Law for Backpackers - Q and A [Archive]

The Weasel

12-06-2006, 14:04

This is a thread for questions about law, for backpackers. The thread has rules, and as the starter of the thread, I ask those who post on it to honor them. If you don’t wish to, that’s your right, but courtesy would be that, if you can’t, you post your thoughts elsewhere. If you don’t, your posts may be deleted by the Moderators. If you can’t live with the rules of “Straight Forward” and these requests, please have the decency to refrain from posting.

There are two related threads: One will be created soon in the Articles section, consolidating legal topics from a previous thread as well as from here. A second already has been created, entitled “Legal Peeves and Praises”. It is for such things as:

1) Personal comments, whether in praise or attack
2) Accounts or arguments regarding personal rules of morality
3) Debates about the advisability of violating the law or how others have done so;
4) Debates about whether the law makes sense or needs to be changed
5) Personal opinions about people in law, whether lawyers, judges, LEOs, lawmakers, or anyone else
6) Requests for the resumes of the posters on the other thread

These are the rules for this thread:

On this thread, only:

(1) Topics that reasonably relate to issues affecting backpackers to a greater extent than a backpacker would find in a non-backpacking context. For instance, the topic of “driving under the influence of intoxicating liquors” is fully off-topic, coming upon dead bodies is marginal, and hitchhiking is fully on-topic.

(2) Questions should be limited to ones such as, “What is the applicable law in jurisdictions on the AT in this type of situation or on the following topic or type of factual situation?

(3) Requests for clarification are appropriate to the extent they are about what a poster responding to a question meant or what statute, precedent or legal concept supports your position; and

(4) Responses to (1), (2) or (3). Responses must be confined to:
(a) What the law forbids or does not forbid in which particular jurisdiction (including “common law” and federal concepts);
(b) How the law functions (such as legal procedures) in a given situation
(b) What consequences are risked by violators (including criminal, administrative, and civil consequences); and
(c) Corrections of previous posts, specifically including the basis upon which the correction is based, and worded, "I believe you are mistaken...." or similarly.
(d) Responses that go beyond these, or a brief “thank you” (if appropriate) should go to “Legal Peeves” or elsewhere, and the Moderators will be asked to delete any comment which violates this rule.

(5) If the poster is not an attorney, or, as to particular topics, is not trained, employed and/or licensed in the field that topic involves (such as law enforcement, medicine, search/rescue), and the poster is stating a response, the poster should make that fact clear so that readers can take into account the poster’s lack of training/employment/licensure. Posters who make posts based on their training/employment/licenses should indicate at some point the basis. Those who disagree with the poster's qualifications or want more information about them should do so by private message, posting on "Peeves and Praises", or, if believed to be falsely stated, referred to the Moderators.

(6) As to any statement by an attorney, it should be understood that the statement is for general purposes only, and does not constitute legal advice by her or him on any specific state of facts to any person, and no “client” relationship is created by any such statement. People having questions about a specific legal question pertaining to them should obtain legal advice from an attorney licensed in their jurisdiction.

The Weasel

John B

12-06-2006, 14:27

If this was covered previously, my apologies, and I'm sure that this is a dumb question, but nevertheless....

I have a concealed/carry license in Kentucky. Does a CCW license also cover carrying a concealed knife with a long blade (something that would otherwise be considered beyond the legal length)? Will that be dependent upon how a "dangerous weapon" is defined in the statutes relating to CCW laws and regs?

And no, I've never once carried a pistol or long-blade knife while hiking. My most dangerous weapon on the trail is my Leki poles.

Thanks in advance for any info.

Lone Wolf

12-06-2006, 14:37

John B

12-06-2006, 14:48

Thanks L.Wolf -- very informative link.

Jack Tarlin

12-06-2006, 19:25

A few questions to The Weasel:

1. On several of my trips, I've been involved with either Search and Rescues
for lost hikers, and also with medical asistance/evacuations of injured
ones.

On all of these ocasions, there were several kind of other people present:
There were those eager to help out and assist in either locating the miss-
ing hiker, or assisting or aiding the injured one. There were those that
joined in these efforts sort of reluctantly, i.e. they had to be asked to
help join the Search or help carry the stretcher, etc.

And on a couple of memorable occasions, there were hikers who did
nothing at all, even when they saw other hikers pitching in to help with
the situation.

My question: Forgetting moral or ethical requirements, is a hiker ever
LEGALLY required to assist in an emergency situation, and can they be
held legally liable if they refuse to help out?

2. Next question is related to the above. I have very little formal medical
training, but I have some, i.e. more than the average person. On ALL of
my trips, I've helped hikers out with medical issues.....I've treated
blisters, lanced infected toes, stabilized a broken limb, helped out with a
stretcher, etc. On one memorable occasion, I carried an injured hiker on
my back til we could get them to a road crossing so they could be
evacuated to a hospital.

My question to you is this: Is there some sort of "Good Samaritan" law
that protects people who are giving well-meaning aid/support/treatment
in an emergency situation or can they be held liable if it is determined
that their aid proved harmful? Also, if someone DOES posess formal
training, i.e. one is a nurse, physician, or has been certified as an
emergency first-aid responder, 1) Is one legally required to help out in
an emergency situation, and 2) Can one be held liable if problems develop
for the patient? Is there a legal provision protecting those who provide
voluntary medical assistance in an emergency, or can one be held liable
for giving medical asistance/treatment without sufficient training/licensing,
etc.

What I'm basically asking is this: When one voluntarily participates in a
Search and Rescue situation, or helps out an injured hiker in an
emergency, does the rescuer/aid provider have any legal protection or
are the good deeds performed at a potential risk to the samaritan?

honu

12-06-2006, 21:34

What I'm basically asking is this: When one voluntarily participates in a Search and Rescue situation, or helps out an injured hiker in an emergency, does the rescuer/aid provider have any legal protection or are the good deeds performed at a potential risk to the samaritan?

I believe my post (#274) in the previous thread provides a partial answer to your question.

The general rule in the United States is that a person has no duty to come to the aid of a stranger in distress unless the person negligently created the situation that put the stranger in peril or a special relationship exists. But if assistance is rendered, there is a duty to reasonably provide and continue that assistance (say until a more qualified person arrives and takes over). Good Samaritan laws have been enacted to encourage people to come to the aid of strangers in distress. They give some protection to some people. For example, they may protect the aid-giver from liability for negligence (but still make him/her liable for gross negligence or wilful and wanton misconduct).

Also in that post was a comment relevant to the question about whether people who are rescued can be held liable for the cost of S&R. New Hampshire has a statute that imposes liability in some cases. Also, the State of Hawaii (and some other states, I believe) has brought lawsuits against hikers who were rescued.

It seems governments are increasingly seeking to hold people liable for the expenditures of public money necessitated by their misconduct, such as seeking restitution for the cost of search and rescue from people who recklessly caused themselves to be lost or injured (e.g., ignored signs of a dangerous area, were poorly equipped for the terrain and weather, lacked reasonable skills and physical conditioning) or seeking restitution for the costs of fighting a forest fire that was started by a person’s negligence.

The Weasel

12-06-2006, 21:43

A few questions to The Weasel:

1. On several of my trips, I've been involved with either Search and Rescues for lost hikers, and also with medical asistance/evacuations of injured ones.

Jack: two very good questions are below. These comments are preliminary takes on each, although I'll do some research on them later and supplement this.

On all of these ocasions, there were several kind of other people present:
There were those eager to help out and assist in either locating the miss-
ing hiker, or assisting or aiding the injured one. There were those that
joined in these efforts sort of reluctantly, i.e. they had to be asked to
help join the Search or help carry the stretcher, etc.

And on a couple of memorable occasions, there were hikers who did
nothing at all, even when they saw other hikers pitching in to help with
the situation.

My question: Forgetting moral or ethical requirements, is a hiker ever
LEGALLY required to assist in an emergency situation, and can they be
held legally liable if they refuse to help out?

At common law - i.e., in the absence of a statute - there is generally no duty of a bystander to a situation to give aid, including medical personnel, and no liability for failure to assist. There may be situations where there is some kind of relationship between the hiker and the victim which changes this, however, such as a leader of a youth group, organizers and sponsors of groups (particularly if commercial or a fee is collected), an agreement to supervise/assist (which may be oral), employer/employee situations, and some other situations where one can see some kind of undertaking by the hiker, express or implied, to assist or care for the victim. I am not aware of statutes that alter this where there is no relationship, or undertaking, say, in the extreme example of a hiker coming upon someone severely injured and silently walking past. But I'll try to check on this and see if I can come up with something.

[quote=Jack Tarlin;281261]2. Next question is related to the above. I have very little formal medical training, but I have some, i.e. more than the average person. On ALL of my trips, I've helped hikers out with medical issues.....I've treated blisters, lanced infected toes, stabilized a broken limb, helped out with a stretcher, etc. On one memorable occasion, I carried an injured hiker on my back til we could get them to a road crossing so they could be evacuated to a hospital.

My question to you is this: Is there some sort of "Good Samaritan" law
that protects people who are giving well-meaning aid/support/treatment
in an emergency situation or can they be held liable if it is determined
that their aid proved harmful? Also, if someone DOES posess formal
training, i.e. one is a nurse, physician, or has been certified as an
emergency first-aid responder, 1) Is one legally required to help out in
an emergency situation, and 2) Can one be held liable if problems develop
for the patient? Is there a legal provision protecting those who provide
voluntary medical assistance in an emergency, or can one be held liable
for giving medical asistance/treatment without sufficient training/licensing,
etc.

What I'm basically asking is this: When one voluntarily participates in a
Search and Rescue situation, or helps out an injured hiker in an
emergency, does the rescuer/aid provider have any legal protection or
are the good deeds performed at a potential risk to the samaritan?

That's a lot of questions. Several comments, none of which are anything more than general at this point, but I think pretty close to target: If you provide medical care to anyone else, you may be violating laws regulating the practice of medicine. You may also be held to the same standard of care as someone licensed to provide the kind of care you are giving, which means that if a nurse, NP, or MD, EMT or other would provide different, and better care, and your "patient" suffers as a result, you may well be liable for your actions in money damages. As for licensed professionals, some states do require them to provide emergency assistance; licensed professionals will be aware of those circumstances under their local state's law, or should contact their licensing agency. "Good Samaritan" laws are in force in most, but not all states, and generally protect good faith attempts to assist in emergencies, but they are not total guarantees. Again, those laws are going to be very different from one state to the next, and most of them are findable on the Internet under "Good Samaritan Laws" or in each state's legal code (almost all states have their code in searchable form: Google your state and "statutes" and look for the proper location. Then search internally for "Good Samaritan" or "good faith emergency" and you should find what you are looking for.

Beyond that, SAR teams are either governmental (with much protection, although not for gross negligence (i.e. very, very negligent) or intentional misconduct), commercial (with, I hope, training), or, if volunteer, subject to the Good Samaritan laws of their state.

The Weasel

LostInSpace

12-06-2006, 21:44

The Weasel

12-06-2006, 21:46

Honu, I don't disagree with what you say. However, I think I recall reading somewhere that this "general rule" may not be true under US Admiralty Law, although that obviously does not apply to hikers. Do you know?

Admiralty law - dealing with issues that occur on the high seas and open waters (also sometimes confused with "maritime law") is not really relevant to backpacking. Rather than nitpick on how it is, I hope this question can be deferred to, at most, private exchanges.

The Weasel

The Weasel

12-06-2006, 22:08

I believe my post (#274) in the previous thread provides a partial answer to your question.

***
Also in that post was a comment relevant to the question about whether people who are rescued can be held liable for the cost of S&R. New Hampshire has a statute that imposes liability in some cases. Also, the State of Hawaii (and some other states, I believe) has brought lawsuits against hikers who were rescued.

It seems governments are increasingly seeking to hold people liable for the expenditures of public money necessitated by their misconduct, such as seeking restitution for the cost of search and rescue from people who recklessly caused themselves to be lost or injured (e.g., ignored signs of a dangerous area, were poorly equipped for the terrain and weather, lacked reasonable skills and physical conditioning) or seeking restitution for the costs of fighting a forest fire that was started by a person’s negligence.

This post is very accurate, particularly as to "cost recoveries." In addition, governments are increasingly bringing (and winning) criminal charges against those whose negligence (or even intentional acts) have resulted in SAR situations and forest fires. This can (for negligence) become as serious as manslaughter or even murder and "felony murder" (separate felony such as arson resulting in a forseeable death). Those can be death-penalty eligible.

The Weasel

Appalachian Tater

12-07-2006, 00:35

I would caution that you still need to have either implied or express consent to render first aid.

Here's a list of Good Samaritan laws by state, but you should always research as Weasel suggested to get up-to-date info, maybe using this list to get keywords for Google:

http://www.momsteam.com/alpha/features/cardiac_awareness_center/good_samaritan_laws.shtml

In Quebec and France bystanders are supposed to give aid if they can.

Disclaimer per rules: I'm an RN and have a graduate degree in health care administration and policy but am only licensed to practice in two states and have only very limited legal training and that only in relation to health care.

The Weasel

12-07-2006, 00:40

I have only very limited legal training and that only in relation to health care.

Good post, Tater. I'd be interested to get an idea of what you see as permissible treatment levels that you think an RN could provide (in your state(s), which are?) without significant liability problems. (Note in advance: The services an RN could provide may be drastically different than those that other medical providers or early response providers, whether licensed or not.)

The Weasel

Appalachian Tater

12-07-2006, 01:03

Well, obviously a critical care or ER nurse is going to be able to help a lot more than a desk jockey like me. You wouldn't want me to have to trach you with a ballpoint pen, for instance. On the other hand, you can be assured that I wouldn't try to move someone with possible spinal injuries unless they were in immediate danger of losing their life.

The many dozens of nurses I know well (including me) would do everything they could to help someone and worry about liability later in emergency situations. The ones who have cars often carry basic supplies like a CPR mask and gloves expressly to help people. Some doctors I have talked to are more worried about liability but then again, most of them have more to lose and lots of them have already been sued. Nurses are rarely sued.

The reasonable & prudent standard applies just like it always does. I guess you give as much aid as you can without causing harm.

Brrrb Oregon

12-07-2006, 13:26

A few questions to The Weasel:

1. On several of my trips, I've been involved with either Search and Rescues
for lost hikers, and also with medical asistance/evacuations of injured
ones.

On all of these ocasions, there were several kind of other people present:
There were those eager to help out and assist in either locating the miss-
ing hiker, or assisting or aiding the injured one. There were those that
joined in these efforts sort of reluctantly, i.e. they had to be asked to
help join the Search or help carry the stretcher, etc.

And on a couple of memorable occasions, there were hikers who did
nothing at all, even when they saw other hikers pitching in to help with
the situation.

My question: Forgetting moral or ethical requirements, is a hiker ever
LEGALLY required to assist in an emergency situation, and can they be
held legally liable if they refuse to help out?

2. Next question is related to the above. I have very little formal medical
training, but I have some, i.e. more than the average person. On ALL of
my trips, I've helped hikers out with medical issues.....I've treated
blisters, lanced infected toes, stabilized a broken limb, helped out with a
stretcher, etc. On one memorable occasion, I carried an injured hiker on
my back til we could get them to a road crossing so they could be
evacuated to a hospital.

My question to you is this: Is there some sort of "Good Samaritan" law
that protects people who are giving well-meaning aid/support/treatment
in an emergency situation or can they be held liable if it is determined
that their aid proved harmful? Also, if someone DOES posess formal
training, i.e. one is a nurse, physician, or has been certified as an
emergency first-aid responder, 1) Is one legally required to help out in
an emergency situation, and 2) Can one be held liable if problems develop
for the patient? Is there a legal provision protecting those who provide
voluntary medical assistance in an emergency, or can one be held liable
for giving medical asistance/treatment without sufficient training/licensing,
etc.

What I'm basically asking is this: When one voluntarily participates in a
Search and Rescue situation, or helps out an injured hiker in an
emergency, does the rescuer/aid provider have any legal protection or
are the good deeds performed at a potential risk to the samaritan?

Hallelujah, it's an actual question.

On the topic of Search & Rescue: To what extent are hikers who are the focus of search and rescue operations liable for the cost of those operations? Does it matter whether they are on state, federal, or private property, or which state they're in on the AT? Does it matter if the area is posted "no trespassing", either because it is private property or because of identified hazards such as fire, avalanche danger, or wash-out of bridges or trails? Does it matter if the person followed the rules with regards to registering at posted trailheads, paying posted fees, and so on? Is the focus of a rescue attempt in any way liable for injuries to persons attempting to answer their calls for help?

If they use life-flight to get you out, do you have to pay for the helicopter? Might a typical health or home insurance policy pay any of that?

PS People, let's be fair to The Weasel. He did start a thread specifically for posts from people who want to b***h and moan about lawyers. Please use it, so questioners don't have to wade through 45 or 100 posts to find if their question ever got an answer.

DawnTreader

12-07-2006, 13:54

Brrrb Oregon

12-07-2006, 14:59

Good post, Tater. I'd be interested to get an idea of what you see as permissible treatment levels that you think an RN could provide (in your state(s), which are?) without significant liability problems. (Note in advance: The services an RN could provide may be drastically different than those that other medical providers or early response providers, whether licensed or not.)

The Weasel

I'm not a lawyer, but my understanding is what a nurse or physician assistant may do in an emergency care unit while under the formal supervision of a physician is different than what they may do while off work and unsupervised. In our state, the rules are also different for a nurse practitioner, whose licensing carries different restrictions with regards to supervision.

Good Samaritan laws also differ greatly from state to state, as nearly all legal standards in the practice of medicine are defined by each state. Is this the kind of thing that someone with health care background might reasonably be able to find out from the medical board in each state in which they'll be hiking?

Appalachian Tater

12-07-2006, 16:28

i posted a link to a list of state laws. A few states have laws requiring certain people to give assistance, most do not. In Quebec and France *any* bystander is supposed to give assistance. Most places a health care professional can legally just walk right on by if they choose to do so.

Appalachian Tater

12-07-2006, 16:30

Weasel,
is there a duty to act for certified emergency personel? i.e. lifegaurds, emergency first responders? I think that the law protects those who stand around and watch an emergency without aiding as long as they are not properly trained, however, if you happen to have such training, I thought there was a duty to act, even if you are not "on the job". I want to know if these trained individuals can be charged with negligence if they watch someone die, when they have the training to save them?

In some places that's that's true. If you caused the situation in the first place you're supposed to help as well. Trained individuals are also held to the reasonable & prudent standard even in an emergency situation if they choose to help.

troglobil

12-07-2006, 16:40

As an EMT, if I was to come across an injured person, There is very little I could to to help that individual that could not be done by anybody else. Without specialized equipment,or doctors orders for anything invasive( in the event that I was the rescue Randy sort who carries a fully stocked jump kit everywhere I go), I would be only able to perform basic first aid stuff. That would include bleeding control,splinting, etc. If I am not on the job, I do not have any duty to act. Keep in mind the recuer's safety is his/her own first priority. I don't do mouth to mouth on people who's medical history is unknown. Same goes for any bodily fluid contact. It may sound cold hearted, but I didn't create the emergency, it is not my emergency. If I was to act, I would legally be held to the stanard of care for which I was trained. Anything less is malpractice. Anything more is practicing medicine without a liscence.

Brrrb Oregon

12-07-2006, 17:40

Question: This is a take-off from the first thread.

What kind of situation would be the minimum "probable" cause for the search of a backpack, and who has the authority to conduct such a search? Is it any different on the AT than in an airport?

Who has the authority to arrest and detain suspects?

Scenario: You are at a shelter and you find some of the stuff missing from your pack. Do you have any right to get people's names, look in their packs, or anything else in order to recover your belongings? What kind of information about your "suspects" would a LEO need in order to go into their packs and find your stuff for you? Can a park ranger help you, or do you have to find someone in the civilian police force? What kind of markings should you have on your belongings in order to ensure that you will be able to reclaim them if their ownership is in dispute?

What if you leave your sunglasses in the shelter, walk out, and then immediately come back in to retrieve them, only to find them on someone else's face? Is it "finder's keepers"? If not, what would it take to get them back if the person won't hand them over? What charges could be filed against the person if they are caught by the law? Will local law enforcement be able to prosecute a case if you, the victim, are hundreds of miles away on foot at the time of the trial?

The Weasel

12-08-2006, 14:10

Question: This is a take-off from the first thread.

What kind of situation would be the minimum "probable" cause for the search of a backpack, and who has the authority to conduct such a search? Is it any different on the AT than in an airport?

"Probable cause" is a very critical term in search and seizure law. I won't use one of the case decisions here, but try to provide one that I think is more appropriate for laypeople to live with. But first, one needs to understand something said repeatedly on the previous thread: There is no right to search a person (with or without a backpack) or their effects they are carrying (such as a purse, briefcase, shopping bag or backpack) unless (1) a warrant has been issued by a neutral magistrate or judge (either way, a part of the judicial branch) authorized to issue warrants after factual information presented to her that "probable cause" exists for the search and a finding by her that it does, in fact, exists, OR (2) an exception exists such as (a) "protective search" or patdown for protection of officers, (b) "plain view" items that are immediately observable (example: pot in a baggie clipped to pack), (c) "consent" searches or one of several others. (If you're really interested in 4th Amendment issues like that, tell me, but there are better resources online than I'll be.) If a search doesn't fit one of those exceptions, there is no right to search.

NO one has the authority to perform an illegal search. Warrant-based searches must be performed by a person authorized in the warrant (usually by category, i.e. "Damascus Police Department" or some such thing). Protective searches or stops may be performed by law enforcement officers acting within their jurisdiction.

"The rules" are the same on the trail, at airports, and anyplace else in the US with the EXCEPTION of border zones, where Customs/Border Patrol agents have the right to search w/o warrants due to the nature of the border. That includes Entry Points and Border Crossings, as to both non-citizens and citizens alike.

Who has the authority to arrest and detain suspects?

"Citizen arrests" are possible but so risky that I would rather not comment, and I'll dodge that by saying it's off-topic. Otherwise, only law enforcement agents acting within their jurisdiction. There is a significant post on that in the early part of the original thread. Due to frequent "cross-deputizations", many state and federal LEO's are deputized to act outside their specific city/county/state, and if someone performs an arrest, displaying law enforcement credentials, you should assume they have the authority to do so, and leave that issue for post-arrest consideration by your attorney or, if you don't have one, yourself.

Scenario: You are at a shelter and you find some of the stuff missing from your pack. Do you have any right to get people's names, look in their packs, or anything else in order to recover your belongings? What kind of information about your "suspects" would a LEO need in order to go into their packs and find your stuff for you? Can a park ranger help you, or do you have to find someone in the civilian police force? What kind of markings should you have on your belongings in order to ensure that you will be able to reclaim them if their ownership is in dispute?

In this scenario, briefly, you have no "authority" to demand names, and absolutely no right to go into other people's packs. LEOs would want as much identifying information as possible, including names, if possible, and descriptions. She would not, though, be able to "go into their packs" to get your things, absent a warrant. Unless you saw the theft or saw your gear, and were willing to sign an affidavit, it is doubtful a warrant would issue. The police may question people, however, if they can find them, and people accused of crimes do a lot of stupid things, like consent to searches. That is the best, frankly, you could hope for. As for markings, the more permanent and/or indelible, the better. Serial numbers help, too. [/quote]

What if you leave your sunglasses in the shelter, walk out, and then immediately come back in to retrieve them, only to find them on someone else's face? Is it "finder's keepers"? If not, what would it take to get them back if the person won't hand them over? What charges could be filed against the person if they are caught by the law? Will local law enforcement be able to prosecute a case if you, the victim, are hundreds of miles away on foot at the time of the trial?

(1) That's theft, not "finding. Depending on the value, it's either "simple" or "grand" theft, which are separate crimes with different penalties. (2) If not voluntarily returned, hitting someone would be an assault, and not justified. You can report the theft to the police. (3) Charges would be for theft. (4) No, without a complaining witness, police/prosecutors generally will not take a case further than a complaint.

Brrrb Oregon

12-08-2006, 15:14

"Probable cause" is a very critical term in search and seizure law. I won't use one of the case decisions here, but try to provide one that I think is more appropriate for laypeople to live with. But first, one needs to understand something said repeatedly on the previous thread: There is no right to search a person (with or without a backpack) or their effects they are carrying (such as a purse, briefcase, shopping bag or backpack) unless (1) a warrant has been issued by a neutral magistrate or judge (either way, a part of the judicial branch) authorized to issue warrants after factual information presented to her that "probable cause" exists for the search and a finding by her that it does, in fact, exists, OR (2) an exception exists such as (a) "protective search" or patdown for protection of officers, (b) "plain view" items that are immediately observable (example: pot in a baggie clipped to pack), (c) "consent" searches or one of several others. (If you're really interested in 4th Amendment issues like that, tell me, but there are better resources online than I'll be.) If a search doesn't fit one of those exceptions, there is no right to search.

NO one has the authority to perform an illegal search. Warrant-based searches must be performed by a person authorized in the warrant (usually by category, i.e. "Damascus Police Department" or some such thing). Protective searches or stops may be performed by law enforcement officers acting within their jurisdiction.

"The rules" are the same on the trail, at airports, and anyplace else in the US with the EXCEPTION of border zones, where Customs/Border Patrol agents have the right to search w/o warrants due to the nature of the border. That includes Entry Points and Border Crossings, as to both non-citizens and citizens alike.

"Citizen arrests" are possible but so risky that I would rather not comment, and I'll dodge that by saying it's off-topic. Otherwise, only law enforcement agents acting within their jurisdiction. There is a significant post on that in the early part of the original thread. Due to frequent "cross-deputizations", many state and federal LEO's are deputized to act outside their specific city/county/state, and if someone performs an arrest, displaying law enforcement credentials, you should assume they have the authority to do so, and leave that issue for post-arrest consideration by your attorney or, if you don't have one, yourself.

In this scenario, briefly, you have no "authority" to demand names, and absolutely no right to go into other people's packs. LEOs would want as much identifying information as possible, including names, if possible, and descriptions. She would not, though, be able to "go into their packs" to get your things, absent a warrant. Unless you saw the theft or saw your gear, and were willing to sign an affidavit, it is doubtful a warrant would issue. The police may question people, however, if they can find them, and people accused of crimes do a lot of stupid things, like consent to searches. That is the best, frankly, you could hope for. As for markings, the more permanent and/or indelible, the better. Serial numbers help, too.

(1) That's theft, not "finding. Depending on the value, it's either "simple" or "grand" theft, which are separate crimes with different penalties. (2) If not voluntarily returned, hitting someone would be an assault, and not justified. You can report the theft to the police. (3) Charges would be for theft. (4) No, without a complaining witness, police/prosecutors generally will not take a case further than a complaint.

So legally, if somebody in a shelter makes off with your stuff without being caught red-handed, you are essentially left with only diplomacy as a means to get it back, unless you are willing to commit burglary(?) or assault yourself? (What is the crime called, when you go through somebody else's pack without permission on the pretext that you believe your stuff is in there?)

Follow-up question, RE: state border searches: As you probably know, California does searches at its borders for produce that is not allowed into the state. I don't know if they're allowed to go into your car if they smell pears or see old apple cores, but they do make you leave banned produce at the check-point if they find that you've got it....or at least, they have in the past. (I haven't crossed the Oregon/California border in a car for some time.)

Are there any states on the AT that do similar searches for produce or the like at their border? If an AT state were to choose to enact something like California has, say if Georgia put out a quarantine to protect their peaches from some disease, what may the state do in terms of searches at their border and what are they barred from doing?

The Weasel

12-08-2006, 15:21

So legally, if somebody in a shelter makes off with your stuff without being caught red-handed, you are essentially left with only diplomacy as a means to get it back, unless you are willing to commit burglary(?) or assault yourself? (What is the crime called, when you go through somebody else's pack without permission on the pretext that you believe your stuff is in there?)

Yep, that's about it. (The "crime" of going through someone else's stuff to search for yours may have a lot of different names, including "disorderly person" or "disturbing the peace." Don't worry about the name; while a 'minor' offense, technically it's still an offense. Many here don't understand that 'minor' offenses aren't "legal" just because they are very minor; they're illegal, even if rarely prosecuted, though).

Follow-up question, RE: state border searches: As you probably know, California does searches at its borders for produce that is not allowed into the state. I don't know if they're allowed to go into your car if they smell pears or see old apple cores, but they do make you leave banned produce at the check-point if they find that you've got it....or at least, they have in the past. (I haven't crossed the Oregon/California border in a car for some time.)

Are there any states on the AT that do similar searches for produce or the like at their border? If an AT state were to choose to enact something like California has, say if Georgia put out a quarantine to protect their peaches from some disease, what may the state do in terms of searches at their border and what are they barred from doing?

I don't think any states along the AT do such searches, which are more of an agricultural/public health issue than a law enforcement issue. What they can do would be defined by the law that allows them to, but, beyond the agricultural search, no more (or less) than they could without it. That said, "plain view" from such a stop can result in other contraband being seized.

The Weasel

Brrrb Oregon

12-08-2006, 15:25

I don't think any states along the AT do such searches, which are more of an agricultural/public health issue than a law enforcement issue. What they can do would be defined by the law that allows them to, but, beyond the agricultural search, no more (or less) than they could without it. That said, "plain view" from such a stop can result in other contraband being seized.

The Weasel

To clarify: if you were to come into Georgia during an agricultural quarantine with an out-of-state peach showing out the top of your pack, you'd better not have any other contraband, agricultural or not, anywhere else in your pack? Or could they only nab the peaches?

The Weasel

12-08-2006, 15:33

To clarify: if you were to come into Georgia during an agricultural quarantine with an out-of-state peach showing out the top of your pack, you'd better not have any other contraband, agricultural or not, anywhere else in your pack? Or could they only nab the peaches?

Brrb --

I'm not trying to dodge (I'm dodging, I know, but not trying) but the more specific a question, the harder it is. But I'll try:

First, I'm not aware of any laws that Georgia, or other states, have aboutg non-commercial "importation" of agricultural products. And a particular quarantine will have its own rules, which I can't speak about.

But "the peach on the pack" doesn't change the ability of a law enforcement officer to do a search or seizure; the 4th Amendment is still the same, and a LEO can do as much - but no more - regardless of the peach.

Understand one thing: Generally "quarantines" do not permit searches or seizures in the constitutional sense: They are, I believe, a form of consent search, at most: If you want to enter a quarantined area, you must permit a search, if requested, or else not enter the area. The risk, though, is obvious: A consent isn't "partial" ("Sure, officer, you can search, but not for drugs") and if contraband is found (such as drugs) it may be the basis for a lawful search.

This is not a perfect answer; 4th Amendment issues get very tricky, so this is a guideline. But reasonably accurate, I think.

The Weasel

The Weasel

12-08-2006, 16:23

RockyTrail

12-08-2006, 19:18

The Weasel

12-08-2006, 19:27

The Weasel:

If you are asked by a LEO for consent to search, and decline the request(despite having no contraband and nothing to hide), this could possibly turn into an ugly standoff with the LEO as they would now be suspicious of you. At this point are you protected from the LEO "planting" evidence because you refused the search?

Please realize I'm coming at this as a law-abiding citizen that just doesn't want to make myself vulnerable by authorizing unnecessary searches. What does an honest person do?

Some of this depends on your location.

If you're at home, an office, or (thru hiking) perhaps a motel, you simply close the door until a warrant appears, if ever. In those situations, one may appear; if a LEO has felt the need to come to your door, they may be looking for something. Still, you close the door.

The same for a vehicle. You ask, "May I leave now," and once they say, "Yes," you leave.

Beyond that, if it's on the trail, you do the best to stand apart from them. "Planted" evidence happens far less often than people think.

But yes, then there may be a suspicion. This is one more good reason to be law-abiding, so that when they do - if it happens, which truly IS rare - that they do an illegal search, they find nothing.

The Weasel

hopefulhiker

12-08-2006, 19:44

The Weasel

12-08-2006, 19:55

I believe it was in NJ that I actually became angry at a bunch of cyclists that took over the AT for several miles. It was posted that there were to be no mountain bikes on the trail but these guys ignored the rules. The ruts and erosion gave evidence the cyclists ran this route a lot.. Is it just a rule or there any legal teeth to keeping cyclists and atvs off the foot path?

If it is a "rule" of a government, it's sufficiently a "law" (whether a statute or an administrative regulation) that you can inform the police or rangers who will ticket or otherwise act.

The Weasel

Brrrb Oregon

12-08-2006, 20:49

Brrb --

I'm not trying to dodge (I'm dodging, I know, but not trying) but the more specific a question, the harder it is. But I'll try:

First, I'm not aware of any laws that Georgia, or other states, have aboutg non-commercial "importation" of agricultural products. And a particular quarantine will have its own rules, which I can't speak about.

But "the peach on the pack" doesn't change the ability of a law enforcement officer to do a search or seizure; the 4th Amendment is still the same, and a LEO can do as much - but no more - regardless of the peach.

Understand one thing: Generally "quarantines" do not permit searches or seizures in the constitutional sense: They are, I believe, a form of consent search, at most: If you want to enter a quarantined area, you must permit a search, if requested, or else not enter the area. The risk, though, is obvious: A consent isn't "partial" ("Sure, officer, you can search, but not for drugs") and if contraband is found (such as drugs) it may be the basis for a lawful search.

This is not a perfect answer; 4th Amendment issues get very tricky, so this is a guideline. But reasonably accurate, I think.

The Weasel

Sometimes, "it depends" is the best answer. That isn't a dodge. I'm also not aware of Georgia having any such law. I just know they're famous for peaches, so I used them as an example.

How about this: To the best of your knowledge, do interstate commerce laws allow a state to deny entry to people who won't consent to show that they don't have any produce that pose a real threat to the state's agriculture? In other words, if Georgia or any of the other states on the AT were to enact such a quarantine, could a refusal to demonstrate that you don't have any blinking peaches bring your AT thruhike to a screaching halt....well, at least until you have time to go back across the border and ditch the stuff that you don't want the law to run across?

The Weasel

12-08-2006, 21:56

Sometimes, "it depends" is the best answer. That isn't a dodge. I'm also not aware of Georgia having any such law. I just know they're famous for peaches, so I used them as an example.

How about this: To the best of your knowledge, do interstate commerce laws allow a state to deny entry to people who won't consent to show that they don't have any produce that pose a real threat to the state's agriculture? In other words, if Georgia or any of the other states on the AT were to enact such a quarantine, could a refusal to demonstrate that you don't have any blinking peaches bring your AT thruhike to a screaching halt....well, at least until you have time to go back across the border and ditch the stuff that you don't want the law to run across?

Brrrb....

We are careening wildly off topic, but this is such a totally space cadets question - sort of in the category of, "If Uganda invaded Guam, would a golfer be allowed to eat crawdads?" (Yes) - that I'm gonna go for it.

I think that reasonable restrictions on the right of a person to enter, or use the highways of, a sister state are permissible state acts under the Commerce Clause, if they do not create an unduly difficult burden on the right of people to enter the state generally. Quarantine laws are one example of that, as are truck inspections and, for that matter, drivers licenses (the lack of which will prevent you from lawfully driving a car into another state, even if your host jurisdiction doesn't require one, as is the case in some countries).

Thus, if Virginia were to set up inspection stations on its border to prevent the entry of agricultural products carrying for instance, the wooly aelgid (spelling?), I don't see a problem. And could they have one just south of Damascus, and insist on inspections? Yeah, probably. Gonna happen? Nah.

The Weasel

Lone Wolf

12-09-2006, 09:53

emerald

12-09-2006, 20:21

the wooly aelgid (spelling)

The Weasel

adelgid. Asked and answered, not by someone with a PhD in plant pathology or entomology, however. Here's a link (http://www.ext.vt.edu/departments/entomology/factsheets/balwoade.html) to an authoritative source that shows the spelling. Much information can be Googled by those who have more interest in this issue.

The Weasel

12-11-2006, 10:42

OK I'll play. Say me or whoever is hiking across Hump Mtn. in Tenn. where the Longhorn cattle are freely grazing and one decides to chase then gore us, unprovoked of course. Who is liable? The ATC, USFS, cattle owner or all of the above? This can pertain to any place where hikers have to cross a pasture with farm animals roaming about.

Probably only the cattle owner, and then only if the cattle were not authorized to be grazing in that field, or if the bull was known for unprovoked charges or otherwise known to be more dangerous than typical bulls to nearby hikers. Distant chance of USFS being liable, probably only if it had knowingly permitted herd to be present without authorization.

Generally, when one is aware of a risk of potential injury, but engages in a particular activity, one is said to have "assumed the risk" or suit is barred by "assumption of the risk." This doctrine has been abandoned in some places or severely limited by what is known as "comparative negligence," in which the relative fault of each side is determined, and the fault level of the plaintiff reduces their recovery accordingly. Example: Hiker enters field and yells at bull, provoking it. Bull and other cattle were supposed to be moved from that field previous day. Hiker is injured and suffers $10,000 in damages according to jury, which also finds hiker 40% at fault. Hiker's verdict is reduced by $4,000.

The Weasel

Old Grouse

12-11-2006, 11:56

In many states there are also "recreational use" statutes which protect a landowner from liability. These laws are effective in encouraging landowners to make their property available to others. If he/she allows recreational use of the land without charge, you can't sue him/her for your injuries, provided that he/she doesn't intentionally create the hazard which injured you.

I'd say if the landowner's cattle have no known history of ill-will toward hikers, then in a state where a recreational use statute is in place, you couldn't hold him/her liable.

The Weasel

12-11-2006, 14:55

Is there any interest/need for information for international visitors to this site for a general description of what they need to know before landing in the US about customs/immigration? There is a useful thread on Canada and customs/immigration that seems essentially over (and complete) but there are differences for other countries, as well as some 'unknown' issues such as special rules for foreigners who have been arrested.

If not, I won't bother. If there is, I'll do a synopsis of some of the points.

The Weasel

TIDE-HSV

12-12-2006, 00:07

The Weasel

12-12-2006, 11:25

the recreational use statute in Alabama. It does require a song and dance for the land to qualify, but the liability umbrella is pretty broad, once in place. It's interesting that it goes out of its way to state that this statute is NOT to be construed as granting a general right of trespass for recreational use...

Tide: While I haven't seen the Alabama statute, I am going to take a WAG and say that the distinction is between the "permitted uses" that the statute allows a landowner to grant, and that everything else remains a trespass. In other words, "everything not specifically permitted is forbidden." People accessing such properties should view the signs posted with great care and limit their activities to only those expressly allowed.

The Weasel

Nean

12-12-2006, 12:07

The Weasel

12-12-2006, 12:14

A few years back a friend of mine was stopped and searched by a park ranger (if I recall) soon after we left the DWG church hostel feed. Seems someone joked that he had a gun. The woman made it sound as if he didn't have an option. Legal search?

There is always more to a story than that. But if a person were to tell a Ranger, "Nean is carrying a gun and he's from another state," a Ranger might say to herself, "A man who can't have a valid CCW permit is carrying a gun that is probably concealed." That's enought to stop a person, probably. The officer then asks, "Sir, please stand up and let me do a patdown." That's permissible, and not considered a "search" in the sense that a warrant is needed. Contraband - such as the gun - found can then be taken.

Does that help?

The Weasel

Nean

12-12-2006, 14:14

There is always more to a story than that. But if a person were to tell a Ranger, "Nean is carrying a gun and he's from another state," a Ranger might say to herself, "A man who can't have a valid CCW permit is carrying a gun that is probably concealed." That's enought to stop a person, probably. The officer then asks, "Sir, please stand up and let me do a patdown." That's permissible, and not considered a "search" in the sense that a warrant is needed. Contraband - such as the gun - found can then be taken.

Does that help?

The Weasel

Yes.

As for the rest of the story...... Some guys were joking around and someone overheard... and didn't get the joke. He didn't get patted down though I think he was hoping.:D She searched his pack and found some contraband, but didn't take it. :eek: She was only interested in a gun.:) The search of his pack was not legal if I understand you correctly.

The Weasel

12-12-2006, 14:56

Yes.

As for the rest of the story...... Some guys were joking around and someone overheard... and didn't get the joke. He didn't get patted down though I think he was hoping.:D She searched his pack and found some contraband, but didn't take it. :eek: She was only interested in a gun.:) The search of his pack was not legal if I understand you correctly.

Nean ---

There are some 800 posts in the original thread, about half of which are disputes about off-topic problems. I've covered search-and-seizure law pretty thoroughly there, but I haven't yet condensed the thread to an "article" as I hope to soon. So I'll give you the VERY condensed version:

- Pat downs and searches of a person's immeidate surroundings are lawful for the purpose of protecting the officer's safety, i.e. to prevent access to a weapon.
- Pat downs and searches like this are legitimate if the LEO has a legitimate reason for stopping a person, i.e. a well-founded belief that there may have been a violation of law.
- Contraband (in addition to weapons, i.e. drugs) found in connection with the patdown/search can be confiscated, serve as the basis for a criminal charge, and be admissible in evidence.

The pack search probably would be considered legal if it was incident to a legitimate stop and patdown.

The Weasel