Activists' home invaded by police. How would you act?

[TargetTerror]

I read this article, which I have posted below, about someone who alleges the police invaded their home. I'm not interested in starting a discussion about who was right or wrong in this particular situation. Rather, I want to assume the homeowner is telling the truth, and analyze how to respond. (though from what is stated in the article, particularly the bit from Ace Hardwood Flooring)

The homeowners are alleging that after complying with all of the Officer's requests except for showing their ID, they entered their home and close and locked the door. At this point, the officer began breaking down their door.

If "Officer" was replaced with any other noun, I think most people would say the homeowners would be justified in shooting to stop the threat, once the person was inside the home. In this case, the homeowners knew it was an officer, but they also knew that he had no reason or right to enter their home forcibly.

The wife called 911 to report that an officer was assaulting them. I think that this was and is the best first line of defense when being attacked, as then there is a recording of what transpired somewhere. Another thought I had is that I always have a mini digital camera in my pocket, that will record video. If I were in the situation above, it seems like a good idea to get the footage rolling to prove that the officer did break and enter. One issue, though, is that many municipalities have laws making it highly illegal to tape, video or audio, an officer, even if that officer is engaging in questionable/illegal activity (I don't have links, but I recall a case where someone had a recorded on their porch recording an illegal warrant or entry, and they got railroaded on the taping). Does anyone have any idea how that might play out in this scenario?

Beyond that, where in your house would you go? Would you wait in plain view of the door, or hide in a bedroom? Would that plan be any different knowing it was a cop v thinking it was a thug? I think that a bedroom would offer a better defense in court, as you can say (with your 911 call to back you up, right?) that you

Also, if the officer identifies himself as the Police, does that change how you can/should respond? Ie, you go to your bedroom, the officer breaks into your home then identifies himself as the police. Normally, you would give yourself up, but this officer has demonstrated that he might want to do you harm, at worst, and has violated your rights, at best. How does that change things? If you said something to the effect of, "Officer, you are illegally in my home, please leave. You have no search warrant or warrant for my arrest, and I am not a threat to you or anyone else. If you continue to pursue me, I will assume you are trying to harm me, and will defend myself against that threat." (sort of a different version of what you should say to BG under similar situations) Would/could that constitute a threat (I don't think so), or further strengthen your position (I do think so)?

 

[TargetTerror]

Flagged down: Activists arrested in row over protest flag, allege abuse by Buncombe deputy
by David Forbes on 07/26/2007

The Buncombe County Sheriff’s Office arrested activists Mark and Deborah Kuhn in West Asheville Wednesday morning after a complaint that the couple was desecrating an American flag. They say a deputy invaded their home and used excessive force. [The photo at right, taken by a neighbor, shows Mark on the ground, with Deborah standing by, during the arrest.]

The flag was hung upside down as an act of protest and had several statements pinned to it, including a picture of President Bush with the words “Out Now” upon it and one explaining the meaning of the upside down flag, a sign of distress.

The Kuhns, along with several neighbors and witnesses, assert that a sheriff’s deputy violently invaded their home at 68 Brevard Road. The sheriff’s office claims that the couple assaulted deputy Brian Scarborough and resisted arrest.

According to the report from the sheriff’s office, Scarborough arrived at the home at 8:45 a.m. in response to a complaint about the desecration of a flag.

Lt. Randy Sorrell says that while the address was in the city of Asheville, “when we receive a complaint that the law is being broken, we have to respond.”

Under a rarely enforced state statute, it is a misdemeanor to desecrate or trample a U.S. or North Carolina flag. The Kuhns said the flag was taken as evidence, though the sheriff’s department has no record of it.

After knocking on the door, the couple answered it and, after being shown the statute, said they complied and took the flag down. Scarborough then asked for their identification.

“The flag covered our whole front porch; he comes up with this printout about the law and tells us that we can’t attach things to the flag, that we’re desecrating it,” Deborah Kuhn said. “We tell him we’re not meaning to desecrate it — all we had was a picture of [President] Bush with ‘out now’ on it and a note saying this was not a sign of distress or disrespect. We did this because the country is in distress and we don’t know what to do.”

Then, she said, Scarborough “started talking arrest, so we took the flag down. He kept wanting to see our ID. We refused. We said, ‘Why should we show you our ID — are you arresting us?’; so we walked back into the house and closed the door.”

There, the accounts diverge. According to Deborah Kuhn, Scarborough “tried to force the door, but we got it closed and locked it with the deadbolt. He then kicked it, punched the glass out, unlocked our door and came after us.”

The sheriff’s office report states that “the man [Mark Kuhn] refused to identify himself and slammed the door on the officer’s hand, breaking the glass pane out of the door and cutting the officer’s hand.”

However, the Kuhns’ account is backed up by Jimmy Stevenson, who was working with Ace Hardwood Floors nearby and asserts that he saw Scarborough break down the door.

“I saw that one cop [Scarborough] pull up and I saw those people come out on the porch and start talking to him,” Stevenson said. “They took their flag down, asked the officer to leave and closed the door. Then he started kicking the door, he kicked it about five or six good times, then he laid right into it. After he got done kicking it, he broke the window out – I saw him hit the window.”

Deborah Kuhn says that Scarborough then “pursued my husband into the kitchen, they were scuffling, [and] Mark was trying to get away from him. He pulls out his billy club and I call 911 and say that an officer has broken into our house and is assaulting us.”

Scarborough sustained a cut to his arm when the window broke and Mark Kuhn had several cuts on his face from the scuffle with Scarborough.

“I was just trying to defend myself and back away from him,” Kuhn said. “They never, ever told us why we were being arrested until we were in jail.”

Deborah Kuhn asserted that no warrant was displayed or permission asked to enter the house. After calling 911, she says, she ran outside and began screaming for help.

Sam York, who lives nearby the couple, was awakened by the struggle, as the Kuhns and Scarborough both came out into the yard. “I woke up to Debbie screaming,” he said. “Mark and Debbie were saying ‘you assaulted us’ and the officer [Scarborough], was demanding their identification. Then another officer threatened them with a taser. He told Debbie to back away or he’d taser her and demanded that Mark get on the ground.”

Sorrell confirms this part of the account: “When they were outside, one of the other officers produced a taser and he [Mark Kuhn] surrendered and submitted.”

Deborah Kuhn’s screams also drew the attention of Shawn Brady and several of his roommates, who live next door to the couple. “I run outside and ask them what’s going on and there’s cops chasing Mark around his car,” Brady said. “They threaten to taser him and demand that he get on the ground. He gets on the ground and we ask them what they’re being charged with. They tell us it’s none of our concern. I tell them they’re our neighbors and it is our concern.”

Neal Wilson, who lives with Brady, also saw the deputy produce the taser, he says. After repeated questions, Brady and roommate Tony Plichta said that the deputies replied that “they didn’t know yet” what the couple would be charged with.

“This is an outrage,” Brady said. “The 1st, 4th and 5th Amendments were clearly broken today.”
Plichta expressed similar anger. “They actually wanted to know why we cared — these are our neighbors,” he said.

Following the arrest, the Kuhns were taken to the Buncombe County Detention Facility, where they were charged with two counts of assaulting a government official, and one count each of resisting arrest and desecrating an American flag. Their son posted their bail shortly afterwards.

This was not the first time that the flag had attracted attention. On July 18, with just the upside-down flag hanging, an Asheville police officer stopped by to inquire about the situation.

“He was very polite and just said that because it was a sign of distress, he wanted to make sure everything was OK,” Deborah Kuhn said. “We said we had it out as a show of desperation — our country is in distress and we just don’t know what to do. We asked if we had violated any ordinance. He said, ‘No, you have every right.’”

After that, Deborah Kuhn said that she posted up the picture of Bush and the explanation of their reasons for displaying the flag in protest.

A couple of days later, Mark Kuhn said that a man in military fatigues came to their door, and was driving a car with a federal license plate. “He stood here telling me that I needed to take the flag down or fly it right,” he said.

Kuhn adds that he assumed the man was with the National Guard, due to the nearby armory.

Wilson, Plichta and Brady said that after the man stopped by, they also saw him drive by several times during the following days, and one night, witnessed several other men in fatigues taking pictures of the flag.

Furthermore, Wilson said that as the Kuhns were being arrested and taken off, he saw a man in fatigues drive by and shout “Go to jail, baby!”

After his experience, Mark Kuhn said he is convinced this is not an isolated occurrence. “If Americans don’t wake up to the martial state we’re in, the cops, the police, the sheriffs, the state police will all come to our door and take us away if we allow this to happen – it’s time for America to wake up.”

— David Forbes, staff writer

 

[c_yeager]

The sheriff’s office report states that “the man [Mark Kuhn] refused to identify himself and slammed the door on the officer’s hand, breaking the glass pane out of the door and cutting the officer’s hand.”

Sounds like a pretty lame schoolyard excuse to me. Even if it was true, what the hell was his hand doing inside their house in the first place?

 

[Fred Fuller]

Engaging in provocative behavior, attracting the attention of local LEOs, opening a conversation with them, and then fleeing inside your house and locking the door upon a demand by said LEO to produce ID is a set of behavior that, completely regardless of any and all legal implications, is best described as "felony contempt of cop."

We've gone from "Terry stops" in 1968 to the 2004 Supreme Court ruling (Hiibel) that people in fact have no right not to tell police their names- though that doesn't say anything about having to produce ID documents on demand. PO'ing LEOs is a bad decision anywhere, anytime regardless of whether you're in the right or not...

lpl/nc

 

[Im283]

PO'ing LEOs is a bad decision anywhere, anytime regardless of whether you're in the right or not...

the truth in this statement is what is distressing. Just one step closer to what went on in Germany in the 1930's

 

[thexrayboy]

It would appear that based upon witnesses statements the officer at the very least lied on his report regarding the door. His statement does not match that of the witness. This will call into question any and all further testimony or statements he gives in the future regarding this incident.

Hopefully these people will sue this officer personally for his violent attack and win. Unfortunately their chances of success are based less on the actual facts than on the honesty of the judge and the judicial process. In reality they have little chance of prevailing. Contempt of cop is a mighty big unwritten law in most of this country...one with dire consequences for those found guilty of it. No trial by a jury of your peers needed either. This is one crime for which the police are judge jury and executioner.

 

[TheFederalistWeasel]

Sounds like a pretty lame schoolyard excuse to me. Even if it was true, what the hell was his hand doing inside their house in the first place?

Uhhh... maybe because the officer had a lawful reason to be there, while conducting a lawful investigation as the story reports, it is misdemeanor to desecrate or trample a U.S. or North Carolina flag.

A good number of you guys here keep thinking the way you do and I hope and pray you never have an encounter with LE especially while carrying, I guarantee it will end up going bad for you.

And you guys tout yourselves as the face of gun carrying citizens for all to see, the face of CCW. Sounds to me like a bunch of anti-establishment, anti-government nutjobs. Furthermore reading the whole story it sounds like the folks who hung the flag are also two waves short of a ship wreck.

Thats taking the high road...

 

[nhhillbilly]

I believe the US Supreme court rules desecrating the flag is a 1st amendment right. Therefore desecrating of the flag law is legal.

 

[TargetTerror]

I thought this might happen

Granted, discussing the merits of this case from the LE and homeowners perspective can provide further insight into such confrontations in general. But, I'm curious as to how you guys would act/respond when faced with an LE unlawfully entering your home, presumably to assault/physically confront you.

 

[shooter503]

The problem here is not really whether the residents were guilty of a crime. It is that the police officer had the RANK STUPIDITY to escalate the situation into a confrontation when he had absolutely no need to do so.

A sane responsible officer could have achieved everything he wanted by staying calm and following a rational plan. Instead, Mr. Tough Guy Red-Neck Goofball turns this into a situation that will take a bent judge to save his neck.

And that is from a cop supporter.

 

[IA_farmboy]

This sounds like something I'd read on papersplease.org.

Let's see if I have this straight...
The police stopped to ask the flag be hung properly or be taken down. The couple complied with a reasonable, and legal, order from a peace officer. The officer asks for identification, an illegal request. The couple refused the request and, thinking all is done, goes back into the house. The officer, unhappy about noncompliance of an illegal order, forces himself into the house and arrests the guy for... resisting arrest? Noncompliance? (Remember the "suspect" did what was legally asked of him.)

Neighbors, noticing the commotion, ask what is up and are threatened with force. I don't know if the man was read his rights during all of this but it seems he was not notified of the charges against him until he was already behind bars.

I think this "peace officer" needs a bit of vacation at a minimum. Unpaid vacation. He could be brought up on charges of excessive force, illegal arrest, unlawful entry, and probably a few other things my not-a-lawyer mind can think of.

I don't know what I would do in their situation but it looks like they did the right things, scream to the neighbors, call 911, and run away as best they could.

 

[Coronach]

OK.

As usual, there is no way to know whether or not the police acted properly in this instance. If you believe the activists/homeowners, they certainly did not. However, if one of the occupants of the house was placed under arrest on the front porch and tried to retreat into the house, the action of the officer was proper, assuming there was a legitimate, arrestable offense. I, personally, have done just that- placed someone under arrest on the front porch of his house, only to have him try to pop back inside and play the "neener! neener! I'm on base! You can't tag me!" game. Didn't work. Legal arrests that occur in a public place cannot be foiled by flight to a private location.

My main question is: was there an arrest on the porch, and what was the charge? To me that's the only issue in play. The common sense of the charge aside (I won't even get into that, because we have only heard the backstory from the activists), if there was a valid arrest, forcing entry is probably legit (unless there is some state law or court decision saying otherwise). If there was not, you have false arrest compounded with a forced entry. Not good for the poh-leece.

As to what you do, if the police are forcing their way into your house, the best option is to obey their orders and sort it out in court later. One of two things will happen:

1. You'll find out your understanding of the law/situation was wrong, the police had the legal authority to do what they did, and you just avoided making the situation a lot worse by resisting arrest, obstructing justice, or interfering with the arrest of another.

or

2. The cops were wrong, and you and your lawyer are about to get a nice chunk of change from the city.

We're a civilized nation. When anyone violates the law- police or citizen- the place to sort it all out is in court, not on the street.

Mike

 

[John C]

IA farmboy; Without getting into the legality of the original issue, I want to correct the critical aspect of this case. I usually try to avoid getting involved in threads like this, but I think it's important to correct bad information getting thrown around, so that others in similar situations don't mess up and get themselves thumped like the guy in the original story.

It appears that this officer was investigating a crime. (I disagree as to whether this is a crime, but whatever) That officer has the lawful ability to detain you for the period in which it takes to finish the investigation. That officer can make you show ID, or take you down to the station in order to positively ID you through other means, during the investigation of a crime. Just because you stop committing the crime, by taking down the flag (which isn't a crime) or pull into your driveway after driving drunk, doesn't mean that the crime is over, and now you're free. The crime occurred, and the officer still can arrest you or let you go, depending. Running into your house in either occasion means the cops are going to break down your door and drag you out. (Like I said, the supreme court has negated flag desecretion as a crime, so it's not, regardless what the statutes in NC say. Therefore, this whole thing is a mess)

-John

 

[Durruti]

A sane responsible officer would have ignored an unconstitutional law on flag desecration.

PO'ing LEOs is a bad decision anywhere, anytime regardless of whether you're in the right or not...

Of course. The prudence trumps freedom argument. Blame the victim for not giving in to the aggressor. Funny how some folks here will use that line of reasoning against anti-war activists but not against the Branch Davidians defiance of Reno's thugs.

The problem is that we live under a situation in which a privileged few (here, police officers) are given the opportunity to make life miserable for people they happen not to like. If you know a court will back you up on your word alone, you can pretty much do what you wish.

 

[Jim K]

The "crime" was a misdemeanor. It sounds like the cop just "went off" in frustration and decided he was going to beat the %^*& out of somebody.

All the excuses and "support your local crazy cop" stuff in the world wouldn't excuse that response. His actions indicate a very poor level of training in that department.

Jim

 

[Gun-Ther]

Sounds like the couple might be able to buy a new house and a bigger flag after their suit against the police dept.

 

[Bartholomew Roberts]

the truth in this statement is what is distressing. Just one step closer to what went on in Germany in the 1930's

I hate to burst your bubble; but taking those same actions towards a cop in 1930s America would have likely have much harsher results than this incident. I don't know where people have gotten the idea that police were somehow more observant of rights in the era prior to the Miranda case, Terry case, and assorted other 1960s cases that greatly restricted what police were able to do...

 

[strat81]

Granted, discussing the merits of this case from the LE and homeowners perspective can provide further insight into such confrontations in general. But, I'm curious as to how you guys would act/respond when faced with an LE unlawfully entering your home, presumably to assault/physically confront you.

God help you if you shoot a cop, in your home or on the street. Especially if you intentionally shot him.

To answer your question, I'd most likely comply with the officer's demands as best I can. Shooting a uniformed police officer in your home will be very bad. The burden of proof will be on you, the homeowner, to prove that the officer really was trying to kill you in cold blood. Audio/video evidence, or perhaps a score of witnesses who are police officers, judges, or US Senators might also help.



Many jurisdictions require police cruisers to have video dash cams installed. I recently purchased a digital voice recorder to help me record interviews for a grad school project. It's smaller than a cell phone and very light. At what point in time do you think police will be required to record audio and/or video of their shifts? The technology is pretty much there...

 

[Coronach]

Of course. The prudence trumps freedom argument. Blame the victim for not giving in to the aggressor. Funny how some folks here will use that line of reasoning against anti-war activists but not against the Branch Davidians defiance of Reno's thugs.

What does resisting arrest get you in this situation? What matters is whether the actions of the cops were proper or not. Period. You win that one in court. Resisting the actions of the cops, at best, gets people hurt- and probably not the cops. At worst it gets people killed, and generates multiple more charges against you. You'll note that while the boneheaded ATF completely screwed up Waco (and no one is saying they didn't), a lot of people died who would have lived if they had lived if they had allowed them to serve the warrant.

The problem is that we live under a situation in which a privileged few (here, police officers) are given the opportunity to make life miserable for people they happen not to like. If you know a court will back you up on your word alone, you can pretty much do what you wish.

What court is that? Allow me to share, it has not been my experience that the courts take the word of the cops at face value. Even if they do, the jury system means that it is "the people" taking the word of the cops at face value, not "the courts".

The "crime" was a misdemeanor.

I am unaware of any statute or court decision that states that if you commit a misdemeanor and get on base that you cannot be tagged.

Seriously. ASSUMING an arrest was started on the porch, the degree of offense does not matter. You don't get to run just because the crime is minor. Now, was it a good idea to make an arrest in this case? I have no clue, since I don't know what the charge was or the other pertinent facts of the matter.

My case, incidentally, was also a misdemeanor.

It sounds like the cop just "went off" in frustration and decided he was going to beat the %^*& out of somebody.

Unsurprisingly, if you ask any criminal defendant what happened (as the reporter did here) in such a situation, the story you get will make the cop look like a thug who just went off and decided to beat the snot outta somebody.

All the excuses and "support your local crazy cop" stuff in the world wouldn't excuse that response. His actions indicate a very poor level of training in that department.

I fully agree this is possible. However, I don't think it is sustained as a conclusion by the information available.

Mike

 

[meef]

Shooting a uniformed police officer in your home will be very bad.

No foolin'?

 

[Double Naught Spy]

I thought this might happen

Granted, discussing the merits of this case from the LE and homeowners perspective can provide further insight into such confrontations in general. But, I'm curious as to how you guys would act/respond when faced with an LE unlawfully entering your home, presumably to assault/physically confront you.

If you thought this might happen, then why did you provide the example that you provided? Why didn't you simply ask the question in the quote above? That is all you wanted to know, so why bother with all the hokey extraneous stuff?

 

[Zach S]

The Kuhns said the flag was taken as evidence, though the sheriff’s department has no record of it.

Interesting. The BCSD took the flag that is still hanging on the front porch as evidence, but they have no record of it. Probably becuase its still hanging on the front porch...

I drive that road pretty often. I've never noticed that flag gone.

They have the right to desecrate the flag, and the KKK has the right to march through town. I wont shed a tear for any ill will that happens to either of them.

 

[IA_farmboy]

IA farmboy; Without getting into the legality of the original issue, I want to correct the critical aspect of this case. I usually try to avoid getting involved in threads like this, but I think it's important to correct bad information getting thrown around, so that others in similar situations don't mess up and get themselves thumped like the guy in the original story.

It appears that this officer was investigating a crime. (I disagree as to whether this is a crime, but whatever) That officer has the lawful ability to detain you for the period in which it takes to finish the investigation. That officer can make you show ID, or take you down to the station in order to positively ID you through other means, during the investigation of a crime. Just because you stop committing the crime, by taking down the flag (which isn't a crime) or pull into your driveway after driving drunk, doesn't mean that the crime is over, and now you're free. The crime occurred, and the officer still can arrest you or let you go, depending. Running into your house in either occasion means the cops are going to break down your door and drag you out. (Like I said, the supreme court has negated flag desecretion as a crime, so it's not, regardless what the statutes in NC say. Therefore, this whole thing is a mess)

-John

I don't know how the law on "improper showing of the flag" read so the taking down of the flag may or may not have put an end to the "investigation". I doubt that such an offense would warrant an arrest, much like a person going 5MPH over the speed limit is not carted off to jail but merely given a warning or given a ticket with the promise to either pay a fine or appear in court.

There has been at least one Supreme Court case over producing identification on demand. That case reinforced existing rules. A police officer can ask you to identify yourself but cannot ask you to produce documents except in specific situations, such as driving a car or entering a place serving alcohol.

I wish I could find reference to that case over identification in public. I'll keep searching.

While an officer has the ability to detain you in the investigation of a crime the investigation should have been over once the flag was taken down. There may have been words said that neither side will admit to but I still think it was poor form for the officer to force himself into the house and cuff the guy.

 

[modifiedbrowning]

My understanding is that after the Hibel ruling if you are not driving a vehicle then you do do not have to show ID (drivers license) but you do have to give the police your name.

 

[John C]

IA Farmboy;

Thanks for responding to my post. I'd like to make it clear that we're probably on the "same side" on this one. My intention here is to clear up a misunderstanding on the process of law so that others can avoid a bad situation, not what specifically happened here.

I'm not in NC, so I can't comments specifically on the law of that stat, or even IA. In general, though, I would imagine that the flag descretion law is a misdemeanor, so that's what I'm going on. This is similar to most DUI or shoplifting, etc., crimes.

You are mistaken, though, that once a crime has ceased happening, the officer cannot make an arrest or compel you to ID yourself. Officers can make arrests any time an investigation warrants it. Otherwise, how could an officer arrest someone who was no longer beating their wife (a misdemeanor in most states; though not in mine)? Or arrest someone for stealing gas? The issue is if the crime isn't contemporaneous to the arrest, a warrant may be necessary. If so, the officer can still use reasonable force to detain the suspect until he calls a judge to get a warrant. The suspect does not get to go free while you are waiting for a telephonic warrant.

The fact that a crime has ceased happening is only the first part of law enforcement. The second part is the state's ability to punish you for doing it to begin with, so as to dissuade you from doing it again. That's why we can it Penal law. I think you may be confusing a crime, which is alleged to have happened here, and regulatory law, in which once it's over, it's over (although you do still have to pay the fine).

A traffic ticket is usually a different classification of crime (an infraction in my state).

You are correct that you do not need to show ID to an officer. You show ID when getting a traffic ticket in lieu of arrest. Basically, the officer is choosing not to arrest you since the positive ID allows the legal system to get you if you decide not to show up. The Hiiben case allows an officer to demand ID in certain situations, and arrest you if you don't want to show ID. Any time an officer legally detains you he can demand ID, and arrest you if you don't show it (basically; there can be exceptions). A legal detention is any time an officer has objectively reasonable suspicion a crime has or is about to occur.

Anyways, my hope is to clear this up so others won't get into a p!ssing contest with a cop and come out the worse for it. Like Coronach said, the place to figure this out is in the court.

-John