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Wed Apr 25, 2018, 07:54 PM

The final (I hope) word on whether cops "had a choice" to arrest two black men because the manager

wanted them to:

As some of you know, there's been a lively debate going on about whether the police officers who arrested the two black men in Starbucks earlier this month after a manager called the police and alleged that the men were trespassing because they were sitting in the shop but hadn't bought anything - had an obligation to confirm that this alleged No Buy-No Sit policy was a valid basis to kick the men out.

I have strenuously argued that the police did indeed have such an obligation, but several others insisted that the police had no choice but to arrest the men once the manager said they were trespassing.

I posted the following in another thread in response to someone with whom I've been having a long discussion, but I decided to repost it as an OP to make sure that everyone involved in previous discussions about this issue had a better chance of seeing it.

It is well-settled federal law that cops not only are "allowed" but are required to "second-guess" property owners if they - the cops, not the property owner - believe there's not probable cause to make a trespassing arrest, no matter what the property owner says.

As a law enforcement officer, you no doubt know that, before making any arrest, the Fourth Amendment REQUIRES the police to determine that probable cause for the arrest exists. E.g., Rogers v. Powell, 120 F.3d 446, 452 (3d Cir.1997). What constitutes probable cause can vary from case to case, but in defiant trespass cases in Pennsylvania, the police must confirm the existence of all of the elements of the crime of defiant trespass set forth in 18 Pa.C.S.A.§3503(a):

1. knowing that he is not licensed or privileged to do so
2. enters or remains in any place
3. as to which notice against trespass is given by:
(i) actual communication to the actor;
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders


As I've noted before, the statute contains several "affirmative defenses" to the crime, which the defendant can raise during trial. One of the affirmative defenses to defiant trespass is that "the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises." 18 Pa.C.S.A.§3503(c)(2)

Notwithstanding the claims by some here that this affirmative defense is irrelevant to the arrest, the courts have clearly stated otherwise. In fact, the courts have expressly recognized that the existence of this affirmative defense is critical to the determination of whether the police had probable cause to make an arrest.

For example, the U.S. Court of Appeals for the Third Circuit, the federal appellate court with jurisdiction over Pennsylvania, and the U.S. District Court for the Eastern District of Pennsylvania (which includes Philadelphia) have explicitly held, in several cases, that, before making an arrest for defiant trespass, police officers MUST determine that probable cause exists to support an arrest and, if the potential arrestee could later raise an affirmative defense of compliance with all lawful conditions, the police must consider that defense before making the arrest. If they don't consider it, they have not established probable cause and the arrest is illegal. And if they consider it and believe that it's a valid defense, they also lack probable cause to make an arrest.

"The standard for probable cause turns not on the actual guilt or innocence of the arrestee, but rather, whether the arresting officer reasonably believed that the arrestee had committed the crime." Radich v. Goode, 886 F.2d 1391 (3rd Cir., 1989) The dispositive inquiry [is] whether an officer, 'acting reasonably ... under the facts and circumstances' known to him, would conclude that the affirmative defense applied. If the answer was yes, then probable cause did not exist.

In other words, before the police can make an arrest for defiant trespass, they MUST determine whether or not one of the affirmative defenses set out in the statute - in this instance, the compliance with all lawful conditions defense - would apply. If the suspect claims to be on the property lawfully and not to have violated any lawful condition of being on the property - which these men and several other people in the place did - the cops were required by federal law to consider their claim before making an arrest and their failure to do so meant that they did not have probable cause and, therefore, the arrest was illegal.

Where a potential arrestee argues, prior to arrest, an affirmative defense that is specifically included in the statute setting forth the elements of the crime, then an officer must act "reasonably ... under the facts and circumstances" known to him or her to determine whether that affirmative defense applied. Holman v. City of York, PA, 564 F.3d at 230 (3rd Cir. 2009)(quoting Radich, 886 F.2d at 1396), 96 F.Supp.3d 523 (E.D. Pennsylvania 2015)

Therefore, it is indisputable law that police officers do indeed have an obligation - an unequivocal one - to make a judgment about whether an trespass arrest is warranted and whether an affirmative defense might be applicable. If they fail to do that - i.e., if they just arrest someone because a manager said so without determining that the condition on which the manager is basing their complaint is valid, they have failed to establish probable cause and the arrest is, per se, illegal.

When applied to the Starbucks case, federal law required that the police officers confirm that the sole rationale the manager gave for wanting the men off of the property - the alleged No Buy No Sit policy - was a lawful condition for entry and remaining on the property. This was particularly necessary since several people told the officers that there was no such condition and, obviously, in order for a condition to be lawful, it must actually exist. When it became apparent to the police officers that the two men, along with several other people, were questioning the existence of this condition, the officers were legally required to determine whether there was really such a policy and whether it was a lawfully applied (e.g., not applied in an illegally discriminatory manner). As we all know, they didn't do so, relying instead only on the manager's assertion of a condition. Therefore, they failed to find probable cause under the law and the arrest was illegal.

This should put the argument to rest.

44 replies, 1669 views

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Arrow 44 replies Author Time Post
Reply The final (I hope) word on whether cops "had a choice" to arrest two black men because the manager (Original post)
EffieBlack Apr 2018 OP
S.E. TN Liberal Apr 2018 #1
Hassin Bin Sober Apr 2018 #2
pnwmom Apr 2018 #3
EffieBlack Apr 2018 #5
sheshe2 Apr 2018 #42
EffieBlack Apr 2018 #12
KT2000 Apr 2018 #4
MaryMagdaline Apr 2018 #6
EffieBlack Apr 2018 #7
MaryMagdaline Apr 2018 #10
SidDithers Apr 2018 #35
mcar Apr 2018 #8
druidity33 Apr 2018 #9
EffieBlack Apr 2018 #11
druidity33 Apr 2018 #13
EffieBlack Apr 2018 #14
Hassin Bin Sober Apr 2018 #17
EffieBlack Apr 2018 #18
rgbecker Apr 2018 #15
EffieBlack Apr 2018 #16
EffieBlack Apr 2018 #19
EffieBlack Apr 2018 #20
Lurker Deluxe Apr 2018 #21
EffieBlack Apr 2018 #23
Lurker Deluxe Apr 2018 #22
EffieBlack Apr 2018 #24
Post removed Apr 2018 #25
JustAnotherGen Apr 2018 #26
EffieBlack Apr 2018 #28
JustAnotherGen Apr 2018 #29
EffieBlack Apr 2018 #31
mcar Apr 2018 #32
JustAnotherGen Apr 2018 #33
haele Apr 2018 #36
EffieBlack Apr 2018 #38
JustAnotherGen Apr 2018 #27
EffieBlack Apr 2018 #30
NCTraveler Apr 2018 #34
EffieBlack Apr 2018 #37
EffieBlack Apr 2018 #39
JHan Apr 2018 #40
EffieBlack Apr 2018 #41
MrScorpio Apr 2018 #43
Cha Apr 2018 #44

Response to EffieBlack (Original post)

Wed Apr 25, 2018, 08:00 PM

1. At most, the cops should simply have told the guys to leave.

Putting handcuffs on them is a clear case of false arrest in my book.

That PD is justifiably going to be sued.

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Response to S.E. TN Liberal (Reply #1)

Wed Apr 25, 2018, 08:05 PM

2. They told the guys to leave. They refused. Now what?

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Response to Hassin Bin Sober (Reply #2)

Wed Apr 25, 2018, 08:12 PM

3. What part of Effieblack's OP did you not understand?

The police are not allowed to order someone to leave a place they lawfully occupy. The police need probable cause to arrest someone, and it is very likely they did not have it in the case.

It is COMMON for people in a food place to say they are waiting for another party to show up before they order.
It is NOT COMMON for managers to call the police for people who have only been waiting for TWO MINUTES.
It is NOT COMMON for the third party to show up and the police STILL go through with the arrest.

But it is not a shock, sadly, when this short of thing happens to black people. And discrimination by race is ILLEGAL.

The police should never have been called in the first place. When the real estate developer showed up and proved what the younger men had been saying all along, the manager and the police should have apologized and backed off.

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Response to Hassin Bin Sober (Reply #2)

Wed Apr 25, 2018, 08:48 PM

5. The police telling them to leave is completely irrelevant

If they have no probable cause to determine the men were trespassing, no one - the manager, the police or the man in the moon - had any right to tell "the guys to leave." And they didn't have any legal ground to arrest them.

That's the law. Period.

Don't like it? Take it up with the Third Circuit Court of Appeals.

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Response to Hassin Bin Sober (Reply #2)

Mon Apr 30, 2018, 12:55 AM

42. So the law in Effies OP

So the law in Effies OP applies not to all, yet only to a few. Hmm. Your reply is interesting.

Yeah, the black guys were told to leave.

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Response to S.E. TN Liberal (Reply #1)

Wed Apr 25, 2018, 09:45 PM

12. They didn't have any legal right to tell them to leave

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Response to EffieBlack (Original post)

Wed Apr 25, 2018, 08:15 PM

4. Thank you

police do not arrest everyone who someone calls them about. As you said - they are required to assess the situation.

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Response to EffieBlack (Original post)

Wed Apr 25, 2018, 08:49 PM

6. I was one of the people posting that ignorant bull shit

I was going to delete once I read your correction, but then I thought better to leave it for all to see. Keep posting the facts; maybe more will sink in.

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Response to MaryMagdaline (Reply #6)

Wed Apr 25, 2018, 08:51 PM

7. You're awesome

Thanks!

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Response to EffieBlack (Reply #7)

Wed Apr 25, 2018, 09:01 PM

10. There are some seriously good writers on DU

Your posts are newspaper column worthy.

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Response to MaryMagdaline (Reply #10)

Thu Apr 26, 2018, 11:26 AM

35. +1...

Effie is quickly becoming one of my favourite posters.



Sid

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Response to EffieBlack (Original post)

Wed Apr 25, 2018, 08:52 PM

8. As always, Effie, a most excellent post!

This settles the issue completely.

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Response to EffieBlack (Original post)

Wed Apr 25, 2018, 08:56 PM

9. I work in retail....

in order to have someone arrested at our store they have to have a NO TRESPASS order already filed against them. We have had to do this with violent customers and it's a pain in the ass but it's part of the process.



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Response to druidity33 (Reply #9)

Wed Apr 25, 2018, 09:43 PM

11. You mean, you couldn't just tell the cops "GET him OUTAHERE!" and they throw people out for you?

Wow. Who knew?

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Response to EffieBlack (Reply #11)

Wed Apr 25, 2018, 09:50 PM

13. Exactly. You'd be surprised how many folk don't know that...

or not. We actually have safety training for our employees (Negotiated in our last Union Contract ) on how to deal with different situations. Only the Manager can submit a No Trespass order. Then it takes awhile for it to be processed. In the meantime we try to inform every employee about the offender. To believe the cops could just come in and arrest someone for trespass is absurd.

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Response to druidity33 (Reply #13)

Wed Apr 25, 2018, 10:00 PM

14. I'm not surprised at all. I've been struggling for more than a week to counter the misinformation

And seemed to get nowhere with people who kept insisting otherwise. So, I finally just took time out today and pulled some cases.

And am STILL getting pushback.

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Response to druidity33 (Reply #9)

Wed Apr 25, 2018, 10:27 PM

17. You dont need a trespass order to have someone immediately removed.

If ordered to leave to leave (by the responsible person) in front of a policeman, defiant trespass has occurred when the person refuses to leave. the person can be arrested without prior trespass order when they are a defiant trespasser.

A trespass order notifies the person next time they step foot on the property they are subject to immediate arrest.

I think you are confusing the two issues.

I ran a retail establishment for ten years.

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Response to Hassin Bin Sober (Reply #17)

Wed Apr 25, 2018, 10:37 PM

18. Wow.

Did you even read my OP? If so, what part of it do you find to be false?

Please be specific.

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Response to EffieBlack (Original post)

Wed Apr 25, 2018, 10:02 PM

15. Thanks Effie.....just wanted to put this up here again for everyone's entertainment.

 

https://www.democraticunderground.com/100210504390

This is about a trespassing trial I was involved in.

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Response to rgbecker (Reply #15)

Wed Apr 25, 2018, 10:06 PM

16. LOL - I remember you getting slimed for that one

You Runaway Juror, you

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Response to EffieBlack (Original post)

Thu Apr 26, 2018, 06:58 AM

19. Kick

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Response to EffieBlack (Original post)

Thu Apr 26, 2018, 09:00 AM

20. Kicking again for visibility

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Response to EffieBlack (Original post)

Thu Apr 26, 2018, 09:37 AM

21. Actually ... it should

But it will not.

Did you even read the case you cite? I just did.

This is a complaint from a "pro lifer" who was arrested hassling people at Planned Parenthood and that you would side with him is all sorts of messed up ... even more so at DU.

What you cite is the defense that Holman puts forward for his arrest.

Holman was hassling women attempting to gain entrance to PP. He was warned repeatedly to not set foot onto PP property. He STEPPED onto a curb which was PP property and was immediately arrested for trespass. His argument is that he had to step on PP property to avoid a truck that made a short turn, and that he immediately removed himself from the property ... so his trespass was out of necessity, he had to trespass to avoid danger.

Holman cites what you quote. The court in their ruling ... not so much.

The District Court concluded that Holman's arrest was lawful for three reasons.


Third, the District Court found that, even assuming, arguendo, that an arresting officer must consider the applicability of affirmative defenses in determining whether probable cause exists, the necessity defense likely did not apply.


So, outside of the fact that you are siding with a hardcore fundy abortion protester the argument cited by you FAILED in court. In this case the person merely stepped foot on property for seconds and was arrested. The case went all the way to the Court of appeals being pushed by,
Holman emphasizes the sanctity of the fetus, distributes pro-life literature, and discusses alternatives to, and the health risks of, abortion
, a fundy jackass who tried to stop women from getting free access to abortion services.

So, yes ... this should end the debate, but it will not. The officers did their job at Starbucks, by the book. It matters not if you agree with the reason they were asked to leave.

https://www.courtlistener.com/opinion/1192873/holman-v-city-of-york-pa/


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Response to Lurker Deluxe (Reply #21)

Thu Apr 26, 2018, 10:13 AM

23. You may have read the case, but you obviously dont understand it, which makes sense

if you’re not a lawyer since you wouldn’t be expected to understand stare decisis or how precedents are analyzed and applied.

If you are a lawyer, you surely know better or should.

So, let me try to explain it to you.

First, precedent has nothing to do with whether I am sympathetic to a party in a case.

When ruling on a case, a Court sets forth the law and then applies it to the facts of that individual case. Sometimes the facts of the case dictate a different outcome under the law, but they don’t change the law.

In Holman, the Court stated that the already settled law, binding precedent set in Radich, a previous case, requires that an affirmative defense be considered when establishing probable cause and if it isn’t considered, the arrest is illegal. BUT, the Court noted that Radich applied ONLY to affirmative defenses set out in the trespass statute that lays out the elements of a trespass. If an affirmative defense isn’t in that statute, it is irrelevant to the determination of probable cause.

The trespass statute includes the lawful condition defense. It does not include such defenses as necessity, therefore the police are not required to consider a necessity affirmative defense when establishing probable cause.

In the Holman case, the defendant’s affirmative defense was necessity. The Court ruled that, because necessity was not a defense set forth in the trespass statute, it was not a required consideration for establishing probable cause in this particular case and, therefore, the court ruled against the arrestee.

In making its ruling, the Court explicitly “distinguished” the facts from the facts in Radich - i.e., showed how the facts differed enough to make the ruling inapplicable to the Holman case.

“Radich is distinguishable, because the two affirmative defenses urged by the defendant were specifically included in the statute setting forth the elements of the crime. That is, the statute specifically stated that the proscribed conduct was not criminal if these two aspects were present. Here, that is not the case. The “necessity” defense urged here appears in a separate section of the Pennsylvania criminal code, § 503, defining the general principles of justification. Significantly, § 503 is not explicitly referenced in § 3503(b)(1), which details the elements of defiant trespass.”

In other words, the Radich requirement did not apply to the Holman case because - and only because - the arrestee’s defense wasn’t listed in the trespass statute.

On the other hand, the operative facts of the Starbucks case are what lawyers and courts call “on all fours” - directly on point - with the those in Radich. Specifically, the affirmative defense of compliance with all lawful conditions were present in both cases. Because, under Radich, the law in the Third Circuit REQUIRES that officers consider the condition affirmative defense when determine probable cause, and the officers in Starbucks failed to do that, they did not establish probable cause and, therefore, the arrest was illegal.

But it’s not even necessary to get to the affirmative defense issue - the officers had a legal duty to independently establish probable cause to make the arrest. They did not do that - just taking the manager’s word that someone committed a crime is not sufficient - so, therefore, they had no legal authority to arrest the men. The fact that the men had a affirmative defense and the cops did not consider it only compounds the failure to establish probable cause.

It doesn’t matter whether I agree with the morals or political philosophy of any of the parties in any of the cases. That’s completely irrelevant. Then only thing that matters is the law and how it applies - and applied in this instance, it’s a slam dunk that the arrest was illegal.

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Response to EffieBlack (Original post)

Thu Apr 26, 2018, 10:07 AM

22. damn ...

The other one you cited is another fundy jackass trying to deny access to abortion clinics.

On January 23, 1987, Officer Mieklejohn arrested appellants for defiant trespass. Appellants, pro-life supporters who had been protesting on a public sidewalk, crossed onto a private parking lot to distribute pro-life literature and speak to individuals entering the Northeast Women's Center, Inc.


That a pretty messed up stance to take here on DU ... support for pro life asshole trying to hassle women at abortion clinics.

But ... whatever works for you.

Still, the same result. You cite the defense of the pro lifer trying to hassle women.

The court ... not so much.


The district court granted summary judgment in favor of the city and Officer Mieklejohn because Officer Mieklejohn had probable cause to arrest appellants.


https://www.leagle.com/decision/19892277886f2d139112061


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Response to Lurker Deluxe (Reply #22)

Thu Apr 26, 2018, 10:18 AM

24. You should stop trying to lecture a Constitutional law professor about how legal precedent works

You’re way out of your league.

Maybe instead of arguing about something you clearly know nothing about, you should back up read what I’m taking the time to explain to you - your may learn something.

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Response to EffieBlack (Reply #24)


Response to EffieBlack (Reply #24)

Thu Apr 26, 2018, 10:34 AM

26. When being accurate makes people angry

They always lash out Effie. Funny how that works eh?

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Response to JustAnotherGen (Reply #26)

Thu Apr 26, 2018, 10:40 AM

28. Yep. And only make themselves look ridiculous.

Anyone insisting that applying a precedent set forth in a federal circuit court case equates to siding with one of the parties in the case, well ... let’s just leave it there and let it speak for itself.

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Response to Lurker Deluxe (Reply #22)

Thu Apr 26, 2018, 10:41 AM

29. But- that was the precedent n/t

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Response to JustAnotherGen (Reply #29)

Thu Apr 26, 2018, 11:01 AM

31. Precedent Schmecedent ...

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Response to Lurker Deluxe (Reply #22)

Thu Apr 26, 2018, 11:05 AM

32. What are you talking about?

EffieBlack isn't showing support for a pro life asshole, she's showing support for THE LAW.

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Response to mcar (Reply #32)

Thu Apr 26, 2018, 11:09 AM

33. I agree

And the law, is the law, is the law.

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Response to mcar (Reply #32)

Thu Apr 26, 2018, 11:41 AM

36. The Law applies to everyone, whether we agree with it or not.

Even "pro-lifers", racists, Republicans, and Evilangelicals.
For example - the ACLU protects the KKK's right to march peacefully - so long as no one was endangered and no laws were broken. And I still support the ACLU, even though I may not agree with their protection of certain activities by certain groups.

Because, to paraphrase Thomas More in "A Man for All Seasons" -
"When all the trees (sic, laws) are cut down in pursuit of the Devil, what will protect you when the Devil turns on you?"

EffieBlack is correct.
If a Law is bad or unfairly burdens one position over another, it needs to be changed in a thoughtful, neutral manner only after considering all the facts and consequences of the matter. Not by fiat or populist decisions, and certainly not by who profits.

Haele

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Response to haele (Reply #36)

Thu Apr 26, 2018, 01:33 PM

38. Exactly

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Response to EffieBlack (Original post)

Thu Apr 26, 2018, 10:38 AM

27. Repeating for you the last paragraph

Bulleted out -


*When applied to the Starbucks case, federal law required that the police officers confirm that the sole rationale the manager gave for wanting the men off of the property - the alleged No Buy No Sit policy - was a lawful condition for entry and remaining on the property.


*This was particularly necessary since several people told the officers that there was no such condition and, obviously, in order for a condition to be lawful, it must actually exist.

*When it became apparent to the police officers that the two men, along with several other people, were questioning the existence of this condition, the officers were legally required to determine whether there was really such a policy and whether it was a lawfully applied (e.g., not applied in an illegally discriminatory manner).

*As we all know, they didn't do so, relying instead only on the manager's assertion of a condition. Therefore, they failed to find probable cause under the law and the arrest was illegal.




***********************************
But that's okay. It's only an issue when it's say - Nina Turner - to some folks around DU.

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Response to JustAnotherGen (Reply #27)


Response to EffieBlack (Original post)

Thu Apr 26, 2018, 11:18 AM

34. I have learned some things from your posts on this subject.

 

Thank you for that.

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Response to NCTraveler (Reply #34)

Thu Apr 26, 2018, 12:12 PM

37. I'm so glad!

Thanks for telling me that!

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Response to EffieBlack (Original post)

Thu Apr 26, 2018, 03:32 PM

39. Kick

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Response to EffieBlack (Original post)

Fri Apr 27, 2018, 09:56 AM

40. K&r

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Response to EffieBlack (Original post)

Fri Apr 27, 2018, 06:16 PM

41. Kick

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Response to EffieBlack (Original post)

Mon Apr 30, 2018, 01:01 AM

43. Dynamite post

Kickage!

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Response to EffieBlack (Original post)

Mon Apr 30, 2018, 01:39 AM

44. Thank you for that detailed explantion,

Effie.

It makes logical sense that an "arrest" would not be up to whomever called the police. The police can assess.

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