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There are now 48 comments... what are your thoughts?
  1. Gregory Bogosian says

    Is Judge Bahr a real judge? I thought that “judge” was just a nickname.

  2. Oddstar says

    Wow, Bahr is really ignoring his own responsibility for this fiasco, isn’t he? If he hadn’t pulled his gun, they probably could have just walked out. Just because the security guard had stopped flirting with the teller and was walking back to his post didn’t mean that he was going to somehow realize that Mrs. Flavors was in the vault. Or if he really did need to distract the guard somehow, why not fake a seizure or a heart attack or something? If he hadn’t been such a hothead, they might have just walked out.

    • I’m not sure we’ve been dealing with the same kind of hotheads. =P

      I don’t know if it’s just me being cynical about human nature after working part-time retail in high school, but the folks with quick tempers who tend to yell until their faces are a shade of red generally reserved for tomatos and fire trucks usually tend to be the ones least willing to admit personal mistakes.

  3. Y. Exeter says

    That outburst is really going to bite him in the courtroom bench, isn’t it?

  4. pgrmdave says

    If you have sharp, dangerous, but illegal weapons on you, can you plead the fifth if an officer asks you if you’ve got sharp things on you if they do so for the purpose of keeping themselves safe?

      • That gives me a question. If Judge had something dangerous on his person, such as a gun with its safety off in his pocket, or something he knew was poisonous or otherwise hazardous and posed a potential threat to the officer, would he not be obligated to mention it?

        It seems to me that if he says “Officer, there is a bare knife in my pocket.” and the officer cuts his hand on the knife taking it out it is the officer’s fault he was clumsy. Whereas if the officer feels something suspicious and reaches into the pocket and gets cut Judge recklessly endangered someone else because he knew the Knife was there, and had motive (revenge/hate/escaping in confusion) to harm the officer. While he could not guarantee the officer would get hurt, he knows it is a possibility. Failure to act is recklessly endangering another person is it not?

        It seems to me that pleading the 5th when you have information that can harm (or prevent immediate harm to) someone is a chutzpah defense.

        • I think that whether Judge has knowledge that could prevent harm and the motive to let the harm happen is meaningless. People don’t have a legal duty to protect others from their own ignorance unless the law explicitly says otherwise. So its perfectly legal for the judge to let the police officer hurt themselves unless there is a statute that says otherwise, whether the fifth amendment applies here or not.

          • The officer is asking for their own safety. I don’t know about legal liability in not disclosing it, but the only reason to not do it is because you’re hoping the cop hurts themselves. There’s really no point at all in withholding the info to “protect” yourself because the officer is absolutely going to find it anyways. And a police officer who gets stuck with a blade or, God forbid, a needle, is not going to be very happy. If you have a sharp on your person, just tell them. Most knives are legal anyways.

            • In some states, carrying a concealed weapon, even a knife, without a license is illegal. So in any of those states, a police officer asking a suspect if they have a weapon secreted on their person is an incriminating question if the suspect does not have a license for it. The officer’s motive has nothing to do with it.

              • What, exactly, is the point of not declaring it? Like I said, they’re going to find it. If not with the frisk, then with the strip search at the jail. You’re not giving up any incriminating information, you’re simply giving up information that will keep the officer safe.

            • I believe a knife longer than 3 inches is illegal in the commonwealth of Massachusetts unless you are a chef on the way to/from your place of employment.

              • On the other hand, you can carry a much longer blade so long as you don’t conceal it (I had to look this up as I had a sword as part of a costume and didn’t want to run afoul of laws while on the Metro).

              • Fixed-blade knives, of any length, are allowed to be carried on your person. Regardless of your profession.

                For reference (if it parses): www dot thetruthaboutknivesdot com/2013/04/know-your-knife-laws-massachusetts/

  5. Gregory Bogosian says

    @UsaSatsui: If the police find an illegal object on your person during a search, then depending on whether the search was reasonable or not, you still have a chance to get the illegal object excluded in the suppression hearing. If you admit to possessing an illegal object of your own free will, then the prosecution always gets to use that statement against you in court because if the statement is voluntary, its not compelled self-incrimination and is thus not subject to the exclusionary rule.

    • In that case, you could simply say “there is something in my right front pocket which could cause injury if mishandled”. That way, you’re giving enough warning to avoid liability, yet not admitting to possessing anything which could be illegal (who knows, ink pens might have become become illegal on airplanes when you weren’t looking…)

      • Liability for what? We still haven’t established that it is illegal to refuse to inform the police that you have something dangerous on your person when they frisk you. Just because something causes harm does not necessarily mean that it is illegal.

        • Tresspassing is illegal, but you can still get sued by people who are injured while illegally tresspassing on your property. Do I need to dig up that thing about a storeowner whose thief-trap injured a thief?

          • That doesn’t necessarily mean that people can be held liable for remaining silent when the police frisk them and hurt themselves. Remember, the right to remain silent is a civil right in this country. Feel free to correct me if I am wrong, but I was under the impression that the law of civil rights takes priority over the law of torts, all other things remaining equal.

            • My understanding (from the prior pages) is that yes you have the right to remain silent, unless you’re required to speak, such as in front of a grand jury or when you’ve already waived your right. However, isn’t deliberately failing to warn of danger basically the same as colluding in the danger? Lie by omission due to failure to speak when asked (illegal to lie to a police officer)?

              Side topic, how are you getting notified of updates? Or are you checking back regularly?

              • 1. I have a different understanding of the fifth amendment from the previous pages. I thought that the government can only require you to speak to them if you wave your fifth amendment rights, or they guarantee that nothing you say can be used against you in court. So a grand jury cannot make you testify unless they grant you immunity from prosecution based on your testimony beforehand.
                2. The Common law does not recognize any general duty to protect others from peril. So no, refusing to warn of danger is not colluding in the danger, or lying by omission. However, The Common law does impose a duty to rescue others from hazardous situations on the individuals who created the hazardous situations. So you could argue that Judge Bahr has a duty to protect the police because he created a hazardous situation by concealing weapons on his person. However, you would have to define a hazardous situation first to know whether carrying concealed weapons counts as creating a hazardous situation in this case. So your conclusion is not necessarily wrong, but your argument is not as clear or comprehensive as it needs to be to justify that conclusion.

                3. I just check for updates every day. Sorry that I cannot be more helpful.

              • If the search is unlawful, then so is anything gained as a part of that search. That would absolutely include any admission that you had a knife on you. So again, it’s pointless.

                And for what it’s worth, common law DOES recognize that you have a duty to not endanger others through your actions. By not disclosing the sharp object on your person, you are putting the police officer who is searching you in danger – and regardless of the validity of the search, he’s just doing his job.

                But you know what? Toss all that out. It boils down to basic decency and respect for another human being. You’re willfully letting another person (who is just doing their job and really has no choice in the matter) risk hurting themselves on an unknown object based upon the almost-zero chance that they might not notice it. Civil rights or not, that’s just scummy, and as someone who had to search bags for sharp objects once in a while, it really annoys me someone would rather risk someone else being hurt than get caught doing something wrong.

    • My two cents: If the search or the arrest leading to said search was ruled unlawful, wouldn’t any statements made during said search (e.g. “Yeah, a handgun with the safety off in my belt”) be thrown out under the exclusionary rule as well?

      Also, that runs on the assumption that the search can be ruled illegal and running on that chance. I suppose that could be a possibility during a frisk, if you can prove that the circumstances leading to the frisk were bad or that the suspicion/threat to them was unreasonable.

      On the other hand, if it’s a search incident to lawful arrest, they’re finding it — either on the street or at the station — and they’re using it. You may not have an obligation to say it’s there, but the officer doesn’t have any obligation to cut you any slack either — and if they injure themselves after you’ve decided not to say anything about it, they’re going to be /pissed/.

      I wonder if Nathan has anything to say about this.

      • Hmm, no reply button on the msgs of @Gregory Bogosian or @UsaSatsui. :-( So, I’m replying here.

        I should re-read the Grand Jury thing; I thought it said something else.

        @UsaSatsui sums up my thinking. Plus, if the person about to self-injure is a (young) child, the mind-your-own-business position gets worse. My thoughts are along these lines: willfully allowing others to come to harm is the type of behavior which you’d expect from someone who is likely to commit a crime; it’s anti-social, just like committing a “real” crime. Could a prosecutor use it at sentencing to show personality, or during trial to show capability to act anti-socially? If you’re told “you’re under arrest”, you can safely assume that anything will be found anyway, whether the arrest and search are legal or not.

        Ok, I have a question: Let’s assume that no answer is the same as a “Yes”, how would that change your search method, without asking any more questions?

        Thanks, GB.

        • 1. A prosecutor could definitely make that argument. I have no idea how persuasive a jury or judge would actually find that argument.

          2. What the cops find doesn’t matter if they find it illegally. Assuming that the defense attorney is worth the price of their suit, Anything they find illegally will be excluded.

          3. If no answer is the same a saying yes, then you can still say “I refuse to answer that question on the grounds that doing so may incriminate me.”

          • I think I’d be forced to assume that you probably had something dangerous, or that the act of searching would be dangerous, so in that case, so I’d taze you and then have bomb squad cut your clothes off. Then send you the bill when nothing of interest was found. :-)

            Anyway, I don’t like that answer. Surely, if you’re under arrest and the item is going to be seen anyway, there’s a safe way to answer that question without making things worse for either party.

            • 1. I am not saying that there are no police officers who would ever do that. Its just that if I was a detective in the internal affairs division of the police department, then I would be very interested in finding out what made the officer think that that course of action was necessary.

              2. Why must there be a safe way to answer that question? Why can’t you just calmly, politely, and clearly decline to answer the question without fear of reprisal?

  6. Gregory Bogosian says

    @Usasatsui: 1. Then you and I have a different conception of how the law works. I was under the impression that since testimony is not evidence, the laws of evidence do not apply to testimony. So even if all of the evidence gets excluded because the search was bad, the prosecutor can still call the arresting officer as a witness and make them repeat what you said to them under oath.

    2. I know that the common law prohibits us from willfully endangering each other. However, unless I am completely misreading your comment, you are arguing that action and inaction are equivalent as long as they have the same consequences. I do not believe that that is the case.

    3. I was never trying to argue that it is ethical to allow a police officer to endanger themselves while they frisk you. I was only trying to argue that it is legal. You are absolutely correct in arguing that informing the officer of anything dangerous that you are carrying is the ethical thing to do. Its just that in my view, the law and morality exist in a vacuum from each other, at least in most cases. That is why we have so many obscure laws and regulations that have nothing to do with promoting what most of us would intuitively consider moral conduct.

    • What about product liability, where some items have warning labels which generally seem silly and self-evident?

      Are you speaking solely of criminal law, or are you also thinking of civil law?

      I remember a saying: “you can’t legislate morality”.

      • 1. With product warnings, like on alcohol and tobacco products, there is already a statute or regulation that explicitly defines the content of the warning, and the circumstances in which the warning has to be given. As far as I know, there are no statutes or regulations that explicitly require civilians to give police officers certain warnings when being frisked or searched by the police.

        2. There are cases in both the criminal law and the civil law where inaction can be punished. In civil law, if an employee of a firm sexually harasses another employee of the firm, and management does nothing, then the employee who was sexually harassed can sue the firm for sex discrimination. The only case in the criminal law that I know of where inaction is a crime all on its own is when you fail to file your taxes. So there are situations in which the law punishes inaction. Nevertheless, I am not convinced that a civilian refusing to inform the police of something dangerous on their person is one of those situations.

        • Let’s say that I’m walking along, minding my business in true innocence, when an unexpected stranger comes up to me, sticks a small box into my pocket, and says “here’s the dead-man’s switch which will blow up everything if opened”, then rushes off before I have time to say that he must have mistaken me for someone else. A moment later, I’m accosted by a cop who handcuffs me and says she’s goinv to search me and do I have anything dangerous. I follow your advice and say nothing. The cop rolls her eyes and searches me, finding the box, which she opens; news headlines are monopolized worldwide for the next few months.

          • That depends, are we talking about a stop & frisk or a full-search incident to arrest. If it is just a stop & frisk then the officer can only reach into your pocket and remove its contents if they can tell that it is a weapon or contraband. So we need to know whether there is anything that would lead the officer to believe that the box is a weapon or contraband. If there is such a thing, then tell the officer the truth. If there is no such thing, then it doesn’t really matter what you say or don’t say because then they can’t actually remove the box from your pocket and open it.

            On the other hand, if this a full-search incident to arrest, then there is nothing to stop the officer from reaching into your pocket, taking out the box, opening it and blowing everything up. So then you should just tell them the truth. However, the police need probably cause before they can arrest anyone. So I would be very interested in knowing what gave the police officer probable cause to arrest you, or at least knowing what made them think that they had probable cause.

            • I think you just conceded that point, although I admit in a very contrived fashion. We could change the scenario to one where the officer’s family members are wearing bomb vests.

              Let’s assume that other person escaped during arrest, and the officer saw the item get tucked into your pocket and the other person subsequently disappeared (got into a car, whatever).

              Product liability: I meant labels such as “coffee is hot!”.

              • 1. You should still tell the officer that you have the bomb detonator. However, that has nothing to do with averting legal liability and everything to do with ethics. You still did not create the situation. So you still cannot be held legally responsible for the situation. There is still no general duty to rescue others from peril in the common law.

                2. I have never actually seen one of those product labels in real life and know nothing about the law behind them. Sorry about that.

  7. KW says

    You realize that you recognized the guy who gave you the small box and mild-mannered you agree with the group’s goals and means: here is a way to be involved, so you let the officer open the box.

    • In that case you definitely have the necessary mens rea, culpable state of mind, for both conspiracy and accomplice liability. The problem is actus rea, culpable act. In most jurisdictions an overt act is always required for someone to be guilty of conspiracy. Unless I misunderstood the conspiracy section accomplice liability works the same way. An overt act is usually defined as an act that can easily be proven with evidence and one from which criminal intent can easily be inferred (wikipedia). To my mind failure to act is never an overt act, because criminal intent cannot be inferred from inaction alone. So even with all the intent to cause harm in the world, inaction is still legal.


  8. WJS says

    The Judge asking for a lawyer reminds me of the saying that “a lawyer who represents himself has a fool for a client”. Is that actually true, or is it a myth? The biggest reason to need a lawyer seems to be be ignorance of law and procedure, which wouldn’t apply, but a lawyer representing a client is obviously going to be under less stress.

    • It’s true, for a whole host of reasons. A lawyer doesn’t automatically know “law and procedure,” not all of it. Any given attorney is going to be more familiar with their area of law than a layperson, but who’s to say that their practice area is applicable to the situation? They might be better able to look something up, but a little knowledge is a dangerous thing, and an attorney’s passing familiarity might lead them to assume information a layperson would actually ask an expert about.

      Second, as you noted, an attorney representing a client is coming at the situation from the outside. They can be objective. That objectivity is absolutely vital when counseling a client or planning a case strategy. An attorney who’s too personally invested in a case risks assuming information they “want” to be true, or might ignore problematic information because they personally don’t have an issue with it.

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