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Thread: Legally Defined Discretion

  1. #1
    Regular Member twoforme's Avatar
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    Legally Defined Discretion

    Discretion is a human trait.Not a trait of agent of government.
    We have all heard of the discretion of judges,ca's ,police in this state.I am interested in the codified definition of such. I have not found it,the law ,code,statue is predicated from the assumption that government agents of an entity actually have discretion.
    I do not agree that agents acting on behalf of a government entity have 'discretion'.
    Consider that most if not all criminal law contains the phase 'shall be' guilty off ,not may be.not could be,
    but 'SHALL BE', guilty purely from being charged, - Black law-"As used in statutes,contracts,or the like,this word is generally imperative or mandatory".
    So much for Innocent till Proven GUILTY.
    Current dogma holds that citizens have a duty to defer to any order issued by an armed individual dressed in a State-issued costume.


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    Moderator / Administrator Grapeshot's Avatar
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    When a statutory definition is not provided, then they common dictionary definition is utilized.
    http://www.merriam-webster.com/dictionary/discretion

    LEOs have discretion in whether to disarm someone for officer safety. They have discretion whether to issue a summons or give a warning.

    While the general assembly pens the statutory law, the judiciary exercises its discretion in creating case law.

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    Moderator / Administrator Grapeshot's Avatar
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    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

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

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    Campaign Veteran skidmark's Avatar
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    "The Law" does not tell you what you may do - it tells you what you must not do. You may have to read carefully to near the very end to find out that there is some sort of penalty for not doing something that sounds/reads a lot like it is telling you what you must do. Or you may need to delve further into the Common Law where it is codified that certain offenses are misdemeanors or felonies thus relieving the Code of Virginia from having to specifically say so.

    But to your thesis: that "discretion" is not allowed because it is not codified. Following that line of reasoning gets us RoboCop or Judge Dredd. "This is the law. There is no deviation. You would not have been arrested if you had not violated the law. This is your proscribed penalty. Next case!"

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    Accomplished Advocate user's Avatar
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    The definition for "discretion" may be found in the Code of Virginia at sections 1-200 and 1-201. Of course, you'll have to have passing familiarity with the past thousand years of Virginia's legal history.

    Btw, I generally object to the use of modern dictionary definitions in legal application, because they're now based on how people use words in the vernacular press. Prior to the 1950's they were based on literate and academic usage. The problem is that people misuse words in the popular press because they don't make distinctions. Here's an example: the word, "evacuate", is often used to mean moving people out of an area. But they'll say, "five people were evacuated" when they mean "five people were compelled to leave"; when you evacuate a person, that means to give them an enema; when you evacuate a place, that means you remove the people from that place. Such distinctions are important, and all modern dictionaries do is chronicle misuse.

    Another example: the brandishing statute uses the phrase, "point, hold, or brandish"; in two recent cases, the Va. Sup. Ct. used dictionary definitions to figure out how to make that phrase fit the facts of the case in order to hold the defendant guilty of brandishing. So now, "brandish" means to "display in an ostentatious or shameful manner". One might say that anyone who is openly carrying a firearm is therefore guilty of brandishing if someone else is willing to testify that their having seen the gun so ostentatiously and shamefully displayed made them "feel fear". Of course, the plain meaning of the statute would prohibit people from using firearms to cause other people to believe they're about to be injured or killed when there's no good reason for doing so. But that's not how it's being "interpreted".

    Here's another pet peeve: it is often said, particularly by judges, that Virginia is a common law jurisdiction and the courts are common law courts. But that last bit is not true. A common law court such as the Court of Queen's Bench has plenary jurisdiction; it represents the power of the Queen to make law, suspend the operation of law, and exercise executive powers as well as the performance of judicial acts. In Virginia, we've taken the monarch's powers and split them up six ways in order to protect the people from excesses of power concentration. We've given power over certain subject matter to the United States and split that up between executive, legislative, and judicial branches. And we've retained all others, and split them up the same way. So courts on this side of the pond are not free to make up new law, no matter what they say about it, and their doing so is an act of tyranny, just as the power of the executive to detain and imprison people indefinitely is beyond the scope of the authority granted. The fact that we live in a common law jurisdiction only means that the common law of England, as it existed in 1607, is the law here unless repugnant to the Constitution or positive laws of the Commonwealth. It does not mean that the courts have the power to perform legislative acts.
    Last edited by user; 08-09-2015 at 08:20 AM.
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    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
    [ ... ] Btw, I generally object to the use of modern dictionary definitions in legal application, because they're now based on how people use words in the vernacular press. Prior to the 1950's they were based on literate and academic usage. The problem is that people misuse words in the popular press because they don't make distinctions. Here's an example: the word, "evacuate", is often used to mean moving people out of an area. But they'll say, "five people were evacuated" when they mean "five people were compelled to leave"; when you evacuate a person, that means to give them an enema; when you evacuate a place, that means you remove the people from that place. Such distinctions are important, and all modern dictionaries do is chronicle misuse. [ ... ]
    Well said!

    My standard is Webster's Seventh New Collegiate Dictionary edition of 1961. The ultimate is a print Oxford English Dictionary with its history of citations to early use of words.
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