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Thread: Roanoke police actions spark lawsuit

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    Accomplished Advocate peter nap's Avatar
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    Good post Bill!

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    Regular Member SouthernBoy's Avatar
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    There may be a good chance that this man can "penetrate the corporate vale" or in other words, go after the officers themselves in his suit for acting outside of the law. Hopefully, he has this on a recorder.

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    I have it on good authority that the entire event was captured on police dashcam.

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    Hopefully he's already sent them his FOIArequest before the dashcam recording mysteriously disappears.

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    Regular Member Thundar's Avatar
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    Another case of the only ones abusing citizens who flex their rights.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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    fully_armed_biker wrote:
    Hopefully he's already sent them his FOIArequest before the dashcam recording mysteriously disappears.
    Once the suit's been filed in the USDC, the plaintiff's attorneycan issue a subpoena duces tecum to the chief of police, which is a command in the name of the court that he show up with the tape, punishable as contempt for failure to comply.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

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    Bill in VA wrote:
    ...Kwiecinski learned that Stevenson had a concealed carry permit and asked if he had a gun. Stevenson declined to answer. ...
    At that point, the cop had actual notice that the plaintiff had a valid concealed carry permit. Thus, the question of whether or not he had a gun with him was completely irrelevant to any basis the cop may have had for believing he had reasonable suspicion, much less probable cause.

    The plaintiff had an absolute right not to engage in chit-chat if he didn't feel like it (Fifth Amendment rights are not involved here, because there's no suggestion that the plaintiff was under suspicion of, or had committed, any crime).

    Since the cop had no basis for detaining him beyond the time necessary to write the ticket and issue the summons, there's no question that's false arrest. I assume that federal question jurisdiction has been invoked in order to get the case in front of the USDC, probably under 42USC1982 or 1983, "violation of civil rights under color of state authority". That statute is very strictly confined by the federal courts because if its language were taken literally, they'd be flooded with cases; so it tends to be permitted only in cases where there's some "hostile animus" based on constitutionally protected classes, such as race, religion, national origin, etc.

    I hope the lawyer argues that people who arm themselves in preparation for self defense is a constitutionally protected class, given the language of 2nd Amend.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    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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    Campaign Veteran T Dubya's Avatar
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    Good thread! Be sure to keep us posted in you hear anything.
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    user wrote:
    Bill in VA wrote:
    ...Kwiecinski learned that Stevenson had a concealed carry permit and asked if he had a gun. Stevenson declined to answer. ...
    At that point, the cop had actual notice that the plaintiff had a valid concealed carry permit. Thus, the question of whether or not he had a gun with him was completely irrelevant to any basis the cop may have had for believing he had reasonable suspicion, much less probable cause.

    The plaintiff had an absolute right not to engage in chit-chat if he didn't feel like it (Fifth Amendment rights are not involved here, because there's no suggestion that the plaintiff was under suspicion of, or had committed, any crime).

    Since the cop had no basis for detaining him beyond the time necessary to write the ticket and issue the summons, there's no question that's false arrest. I assume that federal question jurisdiction has been invoked in order to get the case in front of the USDC, probably under 42USC1982 or 1983, "violation of civil rights under color of state authority". That statute is very strictly confined by the federal courts because if its language were taken literally, they'd be flooded with cases; so it tends to be permitted only in cases where there's some "hostile animus" based on constitutionally protected classes, such as race, religion, national origin, etc.

    I hope the lawyer argues that people who arm themselves in preparation for self defense is a constitutionally protected class, given the language of 2nd Amend.
    Based on the information presented in the OP, I completely agree with your assessment User. Looks like someone panicked/screwed up/overstepped thier authority on this one.....I'm anxious to see how this one pans out.
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    Regular Member ODA 226's Avatar
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    ProShooter wrote:
    user wrote:
    Bill in VA wrote:
    ...Kwiecinski learned that Stevenson had a concealed carry permit and asked if he had a gun. Stevenson declined to answer. ...
    At that point, the cop had actual notice that the plaintiff had a valid concealed carry permit. Thus, the question of whether or not he had a gun with him was completely irrelevant to any basis the cop may have had for believing he had reasonable suspicion, much less probable cause.

    The plaintiff had an absolute right not to engage in chit-chat if he didn't feel like it (Fifth Amendment rights are not involved here, because there's no suggestion that the plaintiff was under suspicion of, or had committed, any crime).

    Since the cop had no basis for detaining him beyond the time necessary to write the ticket and issue the summons, there's no question that's false arrest. I assume that federal question jurisdiction has been invoked in order to get the case in front of the USDC, probably under 42USC1982 or 1983, "violation of civil rights under color of state authority". That statute is very strictly confined by the federal courts because if its language were taken literally, they'd be flooded with cases; so it tends to be permitted only in cases where there's some "hostile animus" based on constitutionally protected classes, such as race, religion, national origin, etc.

    I hope the lawyer argues that people who arm themselves in preparation for self defense is a constitutionally protected class, given the language of 2nd Amend.
    Based on the information presented in the OP, I completely agree with your assessment User. Looks like someone panicked/screwed up/overstepped thier authority on this one.....I'm anxious to see how this one pans out.
    I agree with this 100% too.

    Maybe the cop wanted to see if he had painted the muzzle of his handgun orange?! :shock::what::P
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    Regular Member IanB's Avatar
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    Anyone have access to PACER? Case # 7:2009cv00525

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    Regular Member Dreamer's Avatar
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    Actually, VA is NOT a "must inform" state, so the plaintiff was under no obligation to tell the officer that he had a CHP or that he was carrying.

    Hopefully this guy wins his case.

    HOWEVER, this just goes to show that if you don't do anything in a car that will get you pulled over, these incidents would never happen in the first place. If the plaintif had not let his registration expire, this whole incident would never have occurred.

    If you're gonna carry, you need to be sure you keep your "ducks in a row". Keep your vehicle's tags and registration current. Make sure your lights all work. Don't drive like an idiot. If you don't get pulled over, the police never get the chance to stomp on your rights.
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    I read over on defensivecarry.com that the guy was filing his suit Pro Se (no attorney) and how this could be dangerous for progunners (I agree). You know what they say about fools and their attorneys! I initially read about the case thru NRA so hopefully some attorney somewhere can hook up with the plaintiff.

    They probably found out about the CHP through their computers and got peeved because he didn't give them a complementary notification, thus committing the offense of "contempt of cop" so they went on a fishing expedition way down the money hole. I hope he gets an attorney and the anti-gun City of Roanoke gets a $$$ lesson.
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    yep, yep, yep. lawsuit city.

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    "... Stevenson was driving along Williamson Road to pick up his daughter from church when Roanoke police Officer Jamie A. Kwiecinski stopped him. Stevenson was given a summons because his registration had expired...."

    ".... Online court records indicated that the expired registration charge against Stevenson was dismissed in June."

    Looks like someone was trying to make nice with the victim after someone higher up the police food chain realized they screwed up.
    Revelation 1911 - And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war.

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    paramedic70002 wrote:
    I read over on defensivecarry.com that the guy was filing his suit Pro Se (no attorney) and how this could be dangerous for progunners (I agree). You know what they say about fools and their attorneys! I initially read about the case thru NRA so hopefully some attorney somewhere can hook up with the plaintiff.

    They probably found out about the CHP through their computers and got peeved because he didn't give them a complementary notification, thus committing the offense of "contempt of cop" so they went on a fishing expedition way down the money hole. I hope he gets an attorney and the anti-gun City of Roanoke gets a $$$ lesson.
    Pro Se is not good!

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    Campaign Veteran T Dubya's Avatar
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    An LEO gave me a lecture in New Market Va. (Shenandoah County) not long ago. I even started a thread about it.

    This sort of thing was bound to happen sooner or later.
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    Regular Member MSC 45ACP's Avatar
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    T Dubya wrote:
    An LEO gave me a lecture in New Market Va. (Shenandoah County) not long ago. I even started a thread about it.

    This sort of thing was bound to happen sooner or later.
    Lectured you about "duty to inform", no doubt?

    Sorry... Not in Virginia. I do it anyway. I think being polite may possibly be the difference between a warning and paying $$$ to the State for a violation that I am most certainly guilty of comitting.

    I'm pretty sure my polite manners, demeanor and honesty to a Trooper a week ago DEFINITELY got me out of a SERIOUS ticket. I was driving like a moron, changing lanes quickly in heavy traffic and speeding way over the limit. I drove away with a verbal warning.

    We don't have a duty to inform LE that we are carrying in VA. If you have a CHP, it comes up in BIG RED LETTERS across their computer screen when they run your tags. I tell them anyway. It lowers the stress level for the LEO if they encounter a calm,honest, forthrightcitizen rather than an agressive (or mute) Constitutional Scholar that KNOWS HIS RIGHTS.

    Roanoke LE screwed the pooch, no doubt about it. No excuse for them. Just remember we all make choices and decisions that lead toothers making (or being forced to make) choices and decisions.They were ignorant of the law and feltcornered. In his ignorance, the officer chose to "save face" rather than seek "higher enlightenment" from someone more experienced.

    Sometimes one (or both) parties make bad decisions that impact their future, livelihood or even their health.

    Its all about choices and decisions. Hopefully we all make the correct ones when the feces hits the rotating oscillator.

    [stepping down from soapbox after donating my $.02 worth]

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    paramedic70002 wrote:
    I read over on defensivecarry.com that the guy was filing his suit Pro Se (no attorney) and how this could be dangerous for progunners (I agree). You know what they say about fools and their attorneys! I initially read about the case thru NRA so hopefully some attorney somewhere can hook up with the plaintiff.

    ...

    I looked up the case (PACER wants the case number in the form, 7:09-525, by the way), and took a look at the docket sheet and filings.

    My first thought was, "Oh, hell, another pro-se case." My view, if I may be frank, is that pro-se cases make for bad law. People who don't understand the rules of procedure and evidence, in particular, engineer themselves into horrible positions, which the Court will then enshrine as a precedent. This only makes things worse for everybody. Cops behave the way they do, in part, because they know what judges will let them get away with. So I was pretty discouraged when I saw the plaintiff was going his own way with it.

    Then I read the complaint. I thought one paragraph (44) was excessively editorialized, and doesn't state a fact that the defendant can either admit or deny. And I wonderedhow the plaintiff intends to prove thathis allegationsregarding the city's police department having a policy or practice of unlawful dentention. Finally, I would have added state law claims for conversion, trespass to chattels, action for insulting words, and slander per se.

    But overall, I thought the complaint was very well written, in proper form, and ought to be very effective. I can't wait to see the defendants' responses. Probably motions to dismiss. It looks to me like the plaintiff is an attorney, or has a good friend who is an attorney. Or else he's a really smart guy, a quick study, and knows how to do research.

    I hope he's got some discovery ready to go out. Like, NOW. When you file in USDC, you're already behind the eight-ball with scheduling, so you'd best get your preliminary discovery ready before you even file suit.

    It occurs to me that the cops involved, based on the facts stated in the complaint, are themselves criminally responsible, and ought to be indicted. First on the list: extortion, robbery, and grand larceny. When they took the plaintiff's personal property by use of threats, coercion, and physical violence (grabbing him and slapping handcuffs on him), that was both extortion and robbery. It's a felony, because taking personal property from the person of another valued in excess of five dollars is grand larceny. Then there arethe misdemeanors of disturbing the peace, assault and battery. I would also argue that, when they were off on their own personal mission of roughing up a gun owner, they weren't actually engaged in their duties as police officers, and are thus also guilty of the crime of impersonating police officers. But that one's a stretch.

    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    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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    ODA 226 wrote:
    ProShooter wrote:
    user wrote:
    Bill in VA wrote:
    ...Kwiecinski learned that Stevenson had a concealed carry permit and asked if he had a gun. Stevenson declined to answer. ...
    At that point, the cop had actual notice that the plaintiff had a valid concealed carry permit.Â* Thus, the question of whether or not he had a gun with him was completely irrelevant to any basis the cop may have had for believing he had reasonable suspicion, much less probable cause.

    The plaintiff had an absolute right not to engage in chit-chat if he didn't feel like it (Fifth Amendment rights are not involved here, because there's no suggestion that the plaintiff was under suspicion of, or had committed, any crime).Â*

    Since the cop had no basis for detaining him beyond the time necessary to write the ticket and issue the summons, there's no question that's false arrest.Â* I assume that federal question jurisdiction has been invoked in order to get the case in front of the USDC, probably under 42USC1982 or 1983, "violation of civil rights under color of state authority".Â* That statute is very strictly confined by the federal courts because if its language were taken literally, they'd be flooded with cases; so it tends to be permitted only in cases where there's some "hostile animus" based on constitutionally protected classes, such as race, religion, national origin, etc.

    I hope the lawyer argues that people who arm themselves in preparation for self defense is a constitutionally protected class, given the language of 2nd Amend.
    Based on the information presented in the OP, I completely agree with your assessment User. Looks like someone panicked/screwed up/overstepped thier authority on this one.....I'm anxious to see how this one pans out.
    I agree with this 100% too.
    SNIP...
    I agree with this view as well.

    I think the LEOs involved here have confused the legal requirement for a person carrying a firearm concealed to show the permit when they know the person is carrying, with some sort of manufactured concept of that if a person has a permit that they MUST notify police that they are carrying.

    Really stupid twisting of the meaning and intent of the law and likely to lead to a bad destination for the LEOs involved.

    Regards
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
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    Regular Member TFred's Avatar
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    user wrote:
    [...snip...]

    I would also argue that, when they were off on their own personal mission of roughing up a gun owner, they weren't actually engaged in their duties as police officers, and are thus also guilty of the crime of impersonating police officers. But that one's a stretch.
    I bet they were being paid as police officers while this was going on... time card fraud?

    TFred


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    I've been thinking about this, since my last post. I hope that the folks who live in that judicial circuit will pressure their Commonwealth's Attorney for an indictment for robbery and grand larceny. Cops can't shake people down on the basis of personal agendas. When they took that person's gun by the use of force, that was robbery; and when they took anything, even six cartridges (assuming high quality factory-loaded product) from him personally (the car is part of his "person" for this purpose), that was grand larceny. Both of these are serious felonies. If they'd been shot while trying to accomplish what they were doing, there would be at least three good defenses as to why it was not a criminal act, and one of these was "stopping a serious felony in progress."

    There is no "I'm a cop and I was on duty" defense to a felony charge. Cops are obliged to obey the law just like everyone else. The reason they can get away with it in an emergency is "the sudden emergency defense." But that only applies when they are actually engaged in dealing with a crime in progress, imminent threat to life, limb or property, or the apprehension of a dangerous felon. And that defense isn't "cop only", it's part of the law that applies to everyone.

    Is the Chief taking any public position? If he's not nuts, he'd best get over to the magistrate and swear out a complaint against those two rogues, himself.

    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    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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    Founder's Club Member Hawkflyer's Avatar
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    user wrote:
    I've been thinking about this, since my last post.Â* I hope that the folks who live in that judicial circuit will pressure their Commonwealth's Attorney for an indictment for robbery and grand larceny.Â* Cops can't shake people down on the basis of personal agendas.Â* SNIP...
    Of course they CAN. They do it all the time, and have been for over two hundred years.

    I think your point is that they SHOULD not engage in this sort of activity, and when they do a very heavy weight should slam down on them.

    If I was the victim here I would file a complaint with the FBI and have the local Feds down there seize that video. There is likely enough evidence on those recordings to file federal criminal charges against the guys for criminal acts committed under color of office.

    It is very satisfying when you can catch some of the bad actors and make examples of them.:celebrate
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
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    Regular Member TFred's Avatar
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    Bill in VA wrote:
    http://www.roanoke.com/news/roanoke/wb/231422

    [...]

    Kwiecinski learned that Stevenson had a concealed carry permit and asked if he had a gun. Stevenson declined to answer.

    [...]
    Unlike Ulysses Everett McGill, I do not possess "the gift of the gab." This leaves me generally unable to smoothly redirect conversation in such a situation as one might find themselves while on the side of the road talking to a police officer.

    Without trying to be a jerk, how does one politely decline to answer such direct questioning that one is not legally required to answer?

    If one just sits there ignoring a direct question, I can see how that would irritate a LEO. Maybe they are supposed to know that a person has a right to do that, but we've seen plenty of cases where they don't act like they do, if they do.

    Is it as simple as calmly saying "Sir, I decline to reply to that question"? or something like that?

    TFred


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