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Andrew Crespo
Today on TV, the Deputy Director of the federal paramilitary force in discussed the infamous van video. He described a textbook example of an unconstitutional arrest. But... he doesn’t seem to know it. That is a BIG PROBLEM. Let’s unpack this. It’s important. (thread)
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Here (again) is the video of the van encounter.
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Andrew Crespo Jul 21
Replying to @DHS_Wolf
And here's the press conference, in which a reporter (at 35:02) asks "what level of probable cause are you getting" in these encounters? Wolf turns it over to Kris Cline, Deputy Director of the Federal Protective Service.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Cline says "you're probably talking about the van," and goes on to give the government's account of what happened.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
The agents, Cline says, were interested in the man in the video because, earlier, they'd seen him "in a crowd and in an area" where someone ELSE was aiming a laser at the eyes of officers.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
I don’t know if shining a laser at someone is a federal crime. It doesn’t matter. The police do not have probable cause to arrest you just because you are standing near someone else who may have committed a crime.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
We’ve all heard the saying that people shouldn’t be treated as “guilty by association.” Well, that’s also the law. To wit, Ybarra v. Illinois, 444 U.S. 85, 91 (1979).
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Cline goes on to say that the agents followed the man in the video—whom they had no basis to arrest—to a calmer location, away from the courthouse, because they wanted to question him.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
So far as the Fourth Amendment goes, if that’s all they’d actually done, there wouldn’t be an issue. The police are allowed to walk up to you and question you, in a “consensual” encounter, so long as a reasonable person in your shoes would think it's ok for you to walk away.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
(Side note: These encounters often don’t feel consensual in the moment, even though a court will often deem them consensual as a legal matter after the fact. That’s a problem for another day.)
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Maybe these agents planned to execute one of those “consensual” encounters, maybe not. But in any event, Cline admits—and the video is clear—that they did something very different: they forcibly removed the man from the scene.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Again, not because of anything he did. According to Cline, the agents grabbed the man because they saw *other* people coming toward them and felt unsafe.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
They wanted to leave. They didn’t want to let him leave. So they grabbed him and put him in a van and took him, in Cline's words, "to an area that was safe for both the officers and the individual to do the questioning."
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Cline doesn't say explicitly where they took the man. But we know from other reporting that another person taken off the street in similar fashion, Mark Pettibone, was taken inside the federal courthouse.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
And Cline does explicitly say that the man he is describing (the man from the van video) was questioned for approximately 20 minutes -- something unlikely to have happened out on the street, given the agents' apparent fear of the surrounding crowd.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
And then, after those ~20 minutes, the agents "released the individual." Why? Well, let's let Cline explain:
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
"They released the individual because they did not have what they needed."
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Translation: They did not have probable cause.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
(Note how this plays out. Eventually, government lawyers show up and apparently say to the agents -- you gotta let this guy go, you have no lawful basis to detain him.)
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Ok. Those are the facts, according to the Deputy Director of the federal police force deployed in Portland (and, apparently coming to a city “lead by Democrats” near you). As far as the Fourth Amendments goes, there's two important points here:
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
1. Cline admits the agents NEVER had probable cause to arrest this person. That’s why they let him go. They didn't have probable cause when the lawyers showed up. They didn't have probable cause when they put the man in the van. They never had it. And they aren't saying they did.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
2. This man was arrested.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
This isn’t one of those law school exam types of cases where you’re supposed to say “Well, *maybe* he was arrested.” This is one of those bar exam types of cases where they ask you “Was this an arrest? (A) Yes (B) No.”
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
The answer is yes.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
To wit, Dunaway v. New York, 442 U.S. 200 (1979), where the Supreme Court considered whether the police violated the Fourth Amendment when, without probable cause, they took someone "into custody, transported him to the police station, and detained him there for interrogation."
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
The answer is yes.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
Just as in Dunaway, this man was "taken" from the street "where he was found," put into "a police car" (sorta), "transported to a police station" (inside the courthouse), "and placed in an interrogation room," where he was questioned. That is an arrest. Period.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
(See also Hayes v. Florida, 470 U.S. 811, 815 (1984))
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
So.... the most troubling part of Cline's statement is NOT when he acknowledges the lack of probable cause. It's when he says that this "simple engagement" was perfectly constitutional because "it's not a custodial arrest."
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
That statement is glaringly wrong.
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Andrew Crespo Jul 21
Replying to @AndrewMCrespo
It's been wrong since at least 1979.
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