Tag: Law

During the course of the Right to Work protests on December 11th, 2012, a mob of union protesters brought down and subsequently destroyed a tent that the Michigan Chapter of Americans for Prosperity had put up.

You would have thought that with the amount of Michigan State Police troopers around, they would have put a stop to it. Unfortunately, they had not shown up until after the tent had been brought down and torn up. Even then, it appears as no arrests were made.

Was there any other action that could have been taken given this situation?

Although it sounds like something only seen in the movies, Michigan does permit the making of an arrest, by a private citizen, of an individual who is has committed or who is in the commission of a felony crime.

Here is the statute, in its entirety, which describes the situations where a private citizen may make an arrest:

764.16 Arrest by private person; situations.
Sec. 16.

A private person may make an arrest--in the following situations:

(a) For a felony committed in the private person's presence.

(b) If the person to be arrested has committed a felony although not in the private person's presence.

(c) If the private person is summoned by a peace officer to assist the officer in making an arrest.

(d) If the private person is a merchant, an agent of a merchant, an employee of a merchant, or an independent contractor providing security for a merchant of a store and has reasonable cause to believe that the person to be arrested has violated section 356c or 356d of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.356c and 750.356d of the Michigan Compiled Laws, in that store, regardless of whether the violation was committed in the presence of the private person.

Although (b) provides for an arrest not made in the presence of the arresting citizen, we would highly advise against that situation. Rather, we would recommend an arrest be made only if the crime was committed in the person's presence. In addition, we would also highly advise that the commission of the crime be recorded, as well as the arrest itself.

Furthermore, once the arrest has been made, it is imperative that the detained individual be delivered to law enforcement as quickly as possible:

764.14 Arrest by private person; disposition of arrested person; complaint.
Sec. 14.

A private person who has made an arrest shall without unnecessary delay deliver the person arrested to a peace officer, who shall without unnecessary delay take that person before a magistrate of the judicial district in which the offense is charged to have been committed. The peace officer or private person shall present to the magistrate a complaint stating the charge against the person arrested.

The hand off to law enforcement is also something that we would recommend recording as well. In addition, another requirement of the arresting citzen is as follows:

764.20 Arrest; private persons, duty.
Sec. 20.

A private person, before making an arrest, shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, except when he is then engaged in the commission of a criminal offense, or if he flees or forcibly resists arrest before the person making the arrest has opportunity so to inform him.

Note that there could be potential liability concerns for the citizen making the arrest. This is why we recommend the entire arrest be recorded - from the commission of the crime all the way to the hand off to law enforcement.

So given the information we have, let's revisit the question above: Could a private citizen have arrested those involved in the destruction of the AFP tent?

Before we attempt to answer this, let's be clear that this article should not be construed as providing legal advice. With the legal caveats out of the way, let's perform some analysis.

Remember that in order to perform a citizens arrest, a felony must have been committed. Does the destruction of AFP's tent constitute a felony?

According to the Michigan Penal Code (excerpt):

750.377a Willful and malicious destruction of property; personalty.
Sec. 377a.

(1) A person who willfully and maliciously destroys or injures the personal property of another person is guilty of a crime as follows:

(a) If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $15,000.00 or 3 times the amount of the destruction or injury, whichever is greater, or both imprisonment and a fine:

(i) The amount of the destruction or injury is $20,000.00 or more.

(ii) The person violates subdivision (b)(i) and has 2 or more prior convictions for committing or attempting to commit an offense under this section. For purposes of this subparagraph, however, a prior conviction does not include a conviction for a violation or attempted violation of subdivision (c)(ii) or (d).

(b) If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the amount of the destruction or injury, whichever is greater, or both imprisonment and a fine:

(i) The amount of the destruction or injury is $1,000.00 or more but less than $20,000.00.

(ii) The person violates subdivision (c)(i) and has 1 or more prior convictions for committing or attempting to commit an offense under this section. For purposes of this subparagraph, however, a prior conviction does not include a conviction for a violation or attempted violation of subdivision (c)(ii) or (d).

Essentially, malicious destruction of property (there isn't any question of the malicious intent of the perpetrators, as can be seen by the numerous video evidence out there) of more than $1,000 is a felony. Tents similar to the one that was destroyed cost thousands of dollars.

Therefore, based on our own analysis (again, this is not to be construed as legal advice), we have believe that the destruction of the tent that was put up by Americans for Prosperity would constitute a felony, and those involved in its destruction could be apprehended by a private citizen.

With that said, the malicious destruction case would be made at the point union members were cutting up the tent. Prior to that, union members were pulling on supports and cutting straps - something that may or may not have constituted a felony crime.

An argument could be made about endangering the safety of the tent's occupants, but for considerations of article length, we won't address that issue here.

Considerations
Although the Michigan Code of Criminal Procedure is fairly cut and dry, the reality is that there are many things that need to be considered before, during, and even after an arrest made by a private citizen.

Liability
One thing to keep in mind is that the private citizen making an arrest can be subject to serious liability issues if things aren't done properly. This is why we highly advocate recording the entire incident, and witnessing the crime as compared to making an arrest because you "heard" that the guy committed a felony.

Even if things are done properly, you could still face civil and/or criminal litigation down the road. This is why it never hurts to consult with an attorney prior to, during, and after action is taken. Freedom Forged Security Consulting can provide an attorney on site for exactly these types of situations.

Practical Considerations
Another thing to keep in mind is that situations where a citizens arrest might be required (such as the Right to Work protests), the individual arrested may have a significant number of "friends" around him. These "friends" might not take too kindly to one of their own getting arrested, much less so by a private citizen.

This is why it would be an extremely good idea to have a group with you to provide coverage. Situational awareness is also key.

Are they [the arrestee's "friends"] just making threatening statements gestures? Are they actively trying to interfere with the arrest? Are they becoming violent?

This is where quick decision making is key. Although threatening gestures and speech probably wouldn't justify a draw down (by those who are armed), it may be necessary for your safety if they are actively trying to interfere and are getting violent. If things are real bad, you may be in the unfortunate position where a decision is made that a shoot needs to happen for your safety, or others who are being attacked.

Again, this is why we highly advise having video recording going on - however, at this point it's not just to provide coverage for the arrest itself, but for the defensive draw down and/or shooting should it occur.

If there is a draw down or a shoot, seek legal counsel IMMEDIATELY. We can't stress this enough. We can almost guarantee with 99.999% certainty that you will be detained by law enforcement, at least for a short time while things are sorted out. In the event you can't immediately access an attorney, do not talk about what happened to law enforcement or otherwise. It will be tempting to proclaim the legitimacy of the shoot, but it is in your best interest to remain quiet until you have counsel present.

We hope that this article was informative. The issue of security at high profile events, such as those similar to the Right to Work protests, can be complex and dynamic - this includes the potential legal issues that may arise. That is why Freedom Forged Security Consulting is here - to assist you in securing your public promotion of liberty.

If you have any questions about what we can do for you, or are just looking for more information, don't hesitate to look around our site at http://security.freedomforged.com

If you have non-legal questions or would like to set up a meeting, don't hesitate to contact Jason Gillman Jr. at jason@freedomforged.com or 231-649-0258

Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien.  

The Democrats have not liked the EFM law since it had its new dentures installed under the Republican legislature, and Governor Rick Snyder.  Once the realization that bloated contracts might actually be dissolved to preserve solvency for some governments, activists in labor and the donkey party got to work on placing a ballot measure before the voters.  The underlying hope of course, would be to inundate the airwaves with imagery of the starving kids of municipal workers and their uncertain futures.  Riding the guilt train all the way to the election where likely another 7 other ballot initiatives will reside.

But once again, someone forgot to dot an 'I'.

Or at least forgot to check the validity of the petitions used with the canvassing board BEFORE collecting 226,000 signatures.  Perhaps if they had done so, they might be a little more satisfied with the result.  Norm Shinkle, one of the board members, weighed in:

"Outside the meeting room, Shinkle said it was clear that Stand Up for Democracy's petitions did not comply with state law and that the group should have had the documents' format approved by the board before it started collecting signatures.

"None of this would have occurred today if they had their petition approved like almost everyone else does," he said. "The petition was defective." "

Defective.  Big 'D' .. 'efective'.

Its easy it seems, for the Dems to cry foul.  Party lines!  Partisanship! Favoritism! Those rotten Republicans!!!

Yet when one looks at the vote, split as it was along party lines, one should also weigh in the rule of law. And in doing so, see the partisanship FOR BREAKING THE LAW. Or perhaps bending it.  To assume that the Republicans are unfair by rejecting it against the will of the 'other' partisans, is to ignore the fact that the 'other' partisans are asking for an acceptance of the petitions, even illegally.

It matters only if it matters to you.

At least that is the way some cases have been ended.  If you have no compelling interest, why might you bring a suit?  What does the ACLU do when it wants to prove a point? It shops out for a plaintiff, the "victim" of some particular law or abrogation of what the ACLU might perceive to be rights, either real or imagined.

From the article:

Lawyers for product manufacturers now fear clients are liable for up to $500 for every tube of mascara or box of garbage bags marked with an expired patent--an error that turns out to be quite common.

In recent months, would-be plaintiffs have been fanning out across retail stores and the Internet searching for expired patent numbers on everything from toothpaste to toilet plungers.

Now that's classy. Of course the reasoning?

The people behind the suits say they see themselves as consumer advocates, helping to protect legitimate inventors from giant corporations who are pretending to have patents to keep competitors from stepping on their turf.

"It chills competition, it misleads the public and takes away from the credit patent holders deserve," says Daniel Ravicher, founder and executive director of New York nonprofit Public Patent Foundation, which has filed numerous suits.

Consumer advocates? Chills competition?

Let me give some insight: Joe Public isn't going to care about a patent. It means essentially nothing to them. The only people that would care about it are entities looking to produce an identical or similar product. At that point in time, all the said entity has to do is do a quick search to see if the patent is expired or not. You can even type a patent number into google and it will pull it up.

When Richard Nixon ran for President in 1968 after six years out of public life and living in California, a popular slogan described him as "The New Nixon: Tanned, Rested, and Ready."

State Sen. Gretchen Whitmer (D-East Lansing) announced recently that she was running for Michigan attorney general. I can't comment on her tan or her readiness, but after eight years of doing nothing in the legislature, she should certainly be well-rested.

Using the state's legislature website, I searched records going back to 2001, Whitmer's first year in the House. I examined every bill for which she was the primary sponsor. In the House and Senate to date, Whitmer has sponsored 128 bills. Of these, a grand total of 3 made it to a vote, and 2 were passed. The third was defeated 81-22 in the House. She has not had a single bill make it to a vote since June 29, 2005.

If you're keeping score at home, that's 2 passed bills out of 128 attempts, which is a .015 batting average, enough to make Hank Aguirre blush.

Every sport has an off-season (except possibly for Davis Cup tennis, which never seems to begin or end; it just keeps going). Electioneering used to have an off-season, when the voters could relax, watch TV, listen to the radio, and drive without being assaulted by an endless array of commercials, jingles, and road signs.

Those days are over.

Now, the end of one election merely signals the beginning of the next election cycle, when candidates begin lining up support and money for their next try at electoral glory. The parties, fundraisers, websites, and chatty emails begin slowly, then build to a headsplitting crescendo from the primaries to the general election.

And so, we now have candidates jockeying for position in the 2010 race for statewide office. As voters, it's tempting to tune them out, but as responsible voters, we need to take some interest in the candidates now, if only to sort out the contenders from the pretenders.

At this stage, however, there is little to go on. Without position papers, press conferences, and debates, it's not easy to tell what many candidates stand for. In some cases, there is a track record of accomplishment or futility that can inform and enlighten us.

Ah, futility. That brings us to Gretchen Whitmer, a state senator from East Lansing, who is apparently interested in running for attorney general next year. What does her record reveal about her and what kind of attorney general she would be?

Read on...