COPS COMPLAIN ABOUT WHITE PEOPLE WASTING POLICE TIME CALLING 911 WITH IRRATIONAL FEARS OF BLACKS

[EffieBlack]

30. My position is not only fair and just, it is the the law.

That’s the kind of judgement call your looking for cops to make and be empowered to, and you have to think about how anything like that may be exercised in a way you don’t like and not just the way you want it to assuming everyone will have the same subjective standard you do.

Cops make these kinds of judgments all the time. It's called "establishing probable cause." See below.

Essentially when it comes to trespassing laws I am not aware of any states that have the laws written to allow the police to second guess a property owners reasons for trespassing a person or persons.

Maybe you're looking in the wrong place. It is well-settled federal law that cops not only are "allowed" but are required to "second-guess" property owners if they - the cops, not the property owner - believe there's not probable cause to make a trespassing arrest, no matter what the property owner says.

As a law enforcement officer, you no doubt know that, before making any arrest, the Fourth Amendment REQUIRES the police to determine that probable cause for the arrest exists. E.g., Rogers v. Powell, 120 F.3d 446, 452 (3d Cir.1997). What constitutes probable cause can vary from case to case, but in defiant trespass cases in Pennsylvania, the police must confirm the existence of all of the elements of the crime of defiant trespass set forth in 18 Pa.C.S.A.§3503(a):

1. knowing that he is not licensed or privileged to do so
2. enters or remains in any place
3. as to which notice against trespass is given by:
(i) actual communication to the actor;
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders

As I've noted before, the statute contains several "affirmative defenses" to the crime, which the defendant can raise during trial. One of the affirmative defenses to defiant trespass is that "the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises." 18 Pa.C.S.A.§3503(c)(2)

Notwithstanding the claims by some here that this affirmative defense is irrelevant to the arrest, the courts have clearly stated otherwise. In fact, the courts have expressly recognized that the existence of this affirmative defense is critical to the determination of whether the police had probable cause to make an arrest.

For example, the U.S. Court of Appeals for the Third Circuit, the federal appellate court with jurisdiction over Pennsylvania, and the U.S. District Court for the Eastern District of Pennsylvania (which includes Philadelphia) have explicitly held, in several cases, that, before making an arrest for defiant trespass, police officers MUST determine that probable cause exists to support an arrest and, if the potential arrestee could later raise an affirmative defense of compliance with all lawful conditions, the police must consider that defense before making the arrest. If they don't consider it, they have not established probable cause and the arrest is illegal. And if they consider it and believe that it's a valid defense, they also lack probable cause to make an arrest.

"The standard for probable cause turns not on the actual guilt or innocence of the arrestee, but rather, whether the arresting officer reasonably believed that the arrestee had committed the crime." Radich v. Goode, 886 F.2d 1391 (3rd Cir., 1989) The dispositive inquiry [is] whether an officer, 'acting reasonably ... under the facts and circumstances' known to him, would conclude that the affirmative defense applied. If the answer was yes, then probable cause did not exist.

In other words, before the police can make an arrest for defiant trespass, they MUST determine whether or not one of the affirmative defenses set out in the statute - in this instance, the compliance with all lawful conditions defense - would apply. If the suspect claims to be on the property lawfully and not to have violated any lawful condition of being on the property - which these men and several other people in the place did - the cops were required by federal law to consider their claim before making an arrest and their failure to do so meant that they did not have probable cause and, therefore, the arrest was illegal.

Where a potential arrestee argues, prior to arrest, an affirmative defense that is specifically included in the statute setting forth the elements of the crime, then an officer must act "reasonably ... under the facts and circumstances" known to him or her to determine whether that affirmative defense applied. Holman v. City of York, PA, 564 F.3d at 230 (3rd Cir. 2009)(quoting Radich, 886 F.2d at 1396), 96 F.Supp.3d 523 (E.D. Pennsylvania 2015)

Therefore, it is indisputable law that police officers do indeed have an obligation - an unequivocal one - to make a judgment about whether an trespass arrest is warranted and whether an affirmative defense might be applicable. If they fail to do that - i.e., if they just arrest someone because a manager said so without determining that the condition on which the manager is basing their complaint is valid, they have failed to establish probable cause and the arrest is, per se, illegal.

When applied to the Starbucks case, federal law required that the police officers confirm that the sole rationale the manager gave for wanting the men off of the property - the alleged No Buy No Sit policy - was a lawful condition for entry and remaining on the property. This was particularly necessary since several people told the officers that there was no such condition and, obviously, in order for a condition to be lawful, it must actually exist. When it became apparent to the police officers that the two men, along with several other people, were questioning the existence of this condition, the officers were legally required to determine whether there was really such a policy and whether it was a lawfully applied (e.g., not applied in an illegally discriminatory manner). As we all know, they didn't do so, relying instead only on the manager's assertion of a condition. Therefore, they failed to find probable cause under the law and the arrest was illegal.

This should put the argument to rest.