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The Empire Strikes Back! "Localities" and "getting guns off the street"

skidmark

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Public announcement---- I want to help!

The one thing I am exceedingly grateful for is that I know there is a whole universe of folks who are not willing to allow rights to be ridden roughshod over.

This one's going to need a different kind of help - which will require folks to look deeply into their souls and decide just how committed to the notion of justice they are.

Folks have asked about obtaining an AG opinion about secured container CC without a CHP. The truth is we do not need an opinion from the AG because we have case law upholding it. There are a few other laws that need to be clarified/revised/repealed or have teeth implanted and one of the best ways to do that is, once the starting flag goes down, to put pressure on the General Assembly members. This might be the opportunity for folks to get to know their Delegate/Senator and - perhaps more importantly their legislative assistant. I have the misfortune to be within the districts of two of the most virulently anti-rights members of the GA - but on this they are going to find out they are vulnerable to a campaign that will be coming straight out of Rules for Radicals. That's right! I'm going to use their playbook against them. (Swallow a lot of Pepto-Bismol/Imodium, go to the library, and start reading. Take notes.)

stay safe.
 

skidmark

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TFred -

Yes, we already had an AG opinion. It was advisory and could not be brought up in court as anything but some guy's opinion. We now have a small but growing body of case law, which does influence everything further on down the line.

But this has nothing to do with secured container carry, so can we put that point of discussion to rest?

Specifics to follow when permission has been granted to become specific. Till then, just bate your breath like the rest of us.

stay safe.
 

markand

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TFred -

Yes, we already had an AG opinion. It was advisory and could not be brought up in court as anything but some guy's opinion. We now have a small but growing body of case law, which does influence everything further on down the line.

But this has nothing to do with secured container carry, so can we put that point of discussion to rest?

Specifics to follow when permission has been granted to become specific. Till then, just bate your breath like the rest of us.

stay safe.

FYI, its not just an AG opinion. There's a VA Court of Appeals case that directly addresses the "secure container" issue. Doulgerakis - v - Commwealth of VA. Short summary, Doulgerakis was convicted in Henrico County of violating 18.2-308 for carrying a loaded handgun concealed in an *unlocked* container in his car. On appeal, his attorney argued that the defendant was improperly convicted, as the provision in 18.2-308 (B)(10) does NOT require a locked container. The VA attorney general agreed, admitting error on the part of the commonwealth. Conviction reversed and dismissed on 02-05-2013.
 

markand

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Might want to bookmark it.
This is where some of our members became 800 pound Gorillas.

http://oldsite.vcdl.org/Tonys/mcpd.html

Fenix and Drdan01, I'm one of the 7 people involved in the Tony's incident in 2007 and am the author of a some of the narrative seen in the noted VCDL archive. The VCDL page lays out the narrative, time line, formal complaints (I was one of 2 actual participants who filed a formal complaint), and the response. So as not to hijack this thread, send me a PM or email and I'll happily answer any other questions you might have about that event.
 

TFred

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Most historic town in, Virginia, USA
TFred -

Yes, we already had an AG opinion. It was advisory and could not be brought up in court as anything but some guy's opinion. We now have a small but growing body of case law, which does influence everything further on down the line.

But this has nothing to do with secured container carry, so can we put that point of discussion to rest?

Specifics to follow when permission has been granted to become specific. Till then, just bate your breath like the rest of us.

stay safe.
Umm, ok.

The very first paragraph of this thread starts out:

Got a call early this morning from a guy in Colonial Heights who'd gotten a summons for carrying a concealed weapon. This is an increasingly common fact situation throughout Virginia, it appears to me: the cops stop a guy for some innocuous traffic violation, finish up that transaction (i.e., "free to leave") and then ask whether there's a weapon in the vehicle. When the victim answers truthfully, they get him out of the car and search the car. When they find the gun, which was secured within a closed container, they seize the gun and charge the guy with violation of 18.2-308.

So it appears you are asking me to put the "original topic" to rest, and instead stay focused on the topic that evolved.

Seems backwards compared to most direction to stay ON topic within a thread... but sure.

:)

TFred
 

skidmark

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Umm, ok.

The very first paragraph of this thread starts out:



So it appears you are asking me to put the "original topic" to rest, and instead stay focused on the topic that evolved.

Seems backwards compared to most direction to stay ON topic within a thread... but sure.

:)

TFred

My bad. Wrong thread for that "it does not apply" comment.

stay safe.
 

user

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Northern Piedmont
Dan, how important is this opinion?
... (cite to Dougerakis)...
Seems he had a good lawyer.

Clearly, he did, a guy named Benjamin Rand, in Richmond.
Most lawyers are so afraid of peeving the trial judge that they neglect preservation of objections and preparation of the record for appeal. I tell clients (and I'm telling you, now) that when the case comes up for trial, it's too late to get evidence together; the time for preparation of evidence is during the events you want to sue about; and when the trial is over and it's time to note your appeal, it's too late to prepare the record. On the other hand, I get clients frustrated with me sometimes because they don't understand why I keep jumping up and yelling "Objection!", or filing long-winded motions full of language they don't understand. Same rule, they're afraid that I'll p.o. the trial judge who'll take it out on them as defendants. Never seen that happen, even with the few judges I've thought were pretty bad. So Mr. Rand did a good job, and I congratulate him.

Btw, if anyone wants a copy of the most recent edition of my canned brief on the meaning of "secured", I'll be happy to email it on request in pdf format.
 

Grapeshot

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We have a lot going on right now TFred. Some Container related, some not but all of it is tied by a common bond.

Indeed! There is a "common bond" - operative word being "common" = make criminals of otherwise honest, law abiding persons.

These are more than nicks and cuts. They are sabre slashes across the face of freedom and liberty.
 

user

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I don't think a defendant is legally required to accept a nolle ... demand a trial.

Otherwise, they can try you whenever they want.

The statute requires the judge to find that there is "good cause" for the nolle prosequi, but they consistently say that the convenience of the Commonwealth is "good cause". Sometimes I file an objection on the ground that there was no good cause, but the only reason for doing so is to preserve the objection for later use if they do decide to re-file. I've been doing this lawyer-stuff for over twenty years, now, and I've only heard of one case in which the Commonwealth did take a nolle pros. and then re-file; that was fairly recently in Fauquier County - Jim Fisher's office. The assistant didn't like the fact that the defense attorney wasn't just rolling over and agreeing to whatever plea she'd offered, and it appeared he'd set things up for trial pretty well, so she nolle pros'sed, got her case in better shape, and re-filed, including a felony or two in the charges. All bogus, of course, the case was still based on the same facts that the defense attorney had investigated and documented, so it was all a waste of effort except for the OJT the very young assistant C/w had gotten out of it at the defendant's expense.

So the bottom line is that they can, and do, nolle pros. whenever they feel like it, for good reason, bad reason, or no reason at all. Since a nolle pros. is a dismissal without prejudice, I tell my clients to wait for a year and then think about filing suit. I think some of those are going to start turning into real action. I just regret that I've got to sue the poor stupid cops, and the upper management types who told them what to do and how to do it won't suffer at all.
 

marshaul

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Fairfax County, Virginia
I just regret that I've got to sue the poor stupid cops, and the upper management types who told them what to do and how to do it won't suffer at all.

We've got to throw immunity out the window at all levels of government. Forget civil liability; people should be jailed for this sort of behavior.
 

Grapeshot

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--snipped--

Btw, if anyone wants a copy of the most recent edition of my canned brief on the meaning of "secured", I'll be happy to email it on request in pdf format.

Request so entered.
icon14.png
 

user

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This whole thread really scares me. How does this affect the people who open carry while in their vehicle? Is the weapon secured in a container, ie the holster, or is it being open carried?

Sent from my MB855 using Tapatalk 2

Pretty much the same issue. Sometimes cops arrest people for violation of 18.2-308 because the firearm was not visible to the cop as the cop first approached the vehicle. Of course, if the driver had picked it up and waved it around so the cop could see it, he would be charged with brandishing. Point is, the cops are using bogus arrests in order to provide a pretext for seizing the guns.

So, here's what I regard as a mission-critical point: it is not necessary to talk to cops; it is not a social visit, and what you've learned about being polite is irrelevant. Also, what they taught you in elementary school, that "the policeman is your friend", is also hogwash. The cop's job and sole duty is to the state, and if you have any respect for them at all, you will expect them to do their job, which may be contrary to your interests. So don't talk to them, don't engage in conversation, and don't collapse and start blathering just because they appear to get angry or threaten you with arrest.

It is illegal knowingly to make false statements of material fact to a cop. You can't lie to them. But keep in mind that this is a subjective test, much like perjury. So when Bill Clinton said, "I did not have sex with that woman.", he really believed that this statement was truthful, since all he'd had from her was an occasional incident of "orally induced gratification". Since that was not "sex" in his mind, he wasn't guilty of perjury.

So what do you do, when the cop says, "Is there a weapon or anything else I should know about in the car?" You could just sit there and stare at him, but I don't recommend that as too confrontational. Instead, ask him whether you're free to leave. Don't answer any of his questions, and keep repeating yours, "Am I free to leave, or am I under arrest?" If he won't let you leave unless and until you answer his questions, you could say, "If you intend to interrogate me, I want my lawyer. And I want to know why I have been arrested." If he says, "You're not under arrest.", then say, "Thank you, good-bye." and get ready to drive off. If he says, "You can't go yet, I'm not through.", then repeat, "I want to know why I am under arrest. Either I am under arrest or I am free to leave, and I want you to tell me which it is." Go on and on with that but don't answer any of his questions, particularly the one about weapons. If he says he's going to keep you there until he can get a search warrant, then prepare to wait. Call his bluff. Then file suit for false arrest, false imprisonment, and whatever else you've got on him.
 
Last edited:

nuc65

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Pretty much the same issue. Sometimes cops arrest people for violation of 18.2-308 because the firearm was not visible to the cop as the cop first approached the vehicle. Of course, if the driver had picked it up and waved it around so the cop could see it, he would be charged with brandishing. Point is, the cops are using bogs arrests in order to provide a pretext for seizing the guns.

So, here's what I regard as a mission-critical point: it is not necessary to talk to cops; it is not a social visit, and what you've learned about being polite is irrelevant. Also, what they taught you in elementary school, that "the policeman is your friend", is also hogwash. The cop's job and sole duty is to the state, and if you have any respect for them at all, you will expect them to do their job, which may be contrary to your interests. So don't talk to them, don't engage in conversation, and don't collapse and start blathering just because they appear to get angry or threaten you with arrest.

It is illegal knowingly to make false statements of material fact to a cop. You can't lie to them. But keep in mind that this is a subjective test, much like perjury. So when Bill Clinton said, "I did not have sex with that woman.", he really believed that this statement was truthful, since all he'd had from her was an occasional incident of "orally induced gratification". Since that was not "sex" in his mind, he wasn't guilty of perjury.

So what do you do, when the cop says, "Is there a weapon or anything else I should know about in the car?" You could just sit there and stare at him, but I don't recommend that as too confrontational. Instead, ask him whether you're free to leave. Don't answer any of his questions, and keep repeating yours, "Am I free to leave, or am I under arrest?" If he won't let you leave unless and until you answer his questions, you could say, "If you intend to interrogate me, I want my lawyer. And I want to know why I have been arrested." If he says, "You're not under arrest.", then say, "Thank you, good-bye." and get ready to drive off. If he says, "You can't go yet, I'm not through.", then repeat, "I want to know why I am under arrest. Either I am under arrest or I am free to leave, and I want you to tell me which it is." Go on and on with that but don't answer any of his questions, particularly the one about weapons. If he says he's going to keep you there until he can get a search warrant, then prepare to wait. Call his bluff. Then file suit for false arrest, false imprisonment, and whatever else you've got on him.

User,

As it relates to filing this suit and knowing that all things cost money I am willing to pitch in a small donation to help some, it might be enough to buy a cup of coffee or make some copies, but I think what you are doing here is important and if you tell me how to I would help out.
 

papa bear

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USER i guess you answered my question.

since there is no notifacation law in VA. i was wondering, if you were asked the question, " do you have a gun in the car". could you say "nunya", as in none of your business.

just kidding, but really could you just say like " i refuse to answer that question", maybe something like due to the 4th A. or would this be too confrontational and warrant a search. even if they do then you are in the clear because of an illegal search

that would be my take anyway
 

2a4all

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Newport News, Virginia, USA
USER i guess you answered my question.

since there is no notifacation law in VA. i was wondering, if you were asked the question, " do you have a gun in the car". could you say "nunya", as in none of your business.

just kidding, but really could you just say like " i refuse to answer that question", maybe something like due to the 4th A. or would this be too confrontational and warrant a search. even if they do then you are in the clear because of an illegal search

that would be my take anyway
Just kidding? More like "No kidding". For the sake of argument (we don't do that here), change "gun" to "grey poupon" or any other benign item. What would be your response? Still should be "Why am I being detained?"

If you were a prohibited person, you would be protected by your 5th amendment right to self incrimination by not answering.
 

palerider116

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The Empire Strikes Back! "Localities" and "getting guns off the street"

SCOTUS:
Arizona v. Johnson, 129 S.Ct 781 (2009)

"An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”
 
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