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Author Topic: Local Jurisdiction and RF Compliance  (Read 4561 times)
K5END
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« on: November 06, 2009, 12:08:54 PM »

In another thread, WG7X raised a very valid point. I thought his point is worth its own worthwhile topic and thread. Here it is.

He says (paraphrased) if a policeman tells me to stop transmitting and I disregard the instructions, I might get arrested. Vindicated later yeah, mayyyybe, but still arrested. Nothing like spending a night in jail to ruin your day, or so they tell me.  

Like they say, "Ya can beat the rap but you can't beat the ride."

I'm sure the laws vary by State, but I think it goes further than that. I'm not so sure I would win such a case in court. If a policeman tells me to stop transmitting from my home or mobile, even though I am not doing anything otherwise illegal, it may be a crime for me to disregard the instructions. Whether his reasons are justified or not probably doesn't matter at the time he tells me to shut down.

It's probably one of those "obey now and complain later" situations. In either case, there is no QSL card worth a night in jail.

On the other side of the coin, I'm not aware of any law in THIS State that says I have to answer my door when a policeman knocks. I'm no lawyer, but I'm pretty sure that I don't have to answer the door of my HOME for anyone. The sacred "Castle Doctrine" laws in Texas give a lot of special rights to someone INSIDE the walls of his own home.

Besides, if he has a warrant or otherwise does not need my permission to enter, he's not going to spend a lot of time waiting for me to answer the door anyway.

With apologies for the rambling premise in this post, what say the experts?
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N5LRZ
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« Reply #1 on: November 06, 2009, 12:53:16 PM »

Re END...

IF I understand the law properly, a valid signed search warrant (signed by a judge duely and properly per law) means the police can break down your door after announcing themselves and giving reasonable time to enter.

When a search warrent is issued properly and per the law the individual no longer has any right to privacy under the law.

WELCOME to the NOT so new world where the LAW is superior to Liberterans.

When a law officer says Open UP Search Warrent you had damn well better F***** open up that door and step aside because the police are in complete charge NOT YOURSELF.  

AND IF anyone says but I have a rifle, pistol or other weapon I strongly urge you NOT to even think about showing it.  POLICE have the authority to shoot to kill when confrunted by weapon wielding people.

BUT IF yall want to be stupid/possibly dead brave go ahead.  Show the nice officer your 9 mil semi auto.
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K5END
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« Reply #2 on: November 06, 2009, 01:12:39 PM »

That doesn't answer the question I posed. But thanks for your take on it.
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K7UNZ
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« Reply #3 on: November 06, 2009, 03:01:31 PM »

Having read it three times, I would have to ask....

What, exactly, is your question???

Jim/k7unz
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K5END
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« Reply #4 on: November 06, 2009, 04:27:08 PM »

The main question would be hard to answer because each State may have different laws on this.

But for any given jurisdiction, if a municipal, county or state, non-FCC or non-Federal officer knocks on the door of my house and tells me to cease transmitting either with or without explanation, does he have that authority, and is it illegal for me to disregard his directive? My guess is it is probably unlawful to disregard and continue transmitting.

Here is why I think he has the authority. Public safety. For example, there may be an EMS crew next door trying to de-fib a patient and their EKG or other electronic stuff won't work whenever I transmit.


Now, on the pragmatic approach, of course it would be foolish to disregard the directive, because he may have the authority to take you into custody. (Even if he doesn't have the authority to take someone into custody doesn't mean he won't do it anyway.)
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WB2WIK
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« Reply #5 on: November 06, 2009, 05:45:13 PM »

I'd ask: "How do you know I was transmitting, or even have the ability to transmit, anything?"

They'd need a signed search warrant to find out.  If they had one, I'd let them in.

If they didn't have one, I'd laugh my butt off.

Ham gear doesn't stop emergency medical equipment from operating properly.  In fact, all that stuff passes very severe immunity testing at levels that are higher at ground level than anything "we" could produce running 1500W into elevated antennas.

Remember,  most of that equipment needs to be fully functional if they were engaged in lifesaving services at the site of a 50kW broadcast transmitter, with the tower fifty feet away.

Local jurisdiction regarding ham radio normally ends with "Disturbing the Peace" ordinances.  If you are screaming into the microphone with your window open and your neighbor has a legitimate complaint about that, the police can site you for a violation of the local peace ordinance -- and that might be justified.
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K5END
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« Reply #6 on: November 06, 2009, 09:39:28 PM »

"Ham gear doesn't stop emergency medical equipment from operating properly..."

I know that and you know that, but you know how people freak out about ham radio "interference." The med equipment was a bad example.


I think I would just tell the officer that I am communicating with the planet Xantar and offer him an aluminum hat. Hey, I might even get to be on the 6:00 news. Smiley
 

'Local jurisdiction regarding ham radio normally ends with "Disturbing the Peace" ordinances. If you are screaming into the microphone with your window open and your neighbor has a legitimate complaint about that, the police can site you for a violation of the local peace ordinance -- and that might be justified.'

Good point. But we don't need microphones to scream with the window open.

In fact, I used to date this crazy wild chick who would really scream when...uh...er...oops.

Oh, wait. I got it. When she saw a spider! Yeah, that's it. A spider. She likes to scream at arachnids.
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N3OX
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« Reply #7 on: November 06, 2009, 10:19:25 PM »

We are very lucky to live in a society where we are generally free from wrongful seizure.  But it's hard to make sure it exists without citizens taking the occasional risk and exercising such rights.

I generally think that for the smooth functioning of a lawful but free society, I should cooperate with the police.    However, there are some situations in which some officers overstep the bounds of their authority, and make it clear that "you should just obey" while they are not informing you of a specific crime that you are committing or dangerous situation that you are exacerbating.   I understand it and forgive it as a mistake made in **truly** stressful situations, but it can't be allowed to happen routinely nor can we routinely make excuses for it.

I also recognize that, given my demographic, I have vast privilege in my interactions with law enforcement.  That privilege will likely increase as I age.  I am probably fairly likely to emerge largely unscathed from an short incarceration for which I committed no crime.   Furthermore, the officer in the wrong would probably not.  Not everyone can say that.

I haven't been to jail.  I don't intend to go.  And generally speaking, I'm a nice, cooperative guy who appreciates the job our fine folks in law enforcement do.

But I have rights forbidding my seizure for failing to obey arbitrary orders, as do we all, and as reasonably well off white male, I also have some extra immunity to the consequences of exercising those rights by refusing to do what a police officer tells me to do if I neither see a reason nor have been given a reason.

I also know of no law that endows local law enforcement with the right to terminate my transmissions.  I can think of lots of reasons why an officer of the law might *think* they have the right to terminate my transmissions (in particular, something like confusion about ham radio vs. CB and a furious next door neighbor who calls the cops every time he hears me in his piece of crap unshielded $10,000 TV )

If a local law enforcement officer knocks on my door and ASKS me to terminate my transmissions because of a legitimate matter and is willing to discuss with me the reasons why I should do that, and is willing to discuss my probable legal right to NOT stop transmitting, to talk about Part 97 and Part 15 with respect to my neighbor, there should be no problem.  We'll have a discussion, I'll shut down, or not, depending.  

If instead I'm greeted with a spurious authoritarian situation, like the guy knocks on my car window just for being parked in downtown DC chatting on the radio and feeds me some fiction about security rules based not in law but in vague "policy", maybe I'll take one for the team and stand up for our rights.

All depends.

73
Dan
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73,
Dan
http://www.n3ox.net

Monkey/silicon cyborg, beeping at rocks since 1995.
N5LRZ
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« Reply #8 on: November 07, 2009, 05:19:30 AM »

RE WIK...

EVER hear of direction finding equipment.  

AND once they have got you located all it takes is a vehicle sitting a few yards away on the street to say YUP THATS HIM.

But probably your neighbor will be calling in to the police dept to make a complaint before that making the direction finding truck not necessary.
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N5LRZ
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« Reply #9 on: November 07, 2009, 05:24:38 AM »

Re END...

re re "But for any given jurisdiction, if a municipal, county or state, non-FCC or non-Federal officer knocks on the door of my house "

And that would be correct if it WERE your neighbor.  Your neighbor has absolutely no fcc rights when it comes to watching TV or listening to the sterio.  In that instance you are absolutely correct.

BUT if that person flashes credentials of Law Enforcement be it the FCC or Local Law then you had GD damn well better say YES SIR HOW CAN I HELP YOU SIR in a very cheery voice.
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K5END
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« Reply #10 on: November 07, 2009, 05:58:06 AM »

"you had GD damn well better say YES SIR HOW CAN I HELP YOU SIR in a very cheery voice. "

sometimes saying, "NO, SIR" in a very cheery voice works too.

one thing I do enjoy is the freedom to not answer the doorbell in the first place.
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WB5JEO
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« Reply #11 on: November 07, 2009, 06:33:00 AM »

"It's probably one of those "obey now and complain later" situations."

Correct. I've been a working peace officer most of my life, including command and analysis and instruction in search and seizure law. Should such a thing happen, (an amazingly unlikely event), comply and seek explanation later. You can pretty well judge by the apparent stress indicators you observe if it might be an emergency you can't imagine. I could come up with endless scenarios where it could be essential to shut down a transmitter. None of them are likely to happen, but they are possible. I can also imagine endless scenarios where the order or request wouldn't be lawful or justified, such as an officer misusing his authority because his wife's TV show is being disturbed, but all it takes is a call to the police department where you're either told there is an emergency - or they have no idea what you're talking about, in which case, you demand a supervisor come by.

As to warrants, in any situation where a warrant could be obtained or any situation where protection of life or property requires entry, entry can be made exactly as if the warrant had been obtained, and all the law and procedure is just as if there was a warrant. "Show me your warrant" is TV baloney. I don't have to show you the warrant, and I don't have to have it in hand. (I have to have it there eventually to enter to seize contraband or evidence, because when I leave, you get a copy and inventory. But that's not what we're talking about here.)

As to custody, we're really talking here about when force is justified. (The officer's use of force. Any force you offer will be lawfully countered by force.) Again, if the entry, seizure, detention, or arrest is lawful, force is justified to the degree necessary to effect the custody or seizure or to prevent harm. I can pretty well assure you that most any officer understands the rules better than all but a few citizens, including most attorneys. (Law students are fun to deal with. They think they know.)

I note this statement:
"I also have some extra immunity to the consequences of exercising those rights by refusing to do what a police officer tells me to do if I neither see a reason nor have been given a reason."

Not quite. You may not hear the reason. It may not be possible to quickly explain the reason. Any officer will, of course, try to clarify it, but your simple belief that an action isn't lawful is NOT the test. Many have gone down screaming, "You can't arrest me!" or "You don't have a warrant!" Almost all of the imagined "immunity" in an extreme situation would have to come from a jury at your trial, which is not where we'd like it go.

If it's truly an emergency and necessary that your transmission cease, it will cease. Whether it's voluntary or because your power's cut, will depend on you and circumstances. And interference with that lawful act will result in arrest. And resisting even an unlawful arrest is an offense. It has to be that way. Citizens have to know when they violate the law from the wording of the law. If it said it was okay to resist if the arrest was unlawful, they'd always be guessing and depending on possibly an incorrect belief, so it's stated simply. ("Mistake of law" is no defense.) Nice civil remedies exist to redress other acts of idiot officers.
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N3OX
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« Reply #12 on: November 07, 2009, 08:20:18 AM »

"Almost all of the imagined "immunity" in an extreme situation would have to come from a jury at your trial, which is not where we'd like it go."

But that's what I was talking about.  Or in the post-arrest aftermath where it became clear that my arrest was a mistake.

Your point about stress indicators is spot on.  It would be generally clear in many situations that there was an *actual* problem of genuine public safety and security.

And again, I am a calm rational guy, and appreciate the stress that law enforcement officers are under. I just can't rule out the possibility of refusing the instructions of an officer of the law if I truly feel that I'm being bullied for no reason.

That could end in my arrest.  Hopefully I would have had sufficent judgement and  knowledge of applicable law so that I hadn't actually committed a crime while refusing to obey arbitrary instructions.

There are lots of situations in which I would call for explanation after I complied.  Lots and lots of them.  But there would be others where I would feel secure in my position that I was being forced to comply with arbitrary whim or was facing an emotional reaction to nothing more than a perceived lack of respect for authority, and I recognize that could lead to me being wrongfully arrested.  I don't have a lack of respect for authority, but I've got no respect for authoritarianism.  

It is possible that I would make a mistake trying to tell the difference.  That's a risk I might choose to take in a given situation.

73
Dan
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73,
Dan
http://www.n3ox.net

Monkey/silicon cyborg, beeping at rocks since 1995.
K5END
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« Reply #13 on: November 07, 2009, 10:58:07 AM »

Thanks for the comments, JEO and Dan. Good thoughts.

I think the "MISC" forum is the only place for this discussion, and it is a good one.

JEO, you said what I assumed to be the case; nonetheless, you expressed it more coherently than I did.

There is an old myth about an FCC employee getting a speeding ticket by radar, and then turning around and citing the traffic officer for failing to present a transmitter license for the radar gun. It's amazing what people believe. Sheep.

Yes, most people are not aware that they don't have the discretion to allow law enforcement to enter until paperwork is duly served. That's why I would not answer the door in some cases. They would not bother to knock or ring the doorbell if they didn't need my permission to come on in. If a policeman knocks on the door to "get your side of the story," it means he needs more evidence and has an agenda to get you to say something incriminating.

However, I never did realize that resisting an unlawful arrest is unlawful. That concerns me in a case of "official oppression," which from the citizen point of view I can assure you that it happens A LOT more than anyone is willing to admit. I guess the citizen has the burden to decide whether he is better off 1. in jail or 2. facing the consequences of the risk he takes by resisting. It doesn't make much sense to resist unless you believe that your life is in imminent danger should you be taken into custody. In other words, the only time to resist is if you are being arrested unlawfully AND you have nothing to lose, as in the case of clear and present danger or where threats have been made against the one being arrested.

But thank goodness those extreme cases are not relevant in my hypothetical "turn the transmitter off" scenario...with one exception.

Suppose I am operating as a M.A.R.S. volunteer and live military communications (other than morale comm) would be affected adversely? Who answers to that? We have many different law enforcement entities (90, I think) in my county. One entity type includes county precinct deputy constables, whose authority is limited. They are often young, less trained and certainly less experienced. They face the biggest challenge in many ways not only for their own safety but in knowing what boundaries to not cross.

Dan, I agree with you in theory, but at post-50 age I can't think of anything I'd like to do less than sit in jail overnight. I don't have any experience at it. Im just pretty sure I would not like it very much.

Well, I guess there is one thing I'd like less, and that is spending time in a hospital handcuffed to the bed rails.

Unless I felt I was in imminent danger by complying with being taken into custody, my response would be a different approach. I'd document my ass off (documents include video and audio) and then complain about it later with a seasoned attorney. That would be an uphill battle anyway.

Bottom line is, I believe one should choose his battles carefully. Is the issue worth it? The old military saying, "is this the hill you want to die on?" is apropos.
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N2EY
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« Reply #14 on: November 07, 2009, 12:29:56 PM »

K5END writes: "They would not bother to knock or ring the doorbell if they didn't need my permission to come on in."

I don't know if that's really true.

IANAL, nor a LEO, but as I understand it, they have to refrain from the use of force unless circumstances require it. IOW, they have to knock rather than just break down the door, unless there's a good reason not to (such as bad people waiting for them to knock so they can set off a bomb or something). Similar to the situation where, for a traffic violation, they will put the lights on and motion you over rather than try to shoot out your tires.  

73 de Jim, N2EY

hpe cu in SS
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