Quick help....

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I'm sorry you had to go through that experience. Lawfully carrying a firearm is not by itself enough to justify running the serial number; that's a search without probable cause.

Mark Matthews

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VAlitigator wrote:

I'm sorry you had to go through that experience. Lawfully carrying a firearm is not by itself enough to justify running the serial number; that's a search without probable cause.

Mark Matthews

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You forgot to say...

Mark Matthews, and I'm a lawyer!

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VAlitigator wrote:

I'm sorry you had to go through that experience. Lawfully carrying a firearm is not by itself enough to justify running the serial number; that's a search without probable cause.

Mark Matthews

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I can not prove at this point 100% that he ran the serial number, but I am pretty sure he did seeing that he took it back to his vehicle.

Won't know unless I get the radio records.

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Is there a time limit (statute) of limitations to bring this issue before the courts?

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nuc65 wrote:

Is there a time limit (statute) of limitations to bring this issue before the courts?

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I think it is 6 months.

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I had the same issue a few months ago, what is the SOP for filling an official complaint?

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nuc65 wrote:

Is there a time limit (statute) of limitations to bring this issue before the courts?

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If a lawsuit is brought under 42 US Code Section 1983 for deprivation of a Constitutionally-recognized civil right brought by someone acting under color of law, then it is 2 years.

But if you file a claim with the city, county, or Commonwealth first under the Virginia Tort Claims Act before filing a Section 1983 lawsuit (which is not required), then the time limit for that claim is 6 months or 12 months depending on who the claim is against (I think it is 6 months for a city and 12 months for county or Commonwealth, but I will doublecheck that tomorrow at the office). Normally, under the Virginia Tort Claims Act, you have to file a claim first before filing suit. But, Section 1983 lawsuits do not require that you first follow state procedural rules.

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Jero1987 wrote:

gador: State police. As far as lecture, the backup cop that showed up said if it was him who pulled me over, the minute he saw my gun he would have thrown me out of the car. The cop who pulled me over also said that when his lights turn on I am under arrest and when driving through his county in virginia, you better expect he will take my gun. (Heads up for anyone driving through campbell county.)

ed: The whole reason I told him I had it was because he leaned in and his eyes got WIDE. Yeah I saw that article too, but I felt it good judgment at the time to inform him.

I am not angry, I am just very upset my rights were violated. Ill be taking eds advice and calling a lawyer.

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This is most disheartening if it was a state police officer.

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VAlitigator wrote:

nuc65 wrote:

Is there a time limit (statute) of limitations to bring this issue before the courts?

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If a lawsuit is brought under 42 US Code Section 1983 for deprivation of a Constitutionally-recognized civil right brought by someone acting under color of law, then it is 2 years.

But if you file a claim with the city, county, or Commonwealth first under the Virginia Tort Claims Act before filing a Section 1983 lawsuit (which is not required), then the time limit for that claim is 6 months or 12 months depending on who the claim is against (I think it is 6 months for a city and 12 months for county or Commonwealth, but I will doublecheck that tomorrow at the office). Normally, under the Virginia Tort Claims Act, you have to file a claim first before filing suit. But, Section 1983 lawsuits do not require that you first follow state procedural rules.

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Just curious. Would it also be a good idea to CC the state's Attorney General as well as the officers' superiors with any correspondence? If so, wait until after the 16th. Cuccinelli will assume the role of the new Attorney General and he seems to have little patience with this sort of thing.

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Here is the audio and rough transcript from the audio. Unfortunately I forgot to start the audio until after he had taken my firearm into his vehicle. But I do have 95% of the conversation recorded.

Audio Download: http://www.jaecomputing.com/audio/output_mp3.mp3 (Right-Click, Save As...)

Officer B. S. May:"Would you step out of the vehicle?"

Myself: "Yes, sir"

Officer B. S. May:"Step out of the road."

Myself:"I'm Sorry?"

Officer B. S. May:"Step out of the road. Let me see your permit."

Myself: "yes, sir"

Officer B. S. May:"You need to present this as soon as you get stopped."

Myself:"Umm according to Virginia law, there is right to inform the officer."

Officer B. S. May:"You don't have to inform the officer, but when I see your weapon you better show it to me, or I'll take you to jail, you understand me? "

Myself: "I understand that officer, yes"

Officer B. S. May:"Alright, don't you tell me the law, I know the law."

Myself:"I understand that im not saying that. I would also like to ask you just for your name, if that's fine."

Officer B. S. May:"We'll get to that in just a minute."

Myself:"That's fine."

Officer B. S. May:"Alright son, heres your summons, at general district court, February the 5th at 8:30 in the morning."

Myself:"Okay"

Officer B. S. May:"For speeding 79 in a 65, following too closely, and having a dangling object to obstruct view. That tree thing on your mirror..." (My air freshoner)

Myself"That's against the law?"

Officer B. S. May:"Yes sir it is. I need you to sign each three of these X's, its not an admission of guilty but you promise to come to court for each violation."

Myself:"Okay"

Officer B. S. May:"Can you verify thats your correct address?"

Myself:"Apartment Number 10. This is my current registration as well, I found it for you."

Officer B. S. May:"Okay"

Myself:"I apologize."

Officer B. S. May:"Alright sir, ill get your signature"

Myself:"Uh, yep."

*signing the summons*

Myself:"I also, uh, I don't mean to be disrespectful to you at all officer, I'm just trying to inqure."

Officer B. S. May:"Sure"

Myself:"As far as I understand the law, it is illegal for you to disarm me, without me actually being under arrest. I would just like to understand why you disarmed me?"

Officer B. S. May:"This is an officer safety matter."

Myself:"Okay"

Officer B. S. May:"To take your weapon and to make sure it is safe for me as well as for you."

Myself:"Okay, and I understand that I would just like to know under what sanction
(section) gives you the authority to disarm me without actually being under arrest."

Officer B. S. May:"When you have a weapon and your illegally....Technically when I turn these blue lights on, its an arrest."

Myself:" Right."

Officer B. S. May:"When I hand you these summons, you are released by summons. I have the right to detain you and take your weapon for my safety."

Myself"Okay, I just wanted to make sure."

Officer B. S. May:"You want my name? My name is (cant make out) Mays, Badge number ......"

Myself"Okay, Thank you very much."

Officer B. S. May:"Okay, do you have any questions?"

Myself:"ummm, no thats fine, I just as long as I understand your badge number, because as far as my lawyer ( I meant to say the law) knows, *studdering* I may be wrong and I admit that,..."

Officer B. S. May:"When I see gun, "

Myself:"Right"

Officer B. S. May:"I'm taking gun."

Myself:"If you have, I mean, I'm not saying you cant do that I cant tell you not to, but as far I understand the law in Virginia, taking my firearm that like, as far as I know, (he started looking upset) Im not trying ot be disrespectful and I don't mean to anger you at all, I am just saying as far as I know the law that is actually illegal."

Officer B. S. May:"nope"

Myself:"Thats fine I just wanted that for the freedom of information act for the camera, just so I have evidence of what happened."

Officer #2:"I have a question..."

Myself:"Yeah"

Officer #2:"were you reaching for the weapon when he pulled you over?"

Myself:"No sir, not at all."

Officer #2:"Were you reaching for your seat belt?"

Officer B. S. May:"yes"

Myself:"I was reaching for my wallet and my seat belt."

Officer #2:"With your hand beside your weapon."

Myself:"And I apologize for that"

Officer #2:"is that correct?"

Myself:"I am apologizing for that..."

Officer #2:"Listen to me sir, if you would have done that when I came up and that was me..."

Myself:"Right"

Officer #2:"you're lucky he didn't jerk you outta that car. When we see gun...if we see gun...its game over."

Myself:"I perfectly understand that, for your safety, I understand that."

Officer #2: "You're getting your weapon back, unarmed."

Myself:"Right, that's fine."

Officer #2:"Right"

Myself:"No problem."

Officer #2: "You can imagine, if you get stopped in Virginia, I'm letting you know, at least in this county... and we see firearm, we are probably gunna pull you outta the car."

Myself:"And I, if thats the way you feel you have to do it..."

Officer #2:"Yes, sir."

Myself:"... what you guys do during this situation is fine, what happens in court is a whole different matter. I understand that."

Officer #2:"Here is your firearm back."

Myself:"May I drop the slide?"

Officer #2:"Sure, you can forward the slide. Do not load the weapon until you get onto the road, okay?"

Myself:"Alright, no problem."

Officer #2:"And here's your knife back."

Myself:"Thank you very much."

Officer B. S. May:"Have a safe day sir."

Myself:"You too."

Officer B. S. May:"Be careful pulling out."

Myself:"I will."

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Also a BIG kudos goes out to Grapeshot and Skidmark for convincing me to get a Voice Recorder and to join VCDL. I did both the next day after the lynchburg dinner.

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GQflyboy wrote:

I had the same issue a few months ago, what is the SOP for filling an official complaint?

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Define "official complaint." Do you mean a claim/lawsuit for money, or a complaint that would spur the agency to investigate what happened and possibly put a black mark in the officer's disciplinary and/or performance record?

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Sounds like your beef is with the VSP and not the Campbell County Sheriff's office.

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kenny wrote:

Sounds like your beef is with the VSP and not the Campbell County Sheriff's office.

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Yeah one was a state cop other just said K-9 Unit.

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ed wrote:

Jero1987 wrote:

Sorry if its already been posted. I couldn't find it.I got pulled over for speeding today and the cop took my firearm from me and ran the serial number in his car. Is he legally allowed to take my firearm without my permission on a speeding stop?

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Technically, NO. If you gave him reason or action to make him feel he was in danger.. maybe.. How did he take it, where was it, etc.. more details.

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Cite, please. (rhetorical request)

Yes. Unfortunately, LEOs are legally allowed to temporarily seize firearms during traffic stops for officer safety, regardless of consent.

The applicable court opinions are Pennsylvania vs Mimms and US vs Baker.

Mimms is a US Supreme Court decision. Baker is a federal 4th Circuit opinion--Virginia is covered by the 4th Circuit.

Mimms[suP]1[/suP]: [suP][/suP]there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed, and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down." (emphasis added by Citizen)

Baker[suP]2[/suP]: Based on the inordinate risk of danger to law enforcement officers during traffic stops, observing a bulge that could be made by a weapon in a suspect's clothing reasonably warrants a belief that the suspect is potentially dangerous, even if the suspect was stopped only for a minor violation...(emphasis added by Citizen)

Please read the entire opinions to see the full context. They are easy to read--hardly any legal-ese.

Traffic stop court opinions seem to differ from the grandfather foot stop opinion--Terry vs Ohio. Terry[suP]3[/suP] seems to have been twisted by later courts in regard to traffic stops, even though the traffic stop cases cite Terry. The main distinction being, that I can tell, is that under Terry a gun did not automatically = dangerousness. In Terry the court is clear that there are two prongs: 1) armed, and 2) presently dangerous. In Mimms and Baker "armed" has been morphed to automatically mean "dangerous".

None of this intended to reduce or minimize any other extra-legal, unlawful, or unprofessional conduct by the LEO. It is merely to 1) provide the source material straight from the judges to answer the OPers question, and 2) to correct Ed's info.

Ed, please delete or correct your reply at the top of the thread so no one comes away with an incorrect impression.



1. Mimms http://supreme.justia.com/us/434/106/case.html



2. Baker http://pacer.ca4.uscourts.gov/opinion.pdf/955287.P.pdf



3. Terry http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html

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Curtis wrote:

hometheaterman wrote:

The last time I was stopped for a traffic violation if you can call it that. He said I went over the white line onto the shoulder so he wanted to make sure I wasn't driving under the influence. Anyway, when I informed him I was carrying he asked me to step out of the car. I let him know that I did not consent to any searches. He told me he wasn't searching the vehicle. He just got the gun and took it back to his car I guess to run the numbers. I set for what felt like forever. Finally he came back with my license and the gun and told me everything was fine and that they were having computer problems which was why it took so long. I figured this was probably legal but really didn't and still don't know. Can you tell them they can't take your gun? Or do you not have that right? This question kind of sparked my interest as I wonder what your rights really are.

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What he did, to you and the OP, was an illegal search and seizure.

Be informed and most importantly don't let them get away with it.

OP: Get in touch with an attorney, FOIA the dashboard cams, radio chatter, computer chatter, file a formal complaint.

However, the experience I had with this went fine. I didn't have him telling me I was lucky he didn't throw me out of the vehicle or anything like that. He was super polite the whole time and good to deal with. I was actually glad to see they were checking for drunk drivers.

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Please tell me that after realizing that your rights were truly trampled on that you are angered. Complacency with behavior like this from law enforcement is not good.

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Never volunteer that you are carrying - it opens the door for too many problems.

I believe that the courts have held that a LEO can disarm you for "officer safety" at traffic stop (Terry stop). I'm sure that you appeared nervous and fidgety.

Yata hey

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Hawkflyer wrote:

Agent19 wrote:

Invest in one of these and avoid that problem, depending on your guns make, model and serial # location.

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While perhaps a good storage option, how Could this possibly be useful for routine carry?

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Not good for routine carry, but if you can place the gun in it with the key in the lock while driving then close it quickly and lock it if you get pulled over the officer cannot runthe serial number if it is on the side of the gun.

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Ahhh! The "tree thing" dangling from the rear view mirror!!! That's why he got stopped. The cops have the notion that people use air fresheners to mask the aroma of burning marijuana, so there are some who pretty much think of any excuse to stop a car that has one.

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VAlitigator wrote:

GQflyboy wrote:

I had the same issue a few months ago, what is the SOP for filling an official complaint?

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Define "official complaint."  Do you mean a claim/lawsuit for money, or a complaint that would spur the agency to investigate what happened and possibly put a black mark in the officer's disciplinary and/or performance record?

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I'm looking more along the lines of complaint that would spur an investigation. My motivation isn't money. However I would like the LEOs on Norfolk to know that I'm not going to let them randomly take my pistol at a traffic stop and run the numbers when there is no reason for them to.

Also it wouldn't hurt to get out of the expired inspection, and operating with out proper ID tickets, But mainly it's a 2A motive.

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Citizen wrote:

ed wrote:

Jero1987 wrote:

Sorry if its already been posted. I couldn't find it.I got pulled over for speeding today and the cop took my firearm from me and ran the serial number in his car. Is he legally allowed to take my firearm without my permission on a speeding stop?

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Technically, NO. If you gave him reason or action to make him feel he was in danger.. maybe.. How did he take it, where was it, etc.. more details.

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Cite, please. (rhetorical request)

Yes. Unfortunately, LEOs are legally allowed to temporarily seize firearms during traffic stops for officer safety, regardless of consent.

The applicable court opinions are Pennsylvania vs Mimms and US vs Baker.

Mimms is a US Supreme Court decision. Baker is a federal 4th Circuit opinion--Virginia is covered by the 4th Circuit.
...


1. Mimms http://supreme.justia.com/us/434/106/case.html



2. Baker http://pacer.ca4.uscourts.gov/opinion.pdf/955287.P.pdf



3. Terry http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html

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Those cases outline the limits of the Fourteenth Amendment due process clauseand the right to be free of "unreasonable searches and seizures" under the Fourth Amendment. Outer limits. Not necessarily applicable to states, which may have stricter standards for police behavior. Those cases, because of the "selective incorporation" doctrine, are also limited pretty much to the facts of the cases.

I maintain that a police officer has to have an objective reason for believing that there is a present danger to himself or others in Virginia. His subjective feelings in the matter, or any routine policy he or his department may have are not sufficient.

In Virginia, taking personal property away from "the person" of another valued in excess of five dollars is a felony. Taking any property valued in excess of two hundred dollars, whether or not it's from "the person", is a felony. A police officer does not have the authority to commit a felony absent a good faith belief, on the basis of objective fact, that an immediatethreat to life, limb, or property exists.

That's what I think the law says. What a particular judge will do in a particular case depends on the intellectual honesty of that particular judge, and how much of a "system" guy he may be.