating his
constitutional rights, assuming the violation was egregious enough to
get over the "qualified immunity" hurdle. WHICH, if all the cop did
was gently force the person not to walk in a place where life-
threatening danger lurked, is a hurdle Mr. Wicket probably won't be
able to overcome, angry though he may be at having his life saved.
If, OTOH, the cop beat the crap out of Mr. Wicket for having the
temerity to question the cop's "orders," Mr. Wicket may have a better
42 USC 1983 case or state law battery case.
<referring to a "purported order" with no intent on the part of the
LEO to use force to compel compliance:>
> > It is, after stripping away what it PURPORTS to be, really a mere
> >"request,"
>
> So it requires years of law school and an intense knowledge of local
> statutes to know whether something is an order?
No. All that is required to know, on the scene, if something is an
"order" is the common sense to recognize when force is being implied,
threatened or applied. Any reasonable person can tell that.
The years of law school, and ultimately the decision of a jury hearing
all the cold facts long after the fact, applying the law as instructed
to them by the judge, is what is necessary to tell, once and for all,
if the order or purported order was indeed a "LAWFUL order."
> I agree that's what
> is required to know if it's a lawful order (must be obeyed) or an
> unlawful order (crime by the officer to give it), but any English
> speaker would likely agree on whether it's an order.
Based solely on whether FORCE WAS INVOLVED - either actual, implied,
or threatened - yes, any reasonable person can recognize an "order"
when he experiences it.
If no force was used, threatened, or implied, it's not an "order."
Period. Call it what you want, but if I know I can walk away and
ignore you with complete (actual, physical, as well as legal)
impunity, you haven't given me any order.
And, I think "order" is used that way in common parlance too. Give me
a counterexample, if you think otherwise, so we can analyze it. And
_not_ the kind of example where the person being so "ordered" laughs
in the face of the person giving the "order" because they know that
the person they're laughing at has neither the authority, nor the
cojones, to do anything about it, where all parties know that calling
it an "order" is sarcastically ironic.
> >> > If the factfinder finds that it WAS, then ipso facto either the
> >> >"order" was not a "lawful order,"
> >> But it was still an order.
> >Correct. IF FORCE WAS USED OR THREATENED OR IMPLIED. Not
> >otherwise.
>
> If it came to the point where a factfinder is involved, then clearly
> enforcement was at least attempted.
Okay. Good point. But if enforcement was attempted by someone
OTHER THAN the one who made the original request, as in my Ranger
Bob / Ranger Rick example, or as in your good cop / bad cop example,
then it COULD get to a jury even where there is a reasonable dispute
over whether the FIRST cop had any intent to enforce his "request" so
as to turn it into an "order."
Or, remember, the determination must be made from the POV of the
_civilian_ who may have been factually WRONG in his conclusion (i.e.
he may have innocently misread the cop's actual intentions) even when
the jury may find that conclusion ("This cop really doesn't intend to
compel me to do _that_, does he?") to have been REASONABLE. It is NOT
the ultimate fact of the cop's ACTUAL intent that matters, if the
point is being raised as a _defense_ to the _mens_rea_ element of an
offense. What matters there is the DEFENDANT's state of mind at the
time.
<earlier iteration of closed-sidewalk example snipped>
> Doesn't the jury have to find the civilian guilty of a crime that's
> actually specified in a statute? Since "failing to obey a lawful
> order of an LEO" isn't in the Minneapolis Criminal Code (that I could
> find), I don't see how I could be convicted of violating it.
In that case, you couldn't. Correct.
> > IF the LEO did not intend to back up that "request" with FORCE such
> >as to turn it INTO an "order" (in this case, a lawful one, _IF_ a
> >statute gave the LEO _authority_ to forcibly forbid civilians from
> >entering a certain restricted area, either for reasons of safety,
> >health, interference with an ongiong investigation, or whatever).
>
> That was my point: there's no such statute.
Okay.
> But the order was given,
> and a civilian arrested for violating it. It was an order as you
> defined (the arrest proves intent to enforce), and I would hope it's
> not one that's illegal for a police officer to give (since it's
> possible that obeying precisely such an order has saved my life), so
> where does that leave it?
If the cop had no authority to _require_ people to stay off of that
dangerous sidewalk, he exceeded his authority. Similarly, LEOs who
come around door-to-door and insist (with force applied as needed)
that all persons must clear out of a flood disaster area and remove
themselves immediately to higher ground exceed their authority if
there is NO STATUTE giving LEOs that right. In most cases, there IS,
but assuming there wasn't, the civilian who is forced to do something
against his will and without authority WOULD have at least technical
grounds to bring a tort action against the cop who made him leave or
kept him from entering.
Absent some really compelling facts favoring the civilian, though,
such as a reasonable assessment on the civilian's part (which facts
later proved right) that the natural-disaster risk to life and limb
wasn't that great, and that the civilian was better off staying there
and protecting his property (which, let's say, got destroyed by
illegal looters whom the cops did nothing to stop, not by
floodwaters), good luck proving damages. And an even slimmer chance
of getting the cop convicted of any crime, due to qualified immunity.
> > That's where the crime/ accident scene tape, "POLICE LINE- DO NOT
> >CROSS" comes in. Yes, you can be arrested and successfully
> >prosecuted for crossing that line unless YOU are part of the EMT
> >team, or the CSI team, or whatever gives you a justification or
> >excuse for crossing the line and makes it REASONABLE for you to do
> >that..
>
> Reaonable? Or as specified by a statute? I would think it reasonable
> for a mother to cross it to pick up her crying baby, but the law says
> she needs permission from the officer in charge of the scene.
Ri-i-i-i-ght. How many juries do you think would convict her of that?
How many DAs do you think would actually prosecute, if they value
their jobs?
> I didn't realize that "unlawful order" was also a term of art, and the
> two terms didn't exclude the middle.
???
What was the context? You lost me there. AFAIK, the whole ballpark
is covered.
<new topic - River Kwai example>
> >> Of course. Different jurisdictions have different laws.
>
> >True, but trivially so, if we are talking about minor variations
> >arising from varying sources of legal tradition in the different
> >jurisdictions. All jurisdictions have some form of law against
> >murder, frex, but they do differ.
>
> Minneapolis has a law about all adults obeying police orders to help
> enforce the law. Other cities (as noted by posters here) don't. I'd
> consider that a major variation, at least in the context of obeying
> police orders.
Okay. How does that relate to whether the civilian would be wise to
obey or not, if the cop has his hand on his gunstock with the holster
unbuttoned when he makes his polite request?
Bottom line is, do what you think is right, under all the
circumstances. Sometimes you will get in ONE kind of trouble or
other, no matter WHICH choice you make. But usually, the SAFE choice
involves doing what the cop tells you to do, unless you have a REALLY
GOOD reason NOT to. More than that I cannot say.
Robert Bonomi
> seem to necessarily be the case: e.g. Arizona Revised Statutes
> 13-2911 includes "A.1.3. Intentionally or knowingly refusing to obey a
> lawful order given pursuant to subsection C of this section."
>
> Doesn't that imply that there can be many other lawful orders given,
> but only those given pursuant to that subsection have obedience
> required?
Arguably it could be read to imply that there are both 'lawful' and 'unlawful'
orders that can be given 'pursuant to subsection C of this section', and that
it is _not_ punishable to defy an unlawful one.
Part of the question of how to interpret A.1.3 depends on exactly _what_
'Subsection C' says -- if it defines what 'lawful orders' someone is authorized
to give, then 'lawful' in A.1.3' is simply redundant. OTOH, if it merely
describes when and/or under what circumstances that person is 'authorized by
law' to give others orders, then the 'lawful' adjective qualifies which _of_
_those_ orders are punishable if disobeyed.
One -cannot- nit-pick the stuff to pieces, without careful consideration of
the *entire* context in which it is used. e.g. "The committee found the
meat was safe because it contained an adequate amount of preservative."
We parse this on the _assumption_ that the meat contains preservative, and
that the committee, _hopefully_, does not. those who like to conjure up
obscure hypotheticals, _could_ probably come up with a scenario where the
word 'it' _did_ refer to the committee.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Mar 12, 1:11 am, se...@panix.com (Seth) wrote:
>> In article <fa981620-b4f0-461e-b41e-2d3dab841...@y17g2000yqd.googlegroups.com>,
>> Mike Jacobs <mjacobs...@gmail.com> wrote:
>> >On Mar 7, 3:56 am, se...@panix.com (Seth) wrote:
>> >That's what virtually all of the statutes that deal with such things
>> >call a "LAWFUL order."
> In our free society, there must be a specific statue
>PROHIBITING something, with the rare exception of ancient common law
>crimes in jurisdictions that still allow those to be charged (and
>which deal with things _everybody_ knows, or should know, are evil in
>themselves).
I agree, and that's a key point.
>> > - the law simply does not consider such a communication, no matter
>> >how imperative-sounding, to be an "order" of any kind,
>>
>> I'm sure there are cases where it would. Would someone who did
>> something that he knew would probably be illegal, but was ordered to
>> by a police officer, be found not guilty because of that order? I
>> don't think a request would necessarily have the same force.
>
>No. Once again, you need to consider the sequence of ACT, CHARGE, and
>DEFENSE before you get a conviction.
>
>A perp who did something he knew (or should have known) was
>independently illegal, especially if it was _malum_in_se_ (something
>INHERENTLY evil) as opposed to _malum_prohibitum_ (something the law
>arbitrarily prohibits
That's the easy case. You didn't think I'd let you get away with it,
did you?
As I walk past, a police officer is holding a videocamera, apparently
running. He tells me to open the door to the building he's standing
next to. I do, and hold it while he goes in. He tells me to come in
and open the next door (it's a very big old-fashioned videocamera). I
do so.
It later turns out that he had no right to enter the building.
Opening a door and walking through it, without permission, is breaking
and entering. Is the fact that a police officer told (I won't use the
word "ordered" here though I would when describing what happened) me
to do so a valid defense?
>> Suppose the enforcement is within the police officer's rights, but the
>> order is otherwise not enforceable? (E.g. "Cut your hair and wear
>> clean clothes or I won't let my daughter date you.")
>
>The cop can't arrest you for failing to do that.
That's right. But that wasn't the issue; you wrote "unless
_enforcement_ is threatened or implied," and "I won't let my daughter
date you" is enforcement.
>> >(2)(b) those that the law FORBIDS the LEO to even ask, WHETHER OR NOT
>> >the civilian is free to obey or disobey as he chooses, and which
>> >_become_ an order if the civilian reasonably feels he is not free to
>> >refuse to comply.
Yet earlier, you wrote:
>> > - the law simply does not consider such a communication, no matter
>> >how imperative-sounding, to be an "order" of any kind,
So, which is it? If a police officer tells me to do something, and I
reasonably feel that I will be arrested (or worse) if I refuse, but
what he told me to do is something he isn't allowed to tell me to do,
was it an order?
>> I'm looking at this from the viewpoint of the civilian, and I didn't
>> see any difference between those two cases.
>
>The difference is simple, from the civilian's POV - did the cop, or
>did he not, imply or threaten or actually use FORCE to compel
>obedience to what he asked you to do? If he did, it's an "order,"
>whether legal or illegal. If he did not, it's a mere request, and
>the civilian is free to act accordingly, or not, as he chooses, with
>no LEGAL consequences AND no cop-will-beat-you-up-and-arrest-you
>physical consequences regardless of which choice he makes..
You've also written below that it's a lawful order if the police
officer has the right to enforce it by law, even if it's phrased as a
request.
><snip>
>> I'd make it 3x3: Police officer MUST GIVE the order, MAY GIVE the
>> order or not, MUST NOT-GIVE the order. Civilian MUST comply, MAY
>> COMPLY or not, MUST NOT-COMPLY. Even I can't come up with examples of
>> all of them (especially "MUST GIVE" and "MUST NOT-COMPLY").
>
>Interesting concept. Care to flesh it out? Personally, I can't think
>of any "must give" example
Fire Marshall calls the police, and tells the responding officer
"Occupancy of that room is limited to 200 and I counted 250 people in
it. Close down that event." It's not inconceivable to me that local
laws require the police officer to order the people present to leave.
>Finding something to fit in the "MUST NOT COMPLY" box is easy.
"MUST NOT COMPLY" is a column with three boxes, depending on whether
the officer MUST GIVE, MAY GIVE, or MUST NOT-GIVE the order.
>> >If the thing you are being asked to do is NOT clearly illegal, AND if
>> >the person asking is allowed to ask it, then the LEO doing the asking
>> >_IS_ allowed to use force to compel obedience (that's what the recent
>> >SCOTUS line of cases on "qualified immunity" for LEOs meant,
>> >immunizing them from complaints of wrongdoing unless they violated
>> >"clearly established" rights in the course of fulfilling their
>> >duties).
>>
>> Wait a minute. Are you saying that the LEO is allowed to use force to
>> get compliance with what you referred to earlier as a "legal request"?
>
>No, perhaps I mis-spoke. What I'm saying is that, under current
>SCOTUS precedent, a cop who violates your constitutional rights by
>ordering you to do something that is NOT CLEARLY ILLEGAL for him to
>use force to compel, is NOT going to be successfully prosecuted or
>sued for that violation, AND the perp will NOT be able to use the
>cop's violation as a DEFENSE to a subsequent criminal charge (for
>whatever unrelated act it was that the cop discovered by means of the
>illegal stop) by means of the exclusionary rule.
What if there was no previous crime, but following the orders of the
cop was itself a crime? (As in my example above, not obviously a
crime.)
>> > And, even if the LEO turns out later to be WRONG, the
>> >civilian can STILL be liable for refusing to obey his "lawful order."
>>
>> A police officer gives me an order. I don't obey. It turns out that
>> no law requires me to obey it. Yet somehow I'm liable for violating a
>> law that doesn't exist?
>
>No, again I mis-spoke, factually but not legally. The situation I
>was talking about was where the cop was FACTUALLY mistaken, but had
>the LEGAL right to ask AND to compel obedience (which is what makes
>his request into an "order," I think we agree on that).
I don't agree with that, and you didn't either, earlier. You said
that if the officer did not imply, threaten, or use force, then it's a
request, even if he had the legal right to compel obedience.
>> >As a practical matter, the time for a civilian to determine whether an
>> >order must be obeyed, may be refused, or MUST be refused, is WHEN IT
>> >IS GIVEN, not a long time later in a courtroom.
>>
>> Is it disobedience to ask for time to call your attorney to ask for
>> his advice on how to proceed?
>
>Well, if the order was simply to "stop," you have already complied by
>asking for an attorney.
>
>The cop cannot LEGALLY compel you to SAY anything else, until you DO
>have a chance to talk to your attorney
What about the case where he orders me to _do_ something (e.g. open a
door for him)? Prior to that, I haven't done anything illegal, he has
no reason to believe I've done anything illegal, and he doesn't
believe I've done anything illegal.
>First Amendment law no longer allows regulation of obscenity simply by
>applying "contemporary community standards." In fact, just about the
>only thing that _is_ legally obscene and forbidden these days is
>sexually explicit kiddie porn, and that mostly because of the harm its
>creation does to kids,
This is a tangent, but no. Taking a picture of a 25-year-old and
Photoshopping it to look like someone half that age creates illegal
kiddie porn, even though the only person involved was 25 years old
(she used her own picture, which she took, and she photoshopped it
herself).
>> In the legal sense, I agree, at least for enforcement purposes. I
>> think there's more leeway when using "I did as the police officer
>> commanded" for defense.
>
>As long as what the officer requested is not _malum_in_se_ to do,
>that's true.
So a police officer's command can be an order even if he had no legal
right to enforce it.
>> >In that example, the Fire Marshall _is_ acting as a law enforcement
>> >officer (that is, he is "enforcing the law.")
>>
>> I'd say, rather, he's _stating_ the law. He isn't enforcing it;
>
>Yes he is. If you disobey, he will ultimately bring the power of the
>State to bear, to force you to comply.
He will bring the power of the state to bear exactly the same way I
would if you refuse to leave my home when I tell you to: he'll call
the police and have them enforce the law.
>> if you disobey, he'll call the police to enforce it.
>
>Right. In other words, he is implying, threatening, or applying the
>coercive power of the State,
But so am I when I tell you to stop kicking me or I'll call the police.
>> They aren't
>> generally issued by those who will enforce them.
>
>Which AGENT does what, is irrelevant. THE STATE is who issues them,
>and THE STATE is who enforces them. Different, specially trained
>agents may be involved in step A, and step B.
But not all agents of the state are law enforcement officers, even
those who can issue orders. An IRS auditor can order you to pay more
money in taxes, and bring the full power of the state down on you if
you don't, but that doesn't make him a law enforcement officer.
>> Based on what I know of behavior of Fire Marshalls, they're much more
>> likely to call the police and just have them close down the whatever;
>> a citation that someone has to answer next month doesn't do much to
>> preserve human life in an emergency.
>
>Right. They could do _both_. The Fire Marshal may write out an order
>that may be, frex, pinned on the door of a noncompliant establishment,
>ordering it to be shut down until compliance is proven and a
>subsequent order issues. If the proprietors disobey that order, THEN
>the fire marshal will call the police, who have guns, not just pens,
>to apply force with.
So the Fire Marshall is stating, or even making (if the law authorizes
him to, say, shut down events he thinks are unsafe) the legal
regulations; but it's the police who enforce them.
>> The law wouldn't consider [a legal request, i.e. something the cop
>> is permitted to ask but may not legally compel, to be] an unenforceable
>> order? If I obeyed it (because I wasn't sure), and it turned out that
>> what I did was illegal and the order wasn't enforceable, I'd certainly
>> argue that it was an order in my defense.
>
>If WHAT YOU DID WAS ILLEGAL, obeying an order would NOT be a defense
>to the UNDERLYING CHARGE (of doing whatever illegal thing it was you
>were requested to do). It would, however, get you off the hook if all
>you were charged with was "disobeying a lawful order." Fat chance.
Then whenever a police officer orders me to do something that might be
illegal (and not knowing the full law, that's almost anything other
than "stop" when I'm someplace I know I'm allowed to be; and even
then, there used to be laws against "loitering"), what am I to do? If
it turns out he's authorized to order that, it's a crime to disobey;
but it might also be a crime to obey.
>Look, this is really a lot simpler than you are making it, Seth.
>
>An ORDER, from the civilian's POV, regardless whether it is legal or
>not for the cop to ask, and regardless whether it is legal or not for
>the civilian to comply, is any request ACCOMPANIED BY IMPLIED,
>THREATENED OR ACTUAL FORCE to compel obedience. IF NO such force is
>even REMOTELY involved, then it's a mere "request."
That seems to contradict another statement you've made.
First police officer: "Please come over here for a minute, if you
don't mind."
Pedestrian: "Sorry, I'm late for work." and keeps walking.
Second police officer grabs pedestrian and arrests him for violating a
lawful order. Assuming that the first police officer had the right to
compel obedience to that order if he so desired, is the pedestrian
guilty?
>Exactly. As are most things involved in a cop's interaction with
>civilians. He has very wide discretion, and if he chooses to
>"order" (applying threat of force) rather than "request" something,
>then he must be obeyed,
You've stated earlier that the police officer would not be charged (or
convicted) for arresting the civilian for disobedience. That is not
the same as "must be obeyed" which I take to mean that the civilian
can be convicted of disobedience.
>> >> which makes a lot of (potential) police orders enforceable, and yet
>> >> I believe that a police officer giving such an order, phrased as a
>> >> request, would likely have no intention of enforcing that order,
>> >> despite having the right to do so.
>>
>> >So what? It _IS_ a lawful order, if he has the RIGHT to so enforce
>> >it.
Now you're back to the other side.
>> If you were on a jury, and all the testimony agreed a police officer
>> said to someone "Would you mind holding this door open for a few
>> minutes?" and the person said "Sorry, I have to get to work" and
>> walked away; that person was on trial for violating 171.40, would you
>> vote to convict? I wouldn't, because I don't see an _order_.
>
>Would _I_ vote to convict? I don't know, as I haven't heard all the
>evidence which would put flesh on that bare-bones scenario. What
>matters is whether the TOTAL circumstances give rise to a REASONABLE
>conclusion that the cop was giving an ORDER rather than a request,
To any English-speaking non-lawyer, it is clear that the police
officer made a request rather than giving an order (in the common
language definition of those terms).
> and that it was UNREASONABLE under the circumstances for the
>civilian to REFUSE to help out.
Why is "unreasonable" the issue? What makes his refusal reasonable?
Being late for work? Having a hot date and not wanting to get dirty?
(I haven't specified what the order is, maybe "help me change a
tire".)
> I can imagine additional facts that would make my
>verdict go both ways.
The key fact, to me, is that the statement was phrased as a request,
not an order.
(The statute says "call to the officer's aid" and "called upon", which
isn't the same as "ordered" but I think is still stronger than
"requested".)
>> >True. But it's his RIGHT to demand enforcement that makes his
>> >permitted request a "lawful order."
>>
>> No we're having language issues again. A request, by definition of
>> that term, need not be obeyed. (If the person declines to obey, and
>> the officer says "You have to", that makes it an order.)
>
>Okay. What if the cop just _arrests_ the person when he refuses, and
>doesn't clarify by saying "you have to" because the cop thought the
>circumstances made it obvious that he was giving a "order"?
Let us assume that the civilian was correct; the recording is played
for a jury, and they all agree that the language and tone of voice
were clearly on the "request" side. Then the person is not convicted,
therefore he was right.
>On the flip side, even if the cop DOES clearly have authority to
>compel compliance, but makes what appears to be a polite request and
>the civilian refuses, after which the cop does NOT arrest or grab the
>civilian, then it was clearly NOT intended as an order because he did
>NOT intend to enforce it. Why are we arguing about that?
Because a second cop, who hates that civilian, happens to observe this
and arrests him for violating a lawful order.
>> In the military it's the opposite: only a small subset do not need
>> to be obeyed.
>
>I assume you mean, only a small subset NEED be DIS-obeyed.
No, though those are approximately the same.
>There is an AFFIRMATIVE duty on the part of a soldier, as well as a
>civilian, to DISOBEY a patently unlawful order.
>
>There are NO orders that could conceivably be given to the soldier
>that do NOT legally require obedience, EXCEPT those that affirmatively
>require DIS-obedience.
"Vote Republican"
Giving that order is illegal. Neither obeying nor disobeying it is
required.
>> Under the assumption that what he's being ordered to do is illegal,
>> but not a heinous felony, is it a valid defense that he believed he
>> was required to obey the police orders?
>
>I think we discussed that, above. As long as the act being commanded
>is not _malum_in_se_, obedience to the cop's orders gives the perp a
>"safe harbor" if he is later charged with the underlying offense that
>the cop told him to commit.
Thank you; your earlier statements weren't clear to me.
>> >Agreed. What makes it an "order" rather than a "request" is the
>> >(implicit or explicit) threat or actuality of enforcement.
>> >What makes it a "lawful order" is the RIGHT of the LEO to threaten or
>> >apply the tools of enforcement to the situation.
>>
>> So it can be a lawful order without being an order? That really
>> doesn't seem right.
>
>I didn't say that. Any "request" that can be enforced by use of force
>_IS_ an "order." That's how I'm defining it.
But what makes it an order is the threat or actuality of enforcement.
Suppose there is neither threat nor enforcement, but the LEO had the
legal right to enforce it?
>> So there are "lawful orders" (civilian must obey), "unlawful orders"
>> (police officer must not ask),
>
>Yes.
>
>> and ??? orders (police officer may make
>> a request that sounds like an order, civilian is not required to
>> obey).
>
>You said it yourself - that is a "REQUEST that sounds like an order,"
>but it is a REQUEST, NOT an order.
But you defined above that if there's an explicit or implicit threat
of enforcement, then it's an order.
>Then, we see that either a lawful, or an unlawful, request may be
>accompanied by THREAT OF FORCE, which is what turns a request to do
>some thing, into a (lawful or unlawful) ORDER; if NOT, it is still a
>mere "request."
And back to the other definition.
>As to LAWFUL ORDERS, they MUST be obeyed, under pain of legal
>sanction. That's clear.
Agreed.
>As to UNLAWFUL ORDERS, there are 2 kinds, as you have noted. Those
>that the law PERMITS disobedience (even though the LEO may ILLEGALLY
>apply force to try to compel it), and those that REQUIRE disobedience
>because of SOME OTHER substantive law being broken (again, even though
>the LEO may illegally use force to attempt to compel obedience).
Agreed. Those are the three civilian categories I mentioned: MUST
OBEY, HAS CHOICE, and MUST DISOBEY. (OK, I'm changing the wording
again.)
>But, for that very last step, the analysis of whether the civilian, or
>the soldier for that matter, is REQUIRED to disobey, depends on some
>specific, universally recognized substantive law OUTSIDE of the
>framework of this analysis.
Yes: if the action is illegal, then the civilian is required to
disobey. I note that "illegal" means in this context; running a red
light is *not* illegal if a police officer tells you to (or if it's
the only way to get out of the way of a fire engine with siren).
> This is simply a recognition that the
>"real world" must be taken into account, but it is NOT part of the 4-
>way matrix of LEGAL vs. ILLEGAL, and FORCED vs. UNFORCED, which
>completely covers the universe of "requests" and "orders."
I'm assuming here that LEGAL means the police officer has the legal
ability to enforce compliance under the law. ILLEGAL means he does
not, but does not specify whether giving or following the order is
actually illegal (a crime).
LEGAL, FORCED is a lawful order. LEGAL, UNFORCED you sometimes called
a request, and sometimes a lawful order. ILLEGAL, FORCED you
sometimes called a request, and sometimes an illegal order. And
ILLEGAL, UNFORCED is a request.
>Sometimes those circumstances are not perfectly clear. The civilian,
>in most cases, _can_ safely ask, "DO I HAVE TO do that?" at which
>point the LEO will usually let him know what the LEO feels about it,
>one way or the other. Whether or not the LEO is legally correct, it
>is what HE thinks and is willing to enforce that makes his command
>into an "order," whether it is ultimately found to be a lawful or an
>illegal one.
>It's those circumstances, which include but are NOT LIMITED TO the
>actual words and tone of voice, that determine the outcome. All I
>said was, the tone of voice and grammatical form, standing alone, was
>NOT ENOUGH info on which to make that ruling.
OK. I've certainly used enough sarcasm to understand that.
>> All the statutes I've seen are phrased in terms of "the civilian must
>> obey the order". If there were a statute that says "A police officer
>> may order a civilian to . . ." but no statute requires the civilian to
>> obey, then I would argue that disobedience is not a crime.
>
>AGREED. But in that case, I wouldn't call the cop's urging the
>civilian to take some action, an "order."
What if the cop is _threatening_ the civilian with arrest should the
civilian disobey? Under the circumstances, the civilian would not be
convicted (since no law requires obedience).
>It's only an "order" if there is a right on the part of the LEO to
>compel obedience.
Now we're back to the other definition.
>Keep in mind that, for the most part (other than in directing
>traffic), the cops are there to ENFORCE the law as written, not to
>MAKE the law.
I agree, that's what they're supposed to do.
> So, there are VERY FEW things a LEO can legally _order_ a civilian
>to do, that is, can COMPEL him to do under threat of force.
Except in Minneapolis.
> Just about anything OUTSIDE of the investigatory or
>pursuit duties of an LEO would permit the LEO to REQUEST cooperation
>from civilians, but he normally CANNOT MANDATE compliance with any
>purported "orders" given outside of that framework.
In most places, he can only mandate compliance by the person being
pursued ("Stop!"), not other people ("Grab him!").
>> (I don't
>> know why anyone would pass such a statute, but there have been plenty
>> of errors made in the wording of laws.)
>
>I don't suppose it would do any HARM to pass a statute that contained
>no specific enforcement teeth, other than in the sense of fostering
>disrespect for and flouting of such a law. It does happen,
>occasionally.
Or in the sense of "We think this is a good idea, and the only tool we
have is passing laws, so . . ."
>> >> rather, I think, an "unenforceable order".
>>
>> >Which IMO is SYNONYMOUS with a "request."
>>
>> In terms of "required obedience" it is. In other terms (even legal
>> ones, like for use in defense) I don't think it is.
>
>Perhaps you are using the term "unenforceable order" to refer to one
>that is LEGALLY unenforceable, i.e. an UNLAWFUL order, one which the
>cop would get in trouble for giving.
Or at least, get in trouble for _enforcing_. I don't have any problem
with a cop yelling at a civilian to grab a fleeing felon, but if the
civilian instead jumps back when the felon making a threatening
gesture, I don't believe the cop should be allowed to ignore the felon
in order to make the easy arrest of the uncooperative civilian.
> What makes it an "order" is the
>ACTUALITY of the circumstances in which force is used or threatened,
>not the legality of such use or threat of force.
That's the other other definition this time.
> If the cop really has no enforcement intent, no one will
>be arrested and put on trial for disobeying something that even THE
>COP didn't think was an "order."
Unless another cop observed the situation and had it in for the
civilian.
>If you persist in disagreeing, give us an example of something you
>thing would be an "order" (for use by either the prosecution, OR the
>defense as you suggested) where there is NO actual OR PERCEIVED intent
>of the cop to use force to compel compliance. I don't think such an
>animal exists. Good luck unicorn hunting.
See my example immediately above, and based on your other description
of "lawful order" as one the cop has the legal right to enforce.
>> Suppose I included a threat to have your gmail account cancelled by a
>> friend at Google if you didn't obey.
>
>Then it might be an "order,"
. . .
>Of course, neither you, nor the protection-racket mafioso, nor a
>Gestapo agent telling Otto to drive the monoxide truck, have any
>legitimate AUTHORITY to ask me to do such a thing,
I have all the legitimate authority necessary to _ask_; you can see it
here: http://securityedition.com/
>> I agree, I have no right to compel you. But such a right isn't
>> necessary for something to be an order.
>
>Exactly. We're on the same page again.
Except in the case of a police officer, where you sometimes specified
that without the legal right, a forcible instruction given with
threats against noncompliance is still a "request".
>> >> But this is the Internet. If some arbitrary person were to do that,
>> >> would it be an order? Why should it matter if the person were a law
>> >> enforcement officer?
>> >It doesn't,
>> But from a law enforcement officer, you seemed to indicate earlier
>> that it would be an "unlawful order".
>Yes. It's _also_ an "unlawful order" if Seth, or Guido, or Gestapo
>Officer Shutlz, order me to do something he has no legal right to
>order me to do.
Defined how? I believe I have the legal right to order you to do
pretty much anything (provided that any penalty I offer is within my
rights to perform, such as threatening to tell people you get involved
in long arguments on Usenet).
>If an statute purported to compel o forbid some action but made no
>specific provision for enforcement, the law (meaning, the judges who
>have to interpret the statute as a matter of first impression) would
>either:
>
>(a) IMPLY the usual and reasonable CIVIL means of enforcing the
>stated public policy requirement, such as tort claims, or entry of
>regulatory injunctions or other court orders based on the statute and
>prohibiting a particular person from a particular instance of
>violation with real consequences for further disobeying such court
>order, or
>
>(b) find some OTHER criminal statute that permitted a criminal penalty
>to apply; or,
>
>(c) if neither of those, the statute would be a useless, vestigial
>appendage.
Sometimes it is. Consider the law in Kennesaw GA about gun
ownership. (It's required unless you're not allowed to, or really
don't want to; and if you just don't obey it, there's no penalty.)
>If either (a) or (b) is true, there IS some way to enforce an "order"
>regarding the thing mandated or prohibited by that statute. If not,
>then nobody else will ever likely be charged with violating it because
>it is now a dead letter with no way of enforcing it.
The original context was an order that a police officer is
specifically, by law, allowed to give, which a civilian is not
required to obey. I'm not aware of a general crime "violating a
lawful order of a police officer"; rather, there are specific laws
stating that people have to obey specific (types of) orders in
specific situations.
>> >> You can have orders that there's no requirement to obey.
>> >Then, it's not an "order" no matter what it sounds like.
>> What about the unlawful orders discussed earlier?
>You are confusing the LEGAL requirement to obey, as determined later
>in the sanctity of the courtroom per applible law, with the ACTUAL
>requirement to obey, enforced by the cop at the point of his gun. It
>does not help analysis if you get those two confused.
I don't consider bad effects to provide a _requirement_.
>> There are laws that there's no requirement to obey.
>
>Maybe. But laws completely without teeth foster disrespect for law.
Laws that are not enforced do so much more strongly.
>OR, the law may exist simply to give the COPS a "safe harbor" so
>_they_ will not be successfully sued when and if they stop some
>civilian under those circumstances who decides he didn't like the
>inconvenience, especially if the civilian puts up a fuss and gets
>actual force applied to his body in various unpleasant ways. That is
>yet another good reason why legislatures pass such laws without
>explicit criminal penalties TO THE CIVILIAN - their purpose is to
>legalize what THE COP did TO the civilian even if the cops have no
>interest in arresting civilians specifically for disobeying that law.
Of course, a new Supreme Court might decide that people have the
Constitutional right not to be attacked for no good reason.
>> Now we're back to the "order" vs. "request".
>Yes, because FORCE is what defines the difference between those two.
>> If I do something
>> harmful to me because I'm ordered to by a police officer (say, I don't
>> get a job because he kept me from the interview), and I find out later
>> that I wasn't required to obey him, am I SOL trying to recover damages
>> because it was "just a request that I voluntarily chose to obey"
>If you ASKED him, and said, "Do I have to? I'm on my way to an
>important appointment," and he said, "no, you're free to go," that's
>your answer, right?
He said "You may not cross the street until this entire motorcade has
passed, and I don't stop it and open a hole so that the hundreds of
pedestrians who are getting jammed up can cross." (Not in exactly
those words.)
>But if he FORCED you to stay and answer questions, it's an ORDER.
No questions, he didn't care about us, he was just keeping people away
from some bigwigs (and from reporters, which was stupid: if I wanted
to kill an NBC reporter, doing it in a crowd with other reporters
probably running cameras and lots of police around is a rather dumb
idea).
> If you reasonably THOUGHT he would use force to compel you to stay,
Yes, we did (if he could).
> and
>if he didn't look like the kind of guy who would take it kindly if you
>_did_ have the chutzpah inquire into his intentions or credentials,
He told us to stay. He was a uniformed NYC cop; what other
credentials would one care about?
>> or do I have a chance because it was "an unlawful order that
>> violated my rights"?
>You don't have MUCH of a chance in ANY case, thanks to "qualified
>immunity."
This was in 1985, when lawsuits against police could still be won.
> But the only time you have ANY chance is, if what the
>officer asked you to do had, under all the circumstances, at least the
>IMPLIED threat of force backing it up, and if it was CLEARLY ILLEGAL
>for the cop to detain you (and do whatever else he did to you) in
>those circumstances.
If a civilian kept me under the same circumstances, it would be
kidnapping or some similar charge. Does that make it clearly illegal?
Some years ago, the NYC police decided to blockade a park where drugs
were sold, and catch the drug dealers on their way out. One of the
people detained (delayed by over an hour) was a college professor on
his way to teach a class (the park being the shortest path between his
office and classroom). He sued and won.
>> But you've stated above that it might still be only a request if I'm
>> not required to obey.
>
>The "required to obey" is determined by all the circumstances, from
>the POV of the civilian who has to decide whether obedience is being
>required of him, WHETHER OR NOT that is the LEO's actual intention.
Remember this?
>> >So what? It _IS_ a lawful order, if he has the RIGHT to so enforce
>> >it.
>> No, I've said all along that some orders are unenforceable.
>
>LEGALLY unenforceable, yes. Those are the "illegal" ones.
>
>But not PRACTICALLY unenforceable.
This is misc.legal.moderated, and not misc.practical.moderated, right?
I'd rather discuss the legalities.
>> I still don't understand. The law says "Under these circumstances,
>> you must do this" and someone is on trial for violating that; the jury
>> instructions I've heard always say that the judge says what the law
>> is, and the jury only gets to decide if the facts show a violation of
>> the law as interpreted by the judge.
>
>Right. And, the jury must objectively consider ALL THE
>CIRCUMSTANCES. Which inevitably vary from case to case. So, all the
>judge can tell them is WHAT law to apply; he can't tell them HOW to
>apply it to those circumstances. That's the jury's job.
The judge can interpret the law as "If the defendant actually
committed act X within 500 feet of a public library, then he committed
crime Z." The only relevant circumstances are the act and the
distance to the nearest public library.
>> So even if I feel that the
>> violation was "reasonable", I've had to tell the judge that I'd vote
>> to convict if I believed the violation happened or I wouldn't be
>> allowed on the jury.
>
>No, if you believed the defendant's actions were reasonable, you would
>thus be finding that he LACKED THE EVIL INTENT ("mens rea") which it
>was a required element of the state's case to prove beyond a
>reasonable doubt,
Only if that's the way the judge specifies the law. Aren't there some
"strict construction" laws which specify certain acts to be crimes
without any sort of intent being at issue? (What is the intent in
involuntary manslaughter?)
>> >> >That doesn't mean it's REASONABLE to disobey, or LEGAL to disobey, in
>> >> >a particular circumstance.
>>
>> >> My point is that those are different things.
>>
>> >They are not. Reasonableness is the objective standard by which
>> >legality (of a refusal to obey) is measured.
>>
>> That does not accord with the instructions I've been given as a juror.
>
>Then you must have been a juror in a case where there was no intent
>element in dispute, and no reasonableness element at issue, where only
>the doing or not doing of the act itself was being contested.
I don't know if there was (I got kicked off the jury). We had to
agree _in advance_ that the judge's interpretation of the law would be
the only one considered, and not to engage in jury nullification (the
real place where "reasonableness" enters).
>Given the odds, I would say you probably did NOT land on one of
>_those_ juries, Seth, since, statistically, most of the criminal
>defendants who come to trial (in virtually every jurisdiction) _are_
>found guilty, and most of those ARE in fact clearly guilty but simply
>were hoping the state would screw up in its proof somehow or not be
>sufficient to convince the jury.
In the case I'm thinking of, the facts were not at issue, the entire
case hinged on intent.
>> If the order is lawful, but the LEO does not appear to stand ready to
>> enforce it, then what?
>
>Then it's a "request."
>
>> If it's demoted to a request, what happens
>> when I violate it and a _different_ LEO arrests me and charges me with
>> violating the law requiring obedience?
>
>Then you defend on the grounds you REASONABLY thought the original
>officer's statement to you was a "request" and not an "order." Then,
>the jury will evaluate the reasonableness of both yours, and the first
>officer's, actions, and decide who was right.
The first officer's actions were quite reasonable. It's the second
who wasn't.
>> >If he DOES objectively appear that way, he is giving an "order." If
>> >there is not even an implied threat of force, by any objective
>> >reasonable standard, then it is CLEARLY not even a "purported
>> >order" (which could, after analysis, be legal or not), since all
>> >parties to that conversation would agree it is a mere "request."
>>
>> Using standard English terminology, I'd consider it an order.
>
>Stop writing such silly things, Seth. That's an order.
>
>Is it?
Yes.
> What will I do to you if you don't?
Nothing. It's a toothless order.
>> >> where it is not objectively reasonable to disobey, but there's no
>> >> statute requiring obedience.
>>
>> >You'd better give us an example. I can't think of any.
>>
>> A police officer orders me not to walk past a building, but to walk on
>> the other side of the street, because stuff is falling off the
>> building's facade. No statute requires obedience, and it is not
>> reasonable to disobey.
>
>You already gave us that example, and we already discussed it much
>earlier in this thread. To summarize, it's stil not an "order"
>unless the cop intended to FORCE you not to walk there,
Yes, he did. He really didn't want to do the paperwork involved if I
got myself killed on his watch.
> and it's not a "lawful order" unless some statute gives the cop the
>_right_ to close the sidewalk to all traffic under those
>circumstances, that is, to legally FORBID people from entering due to
>the danger.
I'm not aware of such a statute.
> Otherwise, it's just your friendly local
>constabulary trying to save your skin from your own stupidity by
>warning you of a danger, a warning which you are free to accept or
>disregard at your own peril.
The peril being both from the natural danger, and the cop's
dissatisfaction with my choice, right?
>That's what you meant by a "purported order?" Okay. It's still
>just a "request" even though expressed in the form of a "purported
>order" and seen that way by "most people."
Who defines the language? If most people think it's an "order", then
how isn't it?
Is the meal you're trying to buy at a restaurant a request or an order?
>If no force was used, threatened, or implied, it's not an "order."
>Period. Call it what you want, but if I know I can walk away and
>ignore you with complete (actual, physical, as well as legal)
>impunity, you haven't given me any order.
>
>And, I think "order" is used that way in common parlance too. Give me
>a counterexample, if you think otherwise, so we can analyze it.
A restaurant is slammed (technical term for has way too much business
for the available staff). I walk in and _order_ a meal to go. They
tell me to get lost.
>> But the order was given,
>> and a civilian arrested for violating it. It was an order as you
>> defined (the arrest proves intent to enforce), and I would hope it's
>> not one that's illegal for a police officer to give (since it's
>> possible that obeying precisely such an order has saved my life), so
>> where does that leave it?
>
>If the cop had no authority to _require_ people to stay off of that
>dangerous sidewalk, he exceeded his authority.
Yes, he did. So what?
>> > That's where the crime/ accident scene tape, "POLICE LINE- DO NOT
>> >CROSS" comes in. Yes, you can be arrested and successfully
>> >prosecuted for crossing that line unless YOU are part of the EMT
>> >team, or the CSI team, or whatever gives you a justification or
>> >excuse for crossing the line and makes it REASONABLE for you to do
>> >that..
>>
>> Reaonable? Or as specified by a statute? I would think it reasonable
>> for a mother to cross it to pick up her crying baby, but the law says
>> she needs permission from the officer in charge of the scene.
>
>Ri-i-i-i-ght. How many juries do you think would convict her of that?
>How many DAs do you think would actually prosecute, if they value
>their jobs?
I don't think it's likely; the issue is what's legal. The judge (if
it came to that) would tell the jury that they had to follow the
judge's interpretation of the law. That interpretation would not
include "except for a mother to pick up her crying baby".
>> I didn't realize that "unlawful order" was also a term of art, and the
>> two terms didn't exclude the middle.
>
>???
>
>What was the context? You lost me there. AFAIK, the whole ballpark
>is covered.
} >> 2: unlawful order: permitted to obey or disobey;
} >
} >If the civilian is permitted to disobey, that makes this an illegal
} >REQUEST, not an order of ANY kind.
I meant permitted by law, not by the officer.
>> >True, but trivially so, if we are talking about minor variations
>> >arising from varying sources of legal tradition in the different
>> >jurisdictions. All jurisdictions have some form of law against
>> >murder, frex, but they do differ.
>>
>> Minneapolis has a law about all adults obeying police orders to help
>> enforce the law. Other cities (as noted by posters here) don't. I'd
>> consider that a major variation, at least in the context of obeying
>> police orders.
>
>Okay. How does that relate to whether the civilian would be wise to
>obey or not, if the cop has his hand on his gunstock with the holster
>unbuttoned when he makes his polite request?
Wisdom isn't the issue. The law is.
Seth
Mike Jacobs
> >independently illegal, especially if it was _malum_in_se_ (something
> >INHERENTLY evil) as opposed to _malum_prohibitum_ (something the law
> >arbitrarily prohibits
>
> That's the easy case. You didn't think I'd let you get away with it,
> did you?
The point is, "I was following orders of an LEO" _is_ a defense to a
charge of the underlying crime UNLESS the underlying crime is
_malum_in_se_ such that the perp knew, or should have known, that what
he was doing was unjustified and wrong. It's not just the easy case,
it's the _standard_ by which his conduct is being judged, as to the
INTENT element.
All of which is totally orthogonal to the previous topic we were
discussing, with the definition of "lawful order" as well as defining
what is an "order" vs. a "request."
> As I walk past, a police officer is holding a videocamera, apparently
> running. He tells me to open the door to the building he's standing
> next to. I do, and hold it while he goes in. He tells me to come in
> and open the next door (it's a very big old-fashioned videocamera). I
> do so.
Whether that's an order or a request, it is a reasonable thing for you
to do, assisting an LEO in the apparent pursuit of his duties.
> It later turns out that he had no right to enter the building.
Whether or not the cop knew that, YOU didn't, right? So you had no
intent to do anything wrong, no _mens_rea_.
> Opening a door and walking through it, without permission, is breaking
> and entering. Is the fact that a police officer told (I won't use the
> word "ordered" here though I would when describing what happened) me
> to do so a valid defense?
I would say probably yes. Depending, of course, on what ELSE you
knew that should have given you pause about the situation. I'm not
meaning to imply that EVERY time your hypo facts are shown, the perp
gets off; that would simply encourage "structuring" the facts in a
certain way to facilitate getting away with a crime where the perp DID
in fact have evil intent. But, if those are the ONLY facts in
evidence, the balance would likely tip in favor of the defendant as
"not (proven) guilty."
> >> Suppose the enforcement is within the police officer's rights, but the
> >> order is otherwise not enforceable? (E.g. "Cut your hair and wear
> >> clean clothes or I won't let my daughter date you.")
>
> >The cop can't arrest you for failing to do that.
>
> That's right. But that wasn't the issue; you wrote "unless
> _enforcement_ is threatened or implied," and "I won't let my daughter
> date you" is enforcement.
That's ridiculous, Seth. You're using an extreme, almost
metaphorical colloquial interpretation of "enforcement" rather than
the LEGAL meaning, which refers to THINGS A COP CAN DO BECAUSE HE'S A
COP, not including "things he can do because he's a Dad."
The "force" in "enforcement" refers to THE FORCE OF THE _STATE_ of
whom the LEO is a duly authorized agent trained and empowered to
enforce THE LAW. We're talking about LAW enforcement, in other
words, not "lawn" enforcement ("Trim that crabgrass, Son, or you can't
date Bessie Mae").
The law, remember, has a legal MONOPOLY on the use of "force" if by
"force" we mean, the ultimate right to apply PHYSICAL RESTRAINT or
VIOLENCE applied to a person to accomplish some goal. When Dad (cop
or otherwise) says "You can't date my daughter unless you do X,"
that's NOT using "force," it's just an attempt at PERSUASION.
The hippie boyfriend (let's call him "Stoner") could still refuse to
get a haircut if his tresses were more important to him that Susie's
caresses. And he would suffer no LEGAL consequences for doing so.
Also, Dad (cop or not) has NO legal right to actually USE force to
prevent Stoner from seeing Susie, although Dad DOES have a legal right
(as a home occupier) to forcefully prevent Seth from entering his home
without permission if Stoner tries to do so while Dad is there -
again, a right he holds as a civilian householder, whetner he's a cop
or not. But if Dad DID try to physically restrain Stoner from seeing
Susie OUTSIDE of Dad's home, Dad could be prosecuted for assault, or
some other crime - he has NO right to use force (that is, PHYSICAL
force) to control Stoner's actions.
I really hoped we were having a LEGAL discussion, Seth, not just
playing "grammar gotcha" and hunting for ways my words could be taken
to mean something silly by putting them in a non-legal context. If
you do that again further down this post or in future posts, I'll
simply ignore you. I don't like to play that game.
> >> > - the law simply does not consider such a communication, no matter
> >> >how imperative-sounding, to be an "order" of any kind,
>
> So, which is it? If a police officer tells me to do something, and I
> reasonably feel that I will be arrested (or worse) if I refuse, but
> what he told me to do is something he isn't allowed to tell me to do,
> was it an order?
Yes. It may in that case be an illegal order, but what makes it an
"order" is the civilian's perception that the LEO is not leaving him
free to disobey. This is really not rocket science, Seth. Are you
still confusing the LEGAL right to use force with the ACTUAL threat of
force? The latter is what makes it an ORDER. The former is what
makes it a LAWFUL order.
> >> I'm looking at this from the viewpoint of the civilian, and I didn't
> >> see any difference between those two cases.
>
> >The difference is simple, from the civilian's POV - did the cop, or
> >did he not, imply or threaten or actually use FORCE to compel
> >obedience to what he asked you to do? If he did, it's an "order,"
> >whether legal or illegal. If he did not, it's a mere request, and
> >the civilian is free to act accordingly, or not, as he chooses, with
> >no LEGAL consequences AND no cop-will-beat-you-up-and-arrest-you
> >physical consequences regardless of which choice he makes..
>
> You've also written below that it's a lawful order if the police
> officer has the right to enforce it by law, even if it's phrased as a
> request.
Yes. So long as THE INTENT TO ENFORCE (that is, the intent of the
cop to USE force to compel obedience) is implied, threatened, or
actually used, as shown by all the circumstances. All that the
above discussion meant was, the MERE GRAMMATICAL FORM of the cop's
statement is NOT ENOUGH (absent consideration of all the surrounding
circumstances) to tell whether it IS, or IS NOT, an "order."
<Seth thinks there should be a box for orders the LEO "must give.">
> >Interesting concept. Care to flesh it out? Personally, I can't think
> >of any "must give" example
>
> Fire Marshall calls the police, and tells the responding officer
> "Occupancy of that room is limited to 200 and I counted 250 people in
> it. Close down that event." It's not inconceivable to me that local
> laws require the police officer to order the people present to leave.
If the cop refused, would he be subject to a writ of mandamus for that
refusal? Is he fulfilling a merely ministerial function? Then yes,
that would be a "must give" order. Didn't I state that exception
already, in the part you snipped out above at the end of the sentence
you're commenting on (your elision also took away the period so I knew
something was missing)?
But I don't think a cop would be legally mandated to give such an
order, even upon the facts you stated. He still has discretion
whether to enforce the law or not in that particular instance, UNLESS
the law in that jurisdiction makes the Fire Marshal's statement
_to_the_cop_ a lawful _order_, that is, something the cop _must_
obey. In that case, the cop "must order" the civilians to do
something only because HIS SUPERIOR OFFICER has ordered him to give
that order. That has more to do with the relations between various
LEOs of various ranks, and really isn't part of the rules applicable
to understanding the choices an LEO in the field has discretion to
make in his law enforcement activities when dealing with civilians.
> >Finding something to fit in the "MUST NOT COMPLY" box is easy.
>
> "MUST NOT COMPLY" is a column with three boxes, depending on whether
> the officer MUST GIVE, MAY GIVE, or MUST NOT-GIVE the order.
Okay. That is fine, if you are including the Nazi-war-crimes type
"order" as a "must not comply" example in the matrix. The reason I
didn't include it in mine was because we were previously looking ONLY
at deciding whether a statement by an LEO was an "order" or not, from
the POV of the civilian he is talking to, and then deciding whether
such an order was "lawful" or not, again from the POV of the
civilian. If there was an "order" given that the civilian LEGALLY
"must not" obey, and that the LEO is LEGALLY forbidden to give, that
does not fit in the 4-box matrix I designed because the illegality of
that war-crimes order depends on SUBSTANTIVE LAW totally outside of
that framework.
And I think that's partly why you continue to be so confused, Seth.
You are conflating "must obey" in the PHYSICAL sense (meaning, "If I
don't do what this cop is telling me to do, will he crack my head open
with his nightstick?") with "must obey" in the LEGAL sense ("Am I
required BY LAW to obey this?"). That's why you think there should
be a third row of boxes.
In my matrix, the PHYSICAL sense is dealt with on the "civilian" axis
- does this cop, or does he not, intend to FORCE me to do what he's
asking? While the LEGAL sense is dealt with on the "LEO" axis of
the matrix - does he, or does he not, have the LEGAL RIGHT to use
force to compel obedience? That yields only FOUR possible outcomes,
as far as the nature of that interaction is concerned.
The example you are thinking of, which is a SUBSET of the "cop DOES
intend to use force" but "cop is NOT legally allowed to use force"
box, which I have called an "illegal order" in my matrix. As far as
THE LAW is concerned in that box, the civilian is free to DISOBEY such
an illegal order, but MAY STILL SUFFER PHYSICAL CONSEQUENCES of the
application of actual, physical "force" by the LEO if he does
refuse. Don't mix up legal and physical.
Now, the reason I consider your example a subset of that "illegal
order" box is, the cop is ORDERING the civilian to do something
without having the LEGAL authority to give such an order, but (at
least as far as the interaction with the cop is concerned) the
civilian is not PHYSICALLY free to disobey - the cop will arrest him,
beat him up, or use some other form of physical force if he refuses.
Yet, THE LAW says (again, don't mix up physical force with legal
force) in YOUR example that what the cop is asking the civilian to do
is WRONG IN ITSELF, and is something that the civilian would get in
trouble for doing even if no LEO had ordered him to do it. In that
subset case, the civilian (legally) "must disobey" the cop for reasons
TOTALLY UNRELATED to the nature of the interaction between LEO and
civilian. Committing genocide is WRONG, period, whether an LEO
orders you to do it, or not. Thus, it is UNNECESSARY to include such
a box in a matrix describing the nature of the interaction between LEO
and civilian.
Now, as to the OTHER parts of that "illegal order" box which do NOT
independently violate some other substantive law - let's say, the cop-
Dad "orders" Stoner to cut his hair and threatens to beat the crap out
of him in uniform if he doesn't - Stoner _is_ free to decide (as far
as the rest of the law is concerned) whether to get his hair cut or
not. IOW, it would not be illegal FOR STONER to make that
decision. But in BOTH cases - the Gestapo officer ordering Otto to
drive the death van, and Dad ordering Stoner to cut his hair under
color of law - the LEO is giving an "illegal order," although what
makes it an 'order" is that the civilian perceives he is NOT free to
disobey, without risk of suffering PHYSICAL consequences himself.
The dilemma you pose is UNRELATED to the question of whether the
civilian can later be charged with "failure to obey a lawful order of
an LEO" which is what this discussion had been about, until you raised
the "must not obey" concept. When the law finally catches up to him,
the civilian who REFUSES to obey an illegal order to do something
_malum_in_se_, such as genocide, is NOT going to be charged with
"failure to obey a lawful order" - assuming he is still alive, and
hasn't been shot or otherwise killed by the rogue officer. OTOH, the
civilian who DOES obey such an order is going to be charged with
COMMITTING THE UNDERLYING CRIME, and will not be able to rely on the
defense "I was just obeying orders."
> What if there was no previous crime,
I didn't say PREVIOUS crime, I said UNDERLYING crime. That doesn't
imply it was earlier in time. It is "underlying" in the sense that
some unrelated substantive law is being violated by the civilian in
the course of obeying the cop.
> but following the orders of the cop was itself a crime?
That's exactly what I meant by "the underlying crime." It underlies
the obedience in a LEGAL sense, contemporaneously, not in the sense
that it occurred previously in time.
> (As in my example above, not obviously a crime.)
If you're referring to the hold-the-door-open example, the perp
probably WOULD be able to successfully defend against that charge if
he could get the jury to believe that he did NOT have any reason to
doubt the cop had authority to enter the building and to ask for
assistance in the course of his LEO duties from the civilian, which
would defeat the "bad intent" element of the underlying crime of
breaking and entering. There ARE in fact, commonly, circumstances
where an LEO _is_ legally allowed to enter a building, so what the LEO
asked the civilian to do was not CLEARLY wrong.
If, instead, the cop had asked him to "shoot these people for me,"
that would NOT be the kind of assistance anyone would reasonably think
the LEO could legally ask a civilian to do, so a civilian who complied
with THAT order (or request) would have NO justification-or-excuse
defense to the underlying crime of murder.
> >> > And, even if the LEO turns out later to be WRONG, the
> >> >civilian can STILL be liable for refusing to obey his "lawful order."
>
> >> A police officer gives me an order. I don't obey. It turns out that
> >> no law requires me to obey it. Yet somehow I'm liable for violating a
> >> law that doesn't exist?
>
> >No, again I mis-spoke, factually but not legally. The situation I
> >was talking about was where the cop was FACTUALLY mistaken, but had
> >the LEGAL right to ask AND to compel obedience (which is what makes
> >his request into an "order," I think we agree on that).
>
> I don't agree with that, and you didn't either, earlier. You said
> that if the officer did not imply, threaten, or use force, then it's a
> request, even if he had the legal right to compel obedience.
Okay, let's get back to situations where the cop was LEGALLY wrong, as
well. Let's take your hold-the-door example. Let's further assume
an appellate court finds, long after the fact, that the cop violated
someone's constitutional rights by entering the building when and how
he did, but that the cop DIDN'T KNOW he was doing that at the time of
the act - what he did was not in violation of "clearly established"
constitutional precedent at the time. Thus, he has "qualified
immunity" to a 1983 suit.
Yet, in the course of committing that act, the LEO _ordered_ Seth to
hold the door open for him. Was that a LAWFUL order, or an ILLEGAL
order? As far as Seth is concerned, the LEO was giving an ORDER,
which Seth was not free to disobey without enforcement consequences
(and by now, I assume you know what I mean by "enforcement"), and it
was an order that did not APPEAR on its face to be illegal, that is,
the LEO was not ordering Seth to do something that the LEO _clearly_
lacked authority to do; therefore, I believe Seth _could_ be arrested,
charged, and tried for "failing to obey a lawful order of an LEO" if
he refused to obey.
Would he be able to defend his refusal on grounds the order itself was
illegal? Maybe, assuming HIS court comes to the same conclusion the
appellate court later did, in the cop's case raising qualified
immunity. But also maybe NOT, since, if the cop's order was not
CLEARLY illegal, that means your average charging desk sergeant, your
average DA, and your average trial judge and jury would not find it to
have been illegal EITHER.
So, the upshot is, if Seth DOES obey, the cop's "qualified immunity"
against tort suit or criminal prosecution would likely apply to him as
well (for offering his assistance to the cop in the course of his
enforcement duties under color of law); but if Seth REFUSES to obey,
he MAY be charged with that refusal, and MAY be successfully
convicted, UNLESS Seth wants to go all the way to the Supreme Court to
test his theory that the cop's actions were in fact a violation of the
building owner's constitutional rights such that Seth had a right to
_dis_-obey the cop's order.
It's your choice.
> What about the case where he orders me to _do_ something (e.g. open a
> door for him)? Prior to that, I haven't done anything illegal, he has
> no reason to believe I've done anything illegal, and he doesn't
> believe I've done anything illegal.
If you're talking about "underlying crime" again, we've shown above
that this is not a previous-in-time concept, but rather refers to some
OTHER, UNRELATED law that independently makes the act illegal.
If it is clear to Seth at the time the cop orders him to hold the door
open that what the cop is doing is illegal (say, he's running in and
out of a video equipment store, carrying first one video camera with a
price tag still on it, then another, so that it's apparent the cop is
in fact looting the store rather than enforcing the law), then Seth
may legally refuse to obey the order. If what the cop is doing is
NOT CLEARLY ILLEGAL, then Seth MUST (legally _and_ practically) obey
the order, or risk being physically coerced into doing so OR being
arrested and charged with failure to obey.
> So a police officer's command can be an order even if he had no legal
> right to enforce it.
YES. What makes it an "order" (as opposed to a mere "request") is
that he DID intend to use force to enforce it - regardless of whether
he had any right to do so. That is a totally separate inquiry, which
comes first, before we move on to decide whether such an "order" was a
LAWFUL order. That's why we gave the example of Guido the Protection
Racketeer who _does_ in fact give Mom and Pop an "order" by making an
apparent polite "request" while having his "enforcers" ready to
(illegally) wreak violence on Mom and Pop's store if they refuse.
<Is Fire Marshal merely "stating" the law, or "enforcing" the law?>
> He will bring the power of the state to bear exactly the same way I
> would if you refuse to leave my home when I tell you to: he'll call
> the police and have them enforce the law.
Can the civilian who disobeys the Fire Marshal be charged with
"failure to obey a lawful order of an LEO?" I don't know, it depends
on the law of the particular jurisdiction. But if so, then yes, the
FM is "enforcing" the law, not merely "stating" it. Otherwise, your
distinction is a quibble that has no practical consequences one way or
the other.
> >> if you disobey, he'll call the police to enforce it.
>
> >Right. In other words, he is implying, threatening, or applying the
> >coercive power of the State,
>
> But so am I when I tell you to stop kicking me or I'll call the police.
Except that I cannot be charged with "failure to obey a lawful order
of an LEO" for refusing to stop kicking you. Instead, I'll be
charged with the underlying crime, assault, which I committed by
kicking you.
> >> They aren't
> >> generally issued by those who will enforce them.
>
> >Which AGENT does what, is irrelevant. THE STATE is who issues them,
> >and THE STATE is who enforces them. Different, specially trained
> >agents may be involved in step A, and step B.
>
> But not all agents of the state are law enforcement officers, even
> those who can issue orders.
Okay, agreed. And only those who ARE LEOs will give rise to a
prosecution for "failing to obey a lawful order of an LEO" if the
civilian refuses to comply with his order.
> An IRS auditor can order you to pay more
> money in taxes, and bring the full power of the state down on you if
> you don't, but that doesn't make him a law enforcement officer.
Okay. I see what you are saying. In that case, the only "offense"
at issue is the UNDERLYING offense, whether that be a tax discrepancy
(found by the IRS) or over-occupancy of a building (when pointed ot by
the FM) or whatever.
> >Right. They could do _both_. The Fire Marshal may write out an order
> >that may be, frex, pinned on the door of a noncompliant establishment,
> >ordering it to be shut down until compliance is proven and a
> >subsequent order issues. If the proprietors disobey that order, THEN
> >the fire marshal will call the police, who have guns, not just pens,
> >to apply force with.
>
> So the Fire Marshall is stating, or even making (if the law authorizes
> him to, say, shut down events he thinks are unsafe) the legal
> regulations; but it's the police who enforce them.
In the scene I just saw in "Whip It" (recommended movie, BTW), the
fire marshal apparently brought the police WITH HIM when he shut down
the warehouse where the roller-derby events were being held, on
grounds of over-occupancy. The FM was the one with the bullhorn who
GAVE the order; the cops just stood around and provided the muscle.
> >If WHAT YOU DID WAS ILLEGAL, obeying an order would NOT be a defense
> >to the UNDERLYING CHARGE (of doing whatever illegal thing it was you
> >were requested to do). It would, however, get you off the hook if all
> >you were charged with was "disobeying a lawful order." Fat chance.
>
> Then whenever a police officer orders me to do something that might be
> illegal (and not knowing the full law, that's almost anything other
> than "stop" when I'm someplace I know I'm allowed to be; and even
> then, there used to be laws against "loitering"), what am I to do? If
> it turns out he's authorized to order that, it's a crime to disobey;
> but it might also be a crime to obey.
It is only a crime to obey if YOU know, or SHOULD know, that what he
is asking you to do is illegal. If it is not "CLEARLY illegal," then
your OBEDIENCE would be cloaked in the same "qualified immunity" as
the LEO's actions are, because you are acting under color of law
without _clearly_ knowing that what you are doing is wrong.
Your DIS-obedience, OTOH, could get you in trouble even if the LEO's
order is (much later) determined to have been illegal, since, in the
meantime, yes you COULD be charged with, and convicted of, "failure to
obey a lawful order of an LEO."
No one said the choice would be easy. But the law is structured so
that the SAFE choice is usually to OBEY the cop, unless what the cop
is asking you to do is PATENTLY illegal for some independent reason,
such as being asked to commit genocide or murder, OR to hold the door
open while the cop is doing what clearly appears to be LOOTING a store
instead of protecting it.
> >Look, this is really a lot simpler than you are making it, Seth.
>
> >An ORDER, from the civilian's POV, regardless whether it is legal or
> >not for the cop to ask, and regardless whether it is legal or not for
> >the civilian to comply, is any request ACCOMPANIED BY IMPLIED,
> >THREATENED OR ACTUAL FORCE to compel obedience. IF NO such force is
> >even REMOTELY involved, then it's a mere "request."
>
> That seems to contradict another statement you've made.
Which one? We have gone back and forth so many times I'm losing
track, but I have tried to be consistent.
> First police officer: "Please come over here for a minute, if you
> don't mind."
>
> Pedestrian: "Sorry, I'm late for work." and keeps walking.
>
> Second police officer grabs pedestrian and arrests him for violating a
> lawful order. Assuming that the first police officer had the right to
> compel obedience to that order if he so desired, is the pedestrian
> guilty?
That would depend on whether the jury believes his defense that he did
not perceive the first cop's statement as an "order."
More likely, such a case would never even be brought. Once the
second cop makes clear that the interaction was intended to be an
order, they would probably just take it from there. If the civilian
continued to disobey at THAT point, then yes, they may charge him with
FTOLOLEO.
> >Exactly. As are most things involved in a cop's interaction with
> >civilians. He has very wide discretion, and if he chooses to
> >"order" (applying threat of force) rather than "request" something,
> >then he must be obeyed,
>
> You've stated earlier that the police officer would not be charged (or
> convicted) for arresting the civilian for disobedience. That is not
> the same as "must be obeyed" which I take to mean that the civilian
> can be convicted of disobedience.
I am using "must be obeyed" in the PHYSICAL sense of FORCE, as in, "do
what I tell you to do or I may break your arm."
You are still mixing up PHYSICAL, and LEGAL, force.
> >> >So what? It _IS_ a lawful order, if he has the RIGHT to so enforce
> >> >it.
>
> Now you're back to the other side.
??? You skipped several layers of back-and-forth there, Seth.
That statement you quote was 4 conversations ago, and you snipped out
what followed, so I don't know what "other side" you say I'm back to.
Saying it is a "lawful order" requires, first, the determination that
it IS indeed an "order," which is based only on whether PHYSICAL FORCE
IS THREATENED OR APPLIED. Then, the question of whether such an
"order" is a "lawful" one, depends on whether the cop had THE LEGAL
RIGHT to enforce it. You are still mixing apples and oranges,
confusing PHYSICAL "must obey" with LEGAL "must obey."
> The key fact, to me, is that the statement was phrased as a request,
> not an order.
No, at least not as a GENERAL matter. There is no ONE key fact;
instead, we must look to ALL the circumstances to determine whether a
statement should reasonably be considered an "order." But if, under
your example, that is the ONLY key fact that is of any consequence,
then yes, you could reasonably conclude it was not intended as an
"order."
> (The statute says "call to the officer's aid" and "called upon", which
> isn't the same as "ordered" but I think is still stronger than
> "requested".)
If the officer says "help me" is that a request or an order? Does it
make any difference if he says "please?" Or is this a tempest in a
teapot? What matters, as I have said all along, is the TOTAL
CIRCUMSTANCES, NOT just the grammar.
> >> No we're having language issues again. A request, by definition of
> >> that term, need not be obeyed. (If the person declines to obey, and
> >> the officer says "You have to", that makes it an order.)
>
> >Okay. What if the cop just _arrests_ the person when he refuses, and
> >doesn't clarify by saying "you have to" because the cop thought the
> >circumstances made it obvious that he was giving a "order"?
> Let us assume that the civilian was correct; the recording is played
> for a jury, and they all agree that the language and tone of voice
> were clearly on the "request" side. Then the person is not convicted,
> therefore he was right.
Okay.
> >On the flip side, even if the cop DOES clearly have authority to
> >compel compliance, but makes what appears to be a polite request and
> >the civilian refuses, after which the cop does NOT arrest or grab the
> >civilian, then it was clearly NOT intended as an order because he did
> >NOT intend to enforce it. Why are we arguing about that?
>
> Because a second cop, who hates that civilian, happens to observe this
> and arrests him for violating a lawful order.
Far-fetched, but we dealt with that last time and I won't re-hash it
here.
> >> In the military it's the opposite: only a small subset do not need
> >> to be obeyed.
>
> >I assume you mean, only a small subset NEED be DIS-obeyed.
>
> No, though those are approximately the same.
Not at all, if we are talking about civilians and LEOs. The reason
they _are_ nearly the same for the military is due to the expansive
scope of what a superior officer is ALLOWED to ask a subordinate to
do, as we previously discussed.
Let's analyze your statement, assuming you meant it the way you said
it: "only a small subset of [military orders] do not need to be
obeyed." IMO, that is an oxymoron. If it merely "does not need to
be obeyed," yet does not fall within MY category of "orders that
legally MUST be DIS-obeyed," then it is simply NOT AN ORDER. If
there is no intent on the part of the superior officer that he MUST be
obeyed, then it is merely conversation, or a request, not an order.
That analysis is exactly the SAME one I apply to the civilian-LEO
interactions.
> >There is an AFFIRMATIVE duty on the part of a soldier, as well as a
> >civilian, to DISOBEY a patently unlawful order.
>
> >There are NO orders that could conceivably be given to the soldier
> >that do NOT legally require obedience, EXCEPT those that affirmatively
> >require DIS-obedience.
>
> "Vote Republican"
Okay. You got me, I hadn't thought of that example. The soldier
does have a choice, but the superior has no right to order him to do
that, one way or the other. But it STILL fits the framework we have
created, which applies to BOTH the military and the civilian-LEO
cases. It's just that the RANGE of permitted orders is far broader
(although, as you point out, not COMPLETE but-for orders to do
something illegal) in the military than it is in the civilian-LEO
situation.
> Giving that order is illegal. Neither obeying nor disobeying it is
> required.
Right, in your "vote Republican" example.
Can you think of many others? I can't, outside the framework of
ordering a soldier to give up one of the constitutional rights he
retains despite his military affiliation.
> >I think we discussed that, above. As long as the act being commanded
> >is not _malum_in_se_, obedience to the cop's orders gives the perp a
> >"safe harbor" if he is later charged with the underlying offense that
> >the cop told him to commit.
>
> Thank you; your earlier statements weren't clear to me.
<snip to new topic>
> >> So it can be a lawful order without being an order? That really
> >> doesn't seem right.
>
> >I didn't say that. Any "request" that can be enforced by use of force
> >_IS_ an "order." That's how I'm defining it.
>
> But what makes it an order is the threat or actuality of enforcement.
> Suppose there is neither threat nor enforcement, but the LEO had the
> legal right to enforce it?
Then it's just a "request." The civilian, if in doubt, can ask, "Is
that an order?" or " Do I have to?" and depending on how the cop
responds, the intent will be clear. Remember, psycholinguistically
we were talking about the entire conversation and how the message is
communicated by the sender, and how it is received by the recipient,
all in hopes that the INTENDED content is pretty close to what is
actually PERCEIVED at the other end. There is, inevitably, some
noise in the transmission, always.
> >> So there are "lawful orders" (civilian must obey), "unlawful orders"
> >> (police officer must not ask),
>
> >Yes.
>
> >> and ??? orders (police officer may make
> >> a request that sounds like an order, civilian is not required to
> >> obey).
>
> >You said it yourself - that is a "REQUEST that sounds like an order,"
> >but it is a REQUEST, NOT an order.
>
> But you defined above that if there's an explicit or implicit threat
> of enforcement, then it's an order.
Yes. You are now talking only about noise in the transmission, which
could be clarified by the civilian asking the cop whether or not he
INTENDS to use force to compel obedience. If not, OR if it does not
reasonably appear from the circumstances that force is implied, then
it's NOT an order.
> >Then, we see that either a lawful, or an unlawful, request may be
> >accompanied by THREAT OF FORCE, which is what turns a request to do
> >some thing, into a (lawful or unlawful) ORDER; if NOT, it is still a
> >mere "request."
>
> And back to the other definition.
There is no "other" definition. The only confusion I see is YOURS,
between the LEGAL right to use force, and the ACTUAL use or threat of
physical force. THE LATTER is what makes it an "order;" the FORMER
is what makes an order a "lawful order."
> >As to LAWFUL ORDERS, they MUST be obeyed, under pain of legal
> >sanction. That's clear.
>
> Agreed.
>
> >As to UNLAWFUL ORDERS, there are 2 kinds, as you have noted. Those
> >that the law PERMITS disobedience (even though the LEO may ILLEGALLY
> >apply force to try to compel it), and those that REQUIRE disobedience
> >because of SOME OTHER substantive law being broken (again, even though
> >the LEO may illegally use force to attempt to compel obedience).
>
> Agreed. Those are the three civilian categories I mentioned: MUST
> OBEY, HAS CHOICE, and MUST DISOBEY. (OK, I'm changing the wording
> again.)
I'm calling BOTH of those "illegal orders" or "unlawful orders" (I
think I've used both terms, although neither is really a term of
art). What differentiates them is SOME OTHER, unrelated substantive
law, NOT the nature of the interaction itself. Which is why I
decline to add yet a third box to my analysis OF THE INTERACTION
itself. These are BINARY choices, with only TWO actors, so there are
only 2x2=4 boxes in the matrix.
Axis one, from civilian's POV - is PHYSICAL FORCE being implied,
threatened, or used, or NOT?
Axis two, from LEO's POV - does THE LAW authorize me to demand this,
or not?
Do the math.
Totally ORTHOGONAL axis (third dimension) - does SOME OTHER law make
the entire subject matter of this interaction CLEARLY ILLEGAL as
something bad in itself, malum in se, the kind of stuff even a
kindergartner knows is wrong? If so, then DON'T DO IT. But that
has nothing to do with THE NATURE OF THE INTERACTION between civilian
and LEO.
> >But, for that very last step, the analysis of whether the civilian, or
> >the soldier for that matter, is REQUIRED to disobey, depends on some
> >specific, universally recognized substantive law OUTSIDE of the
> >framework of this analysis.
>
> Yes: if the action is illegal, then the civilian is required to
> disobey. I note that "illegal" means in this context; running a red
> light is *not* illegal if a police officer tells you to (or if it's
> the only way to get out of the way of a fire engine with siren).
Agreed.
> > This is simply a recognition that the
> >"real world" must be taken into account, but it is NOT part of the 4-
> >way matrix of LEGAL vs. ILLEGAL, and FORCED vs. UNFORCED, which
> >completely covers the universe of "requests" and "orders."
>
> I'm assuming here that LEGAL means the police officer has the legal
> ability to enforce compliance under the law. ILLEGAL means he does
> not, but does not specify whether giving or following the order is
> actually illegal (a crime).
Yes. You've got it.
> LEGAL, FORCED is a lawful order. LEGAL, UNFORCED you sometimes called
> a request, and sometimes a lawful order.
No, I'm pretty sure I didn't. If it's truly unforced, then it's just
a "request." Can you cite an example where I said otherwise?
> ILLEGAL, FORCED you
> sometimes called a request,
No, never, AFAIR. Can you cite an example when I supposedly did?
"Forced" is what makes it an ORDER.
> and sometimes an illegal order.
Yes.
> And
> ILLEGAL, UNFORCED is a request.
"Unforced" is what makes it a "request," whether it is legal or not.
> >Sometimes those circumstances are not perfectly clear. The civilian,
> >in most cases, _can_ safely ask, "DO I HAVE TO do that?" at which
> >point the LEO will usually let him know what the LEO feels about it,
> >one way or the other. Whether or not the LEO is legally correct, it
> >is what HE thinks and is willing to enforce that makes his command
> >into an "order," whether it is ultimately found to be a lawful or an
> >illegal one.
> >It's those circumstances, which include but are NOT LIMITED TO the
> >actual words and tone of voice, that determine the outcome. All I
> >said was, the tone of voice and grammatical form, standing alone, was
> >NOT ENOUGH info on which to make that ruling.
>
> OK. I've certainly used enough sarcasm to understand that.
Glad we're making progress.
> >AGREED. But in that case, I wouldn't call the cop's urging the
> >civilian to take some action, an "order."
>
> What if the cop is _threatening_ the civilian with arrest should the
> civilian disobey? Under the circumstances, the civilian would not be
> convicted (since no law requires obedience).
Threatening arrest turns the interaction into an "illegal order."
One which the civilian is LEGALLY free to disobey, but does so only in
fear that he might get his head cracked open for such refusal. When
it turns out the cop was only bluffing and does NOT crack his head
open with the nightstick, that does not change the nature of the
original interaction from having been an "illegal order." The cop
was acting under color of law when he made the threat.
> >It's only an "order" if there is a right on the part of the LEO to
> >compel obedience.
>
> Now we're back to the other definition.
You snipped all the context again. There is no "other"
definition.
FORCE is what makes it an "order" and the RIGHT is what makes it
"lawful." I think you snipped half of that context in citing just
the sentence above, although I'm not going to expend the effort to go
back and find it and re-insert it.
> >Keep in mind that, for the most part (other than in directing
> >traffic), the cops are there to ENFORCE the law as written, not to
> >MAKE the law.
>
> I agree, that's what they're supposed to do.
>
> > So, there are VERY FEW things a LEO can legally _order_ a civilian
> >to do, that is, can COMPEL him to do under threat of force.
>
> Except in Minneapolis.
<g> I take it that was sarcasm. Even in Minneapolis, the range is
much narrower than in the military.
> In most places, he can only mandate compliance by the person being
> pursued ("Stop!"), not other people ("Grab him!").
Right. Except, apparently, in Minneapolis.
> >Perhaps you are using the term "unenforceable order" to refer to one
> >that is LEGALLY unenforceable, i.e. an UNLAWFUL order, one which the
> >cop would get in trouble for giving.
>
> Or at least, get in trouble for _enforcing_.
If he has no intent to enforce it, then it is a mere "request," e.g.
as you note below, a request for help in grabbing a fleeing suspect.
> I don't have any problem
> with a cop yelling at a civilian to grab a fleeing felon, but if the
> civilian instead jumps back when the felon making a threatening
> gesture, I don't believe the cop should be allowed to ignore the felon
> in order to make the easy arrest of the uncooperative civilian.
Sure.
> > What makes it an "order" is the
> >ACTUALITY of the circumstances in which force is used or threatened,
> >not the legality of such use or threat of force.
>
> That's the other other definition this time.
There is no "other" definition I've been using. The confusion is
yours, and results from your mixing up "must obey" in the LEGAL sense
with "must obey" in the "I'll get my head cracked open by this cop if
I don't" sense. I'm really not going to keep going around and around
on this any longer, since it does not add anything new.
> >If you persist in disagreeing, give us an example of something you
> >thing would be an "order" (for use by either the prosecution, OR the
> >defense as you suggested) where there is NO actual OR PERCEIVED intent
> >of the cop to use force to compel compliance. I don't think such an
> >animal exists. Good luck unicorn hunting.
>
> See my example immediately above, and based on your other description
> of "lawful order" as one the cop has the legal right to enforce.
Which example? Yelling at a civilian for help grabbing a fleeing
felon? That is a REQUEST, not an order, except in Minneapolis.
> >> I agree, I have no right to compel you. But such a right isn't
> >> necessary for something to be an order.
>
> >Exactly. We're on the same page again.
>
> Except in the case of a police officer, where you sometimes specified
> that without the legal right, a forcible instruction given with
> threats against noncompliance is still a "request".
No, I don't think I ever said that. The forcible threats against
noncompliance _are_ what make it into an "order."
> >Yes. It's _also_ an "unlawful order" if Seth, or Guido, or Gestapo
> >Officer Shutlz, order me to do something he has no legal right to
> >order me to do.
>
> Defined how?
Defined by USE OF FORCE.
> I believe I have the legal right to order you to do
> pretty much anything (provided that any penalty I offer is within my
> rights to perform, such as threatening to tell people you get involved
> in long arguments on Usenet).
Right. I wouldn't call that an "order" then.
> >[an unenforceable] statute would be a useless, vestigial
> >appendage.
>
> Sometimes it is. Consider the law in Kennesaw GA about gun
> ownership. (It's required unless you're not allowed to, or really
> don't want to; and if you just don't obey it, there's no penalty.)
Good example.
> The original context was an order that a police officer is
> specifically, by law, allowed to give, which a civilian is not
> required to obey. I'm not aware of a general crime "violating a
> lawful order of a police officer"; rather, there are specific laws
> stating that people have to obey specific (types of) orders in
> specific situations.
And your point is? If it's not something the civilian HAS TO obey,
it's either not an "order" at all (a mere "request," regardless of how
phrased), or is an ILLEGAL order (one which the cop is not allowed to
give to a civilian in that context).
> >> >> You can have orders that there's no requirement to obey.
> >> >Then, it's not an "order" no matter what it sounds like.
> >> What about the unlawful orders discussed earlier?
> >You are confusing the LEGAL requirement to obey, as determined later
> >in the sanctity of the courtroom per applible law, with the ACTUAL
> >requirement to obey, enforced by the cop at the point of his gun. It
> >does not help analysis if you get those two confused.
>
> I don't consider bad effects to provide a _requirement_.
You should, if we're talking about PHYSICAL force and not just "legal
requirements." The use or threat of physical force is what DEFINES
an "order" as opposed to a "request." We're retreading worn ground
here, Seth.
> >> There are laws that there's no requirement to obey.
>
> >Maybe. But laws completely without teeth foster disrespect for law.
>
> Laws that are not enforced do so much more strongly.
I'm not disagreeing with you.
> >> Now we're back to the "order" vs. "request".
> >Yes, because FORCE is what defines the difference between those two.
<snip>
> He said "You may not cross the street until this entire motorcade has
> passed, and I don't stop it and open a hole so that the hundreds of
> pedestrians who are getting jammed up can cross." (Not in exactly
> those words.)
In THAT context, yes, it's an ORDER. He is directing traffic, and
you have the "stop" sign until the motorcade is past. If you try to
run in front of the limousine carrying the Ambassador from whereever,
you WILL in all probability be arrested.
> >But if he FORCED you to stay and answer questions, it's an ORDER.
>
> No questions, he didn't care about us, he was just keeping people away
> from some bigwigs (and from reporters, which was stupid: if I wanted
> to kill an NBC reporter, doing it in a crowd with other reporters
> probably running cameras and lots of police around is a rather dumb
> idea).
He forced you to "stay put" as a means of directing (pedestrian)
traffic. That is an "order."
> > If you reasonably THOUGHT he would use force to compel you to stay,
>
> Yes, we did (if he could).
So, yes, it was an order.
> > and
> >if he didn't look like the kind of guy who would take it kindly if you
> >_did_ have the chutzpah inquire into his intentions or credentials,
>
> He told us to stay. He was a uniformed NYC cop; what other
> credentials would one care about?
That's pretty much it. Although if you had enough chutzpah, you
could ask him to give you his badge number, so you could sue him after
he beat you up for doing that.
> >> or do I have a chance because it was "an unlawful order that
> >> violated my rights"?
I don't know. Was he legally given the duty to directing traffic for
the motorcade? I assume he did not do so just for his own amusement.
> >You don't have MUCH of a chance in ANY case, thanks to "qualified
> >immunity."
>
> This was in 1985, when lawsuits against police could still be won.
Are you seriously suggesting that if you ignored the cop and dashed
into the midst of the passing motorcade, there would be ANY question
that what you did was wrong, and that any subsequent arrest of you
would be rightful? Sheesh.
> If a civilian kept me under the same circumstances, it would be
> kidnapping or some similar charge. Does that make it clearly illegal?
Not if HE'S A COP and is doing so UNDER COLOR OF LAW and if it is the
TYPE OF THING A COP IS ALLOWED TO DO when enforcing the law.
> Some years ago, the NYC police decided to blockade a park where drugs
> were sold, and catch the drug dealers on their way out. One of the
> people detained (delayed by over an hour) was a college professor on
> his way to teach a class (the park being the shortest path between his
> office and classroom). He sued and won.
Sure. Good for him. Your point is?
The blockade of the park was an ILLEGAL police tactic. Which the
police SHOULD HAVE KNOWN before they did it. And, this prof called
them on it, and they lost. In what way does your story prove
anything other than the validity of the 4-way matrix.
> >> But you've stated above that it might still be only a request if I'm
> >> not required to obey.
>
> >The "required to obey" is determined by all the circumstances, from
> >the POV of the civilian who has to decide whether obedience is being
> >required of him, WHETHER OR NOT that is the LEO's actual intention.
>
> Remember this?
>
> >> >So what? It _IS_ a lawful order, if he has the RIGHT to so enforce
> >> >it.
AND if it _is_ also an "ORDER," which means he implies, threatens, or
USES force to enforce it. You're leaving out the first step of the
analysis, taking this statement out of context. The antecedent of
"it" in my sentence you quote above, was a communication that was
ALREADY determined to be an "order" by reason of having implied,
threatened, or actual FORCE behind it; what made "it" a "LAWFUL order"
was, then, if the person making that communication has the RIGHT to so
enforce it.
> >> No, I've said all along that some orders are unenforceable.
>
> >LEGALLY unenforceable, yes. Those are the "illegal" ones.
>
> >But not PRACTICALLY unenforceable.
>
> This is misc.legal.moderated, and not misc.practical.moderated, right?
> I'd rather discuss the legalities.
That's what I'm trying to do. What makes a communication an "order,"
in the LEGAL sense of that word, is that the person making the
communication (or the principal he represents, as an agent) appears to
the recipient of that communication to be implying, or threatening, to
use PHYSICAL FORCE to "en_force_" it.
The law DOES deal with practicalities. It is not an angels-on-a-
pinhead exercise, or at least is not supposed to be. Any legal
dispute typically involves questions of FACT as well as of statutory
or caselaw precedent (i.e., questions of LAW). Resolving such a
dispute requires understanding BOTH the legal, and factual, context.
I don't know what YOU are trying to do, Seth, but that's what I am
trying to do.
<new topic - reasonableness standard in law>
> The judge can interpret the law as "If the defendant actually
> committed act X within 500 feet of a public library, then he committed
> crime Z." The only relevant circumstances are the act and the
> distance to the nearest public library.
No - there is ALWAYS an intent requirement, except in very minor,
strict-liability technical offenses such as e.g. pollution violations,
or failing to have a dogtag on your dog. If "act X" is any serious
crime, then the conviction for Crime Z will occur only if all the
elements of the "Crime of X" are found by the jury, PLUS the
additional element that "Crime X was committed within 500 feet of a
public library" so as to ALSO constitute Crime Z.
The underlying conviction for Crime X requires sufficient proof by the
State not only of Act X, but also of a BAD INTENT on the part of the
defendant in COMMITTING Act X.
> >> So even if I feel that the
> >> violation was "reasonable", I've had to tell the judge that I'd vote
> >> to convict if I believed the violation happened or I wouldn't be
> >> allowed on the jury.
>
> >No, if you believed the defendant's actions were reasonable, you would
> >thus be finding that he LACKED THE EVIL INTENT ("mens rea") which it
> >was a required element of the state's case to prove beyond a
> >reasonable doubt,
>
> Only if that's the way the judge specifies the law.
And if the judge specified the law otherwise, in a case where intent
were at issue, he would be giving INCORRECT jury instructions. I'm
not saying that didn't happen in your case, but it would give the
wrongly convicted defendant a pretty strong appeal.
> Aren't there some
> "strict construction" laws which specify certain acts to be crimes
> without any sort of intent being at issue?
Yes. EPA violations, zoning violations, failing to have a dogtag,
failing to have car insurance and registration. Regulatory crimes,
IOW. Things that are merely "malum prohibitum" (bad only because
they are prohibited by law) and not "malum in se" (seen by society as
bad in themselves)
> (What is the intent in involuntary manslaughter?)
Negligence is a sufficient level of criminal intent, in most
jurisdictions.
If it is a complete accident, no one's fault, then a homicide is NOT a
crime. And an IM charge could be defended on that grounds.
<intent issue in Seth's jury-service case>
> I don't know if there was (I got kicked off the jury). We had to
> agree _in advance_ that the judge's interpretation of the law would be
> the only one considered, and not to engage in jury nullification (the
> real place where "reasonableness" enters).
Not the ONLY place. It is not "jury nullification" if a jury finds
lack of intent to commit a crime, where intent is properly at issue.
> In the case I'm thinking of, the facts were not at issue, the entire
> case hinged on intent.
Then, it WAS part of what the jury was properly called upon to
consider - much of the evidence to be presented at trial would have
gone to the issue of intent, and THAT is the factual issue the jury
would have been asked to decide. Juries decide FACTS, not law.
"Jury nullification" occurs when the jury ABANDONS that proper role,
and decides, on their own, that THE LAW is no good, so that even where
THE FACTS (act, plus intent) DO show that the perp has committed a
crime, they REFUSE to convict because they don't like the law he was
charged under. That is a different ball of wax.
<good cop-bad cop whipsaw scenario snipped>
> The first officer's actions were quite reasonable. It's the second
> who wasn't.
Okay. And IF and when you are charged with FTOLOLEO as to the second
officer, the TOTAL CONTEXT will be presented to the jury, and taken
into consideration.
> >Stop writing such silly things, Seth. That's an order.
>
> >Is it?
>
> Yes.
No. Because it has no teeth.
> > What will I do to you if you don't?
>
> Nothing. It's a toothless order.
Which is why it's not an order, just a "request."
<walking under dangerous eaves example snipped>
> >To summarize, it's stil not an "order"
> >unless the cop intended to FORCE you not to walk there,
>
> Yes, he did. He really didn't want to do the paperwork involved if I
> got myself killed on his watch.
And, are you going to sue him for "violating your constitutional right
to risk getting yourself killed?" Probably not. And if you do, the
court would probably throw it out based on QI. If instead you decide
to complain to the DA and try to prosecute, fat chance having him pay
any attention to such trivialities when he has more important cases to
handle.
> > Otherwise, it's just your friendly local
> >constabulary trying to save your skin from your own stupidity by
> >warning you of a danger, a warning which you are free to accept or
> >disregard at your own peril.
>
> The peril being both from the natural danger, and the cop's
> dissatisfaction with my choice, right?
No, not if he lacks the intent to enforce his request and make it an
order. If he _does_ (illegally, but trivially) "order" you to
refrain from something you have a legal right to do, without the
authority to so order you, then YES, you would also incur the risk of
getting your head bashed in by the cop's nightstick in addition to the
falling icicles.
> >That's what you meant by a "purported order?" Okay. It's still
> >just a "request" even though expressed in the form of a "purported
> >order" and seen that way by "most people."
>
> Who defines the language? If most people think it's an "order", then
> how isn't it?
If most people ACT AS IF it's an order, then it IS an order; the only
person as to whom it is NOT an order is the squeaky nail who sticks up
and says, "Is that an order? Do I _have_to_ do that?"
> Is the meal you're trying to buy at a restaurant a request or an order?
Now you're using "order" in a different meaning. A commerical
"order" is in fact a mere "request" too, because the buyer has NO
RIGHT TO COMPEL the merchant to sell to him. We colloquially _call_
a purchase request an "order" because the accepted idiom of English
speech typically has the merchant addressing the customer as if the
customer is boss, the customer is always right, and the customer is a
master or superior as to whom the merchant is a servant or an
inferior. But that's just protocol, and courtesy, not LAW. The
customer will soon see how "right" he is, how much of a "boss" he
really is, if the merchant decides that this particular customer is
being a [donkey orifice].
> >And, I think "order" is used that way in common parlance too. Give me
> >a counterexample, if you think otherwise, so we can analyze it.
>
> A restaurant is slammed (technical term for has way too much business
> for the available staff). I walk in and _order_ a meal to go. They
> tell me to get lost.
Your "order" was a mere request, regardless of what courteous English
protocol usually calls it. And I say that in my role as truly your
humble servant, etcetera.
> >If the cop had no authority to _require_ people to stay off of that
> >dangerous sidewalk, he exceeded his authority.
>
> Yes, he did. So what?
I AGREE with the "so what?" - who's going to call him on it, and who's
going to prosecute if the civilian _does_ complain? Lotsa luck.
The only way for the civilian who wants to walk on the dangerous
sidewalk, despite a cop's "purported order" to stay away, to test
whether that "order" is going to be enforced or not, is to ACTUALLY GO
WALK THERE, and see what if anything the cop does about it. If the
civilian KNOWS he has the right to do so, he will not be charged AND
CONVICTED of any crime, but I assume he may still have some
trepidation over the risk that the cop will BEAT HIM UP and/or wrongly
arrest him for having the temerity to disobey.
This is exactly what in fact occurred in the early years of the Civil
Rights movement, the anti-war movement, etcetera. Civilians
committing civil disobedience KNEW that the Constitutional principles
were on their side, but still risked the PHYSICAL consequences of
enforcement actions being imposed by cops who were ILLEGALLY trying to
prevent those civilians from pursuing their "civil rights" - a phrase
which has nothing to do with race or racism per se, but refers to
DOING THE THINGS ANY CIVILIAN HAS A RIGHT TO DO.
If you want to go ahead and walk on the icy sidewalk, take your cue
from Rosa Parks refusing to give up her seat on the bus and getting
arrested for it, or from the marchers who had the sheriff's dogs and
fire hoses turned on them for trying to walk across a bridge.
<Mom crosses "police line" to pick up crying baby>
> I don't think it's likely; the issue is what's legal. The judge (if
> it came to that) would tell the jury that they had to follow the
> judge's interpretation of the law. That interpretation would not
> include "except for a mother to pick up her crying baby".
I'm sure the mom-defendant would raise that as a justification or
excuse. It depends on how the law is worded. But, you're just
being ridiculous and zero-tolerance about it if you think the law
REQUIRES prosecition, much less conviction, of such a mom.
I take it you do not PERSONALLY adhere to a zero-tolerance viewpoint
and think such a viewpoint is ridiculous, yourself. So, why do you
insist on imputing such ridiculous, divorced-from-reality motives to
the law itself - except in those stupid instances where some law-
enforcer really _IS_ trying to apply a zero-tolerance concept? Most
of the time, the law has more sense than that, because the people
enforcing and interpreting it know that it is NOT just a purely
logical exercise of A-must-follow-B, but involves real-world goals and
social policy, and also because they recognize that the law GIVES them
discretion in the "fuzzy zone" precisely because written words _are_
an imperfect, metaphorical tool to achieve what the law REALLY wants
to accomplish..
Constitutional principles mean we cannot convict someone of a crime
that is not CLEARLY forbidden by statute, on grounds that "that's what
it REALLY meant to forbid." But such principles do NOT work in both
directions - there is nothing wrong, and in fact much to praise, about
LEOs and DAs and judges exercising their discretion (which ALL of them
have, in spades) to DECLINE to arrest, prosecute, or convict, where
doing so would not actually further the TRUE PURPOSE of the law -
preservation of order, and encouraging "good" behavior and respect for
the law.
<Seth is confused how I am defining "lawful order" again>
> >Okay. How does that relate to whether the civilian would be wise to
> >obey or not, if the cop has his hand on his gunstock with the holster
> >unbuttoned when he makes his polite request?
>
> Wisdom isn't the issue. The law is.
Wisdom, or at least common sense, _is_ the issue, in deciding whether
the cop's polite request, accompanied by his unholstered gun, is an
"order." THE LAW is the issue, in deciding whether such an "order,"
once we have determined it to actually be an "order" (with a threat of
force behind it), is one where the cop is legally ALLOWED to use or
threaten force. If he does not, it is an "illegal" order. If he
does, it's a "lawful" order. I'm tired of this go-round, I have said
the same thing countless times, and I'm logging off the thread. Feel
free to get in the last word, but I won't respond unless you truly do
raise some NEW issue.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>A good "rule of thunb" or "litmus test" of how big the "protected
>zone" is, and where its limits are, would be the following: any time
>the favored vehicle or person would be forced to slow down, stop,
>swerve, or jump out of your way before THEY could do ANYTHING that
>they, as the "favored" ones, are legally allowed AND PHYSICALLY
>POSSIBLE to do (considering the place where they are and the direction
>they are moving at the point in time where the decision must be made,
>the two actors' relative speed, maneuverability, etc.) in order to
>avoid colliding with the intruder who has just caused the favored one
>to jump out of the way and/or who collided with the favored one, then
>_you_ the intruder have come WITHIN the other guy's protected zone,
>and your violation of that protected space around the favored one is
>what constitutes "failure to yield the right-of-way" to the favored
>one.
Does which lane they're in matter? If I'm entering a 4-lane (each
way) limited expressway, and the only nearby car on it is in the 3rd
lane (from the right), they could switch lanes to mine and then have
to swerve. Does that mean I can't enter now? Or is it legal for me
to presume they'll stay in their lane (at least, if they aren't
signalling a lane change)?
>No, it's not. The size and shape and vector direction of the favored
>one's impenetrable "safety zone" depends on the physical traffic
>situation. On a high-speed, divided, multi-lane limited access
>highway consisting of two adjacent but separate ONE WAY roadways with
>occasional exit and entrance ramps, the "safety zone" in which the
>favored driver is entitled to protection of the yield law extends as
>far in front and in back of his vehicle as would be reasonably and
>foreseeably necessary to avoid a collision if EITHER the favored
>driver, OR the entering driver, were in front and had to make a sudden
>panic stop (considering reaction time before the following driver hits
>the brakes, weather and road conditions, etc) and also extends THE
>ENTIRE WIDTH of the favored one's lane
But not into another at all, even if he's signalling?
>For a pedestrian-vs-car interaction, however, the pedestrian (at a
>controlled intersection, with the green "walk" signal) has the legal
>right AND the physical ability to go ANYWHERE in the crosswalk while
>his green "walk" signal is on - he can stop on a dime in the middle,
>turn around and go back, wander aimlessly back and forth, and so on -
>UNTIL the "don't walk" signal comes on, at which point (if he is still
>in the crosswalk) he must proceed expeditiously to the curb in the
>direction he is currently travelling. Meanwhile, his protected "box"
>extends the ENTIRE WIDTH OF THE CROSSWALK and, except in the
>uncontrolled NV situation where it's okay to pass behind him after he
>has left (or not yet entered) the half of the roadway the car intends
>to use, THE ENTIRE LENGTH of the crosswalk too. That's the
>_pedestrian's_ protected "box."
That's seldom what I observe; rather, if a vehicle is turning (so it
goes through the pedestrian's crosswalk), drivers (and pedestrians)
have no problem with missing each other by a few feet.
Sometimes, vehicles turn in such a way that the pedestrian has to stop
or slow down to avoid hitting the vehicle; that does annoy pedestrians
(and presumably violates the law). But a vehicle crossing the
crosswalk well ahead of or behind the pedestrian (even if I could, in
theory, run fast enough to "tag" it) seems acceptable.
Seth
Barry Gold
>Mike Jacobs <mjaco...@gmail.com> wrote:
[Citing the rule that the pedestrian "owns" the entire crosswalk when
crossing with a "walk" signal, from curb to curb.]
Seth <se...@panix.com> wrote:
>That's seldom what I observe; rather, if a vehicle is turning (so it
>goes through the pedestrian's crosswalk), drivers (and pedestrians)
>have no problem with missing each other by a few feet.
>
>Sometimes, vehicles turn in such a way that the pedestrian has to stop
>or slow down to avoid hitting the vehicle; that does annoy pedestrians
>(and presumably violates the law). But a vehicle crossing the
>crosswalk well ahead of or behind the pedestrian (even if I could, in
>theory, run fast enough to "tag" it) seems acceptable.
I suspect Jacobs is right about "the law", but Seth is right about the
practice. In fact, the last time I went to "traffic school" (to get a
ticket off your record for insurance purposes), the instructor told us
_his_ practice was to give the pedestrian one entire lane.
That is, on a four-lane road, with lanes 1 and A being the southbound
and northbound "#1" (center) lanes, respectively, and lanes 2 and B
being the corresponding "#2" lanes...
|2 1 A B|
| |
If a pedestrian is in lane 2, you may use lanes A or B but not lane 2
or 1. If the pedestrian is in lane 1, you may use lane B, but not any
of the other lanes. One exception: If the pedestrian is about to step
off the curb into lane 2, you should not turn right into lane 1, for
two reasons:
a) it's impolite, it leaves the pedestrian feeling threatened that
you will complete your turn immediately in front of him. (This
might also constitute ADW -- assault with a deadly weapon, your
vehicle. Remember, assault is a _threat_ to do harm, even if no
harm is actually done.)
b) In California and I suspect most other states, a right turn must
be made into the rightmost available lane, so a wide right turn
like that violates the law even apart from pedestrian right-of-way
considerations.
I suspect this is based on observation of what behavior is likely to
get you a ticket if observed by a cop. It's also a pretty good
summary of what will and won't annoy a pedestrian.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Mar 17, 9:03 pm, se...@panix.com (Seth) wrote:
>> Mike Jacobs <mjacobs...@gmail.com> wrote:
>> >A perp who did something he knew (or should have known) was
>> >independently illegal, especially if it was _malum_in_se_ (something
>> >INHERENTLY evil) as opposed to _malum_prohibitum_ (something the law
>> >arbitrarily prohibits
>>
>> That's the easy case. You didn't think I'd let you get away with it,
>> did you?
>
>The point is, "I was following orders of an LEO" _is_ a defense to a
>charge of the underlying crime UNLESS the underlying crime is
>_malum_in_se_ such that the perp knew, or should have known, that what
>he was doing was unjustified and wrong.
I specified "Knew would _probably_ be illegal." I was thinking of
cases like trespassing, or perhaps theft (cop says "help me carry
this stuff to my car"), not murder.
> It's not just the easy case, it's the _standard_ by which his
>conduct is being judged, as to the INTENT element.
The intent in either case might be "I must obey what the cop tells me
to do even though I believe it's wrong and I'd never even consider
doing it except that I was ordered by someone who apparently has the
right to order me to do it." So whether or not that intent suffices
as a defense depends on the heinousness of the underlying crime.
>I really hoped we were having a LEGAL discussion, Seth, not just
>playing "grammar gotcha" and hunting for ways my words could be taken
>to mean something silly by putting them in a non-legal context. If
>you do that again further down this post or in future posts, I'll
>simply ignore you. I don't like to play that game.
I've seen court rulings that say, approximately, "The law says X. We
think the intent was 'X in the most common case Y' but that isn't what
the law plainly says, so we have to rule that it means X. We hope the
legislature will correct that in its next session." There have been a
_lot_ of "Technical Corrections Act"s passed.
>> So, which is it? If a police officer tells me to do something, and I
>> reasonably feel that I will be arrested (or worse) if I refuse, but
>> what he told me to do is something he isn't allowed to tell me to do,
>> was it an order?
>
>Yes. It may in that case be an illegal order, but what makes it an
>"order" is the civilian's perception that the LEO is not leaving him
>free to disobey. This is really not rocket science, Seth. Are you
>still confusing the LEGAL right to use force with the ACTUAL threat of
>force? The latter is what makes it an ORDER. The former is what
>makes it a LAWFUL order.
That's clear, and it's what I believe. However, your earlier
statements seemed to say things slightly differently (or at least,
that's how I interpreted them).
>> >The difference is simple, from the civilian's POV - did the cop, or
>> >did he not, imply or threaten or actually use FORCE to compel
>> >obedience to what he asked you to do? If he did, it's an "order,"
>> >whether legal or illegal. If he did not, it's a mere request, and
>> >the civilian is free to act accordingly, or not, as he chooses, with
>> >no LEGAL consequences AND no cop-will-beat-you-up-and-arrest-you
>> >physical consequences regardless of which choice he makes..
>>
>> You've also written below that it's a lawful order if the police
>> officer has the right to enforce it by law, even if it's phrased as a
>> request.
>
>Yes. So long as THE INTENT TO ENFORCE (that is, the intent of the
>cop to USE force to compel obedience) is implied, threatened, or
>actually used, as shown by all the circumstances.
That's the opposite of what I mean by "phrased as a reqest". I meant
that a reasonable person would interpret the cop's statement as
requesting voluntary compliance with no penalty for choosing not to.
><Seth thinks there should be a box for orders the LEO "must give.">
>> >Interesting concept. Care to flesh it out? Personally, I can't think
>> >of any "must give" example
>>
>> Fire Marshall calls the police, and tells the responding officer
>> "Occupancy of that room is limited to 200 and I counted 250 people in
>> it. Close down that event." It's not inconceivable to me that local
>> laws require the police officer to order the people present to leave.
>
>If the cop refused, would he be subject to a writ of mandamus for that
>refusal?
Probably not, but more likely due to the time it would take than
anything else. (If it were an ongoing situation, likely to last or be
repeated for months, then yes.) However, the cop would be subject to
discipline for the failure.
> Is he fulfilling a merely ministerial function? Then yes,
>that would be a "must give" order. Didn't I state that exception
>already,
I hadn't understood the term before (so I looked it up). By
definition, any duty that he must perform is ministerial; so all "must
issue" orders fall into that category.
>But I don't think a cop would be legally mandated to give such an
>order, even upon the facts you stated. He still has discretion
>whether to enforce the law or not in that particular instance, UNLESS
>the law in that jurisdiction makes the Fire Marshal's statement
>_to_the_cop_ a lawful _order_, that is, something the cop _must_
>obey. In that case, the cop "must order" the civilians to do
>something only because HIS SUPERIOR OFFICER has ordered him to give
>that order.
The Fire Marshall is not the Cop's _superior officer_ (which has
implications about the chain of command). The class of orders that a
cop must obey from him is much smaller than the class the cop must
obey if given by his Lieutenant. The fact that there are some orders
that I, a civilian, must obey if given by a copy does not imply that
cops are my superior officers, either.
> That has more to do with the relations between various
>LEOs of various ranks,
The Fire Marshall is not an LEO (in NY, a "peace officer").
>> >Finding something to fit in the "MUST NOT COMPLY" box is easy.
>>
>> "MUST NOT COMPLY" is a column with three boxes, depending on whether
>> the officer MUST GIVE, MAY GIVE, or MUST NOT-GIVE the order.
>
>Okay. That is fine, if you are including the Nazi-war-crimes type
>"order" as a "must not comply" example in the matrix.
Yes, I am.
> The reason I didn't include it in mine was because we were
>previously looking ONLY at deciding whether a statement by an LEO was
>an "order" or not,
And by the definition you gave earlier in this message, it is. (A
reasonable person would interpret the LEO as intending enforcement if
the civilian disobeyed.)
> from the POV of the civilian he is talking to, and then deciding
>whether such an order was "lawful" or not, again from the POV of the
>civilian. If there was an "order" given that the civilian LEGALLY
>"must not" obey, and that the LEO is LEGALLY forbidden to give, that
>does not fit in the 4-box matrix I designed because the illegality of
>that war-crimes order depends on SUBSTANTIVE LAW totally outside of
>that framework.
But the "must obey" depends on substantive law as well. ("Help me
enforce this law" is must obey in Minneapolis but not New York.)
>And I think that's partly why you continue to be so confused, Seth.
>You are conflating "must obey" in the PHYSICAL sense (meaning, "If I
>don't do what this cop is telling me to do, will he crack my head open
>with his nightstick?") with "must obey" in the LEGAL sense ("Am I
>required BY LAW to obey this?").
No, I'm interested only in the legal sense here.
> That's why you think there should
>be a third row of boxes.
Purely legal: Under given circumstances, for a given action: I am
either required to perform it, required not to perform it, or
neither. ("Both" is not a viable situation, though it has been used
against people in less enlightened times.)
Part of those circumstances may be that a police officer has just made
some sort of statement (potentially an order).
Similarly, the person might be a police officer, with the action being
to give a particular order.
That's why I see a 3x3 matrix.
>In my matrix, the PHYSICAL sense is dealt with on the "civilian" axis
>- does this cop, or does he not, intend to FORCE me to do what he's
>asking? While the LEGAL sense is dealt with on the "LEO" axis of
>the matrix - does he, or does he not, have the LEGAL RIGHT to use
>force to compel obedience? That yields only FOUR possible outcomes,
>as far as the nature of that interaction is concerned.
How does that distinguish between "The police officer gives an order
that he does not have the right to give, and does intend to enforce"
(e.g. "Don't show your ugly face in the neighborhood I live in or I'll
arrest you for something.") which it is perfectly legal for the
recipient to obey, and one which it is not legal for the recipient to
obey?
>The example you are thinking of, which is a SUBSET of the "cop DOES
>intend to use force" but "cop is NOT legally allowed to use force"
>box, which I have called an "illegal order" in my matrix.
And since the legal situation for the civilian differs in those two
cases, I put them in different boxes.
> As far as THE LAW is concerned in that box, the civilian is free
>to DISOBEY such an illegal order,
In that box are both orders the civilian MAY obey, and orders the
civilian MUST NOT obey. That's a legal difference, not (just) a
physical one.
>Now, the reason I consider your example a subset of that "illegal
>order" box is, the cop is ORDERING the civilian to do something
>without having the LEGAL authority to give such an order, but (at
>least as far as the interaction with the cop is concerned) the
>civilian is not PHYSICALLY free to disobey - the cop will arrest him,
>beat him up, or use some other form of physical force if he refuses.
But is the civilian LEGALLY FREE TO OBEY? I think the two different
answers require two different boxes.
>Yet, THE LAW says (again, don't mix up physical force with legal
>force) in YOUR example that what the cop is asking the civilian to do
>is WRONG IN ITSELF, and is something that the civilian would get in
>trouble for doing even if no LEO had ordered him to do it.
It's not an "even if"; he'd certainly get in trouble _without_ the cop
ordering him, he's in _less_ trouble given the order.
> In that subset case, the civilian (legally) "must disobey" the cop
>for reasons TOTALLY UNRELATED to the nature of the interaction
>between LEO and civilian.
I agree that the civilian MUST NOT perform the action in question;
however, it's the very nature of the interaction between the cop and
civilian that causes said non-performance to be *disobedience*.
>Now, as to the OTHER parts of that "illegal order" box which do NOT
>independently violate some other substantive law - let's say, the cop-
>Dad "orders" Stoner to cut his hair and threatens to beat the crap out
>of him in uniform if he doesn't
The fact that the cop-Dad makes that order under those circumstances
is unrelated to the fact that he's a cop. Another Dad could do the
exact same thing, and would be acting just about as illegally.
Now, if cop-Dad ordered Stoner to get a haircut and threatened to
arrest him for the crime of impersonating a woman (Stoner isn't
exactly a legal expert), I see that as different.
> But in BOTH cases - the Gestapo officer ordering Otto to
>drive the death van, and Dad ordering Stoner to cut his hair under
>color of law - the LEO is giving an "illegal order," although what
>makes it an 'order" is that the civilian perceives he is NOT free to
>disobey, without risk of suffering PHYSICAL consequences himself.
The threat of physical consequences is one that can be made by
anybody. I'm more interested in the threat of legal consequences.
>The dilemma you pose is UNRELATED to the question of whether the
>civilian can later be charged with "failure to obey a lawful order of
>an LEO" which is what this discussion had been about,
I figure distinguishing "MUST", "OPTIONAL" and "MUST NOT" (by law)
cases when an LEO gave an order to be worthwhile. (The question of
whether a particular instance involves "giving an order" is also
relevant, but I think that's pretty settled. Given that we're
discussing legalities, something is an "LEO order" if a reasonable
person would consider that the LEO requires obedience on pain of
arrest and prosecution.)
> until you raised the "must not obey" concept. When the law finally
>catches up to him, the civilian who REFUSES to obey an illegal order
>to do something _malum_in_se_, such as genocide, is NOT going to be
>charged with "failure to obey a lawful order" - assuming he is still
>alive, and hasn't been shot or otherwise killed by the rogue officer.
>OTOH, the civilian who DOES obey such an order is going to be charged
>with COMMITTING THE UNDERLYING CRIME, and will not be able to rely on
>the defense "I was just obeying orders."
That is, therefore, a legal difference between the MAY OBEY and MUST
NOT OBEY orders.
>If, instead, the cop had asked him to "shoot these people for me,"
>that would NOT be the kind of assistance anyone would reasonably think
>the LEO could legally ask a civilian to do, so a civilian who complied
>with THAT order (or request) would have NO justification-or-excuse
>defense to the underlying crime of murder.
What about "Stop him!"? Cop yells that, civilian trips the guy who
was running away, and it all goes pear-shaped? (Turns out the running
guy was an FBI agent who had just recorded the cop attempting to
extort him, but the cop saw the recorder and didn't want him to get
away with evidence.)
>Okay, let's get back to situations where the cop was LEGALLY wrong, as
>well. Let's take your hold-the-door example. Let's further assume
>an appellate court finds, long after the fact, that the cop violated
>someone's constitutional rights by entering the building when and how
>he did, but that the cop DIDN'T KNOW he was doing that at the time of
>the act - what he did was not in violation of "clearly established"
>constitutional precedent at the time. Thus, he has "qualified
>immunity" to a 1983 suit.
>
>Yet, in the course of committing that act, the LEO _ordered_ Seth to
>hold the door open for him. Was that a LAWFUL order, or an ILLEGAL
>order?
It was, clearly, given that the cop violated someone's Constitutional
rights, an illegal order. That might not have been known at the time.
> As far as Seth is concerned, the LEO was giving an ORDER,
>which Seth was not free to disobey without enforcement consequences
>(and by now, I assume you know what I mean by "enforcement"),
True.
> and it was an order that did not APPEAR on its face to be illegal,
That might depend on other knowledge (e.g. I knew the owner of the
building and his policies), but let's assume there's no such knowledge
in this case.
> that is, the LEO was not ordering Seth to do something that the LEO
>_clearly_ lacked authority to do; therefore, I believe Seth _could_
>be arrested, charged, and tried for "failing to obey a lawful order
>of an LEO" if he refused to obey.
Should it (assuming the legal system works properly) result in a
conviction?
>Would he be able to defend his refusal on grounds the order itself was
>illegal? Maybe, assuming HIS court comes to the same conclusion the
>appellate court later did, in the cop's case raising qualified
>immunity.
Or, later, based on the appelate court's ruling.
> But also maybe NOT, since, if the cop's order was not
>CLEARLY illegal, that means your average charging desk sergeant, your
>average DA, and your average trial judge and jury would not find it to
>have been illegal EITHER.
Based on the ruling that qualified immunity applied (and the resulting
implication that it was necessary), the order _was_ illegal.
>So, the upshot is, if Seth DOES obey, the cop's "qualified immunity"
>against tort suit or criminal prosecution would likely apply to him as
>well (for offering his assistance to the cop in the course of his
>enforcement duties under color of law);
Does qualified immunity extend in that way?
> but if Seth REFUSES to obey,
>he MAY be charged with that refusal, and MAY be successfully
>convicted, UNLESS Seth wants to go all the way to the Supreme Court to
>test his theory that the cop's actions were in fact a violation of the
>building owner's constitutional rights such that Seth had a right to
>_dis_-obey the cop's order.
Or, if I believed the order to be illegal, _obligation_ to disobey.
(Does qualified immunity cover someone who knows (believes correctly)
that what he's doing is illegal?)
>It's your choice.
It always is.
>If it is clear to Seth at the time the cop orders him to hold the door
>open that what the cop is doing is illegal (say, he's running in and
>out of a video equipment store, carrying first one video camera with a
>price tag still on it, then another, so that it's apparent the cop is
>in fact looting the store rather than enforcing the law), then Seth
>may legally refuse to obey the order. If what the cop is doing is
>NOT CLEARLY ILLEGAL, then Seth MUST (legally _and_ practically) obey
>the order, or risk being physically coerced into doing so OR being
>arrested and charged with failure to obey.
Doesn't the law speak about "failing a lawful order" and not "failing
to obey an order that isn't obviously illegal"?
>> So a police officer's command can be an order even if he had no legal
>> right to enforce it.
>
>YES. What makes it an "order" (as opposed to a mere "request") is
>that he DID intend to use force to enforce it - regardless of whether
>he had any right to do so.
Or, rather, that a reasonable person believed that.
><Is Fire Marshal merely "stating" the law, or "enforcing" the law?>
>
>> He will bring the power of the state to bear exactly the same way I
>> would if you refuse to leave my home when I tell you to: he'll call
>> the police and have them enforce the law.
>
>Can the civilian who disobeys the Fire Marshal be charged with
>"failure to obey a lawful order of an LEO?"
I don't believe so; rather, there are more specific (and
higher-penaltied) charges brought.
Random googling finds OH law says that owners & managers of halls,
theaters, etc. must obey orders of fire marshall and similar officers
(not including law enforcement in this section).
http://law.justia.com/ohio/codes/orc/jd_379102-d135.html
Prince George's County Fire Safety Law has requirements for obeying
orders from the Fire Chief or his designee, which is at least a
different section than any similar laws about obeying some orders from
law enforcement officers (and it specifies the types of orders).
http://mdcodes.umbc.edu/dhcd/amendments/fprcg96.htm
> I don't know, it depends
>on the law of the particular jurisdiction. But if so, then yes, the
>FM is "enforcing" the law, not merely "stating" it. Otherwise, your
>distinction is a quibble that has no practical consequences one way or
>the other.
What about legal consequences?
>> >> if you disobey, he'll call the police to enforce it.
>> >Right. In other words, he is implying, threatening, or applying the
>> >coercive power of the State,
>> But so am I when I tell you to stop kicking me or I'll call the police.
>Except that I cannot be charged with "failure to obey a lawful order
>of an LEO" for refusing to stop kicking you. Instead, I'll be
>charged with the underlying crime, assault, which I committed by
>kicking you.
Likewise, for disobeying the order of the Fire Marshall, you won't be
charged with "failure to obey a lawful order of a LEO" but rather
"maintaining unsafe conditions" or "failure to obey the order of a
Fire Marshall".
>> But not all agents of the state are law enforcement officers, even
>> those who can issue orders.
>Okay, agreed. And only those who ARE LEOs will give rise to a
>prosecution for "failing to obey a lawful order of an LEO" if the
>civilian refuses to comply with his order.
Which was my point about Fire Marshalls and the like.
>In the scene I just saw in "Whip It" (recommended movie, BTW), the
>fire marshal apparently brought the police WITH HIM when he shut down
>the warehouse where the roller-derby events were being held, on
>grounds of over-occupancy. The FM was the one with the bullhorn who
>GAVE the order; the cops just stood around and provided the muscle.
And we know that movies never get details of legal niceties wrong :-)
>> >If WHAT YOU DID WAS ILLEGAL, obeying an order would NOT be a defense
>> >to the UNDERLYING CHARGE (of doing whatever illegal thing it was you
>> >were requested to do).
. . .
>It is only a crime to obey if YOU know, or SHOULD know, that what he
>is asking you to do is illegal.
Well, I _believe_ it's probably illegal, but I don't _know_ it because
I haven't seen a Supreme Court ruling (or even a lawyer's formal
opinion) on the topic. And I _know_ I've been wrong about the
legality of various actions in the past.
>Your DIS-obedience, OTOH, could get you in trouble even if the LEO's
>order is (much later) determined to have been illegal, since, in the
>meantime, yes you COULD be charged with, and convicted of, "failure to
>obey a lawful order of an LEO."
Presumably, once it's proven that the order was illegal, I can have
everything reversed (except in Virginia, where if I'm convicted of
murdering you, and a month later you show up as my attorney to appeal
the conviction, the law says that mere facts aren't important).
>> First police officer: "Please come over here for a minute, if you
>> don't mind."
>>
>> Pedestrian: "Sorry, I'm late for work." and keeps walking.
>>
>> Second police officer grabs pedestrian and arrests him for violating a
>> lawful order. Assuming that the first police officer had the right to
>> compel obedience to that order if he so desired, is the pedestrian
>> guilty?
>
>That would depend on whether the jury believes his defense that he did
>not perceive the first cop's statement as an "order."
Thanks; that clearly answers one question (finally). If a request
isn't given as an order (reasonable person's belief, etc.) then it
isn't a lawful order.
>More likely, such a case would never even be brought. Once the
>second cop makes clear that the interaction was intended to be an
>order, they would probably just take it from there. If the civilian
>continued to disobey at THAT point, then yes, they may charge him with
>FTOLOLEO.
In my scenario, the second policeman wants to punish the civilian on
any semi-legitimate excuse. If the first policeman just needs help,
the second one could provide it himself.
>> You've stated earlier that the police officer would not be charged (or
>> convicted) for arresting the civilian for disobedience. That is not
>> the same as "must be obeyed" which I take to mean that the civilian
>> can be convicted of disobedience.
>
>I am using "must be obeyed" in the PHYSICAL sense of FORCE, as in, "do
>what I tell you to do or I may break your arm."
>
>You are still mixing up PHYSICAL, and LEGAL, force.
I'm trying to keep the discussion to the legal side. Anybody can
threaten physical force; even for a police officer who is ordering
someone to do something the law says the civilian must obey, a threat
of physical force ("Hold this door for me or I'll shoot you") is
seldom permissible. A threat of legal force (". . . or I'll arrest
you") is.
>Saying it is a "lawful order" requires, first, the determination that
>it IS indeed an "order," which is based only on whether PHYSICAL FORCE
>IS THREATENED OR APPLIED.
Thank you; that's clear, now. You were leaving out that part before
(probably believing that it was obvious).
> Then, the question of whether such an
>"order" is a "lawful" one, depends on whether the cop had THE LEGAL
>RIGHT to enforce it.
Which also confused me for a while, until I realized (or you stated)
that "lawful order" was a term of art meaning one that the law
requires must be obeyed, rather than the common language meaning of
one that it is not a crime to give.
> You are still mixing apples and oranges,
>confusing PHYSICAL "must obey" with LEGAL "must obey."
I want to completely ignore the physical side in this discussion,
except insofar as it affects the legal side.
>> (The statute says "call to the officer's aid" and "called upon", which
>> isn't the same as "ordered" but I think is still stronger than
>> "requested".)
>
>If the officer says "help me" is that a request or an order? Does it
>make any difference if he says "please?" Or is this a tempest in a
>teapot? What matters, as I have said all along, is the TOTAL
>CIRCUMSTANCES, NOT just the grammar.
I agree, it's the total circumstances. But I believe that "order" is
the strong end of the spectrum, "called up" is the middle-to-strong
end (so it includes "order"), and "request" is the weak end.
There's also the issue of the subject of the order/thingie. Mpls law
says it must be "to the officer's aid" for the "must obey" to apply.
>> >> In the military it's the opposite: only a small subset do not need
>> >> to be obeyed.
>> >I assume you mean, only a small subset NEED be DIS-obeyed.
>> No, though those are approximately the same.
>Not at all, if we are talking about civilians and LEOs.
I specified military, to distinguish it from civilian. (I snipped
only blank lines in the preceeding paragraph.)
>> >There are NO orders that could conceivably be given to the soldier
>> >that do NOT legally require obedience, EXCEPT those that affirmatively
>> >require DIS-obedience.
>>
>> "Vote Republican"
>
>Okay. You got me, I hadn't thought of that example. The soldier
>does have a choice, but the superior has no right to order him to do
>that, one way or the other. But it STILL fits the framework we have
>created, which applies to BOTH the military and the civilian-LEO
>cases.
It's one of the "middle" cases ("obedience is optional") in the
military setting.
>Right, in your "vote Republican" example.
>
>Can you think of many others? I can't, outside the framework of
>ordering a soldier to give up one of the constitutional rights he
>retains despite his military affiliation.
That's the general case I can think of.
>> >> So it can be a lawful order without being an order? That really
>> >> doesn't seem right.
>>
>> >I didn't say that. Any "request" that can be enforced by use of force
^^^^^^
>> >_IS_ an "order." That's how I'm defining it.
>> But what makes it an order is the threat or actuality of enforcement.
^^^^^^^^^^^^^^^^^^^^^^
>> Suppose there is neither threat nor enforcement, but the LEO had the
>> legal right to enforce it?
>
>Then it's just a "request."
See why I get confused?
>> >> So there are "lawful orders" (civilian must obey), "unlawful orders"
>> >> (police officer must not ask),
>>
>> >Yes.
>>
>> >> and ??? orders (police officer may make
>> >> a request that sounds like an order, civilian is not required to
>> >> obey).
>>
>> >You said it yourself - that is a "REQUEST that sounds like an order,"
>> >but it is a REQUEST, NOT an order.
>>
>> But you defined above that if there's an explicit or implicit threat
>> of enforcement, then it's an order.
>
>Yes. You are now talking only about noise in the transmission, which
>could be clarified by the civilian asking the cop whether or not he
>INTENDS to use force to compel obedience. If not, OR if it does not
>reasonably appear from the circumstances that force is implied, then
>it's NOT an order.
The situation that's unclear is that the police officer intends to
enforce the order and makes that clear; however, there is no law
specifying that a civilian must obey that particular order.
Performing the ordered action is not illegal. That's the middle
category.
>There is no "other" definition. The only confusion I see is YOURS,
>between the LEGAL right to use force, and the ACTUAL use or threat of
>physical force. THE LATTER is what makes it an "order;" the FORMER
>is what makes an order a "lawful order."
That's clear, now.
>Axis one, from civilian's POV - is PHYSICAL FORCE being implied,
>threatened, or used, or NOT?
>
>Axis two, from LEO's POV - does THE LAW authorize me to demand this,
>or not?
>
>Do the math.
>
>Totally ORTHOGONAL axis (third dimension) - does SOME OTHER law make
>the entire subject matter of this interaction CLEARLY ILLEGAL as
>something bad in itself, malum in se, the kind of stuff even a
>kindergartner knows is wrong? If so, then DON'T DO IT. But that
>has nothing to do with THE NATURE OF THE INTERACTION between civilian
>and LEO.
But it isn't totally orthogonal, or there would be more boxes. (A
police officer cannot be authorized to require a civilian to commit
those crimes.)
>Threatening arrest turns the interaction into an "illegal order."
>One which the civilian is LEGALLY free to disobey, but does so only in
>fear that he might get his head cracked open for such refusal.
>> >It's only an "order" if there is a right on the part of the LEO to
>> >compel obedience.
>You snipped all the context again. There is no "other"
>definition.
I did snip, in order to put those two statements adjacent.
>FORCE is what makes it an "order" and the RIGHT is what makes it
>"lawful."
Thanks; that's a simple and clear explanation.
>> > So, there are VERY FEW things a LEO can legally _order_ a civilian
>> >to do, that is, can COMPEL him to do under threat of force.
>>
>> Except in Minneapolis.
>
><g> I take it that was sarcasm.
No, I was referring to the law stating that any adult must assist a
police officer in enforcing the law when told to. That's a much wider
range than the (more typical, I think) traffic control + a few other
cases.
> Even in Minneapolis, the range is
>much narrower than in the military.
Agreed.
>> In most places, he can only mandate compliance by the person being
>> pursued ("Stop!"), not other people ("Grab him!").
>
>Right. Except, apparently, in Minneapolis.
That's what I referred to, above.
>> >Perhaps you are using the term "unenforceable order" to refer to one
>> >that is LEGALLY unenforceable, i.e. an UNLAWFUL order, one which the
>> >cop would get in trouble for giving.
>> Or at least, get in trouble for _enforcing_.
>If he has no intent to enforce it, then it is a mere "request," e.g.
>as you note below, a request for help in grabbing a fleeing suspect.
Cops very seldom get in trouble for telling people to do stuff, even
when they have no right to (and aren't supposed to), even if they
phrase it as an order with a threat. If they follow through, with
assault or false arrest, they usually don't get into trouble for it.
>> >If you persist in disagreeing, give us an example of something you
>> >thing would be an "order" (for use by either the prosecution, OR the
>> >defense as you suggested) where there is NO actual OR PERCEIVED intent
>> >of the cop to use force to compel compliance. I don't think such an
>> >animal exists. Good luck unicorn hunting.
>>
>> See my example immediately above, and based on your other description
>> of "lawful order" as one the cop has the legal right to enforce.
>
>Which example? Yelling at a civilian for help grabbing a fleeing
>felon? That is a REQUEST, not an order, except in Minneapolis.
Right. But even in Minneapolis, I doubt anyone would be arrested for
merely failing to help, and the vast majority of civilians (e.g. me,
prior to this thread) would have no idea that they're even required
to.
>> >Yes. It's _also_ an "unlawful order" if Seth, or Guido, or Gestapo
>> >Officer Shutlz, order me to do something he has no legal right to
>> >order me to do.
>> Defined how?
>Defined by USE OF FORCE.
I meant "legal right" defined how?
>> I believe I have the legal right to order you to do
>> pretty much anything (provided that any penalty I offer is within my
>> rights to perform, such as threatening to tell people you get involved
>> in long arguments on Usenet).
>
>Right. I wouldn't call that an "order" then.
Wouldn't that depend on the strength of the threat? "Stay late
tomorrow until you get that written or you're fired" is an order.
>> Sometimes it is. Consider the law in Kennesaw GA about gun
>> ownership. (It's required unless you're not allowed to, or really
>> don't want to; and if you just don't obey it, there's no penalty.)
>
>Good example.
>
>> The original context was an order that a police officer is
>> specifically, by law, allowed to give, which a civilian is not
>> required to obey. I'm not aware of a general crime "violating a
>> lawful order of a police officer"; rather, there are specific laws
>> stating that people have to obey specific (types of) orders in
>> specific situations.
>
>And your point is? If it's not something the civilian HAS TO obey,
>it's either not an "order" at all (a mere "request," regardless of how
>phrased), or is an ILLEGAL order (one which the cop is not allowed to
>give to a civilian in that context).
Like the toothless laws, there could be similar orders, where the cop
is _allowed_ to issue the order (using the same language, expression,
tone, stance, etc. as in giving a lawful order), but there is no
requirement on the civilian to _obey_ it.
>> >> >> You can have orders that there's no requirement to obey.
>> >> >Then, it's not an "order" no matter what it sounds like.
I should have specified "no _legal_ requirement to obey".
>> >> Now we're back to the "order" vs. "request".
>> >Yes, because FORCE is what defines the difference between those two.
><snip>
>> He said "You may not cross the street until this entire motorcade has
>> passed, and I don't stop it and open a hole so that the hundreds of
>> pedestrians who are getting jammed up can cross." (Not in exactly
>> those words.)
>In THAT context, yes, it's an ORDER. He is directing traffic, and
>you have the "stop" sign until the motorcade is past. If you try to
>run in front of the limousine carrying the Ambassador from whereever,
>you WILL in all probability be arrested.
NYC law requires vehicular traffic to obey. I wasn't one.
>> >But if he FORCED you to stay and answer questions, it's an ORDER.
>> No questions, he didn't care about us, he was just keeping people away
>> from some bigwigs (and from reporters, which was stupid: if I wanted
>> to kill an NBC reporter, doing it in a crowd with other reporters
>> probably running cameras and lots of police around is a rather dumb
>> idea).
>He forced you to "stay put" as a means of directing (pedestrian)
>traffic. That is an "order."
And one which no law (that I'm aware of) required me to obey.
>> > If you reasonably THOUGHT he would use force to compel you to stay,
>> Yes, we did (if he could).
>So, yes, it was an order.
>
>> > and
>> >if he didn't look like the kind of guy who would take it kindly if you
>> >_did_ have the chutzpah inquire into his intentions or credentials,
>> He told us to stay. He was a uniformed NYC cop; what other
>> credentials would one care about?
>That's pretty much it. Although if you had enough chutzpah, you
>could ask him to give you his badge number, so you could sue him after
>he beat you up for doing that.
He has to wear it visibly (by regulation). These days, with the
number of cellphone cameras around, I think it rather unlikely that a
cop wouldn't. (He wouldn't want a photo showing him hiding it to
appear in the newspapers with his face easily identifiable.)
>> >> or do I have a chance because it was "an unlawful order that
>> >> violated my rights"?
>I don't know. Was he legally given the duty to directing traffic for
>the motorcade? I assume he did not do so just for his own amusement.
He was given the duty of directing _traffic_, or something like that.
Pedestrians are not subject to traffic-control orders.
>> >You don't have MUCH of a chance in ANY case, thanks to "qualified
>> >immunity."
>> This was in 1985, when lawsuits against police could still be won.
>Are you seriously suggesting that if you ignored the cop and dashed
>into the midst of the passing motorcade, there would be ANY question
>that what you did was wrong, and that any subsequent arrest of you
>would be rightful? Sheesh.
If I did so through the walk zone when I had a walk light, and
especially given that the cop was keeping me pent up for an
unreasonable period of time (much longer than, say, the US
Presidential motorcade blocked traffic for) then yes, I'd say that.
>> If a civilian kept me under the same circumstances, it would be
>> kidnapping or some similar charge. Does that make it clearly illegal?
>Not if HE'S A COP and is doing so UNDER COLOR OF LAW and if it is the
>TYPE OF THING A COP IS ALLOWED TO DO when enforcing the law.
But is _wasn't_ *enforcing the law*. In order to be enforcing the
law, there would have to be an actual law, passed by a legislative
body and signed by an executive, to be enforced.
>> Some years ago, the NYC police decided to blockade a park where drugs
>> were sold, and catch the drug dealers on their way out. One of the
>> people detained (delayed by over an hour) was a college professor on
>> his way to teach a class (the park being the shortest path between his
>> office and classroom). He sued and won.
>Sure. Good for him. Your point is?
The similarities of the cases.
>The blockade of the park was an ILLEGAL police tactic. Which the
>police SHOULD HAVE KNOWN before they did it. And, this prof called
>them on it, and they lost. In what way does your story prove
>anything other than the validity of the 4-way matrix.
How does blockading people in a 1-block-large park differ from
blockading people in a 1-city-block?
Either I am free to go, or I am under arrest. If the former, I go.
If the latter, I get to sue for false arrest. He had no articulable
suspicion of *every single one of hundreds of pedestrians*.
><new topic - reasonableness standard in law>
>> The judge can interpret the law as "If the defendant actually
>> committed act X within 500 feet of a public library, then he committed
>> crime Z." The only relevant circumstances are the act and the
>> distance to the nearest public library.
>
>No - there is ALWAYS an intent requirement, except in very minor,
>strict-liability technical offenses such as e.g. pollution violations,
>or failing to have a dogtag on your dog.
Having a gun in a school zone or trying to take one through an airport
security barrier? Many cases of both of those are accidental.
> If "act X" is any serious
>crime, then the conviction for Crime Z will occur only if all the
>elements of the "Crime of X" are found by the jury, PLUS the
>additional element that "Crime X was committed within 500 feet of a
>public library" so as to ALSO constitute Crime Z.
Except that "Crime Z" is sometimes defined as doing something in a
particular place, where doing it most places isn't illegal, so there
is no underlying "Crime X".
>> >No, if you believed the defendant's actions were reasonable, you would
>> >thus be finding that he LACKED THE EVIL INTENT ("mens rea") which it
>> >was a required element of the state's case to prove beyond a
>> >reasonable doubt,
>>
>> Only if that's the way the judge specifies the law.
>
>And if the judge specified the law otherwise, in a case where intent
>were at issue, he would be giving INCORRECT jury instructions.
There are cases where intent is not an issue. And whether or not the
judge gave incorrect jury instructions is the purview of the appeals
court, not the jury. I'd have to decide based on what the judge said.
>> (What is the intent in involuntary manslaughter?)
>
>Negligence is a sufficient level of criminal intent, in most
>jurisdictions.
If negligence is a sufficient level of criminal intent, then there's
no need for strict construction laws.
><intent issue in Seth's jury-service case>
>> I don't know if there was (I got kicked off the jury). We had to
>> agree _in advance_ that the judge's interpretation of the law would be
>> the only one considered, and not to engage in jury nullification (the
>> real place where "reasonableness" enters).
>
>Not the ONLY place. It is not "jury nullification" if a jury finds
>lack of intent to commit a crime, where intent is properly at issue.
But whether or not intent is at issue is something the judge decides,
right? (Yes, he should decide according to the law; but that's not
for the jury to worry about.)
>"Jury nullification" occurs when the jury ABANDONS that proper role,
>and decides, on their own, that THE LAW is no good, so that even where
>THE FACTS (act, plus intent) DO show that the perp has committed a
>crime, they REFUSE to convict because they don't like the law he was
>charged under. That is a different ball of wax.
The original pre-US case (Zenger) didn't require intent; it was a
strict construction law that got nullified.
><good cop-bad cop whipsaw scenario snipped>
>> The first officer's actions were quite reasonable. It's the second
>> who wasn't.
>Okay. And IF and when you are charged with FTOLOLEO as to the second
>officer, the TOTAL CONTEXT will be presented to the jury, and taken
>into consideration.
But it was the first whose orders I disobeyed, and the second who
acted unreasonably as a result.
I agree that the total context should be presented.
>> Nothing. It's a toothless order.
>Which is why it's not an order, just a "request."
I disagree, using the usual meaning in English. (Even by the
"includes a threat" definition, if I don't believe that the person
giving me an order is capable of carrying out the threat, that doesn't
change the nature of that command.)
><walking under dangerous eaves example snipped>
>> >To summarize, it's stil not an "order"
>> >unless the cop intended to FORCE you not to walk there,
>> Yes, he did. He really didn't want to do the paperwork involved if I
>> got myself killed on his watch.
>And, are you going to sue him for "violating your constitutional right
>to risk getting yourself killed?" Probably not.
Of course not.
> And if you do, the court would probably throw it out based on QI.
Based on what? Is a police officer now immune to any law providing
what he did doesn't shock the conscience and make front-page
headlines?
> If instead you decide to complain to the DA and try to prosecute,
>fat chance having him pay any attention to such trivialities when he
>has more important cases to handle.
Agreed; and I wouldn't want him to.
A note in his personnel file is more appropriate, and much less of a
waste of taxpayer (i.e. my) money.
>> >That's what you meant by a "purported order?" Okay. It's still
>> >just a "request" even though expressed in the form of a "purported
>> >order" and seen that way by "most people."
>>
>> Who defines the language? If most people think it's an "order", then
>> how isn't it?
>
>If most people ACT AS IF it's an order, then it IS an order; the only
>person as to whom it is NOT an order is the squeaky nail who sticks up
>and says, "Is that an order? Do I _have_to_ do that?"
So whether or not it's an order depends on just how obnoxious the
recipient is? I thought it depended on the belief of the standard
spherical cow^H^H^H^H^H^H^H^H^H^H^H^H^H reasonable person.
>> Is the meal you're trying to buy at a restaurant a request or an order?
>Now you're using "order" in a different meaning. A commerical
>"order" is in fact a mere "request" too, because the buyer has NO
>RIGHT TO COMPEL the merchant to sell to him.
I agree there's generally no right to compel. However, it's still an
order, even legally (e.g. in contract law).
> We colloquially _call_
>a purchase request an "order" because the accepted idiom of English
>speech typically has the merchant addressing the customer as if the
>customer is boss, the customer is always right,
[aside] The original statement was "In his own mind, the customer is
always right." It makes much more sense that way, and is a better
belief for determining profitable actions.[/aside]
> and the customer is a master or superior as to whom the merchant is
>a servant or an inferior. But that's just protocol, and courtesy,
>not LAW. The customer will soon see how "right" he is, how much of a
>"boss" he really is, if the merchant decides that this particular
>customer is being a [donkey orifice].
Orders can be disobeyed or rejected. that makes them ineffective,
perhaps, but doesn't make them non-orders.
[restaurant order not binding]
>Your "order" was a mere request, regardless of what courteous English
>protocol usually calls it.
If normal English usage calls it an order, then it is one. It's not
enforceable.
><Mom crosses "police line" to pick up crying baby>
>> I don't think it's likely; the issue is what's legal. The judge (if
>> it came to that) would tell the jury that they had to follow the
>> judge's interpretation of the law. That interpretation would not
>> include "except for a mother to pick up her crying baby".
>
>I'm sure the mom-defendant would raise that as a justification or
>excuse. It depends on how the law is worded.
Or if she believed she could get jury nullification.
> But, you're just being ridiculous and zero-tolerance about it if
>you think the law REQUIRES prosecition, much less conviction, of such
>a mom.
The law never requires prosecution (unless someone gets a writ of
mandamus against the DA). Conviction is up to the jury. I think the
_people_ involved are most likely to act reasonably, despite the fact
that the _law_ says they may not.
>I take it you do not PERSONALLY adhere to a zero-tolerance viewpoint
>and think such a viewpoint is ridiculous, yourself. So, why do you
>insist on imputing such ridiculous, divorced-from-reality motives to
>the law itself - except in those stupid instances where some law-
>enforcer really _IS_ trying to apply a zero-tolerance concept?
I am inputing it to the law as an abstract concept, because that's
what the law says. The fact that laws are often written that way is
one reason for prosecutorial discretion.
> Most of the time, the law has more sense than that, because the
>people enforcing and interpreting it know that it is NOT just a
>purely logical exercise of A-must-follow-B, but involves real-world
>goals and social policy,
That is, the _legal system_ as a whole has more sense; the _law_ is
what the words say it is.
> and also because they recognize that the law GIVES them discretion
>in the "fuzzy zone" precisely because written words _are_ an
>imperfect, metaphorical tool to achieve what the law REALLY wants to
>accomplish..
That's what fixes (or breaks) the legal system, of which the law is
only one part.
><Seth is confused how I am defining "lawful order" again>
>> >Okay. How does that relate to whether the civilian would be wise to
>> >obey or not, if the cop has his hand on his gunstock with the holster
>> >unbuttoned when he makes his polite request?
>>
>> Wisdom isn't the issue. The law is.
>
>Wisdom, or at least common sense, _is_ the issue, in deciding whether
>the cop's polite request, accompanied by his unholstered gun, is an
>"order."
I would says it's the issue in deciding *how to respond to the cop*.
It doesn't matter whether his polite request is an order; it matters
whether violating it gets you arrested, beaten, shot, or ignored.
Seth
Mike Jacobs
opening it after a week or so hiatus.
This is getting too lengthy and complicated to be worth following in
full any more. I am going to skim your post and pick out points that
strike my eye and selectively respond. I've already said most of what
I have to say about the 2x2 interaction between civilians and LEOs,
and nothing you've said has led me to conclude it's not a useful way
to look at things. If you prefer to combine other, unrelated factors
(such as independently illegal acts, genocide etc.) into _your_
matrix, be my guest. I just don't find that approach to be as
useful, analytically.
On Apr 2, 1:36 am, se...@panix.com (Seth) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 17, 9:03 pm, se...@panix.com (Seth) wrote:
> >> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >> >A perp who did something he knew (or should have known) was
> >> >independently illegal, especially if it was _malum_in_se_ (something
> >> >INHERENTLY evil) as opposed to _malum_prohibitum_ (something the law
> >> >arbitrarily prohibits
[is going to be charged with THE UNDERLYING CRIME, not "violating
lawful orders of an LEO."]
> >> That's the easy case. You didn't think I'd let you get away with it,
> >> did you?
>
> >The point is, "I was following orders of an LEO" _is_ a defense to a
> >charge of the underlying crime UNLESS the underlying crime is
> >_malum_in_se_ such that the perp knew, or should have known, that what
> >he was doing was unjustified and wrong.
>
> I specified "Knew would _probably_ be illegal." I was thinking of
> cases like trespassing, or perhaps theft (cop says "help me carry
> this stuff to my car"), not murder.
Okay. But that's where "qualified immunity" comes into play. If
the cop has QI, and asks you to help him, then your acts are also
"state action under color of law" and YOU TOO are entitled to QI for
your trespass, your theft, etc. from whoever the cop was stealing it
from while trespassing on his property, unless YOU KNEW it was illegal
at the time.
> > It's not just the easy case, it's the _standard_ by which his
> >conduct is being judged, as to the INTENT element.
>
> The intent in either case might be "I must obey what the cop tells me
> to do even though I believe it's wrong and I'd never even consider
> doing it except that I was ordered by someone who apparently has the
> right to order me to do it." So whether or not that intent suffices
> as a defense depends on the heinousness of the underlying crime.
Correct, basically. You got it.
> >I really hoped we were having a LEGAL discussion, Seth, not just
> >playing "grammar gotcha" and hunting for ways my words could be taken
> >to mean something silly by putting them in a non-legal context. If
> >you do that again further down this post or in future posts, I'll
> >simply ignore you. I don't like to play that game.
>
> I've seen court rulings that say, approximately, "The law says X. We
> think the intent was 'X in the most common case Y' but that isn't what
> the law plainly says, so we have to rule that it means X. We hope the
> legislature will correct that in its next session." There have been a
> _lot_ of "Technical Corrections Act"s passed.
But this isn't one of those. "Intent" means a subjective desire to
commit a BAD ACT. If you didn't think the act you were committing
was bad, BECAUSE A COP TOLD YOU to do it, and if it's not something
REALLY bad (like genocide) where you should know enough to tell the
cop to go to hell, YOU HAVE QI if you follow the cop's orders.
> >> So, which is it? If a police officer tells me to do something, and I
> >> reasonably feel that I will be arrested (or worse) if I refuse, but
> >> what he told me to do is something he isn't allowed to tell me to do,
> >> was it an order?
>
> >Yes. It may in that case be an illegal order, but what makes it an
> >"order" is the civilian's perception that the LEO is not leaving him
> >free to disobey. This is really not rocket science, Seth. Are you
> >still confusing the LEGAL right to use force with the ACTUAL threat of
> >force? The latter is what makes it an ORDER. The former is what
> >makes it a LAWFUL order.
>
> That's clear, and it's what I believe. However, your earlier
> statements seemed to say things slightly differently (or at least,
> that's how I interpreted them).
Then you misinterpreted me. I've been saying the same thing
throughout this thread.
> >> You've also written below that it's a lawful order if the police
> >> officer has the right to enforce it by law, even if it's phrased as a
> >> request.
>
> >Yes. So long as THE INTENT TO ENFORCE (that is, the intent of the
> >cop to USE force to compel obedience) is implied, threatened, or
> >actually used, as shown by all the circumstances.
>
> That's the opposite of what I mean by "phrased as a reqest". I meant
> that a reasonable person would interpret the cop's statement as
> requesting voluntary compliance with no penalty for choosing not to.
Either I mis-interpreted YOU, or you WERE in your prior posts looking
ONLY TO THE GRAMMAR of what the cop said to determine whether it was
"phrased as a request." Frex, saying "please." My whole point was,
grammar alone is NOT ENOUGH to determine whether it was a request or
an order, and we must look to the ENTIRE circumstances. Now you say
you agree with me. Good, that's progress, we're communicating better
now.
[cop carries out orders of fire marshal, orders civilians to leave
overcrowded building]
> >If the cop refused, would he be subject to a writ of mandamus for that
> >refusal?
>
> Probably not, but more likely due to the time it would take than
> anything else. (If it were an ongoing situation, likely to last or be
> repeated for months, then yes.) However, the cop would be subject to
> discipline for the failure.
Okay, agreed.
> > Is he fulfilling a merely ministerial function? Then yes,
> >that would be a "must give" order. Didn't I state that exception
> >already,
Yes, I did. To provide the answer to my own rhetorical question that
Seth didn't answer.
> I hadn't understood the term before (so I looked it up). By
> definition, any duty that he must perform is ministerial; so all "must
> issue" orders fall into that category.
Right - only those which would, at least technically, submit the cop
to a writ of mandamus, are "must give" orders.
> The Fire Marshall is not the Cop's _superior officer_ (which has
> implications about the chain of command). The class of orders that a
> cop must obey from him is much smaller than the class the cop must
> obey if given by his Lieutenant.
Agreed.
> The fact that there are some orders
> that I, a civilian, must obey if given by a copy does not imply that
> cops are my superior officers, either.
Sure.
> > That has more to do with the relations between various
> >LEOs of various ranks,
>
> The Fire Marshall is not an LEO (in NY, a "peace officer").
"Peace officer" is NOT THE SAME THING AS "Law Enforcement Officer."
Now you are changing your terminology, Seth. The Fire Marshal _IS_ an
officer of the state who is charged with the duty of enforcing certain
laws - those relating to fire safety. The fact that he may need a
PEACE officer (with his "peacemaker" gun at his side) to help achieve
that enforcement is a separate red herring.
> >> >Finding something to fit in the "MUST NOT COMPLY" box is easy.
>
> >> "MUST NOT COMPLY" is a column with three boxes, depending on whether
> >> the officer MUST GIVE, MAY GIVE, or MUST NOT-GIVE the order.
>
> >Okay. That is fine, if you are including the Nazi-war-crimes type
> >"order" as a "must not comply" example in the matrix.
>
> Yes, I am.
Fine - but it's illegal for reasons TOTALLY UNRELATED to the nature of
the interaction between LEO and civilian. I was trying to LIMIT my
analysis to the dynamics of that situation, and I still think your
bringing in other, extraneous factors only leads to more confusion.
> > The reason I didn't include it in mine was because we were
> >previously looking ONLY at deciding whether a statement by an LEO was
> >an "order" or not,
>
> And by the definition you gave earlier in this message, it is. (A
> reasonable person would interpret the LEO as intending enforcement if
> the civilian disobeyed.)
Where do you get that from what I said? Sure, that is ONE option,
_IF_ the reasonablre civilian would so interpret what the cop said,
from all the surrounding circumstances. If a reasonable civilian
would NOT so interpret what the cop said, then it was a mere
REQUEST. Those are the TWO, binary dimensions of the variable on the
civilian axis of the matrix.
> > from the POV of the civilian he is talking to, and then deciding
> >whether such an order was "lawful" or not, again from the POV of the
> >civilian. If there was an "order" given that the civilian LEGALLY
> >"must not" obey, and that the LEO is LEGALLY forbidden to give, that
> >does not fit in the 4-box matrix I designed because the illegality of
> >that war-crimes order depends on SUBSTANTIVE LAW totally outside of
> >that framework.
>
> But the "must obey" depends on substantive law as well. ("Help me
> enforce this law" is must obey in Minneapolis but not New York.)
Per the substantive law of LEO-CIVILIAN INTERACTION
> (not including law enforcement in this section).http://law.justia.com/ohio/codes/orc/jd_379102-d135.html
>
> Prince George's County Fire Safety Law has requirements for obeying
> orders from the Fire Chief or his designee, which is at least a
> different section than any similar laws about obeying some orders from
> law enforcement officers (and it specifies the types of orders).http://mdcodes.umbc.edu/dhcd/amendments/fprcg96.htm
--
Mike Jacobs
off:
On Apr 2, 1:36 am, se...@panix.com (Seth) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 17, 9:03 pm, se...@panix.com (Seth) wrote:
> >> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >And I think that's partly why you continue to be so confused, Seth.
> >You are conflating "must obey" in the PHYSICAL sense (meaning, "If I
> >don't do what this cop is telling me to do, will he crack my head open
> >with his nightstick?") with "must obey" in the LEGAL sense ("Am I
> >required BY LAW to obey this?").
>
> No, I'm interested only in the legal sense here.
Your past statements speak for themselves. I don't think you
understand what I was saying, above.
> > That's why you think there should
> >be a third row of boxes.
>
> Purely legal: Under given circumstances, for a given action: I am
> either required to perform it, required not to perform it, or
> neither. ("Both" is not a viable situation, though it has been used
> against people in less enlightened times.)
Okay. That's true. But it complicates the analysis of cop-civilian
interaction.
The "must never do" things are that way REGARDLESS of whether the cop
tells you to do it or not.
The choice the civillian faces when the cop tells him to do something
is a BINARY one - do I comply, OR NOT? There is no middle ground.
The "NOT" choice can, for INDEPENDENT
> (not including law enforcement in this section).http://law.justia.com/ohio/codes/orc/jd_379102-d135.html
>
> Prince George's County Fire Safety Law has requirements for obeying
> orders from the Fire Chief or his designee, which is at least a
> different section than any similar laws about obeying some orders from
> law enforcement officers (and it specifies the types of orders).http://mdcodes.umbc.edu/dhcd/amendments/fprcg96.htm
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> The law never requires prosecution (unless someone gets a writ of
Mike Jacobs
"send" too soon again.
On Apr 2, 1:36 am, se...@panix.com (Seth) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 17, 9:03 pm, se...@panix.com (Seth) wrote:
> >> Mike Jacobs <mjacobs...@gmail.com> wrote:
> Purely legal: Under given circumstances, for a given action: I am
> either required to perform it, required not to perform it, or
> neither. ("Both" is not a viable situation, though it has been used
> against people in less enlightened times.)
[I had just finished stating the BINARY choice the civilian faces -
comply, OR NOT?]
Now, if the civilian chooses to NOT comply, that choice may be made
for various INDEPENDENT reasons, either because the civilian simply
doesn't WANT TO comply, or because he believes some OTHER law COMPELS
him not to comply. But that has NOTHING TO DO WITH the nature of the
interaction twixt cop and civilian.
> Part of those circumstances may be that a police officer has just made
> some sort of statement (potentially an order).
Sure. Analyzing whether it _IS_ in fact an order, is part of the
civilian's burden, preparatory to deciding whether to comply or not.
If he decides it _IS_ an order, he knows he faces possible PHYSICAL
consequences for disobedience (the cop may beat him up or arrest him);
and then has to decide if he thinks it is a LAWFUL order; and if so,
he then knows he either has to comply, or face possible LEGAL
consequences for his disobedience (IN ADDITION TO the physical
consequences).
> Similarly, the person might be a police officer, with the action being
> to give a particular order.
>
> That's why I see a 3x3 matrix.
WHAT goes in the "middle" box? You haven't fleshed out your matrix
fully yet, Seth.
> >In my matrix, the PHYSICAL sense is dealt with on the "civilian" axis
> >- does this cop, or does he not, intend to FORCE me to do what he's
> >asking? While the LEGAL sense is dealt with on the "LEO" axis of
> >the matrix - does he, or does he not, have the LEGAL RIGHT to use
> >force to compel obedience? That yields only FOUR possible outcomes,
> >as far as the nature of that interaction is concerned.
>
> How does that distinguish between "The police officer gives an order
> that he does not have the right to give, and does intend to enforce"
> (e.g. "Don't show your ugly face in the neighborhood I live in or I'll
> arrest you for something.") which it is perfectly legal for the
> recipient to obey, and one which it is not legal for the recipient to
> obey?
IT DOESN'T. That concept is completely ORTHOGONAL to the issue we
have been discussing.
> >The example you are thinking of, which is a SUBSET of the "cop DOES
> >intend to use force" but "cop is NOT legally allowed to use force"
> >box, which I have called an "illegal order" in my matrix.
>
> And since the legal situation for the civilian differs in those two
> cases, I put them in different boxes.
You would have to put them in SIX different new boxes, if I understand
you right, since you are breaking one cop choice into two new ones,
and one civilian choice into two new ones as well, resulting in NINE
total choices instead of FOUR. (Your six new replace only ONE of my
matrix's choices, the other 3 being the same as before). Which is why
I don't understand your "matrix" yet.
> > As far as THE LAW is concerned in that box, the civilian is free
> >to DISOBEY such an illegal order,
>
> In that box are both orders the civilian MAY obey, and orders the
> civilian MUST NOT obey. That's a legal difference, not (just) a
> physical one.
Of course. But it's a legal difference for reasons ENTIRELY
UNRELATED to the dynamics of the situation.
It's as though we were discussing tidal effects, and you threw in, "Oh
by the way, an asteroid may crash into the Pacific tomorrow and change
all that." Even if that may be true, the resulting wave action has
NOTHING TO DO WITH the tidal effect of the moon-sun-earth interaction,
although it does move around some of the same variables (water
molecules).
> >Now, the reason I consider your example a subset of that "illegal
> >order" box is, the cop is ORDERING the civilian to do something
> >without having the LEGAL authority to give such an order, but (at
> >least as far as the interaction with the cop is concerned) the
> >civilian is not PHYSICALLY free to disobey - the cop will arrest him,
> >beat him up, or use some other form of physical force if he refuses.
>
> But is the civilian LEGALLY FREE TO OBEY? I think the two different
> answers require two different boxes.
SIX different new boxes, if you have a 3x3 matrix in place of my 2x2
matrix. Tell us what they are, Seth.
> >Yet, THE LAW says (again, don't mix up physical force with legal
> >force) in YOUR example that what the cop is asking the civilian to do
> >is WRONG IN ITSELF, and is something that the civilian would get in
> >trouble for doing even if no LEO had ordered him to do it.
>
> It's not an "even if"; he'd certainly get in trouble _without_ the cop
> ordering him, he's in _less_ trouble given the order.
Yes, that's true, if he gets QI. But not if the subject of the order
is _malum_in_se_. That would be illegal REGARDLESS, and obedience to
orders is NO DEFENSE in that instance.
> > In that subset case, the civilian (legally) "must disobey" the cop
> >for reasons TOTALLY UNRELATED to the nature of the interaction
> >between LEO and civilian.
>
> I agree that the civilian MUST NOT perform the action in question;
> however, it's the very nature of the interaction between the cop and
> civilian that causes said non-performance to be *disobedience*.
But it is NOT the very nature of the interaction that causes obedience
to be ILLEGAL. That is due to the effect of OTHER, UNRELATED laws.
> >Now, as to the OTHER parts of that "illegal order" box which do NOT
> >independently violate some other substantive law - let's say, the cop-
> >Dad "orders" Stoner to cut his hair and threatens to beat the crap out
> >of him in uniform if he doesn't
>
> The fact that the cop-Dad makes that order under those circumstances
> is unrelated to the fact that he's a cop.
EXACTLY. Then it's clearly not a "lawful order of an LEO." The cop-
dad is NOT ACTING AS an LEO.
> Another Dad could do the
> exact same thing, and would be acting just about as illegally.
Exactly. Which is why this example has NOTHING TO DO WITH the nature
of a COP-civilian interaction.
> Now, if cop-Dad ordered Stoner to get a haircut and threatened to
> arrest him for the crime of impersonating a woman (Stoner isn't
> exactly a legal expert), I see that as different.
Then, cop-dad would be (illegally) threatening STATE ACTION under
color of law, so YES that would be an UNLAWFUL order of an LEO and
would subject the COP to possible 42 USC 1983 remedies for violating
Stoner's rights.
> > But in BOTH cases - the Gestapo officer ordering Otto to
> >drive the death van, and Dad ordering Stoner to cut his hair under
> >color of law - the LEO is giving an "illegal order," although what
> >makes it an 'order" is that the civilian perceives he is NOT free to
> >disobey, without risk of suffering PHYSICAL consequences himself.
>
> The threat of physical consequences is one that can be made by
> anybody. I'm more interested in the threat of legal consequences.
Then that's why you're confused, since the threat of physical
consequences is WHAT MAKES IT AN ORDER in the first place. ONLY THEN
can we analyze and decide whether that order was LAWFUL or not.
> >The dilemma you pose is UNRELATED to the question of whether the
> >civilian can later be charged with "failure to obey a lawful order of
> >an LEO" which is what this discussion had been about,
>
> I figure distinguishing "MUST", "OPTIONAL" and "MUST NOT" (by law)
> cases when an LEO gave an order to be worthwhile.
You still haven't fleshed out your NINE-way matrix, Seth. You have
expanded ONE box of mine, into SIX new ones. What are they?
> (The question of
> whether a particular instance involves "giving an order" is also
> relevant, but I think that's pretty settled.
It is? Then you agree with me that the threat of PHYSICAL
consequences is what MAKES it an "order" in the first place?
> Given that we're
> discussing legalities, something is an "LEO order" if a reasonable
> person would consider that the LEO requires obedience on pain of
> arrest and prosecution.)
Yes, as to ARREST. No, as to prosecution - if it is an ILLEGAL
order. The person standing on his rights, who knows that what he is
being ordered to do is something the cop has no right to order him to
do, may still face PHYSICAL consequences (application of force, and
arrest) even if he knows he will prevail at trial on the LEGAL issues.
> > until you raised the "must not obey" concept. When the law finally
> >catches up to him, the civilian who REFUSES to obey an illegal order
> >to do something _malum_in_se_, such as genocide, is NOT going to be
> >charged with "failure to obey a lawful order" - assuming he is still
> >alive, and hasn't been shot or otherwise killed by the rogue officer.
> >OTOH, the civilian who DOES obey such an order is going to be charged
> >with COMMITTING THE UNDERLYING CRIME, and will not be able to rely on
> >the defense "I was just obeying orders."
>
> That is, therefore, a legal difference between the MAY OBEY and MUST
> NOT OBEY orders.
One TOTALLY UNRELATED to the nature of the cop-civilian interaction.
<snipo>
[cop gives Seth an illegal order to help cop rob a place]
> >Yet, in the course of committing that act, the LEO _ordered_ Seth to
> >hold the door open for him. Was that a LAWFUL order, or an ILLEGAL
> >order?
>
> It was, clearly, given that the cop violated someone's Constitutional
> rights, an illegal order. That might not have been known at the time.
Exactly. Which would entitle Seth to QI if he _does_ obey, and Seth
might still get arrested (or at least beaten up) by the cop if he does
NOT obey. Your choice.
> > As far as Seth is concerned, the LEO was giving an ORDER,
> >which Seth was not free to disobey without enforcement consequences
> >(and by now, I assume you know what I mean by "enforcement"),
>
> True.
>
> > and it was an order that did not APPEAR on its face to be illegal,
>
> That might depend on other knowledge (e.g. I knew the owner of the
> building and his policies), but let's assume there's no such knowledge
> in this case.
Sure.
> > that is, the LEO was not ordering Seth to do something that the LEO
> >_clearly_ lacked authority to do; therefore, I believe Seth _could_
> >be arrested, charged, and tried for "failing to obey a lawful order
> >of an LEO" if he refused to obey.
>
> Should it (assuming the legal system works properly) result in a
> conviction?
No, if you have QI.
> >Would he be able to defend his refusal on grounds the order itself was
> >illegal? Maybe, assuming HIS court comes to the same conclusion the
> >appellate court later did, in the cop's case raising qualified
> >immunity.
>
> Or, later, based on the appelate court's ruling.
Sure.
> > But also maybe NOT, since, if the cop's order was not
> >CLEARLY illegal, that means your average charging desk sergeant, your
> >average DA, and your average trial judge and jury would not find it to
> >have been illegal EITHER.
>
> Based on the ruling that qualified immunity applied (and the resulting
> implication that it was necessary), the order _was_ illegal.
Yes, illegal BUT NOT CLEARLY illegal at the time, and hence entitled
to QI.
> >So, the upshot is, if Seth DOES obey, the cop's "qualified immunity"
> >against tort suit or criminal prosecution would likely apply to him as
> >well (for offering his assistance to the cop in the course of his
> >enforcement duties under color of law);
>
> Does qualified immunity extend in that way?
I think it would. We are on uncharted territory, here, though.
Seth, by helping the cop rob the store under color of law, in a
situation where it is not CLEARLY ESTABLISHED from Seth's POV that
what they were doing was illegal, is a "state actor" and is entitled
to QI the same as the cop is, if the cop _also_ did not clearly know
that what he was doing was illegal. And, Seth may be entitled to QI
based on SETH's state of awareness, even if the cop is NOT because the
cop knew MORE about the illegality than Seth did.
> > but if Seth REFUSES to obey,
> >he MAY be charged with that refusal, and MAY be successfully
> >convicted, UNLESS Seth wants to go all the way to the Supreme Court to
> >test his theory that the cop's actions were in fact a violation of the
> >building owner's constitutional rights such that Seth had a right to
> >_dis_-obey the cop's order.
>
> Or, if I believed the order to be illegal, _obligation_ to disobey.
Fine. On separate, independent grounds which simply muck up the
analysis here, and is better dealt with separately.
> (Does qualified immunity cover someone who knows (believes correctly)
> that what he's doing is illegal?)
NO. If he knows what he's doing is illegal (and is dumb enough to
ADMIT that) then he does NOT get QI.
> >It's your choice.
>
> It always is.
Exactly. And it is a BINARY choice - either obey, OR NOT.
And the COP's choice is always, to physically COMPEL obedience, or
not.
2x2.
I don't see whwere you get 3x3 (9 total choices).
> >If it is clear to Seth at the time the cop orders him to hold the door
> >open that what the cop is doing is illegal (say, he's running in and
> >out of a video equipment store, carrying first one video camera with a
> >price tag still on it, then another, so that it's apparent the cop is
> >in fact looting the store rather than enforcing the law), then Seth
> >may legally refuse to obey the order. If what the cop is doing is
> >NOT CLEARLY ILLEGAL, then Seth MUST (legally _and_ practically) obey
> >the order, or risk being physically coerced into doing so OR being
> >arrested and charged with failure to obey.
>
> Doesn't the law speak about "failing a lawful order" and not "failing
> to obey an order that isn't obviously illegal"?
Sure. Which is why Seth would be well-advised to OBEY the cop unless
Seth CLEARLY knew the order to be illegal. Failure to obey could
be a SEPARATE offense. Treading new ground here, though. Your guess
is as good as mine, how a court would come out.
> >> So a police officer's command can be an order even if he had no legal
> >> right to enforce it.
>
> >YES. What makes it an "order" (as opposed to a mere "request") is
> >that he DID intend to use force to enforce it - regardless of whether
> >he had any right to do so.
>
> Or, rather, that a reasonable person believed that.
Yes. The cop's (apparent) intent is analyzed from the civilian's
POV.
<big snip>
> >> >If WHAT YOU DID WAS ILLEGAL, obeying an order would NOT be a defense
> >> >to the UNDERLYING CHARGE (of doing whatever illegal thing it was you
> >> >were requested to do).
> . . .
> >It is only a crime to obey if YOU know, or SHOULD know, that what he
> >is asking you to do is illegal.
>
> Well, I _believe_ it's probably illegal, but I don't _know_ it because
> I haven't seen a Supreme Court ruling (or even a lawyer's formal
> opinion) on the topic. And I _know_ I've been wrong about the
> legality of various actions in the past.
Then it would not be a crime for you to OBEY the cop. You would be
entitled to QI.
<snip>
> >> First police officer: "Please come over here for a minute, if you
> >> don't mind."
>
> >> Pedestrian: "Sorry, I'm late for work." and keeps walking.
>
> >> Second police officer grabs pedestrian and arrests him for violating a
> >> lawful order. Assuming that the first police officer had the right to
> >> compel obedience to that order if he so desired, is the pedestrian
> >> guilty?
>
> >That would depend on whether the jury believes his defense that he did
> >not perceive the first cop's statement as an "order."
>
> Thanks; that clearly answers one question (finally). If a request
> isn't given as an order (reasonable person's belief, etc.) then it
> isn't a lawful order.
Sure. It must be in a form that a reasonable person PERCEIVES as an
order. I'm not referring to mere grammar, but to all the surrounding
circumstances (cop says "please" and "sir" but has his hand on his
gun).
<snip>
> >I am using "must be obeyed" in the PHYSICAL sense of FORCE, as in, "do
> >what I tell you to do or I may break your arm."
>
> >You are still mixing up PHYSICAL, and LEGAL, force.
>
> I'm trying to keep the discussion to the legal side.
But that's what causes you to mis-understand what I'm saying, the
basis of my analysis.
> Anybody can threaten physical force;
Only a cop can LEGALLY threaten direct physical force.
Guido and the Enforcers _can_ "order" mom & pop to pay protection,
even if they say "please," but that would be ILLEGAL.
> even for a police officer who is ordering
> someone to do something the law says the civilian must obey, a threat
> of physical force ("Hold this door for me or I'll shoot you") is
> seldom permissible.
I disagree. You misunderstand "physical force." The threat of
ARREST (physical restraint of one's liberty to move around) _is_ a
form of physical force. You seem to be only thinking about threat or
use of DEADLY force, and when that is authorized. Different ball of
wax.
Now that you know ARREST (and manhandling to _achieve_ arrest, if the
perp won't cooperate) is the main form of physical force used, does
that change your understanding of the prior analysis?
> A threat of legal force (". . . or I'll arrest you") is.
Again, that's a threat of PHYSICAL force. It's legal force _IF_ (but
only if) the cop is authorized, by applicable law, to make that
threat. But the PHYSICALITY of it is what MAKES it a threat, and
therefore is what makes the "request" backed up by such a threat into
an ORDER. Are we making progress?
> >Saying it is a "lawful order" requires, first, the determination that
> >it IS indeed an "order," which is based only on whether PHYSICAL FORCE
> >IS THREATENED OR APPLIED.
>
> Thank you; that's clear, now. You were leaving out that part before
> (probably believing that it was obvious).
I think I've been saying it all along, but glad it's clear now.
> > Then, the question of whether such an
> >"order" is a "lawful" one, depends on whether the cop had THE LEGAL
> >RIGHT to enforce it.
>
> Which also confused me for a while, until I realized (or you stated)
> that "lawful order" was a term of art meaning one that the law
> requires must be obeyed, rather than the common language meaning of
> one that it is not a crime to give.
Bingo.
> > You are still mixing apples and oranges,
> >confusing PHYSICAL "must obey" with LEGAL "must obey."
>
> I want to completely ignore the physical side in this discussion,
> except insofar as it affects the legal side.
That's what I've been doing too. Are we getting closer?
> >> Suppose there is neither threat nor enforcement, but the LEO had the
> >> legal right to enforce it?
>
> >Then it's just a "request."
>
> See why I get confused?
Sure. Glad to help clarify things.
> >> >> So there are "lawful orders" (civilian must obey), "unlawful orders"
> >> >> (police officer must not ask),
>
> >> >Yes.
>
> >> >> and ??? orders (police officer may make
> >> >> a request that sounds like an order, civilian is not required to
> >> >> obey).
>
> >> >You said it yourself - that is a "REQUEST that sounds like an order,"
> >> >but it is a REQUEST, NOT an order.
>
> >> But you defined above that if there's an explicit or implicit threat
> >> of enforcement, then it's an order.
>
> >Yes. You are now talking only about noise in the transmission, which
> >could be clarified by the civilian asking the cop whether or not he
> >INTENDS to use force to compel obedience. If not, OR if it does not
> >reasonably appear from the circumstances that force is implied, then
> >it's NOT an order.
>
> The situation that's unclear is that the police officer intends to
> enforce the order and makes that clear; however, there is no law
> specifying that a civilian must obey that particular order.
> Performing the ordered action is not illegal. That's the middle
> category.
No, that's the ILLEGAL ORDER category. The civilian is LEGALLY free
to DISOBEY. In some cases, due to OTHER laws, the civilian MUST
disobey - but that has nothing to do with the cop-civilian
communication and interaction.
> >There is no "other" definition. The only confusion I see is YOURS,
> >between the LEGAL right to use force, and the ACTUAL use or threat of
> >physical force. THE LATTER is what makes it an "order;" the FORMER
> >is what makes an order a "lawful order."
>
> That's clear, now.
Great!
> >Axis one, from civilian's POV - is PHYSICAL FORCE being implied,
> >threatened, or used, or NOT?
>
> >Axis two, from LEO's POV - does THE LAW authorize me to demand this,
> >or not?
>
> >Do the math.
>
> >Totally ORTHOGONAL axis (third dimension) - does SOME OTHER law make
> >the entire subject matter of this interaction CLEARLY ILLEGAL as
> >something bad in itself, malum in se, the kind of stuff even a
> >kindergartner knows is wrong? If so, then DON'T DO IT. But that
> >has nothing to do with THE NATURE OF THE INTERACTION between civilian
> >and LEO.
>
> But it isn't totally orthogonal, or there would be more boxes. (A
> police officer cannot be authorized to require a civilian to commit
> those crimes.)
If I mis-stated the math, my bad. But I'm confident about the WORDS,
and the fact it is UNRELATED.
> >Threatening arrest turns the interaction into an "illegal order."
> >One which the civilian is LEGALLY free to disobey, but does so only in
> >fear that he might get his head cracked open for such refusal.
> >> >It's only an "order" if there is a right on the part of the LEO to
> >> >compel obedience.
> >You snipped all the context again. There is no "other"
> >definition.
>
> I did snip, in order to put those two statements adjacent.
>
> >FORCE is what makes it an "order" and the RIGHT is what makes it
> >"lawful."
>
> Thanks; that's a simple and clear explanation.
Great. I think we're almost done.
> >If he has no intent to enforce it, then it is a mere "request," e.g.
> >as you note below, a request for help in grabbing a fleeing suspect.
>
> Cops very seldom get in trouble for telling people to do stuff, even
> when they have no right to (and aren't supposed to), even if they
> phrase it as an order with a threat. If they follow through, with
> assault or false arrest, they usually don't get into trouble for it.
True that. Thanks to QI.
[ cop directing traffic tells pedestrian to stay put]
> NYC law requires vehicular traffic to obey. I wasn't one.
Yes you were. You were PEDESTRIAN traffic. If you moved contrary
to his direction, you would be disobeying a traffic cop's traffic
directions just as surely as if you jaywalked while he was letting the
cars go thru.
> I would says it's the issue in deciding *how to respond to the cop*.
> It doesn't matter whether his polite request is an order; it matters
> whether violating it gets you arrested, beaten, shot, or ignored.
By George, I think he's got it.