Well it finally happened

[peter nap]

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t33j wrote:

Alright, so it did come the mail today. I got a video along with a few frames extracted as bitmap pictures, the incident report, the field interview notice, and a letter from the ODU Associate Counsel (who I consulted previously regarding campus boundaries).

There's a tad bit more going on here than I initially realized which I think is summed up well in the report so I'm copying it here.

"On 03/25/10, at approximately 1725 hours, I responded to 4000 Monarch Way, with the assist of PO ***** and Detective *****, for a complaint of a person with a weapon. This complaint was made by Detective *****[different from above], who was assigned to a special detail for the visiting Virginia Attorney General who was inside the location of 4211 Monarch Way. (Also known as Innovation Research Park. I am a member of an ODU lab in that building. While ODU leases at least 2 floors, I'm almost certain it does not own the building... not that that really matters anyway, just FYI) Upon arrival I saw a white male who was identified as [me], talking with a unidentified white male in the driver's seat of a ***** in color, [friend's car], Virginia license *****, parked at 4111 Monarch Way. I saw [me] wearing a exposed and holstered black in color hangun on his right hip. I told [me] that he was being detained for identification purposes. [Me] appeared calm and was cooperative. A VCIN/NCIC/Norfolk Police local check was negative. [Me] was not a registered for a concealed weapons permit. [Me] was released and departed in a [my car], Virginia license *****. The [friend's car] left the scene about this same time. A ODUPD field interview card was completed and filed."

My comments bolded and alterations in brackets. Spelling and grammatical errors not mine.

I'd file a complaint. Now that NOVACOP has gone back to PW County, I can tell you without argument from the idiot gallery, that jacket stuffing is very hard on a cops career.

I'd also write a personal letter to Ken and copy the chief of police.

 

[NovaCop]

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That officer did not establish his RAS in that complaint, although that doesn't mean he didn't have any, but he definitely should have. With that said, that officer could have detained the man open carrying if the detective gave him RAS for the stop although he should have mentioned that before.

As it stands, you have grounds for a complaint.

In VA it's obviously not illegal to open carry and we all know the RAS rule in detainment. However, I cannot recall case law specifically dealing with Open Carry regarding detainment in VA. Anyone know of any?

 

[Grapeshot]

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NovaCop10 wrote:

That officer did not establish his RAS in that complaint, although that doesn't mean he didn't have any, but he definitely should have. With that said, that officer could have detained the man open carrying if the detective gave him RAS for the stop although he should have mentioned that before.

As it stands, you have grounds for a complaint.

In VA it's obviously not illegal to open carry and we all know the RAS rule in detainment. However, I cannot recall case law specifically dealing with Open Carry regarding detainment in VA. Anyone know of any?

Since OC is not made illegal by state law, and the state preempts localities most cases are settled before going to trial. Those that are not are almost universally decided in favor of the citizen, hence never make it to a court of record.

There have been some notable instances of illegal detainment/arrest. One of which is noted following. Search the forum - there are others.
http://opencarry.mywowbb.com/view_topic.php?id=41742&forum_id=54&jump_to=717817#p717817

Yata hey

 

[SouthernBoy]

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NovaCop10 wrote:

That officer did not establish his RAS in that complaint, although that doesn't mean he didn't have any, but he definitely should have. With that said, that officer could have detained the man open carrying if the detective gave him RAS for the stop although he should have mentioned that before.

As it stands, you have grounds for a complaint.

In VA it's obviously not illegal to open carry and we all know the RAS rule in detainment. However, I cannot recall case law specifically dealing with Open Carry regarding detainment in VA. Anyone know of any?

I carry a short document in my briefcase which outlines Encounters, Reasonable Articulable Suspicion, and Probable Cause information. This document is from LAAW International, Inc. These actions are from the police officer's prospective.

Encounters.

• Don't stop
• Don't demand
• Don't use force
• Do ask to talk
• Do ask for ID
• Do ask for explanation

Reasonable Articulable Suspicion (from Terry v. Ohio).
[align=left]The officer must believe that;[/align]

1. A crime has been committed
2. A crime is being committed, or
3. A crime is about to be committed and
4. The person about to be stopped is the person who did one of the above.

This is as far as I'll with this since it is what is in question in the OP's post. Since the open carrying of a defensive firearm is the normal, or default, mode of carrying in Virginia, no permit is required and this behavior on the part of the citizen does not give RAS to any police officer. Therefore, any action from the officer in the encounter is subject to the response selected by the citizen. He may ask for an ID or to talk, but you do not have to comply if you do not wish to do so.

Since I am neither an LEO or an attorney, please correct me if I am wrong in any of this as I do not wish to put my own self in jeopardy from any ignorance of my rights and what I can and cannot do.

 

[Citizen]

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NovaCop10 wrote:

SNIP However, I cannot recall case law specifically dealing with Open Carry regarding detainment in VA. Anyone know of any?

Florida v JL:

A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0529_0266_ZO.html

Here we see the US Supreme Court, as recently as March 2000, expressly declining to create an exception for guns in the standard Terry analysis.

"Terry" refers to Terry v Ohio, the case that sanctioned detentions while police investigate a person against who the police have reasonable suspicion of crime. The angle here being the part of Terry that authorized the detention, as compared to the part of Terry that authorized the separate frisk for a weapon for officer safety. Here we are just talking about the detention side of the equation.

Of course, "Terry analysis" would include the refinements and clarifications to Terry laid out in later opinions.

Terry: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html

 

[NovaCop]

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Citizen wrote:

NovaCop10 wrote:

SNIP However, I cannot recall case law specifically dealing with Open Carry regarding detainment in VA. Anyone know of any?

Florida v JL:

A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0529_0266_ZO.html

Here we see the US Supreme Court, as recently as March 2000, expressly declining to create an exception for guns in the standard Terry analysis.

"Terry" refers to Terry v Ohio, the case that sanctioned detentions while police investigate a person against who the police have reasonable suspicion of crime. The angle here being the part of Terry that authorized the detention, as compared to the part of Terry that authorized the separate frisk for a weapon for officer safety. Here we are just talking about the detention side of the equation.

Of course, "Terry analysis" would include the refinements and clarifications to Terry laid out in later opinions.

Terry: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html

I should have been more specific... I already know those cases and how it relates to open carry and detainment. I was more curious to know if any cases of open carrying detainment specifically have been set forth as case law?

 

[Pagan]

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I just wanted to throw this question out there. If a person in Va. has to be 18 to OC, by law, could an ID stop be made to insure age compliance? Not that I like the idea, it is just a question that occurred to me.

 

[darthmord]

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Pagan wrote:

I just wanted to throw this question out there. If a person in Va. has to be 18 to OC, by law, could an ID stop be made to insure age compliance? Not that I like the idea, it is just a question that occurred to me.

Wouldn't that bejust likea stop & identify? I would think that RAS of a crime is about to be committed or one is being /was committed would be needed.

Stopping just because the OCer *might* be underage? I'm not certain how well that would hold up. It seems to me that it would be a fishing expedition.

 

[wylde007]

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Officer: Excuse me, I'd like to talk to you for a minute.

18yoOC: I'd rather not. Am I being detained or am I free to go?

Officer: Are you 18?

18yoOC: Yes. Am I being detained or am I free to go?

18yoOC is at this point no longer obliged to answer any questions. The officer must arrest him and the burden is on the officer to disprove 18yoOC's claim.

As there is no law requiring one to carry ID when OC, the officer had better tread carefully with his next procedural steps lest he find himself and his department on the receiving end of a civil-rights suit.

 

[VApatriot]

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So, since the officer clearlystates in his ownreport that he "detained" t33j, and since open carry does not provide RAS to legally conduct a stop, would not this be a clear case of illegal detainment?

 

[Pagan]

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VApatriot wrote:

So, since the officer clearlystates in his ownreport that he "detained" t33j, and since open carry does not provide RAS to legally conduct a stop, would not this be a clear case of illegal detainment?

It does seem that way, absolutely no explanation of ANY RAS.

 

[Thundar]

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That was exactly my point some pages ago.

An illegal detainment is an irreperableinjury to the individual.

It has long been established that the loss of constitutional freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns 427 US 347, 373 (1976) (Plurality Opinion) (Citing NY Times Co. V. United States [/i]403 U.S. 713 (1971))

 

[Citizen]

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VApatriot wrote:

SNIP ...detainment?

Arrrrrrrrghhhhhh!!!!

Detention, Detention, Detention, Detention


Fourth Amendment jurisprudence recognizes three categories of police-citizen confrontations: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions, based upon specific, articulable facts, commonly referred to as Terry stops, and (3) highly intrusive arrests and searches founded on probable cause. Wechsler v Commonwealth (VA)(emphasis added by Citizen) ]

 

[Citizen]

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NovaCop10 wrote:

Citizen wrote:

NovaCop10 wrote:

SNIP However, I cannot recall case law specifically dealing with Open Carry regarding detainment in VA. Anyone know of any?

SNIP Florida v JL:

I should have been more specific... I already know those cases and how it relates to open carry and detainment. I was more curious to know if any cases of open carrying [detention] specifically have been set forth as case law?

Christian vs Commowealth.

Short story: Cops set up a drug sting operation in a neighborhood with the command post in an apartment building laundry room (not visible to people entering the front lobby). They get a call that a guy (Ricky Christian) is coming into the building with a gun carried in his hand. Cop detains Christian. Finds drugs and too much money. Christian arrested. Convicted. VA Appeals Courtaffirmed theconviction, saying:

Here, police observed defendant suddenly appear, displaying a firearm, late at night, in an area notorious for "drug sales." Defendant's presence coincided with an ongoing police operation that involved several undercover officers in the sale of imitation illegal drugs, clearly an environment conducive to unlawful conduct and fraught with danger. With weapon in hand, defendant proceeded directly to an apartment building occupied both by police and residents. Confronted with such circumstances, police, experienced in the deadly mix of guns and narcotics and other violent crimes, reasonably suspected criminal activity which posed an immediate threat both to themselves and others, justifying a brief investigatory detention.

The dissent is a little more reasoned. Pointing out that the cops at the inception of the seizure had no evidence Christian was involved in drugs--nobody had radioed in to say he had bought fake drugs in the sting outside. The evidence at inception of the seizure onlyshowedthat Christian entered the building in which he lived. Also, the dissent points out that without a CHP the only legal way to carry the gun from a car into an apartment is openly. The dissent also points out and cites case law that mere presence in a certainarea is not sufficient.

http://www.courts.state.va.us/opinions/opncavwp/0558981.pdf

 

[VApatriot]

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Citizen wrote:

VApatriot wrote:

SNIP ...detainment?

Arrrrrrrrghhhhhh!!!!

Detention, Detention, Detention, Detention


Fourth Amendment jurisprudence recognizes three categories of police-citizen confrontations: (1) consensual encounters, (2) brief, minimally intrusive investigatory detentions, based upon specific, articulable facts, commonly referred to as Terry stops, and (3) highly intrusive arrests and searches founded on probable cause. Wechsler v Commonwealth (VA)(emphasis added by Citizen) ]

Alright, I realizethat I did not use the exact same phrasing that is used in case law, and this can lead to confusion of the situation, but is there a legal difference between "detention" and "detainment?" From a ordinary language perspective, it seem that both are the result of being "detained." What makes a situation in which an individual is being "detained" either a "detainment" or "detention?" Does something called "detainment" even exist in legal language?

Sorry for all of the questions and misunderstanding of the situation. I have not yet managed to take the time to read and fully understand the finer points of Terry andother similar cases.

 

[nova]

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Pagan wrote:

I just wanted to throw this question out there. If a person in Va. has to be 18 to OC, by law, could an ID stop be made to insure age compliance? Not that I like the idea, it is just a question that occurred to me.

I don't believe the law states one must be 18 to OC, but rather be 18 to possess the handgun at all.

 

[Citizen]

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VApatriot wrote:

SNIP Alright, I realizethat I did not use the exact same phrasing that is used in case law, and this can lead to confusion of the situation, but is there a legal difference between "detention" and "detainment?" From a ordinary language perspective, it seem that both are the result of being "detained." What makes a situation in which an individual is being "detained" either a "detainment" or "detention?" Does something called "detainment" even exist in legal language?

Sorry for all of the questions and misunderstanding of the situation. I have not yet managed to take the time to read and fully understand the finer points of Terry andother similar cases.

The words are functionally identical near as I can tell. I've seen the word "detainment" in a court opinion from a western state (California? Washington?) in the context of a Terry Stop.

We've been using the word "detention" in VA for ages, and this new word "detainment" comes along recently. I'm not even sure it is a real word constructed according the usual rules of grammar.

I like the idea of avoiding confusion. Your confusion expressed above is exactly the thing I'm trying to avoid.

 

[Grapeshot]

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Citizen wrote:

VApatriot wrote:

SNIP Alright, I realizethat I did not use the exact same phrasing that is used in case law, and this can lead to confusion of the situation, but is there a legal difference between "detention" and "detainment?" From a ordinary language perspective, it seem that both are the result of being "detained." What makes a situation in which an individual is being "detained" either a "detainment" or "detention?" Does something called "detainment" even exist in legal language?

Sorry for all of the questions and misunderstanding of the situation. I have not yet managed to take the time to read and fully understand the finer points of Terry andother similar cases.

The words are functionally identical near as I can tell. I've seen the word "detainment" in a court opinion from a western state (California? Washington?) in the context of a Terry Stop.

We've been using the word "detention" in VA for ages, and this new word "detainment" comes along recently. I'm not even sure it is a real word constructed according the usual rules of grammar.

I like the idea of avoiding confusion. Your confusion expressed above is exactly the thing I'm trying to avoid.

Bastardization of the language is causing much confusement and heartachement amongst those wishing for clearly defined meaningment. Words are created from the ashes of torched grammar to fulfill the void left by lack knowledge/education.

Our "living" language is destroying the old rules of diction and syntax. I have no doubt but that this will eventually compound the difficulty in interpreting our laws even further than it has to date.

Yata hey

 

[Citizen]

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Grapeshot wrote:

SNIP Bastardization of the language is causing much confusement and heartachement amongst those wishing for clearly defined meaningment. Words are created from the ashes of torched grammar to fulfill the void left by lack knowledge/education.

Gotta admire creative postments.

 

[peter nap]

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Grapeshot wrote:

Citizen wrote:

VApatriot wrote:

Bastardization of the language is causing much confusement and heartachement amongst those wishing for clearly defined meaningment. Words are created from the ashes of torched grammar to fulfill the void left by lack knowledge/education.

Our "living" language is destroying the old rules of diction and syntax. I have no doubt but that this will eventually compound the difficulty in interpreting our laws even further than it has to date.

Yata hey

Why do fat girls wear Spandex
http://news.oldva.org/?p=1449