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Constitutional Rights

October 13, 2023

By Thomas McCutcheon

A recent case decided by the Federal Court emphasizes a person’s right when responding to a police officer.  Someone reported to 911 that two men “messing with a car”.    

About 30 minutes later, Officer Krista McCabe arrived at the scene.  The entire incident is recorded on the officer’s body cameras.  McCabe approached Edgar who was lying on the ground next to the Camry, which was up on a jack with a tire removed.  McCabe asked Edgar what he was doing, and he responded that he was fixing the car of one of his customers.  After a few moments Officer Perillat also arrived on the scene and McCabe asked Edgar for his driver’s license or other ID. 

Edgar said he was not going to submit his ID to them and told them to call the owner of the vehicle.  At no point did any officer ask Edgar his name or address.  Then suddenly, Perillat seized Edgar from behind and started handcuffing him saying “We don’t have time for this” and “You don’t understand the law.”  Edgar was charged with obstructing governmental operations in violation of Ala. Code 1975, §13A-10-2(a)(1).  

The officers argue they had probable cause to arrest Edger because he used “physical force or interference” to obstruct their investigation and that Edgar commented an “independently unlawful act” by refusing to identify himself.  They claim the Alabama Stop-and-Identify statute §15-5-30, and the Alabama driver’s license statute §32-6-9 required Edgar to produce his identification.  

The Court found that no reasonable officer could believe that Edgar was using physical force or intimidation and therefore there was not even arguable probable cause to support Edgar’s arrest and the officers are not entitled to qualified immunity under this theory.  

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The Supreme Court has repeatedly ruled that the police may ask members of the public questions and make consensual requests of them as long as the police do not convey a message that compliance is required – but the person “need not answer any question put to him; indeed, he may decline to listen to questions at all and may go on his way.”

That’s the classroom law.  My law school criminal procedure professor said that the goal of any encounter with the police is to survive the encounter.  There are body cameras, cell phones, and dash cameras have changed the ways in which we interact with the police and the police interact with us.  I say be polite and professional because that makes a lawyer’s job easier.  Reach out to a personal injury lawyer.

Frequently Asked Question

My friend’s wife was jerked out of a car and beat with a weapon. What can she do about that?

A lot actually, but some of it is disappointing. As a legal issue, it is interesting because it has both a criminal aspect and a civil aspect which require different levels of proof. Everyone remembers the OJ Simpson case where the prosecution failed to convince a jury beyond a reasonable doubt in the criminal case. However, the next jury quickly found that more likely than not he committed murder and found him liable for 33.5 Million Dollars in damages.

The first step in this type of case is a criminal prosecution. There’s a reason for that and it has to do with the burdens of proof. The criminal burden of proof is “beyond a reason doubt” (think jail) and the civil burden is “more likely than not” or “probably” (think money).

The British definition of assault is straight forward. The first is common assault where if another person inflicts violence, however slight or makes another person think they are about to be attacked, they are guilty of simple assault. A raised fist could lead the victim to believe they are going to be attacked and that could be enough to be guilty. The next level is actual bodily harm (ABH) and the third is grievous bodily harm (GBH). In the United States we would think of a stick or a pipe as being an assault with a deadly weapon. Each class carries ever more severe criminal penalties by statute.

The civil side of assault is the idea that if you cause harm to someone you are financially responsible for the harm you cause. This would include medical bills, pain and suffering, so on and so forth. A jury would award damages based on the facts of the case and the severity of the injuries. Juries are pretty practical, and I would think that if two grown men started to fight voluntarily and one lost and the fight stopped, the jury wouldn’t get particularly excited. However, if after the winner saw the other was down, he began kicking him unmercifully, a jury would see that differently. I would think that if a large man decided to beat up a small woman jury would not take kindly to that.

The reality is that people who can write big checks avoid doing things like intentionally harming other people. Two further concepts are worth consideration. No insurance applies for an intentional act. Second, monetary awards for intentional acts are typically not dischargeable in bankruptcy.


A plaintiff must request a specific remedy, such as a payment it wishes the defendant to make or an action it wants the defendant to take or stop taking. A plaintiff cannot ask the court to issue an advisory opinion, make a public statement on an issue, or edit a statute, although the courts interpret statutes and have the authority to find them unconstitutional.

If waiting for a final decision from the court might prove ineffectual to a plaintiff, he or she may request an injunction. These are situations where immediate and irreparable harm will be done without a court order. Think of the demolition of a building, once done it can’t be undone. In those situations a court can order that the opposing party do or stop doing an act – at any time. The court may grant the request before a trial is completed if: (1) It deems the plaintiff likely to succeed in the case; (2) The plaintiff will likely to suffer irreparable harm if it is not granted; (3) The plaintiff will likely endure greater harm from the absence of injunction than the other party will endure from it; and (4) the injunction is in the public interest.

Some civil remedies: (1) Damages: Payment for plaintiff’s losses; (2) Specific performance or injunction: Litigant must perform or cease performing a specific act such as the sale of a specific of property. Property, in the eyes of the law, is deemed unique. Each parcel had its own qualities and therefore the breach of a contract concerning the sale of a house for instance would require the sale of that specific house; (3) Declaratory Judgment: Rights and obligations of litigants clarified or determined. We see declaratory judgments in cases of insurance coverage. Sometimes people will buy particular types of coverage that either do or don’t have the type of coverage they need. Insurance companies will file to determine that they do not have coverage under a particular type of policy. For instance, a policy of property damage on a 4-wheeler would cover the 4-wheeler but may not cover injuries caused by the 4-wheeler.

Buckle up, drive safely, and as always, your referrals are appreciated! 256-764-0112

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