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Thread: Va. Supreme Court approves very lenient 'Terry' Standard -- implications

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    Regular Member Repeater's Avatar
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    Va. Supreme Court approves very lenient 'Terry' Standard -- implications

    This appears to be a very bad decision for Virginia gun owners.

    The Virginia Supreme Court has now officially interpreted the Terry v. Ohio as "armed and dangerous" rather than "armed and presently dangerous" -- thus allowing a past record of weapons violations, for example, to factor into a LEOs determination that a frisk is allowed.

    The dissent is rather blistering and writes specifically:
    In its opinion, the majority does not pair the officers’ knowledge of Smith’s prior criminal involvement with more concrete factors that would be necessary to create a reasonable suspicion that Smith was presently engaged in criminal conduct or was armed and presently dangerous at the time of the frisk. Instead, the majority holds that knowledge of Smith’s past criminal record was sufficient, by itself, to create a reasonable suspicion that Smith was armed and presently dangerous. The majority opinion contravenes all previous precedent on the issue.
    Remember, "criminal record" includes arrests. Thus, a person with a prior arrest record for a weapons violation (such as brandishing), even if Nol Pross'd, might still subject that person to a frisk.

    Continuing:
    It is undisputed that the officer frisked Smith based solely upon the PISTOL alert.
    Well, there you go. So, if you are in some police database, that alone will be sufficient to subject you to a frisk.

    The dissent continues:
    In apparent contravention of previous precedent, the majority holds that certain people, because of their criminal record, are subject to a pat down search if stopped for a minor traffic violation, regardless of whether the police have any contemporaneous objective indicia of their current involvement with criminal activity or of their being armed and presently dangerous. Inherent in the majority opinion’s ruling is the conclusion that individuals, who have been determined by a judicial officer to be sufficiently safe to release from custody, may be presumed by law enforcement officers to be armed and dangerous.

    ...

    The decision of the majority results in the ironic situation in which individuals deemed by the legal system to be safe enough to be released into society can be regarded by police officers as inherently dangerous to the point that they can be frisked solely based upon an officer’s knowledge that they have been charged and lawfully released.

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    Campaign Veteran skidmark's Avatar
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    I just skimmed the decision. Full reading will come later.

    Of note was the court's exposition regarding the subject of the frisk's "criminal history" - that any arrest becomes cause to believe that the subject of the arrest is now a "criminal", as opposed to the concept that one is innocent until proven guilty.

    While being arrested for felon in possession and intent to distribute are serious charges there should be no animus attached to the fact of the arrest unless it is supported by additional information that there was in fact a conviction. Elsewise, all the police need to do is arrest you, then let you go. They can even violate one or more of your Constitutional rights by arresting you and be found guilty of having done so in a civil hearing, and by the logic used by the Va SC the record of the arrest is sufficient to brand you as a criminal, as well as give "sufficient" reason to LEO for a Terry Stop frisk.

    Atlas has, indeed, shrugged. We are all boned unless SCOTUS hears this case and restores order to Virginia.

    stay safe.

  3. #3
    Regular Member TFred's Avatar
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    Just from the summaries presented here, it sounds like this could possibly be overturned by the current SCOTUS. If it had some way to get there.

    TFred

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    Regular Member Neplusultra's Avatar
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    Quote Originally Posted by skidmark View Post
    I just skimmed the decision. Full reading will come later.

    Of note was the court's exposition regarding the subject of the frisk's "criminal history" - that any arrest becomes cause to believe that the subject of the arrest is now a "criminal", as opposed to the concept that one is innocent until proven guilty.

    While being arrested for felon in possession and intent to distribute are serious charges there should be no animus attached to the fact of the arrest unless it is supported by additional information that there was in fact a conviction. Elsewise, all the police need to do is arrest you, then let you go. They can even violate one or more of your Constitutional rights by arresting you and be found guilty of having done so in a civil hearing, and by the logic used by the Va SC the record of the arrest is sufficient to brand you as a criminal, as well as give "sufficient" reason to LEO for a Terry Stop frisk.

    Atlas has, indeed, shrugged. We are all boned unless SCOTUS hears this case and restores order to Virginia.

    stay safe.
    Sounds like a serious SCOTUS case to me.... I hear the intent, but see the violation. This makes me more concerned about the mindset of the VASC than it does about this particular issue.....

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    Regular Member Neplusultra's Avatar
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    Very interesting read so far. I'm going to have to spend some more time later..... The majority does make a good point but it seems to me that ultimately the decision is a guilty before proven so. It's a tough call at this point in my read. Terry says a "reasonable" suspicion IIRC. So is this "unreasonable"? I think a better level would be not just that they have had a gun charge but that the have a gun charge *and* have demonstrated resistance to LE. This gentlemen seems to have submitted to every request of the LEO and also seems to not have had a resisting arrest background. Have not read too far yet so don't yell if I'm wrong. It would seem to me that the Terry search would not be unreasonable if BOTH conditions were true. But any one by itself would be so.....
    Last edited by Neplusultra; 04-25-2011 at 08:57 PM.

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    What's the surprise? We knew the VASC generally sides with cops on officer safety, even at the expense (disregard?) of freedom.

    This is just more proof of what happens when government has the final say in what rights it will and won't respect. Meaning, this is what happens when government decides where its own limits are.

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    Regular Member Neplusultra's Avatar
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    Quote Originally Posted by Citizen View Post
    What's the surprise? We knew the VASC generally sides with cops on officer safety, even at the expense (disregard?) of freedom.

    This is just more proof of what happens when government has the final say in what rights it will and won't respect. Meaning, this is what happens when government decides where its own limits are.
    Where's the "like" button?? Exactly, who determined the government is the one who determines what our rights are? It certainly was not the God of Inalienable Rights.....

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    Regular Member USNA69's Avatar
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    Where is the ACLU on this one?

    This looks like the kind of thing they should jump all over.

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    Quote Originally Posted by Citizen View Post
    What's the surprise? We knew the VASC generally sides with cops on officer safety, even at the expense (disregard?) of freedom.
    Actually, the VASC has been pretty good on 4th Amendment cases. What's changed now is the death of the Chef Justice Leroy Hassell.

    The opinion was 4-3. That close. Now, the General Assembly is considering who to pick as his replacement. One choice is former AG Mark Earley. He's generally a nice guy, but a RINO, pro gun-control and pro police all the way.

    We could end up with a court that is very pro government.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by Repeater View Post
    Actually, the VASC has been pretty good on 4th Amendment cases. What's changed now is the death of the Chef Justice Leroy Hassell.

    The opinion was 4-3. That close. Now, the General Assembly is considering who to pick as his replacement. One choice is former AG Mark Earley. He's generally a nice guy, but a RINO, pro gun-control and pro police all the way.

    We could end up with a court that is very pro government.
    Funny you should say that... I had thought about replying with "See, this is what happens when you pick RINOs for Judges," but i did not have time to do the research to ensure that this was indeed the case... Sounds like it is.

    TFred

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    Well, one can hope

    Quote Originally Posted by TFred View Post
    Just from the summaries presented here, it sounds like this could possibly be overturned by the current SCOTUS. If it had some way to get there.

    TFred
    To summarize very simply, it really comes down to this ....

    The United States Supreme Courts says:
    "armed and presently dangerous"
    The Virginia Supreme Court says:
    "armed and presently dangerous"

    Re-writing Terry seems rather presumptuous, even if it is (apparently) for "officer safety" -- the ends still do not justify the means.

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    Where is the AG on this?

    Quote Originally Posted by USNA69 View Post
    This looks like the kind of thing they should jump all over.
    ACLU notwithstanding, where is Ken "Don't Tread on us" Cuccinelli on this? after all, it was his office that appealed a good ruling from the Court of Appeals.

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    Founder's Club Member ixtow's Avatar
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    +1 to all comments thus far.

    This is way out of bounds. When the watchers watch themselves...
    "The fourth man's dark, accusing song had scratched our comfort hard and long..."
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    Tyranny with Manners is still Tyranny.

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    Regular Member Thundar's Avatar
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    Screwed by th cooch # 11

    Quote Originally Posted by Repeater View Post
    ACLU notwithstanding, where is Ken "Don't Tread on us" Cuccinelli on this? after all, it was his office that appealed a good ruling from the Court of Appeals.
    Screwed by the cooch, again.

    The Cooch is a freedom hating statist. His government power God just happens to be the Commonwealth, not the Federal Govt.
    Last edited by Thundar; 04-26-2011 at 07:37 PM. Reason: spelling
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Regular Member Thundar's Avatar
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    Kritocracy wooo hooo!

    Seems like the Supreme Court of the Commonwealth blew right past kritarchy right into kritocracy.

    Scary thing potentially putting a gun hating RINO on the high court.



    Link: http://www.molaah.com/Krytocracy%20-...cyclopedia.htm
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Accomplished Advocate user's Avatar
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    I think we can stop calling this a "Terry stop". This decision had very little to do with Terry v. Ohio. The thing that popped out at me is that the Richmond p.d.'s computer system functions as a "bill of attainder", which are abolished by the Constitution of Virginia and by statute:

    Article I, Section 9. Prohibition of excessive bail and fines, cruel and unusual punishment, suspension of habeas corpus, bills of attainder, and ex post facto laws.

    That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion or rebellion, the public safety may require; and that the General Assembly shall not pass any bill of attainder, or any ex post facto law.
    § 55-4. Suicide or attainder.
    No suicide, nor attainder of felony, shall work a corruption of blood or forfeiture of estate.
    (Code 1919, § 4762.)

    The City of Richmond cannot do anything that the Commonwealth cannot do. As a municipal corporation, all of its powers derive from its creator, the Commonwealth, and it cannot exercise any power its creator cannot give to it.

    A bill of attainder is an old way of saying that a person is "attainted", that he has "bad" or "corrupt blood", and that this has been determined by the fact of his having been convicted of crimes. In other words, he's categorized for official purposes as a "bad guy" for life. Richmond can't define the guy as a "bad guy" just because of his record; I'm not sure the keeping of records is allowed, personally. And the same argument applies to statutes denying convicted felons the right to vote, to carry firearms, etc. The Roman (today, "European") system, adopted in states with a Roman influenced culture (Maryland, Massachussetts, New Jersey, etc.), uses a theory that the punishment for crimes is as light as they can make it, but that a person once labelled, is a "bad guy" forever. Their systems rely on personal status, and in my mind, lack a proper legal system - a big reason why I stay out of those states.

    Richmond's use of their "pistol" system is a way of categorizing people by status - a clear violation of the right to the equal protection of the laws.
    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.

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    Regular Member Thundar's Avatar
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    What is the Richmond "pistol" system?

    My google-fu can't find a link to explain it.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Thundar View Post
    What is the Richmond "pistol" system?

    My google-fu can't find a link to explain it.
    "Police Information System Totally On Line" - you need to read the opinion to find it.

    We need to take folks who insist on making an acronym out of everything out behind the woodshed and adjust the tightness of their brain-housing group so that they stop doing that. "Police Information System" would have been sufficient in either long form or as a set of initials.

    stay safe.

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    Quote Originally Posted by skidmark View Post
    "Police Information System Totally On Line" - you need to read the opinion to find it.

    We need to take folks who insist on making an acronym out of everything out behind the woodshed and adjust the tightness of their brain-housing group so that they stop doing that. "Police Information System" would have been sufficient in either long form or as a set of initials.

    stay safe.
    Thanks for the input DBS!

    Acronym: Definition
    DBS: Dearest Brother Skidmark

    Last edited by jmelvin; 04-27-2011 at 08:33 PM.

  20. #20
    Regular Member Thundar's Avatar
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    So in essence what the VA Supreme Court said was:

    We can take away the rights of the citizen in order to make the streets safe for the Richmond PD.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Thundar View Post
    So in essence what the VA Supreme Court said was:

    We can take away the rights of the citizen in order to make the streets safe for the Richmond PD.
    More like fold, staple, spindle (anybody else old enough to remember what that was?), mutilate, walk all over in golf shoes (again, anybody else old enough to remember the reference?), trample and otherwise maliciously eviscerate those rights on the way to burning them at the stake. While tapdancing in the blood of their victims.

    BTW - thanks, User. Nobody should be wondering why the Founders were so set against Bills of Attainder after reading your explanation.

    stay safe.

  22. #22
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    Quote Originally Posted by user View Post
    SNIP A bill of attainder is an old way of saying that a person is "attainted", that he has "bad" or "corrupt blood", and that this has been determined by the fact of his having been convicted of crimes. In other words, he's categorized for official purposes as a "bad guy" for life.
    Heh, heh, heh. Which could be rather short.

    Just adding some info I came across some months ago to clear up archaic words and usage like Bill of Attainder and corruption of blood.

    In his book, Origins of the Bill of Rights, Leonard Levy explains (paraphrase) that a Bill of Attainder is a legislative act whereby an individual is declared an outlaw. Also, anyone is legally entitled to kill him. The main problem with a Bill of Attainder is that the criminal conviction is done by the legislature just up and declaring the person such, rather than a jury after hearing the evidence in a trial.

    You can see how a Bill of Attainder violates the right to a jury trial.

    Corruption of blood refers to the heirs of the attainted person. In some cases in England, the attainder worked to deny the heirs the attainted person's titles (remember, titles were hereditary in England). In certain circumstances, his properties and estates could be seized, which is a way of dispossessing the victim's heirs of the property, the incomes from the estates, and a place to live. This last angle was a very powerful weapon psychologically. If you thought your wife and children would be left nearly destitute, you'd tend to be rather careful not to cross the king and parliament.

    So, in current application, one can guess that although there are no actual Bills of Attainder anymore, there are ways the government could accomplish basically the same effect. For example, when ACORN was video-busted giving advice to the faux prostitute and pimp, there was agitation in the press to yank the government funding for ACORN. Or, put another way, for Congress to basically create a defacto Bill of Attainder against ACORN. I didn't happen to agree with that legal theory, but you can see the argument: for Congress to defund ACORN, Congress would in effect be declaring ACORN to have committed crimes, a function for a jury.


    I highly recommend Origins of the Bill of Rights. Its still available. Got mine at Barnes & Noble. Amazon has it, too. You learn a lot fast from this book. Easy to read, too.

    If you can find a copy of his Origins of the 5th Amendment, please let me know. He won a Pulitzer prize for it; but that was in 1968.
    Last edited by Citizen; 04-28-2011 at 12:58 AM.

  23. #23
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Citizen View Post
    If you can find a copy of his Origins of the 5th Amendment, please let me know. He won a Pulitzer prize for it; but that was in 1968.
    You're just a click away - Amazon has it in stock.
    http://www.amazon.com/Origins-Fifth-.../dp/1566632706
    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.

  24. #24
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    Quote Originally Posted by skidmark View Post
    "Police Information System Totally On Line" - you need to read the opinion to find it.

    We need to take folks who insist on making an acronym out of everything out behind the woodshed and adjust the tightness of their brain-housing group so that they stop doing that. "Police Information System" would have been sufficient in either long form or as a set of initials.

    stay safe.
    Um, that would be:

    Police Information Security System

    LEOs want to feel secure when around armed citizens.

  25. #25
    Regular Member Repeater's Avatar
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    Quote Originally Posted by Thundar View Post
    So in essence what the VA Supreme Court said was:

    We can take away the rights of the citizen in order to make the streets safe for the Richmond PD.
    Priority of the Statist:

    Officer Safety
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    Personal Liberty

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