imported post
Was the police officer brandishing a firearm and violating the law? The applicable VA Code:
18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.
B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.
C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
(Code 1950, § 18.1-69.2; 1968, c. 513; 1975, cc. 14, 15; 1990, cc. 588, 599; 1992, c. 735; 2003, c. 976; 2005, c. 928.)
Were the police officer's actions legal? I think not.
The Police Officer exemption in Subparagraph B is for making an arrest of a person that is brandishing. Dan was not brandishing, his gun was in a holster.If a jury decides that having a gun pointed at your head "reasonably induced fear" then the police officer committed a class 1 misdemeanor (punishable by up to 1 year in jail). I read Terry v. Ohio twice. Nowhere did it say police may commit crimes while conducting a "Terry Stop".
If I were on a criminal jury, I would vote guilty. (I use jury here, but it is very likely that this would be a bench trial in Virginia.)
If I were a juror in a civil trial, Dan would have a significant award. The award would be significant not because of what the police officer did, but because of the lack of corrective action from the police department or the city after the incident.
