"Brandishing" as justification for LEO's use of deadly force

[user]

Police: SWAT Officer Shoots Fairfax County Man Who Brandished Gun

A SWAT team officer shot and wounded a Virginia man who brandished an “assault style weapon” at authorities who were serving a drug-related search warrant Tuesday night

www.wmal.com

Admittedly, this defendant has a long history of illegal activity (I checked the docket), and was apparently being targeted for some drug possession charge. But what disturbs me is that the police justified the use of deadly force on the basis of "brandishing a firearm". Note they didn't say he was a dangerous felon trying to escape or that he had made any threat such that "self defense/defense of others" would be appropriate. It appears that this police officer gratuitously shot a suspect merely because he was openly carrying a gun at the time.

Since the "brandishing" statute has been "interpreted" by the Virginia Supreme Court to mean that if (1) a person is carrying a firearm (lawfully or not), and (2) someone else observes the fact that he's carrying; and (3) the someone else says "I felt fear", then that's "brandishing a firearm". That puts brandishing on a very different footing from self defense. (What the statute actually says is that if someone "points, holds, or brandishes" a firearm "in such manner" as would cause a reasonable person to be put in fear of serious injury or death, that's brandishing.) What the Court's "interpretation" (as though the statute had been written in Ancient Greek or something) does is to remove the requirement of both an "actus reus" and a "mens rea" from the statute - it doesn't matter whether the defendant actually did something or committed some overt act, and it doesn't matter what was in his mind at the time.

Thus, the mere fact that the defendant was holding a gun, and we can assume that the cop will testify, "I felt fear", justified the cop's having shot the defendant merely because he felt like doing so. A clear violation of the defendant's right to due process under U.S. Sup. Ct. decisions, particularly Tennessee v. Garner, 471 U.S. 1 (1985) .

What I read into this is that cops are going to feel justified in shooting anyone who is openly carrying a firearm, particularly since the fascist Bloomburger Party has taken over in Richmond.

 

[Ghost1958]

Police: SWAT Officer Shoots Fairfax County Man Who Brandished Gun

A SWAT team officer shot and wounded a Virginia man who brandished an “assault style weapon” at authorities who were serving a drug-related search warrant Tuesday night

www.wmal.com

Admittedly, this defendant has a long history of illegal activity (I checked the docket), and was apparently being targeted for some drug possession charge. But what disturbs me is that the police justified the use of deadly force on the basis of "brandishing a firearm". Note they didn't say he was a dangerous felon trying to escape or that he had made any threat such that "self defense/defense of others" would be appropriate. It appears that this police officer gratuitously shot a suspect merely because he was openly carrying a gun at the time.

Since the "brandishing" statute has been "interpreted" by the Virginia Supreme Court to mean that if (1) a person is carrying a firearm (lawfully or not), and (2) someone else observes the fact that he's carrying; and (3) the someone else says "I felt fear", then that's "brandishing a firearm". That puts brandishing on a very different footing from self defense. (What the statute actually says is that if someone "points, holds, or brandishes" a firearm "in such manner" as would cause a reasonable person to be put in fear of serious injury or death, that's brandishing.) What the Court's "interpretation" (as though the statute had been written in Ancient Greek or something) does is to remove the requirement of both an "actus reus" and a "mens rea" from the statute - it doesn't matter whether the defendant actually did something or committed some overt act, and it doesn't matter what was in his mind at the time.

Thus, the mere fact that the defendant was holding a gun, and we can assume that the cop will testify, "I felt fear", justified the cop's having shot the defendant merely because he felt like doing so. A clear violation of the defendant's right to due process under U.S. Sup. Ct. decisions, particularly Tennessee v. Garner, 471 U.S. 1 (1985) .

What I read into this is that cops are going to feel justified in shooting anyone who is openly carrying a firearm, particularly since the fascist Bloomburger Party has taken over in Richmond.

In present day Virginia I would not doubt it.

A cop shooting a person for simply carrying a firearm here would likely serve some prison time. There is no brandishing law here, and one can perfectly legally walk around with a long or hand gun in their hand.

 

[OC for ME]

Cops are going to? I suspect that that feeling has been trained into cops for many many years.

 

[Citizen]

Police: SWAT Officer Shoots Fairfax County Man Who Brandished Gun

A SWAT team officer shot and wounded a Virginia man who brandished an “assault style weapon” at authorities who were serving a drug-related search warrant Tuesday night

www.wmal.com

[snip]

Since the "brandishing" statute has been "interpreted" by the Virginia Supreme Court to mean ....

Thus, the mere fact that the defendant was holding a gun, and we can assume that the cop will testify, "I felt fear", justified the cop's having shot the defendant merely because he felt like doing so. A clear violation of the defendant's right to due process under U.S. Sup. Ct. decisions, particularly Tennessee v. Garner, 471 U.S. 1 (1985) ...

Only a guy like you could pull me out of "retirement". (Readers should understand that I say that with tongue firmly planted in cheek. Not because of my grey hair and long absence from this forum, but because near as I can tell he's retired twice from two very productive professions. Plus, he makes an awesome pot of baked beans--from scratch. And, who can argue with that?)

Regarding the post, agreed, sir. Oh, by the way, love those quote marks around the word interpreted.

Permit a fellow retiree to feebly contribute to the readership.

All of us can go around all day arguing this, pounding the table about that, cramming our own view down the other fellow's throat. But, do you know that literally just today I came across an amazing and relevant quote?

There once was more than one way to get into law--the legal profession: to become a lawyer. It was called reading. Even in the time of Gray's Inn (yes, that was a reference designed to induce you to look it up.) there were no law schools. If a fella wanted to be a lawyer, he had to grab a buncha law books and start reading. Of course, if he had any sense at all, he sought out an experienced lawyer and served an apprenticeship.)

Now, a fella like me has to protect his arduously cultivated reputation. Thus, I remark that I am not particularly a fan of Abraham Lincoln. (No, no. No fighting just now. Preserved the republic vs. created a federal monster by destroying state's rights. Been there, done argued that. Now is not the time to re-hash those massively important arguments.) I look for wisdom where I can find it. Even if it comes from somebody I don't particularly agree with generally. Like, say, Abraham Lincoln:

If you are absolutely determined to make a lawyer of yourself the thing is more than half done already. It is a small matter whether you read with any one or not. I did not read with any one. Get the books and read and study them in their every feature, and that is the main thing. It is no consequence to be in a large town while you are reading. I read at New Salem, which never had three hundred people in it. The books and your capacity for understanding them are just the same in all places. [...] Always bear in mind that your own resolution to succeed is more important than any other one thing.​

Maybe, gentle reader, you're a little busy just now. OK. I get it. But, mark out for yourself just a little time to read the case User mentioned--Tennessee vs Garner. I mean read it in Abraham Lincoln's sense. Decide for yourself whether young Garner deserved to die. Decide for yourself whether young Garner had the due process rights discussed in the court opinion. Decide for yourself...whether you're equal enough to decide for yourself and have your decision be valid.

See you around, User. Thanks for the springboard.

 

[scouser]

...
There once was more than one way to get into law--the legal profession: to become a lawyer. It was called reading. Even in the time of Gray's Inn (yes, that was a reference designed to induce you to look it up.) there were no law schools. If a fella wanted to be a lawyer, he had to grab a buncha law books and start reading. Of course, if he had any sense at all, he sought out an experienced lawyer and served an apprenticeship.)
...

I might be confusing my history but isn't this how Patrick Henry came into the legal profession?

 

[OC for ME]

A SWAT team dispatched to a McLean area home around 10 p.m. was confronted by David Vo, 24, who was reportedly holding the weapon, a statement released by the department said. A SWAT officer shot him in response, the statement added. Police didn’t name the specific weapon Vo was reported to have, or whether he pointed it at officers.

Brandishing is the cover word for the cop(s)...the singular point is that the cop will enjoy QI whether he claims brandishing, or furtive movement...the cops will make it up as they go along until all options are rendered ineffective...though, in this case, even if the cop was violating the law, a judge will fabricate a procedural stay-outta-jail card, or a jury will side with the cop regardless of the facts cuz the perp was a dope dealer and armed...nuff said!

 

[Doug_Nightmare]

Good to see you.

 

[user]

Cops are going to? I suspect that that feeling has been trained into cops for many many years.

They don't need much training in the attitudes, only the technique: in most places, the job application process includes psychological testing, not to make sure they're mentally stabile, but to make sure they have the irrational freedom from normal fear and the requisite degree of aggression to serve the interests of The State.

 

[user]

I might be confusing my history but isn't this how Patrick Henry came into the legal profession?

It is. And Jefferson studied with George Wythe. Reading for the law is still an acceptable method of legal education in Virginia. You do have to hook up with a supervising attorney and make a commitment to a curriculum (which you and your supervising attorney come up with yourselves). The VSB does have to approve and, if I recall correctly, there is a time limit, seven years or some such thing. The supervising attorney gets a free intern and the intern ends up with a license to practice (that's good only in Virginia - no waiving in to the profession in another state without an A.B.A. accredited law school degree).

 

[Firearms Iinstuctor]

Not enough information the article does not explain what he actual did with the rifle.

He could have just been carrying it he could have pointed it at them.

How he acted and what and if he said anything during the arrest attempt is all important.

 

[OC for ME]

...not really, the cop says brandishing...that's good enough and all you need to know...

 

[color of law]

"Gray's Inn," that's funny. Barrister versus Solicitor. Here, Attorney versus lawyer.
ATTORNEY. One who acts for another by virtue of an appointment by the latter.
LAWYER. A counsellor; one learned in the law. Vide attorney.

In this country we have too many attorneys that think they are lawyers.

 

[OC for ME]

What's black and brown and looks good on a lawyer?...a doberman.

Why don't sharks eat lawyers....professional courtesy.

 

[Citizen]

Good to see you.

Thanks, Doug. Nice to see you, too.

 

[Citizen]

They don't need much training in the attitudes, only the technique: in most places, the job application process includes psychological testing, not to make sure they're mentally stabile, but to make sure they have the irrational freedom from normal fear and the requisite degree of aggression to serve the interests of The State. (emphasis added by Citizen),

Stop it. You're in danger of me offering to marry you daughter.

 

[scouser]

It is. And Jefferson studied with George Wythe. Reading for the law is still an acceptable method of legal education in Virginia. You do have to hook up with a supervising attorney and make a commitment to a curriculum (which you and your supervising attorney come up with yourselves). The VSB does have to approve and, if I recall correctly, there is a time limit, seven years or some such thing. The supervising attorney gets a free intern and the intern ends up with a license to practice (that's good only in Virginia - no waiving in to the profession in another state without an A.B.A. accredited law school degree).

I knew about Jefferson studying with Wythe, Logan and I have had passes for Colonial Williamsburg since he was 6 years old (he's just, a month ago, turned 10) so we've toured Wythe's house there a few times. His very first visit he picked out a tricorn hat, a toy musket and a tshirt with a colonial army uniform print on it. So I put him on guard duty outside the county courthouse and had him marching back and forth in front of it, he was so serious about it and wouldn't allow any passers by to distract him. You might have seen the video of him there back when you had a presence on facebook.
Unfortunately, his mom has no interest in history so I keep telling him that when we go places, it's his country's history that he's learning not mine so I can't help him analyse it as I'm often learning it at the same time as him and I want to know about it because I live here now. One occasion at the Capitol in Williamsburg he got to play Patrick Henry in one of their interactive programs and had to read parts of the 'liberty or death' speech (yes, I know that was in Richmond not Williamsburg but this program was a rush through several hundred years of history leading up to the aftermath of the Revolution) and since that day we've visited his old house in Scotchtown (which isn't very far from our home) and also we got to play a couple of magistrates joining Mr Henry's father in a reenactment of The Parson's Cause at Hanover Courthouse this past summer.

 

[user]

What's black and brown and looks good on a lawyer?...a doberman.

Why don't sharks eat lawyers....professional courtesy.

I've found, over thirty years of trial experience, that there is a very good reason for the existence of "lawyer jokes".

But I'll quote a high-school girlfriend, who said (in response to some of my more cynical humor), "It's not funny, it's sad."

I have a Japanese friend who was the first of his nation to attend a law school in the U.S., graduate, and become a patent lawyer on K St. in DC. He wrote a book in Japanese for the benefit of those wishing to understand Americans. The book is a collection of lawyer jokes with analyses that he felt explained the mysteries of American culture.

What do you call ten thousand lawyers at the bottom of the sea? (A good start.)

As Groucho said, "All seriousness aside...", I will repeat my own aphorism that "some of them are really good, some are really bad, and most are average." The World Economic System Machine is corrupt, because it's run by humans. If we could just get rid of all the humans, the Earth would be a fine place to live.

 

[user]

"Gray's Inn," that's funny. Barrister versus Solicitor. Here, Attorney versus lawyer.
ATTORNEY. One who acts for another by virtue of an appointment by the latter.
LAWYER. A counsellor; one learned in the law. Vide attorney.

In this country we have too many attorneys that think they are lawyers.

Now THAT's an interesting observation. I've been telling folks lately that, because I am not only retired from the practice of law, but have gone so far as to take the unheard of step of having resigned my membership in the Virginia State Bar, I am no longer "an attorney", one licensed to represent others; still a lawyer (one who has a law degree), but that and five bucks will still get me cup of coffee in some places.

 

[OC for ME]

I've found, over thirty years of trial experience, that there is a very good reason for the existence of "lawyer jokes".

But I'll quote a high-school girlfriend, who said (in response to some of my more cynical humor), "It's not funny, it's sad."

I have a Japanese friend who was the first of his nation to attend a law school in the U.S., graduate, and become a patent lawyer on K St. in DC. He wrote a book in Japanese for the benefit of those wishing to understand Americans. The book is a collection of lawyer jokes with analyses that he felt explained the mysteries of American culture.

What do you call ten thousand lawyers at the bottom of the sea? (A good start.)

As Groucho said, "All seriousness aside...", I will repeat my own aphorism that "some of them are really good, some are really bad, and most are average." The World Economic System Machine is corrupt, because it's run by humans. If we could just get rid of all the humans, the Earth would be a fine place to live.

Ah...well played Sir...a chicken/egg conundrum...to be sure...

All seriousness aside...I have, in my family, been infested with lawyers (and attorneys)...judges even...and far too many politicians to shake a stick at as well...and yet I will still to this day do not ask a single one of them for any legal advice...something about "a man who represents himself in a court of law has a fool for an attorney", comes to mind...but I am but a humble farmer...so, what do I know...afflicted with common sense, I am...to the chagrin of My Dear Wife.

 

[user]

If former Culpeper police officer Dan Wright can be charged with murder and convicted of manslaughter because he shot a fleeing felon who represented a continuing threat to the population of Beautiful Downtown Culpeper at the height of weekday mid-morning business activities, after she'd just tried to kill or injure him, then the cop who shot the man (irrespective of whether or not he had been dealing drugs) who hadn't taken any action at all and merely stood by while armed, should be indicted for attempted murder. As presently defined by the Va. Sup. Ct., "brandishing" is not a justification for a shooting because the elements of that offense do not include an actual present threat of serious bodily injury or death.