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.

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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.

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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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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.

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

skidmark said:

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.

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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.....

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.....

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.

Citizen said:

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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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.....

Where is the ACLU on this one?

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

Citizen said:

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

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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.

Repeater said:

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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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

Well, one can hope

TFred said:

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

The United States Supreme Courts says:
The Virginia Supreme Court says:

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

Where is the AG on this?

USNA69 said:

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

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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.

+1 to all comments thus far.

This is way out of bounds. When the watchers watch themselves...

Screwed by th cooch # 11

Repeater said:

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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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.

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 - Wikipedia, the free encyclopedia.htm

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.

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§ 55-4. Suicide or attainder.
No suicide, nor attainder of felony, shall work a corruption of blood or forfeiture of estate.
(Code 1919, § 4762.)

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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.

What is the Richmond "pistol" system?

My google-fu can't find a link to explain it.

Thundar said:

What is the Richmond "pistol" system?

My google-fu can't find a link to explain it.

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"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.

skidmark said:

"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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Thanks for the input DBS!

Acronym: Definition
DBS: Dearest Brother Skidmark

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.