Miranda and the Public Safety Exception

As I wrote previously, the Miranda warning is a fiction created by the Supreme Court of the United States (SCOTUS). Nowhere in the Constitution will you find anything even close to a requirement to advise criminal suspects of their rights.

Miranda is grossly misunderstood. Movies and television give the impression that Miranda must be read immediately upon arrest or the arrest is invalid. This is far from the case. Miranda is two pronged. The first prong is that a person must be in custody. The second prong is that a person must be being asked investigative questions. A person not in custody can be freely questioned without having been read the warning as long as the person consents to the questioning.

Let us examine the following scenario:

A peace officer on patrol spots a bandit snatching a purse from a lady. The peace officer chases down the bandit, captures him, and then hauls him to jail. The peace officer never asks the suspect any questions about the crime and the Miranda warning is never read.

Good arrest? Bad arrest? Will the case be tanked due to the lack of the warning?

The answer is good arrest with no Miranda issues.

Now, if the peace officer, after having captured the suspect, had chosen to ask the suspect questions about the crime, the warning would have been required. Failure to do read the warning would have resulted in any evidence obtained as a result of the questioning being thrown out of court. It is important to note that the initial arrest would still be a good arrest.

Since we have gotten all of the above out of the way, we can move on to the point of this piece which is the public safety exception. This exception is triggered only when there is immediate danger. It originated in the case of New York v. Quarles, 467 U.S. 649 (1984), in which officers responding to a reported rape approached a suspect in a grocery store and captured him after a short chase. During a frisk of the suspect, an empty holster was discovered, and upon being asked where the gun was, the suspect gave up the location. He was later Mirandized and formally questioned.

At trial, the court tossed the disclosure of the firearm’s location as well as all resulting questioning. The ruling was appealed and initially upheld, but the SCOTUS reversed the rulings of the lower courts and held that the initial questions were prompted by an immediate concern for public safety.

Note the use of the word “immediate”. The Court didn’t establish a blanket exception here. It only established an exception when there is an immediate public safety concern. Once that initial immediate public safety concern is alleviated the exception no longer applies. In the scenario of the Quarles case, once the firearm was located the officers read the warning prior to formally questioning the suspect.

So, suppose a bombing suspect was hiding in a boat in someone’s back yard, and a swarm of cops descended upon the scene to capture him. Whilst doing so, if they asked about bombs and weapons in an attempt to safely secure the suspect and the scene, then such questions would be good to go. However, when that suspect, should he survive his wounds, is formally questioned about his involvement in the bombing and ties to terror organizations, Miranda will most definitely apply.

None of this would matter in the first place if SCOTUS had not created the Miranda warning in the first place.

Oaths of Office: Sheriffs, Deputies, and Jailers (and a rant)

One of the things that I like about this blog software is that I get to see what search terms are leading readers here.  Sometimes these search terms inspire a new posting, and this is one of those instances.  I have gotten quite a few hits lately seeking information on the oath of office for Sheriffs and Deputies.  Please note that the oath is the same for Sheriffs and Deputies alike:

STATE OF GEORGIA

OCONEE COUNTY

OATH OF OFFICE FOR DEPUTY SHERIFF

I, ____________ do swear that I will faithfully execute all writs, precepts and processes directed to me as Deputy Sheriff of the County, or which are directed to all Sheriffs of this State, or to any other Sheriff specially, I can lawfully execute and true returns make, and in all things well and truly, without malice or partiality, perform the duties of the office of Deputy Sheriff of Oconee County, during my continuance therein, and take only my lawful fees.

I do further swear that I am not the holder of any unaccounted for public money due this State, political subdivision or authority thereof, that I am not the holder of any office of trust under the government of the United States (except Postmaster), nor either of the several States, nor any foreign State, and that I am otherwise qualified to hold said office according to the Constitution laws of Georgia, and that I will support the Constitution of the United States and of this State.  So help me God.

Signed: …………………………………………….

Sworn to and subscribed before me, this ___  day of _____________

………………………………………..

Sheriff, Scott R. Berry

Oconee County Georgia

Jailers also take an oath of office; so, I have included it here as well.   A Deputy Sheriff who is assigned to the jail takes the oath of office for both positions.

OATH AND BOND OF JAILERS

Oconee County Sheriff’s Office

 

 I, _____________,do swear that I will, well and truly do and perform, all and singular, the duties of jailer for the County of Oconee; and that I will humanely treat prisoners who may be brought to the jail of which I am keeper and not suffer them to escape by any negligence or inattention of mine, so help me God.

 

Signed: _____________________ Date:______________

 

____________________

Scott R. Berry , Sheriff

Personnel who are hired initially to work in a jail have six months from their date of employment to complete an 80 hour Basic Jail School.  In order to become a certified peace officer, those personnel must complete the 408 hour Basic Law Enforcement Training Course.  If a person is already certified as a peace officer and gets assigned to a jail, they have six months to get certified as a Jailer.

Now, for one of life’s little injustices, Deputies are eligible for the Peace Officer’s Annuity Benefit Fund (POAB).  Jailers are not.  So, a Deputy assigned to the jail is eligible for POAB, but a Jailer doing the exact same job is not.  Why?  Because the State of Georgia says so, that’s why.  It should be noted that the State has seen fit to include state correctional officers in POAB but not Jailers.

Proposed Qualification Course

The Georgia Standard Qualification Course (file download), commonly referred to as the “SQC”, is the state approved course for peace officer firearms qualification. Agencies may submit alternate courses to the Georgia Association of Law Enforcement Firearms Instructors (GALEFI) for approval with the requirement that the course must “meet or exceed” the standard set by the SQC. The course is shot using the SQT target.

GALEFI takes a very literal interpretation of “meet or exceed”.  As such, I have matched all of the distances and movement requirements; however, instead of shooting the course in a fixed amount of time and using percentage points to determine a score, my course is shot against a running clock  with time added in the lower scoring portions of the target rather than point deductions.  The shooter’s score is their total adjusted time for the course of fire.  For lack of a better name, I am calling the course Time Trial (file download) for now.

I would appreciate shooters helping me determine a minimum passing score for the course. If you are willing, please shoot the course and let me know your time on it. Also, please let me know your current classifications if you shoot competitively. If you are a current or retired Georgia certified peace officer, please let me know what your average scores on the SQC are. For those of you thay aren’t peace officers and shoot the SQC for comparison, please let me know your scores on it as well.

If this proposed alternate course gets approved, I will use it as a core to build a course with more movement and alternate positions.

***Note: after receiving several questions about the minimum passing score, I have bolded the above paragraph.  I am seeking data to determine what the minimum passing score should be.  I need to show a correlation between the skill set needed to pass the SQC to the score needed to pass Time Trial so that I can show that the course “exceeds” the standard set by the SQC.

Leverguns: Getting the Job Done Since 1860

Recently, I sent out a flier for a Lever Action Patrol Rifle course that I am teaching in March of 2013. I received a response from an officer who was appalled that I would teach such a course. In fact, he stated that in doing so, officers might actually take it as an endorsement from me that the lever action platform was worthy of use as a patrol rifle.

My response: I am endorsing the lever action platform as being worthy of use as a patrol rifle.

The lever action platform has been a viable personal defense platform since it came onto the scene in 1860 in the form of the Henry Rifle, and the Henry was itself a reworking for the Volcanic Repeating Rifle. Confederate soldiers facing the Henry Rifle in battle called that it “that damned Yankee rifle that you load on Sunday and shoot all week”. Note: The above is not a slight to the Spencer Rifle and others of the same era, rather it is in homage to the direct lineage of the platform as we know it today.

The trend towards the use of patrol rifles was jump started by the North Hollywood Bank Robbery in which two gunmen clad in body engaged officers from the Los Angeles Police Department in gunfight lasting for over 40 minutes. The LAPD officers were armed with pistols and shotgun, and their rounds could not penetrate the body armor worn by the bandits. Eventually, officers went to a nearby gun shop where the owner provided AR 15 rifles, and LAPD SWAT officers arrived on scene and ended the battle. I doubt that any of those officers on scene that day would have turned away a Marlin 336 as being unworthy.

Several years ago, a friend of mine was on patrol as a Deputy Sheriff in a rural, northeast Georgia County. He ended up in a protracted gunfight in which the bad guy had a rifle while my friend had his duty pistol and a shotgun. I doubt that he would have turned away Winchester 94 as unworthy had someone happened upon him and offered it to him.  (Note: Since I originally published this piece, I have spoken with the above Deputy, and he assures me that he would have very much welcomed a levergun had one been available to him.)

I am not making an argument that more modern options such as the AR platform be completely abandoned in favor of the levergun. I am simply making an argument that the lever action rifle remains an effective option for use as a patrol or personal protection rifle. In fact, there are some areas in which I believe the levergun offers some advantages.

The biggest advantage that a lever action rifle offers in the firearms market at the time of the writing of this article is availability. The talk of gun control legislation has resulted in a shortage of AR platform and other similar rifles. In the past few weeks I have ventured to out to as many shops I could get to, and the only AR platform rifles I could find still in stock were all class III rifles requiring extensive paperwork and an approval process that is measured in months. However, in several shops I have been able to find leverguns readily available for prices as low as $250.

To go along with this from both an individual peace officer and agency administrator standpoint, the price point makes a fine old levergun an attractive option to perform this function. That trusty deer rifle can do double duty, and agency that might not be able to afford outfitting all of its personnel with AR platform rifles could more readily purchase leverguns.

Another advantage of the traditional levergun is that it fires heavier bullets than most of the modern semi-auto platforms commonly used as patrol rifles. So as not to overly-bore those readers who for some reason don’t spend their free time study ballistic performance, what this translates to is that the rounds typically pack more punch and more readily penetrate barriers. This factor comes into play in such instances when a peace officer might have to shoot through a vehicle body or windshield to end a violent confrontation. I have personally witnessed standard .223 ammo (standard AR platform ammo) disintegrate when going through such barriers, but considering a standard .30-30 rifle will be hurling a projectile three times the weight of a standard .223 round this issue is substantially alleviated.

While on the subject of ammunition, I would be remiss if I did not point out that leverguns are also available in several popular pistol calibers such as .357 Magnum and .44 Magnum. While such rounds do not have the range of a rifle round, common loads in each can achieve notable penetration, and considering the elements and range predominant in the proverbial “average gunfight” the effective range such firearms is up to the task.

One should also not discount the inherent reliability of the lever action platform. One need not worry about gas systems or magazines. Simply work the lever and keep going whilst shoving rounds into the tube or action as needed.

Nothing in the above should be taken as an argument for the wholesale adopting of leverguns in place of other platforms. Also, I most certainly am not making an argument concerning what one needs other than that I steadfastly believe that each and every peace officer should go on duty with a rifle at hand. This is about expanding capability, and a rifle is more efficient at ending a violent encounter than is a pistol.

***Note: The above was written with a law enforcement audience in mind. I also wholeheartedly endorse and advocate the use of the lever action platform as a personal defense rifle. This endorsement is not to be construed as an argument that citizens should be unconstitutionally restricted from owning self-loading rifles or unconstitutionally restricted in the ammunition capacity of their rifles.

From Subjects to Citizens

A few hundred years ago, there was a prevailing political theory that asserted that certain men should have dominion over all others. They claimed this power was a divine right bestowed upon them and their posterity and that any disobedience to their rule equated to defying the very will of God. Individual merit, talent, or achievement meant nothing. Morality meant nothing. Sound judgement meant nothing. All it took to rule was to be the closest living blood relative to previous occupant of the big chair.

A counterpoint view began to emerge that man possessed inalienable individual rights and that government that did not have the consent of the governed was not legitimate. In order to stamp out this political theory, a king sent forth his troops to seize the very means to resist from those who opposed him.

Those that rejected absolutism resisted. They resisted with weapons exactly the equivalent as those being sent by those seeking to keep them subjugated. In fact, they actually captured the king’s cannon and used his own weapons against him.

Subjects became citizens. When the shooting was all over, those same men who had just fought a bloody war to achieve a new status and establish a new political order wrote a document outlining and limiting the power of government. Included in this document was an enumeration that the people have an un-infringed right to possess arms. These men had just used very same type of weapons that the king sent against them to defeat his forces. It does not stand to reason that they would enumerate such a statement and not intend for it not to follow through the ages along with the evolution of technology. That right was not frozen in 1791 just as the right to freedom of speech is not restricted to writing letters on parchment with a quill and sending it via horse and rider.

Now, let us move forward to a more modern age.

My grandfather was drafted into the Army for World War II and was sent to Italy to serve as an infantryman. He was issued a rifle and sent into battle.

In the 1960s, my father was in command of a National Guard unit that took part in protecting Civil Rights marches in Georgia.

In the days after the horrific events at a Connecticut elementary school, I put on my badge and uniform and stood in front of a local middle school with a not only a semi-automatic rifle close at hand but a select-fire fire weapon as well.

In the three examples above, each individual was receiving a government paycheck and was carrying the respective firearms in the service of the government.

Why was it acceptable to some for my grandfather to have fought in defense of his country with a rifle while using that same rifle to protect his wife and children is considered wrong by some people? Why was it acceptable to some for my father to carry a rifle to defend the civil rights movement while possessing that same rifle to protect his wife and children is somehow wrong? Why was it acceptable for me to have a rifle at the ready to protect school children while having that same firearm to protect those that I hold dear is wrong?

Let us take that one step further. Does somehow being in the service of government grant special dispensation of morality while only evil is bestowed upon the same rifle when in the hands of someone not receiving a government paycheck? I answer firmly in the negative. Are electricians, systems analysts, statisticians, or whatever else somehow devoid of the moral clarity to defend their own homes and families? Again, I answer firmly in the negative. Should they be restricted from having the very same tools as those they are being taxed to purchase for those whose salaries they are also being taxed to fund? No shocker here as I again answer firmly in the negative.

I end with this quote from Lt. Col. Jeff Cooper:

“The rifle itself has no moral stature, since it has no will of its own. Naturally, it may be used by evil men for evil purposes, but there are more good men than evil, and while the latter cannot be persuaded to the path of righteousness by propaganda, they can certainly be corrected by good men with rifles.”

Sheriff Proffitt: A Tribute and a Reminder

AUTHOR’S NOTE:  While this piece is open to all to read, it is written with my peace officer brethren in mind.

Herbert Proffitt was a veteran of the Korean War and had a 50-plus year career as a peace officer including stints as the Monroe County (KY) Sheriff and as the Tompkinsville (KY) Police Chief.  He retired initially in 2000 but later returned to the Sheriff’s Office serving as a Bailiff until 2009 when he retired again at the age of 79.

On August 28, 2012, Sheriff Proffitt was in his own driveway getting his mail when a thug he had arrested numerous times dating back to the 1970s (allegedly) ambushed and murdered him. Several accounts that I have read assert that the thug had the citations from the first arrest in his possession when captured and that said thug is 81 years old.

Sheriff Proffitt survived being in the line of fire for well over half of a century only to get gunned down while doing something as mundane as walking out in his own driveway to get his mail years after he retired and by someone who has nursed a grudge for 40 years.  While all “officer down” stories are a tragedy this one is especially just plain wrong.  I am by no means asserting that evil doesn’t prey upon those outside of our profession, and while I do not want to sound overdramatic or bellicose, this incident is a reminder to all whom it applies that your life changed forever the first time that you pinned on a badge, and your vigilance shouldn’t, and can’t, stop when you are off duty, when you are with your families, when you are retired, or any other time for that matter.

As a rookie cop in a fairly populous area, I thought that I could meander about during my off-time completely anonymously when out of uniform.  I learned quickly that I was wrong as one night while dining in a restaurant, I looked over at the next table only to see an individual who was convicted that very day on a charge that I had made against him.  Incidentally, it was the first arrest that I had made after completing field training.  Since that night I have not left my home, even to walk out to get the mail, unarmed.  It is not that I live my life in fear; it is that I adopted a mindset that night that I would never be caught without the ability to protect myself and those that I hold dear, and I stress that the most important tool for self protection is awareness more than anything else (regardless of profession).  This includes being choosy about off duty activities and where you do them.

It may seem like an annoyance to carry at times, but to borrow a line from Unforgiven, don’t get killed for a lack of shooting back.

Firearms Registration in Georgia

Perhaps I should have titled this piece “There Is No Firearms Registration in Georgia” because that is the case.  Please understand that this piece is not an argument in favor of or a call for such a system.  It is simply informational.

Frequently, citizens will come by the Sheriff’s Office because they have lawfully received a firearm and want to “register” it. The fact of the matter is that there is no method or mechanism for firearms registration in Georgia.  There is no means to register a particular firearm to a particular person.

In a previous piece about the so-called “gun show loophole“, I discussed the fact that firearms sales by licensed dealers are governed by the same rules whether at a gun show or their normal place of business and that such sales by private citizens are governed by the same applicable laws governing private sales at any other time.  When a firearm passes through the hands of a licensed dealer and is transferred to another owner a form 4473 is completed.  This creates a record of the transaction but it does not “register” the firearm.  In Georgia, private parties can sell a firearms to other private parties without the transaction having to go through a federally licensed firearms dealer.  The laws concerning private sales vary from state to state.

When a gun is traced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); the agency is simply going through its records and checking for the form 4473.  This check will only be able to track the instances in which the firearm in question passed through the inventory of a licensed dealer.  It will not track legal transactions made by private parties in states where private parties can sell firearms without having to go through a licensed dealer.  Therefore, if a Georgia resident buys a firearm from a licensed dealer and then sells it in a private party transaction, an ATF trace would show the firearm having been transferred to the original purchaser alone.

While it is understandable that private citizens might confused on this subject, it is troublesome that apparently there are law enforcement agencies in Georgia that get this wrong.  I recently learned of a instance in Georgia in which an agency is refusing to return a recovered stolen firearm to its rightful owner. The agency returned the other recovered items to the victim, but they are withholding the firearm.  The reason they are giving is that the ATF trace shows the firearm as being “registered” to another individual.  I used the plural in the first sentence in this paragraph because I know of at least one other agency using a similar approach.

I wonder if they made the victim show proof of registration for the other items?  Why is it that some items that the victim possessed legally were stolen, recovered, and returned but an item that victim owned legally was stolen, recovered, but withheld?  This is a fundamentally illogical approach.