Skip to main content
  1. News
  2. Politics
  3. Policy & Issues

It's a Setup


 

I imagine that we all have seen a movie or television show where the bad guy is being led away in handcuffs while loudly proclaiming to anyone who will listen; “I was framed!” In most cases, this scene is presented to provide a sense of closure and slight comedic relief. We know the acts of the bad guy were his own and we recognize his pleas as what they are; a last desperate attempt to avoid responsibility for his actions.

In the real world, claims of being framed are far rarer. The more common defense often raised by attorneys is that their client was “entrapped.” As Wikipedia so aptly states, “Entrapment is the act of a law enforcement agent inducing a person to commit an offense which would be illegal and the person would otherwise have been unlikely to commit.” The important portion of that definition is “and the person would otherwise have been unlikely to commit.” It does a defendant no good to claim that they were entrapped if they had already taken steps toward accomplishing the illegal act before any inducement was offered.

But can law enforcement themselves be entrapped? That seems to be the extraordinary claim of the Racine, Wisconsin police department in the case of an open carrier who was arrested for obstructing justice after he apparently refused to identify himself when officers began questioning him for open carrying on the porch of his own home.

The facts are still emerging, but reports seem to agree that officers were in the neighborhood where Frank Rock lives on Wednesday night investigating the shooting of one or more raccoons. While in the neighborhood, officers noticed that Rock, sitting peacefully on his front porch, was openly wearing a holstered handgun, which is legal in Wisconsin, and began questioning him. When Rock refused to identify himself or answer their questions, officers arrested him, charging him under Wisconsin statute 946.41(1) which reads:

Whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority, is guilty of a Class A misdemeanor.

The issue then becomes a twofold inquiry. First we must ask whether the officers were acting under “lawful authority” when they questioned Rock about his legal activity on his own property and secondly, whether his refusal to answer their questions rises to the level of resistance or obstruction required by the statute.

Luckily, we have clear legislative and judicial guidance on both issues. On the first issue, the Supreme Court held in Terry v. Ohio that investigative stops are justified (and therefore lawful authority) only when the officer has reasonable and articulable suspicion that a crime is being or will be committed. In the December 2005 issue of Police Chiefs Magazine, this specific topic was covered by Massachusetts attorney John M. Collins in an article entitled “Responding to Gun Possession Reports.” In his article he makes two things very clear. First, he states that “Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest, it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop.” He follows this by giving officers options on how to proceed in such an event, starting with seeking voluntary compliance by the citizen. However, he notes that “If the person … refuses to answer, and the officer does not otherwise have (legally sufficient) reasonable suspicion of criminal activity, the officer must allow the person to continue on his or her way.”

Uh Oh … It appears that the Racine Police Department has a problem already doesn’t it? But we should not consider this analysis dispositive. So let’s move on to the second issue of whether Rock’s refusal to answer the officer’s question was sufficient to constitute resistance or obstruction.

Under Wisconsin statute 968.24, which effectively codifies the United States Supreme Court ruling in Terry, an officer, “after having identified himself or herself as a law enforcement officer, may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person’s conduct.”

However, this statute does not extend so far as to impose a penalty for failure to respond to such a demand. Such a penalty was the subject of a 2004 Supreme Court refinement of Terry in the case of Hiibel v Nevada and the penalty was held to be constitutional, however Hiibel is irrelevant in this case because Wisconsin has enacted no such penalty. In fact, in the July-August 2004 newsletter of the Wisconsin Chiefs of Police Association, this very topic was discussed and Wisconsin officers were cautioned to “Beware of misplaced reliance on Hiibel” because “a person may only be arrested for refusing to identify himself if some statute or ordinance makes it unlawful to so refuse under the circumstances” and Wisconsin has no such statute or ordinance.

As a matter of fact, the Wisconsin Supreme Court has ruled on this very issue in the case of Henes v. Morrissey and held that “No law allows officers to arrest for obstruction on a person’s refusal to give his or her name. Mere silence is insufficient to constitute obstruction.”

Wow … It sure seems that the officers overstepped their bounds in this case. And it appears that they know it; because their first reaction when questioned was to claim that it appears they were “set up … to see how they would react to open carry.”

Are they actually claiming that they were entrapped into making an improper arrest? That is an astonishing claim and one that seems to have little purpose other than possibly setting the stage for a defense should Mr. Rock pursue civil rights claims under 42 U.S.C. § 1983 for false arrest.

As both an open carry advocate and a supporter of the very difficult job done by our nation’s law enforcement officers, I do not take pleasure in seeing such a lawsuit filed. It means that we have not yet accomplished our primary goal of educating both citizens and law enforcement about the legality of open carry so that law abiding citizens who choose to exercise their rights may do so without fear of these types of encounters.

However, I am not the one who spent 9 hours of his life bereft of liberty and being treated like a common criminal. If Mr. Rock decides to pursue such a course of action, I think he has a very compelling legal story to present to the court. And with the recent release of the memo by Wisconsin Attorney General Van Hollen noting that open carry is legal in Wisconsin, coupled with the clear notification in multiple law enforcement publications and Wisconsin Supreme Court rulings, it seems doubtful that the officers would pass the reasonableness test necessary to enjoy qualified immunity.

It is a sad state of affairs for all concerned. But what it does not appear to have been is a setup.

Comments

  • pacific_waters@yahoo.com 4 years ago

    The officers in question have already what they wanted. They were able to punish someone and cause them some temporary difficulties without any sanction. Cops do that all time. You can go on all you want about how difficult their job is but they don't help when they abuse their power. I've been stopped more than once for garbage reasons because at the time I had out of state tags. The problem is that the cops walk away with no punishment while the citizen has already been harassed. Prosecutors do this all time as well because they are protected by the law unless there is some airtight evidenc of prosecutorial misconduct and then they don't go to jail. And please don't use the prosecutor in the Duke case as an example. He received a very rare blowback.

  • Robert 4 years ago

    Setup my eyeball - they dorked up and thought they could get away with it and now they're deflecting their wrongdoing onto a citizen who was minding his own business. Seems to me more people need to start open carrying in protest.

  • Oliver Cromwell 4 years ago

    @Pacific_waters You are right. Thus why one needs to be not only armed with firearms(always,) but with knowledge AND Digital Recording Devices one is truly armed to make things change. From Personal Experience I can tell you, the most effective way to get rid of a bad CopS(plural) is to catch them BlAtAnTlY lying at court, once he/them has/have made a sworn written statement as evidence and the court accepts, you introduce your "NEWLY found" DVR evidence. It pretty much makes the court buckle underneath your feet, as everyone just wants you to keep your mouth shut and NOT tell the media; constantly attempting to strong arm you into compliance with that view. Believe it or not, the ranks are divided between good/great LEOs and those that are hazardous to our societies. It makes the good LEOs grin like a OC'er with a new gun when bad LEOs get the boot at no political expense of their own. As most know LEO internLpolitics are NUTS, up hill battles. LEOs are necessary evil, for now...

    ^

  • Shawn 4 years ago

    If the LEOs were investigating a shots fired call and they see a man wearing an openly carried sidearm, that would give them enough reasonable suspicion to justify a Terry Stop. He would be required to identify himself while they investigate the crime that he is reasonably suspected of committing. Did the suspect question police as to what crime he was suspected of and what was their reasonable suspicion that he committed that crime or did he just refuse to talk to them period?
    They were not responding to a "man with a gun" call, it was a "shots fired" call. I'm thinking, at that point, it would be reasonable to suspect that the guy with the gun may have done it. If it were a "man with a gun" call, then it would be a huge problem for the LEOs because open carry is legal in WI and no crime had been committed therefore, no cause for the Terry Stop.

  • Shawn 4 years ago

    Keep in mind, they did not just "randomly" decide to harass this guy because he was wearing a sidearm. They were investigating a "shots fired" call. It would be resonable to suspect the guy with the gun.
    And before the anti-gun attacks start, let me say that I own many guns, am an NRA member and a border-line Libertarian.

  • Orygunner 4 years ago

    It's pretty clear the police are supposed to play within certain rules. Just because someone reported shots fired doesn't mean they can detain anyone with a firearm. Now I think it may have been different if the police had a physical description of the person firing the shots, and it matched THAT guy, but there wasn't.

    The primary job of government, including law enforcement, should always be to protect the RIGHTS of the people. It seems some people (and cops) have lost sight of that...

  • O. Rly 4 years ago

    I guess the brainwashing has been effective in the case of below-poster 'Shawn'.

    The state has eroded evidentiary levels that define 'probable cause' and 'reasonable articulable suspicion' so that police and confused laypersons suddenly think that the level that meets PC is de facto RAS, and the level that meets RAS is really just a hunch or maybe even an articulable suspicion but certainly not reasonable.

    That means PC is in fact off the table and we allow arrests on the simple basis of RAS, and we allow the usurpation of rights on an unjustifiable level of suspicion.

    The police observed a man who was not shooting, with no suspicion to articulate that he had been shooting, with a gun IN ITS HOLSTER. Since this is AMERICA, Shawn's belief of RAS requirements would actually allow every home and person to be detained and all information collected because of the supreme likelihood that gunowners are around.

  • lee mcgee 4 years ago

    To expand Shawn's concept of RAS to the extreme, wouldn't the police be permitted to stop and search every auto in a rather large general area, if they received a report of a "hit and run"? In this fabricated scenario, wouldn't it be equally obvious to suspect any guy driving a car in that general area, because they were "investigating" a "hit and run" call? "It would be reasonable to suspect the guy" driving the car.
    "If the police insist on acting like an army of occupation, the subjects of their occupation will insist on playing their roles in return. Vive La Resistance!" - author unknown but thanked
    Note: 1] Rights predate government. 2] Rights, akin to breathing, require neither permission nor affirmation to exist. They exist, and are often most evident, while being violated.

  • ShawnP 4 years ago

    What difference does it make if it was a setup?? The vice squad does the exact same thing on prostitution stings. They put a UC officer out there posing as a prostitute to "see how you will react". The way I see it, turnabout is fair play.

  • O. Rly 4 years ago

    On the matter of 'the setup',

    1) The police in WI probably take an oath to a constitution, meaning they probably should have read it, and whenever they are in self-doubt or ignorance as to the constitutionality/lawfulness of their conduct, they should falter toward the constitution (toward such things as the right to bear arms, and be free from search and seizure.)

    2) Entrapment is something the police, or someone under the direction of the police, do. Entrapment has not historically been a justification against private actors because the 'inducement' is by one's peers. It's hardly much of a 'setup' to see that cops will /follow/ the law.

  • Shawn 4 years ago

    So according to you guys, police can, under no circumstances, question citizens while investigating a crime unless they see the person commit the crime? I think you are all jumping to a lot of conclusions here. You have no idea what was said between the LEOs and the suspect. Are you all 100% positive this guy wasn't shooting raccoons in city limits? I live in a city environment and frankly, I don't want neighbors firing guns at raccoons and risking bouncing a round up through the walls of my home. You have a right to bear arms and to self defense, not a right to shoot raccoons in city limits. A law was broken and the police were investigating. That's what we pay them to do.

  • Shawn 4 years ago

    An article in a different newspaper said the suspect matched the description of the man shooting the raccoons. Does that fact plus visible firearm give LEOs reason to question him? I would think so if I were sitting on a jury.

    I still think there is a lot of missing information to this story.

  • Ayn R. Key 4 years ago

    This reminds me of an article I read a few months ago about a group that sets up fake marijuana growing operations - rented houses, heat lamps, drip irrigation systems, etc. This gives of the thermal signature so often used by those who do grow marijuana. They then set up video cameras that transmit the signal somewhere away from the house to be recorded.

    The police lie on warrants about people going in and out of the house to purcahse pot. They burst the door down, see the OREGANO being grown, see the cameras, and see a letter left by this private organization saying that they have been caught and that the organizers were going to ask a judge to review the lies on the warrant.

  • Nowhere Man 4 years ago

    When investigating a report of shots fired in an area where it's prohibited, it's certainly reasonable to suspect and question one seen carrying a firearm in the vicinity, even though it's being carried in an otherwise legal manner. Furthermore, the fact he was on his own porch is irrelevant if it's illegal to discharge a firearm and/or shoot racoons in that area.

    Although he may not have been under any legal obligation to identify himself, it's again reasonable for the police to ask questions such as "Do you live here?" and "What is your name?" Afterall, one can't automatically assume he lived there simply because he was sitting on the porch.

    Also, be aware that in 12 states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington, it's unlawful to record any conversation unless all parties involved give their consent.

  • Hubert Hoffman, Onalaska 4 years ago

    Another excerpt from the statement released by the police, “When he was arrested, he refused to walk past a certain point, telling officers that he would not be arrested for carrying a weapon within 1,000 feet of a school.” Since when to the police arrest someone, and then try to take them to the car while they are STILL ARMED? Why didn’t they disarm him right away? Were they trying to set him up with the “Safe School Zones” violation?

    No, Hannan-Rock was cooperating; the police statement says this, right up until he realized they were no longer investigating the “shooting down the street” but that they had now FIXATED on him simply for carrying. At the point, he took the advice of the ACLU attorneys and many other attorneys “don’t talk to police.”

    Hannan-Rock broke no law, and the police know it. The fact that they (police) haven’t publicly apologized make this all the worse.

  • Hubert Hoffman, Onalaska 4 years ago

    As police are finishing their investigation, IN THE STATEMENT RELEASED, they state they say an individual standing NEXT TO Hannan-Rock who fit the description of the suspect, even though the witnesses had informed the police the “suspect” had left the area. They go to Hannan-Rocks home, but NEVER have word one with the “individual standing next to Hannan-Rock,” who supposedly matches the description of the suspect. Instead, the police start asking about Hannan-Rock’s firearm. He cooperates and answers their questions. The statement released by the police verifies all of this. “He answered their questions about the type of gun he was carrying but refused to give his name or any other information.” He DOESN’T match the description, why didn’t the police talk to the individual who did.

  • Hubert Hoffman, Onalaska 4 years ago

    To set the RECORD straight:

    The police released a statement to the press, it was widely published on the net, and here is a link: journaltimes dot com /news/local/crime-and-courts/article_56888e4c-9e4f-11de-8895-001cc4c002e0.html

    In that statement, the police admit they were called to the area because of Shawn’s “shots fired” argument. The police further admit that as they were questioning the neighbors at the location where the shots were fired, the witnesses informed the police the “suspect had left.” The “suspect” lived several houses down from Hannan-Rock’s. This is all in the public statement.

  • Hubert Hoffman, Onalaska 4 years ago

    UPDATE:

    wisconsincarry.org

    snip:

    Fortunately, the rule of law, and respect for Mr. Hannan-Rock's rights was restored when the case reached the Racine District Attorneys desk. The DA had clearly received Wisconsin Attorney General JB Van Hollen's April 20th, 2009 memo reiterating the legality of open carry of a sidearm in Wisconsin. In addition, clearly the DA was aware that refusal to give one's name is no grounds for an arrest or prosecution for obstruction. Mr. Hannan-Rock was informed on October 14th that no charges would be filed by the Racine DA. Mr. Hannan-Rock's firearm was subsequently returned to him by a Racine Police officer on October 15th 2009.

    Thank you Mr. Pierce for helping publish the truth.

Advertisement

News

  • Gaza school shelled
    Israeli airstrikes topple a school in Gaza suspected of housing rockets; dozens killed
    Video
    Video
  • Ebola outbreak
    An American with Ebola virus died shortly after boarding three planes
    World News
  • Why dogs smell butts
    Researchers figure out why dogs like to smell each other's butts
    Pets
  • Time to stop tanning
    The surgeon general advises us not to tan as melanoma cases are on the rise
    Health News
  • Zimmerman lands dream job
    George Zimmerman lands his dream job as a security guard at a gun/motorcycle shop
    Headlines
  • 10 smartest states
    Here are the 10 most educated states in the U.S., did yours make the cut?
    US News