Arrest vs. Detention- the Portland kidnappers are ARRESTING people, not "detaining" them.

[coti]

And it's very important to make the distinction, because probable cause or a warrant is necessary for an arrest, but not a detention.

https://www.nolo.com/legal-encyclopedia/arrest-vs-detention-how-tell-whether-you-ve-been-arrested-simply-detained.html

Arrest vs. Detention: How to Tell Whether You've Been Arrested or Detained
It's possible for the police to arrest you--intentionally or not--before saying that you're under arrest.

By Micah Schwartzbach, Attorney

You’re walking down the street when a police officer orders you to halt and begins asking you questions. You’re pretty sure that you’re not free to leave. Does that mean that you’ve been arrested, or are you simply being detained?


In general, if a reasonable person in the suspect’s shoes wouldn’t feel free to leave an encounter with the police, then there’s been either a detention or an arrest. Determining which can be tough—and sometimes crucial. Suppose, for instance, that an officer has reasonable suspicion to detain someone, but not probable cause to arrest them. In the course of the encounter, the officer discovers incriminating evidence. In this situation, if the defense attorney persuades the court that, instead of merely detaining her, the officer arrested the suspect without probable cause, then the evidence may be inadmissible in court.

Detentions and Arrests

An officer’s “brief and cursory” holding and questioning someone is a detention. An example is a cop stopping someone who is behaving suspiciously in order to ask a few questions. The suspect isn’t free to leave, but he also isn’t under arrest, at least until the officer develops probable cause. Another common example is an officer pulling over a driver for some kind of traffic or equipment violation.

An arrest, on the other hand, involves the police taking someone into custody through a more significant restraint on movement. The quintessential example involves the use of handcuffs and an advisement that the suspect is under arrest.

Brief and Cursory?

Investigatory stops (or “detentions”) must be no longer than necessary and officers must investigate with the least intrusive means that are reasonably available. When an officer prolongs a detention beyond what is brief and cursory and broadens it, then the detention may turn into a de facto arrest—that is, an actual but not official arrest.

If a reasonable person in the suspect’s position would have considered the police’s behavior to constitute the kind of restraint that’s typical of formal arrest, then an arrest has occurred. Some courts phrase the issue as depending on whether, after brief questioning, a reasonable innocent person would have felt free to leave—if not, there’s been an arrest. (Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159 (9th Cir. 2013).)

No Bright Line

Courts consider a variety of factors in determining whether a detention has ripened into an arrest, among them:

the amount of force the police used
the need for use of force
the number of officers involved
whether officers suspected the suspect of being armed
the manner in which officers physically handled the suspect (including the use of handcuffs), and
the length of the stop.

(U.S. v. Vargas, 369 F.3d 98 (2d Cir. 2004), In re Hoch, 82 A.3d 1167 (Vt. 2013).)

Although the extent to which officers restrain and intrude upon the suspect are key to the determination, there’s no bright line indicating the point at which a detention becomes an arrest. For instance, the use of handcuffs doesn’t automatically signal an arrest where there are concerns for officer or public safety.

In one case, officers handcuffed a suspect and placed him in the back of a squad car while they searched a house he had just visited. The appeals court held that their actions didn’t turn the detention into an arrest because they needed to avoid an escape attempt and to take precautions against potential violence. The court also found that it made sense to take the suspect back to the house because they knew that the search they were about to begin could implicate him. (United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011).)

Handcuffing someone, throwing them into a vehicle and transporting them elsewhere is an arrest, not a detention. And they're making these arrests without identifying their authority to do so. That's kidnapping.

[bluestarone]

1. SO TRUE and

WHY no JUDGES decision yet? THIS to me is open and shut case of kidnapping!!!

[coti]

2. Not to mention their beating people

The amount of force used is also a factor. Presumably, you don't beat the shit out of someone without being reasonably certain they've committed a crime. The beatings also point to arrests, not detentions.

[bluestarone]

3. EXACTLY!!

[stopdiggin]

4. Well, if you can find a judge that says so ..

that's fine and good. But, did you read the excerpt that you posted? What is highlighted there is that courts have previously granted a great amount of latitude in interpretation (as they invariably do).
(in the example you cited that included hand-cuffing, keeping individuals for periods of time, and moving people to different locations)

Final paragraph in excerpt ---
In one case, officers handcuffed a suspect and placed him in the back of a squad car while they searched a house he had just visited. The appeals court held that their actions didn’t turn the detention into an arrest because they needed to avoid an escape attempt and to take precautions against potential violence. The court also found that it made sense to take the suspect back to the house because they knew that the search they were about to begin could implicate him. (United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011).)

I hope that judge can be found to rule against these actions. To my mind, forcibly subduing, detaining, and then removing somebody to another "facility" certain constitutes custody and arrest -- I'm just not sure if the law sees it that way under these circumstances. On the other hand -- as my legal friends remind me -- the law is often made out of the most egregious and extreme circumstances. And this might well qualify.

[coti]

5. Actually, if you go to the link you'll see another example where they actually transport

someone elsewhere that is considered an arrest.

I read it but just posted what I thought would allow for the best illustration of distinction, and the example posted here I believe is about the extent of what can reasonably considered a detention. What they're doing in Portland is well beyond that, with there being a number of other factors pointing to these being arrests, also.

[stopdiggin]

7. thanks

I agree. How can this be other than ...? The example that I re-cited seemed to be a case of the court bending over backward to accommodate (didn't really make a lot of sense to me) Unfortunately, that's been a pattern ....

But, as I said -- egregious actions are often the catalyst that move the court (and the law)

[coti]

9. This is also an example of a highly effective right-wing tactic in their "marketing" of ideas

where they try to slip by a presumptuous but inaccurate word (like "detain" ) in their presentation in order to frame a debate. It's a favorite of Barr himself, in fact- it was one tactic he used to distort the Mueller Report. It's slippery and dishonest and they do it all the time because, when done right, it can be very difficult to catch, and even more difficult to push back against by correcting language.

[Bayard]

6. Kidnapped off the street by unknown soldiers

And thrown into unmarked vehicles. I still haven't seen where they are reading these people their rights.

[stopdiggin]

8. which would be where the distinction between

detention and arrest comes into play (and one of the reasons they don't like to play that card)