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Thread: 2A violation lawsuit

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    2A violation lawsuit

    I have read a number of posts and have viewed youtube videos (some of from states but allow open carry) of people open carrying and getting questioned by the police. In some cases the police have insisted that the open carrier allow them to run their firearm or otherwise tell them they are being detained soley because they are open carrying. In many cases the person being questioned states they don't consent to a search but won't resist. After the police are done with their inquiry the person is allowed to leave. Many claim they will file a lawsuit for violating thier rights.

    My quesiton is has anyone ever filed a lawsuit for being detained/questioned etc. for open carry? If so what was the outcome.

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    search for danbus on this site that link should lead you to several other cases of his and others

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    Quote Originally Posted by Mtam View Post
    I have read a number of posts and have viewed youtube videos (some of from states but allow open carry) of people open carrying and getting questioned by the police. In some cases the police have insisted that the open carrier allow them to run their firearm or otherwise tell them they are being detained soley because they are open carrying. In many cases the person being questioned states they don't consent to a search but won't resist. After the police are done with their inquiry the person is allowed to leave. Many claim they will file a lawsuit for violating thier rights.

    My quesiton is has anyone ever filed a lawsuit for being detained/questioned etc. for open carry? If so what was the outcome.
    I don't know of any instances right now. I take that back. I know of one and it was filed in Federal Court. Filing in Virginia Federal Courts is no better than whistleing through a graveyard.

    Lawsuits are very expensive. Many OC'ers get the jitters when confronted by police and either don't turn their recorders on or turn them off when told to do so.

    They also try to explain. Tactics when dealing with Police are just as important as when in a life and death situation.

    I'm in the process of helping with that this summer. More about that later but other members here are working with me on some training seminars.

    Hmmm...I know of two and the second one was filed in both State and Federal courts. If memory serves me, the State action was successful but the Federal was not. This was extreme though because the fellow was actually arrested.

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    Thanks for the search tip and other reponse.

    It seems that if I want to open carry I should expect to be questioned by LEO at some point. Depending on the LEO that makes contact I may be arrested even though I have done nothing wrong. I would then have to deal with the aftermath in court similar to what skidmark is going through now.

    While I do have a recorder with me while carrying I wonder why I want to put myself through the legal system, costs etc. should I get arrested?

    What's the point of exercising your rights if you can't afford to fight the battle in the end? Seems like a lose lose to me. Am I wrong?

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Mtam View Post
    Thanks for the search tip and other reponse.

    It seems that if I want to open carry I should expect to be questioned by LEO at some point. Depending on the LEO that makes contact I may be arrested even though I have done nothing wrong. I would then have to deal with the aftermath in court similar to what skidmark is going through now.

    While I do have a recorder with me while carrying I wonder why I want to put myself through the legal system, costs etc. should I get arrested?

    What's the point of exercising your rights if you can't afford to fight the battle in the end? Seems like a lose lose to me. Am I wrong?
    Not wrong in wishing only good things for you and yours, but we don't live in a perfect world. The odds seem to be much greater at being a victim of a violent crime than they are of having an encounter like Skid did. Which could be more expensive?

    Ask yourself how many people do you know that have given up driving because they might suffer some inconvenience much less major loss. An exceptionally greater number (would you accept 99.999%?) of OCers go through their daily routines w/o any interference or bad things happening - tens/hundreds of thousands everyday, 365 days a year.

    Having a recorder is a prudent means of protecting your interests; it doesn't indicate a desire to be arrested or get involved with the legal system. It's similar to owning a fire extinguisher or having health insurance - hope to never needing those too.

    You have already considered the risks in our society and recognized that only you can effectively protect yourself and your loved ones. A recorder goes that extra foot in allowing you to protect your assets including freedom from those that would deprive you of them.

    What to do if stopped? Be calm, rational and prepared. Do not try your case on the street. Those rare instances will mostly be brief and require no further action. Next step in the ladder is to file a formal complaint. Law suits are generally considered a last resort and will depend on circumstances and how egregious the occurrence.

    If you are actually arrested - stop talking - contact an attorney like Dan Hawes to speak for you. You will be amazed at how many friends you have if you are indeed so insulted by the system.

    So why not CC? Frankly and bluntly because OC is much more effective at deterring attack before it begins. It does that in a way that CC can never hope to accomplish. There are other unique benefits to OCing as well.

    Or one can abrogate their responsibility and their RKBA and be a victim waiting to happen. In a world where some things occur by chance, I choose to improve the possible outcome by every means available to me.

    If you buy the coffee, I'll offer more.
    Last edited by Grapeshot; 03-25-2011 at 01:39 PM. Reason: fix
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    Thanks for the insite Grape!! I think I am prepared to calmy discuss the issue with any LEO I may encounter. Reading here has helped a great deal on what to do and what not to do!!

    I do prefer to OC. I can keep my shirt tucked in which I prefer. In the colder months I would normally have a jacket on anyway so the issue is not as likely to happen but still could I understand. Like most I worry about the one LEO that has an agenda who won't listen and hook you up after the first refusal to provide information or discuss the issue. I have known several that "think" they know the law but find out later they were wrong causing anguish and distrust of the "victim".

    I'll continue to carry no doubt! The question only I can answer is OC or CC?? Thanks for all the great info!!! Hoepfully I can make the next dinner!! Coffee on me!!

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    Quote Originally Posted by Mtam View Post
    Thanks for the insite Grape!! I think I am prepared to calmy discuss the issue with any LEO I may encounter. Reading here has helped a great deal on what to do and what not to do!!

    I do prefer to OC. I can keep my shirt tucked in which I prefer. In the colder months I would normally have a jacket on anyway so the issue is not as likely to happen but still could I understand. Like most I worry about the one LEO that has an agenda who won't listen and hook you up after the first refusal to provide information or discuss the issue. I have known several that "think" they know the law but find out later they were wrong causing anguish and distrust of the "victim".

    I'll continue to carry no doubt! The question only I can answer is OC or CC?? Thanks for all the great info!!! Hoepfully I can make the next dinner!! Coffee on me!!
    Most of the info you seek is on this forum. Dont try to learn it all at once learn it in steps. Also google is pretty good for finding laws that you might need to know. After your first LEO encounter you will find out what laws you need to know. Happy Hunting
    Last edited by All American Nightmare; 03-25-2011 at 06:33 PM.

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    Quote Originally Posted by Mtam View Post
    SNIP My quesiton is has anyone ever filed a lawsuit for being detained/questioned etc. for open carry? If so what was the outcome.
    See St. John vs Alamogordo.

    45 minute illegal detention. $20K settlement. Happened in New Mexico.

    http://www.examiner.com/gun-rights-i...-carry-lawsuit

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    @Mtam,

    Being illegally detained for mere OC is much more a 4A violation (search and seizure) than a 2A violation.

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    Quote Originally Posted by Mtam View Post
    Thanks for the search tip and other reponse.

    It seems that if I want to open carry I should expect to be questioned by LEO at some point. Depending on the LEO that makes contact I may be arrested even though I have done nothing wrong. I would then have to deal with the aftermath in court similar to what skidmark is going through now.

    While I do have a recorder with me while carrying I wonder why I want to put myself through the legal system, costs etc. should I get arrested?

    What's the point of exercising your rights if you can't afford to fight the battle in the end? Seems like a lose lose to me. Am I wrong?
    You're expecting the type of trouble that probably won't ever happen, but if it does:

    They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
    Ben Franklin

    That says it all right there. Make your choice.

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    Quote Originally Posted by Grapeshot View Post
    If you are actually arrested - stop talking - contact an attorney like Dan Hawes to speak for you. You will be amazed at how many friends you have if you are indeed so insulted by the system.

    If you buy the coffee, I'll offer more.
    The cup of coffee you buy for Grape will be the best $.50 investment of your lifetime.
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    Regular Member Badger Johnson's Avatar
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    Quote Originally Posted by Citizen View Post
    See St. John vs Alamogordo.

    45 minute illegal detention. $20K settlement.
    Alamogordo Department of Public Safety Director Sam Trujillo (and president of the New Mexico Association of Chiefs of Police) told the Examiner.com today that his Department will be "examining that case with in-house counsel" with an eye toward refining police procedures and training to ensure that police officer contacts with open carriers do not offend the Fourth Amendment's protection against unreasonable search and seizure.
    How many read this and think - 'oh, they're going to brainstorm as to how to best get around this and trip up OC-ers, by bluff, trickery and prevarication'?

    Truth is, if the LEO in an area want to discourage OC, they just do their game and let the 'victim' pay for expensive legal fees, while doing a 'limited hang out'. They'll carefully select people whom they think can be intimidated to create a climate of hostility and scare off others who might exercise their 2A rights.
    Last edited by Badger Johnson; 03-25-2011 at 11:08 PM.

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    Quote Originally Posted by Badger Johnson View Post
    How many read this and think - 'oh, they're going to brainstorm as to how to best get around this and trip up OC-ers, by bluff, trickery and prevarication'?

    Truth is, if the LEO in an area want to discourage OC, they just do their game and let the 'victim' pay for expensive legal fees, while doing a 'limited hang out'. They'll carefully select people whom they think can be intimidated to create a climate of hostility and scare off others who might exercise their 2A rights.
    It only takes once to learn their games. LEOS wonder why they are not trusted.
    Note to Mods this is my opinion

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    Quote Originally Posted by Badger Johnson View Post
    SNIP Truth is, if the LEO in an area want to discourage OC, they just do their game and let the 'victim' pay for expensive legal fees, while doing a 'limited hang out'. They'll carefully select people whom they think can be intimidated to create a climate of hostility and scare off others who might exercise their 2A rights.
    But, this is nothing new. The particular police who want to play games have long known how.

    Just ask the black inner-city residents mentioned in Terry v Ohio (a concurring opinion, I believe, not the court opinion).

    Just ask the youths and young adults cited in NYC after being tricked by cops. The short story is that NYC decriminalized possesssion of small amounts of marijuana. But, there seems to be a loophole in the ordinance that gives a fine for it being seen in public. So, some cops were walking up to a group of youths, demanding their weed while threatening arrest if the cop had to search and then found some. So, the youth would often pull out their weed. Bingo--now visible in public. "Sign here, kid. Its not an admission of guilt. Just a promise to appear in court."

    Cops who are so inclined know what they can get away with because its too hard to prove or too expensive to sue over. Also, they know what commanders will tolerate. Applying their "skills" to OCers is nothing new. The cops that have done it were already good at it before they met the OCers.

    Its part of the picture. We just have to be willing to stand up to and crush it when it rears its ugly head. Being in the gun rights world we do have some advantages that others do not enjoy. Broad public support for guns in many places, is one. Plus our own numbers. Plus our access to the media.

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    Regular Member Badger Johnson's Avatar
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    Now that I am familiar with some proper LEO procedures, it's interesting if a bit disheartening to watch Cops and Campus PD type shows where they frequently ask for ID in non-motor vehicle stops, make people incriminate themselves, and generally push people around. It's also surprising how much people will just talk themselves into a ride to jail. Of course the show glorifies the LEOs position.

    It would be instructive to watch the show with a LEO and get him to comment on just how they 'play the game' and what isn't really allowed.

    IMO, this is illustrative of how LEOs are really among the predator types, and view their constituency as fodder to be manipulated.

    A few times, it's nice, you see some truly professional, kind and dedicated LEOs.

    Last night on the Campus PD show, one of the cops actually leaned into the car and said 'do you want to play bad cop, or should I?' as they wrote up some poor girl for hindering because she didn't immediately obey them, and took another girl to jail for not jumping up and coming down the stairs of her abode for not 'obeying a lawful order'. Pretty lame.

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    Quote Originally Posted by Badger Johnson View Post
    Now that I am familiar with some proper LEO procedures, it's interesting if a bit disheartening to watch Cops and Campus PD type shows where they frequently ask for ID in non-motor vehicle stops, make people incriminate themselves, and generally push people around. It's also surprising how much people will just talk themselves into a ride to jail. Of course the show glorifies the LEOs position.

    It would be instructive to watch the show with a LEO and get him to comment on just how they 'play the game' and what isn't really allowed.

    IMO, this is illustrative of how LEOs are really among the predator types, and view their constituency as fodder to be manipulated.

    A few times, it's nice, you see some truly professional, kind and dedicated LEOs.

    Last night on the Campus PD show, one of the cops actually leaned into the car and said 'do you want to play bad cop, or should I?' as they wrote up some poor girl for hindering because she didn't immediately obey them, and took another girl to jail for not jumping up and coming down the stairs of her abode for not 'obeying a lawful order'. Pretty lame.
    There's a lot to talk about in your post Badger.

    First, not all Cops are bad! Far from it. They just don't make headlines. They put in their time and retire like everyone else.

    The bad ones are getting to be a bigger percentage though. We have at least one here.

    Letting them push you around is your fault. Know your rights, know the law, don't be afraid of being arrested for a bogus charge and always be prepared to prove you were right.

    The ones I have been in on that have been pushed out of PD work, go on to civilian lives. One is a real estate salesman and poverty level most of the time. One works for a funeral home after failing as a Bail Bondsman, then a Private Investigator. One opened a Recovery Business (Repoing cars) and thankfully was shot and killed.

    Just learn the ropes and be the Bear. They only get away with abusing people because most people don't fight back and that doesn't always mean a lawsuit. Sometimes it's just information gathering then getting it in the right place at the right time.

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    On the contrary, I'm not implying all cops are bad. My thesis is this:

    1. They are taught how to play the game. In fact if they don't do that their fellow officers will get on their case and (possibly) rightly so. They are there to make arrests.

    2. The typical LEO may, in fact, be a predator type. Now that doesn't mean bad, it just means a type of mindset and attitude and it might be a good idea to at least mimic this on the street if it means they'll stay alive.

    3. The typical LEO can "learn" what the BG's know and how to 'get away' with illegal acts. They are in that milieu and it's not hard to see how one can become hardened when they don't get support from above, are poorly paid (compared to the risk) and are usually not being enabled to get further education and training. If a LEO is a 'good guy' when he starts and then is exposed to bad guys and crime I don't wonder that it changes them.

    4. LEOs should do more to distinguish between ordinary citizens and predators and treat citizens differently, with kindness and tolerance.

    5. LEOs generally have a need to 'win' an encounter, and they have a macho attitude and feel stepped on when a citizen OC-ing is invading their turf (i.e. possessing a weapon and an ability to defend themselves). I've said before I think they challenge OC-ers because of a primitive 'I'm bigger, I get the girl' mentality. That's why we see nicer treatment of female OC-ers (and female drivers). Cops are not 'challenged' by females, and their 'reptile brain' is not evoked.

    6. LEOs have a good sense of when someone is a danger - they should listen to it and not hassle OC-ers who are walking their dog, doing an e-check and disarming them and playing around with an unfamiliar gun. To some LEOs it's an easy stop, taking on a docile, good guy versus going after a BG.

    7. LEOs think they know the law and probably do, but will use the citizen's ignorance of their rights and the law to bully citizens when they wish. They undoubtedly get the support of the higher ups and know how far they can push things. The blame often lies with their superiors. If they were told to 'stop hassling ordinary citizens' they would do so but the higher ups won't do that.

    8. LEOs have two top priorities - to make an arrest or assert their authority, to protect each other. Protecting any citizen is not only low on the list, it's really not even on the list of priorities.

    9. LEOs will not just lie to suspects, they'll plant evidence, and 'find' cause where none exists. This might be borderline apropos with true predators, but all too often they are used on ordinary citizens. This is wrong. A bigger problem is that the LEOs think this is justified within the big picture. They feel the courts are too lenient so they become judge, jury and executioner.

    10. There is a general lack of accountability on the part of LEOs who will do an armed home invasion, knowing there is a small chance they're at the wrong address and often for a victimless crime.

    In summary, I put a lot of the onus on their supervision and higher ups who could easily curb this behavior and reward those using proper police procedure, but there is a pay off for letting it go on, and I'm not sure what that is.
    Last edited by Badger Johnson; 03-27-2011 at 10:49 AM.

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    9. LEOs will not just lie to suspects, they'll plant evidence, and 'find' cause where none exists. This might be borderline apropos with true predators, but all too often they are used on ordinary citizens. This is wrong. A bigger problem is that the LEOs think this is justified within the big picture. They feel the courts are too lenient so they become judge, jury and executioner.
    Their lying is perfectly legal and a part of their job (although I detest that and don't agree with it) whereas planting "evidence" is not. You have to wonder if the line gets blurred for them because they are allowed to lie to you? I know how I felt after I was lied to and throughly screwed by a VA State Trouper and I truly hope that Karma delivers a huge payback to him! Fortunately for me, the judge threw the baseless charges out after 20 seconds of testimony and I was absolved of all charges.
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    Regular Member Badger Johnson's Avatar
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    Before continuing, generally, I like LEOs, when they are professional and kind and helpful. Since I never break the law, I'd hope any and all encounters would be low key. It gave me a good feeling watching one show with a totally professional and gracious guy with a crew cut who cut his guy a break on a noise complaint...so I don't consider myself anti-LEO.

    On the lying part, I think there should be permissible areas, such as 'your buddy just gave you up', which should be allowed, but stating 'this is illegal' (when the cop knows very well it's not and he's just on a fishing expedition), and various entrapment ploys should not be permissible, either.

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    Quote Originally Posted by Badger Johnson View Post
    SNIP On the lying part, I think there should be permissible areas...
    I used to think this, too. But, lately I've been wondering.

    Rhetorical questions coming. Is it really wise to condone lying in a profession with such power? Is it perhaps too easy for little lies to turn into bigger and bigger lies? Does history not already show that government cannot be trusted to not keep moving the line? Are we really to believe that cops are the only element of government--of mankind, even--to not find themselves one day telling impermissible lies, and then graduating to more and more unacceptable levels of lying?

    I read recently where civil asset forfeiture was being heavily abused. Police departments seizing property on mere accusation (by the cops themselves) and using the proceeds to fund budgets. It was almost predictable that some cops would start seizing stuff and keeping it for themselves or selling it and pocketing the money personally. The one naturally follows the other, no? When property may be seized unfairly without due process (trial and conviction), does it not seem likely that for a certain percentage of cops it is just a small step to seizing and keeping it personally?

    I'm really starting to wonder about the wisdom of permissible deception.
    Last edited by Citizen; 03-27-2011 at 05:45 PM.

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    Quote Originally Posted by Citizen View Post
    I used to think this, too. But, lately I've been wondering.

    Rhetorical questions coming. Is it really wise to condone lying in a profession with such power? Is it perhaps too easy for little lies to turn into bigger and bigger lies? Does history not already show that government cannot be trusted to not keep moving the line? Are we really to believe that cops are the only element of government--of mankind, even--to not find themselves one day telling impermissible lies, and then graduating to more and more unacceptable levels of lying?

    I read recently where civil asset forfeiture was being heavily abused. Police departments seizing property on mere accusation (by the cops themselves) and using the proceeds to fund budgets. It was almost predictable that some cops would start seizing stuff and keeping it for themselves or selling it and pocketing the money personally. The one naturally follows the other, no? When property may be seized unfairly without due process (trial and conviction), does it not seem likely that for a certain percentage of cops it is just a small step to seizing and keeping it personally?

    I'm really starting to wonder about the wisdom of permissible deception.
    The old morality question: "if we allow ourselves to stoop to their level, are we any better then them?" I disagree because the line becomes too blurred. The kings men would add a little "pocket" tax to the general kings tax and this in part has helped to fuel many rebellions over the years. Is it any wonder that people come to dislike the police if they are perceived to be no better than the criminals they are charged with catching. There was a time when to serve and protect had meaning, somewhere after the cops became servants 'to' the government and sometime before they were allowed to lie 'in the interest of justice.' IMHO
    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

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    Regular Member Badger Johnson's Avatar
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    Quote Originally Posted by Citizen View Post
    I used to think this, too. But, lately I've been wondering.

    Rhetorical questions coming. Is it really wise to condone lying in a profession with such power?
    Well, I meant 'I think it should/could be permissible in lieu of outright lying of all kinds'.

    One wonders if in recording a LEO encounter and they lied egregiously and this was produced in court if it would be a barrier to conviction. Of course, as we know, getting an amateur audio recording introduced into evidence is probably a lost cause. It might work pre-trial to convince people to drop the matter, IDK.

    Thanks for the reply and thoughtful commentary.

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    If a cop stops you and wants to talk, and you choose to do so, that's your choice. You don't have to stop, much less talk, unless he uses the magic words, "you're under arrest." Best to take the position of Bartleby the Scrivener, "I prefer not to."

    If the cops have probable cause necessary to arrest you, they are going to do so. You have no rights under Miranda v. U.S. unless and until you have been subjected to an arrest. So talking to them prior to an arrest is a waiver of your rights, and you cannot be required to waive your rights. Talking to them will give them probable cause if they don't have it already, and whatever you say can, and will, be used against you in court (though it'll be called "a confession" or "an admission" when you're in court).

    Like the old song, "If you see me walkin' down the street... walk on by; just walk on by." If you must say something, let it go with "Good morning, officer, lovely day we're having, isn't it?", except in the one case in which you are challenged with a statement of fact to which one would normally expect a denial (the failure to deny such a statement can, in some situations, be treated as an admission), such as "You used that gun in a murder." Regardless of how long or challenging such a remark might be, the appropriate response is, "hogwash." -- keep walking.

    Identification: unless you're engaged in an activity for which licensure is required, and for which the certificate evidencing licensure must be produced upon demand (e.g., fishing, driving, acting as a private investigator, etc.), you never have to produce any documentation showing who you are. There is authority for the proposition that you must inform an appropriate law enforcement officer of your name and address, when you're about in the night-time.

    Otherwise, "walk on by."
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    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.

  24. #24
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    Quote Originally Posted by Badger Johnson View Post
    Well, I meant 'I think it should/could be permissible in lieu of outright lying of all kinds'.

    One wonders if in recording a LEO encounter and they lied egregiously and this was produced in court if it would be a barrier to conviction. ...
    Negative. The U.S. Sup. Ct. has ruled that "the police are entitled to their arts, devices, and strategems." This does not authorize illegal conduct, such as pointing a gun at a person who poses no threat ("assault with a deadly weapon" and "brandishing a firearm"), but lying and trickery is not normally illegal.
    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.

  25. #25
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    User, can you provide more detail about the "night time" requierment to provide documents? I always enjoy reading your posts!!

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