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

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    Accomplished Advocate user's Avatar
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    The Empire Strikes Back! "Localities" and "getting guns off the street"

    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. In this case, the guy was not subjected to any violence, they let him get out of the car by himself, didn't handcuff him, and didn't pat him down. But I had one guy in Loudoun Co. last week who'd been forcibly hauled out of the car, handcuffed, personally searched, and thrown into the back of a cruiser while the cops trashed his vehicle.

    My theory is that these people are perfectly aware that "secured within a closed container" doesn't require any kind of locking device. But what they're doing is an "end run" around the provisions of section 15.2-915: instead of having a local ordinance about possession of firearms, the cops are using pretexts that they know are unlawful in order to seize the guns. The victim then has to hire a lawyer, spend a couple of days in court, and even if found "not guilty", they won't give him his gun back. Pro-se defendants (and those represented by lawyers who don't know what they're doing with respect to concealed weapons) will generally get railroaded into a conviction, even though there was actually no crime committed. Most lawyers won't, or don't know how to, get the defendant his gun back when the case is dismissed after a successful defense. The localities depend on that, because their purpose, I think, is to punish us for having gotten 15.2-915 enacted. They want to make it as expensive and troublesome as possible to have a gun. And they know that if a defendant has to take special action after a trial, assuming he has a lawyer who knows how, to get the gun back, it's cheaper just to go out and buy a new gun. And for the defendant who can't afford to do that, well, poor people shouldn't have guns, anyway, right?

    My approach to these cases thus far has been to talk to the Commonwealths' Attorney as early as possible, and pull out my canned brief on the meaning of the word, "secured". They generally "nolle pros." the case at that point, dismissal without prejudice. And I've never had one not agree to an order directing the PD to return the guy's property. It takes a few days, but they get their guns back. But they're still out the cash they had to pay me, and one or two days away from work.

    Peter Nap will appreciate this point: everything is especially ok if the defendant will agree to get a CHP. And even where there really was a true violation of 18.2-308, I can generally get a case dismissed if the defendant will get a CHP within the time allowed by the court.

    I'm about to file a false arrest / false imprisonment action against some cops in one city right now because of an incident like this. It was over a year ago, and since the statute of limitations on misdemeanors is one year, my theory is that they have no reasonable basis for retaliating against my client for having filed suit. The suit will also name the city as a defendant because what happened was an administrative action taken for the purpose of interfering with my client's right to be lawfully in possession of a firearm.

    I've been hearing about these bogus charges made for the purpose of seizing firearms more and more often, and it's apparently happening all over Virginia. I think we need to do something about this, but the individual cops are treated by the localities as disposable commodities. We need to hold the localities' feet to the fire, and I think this is the way to do it.
    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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    The Empire Strikes Back! "Localities" and "getting guns off the street"

    User,

    It's being labeled as "consensual contact" once the summons is signed and the ID is handed back to the driver.

    I would contend that the "second" encounter is a continuation of the traffic stop, and the officer cannot force contact by making a traffic stop on one violation and then make it consensual just because a summons is signed and the OL is returned.

    I would especially contend that fact if the officer's emergency equipment (lights specifically) is still activated, a visual signal of arrest. Then I would contend that if the officer is still marked out (by radio or mobile data terminal) on the traffic stop, the officer is still engaged in the enforcement of the previous infraction.

    You could parse it down to if the officer turns his emergency lights off while stopped on a highway of the Commonwealth, 46.2-960 is being violated, and all applicable local and state parking / stopping on the highway laws.

    I just do not understand how a traffic stop can evolve into consensual contact. This false split would not lead a reasonable person to believe they are free to go, thus not making it a consensual encounter.

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    Regular Member 2a4all's Avatar
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    It would seem that a letter from our Attorney General, who'd like to be governor, to all these Commonwealth's Attorneys advising them of User's canned brief on the meaning of the word, "secured" would be in order.

    Perhaps a word from PVC to one of our friendly legislators is in order. (Ordinary citizens can't request an AG opinion.)
    Last edited by 2a4all; 04-20-2013 at 03:36 PM.
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by 2a4all View Post
    It would seem that a letter from our Attorney General, who'd like to be governor, to all these Commonwealth's Attorneys advising them of User's canned brief on the meaning of the word, "secured" would be in order.

    Perhaps a word from PVC to one of our friendly legislators is in order. (Ordinary citizens can't request an AG opinion.)
    What possible good would it do?

    A. It's not binding.
    B. The only use one has is to lay out the legal work to defend against the charge which we already have that.
    C. VCDL has been extremely lax about being involved with Non CHP abuses.

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    Doulgerakis v. Commonwealth

    Dan, how important is this opinion?

    Possession of a Concealed Weapon: A Gun in an Unlocked Glove Box is Permitted February 14, 2013
    A person was convicted of Possession of a Concealed Weapon when he was caught with handgun in a closed, but not locked, glove compartment in his car. The question on appeal was whether a person can keep a gun in his carís unlocked glove compartment without a concealed weapons permit.

    ...

    This was a particularly unusual appeal because the Attorney Generalís Office, tasked with defending the lower courtís ruling, agreed with the Defendant that the case should have been dismissed.

    The case was Doulgerakis v. Commonwealth, No. 0458-12-2 (February 5, 2013).
    Jon Katz says:
    Spend enough time around Virginia Circuit Court clerk office windows, and you will hear the stream of applicants for concealed carry handgun permits. Many parts of Virginia and other parts of the South greet visitors and locals with particularly kind words and tones of voice, and it likely has nothing to do with erring on the side of kindness in case the other person is packing heat.



    Elias Doulgerakis, for whatever reason, did not obtain a concealed carry handgun permit, but still drove around with one, in his closed glove compartment. Doulgerakis v. Va., __ Va. App. _ (Feb. 5, 2013). Police stopped him for a traffic violation in Henrico County, which is near Richmond, asked if he had anything in the car that the police should know about, and learned that a handgun was in the glove compartment.

    ...

    Praised by Doulgerakis's lawyer for preserving this issue for appeal. Such statutory construction arguments are not as sexy as the smoking gun used by Perry Mason or Matlock to save innocents client (their being television characters, their clients all are scripted as innocent), but is preferable to a conviction.
    Seems he had a good lawyer.

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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.

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

    Quote Originally Posted by davidmcbeth View Post
    I don't think a defendant is legally required to accept a nolle ... demand a trial.

    Otherwise, they can try you whenever they want.
    I would want it dismissed with prejudice.

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

    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

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    So i've seen a bunch of threads started about exactly this. It still has me confused as to if you're OCing in your vehicle, you get pulled over, they ask if there is a gun, you say yes; Then? You're gun is taken or if you do CC it should be in your trunk in a locked container? All of this is inconveniencing for people legally carrying weapons.

    EDIT: You beat me to it Jester.
    Last edited by Fenix; 04-20-2013 at 05:38 PM.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by JesterP99 View Post
    This whole thread really scares me
    That's what the want Jester. It's called a chilling effect. Don't play their game!

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Fenix View Post
    So i've seen a bunch of threads started about exactly this. It still has me confused as to if you're OCing in your vehicle, you get pulled over, they ask if there is a gun, you say yes; Then? You're gun is taken or if you do CC it should be in your trunk in a locked container? All of this is inconveniencing for people legally carrying weapons.

    EDIT: You beat me to it Jester.
    Sometimes they need the law pounded into them. Read about the Toney's incident and OC.

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    Quote Originally Posted by peter nap View Post
    That's what the want Jester. It's called a chilling effect. Don't play their game!
    I agree. And given that we know that some of "them" do in fact read here, they're feeding then off of the nervousness that we might get. I think that it behoves us to listen to User....when he goes out of his way to detail something for us, an appropriate answer is, "Thanks so very much User! I fully intend to [whatever it is that he's recommending" as a way to make the very point that Peter is trying to make -- that they cannot intimidate us into giving up our rights.
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    The Empire Strikes Back! "Localities" and "getting guns off the street"

    Don't answer guilt seeking questions. That is the simplest recommendation I can offer.

    Edited for grammar.
    Last edited by palerider116; 04-20-2013 at 06:06 PM.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by drdan01 View Post
    I agree. And given that we know that some of "them" do in fact read here, they're feeding then off of the nervousness that we might get. I think that it behoves us to listen to User....when he goes out of his way to detail something for us, an appropriate answer is, "Thanks so very much User! I fully intend to [whatever it is that he's recommending" as a way to make the very point that Peter is trying to make -- that they cannot intimidate us into giving up our rights.
    I think drdan....that very soon, the persons/departments doing the intimidation, are going to get a very real dose of spring tonic.

    User will light the way.
    Grapeshot, Skidmark and others will leave the breadcrumbs to follow.

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    Quote Originally Posted by peter nap View Post
    Sometimes they need the law pounded into them. Read about the Toney's incident and OC.
    Where can I find this post. I'm newer to the forum so Names and their Handles aren't really engraved in my mind yet.
    Last edited by Fenix; 04-20-2013 at 06:20 PM.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Fenix View Post
    Where can I find this post. I'm newer to the forum so Names and their Handles aren't really engraved in my mind yet.
    Might want to bookmark it.
    This is where some of our members became 800 pound Gorillas.

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

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    Regular Member scouser's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    I don't think a defendant is legally required to accept a nolle ... demand a trial.

    Otherwise, they can try you whenever they want.
    can they or can't they? I mean isn't there a statute of limitations? or doesn't that matter in a nolle?

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    Quote Originally Posted by scouser View Post
    can they or can't they? I mean isn't there a statute of limitations? or doesn't that matter in a nolle?
    sol still applies ... but the process has started so it is likely not relevant

    they motioned to dismiss .... for nolle purposes ... this does not mean you are not guilty in the eyes of the SA/DA ... means that they do not want to prosecute you TODAY

    most cases, accept the nolle, smile and move on ...
    Last edited by davidmcbeth; 04-20-2013 at 06:40 PM.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    sol still applies ... but the process has started so it is likely not relevant

    they motioned to dismiss .... for nolle purposes ... this does not mean you are not guilty in the eyes of the SA/DA ... means that they do not want to prosecute you TODAY

    most cases, accept the nolle, smile and move on ...

    In a misdemeanor there is a 1 year from the alleged offence, statute of limitation.

    Lawyers handle it differently. The really smart ones wait it out before really shaking the tree.

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    Quote Originally Posted by peter nap View Post
    Might want to bookmark it.
    This is where some of our members became 800 pound Gorillas.

    http://oldsite.vcdl.org/Tonys/mcpd.html
    First that I've heard of this, and the very interesting reading that it presents!
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    Quote Originally Posted by peter nap View Post
    That's what the want Jester. It's called a chilling effect. Don't play their game!
    I think thats it exactly. In additional to the intentions User mentioned in Post #1, I think the police know that word will get around about these arrests, and will serve to 'discourage' many people from carrying firearms... even lawfully...because they know that the normal citizen can't afford to go through the legal process they would be subjected to.

    Whats that phrase..... 'you might beat the rap, but you won't beat the ride'.....

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    Quote Originally Posted by Blk97F150 View Post
    I think thats it exactly. In additional to the intentions User mentioned in Post #1, I think the police know that word will get around about these arrests, and will serve to 'discourage' many people from carrying firearms... even lawfully...because they know that the normal citizen can't afford to go through the legal process they would be subjected to.

    Whats that phrase..... 'you might beat the rap, but you won't beat the ride'.....


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

    While the focus of this forum is specifically carrying handguns openly, think big picture. It's more than guns. The hungry (ambitious) officer is trained to find guns and drugs. It's cop glory. It's cop mania. Whoever can find the biggest bust is the high school quarterback. The more charges, the better. (The jocks)

    Then you have the even more dangerous type that don't know how to spell "Constitution" or abhor civil rights. Be aware of the commissar. "You can beat the rap, but you can't beat the ride" is the mantra, the ethos of this breed of predator. (The bullies)

    Those who aren't predatory or have the Gomer Pyle naÔvetť to just help people get threatened with negative performance ratings, disciplinary probation, or just don't move anywhere in the department. Not enough swagger to sit at the gentlemen's table. (The band geeks)

    Then there is the group of officers who don't know what they are doing, right or wrong. The wheel is spinning but the hamster is dead. (The relaxed brain folks)

    DISCLAIMER: No offense is intended for any unfair stereotyping that may have occurred. No jocks were harmed in the making of this post.

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    Quote Originally Posted by Blk97F150 View Post
    I think thats it exactly. In additional to the intentions User mentioned in Post #1, I think the police know that word will get around about these arrests, and will serve to 'discourage' many people from carrying firearms... even lawfully...because they know that the normal citizen can't afford to go through the legal process they would be subjected to.

    Whats that phrase..... 'you might beat the rap, but you won't beat the ride'.....
    That is precisely where WE the people come into play. WE do not abandon our brothers to sink or swim on their own, nor say "Sure glad that didn't happen to me" and walk away. WE step into the breach and lend a hand.

    When something like this happens, where the "system" is used under color or law, intimidation or deceit to punish someone for exercising their legal right, it seriously impacts us all.

    Very soon you will start getting some details on one of our own who was driving to an OC diner and two days later arrested in Henrico County for brandishing a firearm (he transfered it from his glove box to a center dash compartment - all legal) and held for almost 13 hours. Yes his gun was confiscated too. There are some "dirty" little details on the part of the officer which we may not be able to make public at this time. The gentleman victimized has had his employment effected (sole bread winner) and can't carry this alone. WE cannot let him - WE will share the burden, lighten the load.

    Look for a new thread (to be stickied) soon on where and how you can help - Chapter 2, The Ferry Tale.
    You will not rise to the occasion; you will fall back on your level of training.Ē Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Grapeshot View Post
    That is precisely where WE the people come into play. WE do not abandon our brothers to sink or swim on their own, nor say "Sure glad that didn't happen to me" and walk away. WE step into the breach and lend a hand.

    When something like this happens, where the "system" is used under color or law, intimidation or deceit to punish someone for exercising their legal right, it seriously impacts us all.

    Very soon you will start getting some details on one of our own who was driving to an OC diner and two days later arrested in Henrico County for brandishing a firearm (he transfered it from his glove box to a center dash compartment - all legal) and held for almost 13 hours. Yes his gun was confiscated too. There are some "dirty" little details on the part of the officer which we may not be able to make public at this time. The gentleman victimized has had his employment effected (sole bread winner) and can't carry this alone. WE cannot let him - WE will share the burden, lighten the load.

    Look for a new thread (to be stickied) soon on where and how you can help - Chapter 2, The Ferry Tale.
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