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Accomplished Advocate
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.
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.
