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Stevenson v. (Roanoke City police officers) Kwiecinski

peter nap

peter nap

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simmonsjoe said:
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?
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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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Citizen

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simmonsjoe said:
Citizen said:
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.
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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.
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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.
 
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Toad

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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!!
 
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Grapeshot

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mrt6812 said:
anyone know the law regarding resisting an unlawful arrest/detainment?
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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.
 
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Elkad

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mrt6812 said:
anyone know the law regarding resisting an unlawful arrest/detainment?
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Grapeshot said:
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.
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John Bad Elk vs USA and several other cases said resisting is OK, even with lethal force. Since then most states have passed laws to make resisting illegal arrest a crime. IIRC, Virginia is not on that list, so theoretically you can still legally resist here. And assuming you survive the shootout, a jury probably has a tiny chance of acquitting you. Unless the dashcam tapes go missing, in which case you are just a cop-killer for sure.
 
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Citizen

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Grapeshot said:
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.
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My, my. What an unfortunate choice of language. A Virginia court used almost the same language in a case that curtailed rights. I thought you were much more pro-freedom than that. Or, is it just my wallet you are free with? :D:p

I consider that every free man has the right to use violence to resist [strike]state kidnapping[/strike] false arrest. I also consider we would be very wise to demand government recognize that right. A citizen may or may not choose to exercize it during any given illegal arrest, but that should be his choice--not the government's.

With that said, a citizen needs to be very thoughtful about resisting a false arrest. One has to know the details about warrants and probable cause. One should give lots of thought to security forces, how they stick together, how they respond when one of their fellow cops needs help. And, don't forget they are trained in "hands-on" (their word) techniques, and get plenty of practice. And, perhaps most important, the resister's actions will be reviewed thoroughly by government after the fact. Care to place bets on whether the reviewers will be looking for loopholes through which to run the rope to hang the resister?

An error on the citizen's part, a lying cop, a loophole--any of these can quickly change exercising a right into resisting arrest and assaulting a police officer.

The court case that I mentioned above covers both resisting an illegal arrest and resisting an illegal detention. I'll give it in my next post.
 
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Citizen

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Commonwealth vs Hill #1012526

This opnion from the VA Supreme Court is about resisting an illegal detention. The court also discusses the right to resist a false arrest.

"Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest...The underlying rationale supporting this common law right is the "provocation" of an illegal arrest, which operates to excuse an assault directed at thwarting the unlawful arrest..."


"...we hold that a person in this Commonwealth does not have the right to use force to resist an unlawful detention or "pat down" search..."

Trust me, if you are thinking about resisting a false arrest, or resisting an illegal detetion, you want to read the entire opinion.


http://www.courts.state.va.us/opinions/opnscvwp/1012526.pdf

Oh, and here is the "unfortunate language" I mentioned in my earlier post that Grapeshot paralleled:

"Close questions as to whether an officer possesses articulable suspicion must be resolved in the courtroom and not fought out on the streets."

Commonwealth v Hill was quoting a Maryland case, of all things.
 
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Grapeshot

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Citizen said:
My, my. What an unfortunate choice of language. A Virginia court used almost the same language in a case that curtailed rights. I thought you were much more pro-freedom than that. Or, is it just my wallet you are free with? :D:p

I consider that every free man has the right to use violence to resist [strike]state kidnapping[/strike] false arrest. I also consider we would be very wise to demand government recognize that right. A citizen may or may not choose to exercize it during any given illegal arrest, but that should be his choice--not the government's.

With that said, a citizen needs to be very thoughtful about resisting a false arrest. One has to know the details about warrants and probable cause. One should give lots of thought to security forces, how they stick together, how they respond when one of their fellow cops needs help. And, don't forget they are trained in "hands-on" (their word) techniques, and get plenty of practice. And, perhaps most important, the resister's actions will be reviewed thoroughly by government after the fact. Care to place bets on whether the reviewers will be looking for loopholes through which to run the rope to hang the resister?

An error on the citizen's part, a lying cop, a loophole--any of these can quickly change exercising a right into resisting arrest and assaulting a police officer.

The court case that I mentioned above covers both resisting an illegal arrest and resisting an illegal detention. I'll give it in my next post.
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Yes, you are right.
 
peter nap

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Grapeshot said:
Yes, you are right.
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You're BOTH right. Yes, the LAW allows you to resist.
Thankfully, I haven't had to test that. Came close a few times but it always defused before it happened.

Thankfully BECAUSE NO MATTER WHAT THE LAW SAYS, YOU'RE GOING TO BE CHARGED WITH A FELONY.

That is the unfortunate reality of it.

That should be a mandatory warning label on some of the case law we hand out.
Justice is expensive and when dealing with a Felony, you'd better have the money to pay a good lawyer, not a court appointed lawyer that wants to do as little as possible, but a good User Grade attorney, and pray you get a jury made up of something other than Soccer Moms.
 
Deanimator

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peter nap said:
You're BOTH right. Yes, the LAW allows you to resist.
Thankfully, I haven't had to test that. Came close a few times but it always defused before it happened.

Thankfully BECAUSE NO MATTER WHAT THE LAW SAYS, YOU'RE GOING TO BE
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I'd much rather destroy the cop's career, sell his personal belongings at auction and keep his kids from going to college.
 
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Mike

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i know of no federal law making it a crime to take photograghs of federal buildings from a public sidewalk - this kind of nuttiness continues though, unfortunately.
 
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Tosta Dojen

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VApatriot said:
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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My permit was not revoked. Virginia Code is pretty clear about what constitutes grounds for revocation, and that's mostly convictions, felony charges, and a few other things that clearly don't apply to me. Contrary to what the officer claimed, it would certainly take more than just an incident report. It's also clear that it's the issuing court who has the authority to revoke a permit, and not a police officer, again contrary to what the officer said.
 
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simmonsjoe

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Deanimator said:
I'd much rather destroy the cop's career, sell his personal belongings at auction and [highlight]keep his kids from going to college[/highlight].
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Definitely not cool. Children are not responsible for the sins of their father. Maybe the children end up suffering because of the fathers actions. If you desire such a thing when you file the lawsuit, and it comes true, you will be morally responsible. (Not that it anyhow mitigates the fathers responsibility for it, as it is your own separate sin.)
 
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user

user

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Tosta Dojen said:
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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I just came across this thread. I did post comments on others at about the time the matter was in the USDC. But, with respect to the comment above, frankly, I am kind of disappointed that neither Matthews nor anyone else thought to call me or tell you to call me. I may have said I couldn't do it, either, but I reckon it's too late, now.
 
peter nap

peter nap

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user said:
I just came across this thread. I did post comments on others at about the time the matter was in the USDC. But, with respect to the comment above, frankly, I am kind of disappointed that neither Matthews nor anyone else thought to call me or tell you to call me. I may have said I couldn't do it, either, but I reckon it's too late, now.
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Don't give up hope yet Dan

It's a little more complicated right now.

I have a story ready to print and a video that includes the Dashcam video and audio (Redacted for personal information)

The OP has filed an appeal Pro Se at the moment, because of funding. My story may otr may not generate donations.

You definitely came to mind but Roanoke is a long way and the OP was trying to find an Attorney.
I'll give you a call and bring you up to speed and then have the OP contact you. THis is an extremely important case but as with all such cases, money talks.

An interesting note is that one of the officers told the OP...on tape and dashcam, that he only had the right to remain silent if he had committed a crime.
 
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All American Nightmare

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After hearing some of the audio those pricks are a disgrace to all LEOS that do the right thing and respect the rights of "common folk" PM me contact info and some money will be sent your way for the appeal. I really hope you ruin those pieces of craps life. They should be tarred, feathered, and flogged.
 
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Citizen

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Here is the court opinion cited in St. John vs Alamagordo, where that fed court ruled right. Terry vs Ohio quoted the exact same case. I'm not sure if it was in the briefs in St. John, but it is in summary judgement rendered by that court. That court felt this was an important point:

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 Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

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

It is thus reasonable to expect the police to know the law.
 
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The Donkey

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Citizen said:
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.
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Good catch, Citizen.

In fact, the St. John case cited a 4th Circuit concealed weapons case, Sorrell v. McGuigan, 38 Fed.Appx. 970, 973 (2002), for the proposition that law enforcement officers are expected to know what is legal and illegal under "clearly established law." Qualified immunity is supposed to protect officers who make bad guesses about the law in gray areas, not bad guesses about what is, in fact, black and white statutory law. (Check it out on Google Scholar).

Unfortunately, the Sorrell case was unpublished, so it is not good precedent in the 4th Cir. But the reasoning (citing Harlow v. Fitzgerald) seems sound enough. Moreover, the precedents cited by the Va federal district court on qualified immunity -- an old, off-point Supreme Court case, and three unpublished district court cases from other jurisdictions -- are far from impressive.

All this goes by way of saying that this case could be important.

I hope that our Appellant finds a good attorney quickly.
 
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