Law as it relates to pyro's

[nbk2000]

Given the increasingly hostile enviroment which pyros now have to labor in, it would behoove us to know our rights when dealing with the piggies.

So, to further this, I've begun copying articles from various piggie journals, so that you may learn of their tricks. Mind you, these articles only apply to American Forumites, since everyone else lost their rights a long time ago. ;) But we're close behind you guys. :(

As I get them scanned in, I'll be posting them here for your enlightenment. :)

+++++++++++++++++++++++

Consent to enter a home does not automatically equal the right to search it.

Police page 64-65, Jan '03

If a homeowner allows you to enter his or her home, this is not the same as being granted consent to search that home. In addition, as a general rule, if you ask for and are granted consent to search a specific area in a home, the search is limited to that specific area, If you go beyond that area, any evidence seized will in all likelihood be suppressed.

Misdirection
The case of Haskins v. Municipality of Anchorage, 22 P.3d 31, 2001 Alas. App. LEXIS 91 (2001) provides an example.

Two Anchorage police officers were on their way home at the end of their shift when they heard their dispatcher report a hit-and-run. The two officers were close to the location of the accident, so they drove to the scene. When they arrived to investigate, witnesses told one of the officers that the suspect vehicle, a Chevrolet Suburban, had just pulled into a residential driveway.

When the two officers knocked on the door of the residence, they were met by a woman, who later
proved to be the defendant's wife. One of the officers told her about the crash and asked if she had been driving the Suburban. She told the officer that she had not been driving, but her husband had just arrived home.

One of the officers then asked the woman if he and his partner could talk to the husband. The woman told the officers to come into the entryway of their split-level home, out of the cold. Then she directed them to go upstairs while she went downstairs to get her husband. Although the officers initially begun to go upstairs, they reversed their course and came back down to the landing and followed her into the basement.

The officers found the husband in a downstairs bedroom. And they started to interview him. Based on his statements to the officers, his physical condition, and the officers' observations of his vehicle, they arrested the husband and charged him with driving while Intoxicated.

Limited Consent
Later, the defendant successfully moved to suppress the evidence stemming from the entry into his home when the appellate court concluded that the entry into the basement could not be justified as a consensual search. Even though the defendant's wife knew the police had come to speak to her husband, she only gave the officers permission to come in and wait while she fetched him. The wife's limited consent constituted the boundary of the officers' freedom within the house.

The fact that the wife failed to protest when the officers followed her into the basement did not constitute the affirmative act of consent required by the fourth Amendment. More specifically, the court stated that the defendant's wife "...did not give the officers permission to follow her into the interior spaces of the residence or to otherwise roam the house in search of her husband."

The appellate court was also convinced that, as a matter of law, the facts did not support a "protective" search. Although a warrantless protective search may sometimes be justified, such a search will be upheld only in the most serious situations.

The bottom line here was that the officers could not use the consent to search exception to the warrant requirement unless the facts presented established that the scope of the consent was clear and unambiguous. If the officers in this case had wanted to go beyond the limited area of the consent, they should have asked the defendant's wife for permission to do so or made the issue much clearer during their initial discussions with her. If there was some evidence that the defendant was seriously injured, or other facts constituting exigent circumstances, the decision would have been different.

Subtle Coercion
You may also run into problems during "knock and talk" investigations if it's not clear that you have either the right to enter or, subsequently, the right to search the home.

Consider the case of State v. Reinier, 628 N.W.2d 460 (Iowa 2001). Officers went to a home to conduct a "knock and talk" investigation. The home had an enclosed porch, with another door entering the main house through the porch. Officers knocked on the porch door, and when a woman opened that door, the officers entered the enclosed porch.

Inside the porch, the officers told the woman that they were investigating for drugs and asked for consent to search the house. They asked her if she had any drugs in the house, and when she admitted that she did, they told her they were investigating major dealers and manufacturers.

.Standing inside the enclosed porch, the officers told the subject that with her admission they now had probable cause to get a search warrant. The subject orally consented to a search. When the officers found methamphetamine and other drugs inside the house, the subject was charged with several offenses.

Later, the defendant successfully moved to suppress the evidence, claiming that the officers' entry into the porch was a warrantless search, and that her later consent to enter into the home was involuntary.

The Iowa Supreme Court held that, although the "knock and talk" procedure could be an effective and legitimate technique, the State failed to prove that the officers' entry into the porch was accomplished by consent and, therefore, the entry was illegal.

When the officers knocked on the enclosed porch and the defendant opened the door, they just walked in. They did not ask at that point for consent to enter and speak to the defendant. This, they should have done.
It is also important to recognize here that an initial illegal entry, standing alone, does not automatically make the subsequent consent to search invalid, but it is considered as a factor in determining whether the consent to search a house is, in fact, voluntary.

On this note, the court found that the officers used "subtle coercion" to obtain the consent to search the house. This subtle coercion consisted of suggesting that the "knock and talk" was a normal everyday procedure and implying that the police were only interested in meth labs. Therefore the consent to search was not voluntarily given.

Because the court will look to the "totality of the circumstances" in determining if a consent is voluntary, it is important for you to ensure that the surrounding circumstances indicate a knowing and voluntary atmosphere, free of any direct or implied forms of coercion.

[nbk2000]

When does a voluntary conversation between a citizen and an officer become a seizure?

Police Page 81-83, March '03

When you approach a vehicle on duty, such as a parked car, and engage in normal conversation with a driver, a constitutional seizure does not occur. However, when you stop a motor vehicle, you have, of course, "seized" it under the Fourth Amendment.

Both of these examples are black and white. But what about a situation that falls into the shades of gray between these two scenarios? As the case of People v. Rockey, 752 N.E.2d 576, 2001 III. App. LEXIS 469 (2001) shows, the distinction between a voluntary encounter and a temporary seizure may not always be so clear cut.

Suspicious Turns
People v. Rockey began when an officer who was driving an unmarked vehicle through a residential village between 12 and 1 a.m. observed a pickup truck with its lights on parked in an alley. As the pickup truck began moving, the officer was behind it and she saw the driver make several turns. The officer concluded that the driver was uncomfortable because of a patrol car in the rearview mirror and decided to follow the vehicle around the block. When the pickup truck turned into a driveway, the officer pulled up and stopped in the street just prior to the driveway.

Later when she was asked what was suspicious about this vehicle, the officer noted the time of morning and the proximity of the alley to an auto dealership that had been burglarized numerous times. Asked what facts
led her to believe the defendant was breaking into cars since she was not on the lot, she replied that she had none but felt she had a duty to check out the situation.

Seeing the stopped police car, the defendant got out of her vehicle and started walking toward the officer. The officer got out and met the defendant about "half way" near the end of the short driveway. She then asked the defendant if she lived at the address, and the defendant said her ex-boyfriend lived there. During this conversation, the officer smelled a "very strong odor of an alcoholic beverage" and noticed that the defendant "staggered somewhat."

The officer asked her for identification because of her suspicion regarding her presence in the alley, the odor of the alcoholic beverage, and the staggering. In court she later stated that this was her "probable cause to believe that the defendant might possibly be under the influence of alcohol."
After obtaining the defendant's driver's license, the officer told the defendant to wait while she went to her patrol car, made a call for assistance, and ran a record check. When later asked what the defendant had done wrong to be detained, she answered, "At that point she hadn't done anything wrong." But when the officer saw the defendant's name, she remembered that the defendant had previously had a suspended license, and she wanted to know if the defendant's license was still suspended. The license came back valid, but the officer charged the defendant with DUI/DWI.

Motion to Suppress
In court, during a motion to suppress evidence, the defendant argued that a seizure took place in the driveway for Fourth Amendment purposes and that there were no articulable facts to warrant a investigatory detention. In granting the defendant's petition, the lower court stated that it "did not believe that the officer's suspicion in this instance was reasonable," and granted the defendant's motion to suppress.

On appeal, the State first argued that the officer never stopped the defendant's vehicle because the officer merely approached the defendant after the defendant had parked her vehicle. The court agreed that the initial encounter
when the defendant stopped her truck in the driveway and then approached the officer was not a stop or "seizure" for Fourth Amendment purposes because the defendant's conduct appeared to have been voluntary and there was no show of authority by the officer at that time.

However, a stop occurred when the officer took the defendant's facially valid driver's license and told her to wait until she could run a record check of the license. A reasonable person would not have felt free to leave once her license was taken from her.

Next, in examining whether the stop was justified, the court explained that a person cannot lawfully be seized un-
less there are reasonable, objective grounds for doing so. Further, to sustain an investigatory stop, the officer must be able to point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

In this case, the officer testified that she had no facts leading her to believe that the defendant was breaking into any cars. Also, the officer later conceded that there were burglaries in the county in the previous 10 days, but none were in the residential village.

Furthermore, although the officer "felt" that the defendant was trying to avoid having a vehicle behind her "for some reason," the facts known to the officer pointed to no more than an impermissible hunch. There was also no sound basis to believe that the defendant was evading a police officer merely because the defendant drove around the block.

Thus, the stop could not be sustained on the basis of a reasonable suspicion that an offense was being committed prior to the defendant's stopping in the driveway.
Nevertheless, the State argued that the seizure was supported by probable cause to believe the defendant was driving under the influence of alcohol. The court rejected this argument as well.

The officer had not observed the defendant violate any laws or drive in an erratic manner, and the signs of intoxication for probable cause to develop in an officer's presence are ordinarily far more substantial than the two mentioned in the officer's testimony. Although the officer stated the defendant was "possibly" under the influence of alcohol, her reasons for the detention focused on the officer's ultimately incorrect hunch that the defendant was driving with a suspended license—a suspicion that had no reasonable, factual basis at the time of the stop.

The court decided that to conclude otherwise would be to approve of the detention of any driver at any time to run a license check if the officer thought the driver had committed an offense on a prior occasion. The constitutional test of reasonable and particularized suspicion did not support such a proposition.

Simple Consent
Looking back at the facts, this case provides a good example to use for training purposes on a number of fronts. The court's decision contains a good analysis of the difference between a voluntary encounter and a temporary seizure, and also shows how courts will closely scrutinize the totality of factors in determining if a reasonable suspicion of a crime was present. It also reiterated the proposition that a stop will not be supported on the basis of a mere hunch of criminal activity alone.

Lastly, this case reveals a number of situations that could have been handled differently, either during the actual interaction, or during the officer's testimony. For instance, there was no reason why the officer in this case could not have asked the individual if she minded if the officer checked her ID. A simple consent could have remedied the whole situation. Moreover, the officer probably could have developed the evidence of impaired driving in a much better light, had she been focusing on the issue when she began to observe some of the telltale symptoms of alcohol impairment at the scene.

In any case, as the facts here show, an officer must always stay aware of changing circumstances that might transform a seemingly voluntary encounter into a temporary seizure.

[nbk2000]

Having homemade CD's on your carseat is a pretext for police to search your car, without your consent, on the basis of it being possible pirate copies.

Fortunately, the conviction was reversed, but don't let that comfort you.

http://www.courts.state.va.us/opinions/opncavtx/0250053.txt

[NoltaiR]

If I didn't know better I would say you were an attorney :)

Seeing as how you understand the value of precedence in our legal system... and you don't seem to mind spending a few hours typing.

[nbk2000]

The joys of copy/paste (and OCR) are many.

I'm not an attorney (insert BARF smiley here), but I've been through enough court proceedings to pick up a thing or two.

One thing I've learned is that trying to become a lawyer, while in prison, is just a way of killing time, as you never get out by any legal pleadings you might make once they've got you in there.

Because The System isn't designed to listen to the pitiful pleadings of the condemned who are powerlessly behind bars, but to the powerful and connected who are outside, where they can influence things with money and favors.

I saw plenty of lifers wasting their time in appealing their cases, some having spent a decade on the effort and accummulating foot-lockers full of court papers, who were, of course, still in prison at the time I saw them there.

Face facts...if you're in prison, you're going to be staying there until your sentence is done, unless you've got a lot of money and/or power (political influence/public opinion) on your side.

If you don't have that, than don't waste time on the legal appeals...start thinking of escape.

[NoltaiR]

In the words of my old Business Law II professor:
There are four ways to deal with a sentence and they can be described as the "4 Ps".

Parole: Generally eligible to leave after completing 1/3rd the sentence on good behavior
Probation: Avoid jail/prison altogether or at least shorten the length of it by having a probationary period (often in conjunction with additional costs)
Plea Bargain: Agree to plead guilty in order to receive lesser charges or lesser punishment for the same charges.
Pardon: Hope you are on really good terms with the president

And on another note, the appeals process can be the greatest thing in the world to a man who has been charged with capital murder and has been sentenced to death. Even if you know that you can't escape the sentence, you can often delay your demise for several years, often decades.

[Edit: Added one more detail]
I remember there was a particular day when we spent an entire class talking about absolute/strict liability torts. For those of you who aren't familiar with law, a tort is any act that harms another person, persons, their property, or their reputation. Torts are divided up into three categories: accidental, intentional, and strict.

The use of explosives or blasting is considered (at least here in Texas) a strict liability tort in which anyone using them (even with proper permit) accepts that if anyone else is harmed, the user assumes full liability. This can extend much further than one might think.

To be liable for damages, you wouldn't necessarily have to cause someone injury. The blasting could have gone deep enough into the ground that you disrupted the water table. Maybe your blast had such a shockwave that you broke glass windows a mile away. Your blast could even be blamed for disturbing natural wildlife that may not return. Any of these can raise some hefty lawsuits if a prosecution was to bring in a claim in a civil court.

Being that this is strict liability, the jury (or judge) wouldn't even have to decide whether the user was negligent or not. All that would need to be proved was that somehow the damages were either directly or indirectly linked to the blasting.

And just FYI:
Two other popular strict/absolute liablity torts are the use of dangerous chemicals (this is often brought up in trials dealing with chemicals dropped from cropduster aircraft), and possession of a pet with dangerous propensities.

Any pet naturally living in the wild (such as a tiger, snake, wolf, etc.) or any domesticated animal that has shown dangerous behavior previously would be considered to have dangerous propensities.

[Charles Owlen Picket]

It's my understanding that in terms of absolute liability torts, possession of explosives under certain circumstances fills the bill (exclusionary of ATF compliance, etc). But how would that relate to possession of a known toxin (cyanide) in a populated area for industrial purposes (metal plating, etc)? {In the example they also used the term toxin, explosive, chemical capable of producing bodily injury in and of itself...I don't have the citation or link on hand; I'm just making conversation here}

In a case law presentation I heard of a tort being focused around an individual who possessed a toxin in a non-industrial setting. How would that be any different from a hobby laboratory?

[NoltaiR]

It is likely that if the case was pertaining to the possession of the toxin, he/she probably was being charged criminally for not having proper permit.

Also you should note that what we might term as a 'hobby laboratory' here at theforum probably has questionable legality.

The strict liability torts refer to wrongful acts in a civil setting where the victim would have to be the prosecution, not the state.

To state it in laymans terms: use explosives and you are responsible for anything that could go wrong

This sounds a little obvious, but most states use the doctrine of comparative negligence (my state is one that does not). Normally if damages were done, and the prosecution was partly at fault because of their own negligence, then they would forfeit some of the award money. In absolute liability cases that doesn't exist.

[tmp]

Like NBK, I've run afoul of the law a few times. It still amazes me how a
prosecutor can turn a mole hill into a mountain. In my last case the
persecutor may as well have said "No ! Your Honor, the defendant isn't
supposed to defend himself ! He's a fucking gun nut who violated our sacred
pistol permit laws as you well know are reserved for the wealthy among us !".
He didn't say that, of course, but I still went to jail after the judge lectured
me on the supposed evils of gun ownership. I was under the impression that
these assholes were supposed to recuse themselves from ANY case where
personal prejudice may be used unfairly against the defendant.

A year later, same judge, same prosecutor, politically connected defendant -
probation before judgement, not a day spent on probation, allowed to keep
his guns. One of this defendant's charges was attempted murder. All
charges dismissed ! YOU BET MONEY TALKS !

As for civil torts, it's whatever the court system, or worse a jury, determines
that to be. Is it any wonder that the sheeple are willing to kiss the system's
ass ? Gunowner = Nutcase. Pyrotechnician = Bomb making terrorist !

[Charles Owlen Picket]

To state it in laymans terms: use explosives and you are responsible for anything that could go wrong


Good stuff....OK, let's extrapolate further along those lines.....The defendant had in their possession a chemical which is toxic (drain cleaner, whatever). It is within the domicile and a third party receives harm due to it's existence and THEIR use of the chemical (child gets chemical in eyes, etc from "playing" with container). Chemical is stored in a manner that must be accessed and is not in plain sight / readily available (stored in closet). The tort is upheld? Is this not "flip of the coin" civil liability?

[tmp]

The ruling would be along the lines that the defendant should have known
that the child could get access to this toxic compound and that the
defendant is responsible for "child proofing" his/her home. Another judgement
could be made against the manufacturer if the compound was in the
manufacturer's container and the child opened it with minimal effort, again
for not "child proofing" their product. Sue happy trial lawyers love this shit !

[NoltaiR]

Good stuff....OK, let's extrapolate further along those lines.....The defendant had in their possession a chemical which is toxic (drain cleaner, whatever). It is within the domicile and a third party receives harm due to it's existence and THEIR use of the chemical (child gets chemical in eyes, etc from "playing" with container). Chemical is stored in a manner that must be accessed and is not in plain sight / readily available (stored in closet). The tort is upheld? Is this not "flip of the coin" civil liability?

I love this thread! (I hope I am not going so far as to hint at what I might do for a living...)

When ever there is a question of who was actually responsible because both parties were equally at fault, then that is why we have the court system in the first place.

In your particular case, there wouldn't be much of a decision to be made even if the owner of the chemical(s) were covered by proper permit.

A part of the tort of negligence covers children doing such things as "playing with chemicals" as you say. It's called an "attractive nuisance". Generally this term is used when speaking about the tort of trespass, but it would be the deciding factor here.

An attractive nuisance is anything that you possess, that a child may want to play with (and could potentially cause them harm). By law, you are required to baracade such items because if a child were to be injured by them, the owner of the domicile would be held liable. Also just having signs up stating "stay out" aren't an effective defense. The courts have always upheld that children don't pay attention to signs.

If you are saying that another individual was the one who left the chemical and the owner of the house had no knowledge, then the person(s) who left it would be held liable.

In all other cases the user is the one held responsible. If I leave out a can of rat poison and a 25-year-old decides to eat it and dies, the courts would say it was his fault entirely. If a 5-year-old did the same, I would probably spend sometime in prison for negligent homicide. That is a criminal offense that can be sued both by the state (which results in prison time, fines, criminal record) and in civil courts if the 5-year-old was someone else's child.

----------------------------------

So to answer your specific case, there would be very little time spent in court deciding the verdict. In fact they would probably spend more time deciding the proper sentence than deciding who was liable.

[EDIT: I just now read tmp's reply]

If the manufacturer didn't properly contain the item (good luck finding this happen, every manufacturing company is going to protect their ASS-ets), then there is another form of liability ruling that will happen. It is called the doctrine of contributory negligence (do not confuse this with comparative negligence that I brought up earlier) and IS followed in my state (and probably yours too). Contributory negligence is when more than one defendant is called and more than one defendant is found guilty. The jury then decides what percentage of fault each defendant should pay damages for.

***Note: contributory negligence is also referred to as "several liability"

Example (This is completely hypothetical):
Case: Airplane crashes off the end of a runway. Almost everyone dies; one of the survivors is the pilot.

Prosecution: Families of the victims
Defendant A: The pilot (who mishandled the airplane and his medical certificate wasn't current)
Defendant B: Air traffic control (who failed to mention that the runway had damages to it and was possibly unsafe to land on)
Defendant C: Airport Management (who failed to fix the runway)

The judgement:
Defendant A is found to be 50% liable for damages
Defendant B is found to be 40% liable
Defendant C is found to be 10% liable

The reason that the pilot was mostly at fault was because he wasn't flying legally anyways (the medical wasn't current) and once he was low enough to notice the damaged runway, he proceeded to try to land. ATC was second most at fault because they should have mentioned the damage even before the airplane took off from the departing airport. The airport management was found least at fault because although they should have fixed the runway, the airplane could have landed at an alternate runway that was safe.

Here's the catch:
There is a total of a $10 million reward to be divided up between families. Legally each defendant should pay their percentage. Well the pilot happens to be broke and has no assets to seize (what he does have falls into exempt property, which I am not about to get into explaining). The tower is controlled by FAA employees, and the federal government has immunities against being sued (I also have a background in aviation law). Defendant C is a multimillion dollar corporation that owns and operates several airports. If Defendant A and B cannot be taken for 90% (or $9 million), then Defendant C is responsible for the full amount. Legally Defendant C can then sue A and B for the part they owe, but that wouldn't do much good since they still won't have the money.

[Charles Owlen Picket]

Now if I'm following this appropriately, contributory negligence (in the example of the child & poison) could / would also follow the parent(s) of said child as they would have a reasonable expectation of household dangers.
However if the parents are the ones bringing the tort before the court would not a certain percentage of judges intercede and demand that the parents be held accountable to a degree with the home owner?

I am starting to think that unless some level of sanity is instituted soon, tort reform will result in tort elimination.

[NoltaiR]

No. The legal system has been around for a very long time. The law we follow in the United States is common law (with the exception of civil law in Lousiana) which is based on the law in historical England which involved the King and the commoners.

The term "judge" was adopted during this common law time to make reference to a group of people who had the consent of the king to make laws in different territories. "Judges" were the biblical tribe of Israel that were in charge of making law decisions. The name was just copied.

Anyways, my point is that with the law based on past case decisions (precedence), I think everything is more or less cut-and-dry. It really depends on which lawyer does more research.

Finally, the parents in your case would NOT be held liable for the chemicals in their own house if they had no possible knowledge of its existance and and it was placed there by someone else. In all actuallity, the parents would probably be the resulting prosecution.