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Refused to disarm
- Thread starter ChinChin
- Start date
imported post
Deanimator wrote:
And if you are wrong :question:
Please do not give advise that may cause someone to get killed or charged with the death ofpolice officer. :banghead:
I do not believe advice on "consent" is being asked here either....
The question is about refusal to be disarmed.
http://supreme.justia.com/us/177/529/case.html
At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter.
Deanimator wrote:
And if you are wrong :question:
Please do not give advise that may cause someone to get killed or charged with the death ofpolice officer. :banghead:
I do not believe advice on "consent" is being asked here either....
The question is about refusal to be disarmed.
http://supreme.justia.com/us/177/529/case.html
At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter.
vt357
Regular Member
imported post
LEO 229 wrote:
For more on that point see post #13 from a Virginian in this thread on THR. http://www.thehighroad.org/showthread.php?t=385906
I will admit, however, that there probably are certain times when officer safety would warrant temporarily removing a firearm from a situaiton. But I have a problem with running the serial numbers of a firearm so see if it is stolen once it has been seized under the guise of officer safety. Running the numbers has nothing to do with safety. It is a fishing expidition - pure and simple. In a normal traffic stop (speeding for example) there is no probable cause to believe that the firearm is stolen. Anything further than temporarily securing the weapon is an unreasonable search and seizure in my opinion.
I have never had to deal with such a situation. But I have decided that I will not voluntarily surrender my weapon for "officer safety" as I see it as an unreasonable seizure. But if the officer forces the issue I will not resist. I will say if he feels that he has the authority (not the right) to take my weapon, then I will not stop him from doing so, but that I still don't consent to the seizure. Once it is all over I can take my voice recorder (which will have been running the whole time) and decide whether to file a formal complaint.
LEO 229 wrote:
How come no one has brought up the practical reason of safety for both the officer and the citizen. While LEO 229 may be fully competent handling an unfamiliar weapon, there are many officers who are not. The likely-hood of an accidental (or negligent) discharge occurring goes up the more a weapon is handled. Every officer will probably handle the situation differently. Some officers may simply remove the weapon and take it with him to his vehicle. Some have been known to attempt to unload the weapon right there on the spot. The latter choice, in my opinion is just not safe, when the officer may not have handled that type of weapon before.
For more on that point see post #13 from a Virginian in this thread on THR. http://www.thehighroad.org/showthread.php?t=385906
I will admit, however, that there probably are certain times when officer safety would warrant temporarily removing a firearm from a situaiton. But I have a problem with running the serial numbers of a firearm so see if it is stolen once it has been seized under the guise of officer safety. Running the numbers has nothing to do with safety. It is a fishing expidition - pure and simple. In a normal traffic stop (speeding for example) there is no probable cause to believe that the firearm is stolen. Anything further than temporarily securing the weapon is an unreasonable search and seizure in my opinion.
I have never had to deal with such a situation. But I have decided that I will not voluntarily surrender my weapon for "officer safety" as I see it as an unreasonable seizure. But if the officer forces the issue I will not resist. I will say if he feels that he has the authority (not the right) to take my weapon, then I will not stop him from doing so, but that I still don't consent to the seizure. Once it is all over I can take my voice recorder (which will have been running the whole time) and decide whether to file a formal complaint.
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LEO 229 wrote:
I think it all boils down to why they were stopped. If the driver is speeding, the passenger would be free to walk away without identifying himself or disarming. If he chose to stay, I think the officer could ask him to disarm while he wrote the ticket. That's a fine line though.
If they were stopped because the car matched one used in a crime, all the occupants would be subject to detention and could be disarmed.
Just my opinion.
LEO 229 wrote:
I think the question is about the passenger 229. Not the guy getting the ticket.JosephMingle wrote:The officer learnsyou are armed and heremoves the weaponfrom your possession temporarily.
During the stop he does not feel comfortable with you being armed and takes the gun back to his car. It is returned to you just before you are allowed to leave.
Sure... many people are armed and the cop does not even know it so what is the difference.. right?Nothing like getting shot after knowing you "could have" disarmed the guy earlier.
Some cops just do not feel good about knowingly allowing aguy to have a gun when they are about to give him a reckless driving ticket. Some people get real heated the moment you pass that ticket in the window.
I have had my share!
I think it all boils down to why they were stopped. If the driver is speeding, the passenger would be free to walk away without identifying himself or disarming. If he chose to stay, I think the officer could ask him to disarm while he wrote the ticket. That's a fine line though.
If they were stopped because the car matched one used in a crime, all the occupants would be subject to detention and could be disarmed.
Just my opinion.
imported post
peter nap wrote:
Ahhh....
Actually... NOBODY is free to go!
The courts have ruled that in a traffic stop... EVERYONE is considered to be seized and under the control of the officer.
The officer can force them back in the car as much as he can force them out.
Please read up on Maryland v Wilson and Pennsylvania v Mimms to see it is true.
peter nap wrote:
Ahhh....
Actually... NOBODY is free to go!
The courts have ruled that in a traffic stop... EVERYONE is considered to be seized and under the control of the officer.
The officer can force them back in the car as much as he can force them out.
Please read up on Maryland v Wilson and Pennsylvania v Mimms to see it is true.
ccunning
Regular Member
imported post
It seems as though being a passenger in a car you are under greater requirements than you would otherwise be. At what point do you cease to be a(n ex)passenger and become a pedestrian instead? Do you have to ask "Am I under arrest?", "Am I free to go?" first?
EDIT: Guess I was too slow on that question
It seems as though being a passenger in a car you are under greater requirements than you would otherwise be. At what point do you cease to be a(n ex)passenger and become a pedestrian instead? Do you have to ask "Am I under arrest?", "Am I free to go?" first?
EDIT: Guess I was too slow on that question
ThunderRanch
Regular Member
imported post
I'll play a minor devil's advocate and pose one question.
What proof do I have that this person claiming to be an LEO and asking to remove my means of self defense, is actually who they claim to be? The mere fact that someone is driving a vehicle with flashing lights and is wearing a uniform is not proof.
I don't remember the particulars (did a search and couldn't find the story) but IIRC there was a report on the local news a few months back(?) about someone posing as LEO in the Cloverleaf Mall parking lot.
I'm not advocating distrust or challenging LEO's authority.....just throwing the question out there. I'm certain it would be a rare occurance, but it is a possibility!
As has been previously stated, though, the recorder will be on so that there would be no question about the details.
I'll play a minor devil's advocate and pose one question.
What proof do I have that this person claiming to be an LEO and asking to remove my means of self defense, is actually who they claim to be? The mere fact that someone is driving a vehicle with flashing lights and is wearing a uniform is not proof.
I don't remember the particulars (did a search and couldn't find the story) but IIRC there was a report on the local news a few months back(?) about someone posing as LEO in the Cloverleaf Mall parking lot.
I'm not advocating distrust or challenging LEO's authority.....just throwing the question out there. I'm certain it would be a rare occurance, but it is a possibility!
As has been previously stated, though, the recorder will be on so that there would be no question about the details.
imported post
ccunning wrote:
If you try to become a pedestrian on your own can get you cuffed for the duration of the stop.
Why you ask?
Normally... passengers do not just leave their mode of transportation in some random location. The officer must fear that you could double back and shoot him in the head so the driver can take the 3 million in dope up to New York.
It could also be that YOU are wanted or you are breaking the law and this will be discovered.
ccunning wrote:
You are free to leave the carand become a pedestrian when the officer says so.
If you try to become a pedestrian on your own can get you cuffed for the duration of the stop.
Why you ask?
Normally... passengers do not just leave their mode of transportation in some random location. The officer must fear that you could double back and shoot him in the head so the driver can take the 3 million in dope up to New York.
It could also be that YOU are wanted or you are breaking the law and this will be discovered.
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ThunderRanch wrote:
But the cars are not marked with obvious graphics and bar lights. They are normally unmarked with dash or grill lights.
So this pretty much limits our discussion to unmarked cars.
The officer should be in uniform and displaying his badge. You can ask to see ID before rolling down your window.
Ifyou do not believe he is a cop..... call 9-1-1 and request a marked unit to come by.
ThunderRanch wrote:
Sure... fake cops show up hereand there. One even stopped a real Fairfax county cop in her personal car last year.
But the cars are not marked with obvious graphics and bar lights. They are normally unmarked with dash or grill lights.
So this pretty much limits our discussion to unmarked cars.
The officer should be in uniform and displaying his badge. You can ask to see ID before rolling down your window.
Ifyou do not believe he is a cop..... call 9-1-1 and request a marked unit to come by.
DocDaddy
Regular Member
imported post
IMO and just my view on things: According to the OP, the passenger informed the officer of the CC'd firearm, provided the appropriate documents within the legal means of the officers request,thus not trying to hide something that is legal to have on his persons or that he is involved in criminal activities/a criminal/or wants to harm the LEO. Which if he wanted to: he would have said nothing, kept if hidden from observation and then at a said point in time when the passenger had tactical advantage and the element of surprise over the LEO, he could have attacked. But he didn't and informed the LEObefore hand, thus enlightening the LEO beforehand of any surprises and was showing that he was non-threatening.
Now, I don'tknow ifI would surrendermy weapon (neverbeen in that situation and plan not tobe)'just because' of before stated reasons, but I do honor and respect LEO's and understand the dangers of the job (since that is the avenue I want to go down upon termination of Active Duty Service in the Navy) and want to present myself as a non-combatant citizenand would thereforerequest to the officer that I may unholster the firearm, unload it (under his supervision), place the firearm back in it's holster, place the ammunition on top of the vehicle along with spare magazine, move away from vehicle to designated place as told by the LEO well out of reach without some overt action,until said time that all was found to be legal and that we may proceed on our way.
Thoughts? Or am I just over thinking as well?
IMO and just my view on things: According to the OP, the passenger informed the officer of the CC'd firearm, provided the appropriate documents within the legal means of the officers request,thus not trying to hide something that is legal to have on his persons or that he is involved in criminal activities/a criminal/or wants to harm the LEO. Which if he wanted to: he would have said nothing, kept if hidden from observation and then at a said point in time when the passenger had tactical advantage and the element of surprise over the LEO, he could have attacked. But he didn't and informed the LEObefore hand, thus enlightening the LEO beforehand of any surprises and was showing that he was non-threatening.
Now, I don'tknow ifI would surrendermy weapon (neverbeen in that situation and plan not tobe)'just because' of before stated reasons, but I do honor and respect LEO's and understand the dangers of the job (since that is the avenue I want to go down upon termination of Active Duty Service in the Navy) and want to present myself as a non-combatant citizenand would thereforerequest to the officer that I may unholster the firearm, unload it (under his supervision), place the firearm back in it's holster, place the ammunition on top of the vehicle along with spare magazine, move away from vehicle to designated place as told by the LEO well out of reach without some overt action,until said time that all was found to be legal and that we may proceed on our way.
Thoughts? Or am I just over thinking as well?
Thundar
Regular Member
imported post
Welcome back LEO 229!
My advice:
Do not consent to any disarmament. Make it apparent.
Inform the LEO that you do not consent to being disarmed, that you will not physically resist his violation of your civil rights, and thathe must seize the firearm himself as you will not handle the firearm in his presence.
Voice recorders and electrical tape over the serial numbers are your friends.
Welcome back LEO 229!
My advice:
Do not consent to any disarmament. Make it apparent.
Inform the LEO that you do not consent to being disarmed, that you will not physically resist his violation of your civil rights, and thathe must seize the firearm himself as you will not handle the firearm in his presence.
Voice recorders and electrical tape over the serial numbers are your friends.
ThunderRanch
Regular Member
imported post
LEO 229 wrote:
Thanks LEO.....the ability to call 911 to verify had not occurred to me.
Of course you could always do the "I'll disarm if you do" routine! :celebrate
I can just see that exchange.....
You first...
No you first.....
No you first.....
(Please note the tongue in cheek humor intended here!!)
LEO 229 wrote:
Thanks LEO.....the ability to call 911 to verify had not occurred to me.
Of course you could always do the "I'll disarm if you do" routine! :celebrate
I can just see that exchange.....
You first...
No you first.....
No you first.....
(Please note the tongue in cheek humor intended here!!)
imported post
Agent19 wrote:
The web sitedid not reference any other such cases in modern day so I suspect either EVERYONE stopped resisting, the police stopped arresting people unlawfully, or those new rulings would not be advantageous to post.
Plummer v. State, 136 Ind. 306; ?
Housh v. People, 75 111, 491; 1874
John Bad Elk v. U.S., 177 U.S. 529; 1900
In any case.... "resist" as you will toescape an unlawful arrest. But you are NOT legally permitted to killsomeone trying to make the unlawful arrest. At a minimum you willbe charged withmanslaughter.
But if youwere wrong and the arrest was actually lawful.... you face murder charges.
I thought this guys post on the subject was interesting...
"I think the reason people have been generally advised to cooperate with a questionable arrest is because average citizens are not qualified to determine whether an arrest will be considered “unlawful” or not.
also, without giving any alternatives to “resisting arrest up to the point of taking a life” or “bending over and taking it”, you miss a LOT of the grey areas that make discussions about this subject interesting. for example, is an entrapped arrest “legal”? the charges won’t hold up in court, but the arrest itself is probably legal, right? who knows… what if the police officer does something illegal during the course of the arrest (like throw a coffee cup out his window onto a highway shoulder)? is that grounds to resist? unless you’re a lawyer, you won’t know. hell, even they’ll probably tell you it depends on the judge…
lastly - has anyone ever arrested on any grounds, legal or otherwise, been 100% innocent of all crimes for their entire life? probably not. for example, did you know that giving legal advice without a Bar license is illegal in every state in the country? do you know if this article counts as “legal advice”? I don’t. but you should check before resisting arrests in the future — maybe you’re a criminal and you don’t even know it… (IANAL)"
Agent19 wrote:
Interesting cases since they are very old.
The web sitedid not reference any other such cases in modern day so I suspect either EVERYONE stopped resisting, the police stopped arresting people unlawfully, or those new rulings would not be advantageous to post.
Plummer v. State, 136 Ind. 306; ?
Housh v. People, 75 111, 491; 1874
John Bad Elk v. U.S., 177 U.S. 529; 1900
In any case.... "resist" as you will toescape an unlawful arrest. But you are NOT legally permitted to killsomeone trying to make the unlawful arrest. At a minimum you willbe charged withmanslaughter.
But if youwere wrong and the arrest was actually lawful.... you face murder charges.
I thought this guys post on the subject was interesting...
"I think the reason people have been generally advised to cooperate with a questionable arrest is because average citizens are not qualified to determine whether an arrest will be considered “unlawful” or not.
also, without giving any alternatives to “resisting arrest up to the point of taking a life” or “bending over and taking it”, you miss a LOT of the grey areas that make discussions about this subject interesting. for example, is an entrapped arrest “legal”? the charges won’t hold up in court, but the arrest itself is probably legal, right? who knows… what if the police officer does something illegal during the course of the arrest (like throw a coffee cup out his window onto a highway shoulder)? is that grounds to resist? unless you’re a lawyer, you won’t know. hell, even they’ll probably tell you it depends on the judge…
lastly - has anyone ever arrested on any grounds, legal or otherwise, been 100% innocent of all crimes for their entire life? probably not. for example, did you know that giving legal advice without a Bar license is illegal in every state in the country? do you know if this article counts as “legal advice”? I don’t. but you should check before resisting arrests in the future — maybe you’re a criminal and you don’t even know it… (IANAL)"
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DocDaddy wrote:
This is a decision to be made by the officer and he has the authority as backed by the courts to do so in the name of.... safety.Just because I tip my hand does not mean I still do not mean to cause you harm.
So let's put that aside for a moment.
We are really talking about the legality to disarm an occupant in a vehicle being lawfully stopped.
I have already posted a few case links that I found that I feel do support this.
DocDaddy wrote:
Agreed... It isunlikely that someone wanting to cause harm to the officer would actually report he had the means to do it.
This is a decision to be made by the officer and he has the authority as backed by the courts to do so in the name of.... safety.Just because I tip my hand does not mean I still do not mean to cause you harm.
So let's put that aside for a moment.
We are really talking about the legality to disarm an occupant in a vehicle being lawfully stopped.
I have already posted a few case links that I found that I feel do support this.
imported post
ThunderRanch wrote:
In regards to the "you first"....
When the LEO pulls his out first... it will likely be pointed in your direction and then he will say "OK, now your turn... Slowly please!"
:lol:
ThunderRanch wrote:
Welcome...
In regards to the "you first"....
When the LEO pulls his out first... it will likely be pointed in your direction and then he will say "OK, now your turn... Slowly please!"
:lol:
Virginiaplanter
Regular Member
imported post
I do see that the Virginia Declaration of Rights/Bill of Rights under Article 1 §1 states:
"That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them."
So the people or the citizen are supreme in Virginia, not the governor, not the police, not the legislature, and not the judicial department.
The Declaration of Rights goes on to state under Article 1 §3:
"That government is, or ought to be, instituted for the common benefit, protection, and security of the people..."
It doesn't say that the purpose is to protect the people's servants the police, but that government is instituted to protect the people or the citizens themselves.
The Declaration of Rights under Article 1 § 6 states:
[a]nd that all men....cannot be taxed or deprived of their property for public uses, without their own consent...
This article is buttressed by Article 1 §1:
That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
The government's safety or its agents safety is specifically rejected by this article.
[size="+1"]" Our Bill of Rights is a part of our Constitution ; and the general principles thereby declared are Fundamental Laws, except so far as they are modified by the Constitution itself. They limit the powers of the Legislature, and prohibit the passing any Law violating those principles. The first Article of this declares: "That all men are by nature free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." To deprive a citizen of any property already legally acquired, without a fair compensation, deprives him quoad hoc, of the means of possessing property, and of the only means, so far as the Government is concerned, besides the security of his person, of obtaining happiness. Liberty itself consists essentially, as well in the security of private property, as of the persons of individuals; and this security of private property is one of the primary objects of Civil Government, which our ancestors, in framing our Constitution, intended to secure to themselves and their posterity, effectually, and for ever." [/size][size="+1"] Crenshaw v. Slate River Co., 6 Rand. (27 Va.) 245 (1828).[/size]
Article I § 13:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
The safety and security of the Commonwealth is vested in a well regulated militia composed of the body of the people, and therefore the right of the people to keep and bear arms shall not be infringed. It does not say that the safety and security is vested in a standing army or in any force whether they be called Hessian, Mercenary, or State police. The right specifically rejects such a notion.
"Mr. Chairman—A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty." - George Mason, June 16, 1788.
"[t]hat it is their right and duty to be at all times armed; that they are entitled to freedom of person..." Thomas Jefferson, 1824.
The Right to Self Preservation
"3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind." Declaration of Rights Proposed by Virginia to the United States Constitution at the Virginia Ratification Debates on the United States Constitution. June 27, 1788.
"That the good People of Virginia took up Arms, in the present Contest with Great Britain, in Defence of their Liberty and Property, invaded by an arbitrary & tyrannical Government; that as it is not merely for Names, but our essential Rights we are contending, the same Principles which first induced us to draw the Sword will again dictate Resistance to Injustice & Oppression, in whatever Shape, or under whatever Pretence, it may be offered...Certain we are, that the People will never submit to have their Property seized, for the Maintenance of a Set of Men, sent hither for the avowed Purpose of plundering, murdering, or enslaving us....Your Petitioners conceive that the Enormity & Tyranny of these Proceedings can hardly be parralled in the most despotic Governments; and that, without exemplary Punishment upon the Guilty, a Man can have no Security in his Property; or must be reduced to the fatal Necessity of punishing the Aggressor with his own Hand; as in a State without Laws, every Man has a Right to do." George Mason, December 10, 1781.
"The right to resist an unlawful arrest has existed, in some form, at common law for over 300 years. Its origins may be traced to the Magna Charta in 1215,20 but it was not until The Queen v. Tooley21 that the right was clearly established by judicial decision." Resisting Unlawful Arrest in Mississippi: Resisting the Modern Trend, 2 Cal. Crim. L. Rev. 2. (2000).
Clearly if you give up your gun to an agent of the state in this case a constable, you have effectually given up your right to resist an unlawful arrest or the use of excessive force. Giving up your means of self-defense and self preservation are not the actions of a free man but that of a slave. "We owe our mother-country the duty of subjects but will not pay her the submission of slaves. "George Mason, 1770.
"The court fully protected the rights of the accused on this point by instructions Nos. 34 and 41, which told the jury, in substance, that when an officer attempts to arrest a person charged with a felony and uses more force than is reasonably necessary to make the arrest, the officer himself becomes the wrongdoer and the person whose arrest is sought, if himself without fault, can resist such excessive force and even kill the officer if necessary to preserve his own life." Palmer v. Commonwealth 143 Va. 592, 130 S.E. 398 (1925).
I do see that the Virginia Declaration of Rights/Bill of Rights under Article 1 §1 states:
"That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them."
So the people or the citizen are supreme in Virginia, not the governor, not the police, not the legislature, and not the judicial department.
The Declaration of Rights goes on to state under Article 1 §3:
"That government is, or ought to be, instituted for the common benefit, protection, and security of the people..."
It doesn't say that the purpose is to protect the people's servants the police, but that government is instituted to protect the people or the citizens themselves.
The Declaration of Rights under Article 1 § 6 states:
[a]nd that all men....cannot be taxed or deprived of their property for public uses, without their own consent...
This article is buttressed by Article 1 §1:
That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
The government's safety or its agents safety is specifically rejected by this article.
[size="+1"]" Our Bill of Rights is a part of our Constitution ; and the general principles thereby declared are Fundamental Laws, except so far as they are modified by the Constitution itself. They limit the powers of the Legislature, and prohibit the passing any Law violating those principles. The first Article of this declares: "That all men are by nature free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." To deprive a citizen of any property already legally acquired, without a fair compensation, deprives him quoad hoc, of the means of possessing property, and of the only means, so far as the Government is concerned, besides the security of his person, of obtaining happiness. Liberty itself consists essentially, as well in the security of private property, as of the persons of individuals; and this security of private property is one of the primary objects of Civil Government, which our ancestors, in framing our Constitution, intended to secure to themselves and their posterity, effectually, and for ever." [/size][size="+1"] Crenshaw v. Slate River Co., 6 Rand. (27 Va.) 245 (1828).[/size]
Article I § 13:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
The safety and security of the Commonwealth is vested in a well regulated militia composed of the body of the people, and therefore the right of the people to keep and bear arms shall not be infringed. It does not say that the safety and security is vested in a standing army or in any force whether they be called Hessian, Mercenary, or State police. The right specifically rejects such a notion.
"Mr. Chairman—A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty." - George Mason, June 16, 1788.
"[t]hat it is their right and duty to be at all times armed; that they are entitled to freedom of person..." Thomas Jefferson, 1824.
The Right to Self Preservation
"3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind." Declaration of Rights Proposed by Virginia to the United States Constitution at the Virginia Ratification Debates on the United States Constitution. June 27, 1788.
"That the good People of Virginia took up Arms, in the present Contest with Great Britain, in Defence of their Liberty and Property, invaded by an arbitrary & tyrannical Government; that as it is not merely for Names, but our essential Rights we are contending, the same Principles which first induced us to draw the Sword will again dictate Resistance to Injustice & Oppression, in whatever Shape, or under whatever Pretence, it may be offered...Certain we are, that the People will never submit to have their Property seized, for the Maintenance of a Set of Men, sent hither for the avowed Purpose of plundering, murdering, or enslaving us....Your Petitioners conceive that the Enormity & Tyranny of these Proceedings can hardly be parralled in the most despotic Governments; and that, without exemplary Punishment upon the Guilty, a Man can have no Security in his Property; or must be reduced to the fatal Necessity of punishing the Aggressor with his own Hand; as in a State without Laws, every Man has a Right to do." George Mason, December 10, 1781.
"The right to resist an unlawful arrest has existed, in some form, at common law for over 300 years. Its origins may be traced to the Magna Charta in 1215,20 but it was not until The Queen v. Tooley21 that the right was clearly established by judicial decision." Resisting Unlawful Arrest in Mississippi: Resisting the Modern Trend, 2 Cal. Crim. L. Rev. 2. (2000).
Clearly if you give up your gun to an agent of the state in this case a constable, you have effectually given up your right to resist an unlawful arrest or the use of excessive force. Giving up your means of self-defense and self preservation are not the actions of a free man but that of a slave. "We owe our mother-country the duty of subjects but will not pay her the submission of slaves. "George Mason, 1770.
"The court fully protected the rights of the accused on this point by instructions Nos. 34 and 41, which told the jury, in substance, that when an officer attempts to arrest a person charged with a felony and uses more force than is reasonably necessary to make the arrest, the officer himself becomes the wrongdoer and the person whose arrest is sought, if himself without fault, can resist such excessive force and even kill the officer if necessary to preserve his own life." Palmer v. Commonwealth 143 Va. 592, 130 S.E. 398 (1925).
Xeni
Regular Member
imported post
I have an issue with voluntarily disarming for 'officer safety'. What if any cite within the Virginia Code allows for it?
Additionally, with the advent of the Virginia Fusion Center the chance for my weapons S/N now being documented (registered) to me and my inability to FOIA the record and have it destroyed is an invasion into my privacy.
I don't feel comfortable at all with those two things and I believe that I would decline to disarm and invoke my 4th amendment right.
I have an issue with voluntarily disarming for 'officer safety'. What if any cite within the Virginia Code allows for it?
Additionally, with the advent of the Virginia Fusion Center the chance for my weapons S/N now being documented (registered) to me and my inability to FOIA the record and have it destroyed is an invasion into my privacy.
I don't feel comfortable at all with those two things and I believe that I would decline to disarm and invoke my 4th amendment right.
sccrref
Regular Member
imported post
For the most part, I would not fear of an attack from the LEO unless there was something odd or off about them or their behavior. My concern, which is also one of the main reasons I carry, is that said LEO is not responsible for my protection safety. I am. I would have to go with I am not consenting to being disarmed. You will have to forcefully violate my constitutional rights. Just MHO.
For the most part, I would not fear of an attack from the LEO unless there was something odd or off about them or their behavior. My concern, which is also one of the main reasons I carry, is that said LEO is not responsible for my protection safety. I am. I would have to go with I am not consenting to being disarmed. You will have to forcefully violate my constitutional rights. Just MHO.
DKSuddeth
Accomplished Advocate
imported post
getting off topic with the resisting arrest part, but it seems to me that the legality of using force to resist arrest is an implicit warning and reminder to officers not to abuse their authority, that they do not have protection of the law on all things, in order to avoid situations like Illinois commonly has. That of police arresting for anything just to let the courts sort it out.
While LEOs are entrusted with alot of power, they are not to be considered all powerful and all knowing. just my humble and non lawyerly opinion.
getting off topic with the resisting arrest part, but it seems to me that the legality of using force to resist arrest is an implicit warning and reminder to officers not to abuse their authority, that they do not have protection of the law on all things, in order to avoid situations like Illinois commonly has. That of police arresting for anything just to let the courts sort it out.
While LEOs are entrusted with alot of power, they are not to be considered all powerful and all knowing. just my humble and non lawyerly opinion.