imported post
Glock27Bill wrote:
So this means that there is no standard whatsoever.
Am I reading this wrong, or will the courts uphold the police who stop anyone who is legally open carrying because our conduct meets the 'ambiguous and susceptible of an innocent explanation' standard?
This is worse than you might imagine. Before saying why, a question:
How many of you here support the Fourth Amendment to the U.S. Constitution?
Or, I could ask this instead: those of you who enjoy bad LEO encounters, please raise your hand.
Exactly.
The 4th Amendment is important for all of us, including gun owners. There has been discussion here of 4th amendment cases in Virginia. Perhaps a few of you have noticed that over the past several years, the Virginia Supreme Court has stepped up and defended the 4th Amendment by using the Exclusionary Rule when there is police misconduct. This benefits all Virginians, including Virginia gun owners.
Well, I've certainly noticed this, and I'm not the only one. The AG's office has also noticed. Sad to say, It appears the petition for cert. has little to do with
Rudolph and much more with slapping down the Virginia Supreme Court.
This paragraph for the Pet. Brief is revealing:
Second, certiorari should be granted to ensure that lower courts do not consistently ignore this Court’s precedents. In a series of decisions, of which the case at bar is but one example, a narrow majority of the Supreme Court of Virginia effectively has displaced the standards established by this Court in the context of Terry stops and substituted its own more rigorous Fourth Amendment standard. Were this decision an aberration, Virginia likely would not seek certiorari. Virginia seeks redress in this Court because of the recurring nature of the problem and its harmful practical consequences for law enforcement in the Commonwealth.
Pet. Br., page 9.
Further down, there is this:
An additional reason for granting certiorari, however, is the fact that the Supreme Court of Virginia on an ongoing basis has imposed a higher Fourth Amendment standard than required by this Court’s precedents. This Court’s precedents mean nothing if they can be consistently ignored. Furthermore, the Supreme Court of Virginia’s rebalancing of Fourth Amendment interests creates grave practical problems for Virginia law enforcement.
Pet. Br., page 19.
The implications are clear. The AG's office is offended that SCOVA is actually doing its job upholding the 4th Amendment in a manner that is NOT deferential to police discretion. And besides, as we all know,
Officer Safety trumps all other concerns, including privacy interests.
This ought to be clear here:
In Rudolph, McCain, Grandison, and Snell, the Supreme Court of Virginia effectively raised the Fourth Amendment bar to a level that thwarts legitimate law enforcement activity and adversely impacts public safety. The Supreme Court of Virginia now precludes Terry stops or frisks if some innocent explanation can be devised for the suspect’s conduct. These holdings are contrary to this Court’s jurisprudence.
Pet. Br., page 26.
So, "raising the bar" by actually enforcing the 4th Amendment is "contrary" to the Constitution, as allegedly understood by SCOTUS?
Safety, again, is an issue here:
Terry stops are a critical tool for law enforcement. The proper articulation of the standard is vital not only to ensure that the laws are enforced and citizens are protected, but also to ensure the safety of the officers.
Pet. Br., page 27.
This
Officer First mentality is even more evident in the AG's Reply Brief. As in here:
However, in addition to the reasons mentioned above, review is warranted here to correct a recent stream of erroneous Fourth Amendment decisions. In these decisions, the Supreme Court of Virginia, often by a bare majority, effectively and consistently has raised the bar above and beyond what this Court has required.[sup]6[/sup]
Reply Br., page 9.
Footnote 6 is revealing; it recites the "corrective" action of Moore, among other things:
"In one of those decisions, Virginia was able to obtain redress in this Court:
Virginia v. Moore, 128 S. Ct. 1598, 1608 (2008) (arrest proper under the Fourth Amendment when it is based on probable cause; Constitutional standard does not rise based on additional limitations provided by state law). More recently, Virginia failed to garner the necessary votes for certiorari.
See Harris v. Virginia, 668 S.E.2d 141 (Va. 2008) (holding, contrary to majority of courts, that traffic stop was improper based on anonymous tip of drunk driving because officer failed to observe erratic driving)
(cert. denied, U.S. Oct. 20, 2009) (No. 08-1385) (Roberts, C.J., joined by Scalia, J., dissenting from denial of certiorari)."
Remember
Harris? We like
Harris, right? Well, they don't. This is first I've learned that that AG's office tried to appeal
Harris, but failed.
Finally, there is this:
The problem for Virginia law enforcement is the more recent but consistent pattern whereby the court below imposes a higher standard than what the Fourth Amendment requires. Terry stops are but the latest area of Fourth Amendment law to fall to the trend of a new and improperly heightened standard.
Certiorari is warranted to ensure that this Court’s judgments are not consistently disregarded.
Reply Br., page 11.
The Amicus Brief from the various groups in Virginia who see the Bill of Rights as an inconvenience and an obstacle contains similar rantings, such as the concluding paragraphs:
The unavoidable cost in restricting the availability of the reasonable investigative stop is the increased risk to the public and law enforcement officers. The public safety is jeopardized by reducing police use of an effective and constitutional law enforcement practice. Further, because the authority of officers to conduct limited pat-downs during an investigative stop is based in large part on the same considerations that permit the Terry stop, limiting the authority of an officer to reasonably investigate uncertain suspicious conduct may well bleed over to limit the officer’s justifications for the pat-downs now permitted to insure his safety. These risks are unnecessary under Terry, and intolerable because they flow from deliberately less effective policing mandated only in order to comply with an overly restrictive local application of the Fourth Amendment standard.
Virginia’s prosecutor and law enforcement organizations believe that unnecessary and unauthorized restrictions on the existing Terry rule present a genuine concern about the general application of controlling Fourth Amendment precedents worthy of this Court’s consideration.
So, is this petition "worthy of this Court’s consideration"?
