Perhaps splitting hairs, but this seems like a hyper-technical definition of “arrest” and not one that is commonly used:
Example. A driver is stopped for a routine traffic violation. The driver technically is under arrest because the driver is not free to leave until the officer has written a ticket
Most people, having just received a traffic ticket, would not say (or think) that they had been arrested.
I think in most places (definitely in AZ) the law distinguishes between being detained and being arrested.
Right, a fuller version of that question is often “Am I being detained or am I free to go?”
In most places being detained is supposed to be based on “reasonable suspicion” that you’re engaged in criminal activity, while being arrested uses a higher “probable cause” standard.
e.g.
13-3883. Arrest by officer without warrant
A. A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe:
\1. A felony has been committed and probable cause to believe the person to be arrested has committed the felony.
\2. A misdemeanor has been committed in the officer’s presence and probable cause to believe the person to be arrested has committed the offense.
I think it does, but being taken away or ‘booked’ or Miranda’d is not necessarily necessary. My understanding anyway from my brother (who is a lawyer) and a google spot check.
So there was either supposed to be “reasonable suspicion” or “probable cause” of what in this case? Well, the ‘what’ is the problem here because there is no what. But whatever that what was supposed to be, there’s National Guard testimony and video evidence and the MBP probably witnessed it too, so it’s more than reasonable suspicion if that’s the test here.
Or, probably, could be argued that this was in investigation and just a detention - though, still a violation of the person’s civil rights if even the accusation is of something entirely lawful imo.
If the National Guardsman accused the person of assaulting him and MBP detained him while investigating and then released him, perhaps that would be legal, but the accusation would have to be reasonable to believe.
Agree 100%. Having read the complaint, the officers explicitly state that the person was detained and not arrested.
I also think it’s pretty unusual for somebody to be handcuffed during an investigative detention like this. Like there’s supposed to be some additional threat level.
Regardless of the arrest/detention hair-splitting, I think we’re all in agreement that this detention was clearly unlawful (“harassing the National Guard” is not a crime!), his civil rights were violated, and he should win his lawsuit and get paid. Also cases like this shine light on rampant and pervasive abuse of “investigative detentions” like this.
Without conducting any investigation, Officers Brown, Reyes-Benigno, and Lopez
Martinez told Mr. O’Hara that he was being detained, and Officer Reyes-Benigno placed handcuffs
around his wrists.
Mr. O’Hara did not physically resist the officers or engage in any violent or physically
aggressive conduct.
Mr. O’Hara did, however, criticize the decision to detain him and repeatedly ask why he
was being arrested, whether he could go, and if he could speak with a supervisor. Officers Brown, Reyes-Benigno, and Lopez Martinez said that he was not under arrest, and Officer Reyes-Benigno stated that he was stopped for “harassing the National Guard.”
I’m sure this isn’t applicable to ICE but open book tests and, god forbid, take home tests were the hardest things I did in college. Absolutely brutal exams
I decided to test this at the gym yesterday since I made the claim. I did some light warm up lunges and walked on the treadmill for 5 minutes, then I was able to run 1.5 miles on the treadmill in 13:20. I am a late 40s office job dude that is reasonably active (I lift weights 2-3 times a week and will ride a bike once a week in the summer, I swim for fun and will do one light jog every 2 weeks or so).
