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The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might

The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.

nknighthb 13y ago
How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
- bobwaycott 13y ago
  1: Am I under arrest? 2. No. 1. Okay, I'm going to walk away now. 2. You can't do that. I'm asking you questions and you are not free to leave. 1. But you just said I am not under arrest. Are you arresting me? 2. No. 1. Okay, I'm going to walk away now. ... [a few iterations later] ... 1 starts to walk away. 2 informs 1 that s/he is not free to go. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, begins to walk away. 2 performs a physically or verbally threatening action to prevent 1 from leaving--e.g., blocking exit path, ordering to remain in place, etc. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, continues to walk away or otherwise informs 2 s/he is going to continue to walk away (or ask 2 to leave). ... [several rapidly escalating iterations later ...] 1 attempts to walk away. 2 physically apprehends 1 in some fashion and orders 1 to stop. 1 continues to try to leave. 2 decides to arrest 1 and charge 1 with obstructing, opposing, and endeavoring to prevent (with or without force) an officer in the lawful discharge of his duty. 1 is at increased risk of physical harm from 2 in the course of being arrested as this is the kind of situation that appears many times in cases where an officer uses excessive force to apprehend a 'difficult' individual (whether s/he actually was being difficult or merely attempting to assert his/her rights and avoid being bothered by the officer).
  - hga 13y ago
    This is needlessly complicated; instead, I offer: 1. Am I free to leave? 2. No. OK, now you've made it clear you are under custodial interrogation (I suppose there are safety exceptions to that), Miranda is invoked according to the Orin Kerr, and you can keep your mouth shut beyond the requirement to give your name in some states.
    - bobwaycott 13y ago
      Again, as specified elsewhere, I am responding to the parent's original suggestion to ask if one is under arrest, and the question of how I anticipate the situation getting out of hand. Needlessly complicated? I suppose that's a matter of interpretation when you're on the receiving end of a power imbalance and are wanting to both go on your way and assert and protect your rights. Yes, the shorter path is to ask if one is free to leave, and then respond accordingly. And yet still, it is not incomprehensible that an officer might respond with something more complex than a simple "No" when asked if you are free to leave. Say, something along the lines of, "Yes, as soon as you answer a couple questions." This is much closer to a "no", but still legally debatable (especially within the context of this decision) whether or not you are in a situation in which you may rightfully assert your rights.
      - hga 13y ago
        Sure, he could say that, but it still is a "No", you can declare it as as such, and unless he's going to ask you if you're armed or the like he's then made it crystal clear you're now in an custodial interrogation. I really doubt it would be subject to much debate, but then again I really doubt you and he would provide the same accounting of the event unless it was being recorded and he knows it.
    - ctdonath 13y ago
      This. There was a video a few months ago showing someone recording in-country immigration checkpoints (dozens of miles inland, checking IDs without cause in a very unconstitutional manner). The driver reiterated "am I free to go?" until he got a "yes". Chilling, and informative that "am I free to go?" is the ONLY thing you say/ask. If they say "no", lawyer up & shut up; if "yes", leave. Only question remaining is at what point does the LEO's refusal to say "yes" or "no" constitute one or the other.
hga 13y ago
This could be nitpicking an abbreviated binary choice. The usual advice is to ask if you are free to leave. If the answer is no, then you know you're being detained and can act accordingly.
- bobwaycott 13y ago
  Indeed, asking if you are free to leave is the better question. Not so much an abbreviated binary choice, but more a response to the suggestion as given.

nknighthb 13y ago

How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?

bobwaycott 13y ago
1: Am I under arrest? 2. No. 1. Okay, I'm going to walk away now. 2. You can't do that. I'm asking you questions and you are not free to leave. 1. But you just said I am not under arrest. Are you arresting me? 2. No. 1. Okay, I'm going to walk away now. ... [a few iterations later] ... 1 starts to walk away. 2 informs 1 that s/he is not free to go. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, begins to walk away. 2 performs a physically or verbally threatening action to prevent 1 from leaving--e.g., blocking exit path, ordering to remain in place, etc. 1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, continues to walk away or otherwise informs 2 s/he is going to continue to walk away (or ask 2 to leave). ... [several rapidly escalating iterations later ...] 1 attempts to walk away. 2 physically apprehends 1 in some fashion and orders 1 to stop. 1 continues to try to leave. 2 decides to arrest 1 and charge 1 with obstructing, opposing, and endeavoring to prevent (with or without force) an officer in the lawful discharge of his duty. 1 is at increased risk of physical harm from 2 in the course of being arrested as this is the kind of situation that appears many times in cases where an officer uses excessive force to apprehend a 'difficult' individual (whether s/he actually was being difficult or merely attempting to assert his/her rights and avoid being bothered by the officer).
- hga 13y ago
  This is needlessly complicated; instead, I offer: 1. Am I free to leave? 2. No. OK, now you've made it clear you are under custodial interrogation (I suppose there are safety exceptions to that), Miranda is invoked according to the Orin Kerr, and you can keep your mouth shut beyond the requirement to give your name in some states.
  - bobwaycott 13y ago
    Again, as specified elsewhere, I am responding to the parent's original suggestion to ask if one is under arrest, and the question of how I anticipate the situation getting out of hand. Needlessly complicated? I suppose that's a matter of interpretation when you're on the receiving end of a power imbalance and are wanting to both go on your way and assert and protect your rights. Yes, the shorter path is to ask if one is free to leave, and then respond accordingly. And yet still, it is not incomprehensible that an officer might respond with something more complex than a simple "No" when asked if you are free to leave. Say, something along the lines of, "Yes, as soon as you answer a couple questions." This is much closer to a "no", but still legally debatable (especially within the context of this decision) whether or not you are in a situation in which you may rightfully assert your rights.
    - hga 13y ago
      Sure, he could say that, but it still is a "No", you can declare it as as such, and unless he's going to ask you if you're armed or the like he's then made it crystal clear you're now in an custodial interrogation. I really doubt it would be subject to much debate, but then again I really doubt you and he would provide the same accounting of the event unless it was being recorded and he knows it.
  - ctdonath 13y ago
    This. There was a video a few months ago showing someone recording in-country immigration checkpoints (dozens of miles inland, checking IDs without cause in a very unconstitutional manner). The driver reiterated "am I free to go?" until he got a "yes". Chilling, and informative that "am I free to go?" is the ONLY thing you say/ask. If they say "no", lawyer up & shut up; if "yes", leave. Only question remaining is at what point does the LEO's refusal to say "yes" or "no" constitute one or the other.

hga 13y ago

This could be nitpicking an abbreviated binary choice. The usual advice is to ask if you are free to leave. If the answer is no, then you know you're being detained and can act accordingly.

bobwaycott 13y ago
Indeed, asking if you are free to leave is the better question. Not so much an abbreviated binary choice, but more a response to the suggestion as given.