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Thread: Invalid ordinances: does 2nd Circuit apply here?

  1. #1
    Regular Member TFred's Avatar
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    Invalid ordinances: does 2nd Circuit apply here?

    I think I know the answer to this, but I think it's so important, I wanted to start a thread for it.

    At the end of another thread, a Second Circuit US Court of Appeals ruling was referenced, in which a police officer was granted qualified immunity from a charge of false arrest after he arrested someone for a violation of a law that was still on the books, but which had been previously declared unconstitutional.

    Virginia is in the Fourth Circuit, so it is my understanding that a ruling in the Second Circuit would not be binding here.

    This is a copy of the opinion, Amore v. Novarro. What do our legal eagles think might happen should a similar case arise here, involving a local ordinance that has been rendered invalid by 15.2-915 or similar, with regards to firearms?

    Whether it applies directly to Virginia or not, this case really hammers home why we need to get all preempted and otherwise invalid ordinances off the books of every locality in the state.

    TFred

  2. #2
    Accomplished Advocate user's Avatar
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    A case from a "sister circuit" will be treated as "persuasive authority", but not precedent. Such a case can be used in argument, and the court will give it deferential treatment, and may follow it. But it cannot be relied upon as determinative. Really, though, nothing in the federal courts can be relied upon as determinative in my estimation.

    That said, I'll point out that the Fourth Circuit is rabid about protecting what they see as the necessary power of the State as implemented in the decisions of just plain cops. So much so, that they don't seem to realize that their policies are most likely to undermine the legitimate authority that cops have, and alienate the citizens, creating hostility that would not otherwise exist. They bend over so far backward to protect the bone-headed decisions of individual cops, that they have created a climate in which, as a civil matter, cops are pretty much not responsible for anything. I don't bring actions based on 42 U.S.C. 1983 for just that reason. There's really no point, and even if I were being paid by the hour, I wouldn't take the case because, like I told Diane Nelson back in ninth grade when she expressed an interest in a relationship, I'd only be taking advantage for selfish reasons. (I am preparing three different suits against law enforcement officers at present, however, to be brought in Virginia courts on the basis of Virginia law.)

    Back to the "qualified immunity" issue: the principle holds that a cop who is reasonably informed as to the state of the law, and acts on the basis of his good-faith understanding of the law, will be given the benefit of the doubt and granted civil immunity, even if he was wrong in his understanding. I'm thinking now of Aaron Stevenson, who you may remember, was the subject of an illegal arrest, false imprisonment, and a gun confiscation in the City of Roanoke a while back. The Fourth Circuit said, in effect, that the cops were just a couple of good ol' boys who were bass-ackwards in their thinking, but doing the best they could, and they didn't know what they were doing was illegal. Everyone else would be told, "you are presumed to know what the law is.", but not these boys. The qualification for qualified immunity in the Fourth Circuit is the requirement that one actually be a law enforcement officer.

    I hope I don't sound cynical. I also hope that certain judges will wake up and remember why we have a legal system before civilization is gone from Virginia, as it already is in so many other parts of the formerly civilized world. (I don't include Maryland in that, since Maryland was never civilized. Part of the problem with the Fourth Circuit is that Maryland is in it, too.)
    Last edited by user; 04-29-2012 at 05:48 PM.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post
    The Fourth Circuit said, in effect, that the cops were just a couple of good ol' boys who were bass-ackwards in their thinking, but doing the best they could, and they didn't know what they were doing was illegal. Everyone else would be told, "you are presumed to know what the law is.", but not these boys.)
    It seems that when a citizen, who doesn't get paid to know the law, doesn't know the law, then "ignorance of the law is no excuse" is what they are told. But when it's a cop, you hear "well, they can't be expected to know all the laws all the time."

    It's a double-standard, and a ridiculous one at that.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by thaJack View Post
    It seems that when a citizen, who doesn't get paid to know the law, doesn't know the law, then "ignorance of the law is no excuse" is what they are told. But when it's a cop, you hear "well, they can't be expected to know all the laws all the time."

    It's a double-standard, and a ridiculous one at that.
    Yep!
    Welcome to reality.

  5. #5
    Regular Member TFred's Avatar
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    This court ruling alone should be all the ammunition we need to get the General Assembly to add real teeth to 15.2-915.

    We can clearly and indisputably show the legislators that even though they intend for local ordinances to be invalid and unenforceable, as long as the localities drag their feet on removing them from the books, their desired intent will not happen.

    The laws on the books are still liable to be enforced, putting citizens through all sorts of very expensive legal nightmares, and there is nothing that can be done about it, other than forcing the localities to take those laws off the books.

    It really can't be any clearer than that.

    TFred

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