Spokane7
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September 17, 2010 in City
When police issue order, only legal choice is to comply
Although the Constitution gives citizens the right to bear arms, state laws passed since then dictate how citizens can legally carry and use weapons.
Spokane County Prosecutor Steve Tucker and other legal experts say the law is crystal clear on this point: a person must follow a lawful order from police.
“When an officer asks you to drop a weapon, you drop it,” Tucker said this week. “Even in the old West, if a deputy sheriff comes up on an outlaw and says ‘drop the gun,’ you drop the gun or a gun battle starts.”
But Alan Creach, son of Wayne Scott Creach, who was killed Aug. 25, said it’s also clear that his father was no “outlaw,” and was well within his rights to carry a gun to protect his property as he had done for years.
“The reality is, by law, you have to obey legitimate or legal law enforcement instructions,” Creach said. He said he believes Tucker’s statement is “biased,” and wondered how “an elected official who has been charged with protecting the interests of citizens who have been harmed would come out with such a statement.”
Jeffry Finer, who is representing the estate of Otto Zehm — the mentally ill janitor who died as a result of a 2006 confrontation with Spokane Police — said Tucker’s statement captures the Washington Supreme Court’s current view of case law.
“You’ve got two guys with weapons who are edgy for their own reasons. It’s very difficult to know what was said and what was heard,” Finer said. “But the obligation is to always follow an officer’s lawful order. So the order, if lawful, has to be followed.”
According to Deputy Brian Hirzel’s statement to investigators, the deputy parked his unmarked patrol car in the gravel lot of Creach’s business, the Plant Farm, at 14208 E. Fourth Ave. The Spokane Valley Police officer said he was there for a prowl check call made by a neighbor and didn’t know that Creach lived in the house adjacent to the parking lot.
Hirzel said he was writing up a collision report at about 11:07 p.m. when he saw the shirtless Creach approaching with a gun in his right hand and a flashlight in his left. Though no witnesses heard him, Hirzel said he ordered Creach five or six times to drop the gun. He said Creach replied that he didn’t have to and instead put the .45 caliber, semi-automatic pistol in his back waistband.
Hirzel said he ordered Creach to the ground, but the older man refused, and the deputy struck Creach in the leg with his baton using a backhand swing. Hirzel said Creach, 74, reached for his gun and Hirzel fired when he saw the butt of the weapon.
But medical and forensic tests could find no sign of Hirzel’s baton strike, according to the investigative report released Thursday.
Finer believes Hirzel’s use of the baton might muddy the legal waters somewhat, although another legal expert disagrees.
Finer said case law backed Hirzel in ordering Creach to drop the weapon. But that legal burden may have shifted back to Creach if the baton use is later deemed excessive force.
“These things happen rapidly. At one point the officer gives a reasonable order that has to be complied with. But if the officer follows that up with unreasonable use of force, then it shifts back to the person or detainee who then has the right to defend himself,” Finer said. “You don’t have the right to fight with an officer. But you do have the right to protect yourself from an officer using unreasonable force.”
But John Strait, a professor of legal ethics at Seattle University School of Law, said Finer is “flat wrong.”
“You don’t have the right of self-defense under that case even if the police officer is completely illegal and using way excessive force,” Strait said.
Strait said the case law governing police confrontations came out of a case back in the 1920s that gave citizens the right to resist unlawful arrest. But the Washington Supreme Court modified that ruling in the 1980s, giving detainees very little leeway.
“Even if you are unlawfully being arrested, you don’t have the right to use force against a cop,” he said.
The legal burden doesn’t change whether the encounter occurs on public or private property, Strait said.
One detective interviewing Hirzel asked the deputy what would have happened had Creach put his pistol on the ground, according to the investigative file.
“Nothing,” Hirzel replied. Had Creach put down the gun and explained that it was his property, Hirzel said he would have apologized to the pastor and warned him, “next time don’t come up on a cop with a gun.” He added, “We wouldn’t be here today.”
Closing Geiger: Wise or worrisome? 
Sadbuttrue on September 17 at 7:13 p.m.
Clearly, Tucker is not going to prosecute in this case. He is going to base his refusal to prosecute on state law. He is obviously ignorant of the Constitution and doesn’t care about its restrictions on this use of deadly force, the use of unreasonable force with the baton blow, and the violation of the constitution that occurred when the Deputy first unlawfully seized the pastor on his own property.
The Feds need to step in and prosecute under Federal law. This Deputy desperately needs a long long prison sentence to get his mind right.
maria on September 17 at 7:18 p.m.
Prosecute the sex toy dealer from orbit. It’s the only way to be sure.
monkeyman on September 17 at 7:28 p.m.
“Tucker said this week. “Even in the old West…”
It’s like saying - “What would the Taliban do?”
maria on September 17 at 7:29 p.m.
Tell us something we don’t know, Mr. Clouse. Derp runs deep in your article here. Lots of us think the cop is lying. Big deal if a prosecutor in Spokane won’t deal with it. This will not go away. I hope the family sues and wins. Now, don’t get me wrong…I’m not religious, don’t care for open gun laws and can’t stand people who support Sarah Palin. I’m confident Creach was my opposite. I probably wouldn’t have gotten along with him myself. But the cop clearly has gaps in his story and needs to come clean on what really happened.
Ron_the_Cop on September 17 at 9:13 p.m.
Good points Maria.
JJS1947 on September 17 at 10:04 p.m.
Sadbuttrue just stated: “He is obviously ignorant of the Constitution and doesn’t care about its restrictions on this use of deadly force, the use of unreasonable force with the baton blow, and the violation of the constitution that occurred when the Deputy first unlawfully seized the pastor on his own property.’
I just read the entire U.S Constitution and the Bill of Rights. Nowhere in those documents did I see any restrictions on the use of unreasonable force, the use of deadly force, and unlawful seizure on private property. Perhaps I’m not a good reader - would you be so kind, Mr. Sadbutrue, to point out the Article of the constituion which states all of the above. I’m always willing to broaden my knowledge on such subjects.
Until and unless you are able to do so I’ll have to stick to the opinons put forward by legal experts in this state that contradict what you say.
Ball’s in your court Sadbuttrue
fredjames on September 17 at 10:43 p.m.
There will be a lawsuit, Hirzel should not have been on private property late at night, this shooting would never happened and Creach would not have gone outside. This prosecuter is out , the next election.
bdr on September 17 at 10:43 p.m.
aaaa Jezzzzzz I hate when they pull out case law.
Mr Creach and myself apparently watched to many vigilante news in the 60s and to many Charles Bronson movies of the 70”s and 80’s.
I have to bow……..Mr Creach was a bit excessive.
guns aren’t need to protect flowers.
We all know even Bank tellers aren’t allowed to haul guns.
and we all know no records exist of deadly flower thieves that bothered him recently.
He apparently stored up Bronson’s death wish and felt he was the higher power on his own property.. gambled……..and lost.
crap laymen and public flower salesmen don’t know case law????
I have a bone to pick with Tucker…….!
if ignorance of a law is no defense when laws comes to question like this.
Then Mr Tucker. why do you have reams and reams of case law books behind you.
The very fact CASE LAW is put into a book proves YOU TOO are ignorant of the law.
(you require a book to retrieve it from).
I had no idea a cop could do this to you on your own property.
nor did Creach, or Harvard professor Henry Louis Gates
lewis8457 on September 17 at 10:44 p.m.
And what happens in the case of Otto Zehm when a cop starts bashing on you with no vocal communication and it isn’t until he has tasered you twice before he starts screaming for you to stop resisting arrest as he holds you by the coat and continues to bash on your upper neck and shoulders with his baton.
God its sounds like Nazi Germany i want out. time to move to the hills.
misjustice on September 17 at 10:52 p.m.
JJS; I’m not sure and in no way would profess to speak for Sad but from reading his posts I believe he is basing his argument on the 4th Amendment, especially the part about seizure.
The 4th Amendment;
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The following is a brief explanation of how the amendment is applied. I KNOW, it’s Wiki but I’m tired…anyway I read it through and is accurate…
“The Fourth Amendment proscribes unreasonable seizure of any person, person’s home (including its curtilage) or personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests,[23] such as when police officers take personal property away from an owner to use as evidence. The Amendment also protects against unreasonable seizure of their persons, including a brief detention.[24]”
“A seizure does not occur just because the government questions an individual in a public place. The exclusionary rule would not bar voluntary answers to such questions from being offered into evidence in a subsequent criminal prosecution. The person is not being seized if his freedom of movement is not restrained.[25][26] The government may not detain an individual even momentarily without reasonable, objective grounds, with few exceptions. His refusal to listen or answer does not by itself furnish such grounds.[27]”
“A person is seized within the meaning of the Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained, and in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.[27] As long as the police do not convey a message that compliance with their requests is required, the courts will usually consider the police contact to be a “citizen encounter” which falls outside the protections of the Fourth Amendment.[28] If a person remains free to disregard questioning by the government, there has been no intrusion upon the person’s liberty or privacy under the Fourth Amendment — there has been no seizure.”
http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution
sources;
23.^ Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992)
24.^ United States v. Mendenhall, 446 U.S. 544, 551, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980)
25.^ Florida v. Royer, 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983)
26.^ Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S.Ct. 2248, 2255 n. 12, 60 L.Ed.2d 824 (1979)
27.^ a b c United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870 (1980).
Again, I’m not sure if that is Sad’s argument, but it is my understanding of it.
revbuckley on September 18 at 12:24 a.m.
Why sit on your butt’s and bi*** about the police? If you think they are such a problem get up and join the police department and make it change. “If your not part of the solution your part of the problem.” ever hear that. Why not bi*** about the courts? they are as much of a problem as this. What about the parole board? They release violent offender who have reoffened many times before, because the prisons are over crowded. If this man was a constent “victim” and owned a bussiness, why didn’t he have camaras on his property? Why didn’t his wife call the police when he went outside? People make the mistake thinking guns give them power and athority, but their wrong. It just makes you a target and makes more victims. I have 3 weapons myself, and damn anyone who says I have to give them up, but I would have called the police before I opened the door. I would also never argue with a cop while I was armed, Why give them an excuse? Maybe some of the problem is the type of people that live in Spokane. Like the plaza rat hitting her little child child in the head and face while everyone watched, no one stopped her from leaving with that child. Or the plaza rats beating the homeless for no reason. Kids setting the homeless man on fire a few years ago killing him. What about Eastern State Phyc. taking a violent patient to the fair and letting him get away and not calling the police for hours. I was at Mc’Ds on Sprague and Havana withs my friends kids I was watching when he came in. People here just don’t care. No wonder the police are scared of the citizens and are gun happy.
Thayne on September 18 at 12:26 a.m.
It’s been said before in previous blogs. This was a case where a storm trooper aka deputy didn’t like being defied by a 74 year old shirtless man. Once Mr. Creach put the gun in his back waistband, why didn’t the deputy just wait for his backup to arrive? It doesn’t sound like Mr. Creach was going to fire if he had the gun behind his back.
Professor Strait, let me get this straight (bad pun) If a LEO is beating on me when I’m trying to submit I can’t get scared, mad or otherwise and grab the baton or whatever to keep from getting killed? I just lay there and take the beating. If that’s the case if it ever happens I’ll either be dead or going to jail, I will not let someone beat on me if I’ve complied with their demands.
cpd805 on September 18 at 4:06 a.m.
Mis, Sad, and JJS,
Mis is correct. If there is a Constitutional violation here it would be under the 4th Amendment. A government agent detaining someone (drop the gun, get on the ground) constitutes a seizure. The seizure is determined to be either lawful or unlawful based on the objective reasonableness standard.
In this case, the question is….is it objectively reasonable for a Deputy to temporarily detain an unknown visibly armed male approaching him? Is it objectively reasonable to tell the man to “drop the gun”? If the man refuses, but instead puts it in his waistband still accesible, is it objectively reasonable to tell the man to get on the ground? If the man refuses to get on the ground and argues….still armed….is it objectively reasonable to use physical force (baton) to get the man to comply? Finally, if the man re-accesses his gun after the physical confrontation, and the Deputy fears he will be shot with that gun, is it objectively reasonable for the Deputy to shoot that man?
There may be disagreement on whether some of all of these things are reasonable or not, but I am certain there is not a jury in the world that would convict, because every action by the deputy in this case would be considered “reasonable” (not necessarily wise or the best option, but reasonable) when using the required standard set forth by Graham V. Connor decided by the US Supreme Court. Look up this court case….it is the standard on judging police use of force.
cpd805 on September 18 at 4:25 a.m.
I meant to put this in the last post….
In part, the Graham case rules that: ” The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
lewis8457 on September 18 at 7:53 a.m.
Last verse of star bangled banner
And from the land and to the sea we have lost our civil liberties.
misjustice on September 18 at 8:53 a.m.
“A person is seized within the meaning of the Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained, and in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.”
I guess getting hit with a baton, after putting the weapon in his waistband, would consitute physical force, show of authority, and restrained movement.
helloskitty on September 18 at 11:24 a.m.
The pastor put the gun in his back waistband, he then KINDLY stepped away in order for the policeman to exit his automobile, HOW, did this COURTEOUS GESTURE cause the cop to fear for his life? To the point that he batons the pastor, after ordering him to the ground (if he had gone to the ground was he gonna beat him some more?) in hopes of defending himself due to the policemans physical turn deadly force, reaching for his gun ,the cop shoots him dead (why gun? why not taser?) i am so sad for the polite, respectful pastor and his whole family.
helloskitty on September 18 at 11:26 a.m.
The pastor put the gun in his back waistband, he then KINDLY stepped away in order for the policeman to exit his automobile, HOW, did this COURTEOUS GESTURE cause the cop to fear for his life? To the point that he batons the pastor, after ordering him to the ground (if he had gone to the ground was he gonna beat him some more?) in hopes of defending himself due to the policemans physical turn deadly force, reaching for his gun ,the cop shoots him dead (why gun? why not taser?) i am so sad for the polite, respectful pastor and his whole family. (super i)
lewis8457 on September 18 at 5:09 p.m.
he said he feared for his life so he can get off on the self defense law although he is the only one that can lawfully defend himself according to tucker. That defense worked for fairy toes Olsen when he shot Pete in the back of the head and left in for dead.
i just cant get my head around the fact by law we are supposed to stand, lay, and then die as a cop beats us to death and we CAN NOT DO ANYTHING but pray and cry.
And we are paying these guys 100 grand or more a year.
Sadbuttrue on September 18 at 5:14 p.m.
Whether or not there is a state law that appears to require instantaneous citizen obedience to a cop is only one factor in the “reasonableness” requirement of the Fourth Amendment, which is Federal law and through the operation of the Supremacy Clause, trumps state law every single time.
Whether or not a citizen has disobeyed a lawful police order is only the beginning of the Graham v. Connor analysis. It doesn’t end it.
In the circuit court of appeals that has jurisdiction over Washington, there are many many cases wherein citizen Plaintiffs have won excessive force lawsuits against the police, even when the citizen Plaintiffs were convicted of and punished for violating state laws against resisting arrest. The 9th Circuit Court of Appeals is very friendly to lawsuits against the police. Even citizen Plaintiffs who were armed with deadly force and threatening to use it have won lawsuits against the police, when the police responsive use of deadly force was deemed unreasonable.
This is why Rodney King, engaged in a high speed car chase and repeatedly and violently resisted arrest won a $10 million settlement. And also why the cops in that case, who wrongfully assumed that a citizen’s resistance to police orders gave the police carte blanch to use whatever level of force they choose, ended up in federal prison. Those cops, acquitted under state law were then convicted under Federal law.
Similarly, the see-no-evil-hear-no-evil-anxious-to-please-the-cops state prosecutor, who declined to prosecute the Otto Zehm killer under state law, saw his best efforts to protect police misconduct dashed when the Feds stepped in and indicted the bad bad cop.
So hopefully Mr. Tucker will quickly refuse to prosecute this cop as predicted so the Feds can once again step in and achieve justice.
bszottlinger on September 19 at 10:41 a.m.
Sorry, I think I previous put this in the wrong place.
I agree with the case law assessment made by Mr. Finer. The waters are indeed muddy.
Law Enforcement and Pro-Law Enforcement posters, please understand that my intent here is only to point out the need for a quality, competent, investigation of these matters, in the interest of the victim, officer and public. I base my observation only on that which has been made public.
I feel Mr. Tucker must consider some of the following:
Were lawful orders given and what evidence is there to prove they were?
At this point only the statement of Officer Hirzel.
Can Officer Hirzel’s statement be rebutted?
Perhaps by Mrs. Creach.
Was officer Hirzel on the Creach property performing a legitimate law enforcement function?
At this point we only know Officer Hirzel said he was.
What steps were taken to establish Officer Hirzel’s lawful purpose on the property? (I know from experience that to often investigators presuppose the officer/s are telling the truth about their purpose)
We do know he stated he changed from a marked car to an unmarked car because the marked car smelled.
Did investigators check with the next officer using the marked car to see if he/she noticed any smell?
Hirzel stated that his positioning of the vehicle was such that it afforded him open safety. Did the scene investigation establish that as fact? Or was the vehicle secreted on the property in a way that was not safe nor allows him to view the prowl check address he said he was watching? Was the vehicle visible to passers by?
Were there items belonging to Mr. Creach near by which could have easily been placed in the trunk of the car Hirzel was using?
Would there be reason Officer Hirzel would be in need of any items located on the Creach property?
*(I AM NOT ACCUSING OFFICER HIRZEL OF ANYTHING, ONLY POINTING OUT THE NEED FOR THE INVESTIGATION TO CONSIDER ALL VARIABLES.)
Is there any evidence that Officer Hirzel’s judgment was in any way affected by drug or alcohol usage other then his own statement that he was not?
Investigator Hammond’s investigative summary does not document a blood draw on 8/25/10, nor does any other public document at this point, I must therefore assume there was no blood draw. The first mention of medication or alcohol usage is during the 9/9/10 interview. Why?, clearly in all cases like this the officer’s judgment will be questioned? Will steps be taken by the prosecutors office to obtain Officer Hirzel’s medical/prescription records by consent, subpoena, or search warrant?
Was a physical demonstration of Officer Hirzel’s actions with his baton and weapon preformed on video tape during the first interview on 9/3/10. If not, why not? A demonstration which could be used by the ME in determining with a reasonable degree of medical certainty whether the lack of trauma on Mr. Creach’s body was consistent with the blow demonstrated. A video demonstration on 9/3/10 could also have been used to compare statements made during subsequent interviews if the subsequent interviews were not tainted by public release of investigative detail.
Witness credibility is always at issue in cases like this. In many cases the victim has a long criminal history which can sometimes help to explain an officers actions. That is not the case here, so Mr. Tucker will have to address the credibility of Officer Hirzel.
Are the statements of Officer Hirzel after 9/3/10 credible given the media leaks and his admission he had been following the media reports? Although Officer Hirzel was cleared in his previous involvement with an officer involved death, what were the circumstances, what was the evidence, or lack there of? How does that matter, compare with this matter and what if anything could Officer Hirzel have learned from that experience? Can the issue of his side business be considered in addressing his credibility?
bszottlinger on September 19 at 10:42 a.m.
Continued:
Mr. Tucker has a number of options open to him at this point. Although he can not undo any mistakes made in the initial investigation he can require investigators or his staff to continue the investigation to attempt to resolve a number of issues. He could request a special prosecutor be appointed to investigate the matter. He could attempt to convince the ME to conduct a public Coroner’s Inquest as he did in the Zehm case. He could utilize an “Inquiry Judge” proceeding to obtain medical records, previous internal affairs or criminal investigations involving Officer Hirzel. He could request a Grand Jury be impaneled where 12 citizens could review the evidence, and issue subpoenas for various pieces of evidence. Lastly, he could call a press conference on Monday and say he is satisfied with the investigation as it stands and say that the case law in Washington State supports Officer Hirzel.
It will be interesting to see which route he takes, but at this point I think the waters are in fact muddy and public discussions of Washington State Case Law are premature.
Brad Szottlinger
DELTA on September 25 at 9:20 a.m.
If a cop comes up to me and was using unnecessary force on me I don’t care what the law said. I would not stand by and let them keep hurting me. In a few cases here in town I see no difference in the thugs that run the streets and the cops that are paid very well to protect us from them. Maybe a federal investigation on how spokane police and the local legal system do business? Clean out the riffraff and let the honest law serving cops do their jobs.
Marcus on January 24 at 1:59 a.m.
“Spokane County Prosecutor Steve Tucker and other legal experts say the law is crystal clear on this point: a person must follow a lawful order from police.”
that’s funny i know someone who was issues a criminal summons for “failure to follow a lawful order” and his court date never came so being a good citizen i contacted his lawyer and had him look in to it. Before the lawyer started he said there is no such RCW. The Lawyer then found that “fake” charges were dropped because they were!