Arresting a police officer.... Attn Malum

Discussion in 'GA Laws and Politics' started by foshizzle, Jan 29, 2007.

  1. foshizzle

    foshizzle New Member

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    I'm making this post in response to a comment that Malum made at the recent GCO appearance at the Federalist Society.

    I may have taken this out of context, but that is why I'm asking for this info. What Malum mentioned was something to the effect that Georgia's firearms laws are so screwed up that one could conceiveably make a citizens arrest of a police officer for carrying a firearm. Of course, there was a specific legal term for this, but it eludes me. I saw a few of the law students nodding as if it made sense to them, but it made no sense to me.

    I was trying to explain Georgia's goofy firearm laws to my girlfriend, who is a police officer and I mentioned what I heard at the meeting. Of course, I looked dumb because I couldn't fully explain it. I think that if I knew exactly what it was about that I could use it as one of those common sense arguments for the reform of GA's gun laws when I talk about it at work or socially.

    :?:
     
  2. Rammstein

    Rammstein New Member

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  3. Adam5

    Adam5 Atlanta Overwatch

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    Does that mean that if I were to get arrested for carrying in Stoney River (not that I would ever do such a thing :roll: ) I could have the officer arrested for carrying there too?
     
  4. foshizzle

    foshizzle New Member

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    I'm not dumb enough to think I can go around arresting police officers, since we all know how far that will go. That's not what I'm asking for... it's purely for informational purposes only. I knew I should have asked for clarification while I was there! Doh!
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    foshizzle, I blab on at the mouth so much some times that it is hard to remember what I say . . .

    But that does not even sound slightly familiar. Maybe somebody else who was there will chime in and jog my memory . . .
     
  6. foshizzle

    foshizzle New Member

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    It was something you said to Mr. Knight? The other lawyer on the board of GCO. I think that was his name. one of his pet peeves about the GA law. It was after the actual presentation I believe... in the small gaggle by the door. Darn, I knew it was some crazy law term... I figured you would remember it... I should have asked before when it was fresh in my mind.

    It wasn't so much that you could arrest a police officer, but that that was the implication. Maybe someone else will remember. Or else I have truly lost my mind.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I remember a discussion about not negativing any exemptions to prosecute, so that even with a firearms license you could be arrested and prosecuted and have to prove in court that you meet an exception to the Code.

    How is that for getting it backwards?
     
  8. foshizzle

    foshizzle New Member

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    Maybe that's what it was... but I know the other gentleman from GCO related it to a police officer. Maybe the police officer would have to prove that he met an exception to the code? Of course, he would be able to do so, but he could be asked the question and brought to court if one desired?

    I think that's what it was. "negativing any exemptions" seems enough to make my brain swirl.

    Anything else to that besides confusion? I remember at the time that I really wanted to ask more about it.
     
  9. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Arresting a Cop?

    Hmmm.... in theory, can a citizen arrest a law enforcement officer?

    Not with a warrant. Only sworn LEOs can execute warrants.

    How about a probable cause (warrantless) arrest for a crime committed in the presence of the offended citizen? Well... in theory... it's not prohibited as far as I know. Practially, it would be a really bad idea. And the odds of some magistrate judge issuing an arrest warrant upon YOUR affidavit outlining the circumstances of the incident as you saw it... zero. It just ain't gonna happen.

    Now, how would a cop be in violation of the law for carrying a gun? I suppose it could happen, at certain facilities like schools, airport and bus terminals, train stations, military installations, prisons, etc. If the cop were just there on personal business, not actually on duty and in the performance of his police duties. The general "public gatherings" law doesn't apply to cops, so that's out.

    And how would a citizen know what the cop was doing at such a gun-free facility for, anyway? How would the private citizen be able to tell the difference between a detective wearing his gun into the school to interview a teenage suspect and a detective just wearing his gun to school for the heck of it while he goes to meet his daughter's teacher to discuss her absenteeism. Is the citizen free to ask the cop why he's got a gun in the school? I suppose. Does the cop have to answer such questions? Nope. Is he likely to? Not at all. Will his refusal to answer help establish "probable cause" for a weapons violation? Not much.
     
  10. jrm

    jrm Sledgehammer

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    I think I can clear this up, because I was the offending blabber.

    Before we get to the part about arresting LEOs, let me give the background. GA law says that it is not necessary to negative an exception in a prosecution for violating prohibitions against carry or concealed carry. In legal parlance, this means the exceptions are "affirmative defenses" rather than "elements of the crime." In my estimation, this is bad public policy.

    The practical application of the affirmative defense policy we have is this: When a LEO seeks a warrant against you for carrying a firearm, all he has to say in the affidavit is, "I saw X carrying a firearm." He doesn't have to mention that "X showed me his GFL," because the elements of the crime do not include lack of existence of a GFL. So, the magistrate reviewing the warrant application should have no interest in the existence of a GFL. Likewise, if the officer chose to arrest you for carrying a firearm, he would have probable cause to do so just by seeing you carrying, even if you screamed over and over that you had a valid GFL in your wallet. If you were thrown in jail and had a probable cause hearing, you theoretically would be precluded from offering up the fact that you had a GFL, because affirmative defenses are properly raised only at trial.

    I'm not saying you could be convicted, because you would have a perfectly good defense. I'm just saying you could be validly arrested, and even could have a warrant validly issued against you. The solicitor likely would drop the case like a hot potato when he saw the facts (but you'd still have a weapons arrest record).

    Now to the LEO example. The law exempts LEOs from the prohibition against carrying. But, guess what? The same rule applies when prosecuting a LEO for carrying a weapon. It is not necessary to negative an exception. So, IN THEORY, one could make a legitimate citizen's arrest of a LEO, just for carrying a weapon. As written, the law does not require you to inquire if the person is a LEO or not. The fact that you see someone carrying a weapon (outside of home or place of business, etc.) establishes ALL the elements of the crime. The LEO would be on his own to prove that he was a LEO and therefore exempt from the crime.

    The same thing almost would apply if you went to a magistrate and applied for a warrant against a LEO. I say "almost" because the law once again exalts LEOs above the law here. LEOs can apply for arrest warrants "ex parte," meaning without the subject knowing about it or having a chance to refute the probable cause. Ordinary people wanting to get a warrant against someone have to give the subject notice, so the subject could show up at the hearing and say, "I'm a LEO, you idiot." Of course, the fact that the subject is a LEO and therefore exempt is supposed to be irrelevant and inadmissible, but get real. What's really unfair is that you would not have the same opportunity to show up at a warrant hearing against you and say, "I have a GFL, you idiot."
     
  11. Tinkerhell

    Tinkerhell Active Member

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    :lol:

    That's funny. Simply said the issue is the difference between being arested and being convicted. You can, legally, arrest someone if it looks like they have done something illegal & then they have to wait to prove their innocence at trail. Technically - obviouslly it wouldn't be allowed to go that far but...

    I just love the law... *shivers*
     
  12. SheriffOconee

    SheriffOconee New Member

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    He left out the fact that we have the right to appear at a Grand Jury that attempts to indict us for acts committed on duty, to hear the witnesses testify and to offer our own testimony as well.
    I do know of a case where a private citizen had an arrest warrant issue for an on duty deputy sheriff, signed by a Superior Court Judge, without notice to the deputy (not my agency but one close by)
    The case was dismissed by the DA.
    ETA: under Ga law only a Superior Court Judge can sign a warrant for a peace officer for a crime alledgely committed on duty.
     
  13. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    "affirmative defense"

    That "affirmative defense" stuff is just a thinly-veiled ploy to shift some of the burden of producing evidence upon the defendant. It may one day be declared unconstitutional, although I would support amending the constititon to allow it. (Right to remain silent my butt ... if you had a legal reason for doing what you did, you had better say so, or remain silent at your peril).

    The rule is the same for charges of possessing controlled substances or dangerous drugs. The cops arrest just based on possession of the drugs. They don't have to ask whether you have a valid prescription for that drug. When the district attorney's office writes up an accusation or drafts a grand jury indictment, they don't have to say "...and he didn't have a prescription from a doctor."

    However, the suggested draft language for indictments/ accusations for violations of 16-11-126 or 128, according to the Prosecuting Attorney's Council manual, DOES say that the defendant carried said weapon without a valid GFL issued by the Probate Court. So that would seem to make it an element of the offense. At least, it makes it a material part of the charging instrument, and it is not mere surplusage.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: "affirmative defense"

    Exactly. :wink:
     
  15. jrm

    jrm Sledgehammer

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    Re: "affirmative defense"

    My thoughts, too. While I understand the burden of proving a negative (didn't have a license, didn't have a prescription), we are talking about crimes, here. The state is supposed to have a heavy burden. And, the defendant is presumed to be innocent.

    If the drug in question is one for which a prescription is legally available, the state should have to prove the defendant didn't have a prescription for it. That may sound harsh, but think of the flip side. Do we really want everyone with a Tylenol 3 in his pocket or in her purse subject to arrest? I don't think so.

    That's part of the problem with crimes of possession. It's hard to make them fair for the defendant yet provable by the state. We really should get away from the notion that some "things" are bad and merely possessing them should land one in prison. Doing something bad with the "thing" is what ought to be a crime.
     
  16. Macktee

    Macktee New Member

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    Re: "affirmative defense"


    Excellent thought. Truly excellent!

    Too bad our political leaders will never, in a brazillion years, adopt that line of reasoning! It makes too much sense.

    They'd rather posture about being in favor of law and order ... staunchly defending the rest of us from evil.
    :bsflag:
     
  17. Watch_Their_Hands

    Watch_Their_Hands New Member

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    Yes, Macktee, so true. They wear the guise of defending us from all the boogeymen out there that mean to do us evil and harm...all the while perched on the fence of "I'm on the side of whomever can keep me in my current job."

    We know it, and they know it. An incredibly sad state of affairs. :ianal: But I know what I know.
     
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re:

    This is late to the game, but I do not think that the "need not negative any exemptions" language applies to license holders. It does, however, apply to LEOs and others on the 16-11-130 list, which means the case for arresting an LEO is stronger than the case for arresting a person with a firearms license.
     
  19. Fallschirmjäger

    Fallschirmjäger I watch the watchers

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    Re: "affirmative defense"

    Y'know, the same thought was occurring to me as I closed my account at Wachovia. They had these tiny (quarter-sized) signs on the door, one with a firearm, one with a flaming cigarette, and I forget the third if there was one.
    Smoking is against the rules at Wachovia, but they won't ask anyone to exit the building due to their having cigarettes and matches in their pockets. It's the action of smoking that is prohibited.
    Conversely firearms, in and of themselves are against the rules. It doesn't matter if it's doing absolutely nothing harmful, apparently just the mere presence of such an inanimate object is enough to cause harm to others through shear magical .......evilness.


    Defining a 'thing' as evil, absent of any use or intent, goes against nearly everything I've grown to believe in.
     
  20. CoffeeMate

    CoffeeMate Junior Butt Warmer

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    If the "need not negative any exemptions" is bad law, then why do we have it? Is it similar to the PG statute in that it provides "broad discretion in prosecution" (that is, "capacity to oppress")?