Home / Arkansas Sheriff's Deputy Arrests Man for Video Recording, then Claims he "Lost" Phone

Arkansas Sheriff's Deputy Arrests Man for Video Recording, then Claims he "Lost" Phone

 

Arkansas deputies are refusing to return a man

About Carlos Miller

Carlos Miller is founder and publisher of Photography is Not a Crime, which began as a one-man blog in 2007 to document his trial after he was arrested for photographing police during a journalistic assignment. He is also the author of The Citizen Journalist's Photography Handbook, which can be purchased through Amazon.
  • Ryan French

    Stream your video!

    • Anon-o-mous

      Sorry to say it, but I don’t believe you will ever get your phone back, nor ever receive justice or any sort of fair resolution to this situation. Fort Smith is a corrupt city, Sebastian County Sherriffs are just as bent, your phone hasn’t been lost or destroyed, its sitting in that rotten deputies pocket, having been re-coded for his own use.

    • rick

      Unfortunately streaming is really limited. The problem is, even at lowest resolution, only a very choppy audio and video file is uploaded. To complete the file you must upload the sections saved on your phone after you are done recording. Of course this requires the phone being in your possession.
      I use Bambuser because it continues to record even if the off button is pushed (on cellphone, not ipod). At a minimum these apps need to get an unbroken audio record into the cloud, even if it is low quality. A higher quality A/V complement can be uploaded later if possible.
      As for Purcell, forget reimbursement, go after them for prior restraint and destruction of evidence. Good Luck.

      • steveo

        Use dropbox. But that said, the lost video is not the most relevant issue at this point because they dropped your criminal case and the leos admitted to taking your camera/phone without a warrant. They are screwed even without the proof of the video.

        • steveo

          I’m not sure how many times we have to go over this and I’m kind of sick of repeating myself, but going to the PD to get your property returned is like sticking a gun to your face and saying I’m going to shoot this guy if you don’t do what I say (Blazing Saddles), but not only property here, this is taken in violation of the 4th Amendment with property protected by the 1st Amendment. This is serious shit. Hopefully, Carlos and Mickey can get a referral for you.

          I can’t believe that these leos are that stupid, stupid, stupid, not to give you the 1G, if you would sign a waiver.

          When I filed my motion, pro se, to get my phone back from the leos, a sgt. detective came by my house and begged me to come an pick it up from the property people, and I still hadn’t even been to court yet on my criminal charges which were abandoned 5 days later after I posted the clip on youtube. I don”t think the judge even read the brief but the prosecutor did, and told the PD to give it back, right now.

        • rick

          Using Galaxy S2 on Straight Talk
          BAMBUSER Pros:
          Live streaming app that saves any unsent data. Big positive is it will continue A/V recording even when cell phone OFF button pressed. Partial record stored online and complete record available once unsent data uploaded. Free app.
          Cons: Data network speeds determine resolution and continuity of partial record that makes it to the servers.
          DROPBOX Pros:
          Automatically uploads all pictures and videos to servers (using data plus wifi and automatically uploading larger files must be selected). Uploads happen even if OFF button pressed during recording. Free app.
          Cons: Does NOT continue recording once OFF button pushed. Videos NOT uploaded if they are deleted from gallery (eg if recording stopped and video deleted immediately).
          To maximize the utility of these apps I recommend practicing with them under different conditions; on/off, resolutions, etc.

          • rick

            Addendum:
            The Bambuser app display the connection status so you know video is being uploaded.
            Dropbox operates in the background and you remain unsure if videos and pictures uploaded until you check your account. For Android users, like myself, check Settings>Applications>Manage Applications>Dropbox. If the button “Force stop” is highlighted as an option the app IS working in the background. If “Force stop” is grayed out (this should only happen if the user manually selects it) then your media will NOT be uploaded automatically. Restarting your phone will turn it back on.
            Once again, know the ins and the outs of the apps on your phone.

      • Scott Jacobs

        The NJ branch of the ACLU has an app called Police Tape.

        It will record (even putting itself in the background while it does so) and upload to their servers for storage – should you need it later, you can get it from them.

        I highly recommend that EVERYONE have it.

      • Ian Battles

        It’s better to have a choppy video than none at all…

        Bambuser has never given me any problems, even with a weak 3G connection…

    • Braden

      I didn’t have time to stream the video, and don’t think that videos are backed up to iCloud like pictures are over the cell network. I’ll check out all the apps for future reference. Feel free to share my story on Facebook and Twitter. Thank you for your time and support.

      • steveo

        Don’t feel bad about that. We shouldn’t have to record to a cloud. The leos are way out of line when they take a camera from a lawfully present citizen. Read all the briefs in Sharp vs. Baltimore, your case is real similar to this one. The USDOJ is on your side. I think the Baltimore city police dept is a little bit bigger than that hillbilly sheriff’s dept that took your camera and Baltimore came up with a 10 page change on to how they are supposed to deal with videographers because of the Sharp case. They wouldn’t have done that if they didn’t have to.

        And if the sheriff from your backwoods leo dept, is reading this blog or some of the other blogs, he’s probably telling the risk management to get ahold of you to sign a release and hand you your ck for $1016. Don’t be surprised if they show up to your house when you least expect it. I would tell them to beat it.

  • Bryan

    I always love reading theses articles :)

  • nrgins

    Sad…… A good lawyer should be able to make short work of this. Plus, the cost of the phone is the cost of the phone. Simply because Sprint paid part of the cost when he agreed to the contract, doesn’t mean the phone didn’t originally cost him that much. It just means part of it was paid by Sprint originally – an option that’s no longer available. Idiots.

  • Slug Jones

    I know Braden, he’s a good guy. I hope a badass lawyer will see this and take the case. Not just for him, but for all who have been wronged by those supposed to protect and serve.

  • Rob

    You need to go after them for a lot more than the cost of an iphone 5. I’ve seen people get 6 figures for less than what they did to you. “Because I don’t like being told No. I’ll think of something.” is absolutely inexcusable.

  • Cops lie

    The cops continue to trample on the rights of people they film – because they know they can get away with it.

    • JdL

      The cops continue to trample on the rights of people they film – because they know they can get away with it.

      Yep! But people are getting seriously fed up with the criminal thugs called “law enforcement”. More active responses are coming soon, I believe, and the squealing pig thugs will finally have to take notice.

  • http://www.facebook.com/Perlhacker Eli Yelluas
  • Tijuana Joe

    “Resisting Arrest and Obstructing Governmental Operations.”
    It’s getting to the point that these two chickenshit “crimes” are prosecuted more
    often than all the other ones put together.

    • Difdi

      In places that have citizen’s arrest, can a citizen arrest an officer who leaves the scene of whatever (thus obstructing himself) the moment he breaches the peace by laying hands on the citizen or the citizen’s camera?

      (by the by, the answer would be Yes in Washington state, but every state is different).

  • HpPavilion22

    of course they” lost it”

  • HpPavilion22

    the police chief is laughing

  • LastManOutTheDoor

    Hopefully, at the end of it all, Deputy Fuller loses more than his chance at 2013 Deputy of the Year.

    *The last award of the evening went to Brian Fuller, who won 2012 Deputy of the Year. Fuller humbly accepted the award for his service with the Sheriff’s Office.* http://swtimes.com/sections/news/sebastian-county-law-enforcement-receives-awards.html

  • Michael Darrin Chaney

    This is most likely a robbery under your state statutes. Bug the DA to file charges. it’s unlikely they’ll do so, but you can point that out during the civil trial.

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      Make sure you tell him where you studied law.

      It’s not robbery.

      • rick

        Good day!

        Hypothetically you are in lawfully present in public, recording, and eventually get your camera returned (10-15 minutes) with video intact:
        What criminal charges are applicable when a citizen grabs your camera? How about when a cop grabs your camera? They both say, “you cannot record me” before taking your camera.
        Now what civil suit claims can be made from the above actions?
        Thanks

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          Well, it’s not robbery because you don’t have the underlying theft (no intent to permanently deprive the owner of the property, no asportation of the the property). You may have battery, dependent on how the statute is actually written, but it would likely be battery by offensive contact (which is normally a citation). That would be about the extent of it, criminally.

          Civilly, you have two different issues. Against the citizen, you have the torts of battery and trespass to chattels, but the problem will be that your damages are de minimus. Yes, you have a cause of action, but would likely only receive nominal damages.

          You have the same claims against the officer, plus deprivation of civil rights under Sec. 1983 for violations of the First and Fourth Amendments. If you were also live-streaming or it was otherwise for dissemination to the public, you have a PPA violation as well. More damages.

          That’s just off of the top of my head – I would need the hypo to be fleshed out to provide more.

          • rick

            Next question which probably pertains more to a citizen or security guard grabbing my camera.
            Most recently we had the professor and meter maid taking cameras from their owners. Am I, as the videographer, allowed to retrieve my camera immediately using force if necessary?

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            It depends on the state law. Normally you can.

          • Burgers Allday

            Losing the phone is powerful circumstantial that the police officer did not intend to give it back.

            A robber does not need to explicitly state, “I don’t intend to give your property back.” That is normally established by circumstantial evidence.

            I take your point that in most police confiscations there is a lack of circumstantial evidence to establish intent not to give property back, and, indeed, in police confiscation cases, the property usually comes back.

            However, in this particular case, the losing of the phone is circumstantial evidence of intent to deprive permanently.

            That makes for probable cause for a robbery charge.

            I am not ready to convict yet, but the officer should be arrested and have a bail hearing, just like any other robbery suspect should.

            The reason that the policeman has not yet been arrested here is not because he is not a robber (there is powerful “reason to believe” he is one), but because the police are abusing their discretion to provide unfairly favorable treatment to a hero brother in blue (as I am sure they think of him).

  • Burgers Allday

    I left a comment on this site last night, specifically on this thread. It shows up as an entry in the “Recent Comments” field to the right, but the commnt itself seems to have disappeared. Is this happening to others here?

    ON EDIT: and now that I logged in the comment seems to have shown up again. I could swear it was not there before I logged into DISQUS. Strange.

    • rick

      Comments take time appearing. Newest, Oldest, Best also seem to affect if they can be seen immediately after posting. In the long run they are always there.

  • JUSTICE

    YOU CAN READ THE OFFICIAL COMPLAINT FILED IN FEDERAL COURT HERE: http://excoplawstudent.files.wordpress.com/2013/04/w-d-ark-_2-13-cv-02099_1.pdf

  • James

    Looks like the Sebastian County Sheriff’s Department is already currently being sued in Federal Court and pondering a $495,000 settlement for another incident. So as of Purcell’s suit, they have two Federal Suits going on at the same time! Read about the other here:
    http://swtimes.com/sections/news/sebastian-county-consider-495000-settlement-2010-jail-slaying.html

  • eddy

    The time is coming when “free” citizens start fighting back. And not in the courts…

  • Rich

    False arrest, stealing a phone worth over a thousand dollars, felony destruction of evidence, conspiracy to deny rights, Conspiracy to commit theft.

  • Fotaugrafee

    Great precedent to be set for “losing evidence”, unless of course they can use it for a slam-dunk open & shut case. Goddamn worthless cops.

  • chjode

    Sounds like Officer Fuller has himself a new iPhone. I wonder if Braden could track the iPhone via Find My iPhone, or if it has been reset and activated under another account, Sprint would be able to show that.

  • Mutant Garage

    this is why you record to the cloud, do not save the data on your phone.

  • Jeff

    Why does this report say executing a search warrant? What is contained in the report that is referenced? Something seems to be missing here. If all is as claimed, this needs to be pursued. What appended in court? We dearly are not getting the entire story here.

  • steveo

    Videographer needs to file a complaint with the local FBI office, color of law division. Also, he can get some sworn testimony on file by filing a motion to have his recording device returned and demanding a hearing at the circuit or county court, whatever is in that jurisdiction. Do a prior restraint motion. Have the leos supeonaed to explain this to the court under oath. Usually when you go to court for something like this, the property mysteriously shows up.

    The leos will never show up, but you can get some activity going on this egregious violation of civil rights even in the State/local court pro se. You can also do this in small claims if you just want the max from small claims which is probably around 5 grand. The leos’ attorney will just instruct the risk management to cut you a ck for 5 grand and dismiss the case with a waiver of all future action. Normally when a state agency is sued in small claims, they transfer it to the circuit court so that an attorney can handle the case, then you can ask for more than 5K, but they won’t transfer this, they’ll just pay you off. One of our acquaintances got 25K settlement for this: http://www.youtube.com/watch?v=F_8Bv0wNgCY

    This complaint, if true, is worth a hell of lot more than 5 grand, but if you can’t find a tort lawyer to help you out on contingency, small claims is a good way to go. Maybe Carlos can get Mickey O. to refer a good 1st Amendment lawyer to you.

    Read Robinson vs. Fetterman, it’ll make you feel better. In Mr. Robinson’s case it cost the govt around 300K and that was nearly 10 years ago.
    http://www.paed.uscourts.gov/documents/opinions/05D0847P.pdf

    Again, if this is a true story, I’m starting to smell another Glik or Sharp case here. Also, if you get a good enough lawyer, he/she might want to wait until the settlement comes in on the Sharp case. I think the City of Baltimore is choking on the amt of money Sharp’s lawyers want. This case is real similar to Sharp.

  • kmacarth

    Dude, please get a lawyer… I know it’s a pain, and costly, but it’s the only way they will respect you. Also, have not more contact with the officer. He is not your friend, and he is not working on your behalf. The spelling of “miss placed” made by day…

    The way I see it, if you CAN afford an iPhone, you SHOULD retain an attorney to write a few letters…

  • steveo

    They might have tried to obtain a search warrant so that they could “search” the contents of the phone, but more than likely the court turned them down. If you can do public records ck or FOIA that would be a good place to start.

  • Braden

    To answer the question about the search warrant. I wondered about this as well. My only thought is they tied my arrest report to the report for the bust they were doing across the street. They never had a warrant for me or my iPhone. I was just out for a walk when I saw the SWAT team making the bust as stated in the above story. Feel free to share my story on Facebook and Twitter. I appreciate all the comments and advice, it means a lot.

  • Difdi

    The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.
    –Thomas Jefferson

  • certain

    On another recent court case in which the defendants (police) “lost” the video, the judge instructed the jury that the video was to be considered relevant to and supporting of the plaintiff’s claims.

  • Proud GrandPa

    Excellent advice. I knew there had to be further legal recourse. The victim seems to have been unable to find a lawyer willing to sue to recover the cell phone. Only a small dollar amount is involved, but with your procedure, he may have hope yet.

    If this had happened to me, I’d consider funding the lawsuit out of pocket. My attorney’s fees would probably exceed my recovery, but I’d make sure this goes on the record. I’d take plenty of depositions so that the next victim has a strong case. Change is possible here. We have a popular saying, “Sometimes one must feel the heat in order to see the light.”

  • steveo

    usually the way these suits go, the leos put everything into getting the suit dismissed due to qualified immunity,if the court denies the qualified immunity they settle, before a trial because they’ll usually lose. But it takes years. If they only lose a dollar the jurisdiction has to pay the attorney’s fees for both the plaintiff and their side which usually amounts to 100’s of thousands. If he’s just concerned with the settlement on the property amt, he’s certainly entitled to the amt he stated. Small claims a slam dunk.
    The leos in question would never show up for a deposition or court over this. He would win by default.

  • steveo

    alot of times, you don’t know if they applied for a warrant after they arrested you, because the States attorney will bury all the warrant applications and even the defense attorney has a hard time getting through discovery. Sometimes the prosecutor will fill out a warrant application, backdate it and never send it to the judge which is fake after the case is closed, just so they don’t get burned like this situation. They can also maintain that they took the camera but never searched it. The camera is probably still in the evidence room at the PD, or the States Attorney’s investigator’s desk.

    But with your state, I don’t know, how open the open records laws are, after a criminal case is closed in FL, they have to give a person demanding access copies of any records, but even here it sometimes requires a lawsuit being filed to get them to release the records.

  • Difdi

    In some states being visibly armed with a dangerous weapon while committing theft converts it into robbery, which is an additional felony.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Except you still don’t have intent to commit theft that can be proved beyond a reasonable doubt.

  • Fotaugrafee

    Of course not. :rollseyes: Then WHAT reason did he have to take the phone into evidence whatsoever, you shill?

  • io-io

    Rereading the first two paragraphs of the incident, there certainly is a demonstration that the police did not want the video taken – which was the entire basis for the incident. Absent the camera, none of this would have occurred. In that the charges were dismissed, the assault that the officers committed in order to gain possession of the camera, certainly demonstrates the lengths that they were willing to go in order to obtain the camera – aggravated armed robbery?. Also, the camera is the item that holds the evidence of their aggravated assault upon the cameraman. The camera additionally contains the evidence that their objective was the camera. Without the camera, it is the old “he said, she said” routine.

    Having said all of that, I would certainly like to see what was on the camera, and let the chips fall as they may. The original intent certainly appears to be the video itself. In that the camera was locked, and the video probably was thus unable to be extracted, the camera became the object.

    To me that is pretty a pretty strong indictment as to why the camera has gone missing, and has not made a sudden reappearance – well beyond reasonable doubt. How could that have happened? The camera was official evidence, and should have been immediately logged into property, in order to maintain the chain of possession. Why did this not occur? This should also demonstrate the actual intent of the officers. I can also hear the defense – that they were very busy, and honest mistakes just happen from time to time.

    I can certainly hear the DA making a strong case to a Jury for theft / robbery, if the perpetrator were NOT a police officer. With the perpetrator being an officer I can also sense that the DA will find absolutely no crime was committed. Of course the police officers are highly trained professionals of the highest integrity and standards.

    The bottom line is “equal justice for all”. I am a bit tired of finding that some are a bit more “equal” than others. I wonder where I might have read that in the past?

  • Difdi

    It would be very easily proven if the “lost” camera turns up in the possession of the arresting officer, doubly so with a new SIM card in it.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    I’m not saying what the deputy did was right, it obviously wasn’t. I’m saying unless you have some sort of incontrovertible proof, you can’t make a criminal charge stick, because there would be reasonable doubt.

    Look, you can’t just charge someone and put them in jail because you don’t like what they did – otherwise Carlos and a lot of others would be in jail now. You can’t just create a class of people, in this case officers, that the standard of proof does not apply to.

  • Jefft90

    Congrats

    On the Omaha thread you were called “ a blathering key board warrior” for criticizing the cops. Now, in less than 24hrs, you have been called a shill for the police.

  • Quadeddie

    Isn’t it ‘proof’ that the cop took the cell phone and ‘lost it’? Can’t theft be defined as taking someone’s property and not returning it? Since this was taken by force and not returned, I think it actually more along the lines of robbery.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    LOL, gee, someone noticed.

    I really get a kick out of the zealots on both sides. I figure if I piss off both sides, I’m usually in the right place, as far as my position on the issues…

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Nope, it’s not, and you can’t redefine a statutory crime after the fact. It’s a long-term legal doctrine known by it’s Latin name, Nullum crimen, nulla poena sine praevia lege poenali (no crime, no punishment without a prior law).

  • Difdi

    The officer intended to stop the phone’s owner from exercising a constitutional right and seized the owner’s property (the phone) by force while visibly armed with a dangerous weapon.

    No reasonable police officer could deny knowledge of the constitution, they swear oaths to defend it and go to school to learn to be police.

    The officer absolutely intended to deprive the phone’s owner of his property (the phone and the recording) and the fact that the phone and the evidence it contained “got lost” while in police custody looks quite a bit like spoliation of evidence. You always claim that the officer lacked intent to rob his victim in these sorts of situations, but I can’t see your logic.

    If anyone but a police officer acted with the same training in and knowledge of the law and the same degree of lawful authority (none) that these police officers utilize to seize a phone, the DA would happily prosecute that person for robbery. And would almost certainly get a conviction.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Ok, let say he did everything that you said. You still haven’t proved the elements of theft, much less robbery.

    You’ve shown no evidence of intent to permanently deprive the owner of the property that will get past the reasonable doubt level. Spoliation of evidence is not the same thing as intent to deprive.

  • frito_bagshot

    io-io, I wouldn’t be to quick to say AR cops are highly trained professionals. I live in AR and know that small towns/counties are allowed to hire anyone off the street and swear they will “send them to the police academy at a later date.” AR is real bad about bad cops jumping from job to job and never having ever been to the police academy. Shannon Hills and Alexander were blessed by having a guy named Spears as their chief, illegal stops and shakedowns were very common under his watch. Hispanics were a prime target, “obstructed view” ticket for tree air freshener, how much did the ticket cost? How much money you got in your wallet?
    How much training do they have to have to patrol the streets—-zero, how much training does the local barber or hair dresser have to have to cut your hair—2048 hrs. IIRC, a bill was introduced in the last two years addressing this, but have no idea what happened to it. My guess is that the cop that stole the phone is one of those job hoppers that never got any real training.
    One thing I have noticed is that lately, they have been telling bad cops (that get caught) that they can never work as a cop again. It’s a small start, but a start. I personally would support having a punishment of a public flogging with 25 lashes.

  • Quadeddie

    Ok, are you then saying that if a cop desired to willfully deprive someone of their property and seized it as ‘evidence’ and ‘lost’ it, they could never be successfully prosecuted? Under what conditions could that crime be prosecuted (given that the hypothetical officer never left evidence of intent before the fact)?

  • Michael Darrin Chaney

    Geeze, I figured you’d show up with this nonsense again.

    Let’s get straight to the point. Imagine that I see you on the street and walk up to you and take your phone. I then tell you I’ll give it back tomorrow. You protest but are unable to take the phone from me.

    A police officer sees this episode and walks up to us and says he’s going to arrest me for robbing you of your phone.

    At this point, you say “Officer, you cannot arrest this man for robbery because you cannot prove the elements of robbery exist. Specifically, he didn’t intend to deprive me of my phone indefinitely as he said he would give it back tomorrow.”

    Right?

    Ridiculous.

    The officer in this story committed a robbery along with other felonies.

    Do you really think a police officer can just take anything from anybody legally? Seriously.

  • Lester TheRockingHorseGuy

    So,….if I forcibly remove a car from it’s owner, and take it out joyriding for a while, but I really intended to give it back, really I did, and then I “lose” the car, that’s not grand theft auto?

  • Jefft90

    Just so I am clear. Your position is not that the officer could not be investigated for theft but that there is currently not enough evidence to warrant an arrest?

    In Arkansas 5-36-103. Theft of property or 5-36-105 Theft of property lost, mislaid, or delivered by mistake use the word deprive.

    “Deprive” means to:

    (A) Withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner;

    (C) Dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely;

    With regard to intent I keep finding this in various cases and appeals.

    Because a criminal defendant’s intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Id. Jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances, and it is presumed
    that a person intends the natural and probable consequences of his or her acts .

    My take on this is that while intent is an obstacle the state must address it would not be an overwhelming one in this case depending of course what is on the video. Even absent the video if the camera or video card was destroyed it still might meet the level of benefit lost to the owner.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    That poses a difficult question due to your last parenthetical (no evidence). Without evidence, by which I assume you mean all evidence (including circumstantial evidence), you can’t prove anything, much less intent.

    There are civil remedies, just not criminal ones.

    It would be easier to prove theft in this case than in most of the other cases, since the phone is “missing.”

  • IHateFatChicks

    So, a pig is a pig. Go figure.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Look, I’ve explained the rule to you, and applied the rule to the facts.

    That’s all I’m going to do. I’m not going to argue with someone who is getting his legal education from Wikipedia and the internet.

    It’s not robbery. If you don’t believe me, go and talk to a local attorney or better yet, an ADA.

  • Difdi

    Robbery is theft plus direct use or threat of force in securing that theft.

    If you can prove theft, and the theft occurred while in uniform and armed (or if physical force were used in the taking, such as snatching it out of someone’s hands) then you can also prove robbery. If you cannot prove robbery in those circumstances then theft cannot be proven either.

  • Bawk Bawkbagawk

    ok then smart ass, quit beating around the bush and tell us wtf you think he should be charged with.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Except you can’t prove theft. No intent to permanently deprive the owner. The officer listed information on his report about it, then followed up with another report when the property was lost. You have a civil action for trespass on chattels by a bailee, but no crime.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    We can do all sorts of hypos, many of which (like your example) are nowhere near the facts in this matter.

    In your example, you took the car forcibly and completely left the area. In the matter at question here, he took the property as evidence, and it subsequently became lost. In law, those differences are called distinguishing facts.

    The differences?
    1) He arrested the individual that had the property. In your hypo, you apparently left him at the side of the road.
    2) He had a duty, at a minimum, to safeguard the property, which involved taking it and reporting that fact. In your hypo, you had no duty to the property or owner.

    Look, y’all can play these word games all night and all day. I’m not going to waste my time with it – I’ve explained what the law says.

    The individual whose property was lost needs to retain a local attorney, and work out the matter with his or her help. He definitely should not be taking advice from over the internet.

  • Difdi

    Except you can prove theft. Theft is an unlawful taking without the owner’s consent.

    The officer had no lawful authority to make an arrest for the exercise of a constitutional right, and doing so to prevent the exercise of that right is itself a crime. This is a false arrest made solely to create a pretense to seize property without a warrant, which is an unlawful taking of property without the owner’s consent.

    There are three situations where an officer may lawfully seize a camera. Incidental to a lawful arrest, with a warrant or in an emergency to prevent destruction of evidence contained in the camera. This was not any of those three situations. Since the taking was not lawful, that makes it theft. Since the taking was by force from the owner’s direct possession, that makes it robbery.

  • Difdi

    Or you can apply the sayings “When legitimate justice becomes impossible, vigilante justice becomes inevitable” and “The tree of liberty must be watered from time to time with the blood of patriots and tyrants.”

    If the only way to achieve even momentary justice is to shoot early and shoot often, then there is no moral reason not to do so.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Except you can’t prove theft, because there was no intent to permanently deprive the owner of his property. The property was listed on the report, which indicates it was to be returned.

    Do you have a judgment showing that the arrest was unconstitutional? The presumption is that an arrest is lawful until a court rules otherwise. The arrest was for Obstruction and Resisting. While charges were dismissed, there has been no court finding of fact that there was no probable cause for the arrest, nor was there a finding that the arrest was in violation of the individuals constitutional rights.

    Since the arrest is presumed lawful, the seizure falls under the first exception you listed, incident to lawful arrest.

    Thanks for playing. Better luck next time.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Anyone who would contemplate taking a human life over a cellphone, when there has been no threat of death or serious bodily injury to the owner, has some serious moral shortcomings.

  • Difdi

    In other words, since the damage is the denial of rights then and there, legitimate justice is impossible.

  • Difdi

    Anyone who would defend an oathbreaker and a thief has some serious moral shortcomings.

    You don’t see anything wrong with the system because you’re part of the privileged class. A nobleman for the modern age.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    No, you file an IA complaint, and since the charges were dismissed, you file a 1983 suit. You go after him administratively and civilly. You use the court system. You just don’t go after something that you don’t have a realistic shot at, like the “robbery” or “theft” charge. If you feel that strongly about it, contact the FBI on a civil rights violation. It’s not likely to fly, but it is a legitimate claim.

    You get upset at officers filing inappropriate charges, but there is no difference here.

    Go after the individual in a legitimate manner instead.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    I haven’t defended either an oathbreaker or a thief.

    I’ve said all along that what he did was wrong, and he should be held accountable.

    Being held accountable does not include being tried on bogus charges. It most certainly does not include his paying with his life, as you seem to indicate is OK with you.

    But going back to the original statement, were I an attorney, I would not have a problem with defending him, or anyone else. The Constitution provides that defendants have a right to counsel, and I believe that they are entitled to the most effective counsel that they can get. It does not matter if the accused is a three time loser or a cop, they are both entitled to be defended, zealously and to the attorney’s fullest ability.

    If you don’t believe that, then you need to re-examine your moral compass.

  • Difdi

    I agree he has a right to a legal defense. But I also believe that his privileges and rights with regard to needing a defense should be the same as for any citizen, not extra rights.

    A private citizen is accused of a crime by a police officer and arrested. He will be taken to jail, fingerprinted, booked. His property will be stored, and depending on the nature of that storage (a car for example) he might be charged a fee for that storage. He must put up money to be released, and depending on bail amounts he might need to put up more money than his entire net worth. A bail bondsman’s fee is not refunded. He then goes to trial and frequently faces bogus charges as the prosecution piles on every charge they can imagine in hopes of pressuring the accused into a plea bargain. If he refuses the plea bargain, he faces the full gamut of bogus charges. If found guilty, he will spend a sizable percentage of the prescribed penalty in prison. If he is truly innocent, his lack of remorse will frequently be held against him at sentencing, increasing the sentence. When the citizen reaches prison, he will be in general population.

    The citizen may still be sued in civil court even if acquitted. If the court rules against the citizen, that citizen is on the hook for the full judgment.

    A police officer is accused of a crime and is typically suspended days or weeks after the accusation. He is often not arrested, but if he is, the judge at his bail hearing tends to set the bail low. His bail might be paid by his union. But to even get to the point of being charged, he goes before a review panel that makes a recommendation to the prosecutor on whether charges should be filed at all. The prosecutor is free to ignore the recommendation, but seldom does so. When the officer reaches his trial, his words will often be granted greater weight than that of his non-police accuser. The court may well dismiss the charges on the theory that he committed his actions while following orders in the line of duty. If convicted, a police officer typically receives wrist slap penalties such as probation, even if a non-police officer who committed the same crime would receive a much greater sentence from the same court. When the police officer reaches prison, assuming he doesn’t get probation, he will be segregated from the general population on the theory that his life would be endangered if he wasn’t segregated.

    Even if convicted, a police officer is difficult to sue in civil court for his actions, since the department can usually make the claim that his actions were in the line of duty, and therefore the doctrine of qualified immunity applies. The court might or might not accept such a claim, but if they do accept it the lawsuit is dismissed. Even if the plaintiff wins the lawsuit, the officer is rarely on the hook for the judgment, which is usually paid by the taxpayers one way or another.

    The equal protection clause of the constitution forbids creating special classes of citizen that have more rights or privileges than “ordinary” citizens. And yet, the system does so every day. If you were to pass a statute codifying the doctrine of immunity into statutory law, it would be struck down as unconstitutional immediately.

    I’ve said it before, I’ll say it again: This is justice?

  • Difdi

    Going by the Federalist Papers, which explain the intent behind the constitution, immediate self-defense against the oathbreaker would also be a legitimate manner.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    That’s real nice, except it is not accurate. Police officers are convicted and sentenced all the time.

    Baltimore Sgt Workley, convicted this week of perjury and malfeasance.

    FBI Agent John Connolly, convicted of murder in 2008 and sentenced to 40 years.

    Portsmouth, Va. Officer Coppolla, convicted of murder in 1978 and executed in 1982.

    Willow Springs, Ill. Chief Corbitt, convicted of accessory to murder in 1988 and sentenced to 20 years.

    NYPD Officer Pena, convicted of sexual assault and sentenced to 75 years in 2012.

    Culpepper, Wa. Officer Harmon-Wright, convicted of voluntary manslaughter and sentenced to 3 years (max sentence was 10).

    I found these in about 10 minutes. There are plenty of others. I can think of a number that I know about personally, where an officer violated the law and was tried and convicted for it. The sentences were always in the normal range of punishment.

  • rick

    I like Cato Institute’s police misconduct site which breaks down such things. Of great interest is conviction, incarceration, and average sentence length for police versus general public. Police have it easier in legal land.

    http://www.policemisconduct.net/statistics/2010-annual-report/

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    They also had provisions to execute anyone convicted of a felony in those days.

    Which Federalist paper? Can you cite it? I would have to see it in context, to make sure that it is not being inappropriately quoted.

  • Jeffery
  • Guest

    Looks like this was filed in Federal Court.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    I put a link to the actual pleading up on my blog.

  • Bawk Bawkbagawk

    if anyone is wasting your time genius, it is you. if you dont like answering questions then stop. better still stop putting yourself forward as some kind of legal expert. the arrogance aquired in your former career hasnt worn off at all, has it?

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Nah, I was arrogant before I was a cop. Mainly because I realized that I was smarter than you in particular and Canucks in general.

    In any event, Purcell did what I recommended (although I’m not claiming credit) and contacted an attorney who filed a 1983 action.

    The civil case has an actual chance of success, unlike the bogus charges that were being proposed.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    I don’t think he’ll be charged with a crime at all. I’ve made that clear, or is it too cold to think up there?

    Purcell is going after him civilly, like I mentioned above.

  • Bawk Bawkbagawk

    sure you were smarter than me, with PDs discriminating against people with an iq over 110. thats 25 points below my score cop. suck it. and if you want to run your mouth about canada. grow a pair and come up here. do it in a bar.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Such an articulate Canuck, with excellent grammar. The last Canuck I dealt with is doing 2-10, although he might be out on parole and deported by now.

    As to discriminating against high IQs? Internet BS. At my PD, we had a Ph.D. as an officer (he could make more with us than as a professor at the local university), one with a masters and working on his doctorate, and about a third had bachelors degrees.

    Besides, I am smarter than you. (142 is higher than 135).

    Thanks for playing.

  • Steve

    Looks like the local paper in his area picked up the story: http://swtimes.com/sections/news/man-sues-sebastian-county-sheriff’s-office.html

  • Guest

    They are deleting comments from the story. Use to be 4, now only 1. Irony, deleting comments from an article about the first amendment.

  • audax1

    Here is follow-up on the case styled Braden Michael Purcell v. Sebastian County Sheriff Bill Hollenbeck, and your story of Arkansas Sheriff’s Deputy Arrests Man for Video Recording, then Claims he “Lost” Phone.

    Link has link to the actual court case filed in Arkansas by Purcell againt the deputy and the sheriff.

    http://excoplawstudent.wordpress.com/2013/04/11/purcell-v-hollenbeck/

  • Advocate4wrngflycnvctd

    I agree! As I myself live in this unlawful STATE

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