Since you seem a little new, I will be gentle. I will gently suggest that you have made a HUGE tactical blunder with the above apologia. You have stumbled into
the fundamental error. And you did it against one of the forum's top cop critics (this is a hint that you are not now arguing with some hot-head who goes off half-cocked. This is a hint that I know my data. Been at it for about 3 1/2 years. And gone up against forum members who are cops, and deconstructed their arguments successfully. And what I've forgotten, I know where to go get.)
1. Regarding looking at it through the LEO's eyes, HOGWASH!!! Nobody has to look at it through anybody's eyes. The lens is the Bill of Rights and the law.
2. Regarding OC not being legal or illegal. AHA!! Gotcha! This is the fundamental error to which I referred. This excuse has been tried so many times we've collectively lost count. It is just that, an empty excuse. A cover-up. A mis-direction. A red-herring.
It does not have to be illegal or legal in the law. Lots of study or failure to study about OC is irrelevant. All that is necessary is that the cop can or cannot say to himself that he knows with complete certainty it is illegal because he has read the statute himself.
Police have no authority to detain someone absent reasonable articulable suspicion(RAS) of a crime.*
If the cop cannot say to himself with total certainty that he knows OC is illegal because he has read the statute himself, he cannot possibly have RAS for a detention, because he has no crime.
Police are not super-citizens endowed with authority to seize anybody they want, whenever they want, on whatever reason they think is "sufficient."
Police have exactly, only the authority they are given. And a great big policy point, a point of law, is the Fourth Amendment, and the court rulings about it. Whether the cop wants "issues" doesn't matter. An LEO's personal opinion about whether OC should be "allowed" doesn't matter. Whether the cop thinks "I am the law around here" doesn't matter.
Here is one of my favorite legal quotes. It is quoted in the very court opinion that police use to detain and investigate someone for a crime--
Terry vs Ohio
No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pacific Rail Co. vs Botsford.
No right. More sacred. More carefully guarded. Free from
all restraint. Free from all
intereference. Unless by clear
and unquestionable authority of law. The
Terry Court could have watered it down before including it in their opinion. They could have rewritten it. They could have left it out altogether. But, they did none of those things. There that quote sits in the grandfather of detention cases.
So, you understand that when you make the justification and excuses that you did, you basically just revealed that all those cops you talked to omitted to mention that police cannot detain someone unless there is reasonable suspicion of a crime? And, omitted that if they do not know OC to be illegal to complete and total certainty, they have no authority to act? And, that omission is huge. What were they actually thinking? Obviously, whatever they were thinking necessarily included some degree, however large or small, the idea that they can act without authority. That they can seize a fellow human being and subject him to the indignity of seizure, questioning, and possibly a pat-down search
without authority.
They are not authorized to seize anybody for any reason they feel like. And, if the cop does not know to a dead moral certainty that OC is illegal, he cannot possibly know whether he has authority to seize the OCer. And if he seizes that OCer without knowing to a dead moral certainty that he has such authority, he is basically being a law unto himself. Being incompetent. Making it up as he goes along.
OK. I wasn't all that gentle. At least I didn't cuss. Here is the final advice. My bit above about being an experienced debater on this subject--next time you might omit criticisms that go, "I guess I am just a more objective person than some of my fellow Americans on this site." It was clearly a muted criticism. Your objectivity is clearly not. Your arguments fail to encompass the law, history, and freedom. Next time, don't feed me a line about how superior your objectivity is and I'll be nicer.
*This is not intended to be a comprehensive statement of law. There are other exceptions to the warrant clause and probable cause for police seizing someone. None apply to OC absent something more.
Terry vs Ohio covers the fundamentals of RAS:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
I teach Microsoft technologies at a prestigious Midwest IT training center, earning more than twice the national family average but on one income, and I do not wear plaid or live in a trailer. And besides, a neck burned by hours in the sun would be a mark of a working man that built this country, not a person who made their living by tearing it down as a professional so-called "writer". We could use some more decent, hard-working "rednecks" in this country. I would be proud to be considered a member of this backbone of American society but I am just a teacher (although I used to be a "working" man).
