imported post
tekshogun wrote:
Something I would love to see, and I think Dreamer has stated he has some of this, is case from all over the state where this common law has been used.
I'm looking and looking, and almost EVERY single case I can find in NC where a GttTotP actually stuck in court was when the accused had ALSO done something else stupid or illegal, like committing assault, or being on "restricted" property, or was intoxicated, or some other such violation.
And even the tiny number of GttTotP charged which stuck but DIDN'T involve serious concurrent violations ALL seem to involve questionable judgement or inappropriate (but lawful) behavior on the part of the accused...
What I'm NOT finding is any GAttTotP charges that went to trial and got thrown out. I think this is because so many of the GAttTotP charges that are bogus simply get sumarily tossed by the DA and they never even attempt to bring the case, and so these charged simply don't create a paper trail.
Citations that are dismissed do NOT generate a public-records paper trail, and so it is going to be VERY difficult to build a case against GAttTotP based on the fact that the vast majority of these charges are invalid and get thrown out LONG before going to trial.
When we can't prove to the Legislature that the caseload created by this law produces an unacceptable waste of resources (staff and fiscal) for the Judiciary, is frequently used to attempt to legitimize "color of law" civil rights violations committed by LEO's, is unconstitutionally vague, and leaves the state open to Federal Rights lawsuits from it's easy-to-affect abuse, because there are scores of cases each year that never make it far enough into the process to create a paper trail (but they still gobble up legal resources and funds in the Judicial system)...
It's too late to get a bill in this Spring's session of the General Assembly, I believe, but perhaps we need to try and draft a Bill for next session that would:
1) formally abolish and invalidate the Common Law violation of GAttTotP, and
2) replace it with a formally-defined statutory prohibition against "Brandishing". The Virginia statute on "brandishing" is pretty well-defined and sensible. It might be a good place to start:
Virginia 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.
However, the USSG guidelines and definitions has a much more concise and to-the-point definition of "brandishing":
“‘Brandished’ with reference to a dangerous weapon (including a firearm) means that the weapon was pointed or waved about, or displayed in a threatening manner.” USSG §1B1.1, commentary (n.1(c)).
Personally, I'd opt for the shorter version, but ANY tightly defined statute for this violation would be better than the vague, common law mumbo-jumbo we currently have...