PROJECT PRESUMED INNOCENT

After a night of in-home indulging, girlfriend and boyfriend commence to arguing. The argument, purely verbal, moves outside of the home, which is rented by the girlfriend. The boyfriend, although a frequent overnight guest, is not listed on the lease agreement. The boyfriend tires of arguing and gets in his car, which is parked in the driveway. He shuts the door and begins to leave. Once on the street he realizes that he is in no condition to drive, and pulls back into the driveway, which indicates to the girlfriend his desire to continue the argument. Boyfriend however simply parks the car, turns off the ignition, and proceeds to pass out. 

Girlfriend goes back inside and decides she “wants the boyfriend off her property.” She calls 911 and relays that exact information, and also that she rents the home in her name only and that boyfriend is not of the live-in variety. 911 relays all of this to the police. Three cruisers arrive, witness the boyfriend asleep, note that this is an “observed crime in progress” – the crime of trespassing - and proceed to open the car door with extreme vengeance, rousting the sleeping man and attempting to yank him out of his car. The boyfriend, a black man, resists because he says he has no idea what’s happening, doesn’t recognize his assailants as police officers, was in a high crime area (a legally recognized euphemism loved by law enforcement to criminalize routine behavior by people of color for the most part), and was scared that the girlfriend had called over “some thugs to beat him up.” How right he was. 

The officers proceed to beat the shit out of the boyfriend. They hurt him so badly that instead of taking him to jail after they subdue and handcuff him, they transport him straight to a hospital. Injuries include a fractured elbow and possible concussion, as well as numerous cuts and bruises. While handcuffed to the hospital bed the cops inform the boyfriend that he is not being charged with trespassing, or domestic violence, or DUI, but that he is being charged with felonious assault of a police officer. 

At this point legal commentators will cite state appellate or Supreme Court cases to establish what the law is regarding a police officer’s right to effect an arrest. But I’m not about to give credence to the legal fictions that courts full of almost all white people have invented over the years to gut our Constitutional rights to not live in a police state, exceptions which extraordinarily impact black and brown communities and individuals, as opposed to white people, in nothing short of cruel disproportion. When was the last time a white person was arrested in the cul-de-sac for trespassing? There is no free walk – or in this case, free park – in the High Crime block.

So let’s instead focus on the observed crime of trespassing. Why? Because only if the crime is “in progress” do the police officers have the right to open the car door to effect the arrest. 

Trespassing is defined in Ohio Revised Code Section 2911.21 as “(A) No person, without privilege to do so, shall do any of the following: (1) Knowingly enter or remain on the land or premises of another; (2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows the offender is in violation of any such restriction or is reckless in that regard; (3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access; (4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either.

1) Knowingly, 2) recklessly as to which notice is given, or 3) negligently remain upon being notified. No notice to leave is required if a person knowingly remains on the premises. The girlfriend occupant of the property is not claiming that she told the boyfriend to leave, so there is no notice in this case and thus no trespass by reckless or negligent behavior. 

• 1. Thus, is a passed-out person capable of knowingly remaining on the premises? 
• 2. Or, even if a passed-out person has knowingly remained on the premises, does his intent to avoid driving under the influence negate his intent to trespass? Can a lawful intent to avoid crime negate an appearance of unlawful intent?
• 3. Or, since the girlfriend occupant of the premises does not provide notice to leave to anyone but 911, is the boyfriend knowingly remaining where he has often remained before without being accused of trespassing? In other words, if the boyfriend was invited as a guest by the girlfriend and never had his invitation revoked by a notice to leave, can intent to trespass be inferred by simply passing out in the driveway?
• 4. Would a reasonable police officer think, even if in error, that a crime was in progress?
• 5. If there was not a crime in progress, can the officers open the car door to effect an arrest? 
• 6. If the officers did not have the right to open the car door, did the boyfriend have the right to “resist” an unlawful arrest? Can the boyfriend be guilty of assaulting a police officer by trying to repel intruders upon his property and person, i.e. by defending against an unlawful seizure of his person by the State under the 4th Amendment?

I have not researched and will not research these questions for this post. I don’t need to research because I am sure that there are courts that have answered all of the above questions against the person and in favor of the State. 

How do I know? Because I know this law: "Reasonable articulable suspicion exists when there are specific and articulable facts which, taken together, with rational inferences from those facts, reasonably warrant the intrusion." Hill, 2015-Ohio-4655 at ¶ 10, citing State v. Bobo, 37 Ohio St.3d 177, 178 (1988). "The 'reasonable and articulable' standard applied to a prolonged traffic stop encompasses the totality of the circumstances, and a court may not evaluate in isolation each articulated reason for the stop." Batchili at paragraph two of the syllabus, applying United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744 (2002). Reasonable and articulable suspicion is determined by evaluating the totality of the circumstances "through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold." State v. Popp, 12th Dist. Butler No. CA2010-05-128, 2011-Ohio-791, ¶ 13. "Reasonable suspicion is more than an ill-defined hunch; it must be based on a 'particularized and objective basis for suspecting the particular person * * * of criminal activity.'" State v. Hunter, 151 Ohio App.3d 276, 2002-Ohio-7326, ¶ 31 (9th Dist.), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690 (1981). See also State v. Martin, 12th Dist. Fayette No. CA2012-06-020, 2013-Ohio-1846, ¶ 13.

And that’s the point of this post: Why do courts consistently rule against the person and in favor of the State? Or as Question 4 above asks: Why is the standard that elevates the State over the individual a reasonable police officer standard? 

Why isn’t it a reasonable person standard? 

Let’s see what is reasonable:

· Do you think that the passed-out boyfriend was committing a crime – a crime in progress - and thus surrendered his right to be free from an illegal 4th Amendment seizure by the police? 

· Did the boyfriend give police the right to freely beat the shit out of him because they rousted him from unconsciousness and he reacted other than peacefully? 

· Do you think it is reasonable that an impaired person should be forced by the possibility of arrest to leave a property that he has been permitted to stay at countless times before as an invited guest?

· Is it reasonable that a passed-out person can be judged by 911 call information and police observation as committing a crime while passed out? 

· Isn’t a passed-out person, sleeping peacefully, presumptively innocent of present intent by the very act of sleeping? 

· Shouldn’t the police have to ascertain all of the above facts before arresting, beating, and charging a person, and sending them into the presumptively guilty hell that pre-trial detention-because-bail-is-too-high has become?

My reasonable opinion is that all of the above questions should be resolved in favor of the individual, not the State. Why? Because people are presumptively innocent, not presumptively guilty. 

The standard of “reasonable police officer” that is used to determine if a police officer is being reasonable even if violating the law is simply outrageous. The courts have even gone as far as to say that a police officer can be mistaken about the legality of what he or she is doing if the mistake is reasonable. A reasonable mistake can justify the State violating an individual’s right to be free. 

How is this a presumption of innocence? 

Again, I am not going to research the history of how this standard developed, because it is simply legal fiction that’s been invented by judges to justify the government having more power than the individual. The rationale used by courts is always that the State has a more important interest in preserving public peace and preventing crime than individuals do in preserving their freedom and dignity. I don’t need to read case after case that creates and reinforces that standard. I simply wonder why our esteemed (white) judges over the years invented it. And continue to reinvent it. 

The answer can be none other than, in a word, racism. Or to be more scholarly about it – presumption of Innocence is a legal fiction that courts have said does not apply to people the police “suspect.” No one is ever presumed to be innocent by the police. To the contrary, the reasonable suspicion standard does the exact opposite – it says a reasonable police officer is justified in presuming guilt, and then doing essentially whatever the police officer damn well pleases to confirm that guilt. Even if it means waking a sleeping and otherwise peaceful person, inciting self-defense, and then creating the legal fiction that the defending person was assaulting a police officer. 

Why is this racism? Because as everyone knows by now cops reasonably suspect black males of committing crimes far more than any other group of people. And because police forces are rooted in slave patrols, where the presumption of innocence did not exist because slaves were not recognized as human beings with legal rights. To put it another way, the presumption of innocence never existed for black people in this country, and it still doesn’t. 

From now on, don’t pretend that you don’t know what systemic racism is. Racism is built into the foundation and permeates the renditions of all courts in the United States.

All these “justice” groups, organizations, initiatives, funding, grants, studies . . . None of them have nor will stop racism in this country. Racism which is woven tightly and irreversibly into the judge-made law of our courts. You can study and try and fix the consequences of the problem all you want, but no amount of work will over-turn the thousands of cases that have been decided and used as legal precedent to justify continuation of this aspect of systemic racism. 

Only white-majority legislatures can change judge-made law. 

Will white-majority legislators change the law so that what is considered a reasonable search and seizure of a person is not based upon a police officer’s sense of reasonableness? Under the current standard a judge will decide at the Preliminary Hearing (or a Grand Jury upon only the prosecutor’s presentation of evidence*) if the cop’s suspicion is presumptively reasonable to overcome the presumption of innocence. Based upon my experience a police officer’s sense of reasonableness is widely accepted by judges and grand juries. Only the rare, egregious cases, like the murder of George Floyd, are permitted by the system to be judged by reasonable, ordinary citizen jurors, and not the system itself. 

Additionally, will white-majority legislatures entertain eliminating police immunity for beating up presumptively innocent people who turn out to actually be innocent? How about beating up sleeping people and charging them with a crime?

Justice reform needs to focus on only these two issues. Restoration - or rather, actually, application to non-whites – of the presumption of innocence. And criminalizing police crime. 

Until these inequities are removed from the legal fictions that control our justice system there will never be any outcome that could objectively be labeled justice. 

*Motion to Suppress evidence hearings are permitted to a defendant to allow a judge to decide if a cop’s suspicion was reasonable. 

Preliminary Hearings, in felony cases only, can be demanded by a defendant to make a judge find probable cause that the defendant committed a crime. Often times prosecutors, upon a Preliminary Hearing demand, will “transfer” the case to the sitting Grand Jury, which cancels the Preliminary Hearing and denies the defendant an opportunity to cross-exam the State’s witnesses or present defense evidence – because only prosecutors can present evidence to a Grand Jury. This is a denial of the 6th Amendment right to confront witnesses, a right which courts have held does not apply at the presumption of innocence stage but only during a trial for guilt stage. Why? Legal fiction.