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Thread: Time to pour it on against HB 2943, the “arrest and strip search your spouse & sister” bill!

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    **FLASH UPDATE**

    Twin commentary published today written by VCDL's Philip van Cleave & OCDO's Mike Stollenwerk (signed as head of the FairfaxCountyPrivacyCouncil.org):

    Commentary: Attorney General Inviting Police Abuse of Power
    Virginia Attorney General Bob McDonnell gets it backward by blaming the Virginia Supreme Court for enforcing the ban on custodial arrest of persons suspected of committing misdemeanor crimes in Virginia . . .When we give the police more power, it is always at the expense of our freedoms and we must not do so without a powerful and compelling reason. Another step in the direction of a police state? No, thanks.http://www.styleweekly.com/article.asp?idarticle=13836

    ACTION ITEMS:

    1. Make sure you have sent the email below!

    2. If you live in Senator Cuccinelli's District, call him ASAP at (804) 698-7537 and ask to speak to the Senator or his Legislative Assistant to make sure Sen. C. knows you want him to oppose HB 2943. Talking points: (a) HB 2943 tramples on our 4th Amend. Freedoms by giving police "discretionary power to custodially arrest and search anyone they accuse of minor crimes. (b) The police already have plenty of power to do same if a good reason applies, as in the statute already for 5 situations - [size=Va. Code §19.2-74 already authorizes law enforcement officers to custodially arrest and search any suspected misdemeanant if the accused: ][/size](1) Is believed by the arresting officer to be likely to disregard a summons; (2) Is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person; (3) Shall fail or refuse to discontinue the unlawful act; (4) Refuses to sign & give written promise on the summons to appear before the magistrate; (5) Is being charged with the offense of public drunkenness (this applies to all class 3 & 4 misdemeanors as well).

    --------------------------------------------------

    VCDL has been opposing this bill - here is another chance for OCDO members to send some volley fire!

    ACTION ITEM: Blast an email off to the powerful Senate Courts of Justice Committee which has the power to quash this police-state bill like a bug!

    Sample message:

    TO: district08@sov.state.va.us, district35@sov.state.va.us, district16@sov.state.va.us, district13@sov.state.va.us, district03@sov.state.va.us, district32@sov.state.va.us, district18@sov.state.va.us, district21@sov.state.va.us, district20@sov.state.va.us, district36@sov.state.va.us, district06@sov.state.va.us, district14@sov.state.va.us, district37@sov.state.va.us, district26@sov.state.va.us, district04@sov.state.va.us

    SUBJECT: Please Oppose HB 2943, the citizen roundup bill!

    Dear Chairman Stolle and Members of the Senate Courts of Justice Committee:

    Please oppose HB 2943 which would massively expand police arrest powers for any “alleged” misdemeanor (of which we have over a thousand) FOR THE EXPRESS PURPOSE to allow unlimited searches of our spouses, children, and vehicles in violation of our Fourth Amendment freedoms, including strip searches pursuant to Va. Code § 19.2-59.1.

    Current Virginia law **already** provides police the flexibility to custodially arrest persons suspected of committing misdemeanors for 4 good reasons as long as the police can articulate why they suspect the individual: (1) is intoxicated; (2) is not likely to show up for their hearing listed on the summons; (3) is refusing to discontinue the allegedly unlawful conduct; and (4) is likely to hurt herself or others. To treat all misdemeanors like felonies and allow police 100% discretion to custodially arrest and search anyone at will goes too far. After all, we have too many misdemeanor crimes in Virginia, including some pretty vague laws at that, including such heinous crimes as forgetting your driver’s license, losing records of Irish potato handling, or dancing at a restaurant in Norfolk (see “Could Dancing Really be Illegal?,” Hampton Roads TV, at http://tinyurl.com/2z3tso).

    There are also 3 structural legislative policy reasons for you to oppose HB 2943:

    1. The bill is aimed at punishing the VA Supreme Court for simply enforcing the current statute as written via the exclusionary rule. To pass HB 2943 is to thumb your noses at the Supreme Court while rewarding police law breaking (i.e., custodially arresting and searching alleged misdemeanants without good cause).

    2. The bill never received a budgetary review in the House of Delegates as required by law. Virginia taxpayers are facing stiff bills to build new jails already - recently Richmond Sheriff C.T. Woody complained that the police are **already** arresting and jailing too many people. "Thirty to 40 percent of the people in here don't need to be here," Woody said. Among them, he suggested, are people arrested for **minor offenses**. See “A new jail for Richmond; Facility a response to chronic overcrowding; Wilder to seek partners,” The Richmond Times Dispatch, by Davis Dress, 10 February2007, athttp://tinyurl.com/3ayq4s.

    3. Because the VA AG is appealing the recent Moore v. Commonwealth decision by the VA Supreme Court to the US Supreme Court, this Honorable Committee should follow its **long standing policy** of not amending statutes under direct litigation.

    While the VA AG may think that Moore was wrongly decided, the high courts of South Carolina and New Mexico agree with the Supreme Court of Virginia, and so do I - the Fourth Amendment is important and any statute seeking to get around the Fourth Amendment by allowing to arrest and search everybody all the time is just plain wrong!

    Again, I urge you to oppose HB 2943. Please let me know what you are going to do.

    Sincerely,

    YOUR NAME
    YOUR ADDRESS






  2. #2
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    Done.

  3. #3
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    E-mails sent!

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    Done
    FYI for future senders:
    Adjust the following lines before sending -

    There are also 3 structural legislative policy reasons for you to oppose HB 2943:

    Richmond Sheriff Sheriff (DELETE 2nd SHERIFF) C.T. Woody

    To treat all misdemeanors like felonies and allow police 100% discretion to custodially arrest and search anyone at will goes too far.

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    Thanks, I made corrections in sample message above - folks should feel free to free form it as well.

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    Done



    Goliath

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    Mike - please don't take my previous message as picky or out to prove that the original letter was incorrect (its a GREAT letter). Just 3 small things my spellchecker automatically picked up. Keep up the great work.

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    bayboy42 wrote:
    Mike - please don't take my previous message as picky or out to prove that the original letter was incorrect (its a GREAT letter). Just 3 small things my spellchecker automatically picked up. Keep up the great work.
    No problem, I meant "thanks." It's a team effort out here.

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    Done.

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    done

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    FLASHUPDATE AT TOP OF THREAD.

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    This bill was quashed today by the Senate Courts of Justice Committee - lopsided vote, Sens Stolle, Rerras, and Cucinnelli ALL voting correctly to kill the bill.

    Discussion was good - the committee did NOT buy the fake drama over the VA SC's Moore decision.

    GOOD WORK OCDO members!

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    Good work getting the word out, Mike.

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    Mike wrote:
    **FLASH UPDATE**

    Twin commentary published today written by VCDL's Philip van Cleave & OCDO's Mike Stollenwerk (signed as head of the FairfaxCountyPrivacyCouncil.org):

    Commentary: Attorney General Inviting Police Abuse of Power
    Virginia Attorney General Bob McDonnell gets it backward by blaming the Virginia Supreme Court for enforcing the ban on custodial arrest of persons suspected of committing misdemeanor crimes in Virginia . . .When we give the police more power, it is always at the expense of our freedoms and we must not do so without a powerful and compelling reason. Another step in the direction of a police state? No, thanks.http://www.styleweekly.com/article.asp?idarticle=13836

    ACTION ITEMS:

    1. Make sure you have sent the email below!

    2. If you live in Senator Cuccinelli's District, call him ASAP at (804) 698-7537 and ask to speak to the Senator or his Legislative Assistant to make sure Sen. C. knows you want him to oppose HB 2943. Talking points: (a) HB 2943 tramples on our 4th Amend. Freedoms by giving police "discretionary power to custodially arrest and search anyone they accuse of minor crimes. (b) The police already have plenty of power to do same if a good reason applies, as in the statute already for 5 situations - [size=Va. Code §19.2-74 already authorizes law enforcement officers to custodially arrest and search any suspected misdemeanant if the accused: ](1) Is believed by the arresting officer to be likely to disregard a summons; (2) Is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person; (3) Shall fail or refuse to discontinue the unlawful act; (4) Refuses to sign & give written promise on the summons to appear before the magistrate; (5) Is being charged with the offense of public drunkenness (this applies to all class 3 & 4 misdemeanors as well).

    --------------------------------------------------

    VCDL has been opposing this bill - here is another chance for OCDO members to send some volley fire!

    ACTION ITEM: Blast an email off to the powerful Senate Courts of Justice Committee which has the power to quash this police-state bill like a bug!

    Sample message:

    TO: district08@sov.state.va.us, district35@sov.state.va.us, district16@sov.state.va.us, district13@sov.state.va.us, district03@sov.state.va.us, district32@sov.state.va.us, district18@sov.state.va.us, district21@sov.state.va.us, district20@sov.state.va.us, district36@sov.state.va.us, district06@sov.state.va.us, district14@sov.state.va.us, district37@sov.state.va.us, district26@sov.state.va.us, district04@sov.state.va.us

    SUBJECT: Please Oppose HB 2943, the citizen roundup bill!

    Dear Chairman Stolle and Members of the Senate Courts of Justice Committee:

    Please oppose HB 2943 which would massively expand police arrest powers for any “alleged” misdemeanor (of which we have over a thousand) FOR THE EXPRESS PURPOSE to allow unlimited searches of our spouses, children, and vehicles in violation of our Fourth Amendment freedoms, including strip searches pursuant to Va. Code § 19.2-59.1.

    Current Virginia law **already** provides police the flexibility to custodially arrest persons suspected of committing misdemeanors for 4 good reasons as long as the police can articulate why they suspect the individual: (1) is intoxicated; (2) is not likely to show up for their hearing listed on the summons; (3) is refusing to discontinue the allegedly unlawful conduct; and (4) is likely to hurt herself or others. To treat all misdemeanors like felonies and allow police 100% discretion to custodially arrest and search anyone at will goes too far. After all, we have too many misdemeanor crimes in Virginia, including some pretty vague laws at that, including such heinous crimes as forgetting your driver’s license, losing records of Irish potato handling, or dancing at a restaurant in Norfolk (see “Could Dancing Really be Illegal?,” Hampton Roads TV, at http://tinyurl.com/2z3tso).

    There are also 3 structural legislative policy reasons for you to oppose HB 2943:

    1. The bill is aimed at punishing the VA Supreme Court for simply enforcing the current statute as written via the exclusionary rule. To pass HB 2943 is to thumb your noses at the Supreme Court while rewarding police law breaking (i.e., custodially arresting and searching alleged misdemeanants without good cause).

    2. The bill never received a budgetary review in the House of Delegates as required by law. Virginia taxpayers are facing stiff bills to build new jails already - recently Richmond Sheriff C.T. Woody complained that the police are **already** arresting and jailing too many people. "Thirty to 40 percent of the people in here don't need to be here," Woody said. Among them, he suggested, are people arrested for **minor offenses**. See “A new jail for Richmond; Facility a response to chronic overcrowding; Wilder to seek partners,” The Richmond Times Dispatch, by Davis Dress, 10 February2007, athttp://tinyurl.com/3ayq4s.

    3. Because the VA AG is appealing the recent Moore v. Commonwealth decision by the VA Supreme Court to the US Supreme Court, this Honorable Committee should follow its **long standing policy** of not amending statutes under direct litigation.

    While the VA AG may think that Moore was wrongly decided, the high courts of South Carolina and New Mexico agree with the Supreme Court of Virginia, and so do I - the Fourth Amendment is important and any statute seeking to get around the Fourth Amendment by allowing to arrest and search everybody all the time is just plain wrong!

    Again, I urge you to oppose HB 2943. Please let me know what you are going to do.

    Sincerely,

    YOUR NAME
    YOUR ADDRESS




    Remember Mike's original alert from Mon Feb 12th, 2007 on the original Miller bill? Among other things, he warned that persons arrested for minor misdemeanors and taken to jail could be subjected to strip searches. Horrors!

    Do you recall some accused Mike of excess, exaggerating fears, being hyperbolic?

    Well, guess what, it seems the 9th Circuit court of appeals agrees with Mike; thus his fears are not at all exaggerated. From FourthAmendment.com:

    CA9: SF jail strip search policy constitutional because of jail showing of seizure of contraband and weapons in jail

    The San Francisco jail’s policy of strip searching incoming inmates to control weapons and contraband coming into the jail is constitutional under Bell v. Wolfish. Bull v. City & County of San Francisco, 2010 U.S. App. LEXIS 2684 (9th Cir. February 9, 2010) (en banc) (6-5), panel opinion Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008):
    In sum, because the circumstances before us are not meaningfully distinguishable from those presented in Bell, the balance between the need for the San Francisco strip search policy and “the invasion of personal rights that the search entails” must be resolved in favor of the jail system’s institutional concerns. Id. at 559. While strip searches are invasive and embarrassing, and while this type of security measure “instinctively gives us the most pause,” id. at 558, we must conclude that under Bell, San Francisco’s strip search policy was reasonable and therefore did not violate the class members’ Fourth Amendment rights.
    The dissent is important:
    The majority sweeps away twenty-five years of jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who pose no credible risk for smuggling contraband into the jail. Under its reconfigured regime, the majority discards Bell’s requirement to balance the need for a search against individual privacy and instead blesses a uniform policy of performing body cavity searches on everyone arrested and designated for the general jail population, regardless of the triviality of the charge or the likelihood that the arrestee is hiding contraband. The rationale for this abrupt precedential departure is founded on quicksand. Indeed, the government’s entire argument is based on the logical fallacy cum hoc ergo propter hoc— happenstance implies causation. The government argues that contraband has been found in the San Francisco jails. Thus, the government reasons, individuals who are arrested must be smuggling contraband into the jail. Therefore, the government concludes it must body cavity search everyone who is arrested, even those who pose no risk of concealing contraband, much less of trying to smuggle contraband into the jail.

    This reasoning finds no support from the record in this case. Although there is evidence of some arrestees attempting to conceal contraband during their arrest, there is not a single documented example of anyone doing so with the intent of smuggling contraband into the jail. More importantly, for our purposes, there is not a single example of anyone from the class defined by the district court who was found to possess contraband upon being strip searched. Not one.

    Indeed, and ironically, the record shows that most of the individual plaintiffs who were body cavity searched were never actually placed in the general jail population at all. Because they were never housed with other detainees, these individuals posed absolutely no risk of “smuggling” contraband into the general jail population. They were body cavity searched anyway, simply because they were classified for potential placement in the general jail population.
    If HB681 becomes law, perhaps Virginians could be similarly subjected to strip searches after being arrested and taken to jail for a minor misdemeanor offense.

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    Done.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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    FOLKS, don't DO anything here yet! This is a 2 year old thread, about a bill from two sessions ago!

    The update is a court case about strip searching anyone who is brought to a jail. It ties in to the current Miller bill as a potential unintended consequence for allowing police officers to arrest folks for minor offenses.

    It probably would have been better to update the current bill's thread.

    At this point, it would seem a good opportunity to point out this court case to show what could happen if this bill makes it into law.

    However, the cited case was the 9th Circuit, which I don't believe binds Virginia, and they may also say that Virginia jails don't do blanket strip searches... I just don't know the procedure. (Thankfully!!)

    TFred

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    TFred wrote:
    FOLKS, don't DO anything here yet! This is a 2 year old thread, about a bill from two sessions ago!

    The update is a court case about strip searching anyone who is brought to a jail. It ties in to the current Miller bill as a potential unintended consequence for allowing police officers to arrest folks for minor offenses.

    It probably would have been better to update the current bill's thread.

    At this point, it would seem a good opportunity to point out this court case to show what could happen if this bill makes it into law.

    However, the cited case was the 9th Circuit, which I don't believe binds Virginia, and they may also say that Virginia jails don't do blanket strip searches... I just don't know the procedure. (Thankfully!!)

    TFred
    I realize now that it would have been better to update the current thread with a LINK to the older thread, except I couldn't figure out how to QUOTE the original post, other that pasting it into the current thread.

    As for Virginia, the 4th Circuit very often sides with the government, so Virginia, or more likely Maryland, could use the California case to set a precedent here in the 4th Circuit. Then everyone within the 4th Circuit end up being screwed.

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    Repeater wrote:
    TFred wrote:
    FOLKS, don't DO anything here yet! This is a 2 year old thread, about a bill from two sessions ago!

    The update is a court case about strip searching anyone who is brought to a jail. It ties in to the current Miller bill as a potential unintended consequence for allowing police officers to arrest folks for minor offenses.

    It probably would have been better to update the current bill's thread.

    At this point, it would seem a good opportunity to point out this court case to show what could happen if this bill makes it into law.

    However, the cited case was the 9th Circuit, which I don't believe binds Virginia, and they may also say that Virginia jails don't do blanket strip searches... I just don't know the procedure. (Thankfully!!)

    TFred
    I realize now that it would have been better to update the current thread with a LINK to the older thread, except I couldn't figure out how to QUOTE the original post, other that pasting it into the current thread.

    As for Virginia, the 4th Circuit very often sides with the government, so Virginia, or more likely Maryland, could use the California case to set a precedent here in the 4th Circuit. Then everyone within the 4th Circuit end up being screwed.
    Note to self - Read dates first !!!!

    All you have to do is highlight the desired text, copy it and paste it into the new thread. You can even put it in a separate box if you wish by highlighting it again and clicking the quotation marks on the tool bar above.

    Just remember to click preview before you navigate to another source or your work won't be there when you come back.

    Yata hey


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  20. #20
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    Ok, who played with the time machine? I thought we put that up on a high shelf.
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