Roanoke police actions spark lawsuit

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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. ...

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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.

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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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I agree with this 100% too.
SNIP...

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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

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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.

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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.

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user wrote:

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.  SNIP...

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Of course they CAN. They do it all the time, and have been for over two hundred years. :banghead:

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

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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.

[...]

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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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TFred wrote:

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.

[...]

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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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Start by turning it back on him.

"What do firearms have to do with a traffic violation?". or "Sir, are you aware that in Virginia there is no legal requirement that I tell anyone if I am armed or not?"

It will be about then that he will start with the "officer safety" crap, so be ready for that.

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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. ...

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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.

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If he had a gun on him, if the officer asked to see his permit and picture ID than he would have to comply. If he was unarmed, than he wouldn't have to show his permit.

However you could show your permit even if you don't have to.

It is a hard one to predict. If he wins, I don't expect anything related to the firearm to be mentioned. Courts are too shy about a precedent that could unintentionally gut police effectiveness.

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simmonsjoe wrote:

If he had a gun on him, if the officer asked to see his permit and picture ID than he would have to comply.

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only if the gun was concealed.

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TFred wrote:

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

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"No offense, officer. I know you are probably just doing your job, but I'ma big believer in the Bill of Rights, and do not wish to answer any questions without my attorneys."

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Just because you have a permit doesn't mean you ARE armed. And if you are, so what? And what if you just don't remember to tell because you are focused on why you are getting pulled over when you don't think you did anything wrong.

Happened to me once in Chesapeake. Got pulled over. No firearm, no violation and no ticket. Only warning I got was from his buck up officerfor not informing I had a permit. She got a little attitude.I wasn't evencarrying at the time either.

Been stopped 4 times in Hampton. Head lights not on. Brake light out. Rear liscense plate light out. The officer was comming at me from the opposite direction on that one. Still can't figure out how he could see it, but it was mysteriously working againso he let me go. And lastly a DUI checkpoint. During none of those stops I informed if I was carrying (3 times I was, 2 of those times I remembered I was) and none of the officers asked at any time. No tickets were issued either for the head lights or brake light and all the officers were polite when I was stopped.

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I found a person matching this guy's name and city on Facebook.

http://www.facebook.com/people/Aaron-Stevenson/1010266509

I invited him to view this thread.

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mobeewan wrote:

Just because you have a permit doesn't mean you ARE armed. And if you are, so what? And what if you just don't remember to tell because you are focused on why you are getting pulled over when you don't think you did anything wrong. ...

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That's really important, very good observation. That's really the key to the Plaintiff's case.



By the way, this topic has been running hot and heavy all day on GlockTalk:

http://www.glocktalk.com/forums/showthread.php?t=1164606&highlight=roanoke

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user wrote:

By the way, this topic has been running hot and heavy all day on GlockTalk:

http://www.glocktalk.com/forums/showthread.php?t=1164606&highlight=roanoke

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Wow. I started reading through that thread, and almost stopped, the insanity was starting to drive me crazy! Then I realized that you would probably be posting some replies at some point, and I'm glad you did. Wow. I don't see myself ever becoming a regular reader of that forum!

Too many "amateur experts" over there.

TFred

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TFred wrote:

user wrote:

By the way, this topic has been running hot and heavy all day on GlockTalk:

http://www.glocktalk.com/forums/showthread.php?t=1164606&highlight=roanoke

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Wow. I started reading through that thread, and almost stopped, the insanity was starting to drive me crazy! Then I realized that you would probably be posting some replies at some point, and I'm glad you did. Wow. I don't see myself ever becoming a regular reader of that forum!

Too many "amateur experts" over there.

TFred

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Whadda expect Fred....They love plastic guns:uhoh:

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As I read through this thread, and particularly in context of bill HB 52, which de-criminalizes not carrying one's CHP on their person, I came up with an interesting question.

18.2-308, paragraph H, requires one to display their CHP upon demand by a LEO:

The person issued the permit ... shall display the permit and a photo-identification ... upon demand by a law-enforcement officer.

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Now presumably, since this requirement is a part of the Concealed Weapon law, this action is only required if one is indeed carrying a concealed weapon. A police officer can't very well demand that you display a pilot's license if you aren't flying an airplane, a motorcycle license if you aren't driving a motorcycle, etc, etc.

According to the alleged facts presented in this case, the citizen declined to answer whether or not he was in fact, carrying a concealed weapon.

However... the law says if you are, then you are required to display the permit upon request.

See where I'm going here? If you are not required to answer the question "are you carrying a concealed weapon?", then does that mean the law only requires you to display your permit, when the LEO is aware through other means of the fact that you are actually carrying a concealed weapon?

Or... does this law make it a requirement for you to reveal that you are carrying a concealed weapon if the officer says something like "let me see your permit if you are carrying."

One could still avoid answering the question and just simply display the permit, I suppose.

Of course, in this case, the officer already knew he had a permit, and if HB 52 makes it into law, this scenario becomes even less likely, since it removes the possession and display of the permit from the criminal side of concealed carry.

TFred

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peter nap wrote:

TFred wrote:

user wrote:

By the way, this topic has been running hot and heavy all day on GlockTalk:

http://www.glocktalk.com/forums/showthread.php?t=1164606&highlight=roanoke

Click to expand...

Wow. I started reading through that thread, and almost stopped, the insanity was starting to drive me crazy! Then I realized that you would probably be posting some replies at some point, and I'm glad you did. Wow. I don't see myself ever becoming a regular reader of that forum!

Too many "amateur experts" over there.

TFred

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Whadda expect Fred....They love plastic guns:uhoh:

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I'll tell you what spending 15 minutes reading through a thread over there did for me, it gave me a new appreciation that it is standard procedure here (and usually with no hard feelings) to ask for a cite when you post something that isn't common knowledge!

I don't claim to know a lot about much, but it's very comfortable here that most folks are willing to cite sources to authority when asked, and sometimes even without being asked.

I think that raises the level of professionalism and credibility of this whole site.

TFred

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Mike wrote:

simmonsjoe wrote:

If he had a gun on him, if the officer asked to see his permit and picture ID than he would have to comply.

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only if the gun was concealed.

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You are correct.

This was in response to user's post saying because the officer saw the CHP in VCIS the gun was completely irrelevant. Even if the CHP pops in VCIS, by the code of VA it doesn't count until the user shows both the permit and an acceptable picture ID upon request.

Because the CHP was mentioned, I wrongly assumed the firearm was concealed. Rereading the story, it doesn't specify OC or CC.

Does anyone know if it was OC?
Also, if the officer never asked to see the CHP, does anyone think OC or CC is relevant?

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mobeewan wrote:

Just because you have a permit doesn't mean you ARE armed. And if you are, so what? And what if you just don't remember to tell because you are focused on why you are getting pulled over when you don't think you did anything wrong.

Happened to me once in Chesapeake. Got pulled over. No firearm, no violation and no ticket. Only warning I got was from his buck up officerfor not informing I had a permit. She got a little attitude.I wasn't evencarrying at the time either.

Been stopped 4 times in Hampton. Head lights not on. Brake light out. Rear liscense plate light out. The officer was comming at me from the opposite direction on that one. Still can't figure out how he could see it, but it was mysteriously working againso he let me go. And lastly a DUI checkpoint. During none of those stops I informed if I was carrying (3 times I was, 2 of those times I remembered I was) and none of the officers asked at any time. No tickets were issued either for the head lights or brake light and all the officers were polite when I was stopped.

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Jalopymobile:celebrate You can buy some GSL magnets to cover the rust. j/k

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...

...

Because the CHP was mentioned, I wrongly assumed the firearm was concealed. Rereading the story, it doesn't specify OC or CC.

Does anyone know if it was OC?
Also, if the officer never asked to see the CHP, does anyone think OC or CC is relevant?

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Yes - the complaint alleged:

30. Defendants Kwiecinski and Ayers, acting in concert, immediately placed Plaintiff in handcuffs, and in so doing, neglected to "double-lock" the handcuffs so as to prevent them from tightening further than necessary. Defendants also seized Plaintiff's handgun, a .45 caliber Para Ordinance, which was in plain view in a holster on Plaintiff's right hip.

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(emphasis added).

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TFred wrote:

user wrote:

By the way, this topic has been running hot and heavy all day on GlockTalk:

http://www.glocktalk.com/forums/showthread.php?t=1164606&highlight=roanoke

Click to expand...

Wow. I started reading through that thread, and almost stopped, the insanity was starting to drive me crazy! Then I realized that you would probably be posting some replies at some point, and I'm glad you did. Wow. I don't see myself ever becoming a regular reader of that forum!

Too many "amateur experts" over there.

TFred

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I post from time to time on glocktalk.com but I will say that there are a lot of what I might call "gun bigots" on that site. We also have some here, but not nearly as many.

What I mean by gun bigots are people who have little room for thoughts, ideas, and opinions which might differ from those of others. Also people who take a high and mighty attitude about subjects and topics and have no problems with demeaning people and name calling when they wish.

Like I said, we certain have a few of those here, but not as many. When someone's argued defense turns from logic and respect to name calling and emotional reaction, then you know it's probably best to let that individual stew in their own juices.