ADM F. 500 (Rev. 03/22) Order and Judgment
SUPERIOR COURT OF THE STATE OF RIDGEWAY
IN RE REMOVELUNGS
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DOCKET NO. RSC-CV-494
Petitioner
MEMORANDUM OF LAW AND ORDER
OFFICER DID NOT HAVE PROBABLE CAUSE
Probable cause is a fluid standard. See Illinois v. Gates, 462 U.S. 232 (1983) This means
we are ultimately left without a hard set of rules to govern whether something is or, or is not
probable cause thus making it entirely a discretionary matter. When reviewing the affidavit of
this case however, this arrest was not made off probable cause but mere conjecture, and
conjecture alone is insufficient to effect an arrest.
The first part of the affidavit deals as to how the officer identified the individual. “I knew
that removelungs was the only person behind PPD at the time, because I had seen him outside
previously.” The first part of this, is mere conjecture. Just because the officer saw the person at a
time before any alleged criminal conduct does not mean that the suspect therein is guilty of
whatever conduct is suspected. The officer made an assertion beyond his personal knowledge
that “removelungs was the only person behind PPD” because to make such a factual observation,
he would need to have visibly seen the outside and surrounding areas. The statement by
respondent shall hold no weight in this decision.
The officer then uses the fact that gunshots went off as probable cause to arrest the
petitioner for brandishing. The elements for brandishing are as follows (1) A person must draw
or exhibit a firearm, (2) a persom must draw or exhibit that firearm in a rude, threatening, or
angry manner. (3) or, notwithstanding that, uses that firearm in a fight or quarrel. (4) and is in the
presence of another.
The officer has not seen, had evidence of, received a report or tip, that the petitioner
actually drew a firearm. Instead they made that as a guess because they heard a gunshot, and the
petitioner was a “criminal” and that “they were the only person outside.” Furthermore, there is a
requirement that the firearm be exhibited in a rude, threatening or angry manner. At no point in
the affidavit did the affiant ever declare that he saw the weapon be used in this matter. In fact, his
affidavit says that he “did not see any death messages” and that he “hadn’t seen removelungs kill
anyone, and I didn’t hear any other gun shots (or axes, etc.).” Just because someone uses a
weapon does not mean they were using it in this manner. This would then make every single
discharge of a firearm whether for hunting or other lawful purposes, illegal. Even if the court
found that it was remotely likely that the petitioner fired a shot, that alone does not qualify the
requirement that it be made in a “rude, threatening, or angry manner.” Through affiants own
admissions, the firearm was not used in a fight or quarrel.
As to the final element, the respondent is caught in a catch-22. Before we analyze that
catch-22, we must determine if the respondent was “present” at the time of the events. When
constructing the word “present” in criminal contexts, you must do so within an actual or
constructive context. Meaning the respondent must be actually present in the situation. The fact
that respondent was not actually able to see the main criminal act, which is the draw or display of
a weapon in a rude or threatening manner, means that he was not present at the events in
actuality, nor constructively. If we were to accept the statement entered by the officer that he
“knew that removelungs was the only person behind PPD at the time” then that means that he
was not actually doing so in the presence of another. If we continued with our course of action,
that his statement ought to be thrown out, that does not automatically mean he did it in the
presence of others. Instead, it would be a Schrödinger’s cat paradox where you do not know
whether there were or were not others in the presence of the petitioner. That is hardly probable
cause. Because this element, in no circumstance can be sufficiently provided with probable
cause, it pulls the rug on the entire charge thus entitling it to reversal for it failing to meet legal
standard.
ORDER
The arrest of removelungs on Jun 24, 2022 at 4:58 PM for BRANDISHING made by officer Ethhaqn is
hereby VACATED.
FURTHERMORE, The motion from petitioner-plaintiffs to amend the civil complaint for their
contingent civil proceeding is GRANTED; respondent-defendants are allotted SEVENTY TWO (72) hours to
file an answer or motion to dismiss to the amended civil complaint, once the amended complaint is received and
accepted.
SO ORDERED, ADJUDGED AND DECREED.
At Palmer, Ridgeway, this 16th day of July, 2022.
/s/ siteowner
ASSOCIATE JUSTICE RIDING
THE SUPERIOR COURT
