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Thread: Stevenson v. (Roanoke City police officers) Kwiecinski

  1. #1
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    Stevenson v. (Roanoke City police officers) Kwiecinski

    On May 6, 2009, Roanoke City police officers Jamie Kwiecinski and Dwight Ayers accused me of violating a Virginia law that requires citizens with Concealed Handgun Permits to submit to questioning about their possession of firearms. On the basis of that allegation, they forcibly removed me from my truck, placed me in handcuffs, seized my handgun, performed thorough searches of my person and my truck, persistently interrogated me in spite of my requests for legal counsel, stuffed me in the back of a police car, and kept me in their custody for about an hour.

    The law they accused me of violating does not exist.

    I subsequently filed a lawsuit in Federal District Court to hold the officers accountable for their grievous violations of my civil rights. On July 23, 2010, Chief District Judge Glen Conrad dismissed the suit, ruling that because the officers believed they were acting appropriately, they are entitled to qualified immunity, and cannot be sued.

    The court effectively held that the officers' ignorance of the law serves as an excuse for violating my civil rights. I intend to appeal the decision.

    Recordings, transcripts, and filings are available at http://stevenson-v-kwiecinski.donortools.com/

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    Campaign Veteran skidmark's Avatar
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    Are you planning to appeal the ruling?

    stay safe.

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    Quote Originally Posted by skidmark View Post
    Are you planning to appeal the ruling?

    stay safe.
    Quote Originally Posted by Tosta Dojen View Post
    I intend to appeal the decision.
    There's your answer.

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    For those wanting a citation, 2010 WL 2927964 or 2010 U.S. Dist. LEXIS 75268

    ETA: This judge has decided 2 1983 decisions in the past decade which have been appealed to the 4th Circuit. Both were affirmed. Hope you have better luck.
    Last edited by GULCer; 08-12-2010 at 03:00 PM.

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    So ignorance of the law IS an excuse, if your job is to enforce the law???

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    Regular Member wylde007's Avatar
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    How far does this "immunity" go? What laws are they allowed to make up on the spot and arrest or detain people for because they "think it might be illegal" and suffer the law-abiding for their ignorance?

    That's not just negligent, it's injurious.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
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    Administrator John Pierce's Avatar
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    Quote Originally Posted by wylde007 View Post
    How far does this "immunity" go? What laws are they allowed to make up on the spot and arrest or detain people for because they "think it might be illegal" and suffer the law-abiding for their ignorance?
    The answer:

    It is a reasonableness test and unfortunately, I believe that the 4th Circuit will uphold this opinion. In prior cases (cited in this case), the 4th Circuit has held that:

    ... in holding our law enforcement personnel to an objective standard of behavior, our judgment must be tempered with reason. If we are to measure official action against an objective standard, it must be a standard which speaks to what a reasonable officer should or should not know about the law he is enforcing and the methodology of effecting its enforcement. Certainly we cannot expect police officers to carry surveying equipment and a Decennial Digest on patrol ...

    John

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Administrator View Post
    The answer:

    It is a reasonableness test and unfortunately, I believe that the 4th Circuit will uphold this opinion. In prior cases (cited in this case), the 4th Circuit has held that:




    John
    I couldn't agree more john!
    The Eastern District has always been a tough court to prevail in and that's one of the reasons that I get annoyed with some of the hard rules some people spout.

    I've heard "They can't do that" repeatedly, and the simple fact is...they do, do that and with a reasonable amount of immunity.

    As the OP is finding out, justice ain't cheap and if there's any real chance of prevailing in this, it will be in a very detailed, very costly, appeal to the top.

    Just going on the Cop's record where he had been sued and it took 6 years for the plaintiff to get a 20,000.00 settlement. The Officer seemed to think that was a long time for little money and I agree.

    I'm a great believer in not showing ID and in that case the OP had already done it because of the ticket. I also accept the fact that I may be detained and maybe even arrested. That just goes with exercising rights.

    I'll give the OP credit. He did nearly everything right after he decided not to answer the Cop. He stuck with it under considerable harassment and abuse.

    He had a good clean recording and said very little.
    He also has excellent taste in guns.

    This case speaks volumes about Perks for Permits. The word "Privilege" was used repeatedly. The threat to take it away was made repeatedly.

    The officer knew they OP had a permit and assumed he had to have a gun. The targets and ammo that were visible underscored it.
    Last edited by peter nap; 08-13-2010 at 10:36 AM.

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    Regular Member wylde007's Avatar
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    Unhappy

    Quote Originally Posted by peter nap View Post
    That just goes with exercising rights.
    That may be the saddest statement I have ever heard.

    "You have to expect to be arrested for exercising your rights."

    Really? This is what it's come to... what a sad state of affairs.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Angry

    I just listened to the audio tapes, and I am adsolutely infuriated. These cops should not be employed, let alone be protected by any rights-obliterating immunity.

    I summize that no summons was ever issued for the non-existent charge. Was your CHP ever actually revoked, as the officers were so determined to have it done?

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    Quote Originally Posted by skidmark View Post
    Are you planning to appeal the ruling?

    stay safe.
    That's the plan. Right now I'm trying to scrape together the $455 appeal fee, and I'm also looking for a new attorney. The attorney who has assisted me so far has been excellent, but has indicated that he will not be able to represent me on appeal.

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    Quote Originally Posted by Administrator View Post
    The answer:

    It is a reasonableness test and unfortunately, I believe that the 4th Circuit will uphold this opinion. In prior cases (cited in this case), the 4th Circuit has held that:

    ... in holding our law enforcement personnel to an objective standard of behavior, our judgment must be tempered with reason. If we are to measure official action against an objective standard, it must be a standard which speaks to what a reasonable officer should or should not know about the law he is enforcing and the methodology of effecting its enforcement. Certainly we cannot expect police officers to carry surveying equipment and a Decennial Digest on patrol ...


    John
    In applying that cite to this case, the court is effectively holding that we can't expect a police officer to know whether the law he's enforcing even exists, because that's an unreasonable standard. That pretty much kills Harlow's expectation that a reasonable official will know the law governing his conduct. If a police officer is required to know the law, but that requirement is limited to the point where he doesn't have to know whether the law is even on the books, then the requirement might as well not exist.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by wylde007 View Post
    That may be the saddest statement I have ever heard.

    "You have to expect to be arrested for exercising your rights."

    Really? This is what it's come to... what a sad state of affairs.
    I guess it's always been that way but certainly since the 60's.
    The fear of arrest is really the only power they have in a situation like that.

    Look at Rosa Parks. She had the guts to say "Go ahead and arrest me but I ain't sittin in the back of the bus"

    If you expect it, they've lost their edge.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by VApatriot View Post
    I just listened to the audio tapes, and I am adsolutely infuriated. These cops should not be employed, let alone be protected by any rights-obliterating immunity.

    I summize that no summons was ever issued for the non-existent charge. Was your CHP ever actually revoked, as the officers were so determined to have it done?
    It is infuriating isn't it.
    It makes me mad enough to kick in a little donation toward the $455.00 appeal fee. It's worth it just to see them go through more misery even if the OP loses.

  15. #15
    Accomplished Advocate peter nap's Avatar
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    This is the way to respond

    I syndicate Carlos Miller's Blog and this came across this morning.

    It's On Topic here because this is the way to respond to police officers. I get mad and try to egg it on but this kid is good. Short, simple and to the point, then walk away. Notice that he did not show ID.
    http://news.oldva.org/

    The OP handled it nearly as well.


    Last edited by peter nap; 08-14-2010 at 09:50 AM.

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    Moderator / Administrator Grapeshot's Avatar
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    Classic - responding to a "color of law" request by asking pertinent questions.

    Been there, done that - perhaps not as calmly though.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member simmonsjoe's Avatar
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    Well Done by guy in video.

    Not quite sure how taking pictures of a sensitive area is valid if the area in question is in plain view from the street? Sounds like BS to me.

    Another question, since the officer actually said he was being detained, is this cause for a lawsuit?

    Does anybody besides me see a marked change in the officers behavior about 2/3rd through the contact? I wonder if he noticed the camera and realized he was treading on dangerously thin ice?
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    Quote Originally Posted by Administrator View Post
    The answer:

    It is a reasonableness test and unfortunately, I believe that the 4th Circuit will uphold this opinion. In prior cases (cited in this case), the 4th Circuit has held that:

    John
    I think the problem here is that this court decided it was reasonable for the police to incorrectly think they were enforcing a non-existent law. In St. John vs Alamagordo, the court used the same reasonableness standard, but found that it was reasonable to expect police to actually know the law they are enforcing.
    Last edited by Citizen; 08-14-2010 at 07:54 PM.

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    Quote Originally Posted by Citizen View Post
    I think the problem here is that this court decided it was reasonable for the police to incorrectly think they were enforcing a non-existent law. In St. John vs Alamagordo, the court used the same reasonableness standard, but found that it was reasonable to expect police to actually know the law they are enforcing.
    The overall balance of the cases is against us on this one. Plain and simple. We can say what the law should be all we want but that doesn't change what the law actually is.

    I assume OPs counsel was on contingency here? If so, I think there is 0 chance of another (good) lawyer taking this case on contingency. That tells you all you need to know about the chances of this case succeeding.
    Last edited by GULCer; 08-14-2010 at 08:46 PM. Reason: I can't proofread

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    Regular Member simmonsjoe's Avatar
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    Quote Originally Posted by Citizen View Post
    I think the problem here is that this court decided it was reasonable for the police to incorrectly think they were enforcing a non-existent law. In St. John vs Alamagordo, the court used the same reasonableness standard, but found that it was reasonable to expect police to actually know the law they are enforcing.
    Makes sense.

    If an officer is called to enforce a law he hasn't heard about, or doesn't know enough about, than he shouldn't enforce it. I can understand how that falling under immunity makes sense. Enforcing a non-existent law seems completely outside of their scope of duty to me.
    Last edited by simmonsjoe; 08-14-2010 at 08:54 PM.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
    G19 Gen 4; Bersa Thunder 380; Sig Sauer P238; Kel-Tec su-16c

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by simmonsjoe View Post
    Not quite sure how taking pictures of a sensitive area is valid if the area in question is in plain view from the street? Sounds like BS to me.

    Another question, since the officer actually said he was being detained, is this cause for a lawsuit?

    Does anybody besides me see a marked change in the officers behavior about 2/3rd through the contact? I wonder if he noticed the camera and realized he was treading on dangerously thin ice?
    The cost of a lawsuit against a Federal Officer trying to keep those nasty terrorists from taking pictures of a Federal building, would be staggering. Getting him called on the carpet would be more sensible.

    His mannerisms did change but it's more because he realized the kid knew his business. His camera doesn't do video and he took this with his cell phone.

    I go through something like that at least once a month. I had one cop try to tell me I couldn't take pictures of a Hospital. I was really taking pictures of the Geese in the pond but started taking pictures of the Hospital when he said that.

    Always keep the video going no matter what. It's good to have a recorder on also. I have a separate recorder that is usually mounted to the camera just to get better audio. I also have my personal recorder around my neck or in my pocket.

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    Quote Originally Posted by simmonsjoe View Post
    Quote Originally Posted by Citizen View Post
    I think the problem here is that this court decided it was reasonable for the police to incorrectly think they were enforcing a non-existent law. In St. John vs Alamagordo, the court used the same reasonableness standard, but found that it was reasonable to expect police to actually know the law they are enforcing.
    Makes sense.

    If an officer is called to enforce a law he hasn't heard about, or doesn't know enough about, than he shouldn't enforce it. I can understand how that falling under immunity makes sense. Enforcing a non-existent law seems completely outside of their scope of duty to me.
    There is an even faster, more direct route for the logic. If there is no offense under the law, the cop does not have authority to enforce against it. St. John even quoted the very same case Terry quoted:

    No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pacific Rail Co. vs Botsford.

    No right. More sacred. More carefully guarded. Free from all restraint or even interference. Unless by clear and unquestionable authority of law.

    Since there was no law requiring the motorist to notify, the cop did not have the authority of law; thus, the cop violated one of the most sacred and carefully guarded rights.

    But, it is nice to know the courts in this area do not actually uphold even the most sacred and carefully guarded rights.
    Last edited by Citizen; 08-15-2010 at 12:53 AM.

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    It is long past time to get legislation past that strictly defines or completely eliminates this "qualified immunity" B.S. I am guessing that that may be an impossibility however. The long arm of the law has far to many protections!!
    Last edited by Toad; 08-15-2010 at 02:22 AM.

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    anyone know the law regarding resisting an unlawful arrest/detainment?

  25. #25
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by mrt6812 View Post
    anyone know the law regarding resisting an unlawful arrest/detainment?
    Presume you mean physically resisting - not generally a good idea.

    Even before someone chimes in on the legalities, let me suggest that the street is no place to to accomplish such tasks. Better after the fact in the comfort of you attorney's office.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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