Chesterfield PD--OCer Encounter

Patriot2A said:

I have to give my name and address if I'm asked for ID? What the heck?!

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It's common law and only applicable after dark.

I need to ask User about the address part since this stems from a time before enhanced 911 addresses.

You don't have to SHOW ID, just give your name and address.

Patriot2A said:

I have to give my name and address if I'm asked for ID? What the heck?!

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peter nap said:

It's common law and only applicable after dark.

I need to ask User about the address part since this stems from a time before enhanced 911 addresses.

You don't have to SHOW ID, just give your name and address.

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I am not sure that is accurate. In fact, unless Virginia has a "stop and ID" statute, there is no onus to identify at all, is there?

As of February 2011, there is no U.S. federal law requiring that an individual identify herself during a Terry stop, but Hiibel held that states may enact such laws,[20] and 24 states have done so.[21] The opinion in Hiibel implied that persons detained by police in jurisdictions with “stop and identify” laws listed are obligated to identify themselves,[22] and that persons detained in other jurisdictions are not

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http://en.wikipedia.org/wiki/Stop_and_Identify_statutes

Obligation to identify
States with “stop and identify” laws
Alabama Ala. Code §15-5-30
Arizona Ari. Rev. Stat. Tit. 13, §2412 (enacted 2005)
Arkansas Ark. Code Ann. §5-71-213(a)(1) (loitering)
Colorado Colo. Rev. Stat. §16-3-103(1)
Delaware Del. Code Ann., Tit. 11, §§1902, 1321(6)
Florida Fla. Stat. §856.021(2) (loitering and prowling)
Georgia Ga. Code Ann. §16-11-36(b) (loitering)
Illinois Ill. Comp. Stat., ch. 725, §5/107-14
Indiana Indiana Code §34-28-5-3.5
Kansas Kan. Stat. Ann. §22-2402(1)
Louisiana La. Code Crim. Proc. Ann., Art. 215.1(A)
Missouri Mo. Rev. Stat. §84.710(2)
Montana Mont. Code Ann. §46-5-401
Nebraska Neb. Rev. Stat. §29-829
Nevada Nev. Rev. Stat. §171.123
New Hampshire N.H. Rev. Stat. Ann. §594:2, §644:6
New Mexico N.M. Stat. Ann. §30-22-3
New York N.Y. Crim. Proc. Law (CPL) §140.50 (1)
North Dakota N.D. Cent. Code §29-29-21 (PDF)
Ohio Ohio Rev. Code §2921.29 (enacted 2006)
Rhode Island R.I. Gen. Laws §12-7-1
Utah Utah Code Ann. §77-7-15
Vermont Vt. Stat. Ann., Tit. 24, §1983
Wisconsin Wis. Stat. §968.24

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So, there is NO onus to provide your name in Virginia that I can find.

There is none in "Virginia" which means that independent localities/municipalities may adopt ordinances.

Virginia Beach, Norfolk and Newport News have them. You are required to IDENTIFY (not "provide identification") to a uniformed officer or an individual whom you would reasonably believe (undercover) to be an officer of law upon request.

This generally involves giving your name and address or date of birth. It is a tactic which police (much like bouncers and bartenders) can use to determine if they wish to detain you. If you balk or stutter, something may be afoot - everyone knows their home address and date of birth.

Hesitation CAN mean someone is fabricating a story and they may investigate further.

The times I have been stopped (save for one in which I provided it under duress) the officers have seemed satisfied by merely my first name.

I think it has an AWFUL LOT to do with the time of day, your own demeanor and the individual officer.

Review: IDENTIFY is not the same as PROVIDE IDENTIFICATION (a document).

"Hiibel holds that states may enact laws...."

Have any local ordinances passed the test in court?

wylde007 said:

There is none in "Virginia" which means that independent localities/municipalities may adopt ordinances.

Virginia Beach, Norfolk and Newport News have them. You are required to IDENTIFY (not "provide identification") to a uniformed officer or an individual whom you would reasonably believe (undercover) to be an officer of law upon request.

This generally involves giving your name and address or date of birth. It is a tactic which police (much like bouncers and bartenders) can use to determine if they wish to detain you. If you balk or stutter, something may be afoot - everyone knows their home address and date of birth.

Hesitation CAN mean someone is fabricating a story and they may investigate further.

The times I have been stopped (save for one in which I provided it under duress) the officers have seemed satisfied by merely my first name.

I think it has an AWFUL LOT to do with the time of day, your own demeanor and the individual officer.

Review: IDENTIFY is not the same as PROVIDE IDENTIFICATION (a document).

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wrightme said:

I am not sure that is accurate. In fact, unless Virginia has a "stop and ID" statute, there is no onus to identify at all, is there?



http://en.wikipedia.org/wiki/Stop_and_Identify_statutes





So, there is NO onus to provide your name in Virginia that I can find.

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Someone needs to make an index to a "highlight" list of User's posts.

Paraphrasing from memory... If you read one of the very first sections
of the Code of Virginia, you find this:


So what that means is that unless the General Assembly has specifically addressed a subject, our "starting point" is the common law of England, at a certain point back in time, a date which I can't remember, nor its significance*.

According to accounts in various posts on this forum by User, the English common law held that after dark, (this was WAY before any artificial street lighting) if the constable found you out and about, the assumption was that you were up to no good, therefore, it was permissible for him to ask your name and where you lived.

User's point is that this, having never been changed or addressed by the General Assembly, is still the situation in place today... at night, police may ask you for your name and address.

That's the short summary filtered through my fuzzy memory. If anyone can find one of User's more thorough posts on this subject, let me know and this time, I'll bookmark it!

TFred

* Found it... 1607, the "the fourth year of the reign of James the First."

As always, IANAL, but in Virginia, being a Dillon Rule state, I would assume that unless they have been granted specific authorization to do so, then localities may actually not enact a stop and ID ordinance. Several do have one, so either there is authorization in the state code, or they've never been successfully challenged in court.

TFred

TFred said:

Someone needs to make an index to a "highlight" list of User's posts.

Paraphrasing from memory... If you read one of the very first sections
of the Code of Virginia, you find this:

§ 1-200. The common law.

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.​

So what that means is that unless the General Assembly has specifically addressed a subject, our "starting point" is the common law of England, at a certain point back in time, a date which I can't remember, nor its significance*."

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Well, if that is the case, then I would expect that even if VA has NOT passed law countermanding such, SCOTUS has ruled. Thus, unless VA enacts a statute that fits the terms (i.e., not being 'vague'), then I would be of the belief that the Common Law does not apply as a statute any more.

IANAL, but this appears to be an interesting one.

Citizen said:

...........--Moderator Statement--

All posts with offensive or deliberate misuse of user names, including those that quoted them, have been deleted.

Talk constructively about the subject - if you have a problem with a poster report it properly.
When everybody is as guilty as the one you are dissatisfied with, you make effective moderation difficult to impossible.

I do NOT like being in this position, friendship and respect for another are not in my job description. Everyone must be treated the same when it comes to infractions. Next thing you going to hear from me is the meaning of self-moderation. If everyone did that properly, I'd have to look for something else to do with my spare time.

That and the public bickering, name calling does our image no good. Trust I will not have to repeat this - end it!

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Hmmmm.

The moderating around here is getting a little arbitrary and capricious.

In the moderated post, I was literally member-moderating the thread by encouraging others involved in a spat with, again, the cop, to just ignore him. I spun the user name of the cop to exactly mean the point I then articulated about trolling.

It becomes apparent that whoever did the moderating was not following the thread closely, nor applying the cop's history here. If they had, they would have seen the one fact I presented to be 1) true and 2) in line with cop's history, and that I drew a reasonable conclusion about trolling. Maybe not the only conclusion. Maybe not the right conclusion. (Both instances that I allowed for in writing my conclusion, if I recall.) But, entirely reasonable.

Descriptive adjectives that highlight personality traits directly tied to evasive, strawman, argumentative characteristics--all the things cop pulls--are now personal attacks?

Against a cop who clearly is not here to advance OC or educate OCers--otherwise he would spend much, much less time stirring up antagonism?

Hmmmmmm.


PS: Oh, Mr. Moderator. You left a personal attack--your definition--against me in one of cop's posts above.

wrightme said:

Well, if that is the case, then I would expect that even if VA has NOT passed law countermanding such, SCOTUS has ruled. Thus, unless VA enacts a statute that fits the terms (i.e., not being 'vague'), then I would be of the belief that the Common Law does not apply as a statute any more.

IANAL, but this appears to be an interesting one.

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Always keep in mind the larger perspective.

First and foremost, none of this 4A-constable powers stuff gets sorted out until after you are cited, arrested, or beaten. (CAB, to coin a new term.)

If an OCer, or anybody else, refuses identity, and gets CABed, and the prosecutor--or anybody advising the prosecutor--knows about this point, then the CAB-ee is defenseless in criminal court. The charge can be made to stick. This is beside trying to win in court if there happened to actually be a stop-and-identify ordinance in the locality where the CABing occurred. And, never forget to factor in that it is the CAB-ee's word against the cop's as to whether there was reasonable suspicion or resistance that warranted all the bruises.

And, keep it mind that courts generally have a habit of siding with police when breaking new ground.

With all that in mind, a member pointed out that given the nearly ancient nature of the common-law identity demand authority, it could well have been an understood and accepted point of law by the Founders. Meaning, the Founders might have actually understood that the 4A would not protect against this. Meaning, the constable identity demand power might fit very nicely within a constitutionalist or originalist framework.

TFred said:

SNIP According to accounts in various posts on this forum by User, the English common law held that after dark, (this was WAY before any artificial street lighting).

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Hee, hee.

I think you just put the nail in the coffin.

By putting up street lighting, government is proving that it expects people to be about after dark in this age. In sufficient numbers with sufficient frequency to justify the expense. Unless the government is willing to say that it put up the street lighting for the benefit of criminals, of course.

Now, someone could say street lights were put up for safety against criminals. Safety of who? The criminals that the other criminals were going to prey on? Of course not. The safety of the law-abiding citizens who would be out and about after dark. In sufficient numbers and with sufficient frequency to justify the expense.

Thank you, TFred, thank you.

Citizen said:

Always keep in mind the larger perspective.

First and foremost, none of this 4A-constable powers stuff gets sorted out until after you are cited, arrested, or beaten. (CAB, to coin a new term.)

If an OCer, or anybody else, refuses identity, and gets CABed, and the prosecutor--or anybody advising the prosecutor--knows about this point, then the CAB-ee is defenseless in criminal court. The charge can be made to stick. This is beside trying to win in court if there happened to actually be a stop-and-identify ordinance in the locality where the CABing occurred. And, never forget to factor in that it is the CAB-ee's word against the cop's as to whether there was reasonable suspicion or resistance that warranted all the bruises.

And, keep it mind that courts generally have a habit of siding with police when breaking new ground.

With all that in mind, a member pointed out that given the nearly ancient nature of the common-law identity demand authority, it could well have been an understood and accepted point of law by the Founders. Meaning, the Founders might have actually understood that the 4A would not protect against this. Meaning, the constable identity demand power might fit very nicely within a constitutionalist or originalist framework.

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Unless enacted post-Hiibel, is it really "new ground?" Are you saying that settled law is not applied? It should be noted before beatings commence.

wrightme said:

Unless enacted post-Hiibel, is it really "new ground?" Are you saying that settled law is not applied? It should be noted before beatings commence.

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No, I'm talking about "new ground" from the court's point of view. As in, seemingly novel arguments. Novel because I'm betting not one in a hundred VA judges has heard that argument used for over a century.

The use of emergency equipment can be seen as a seizure.

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As if the officer couldn't have turned on his lights, but when he got out of the car just told the citizen he wasn't detaining him, told the citizen the lights were only on for road safety and told the citizen he was free to continue walking if he felt like it.

wrightme said:

I am not sure that is accurate. In fact, unless Virginia has a "stop and ID" statute, there is no onus to identify at all, is there?

http://en.wikipedia.org/wiki/Stop_and_Identify_statutes


So, there is NO onus to provide your name in Virginia that I can find.

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Since you mention NM, I will comment that even in NM, stop and identify may not be capricious, it requires RAS or PC.

Citizen said:

Below are excerpts from VCDL's 5/15/11 weekly e-mail about an encounter with a VCDL member and a Chesterfield officer.

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Didn't know this was up when I posted last night, but here's part II, the anonymous email from and alleged LEO to the individual stopped.

http://forum.opencarry.org/forums/showthread.php?90699-LEO-tactics-of-which-you-might-not-be-aware

FYI.

nuc65 said:

Since you mention NM, I will comment that even in NM, stop and identify may not be capricious, it requires RAS or PC.

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??

Where have I mentioned NM?

Citizen said:

No, I'm talking about "new ground" from the court's point of view. As in, seemingly novel arguments. Novel because I'm betting not one in a hundred VA judges has heard that argument used for over a century.

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So, which part of this would you see as "new ground" for the VA judges?

Badger Johnson said:

Didn't know this was up when I posted last night, but here's part II, the anonymous email from and alleged LEO to the individual stopped.

http://forum.opencarry.org/forums/showthread.php?90699-LEO-tactics-of-which-you-might-not-be-aware

FYI.

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Yeah Right Badger...it might have been anonymous but I've seen that argument and almost verbatim, parts of the argument.:lol:

peter nap said:

Yeah Right Badger...it might have been anonymous but I've seen that argument and almost verbatim, parts of the argument.:lol:

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Sorry, I'm not following you. What argument? I'm just sharing what VanC posted on the VCDL list wrt what a 'seizure' consists of. If it's factual, then it's new information which may be valuable to those choosing to OC.

wrightme said:

So, which part of this would you see as "new ground" for the VA judges?

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I don't understand your question. Please elaborate; let me know what you're thinking.

ETA: Oh, I think I might see where we're skipping a groove.

Realize there is a very good chance the constable identity demand power is already included in the Founders/originalist understanding of the 4A. Meaning, there is a very good chance the Founders understood the 4A not to protect against such constable identity demand after dark. Meaning, the Founders and Bill of Rights ratifiers may very well have considered an after-dark constable identity demand to be reasonable, thus not prohibited by the 4A.

Hiibel would not reach that, I'm thinking. And, I'll take odds that if the question were to come before the current pro-police SCOTUS, they'd find all kinda ways to distinguish between Hiibel and the relevant constable power.

Wait a second. Just for fun, since we're discussing stuff with little practical applicability today, I wonder what time of day was the police encounter that occurred in Brown v Texas? Brown was the SCOTUS case where the court said RAS was needed. Lemme check.

EETA:

Yeeeehaaaaaaw!!!

Brown v Texas 1979 and US v Brignon-Ponce

Although the encounter in Brown happened at 12:45 in the afternoon, not after dark, we've got some solid ground to stand on here, I think. Disclaimer: I am not a lawyer.

Brignoni as quoted by Brown:

"[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized' that person," and the Fourth Amendment requires that the seizure be "reasonable." (bold emphasis added by Citizen)

And, the holding in Brown:

The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is reversed.

Now, Brown has more to say on the subject, and quotes other cases, too. Very interesting reading, so I urge all to read it.

But, my point here is that it would seem that Brignoni knocked the VA constable after-dark identity demand power back into the Middle Ages where it came from by saying whenever a cop restrains a person it is a seizure. And, Brown applied 4A RAS doctrine directly and expressly to a state identity demand statute.

It just dawned on me that Brignoni said the whenever seizure had to be reasonable. An originalist understanding of the 4A may have encompassed the constable power as reasonable. So, Brignoni isn't as effective here as I first thought. But, I didn't feel like going back and retyping all that. Sorry.

But, Brown is still pretty explicit. Must have RAS for an identity demand.

Hee hee. I don't think we have to worry much about constable after-dark power any more. I hope User will evaluate all this for us.

My main points:

1. Street lights prove the government knows lotsa people will be out after dark, thus "after dark" can no longer be suspicious in and of itself as it was in the Middle Ages.

2. Current 4A RAS doctrine cancelled the compulsory stop power of the constable.

3. Desuetude (long disuse renders the law inoperative) nullifies the constable power.

Side Note: The existence of that VA Attorney General opinion to the effect that identity refusals are not obstruction supports the idea that the constable power is a bit arcane.



Brown: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0443_0047_ZO.html