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Discussion Starter · #1 ·
In many discussions here, one "rabbit hole" that we sometimes go down is the idea that an affirmative defense to a criminal prosecution is something that police officers in the field need not concern themselves with, as they can arrest people based on whatever facts and circumstances known to the officers (or reasonably believed by the officers) if those facts would establish at least "probable cause" that all the "elements of the offense" are met.

That's not new or controversial.

How here's something that's more of a gray area: Suppose you are doing something that meets all the elements of a crime, but you have an affirmative defense that is not obvious to witnesses or cops. Do you have to tell the cops about it, right there on the side of the road? What if you exercise your right to remain silent? Must the cops investigate whether or not you seem to meet any of the statutory affirmative defenses in that law? If you ASSERT such a defense, must the cop believe you, or can they doubt you are telling the truth and proceed with your arrest?

Well, the 7th Circuit for the U.S. Court of Appeals, in a case about Indiana's juvenile curfew law, found the law to be unconstitutional on its face because it discouraged young people from exercising their 1st Amendment rights, EVEN THOUGH the law had numerous exceptions in it.

The trouble was, those exceptions were worded to be affirmative defenses, not elements of the offense. Thus, law officers could chase down, detain, drug test, and interrogate the kids, and even make them submit to an evaluation by a DFCS social worker BEFORE choosing to either believe or reject their assertions of an affirmative defense (If the kids made any such assertions at all).

Here's what the COURT said officers could do once they have "probable cause" to believe the offense had been committed:

"But there is no reason to think that the ... affirmative defense will shield [them] from arrest...

A police officer has probable cause to arrest when "the facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense."Under Indiana law, "reasonable suspicion exists where the facts known to the officer, together with the reasonable inferences arising from such facts....
Once a police officer discovers sufficient facts to establish probable cause, she has no constitutional obligation to conduct any further investigation in the hope of discovering exculpatory evidence.
Eversole v. Steele, 59 F.3d 710
, 718 (7th Cir.1995);

see also Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir.1998) (validity of affirmative defense is irrelevant to whether or not police officer sued for false arrest had probable cause to make arrest);

Hodgkins II, 175 F.Supp.2d at 1146 (collecting cases).

A police officer may not ignore conclusively established evidence of the existence of an affirmative defense, Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999), but the officer has no duty to investigate the validity of any defense. Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689 2695, 61 L.Ed.2d 433 (1979).

In fact, both the defendants in this case and the court below, ruling in their favor, conceded that a police officer need not investigate an individual's claim of an affirmative defense to determine facts unknown to the officer. ...

...Thus, a police officer who actually sees a sixteen-year-old leaving a late-night religious service or political rally could not properly arrest the youth for staying out past curfew. But... if a police officer stops a seventeen-year-old on the road at 1:00 a.m., and the teen informs the officer that she is returning home from a midnight political rally, the officer need not take the teen at her word nor attempt to ascertain whether she is telling the truth. Lacking first-hand knowledge that the juvenile indeed has been participating in First Amendment activity, the officer is free to arrest her and leave assessment of the First Amendment or any other affirmative defense for a judicial officer.


[All emphasis added]
 

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Lawyer and Gun Activist
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Discussion Starter · #2 ·
Citation: Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir., 2004)

P.S. The Court noted that other jurisdictions have curfew laws that impose a duty of investigation on the officer to inquire about affirmative defenses, and only proceed with an arrest if the officer reasonably believes that no affirmative defense applies in those circumstances.
 

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Discussion Starter · #4 ·
Since Georgia's laws on silencers,
machine guns,
short-barreled rifles,
short shotguns,
or destructive devices

all say that possessing one of these is the crime
and proper registration with the federal government is an affirmative defense,

I'm always sure to keep a copy of
my Form 1 or Form 4 paperwork with me.

And I'll waive any 'right to remain silent' to the extent necessary to produce this paperwork and show the officer what it is and explain its significance to him or her.


Pic of my ATF form 4 tax paid registration wrapped around the body of my silencer which all neatly fits in a nylon belt pouch.
Hand Glove Gesture Finger Thumb
 
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