Found guilty of assault and battery.

[nuc65]

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I am not a lawyer or knowledgeable about the law, so the following is only opinion.

Whether a misdemeanor or a felony there is always an appeal process, they share the common law the only difference is the length of sentence. I think at the state supreme court level it is a written appeal and there has to be some impropriety of law to be heard, this is where the case law comes in and the bill of rights issues. I think it would be a long shot because you or your lawyer didn't have your witness testify, you didn't mention the previous assault and battery on the suspect. Nothing new can be brought up. If you didn't raise an objection to the video quality problem such that it is on record then you can't use that.

Another thing that you will need to review in great detail is the transcript of the court trials. There may be something that violated a right that would allow the case to be remanded back to trial.

You may not have not taken it seriously enough at the outset, but hindsight is 20/20. I can't say without all the facts that in your position it would have surprised anyone. Lots of experience (guessing) and positive interaction so that when something like this happens you think that there can't be anything to it and get surprised. Like the original homeowner who was sued by a burglar who slipped and broke his leg on the rug. A knowledgeable juror (if a jury trial) is bound constitutionally to ignore the judges instruction and judge the law wrong but so few know their rights and constitutional responsibilities that something like that will not happen. Best of luck and wish you success.

 

[marshaul]

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PolskiG wrote:

you should of just used the quarters your boss gives you to call the police in this suitation. You're screwed brew.

Strange. I generally spell it "bru".

 

[Virginiaplanter]

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Here is a 2001 4th circuit case on pepper spray and excessive force involving Louisa County police. I don't know if this is still good law. It goes over the details of when a person may use pepper spray etc.

Brenda Park

 

[Citizen]

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Virginiaplanter wrote:

Here is a 2001 4th circuit case on pepper spray and excessive force involving Louisa County police. I don't know if this is still good law. It goes over the details of when a person may use pepper spray etc.

Brenda Park

Thanks for the find, Virginiaplanter. I always like reading these sorts of cases.

I won't reveal my feelings about a court that quotes Botsford, "No right...more sacred...free from all restraint and interference..." And then in the next breath explains that a seizure aka Terry Stop is a justified intrusion because it is "minimal." Those who know me can guess whether I'm howling with laughter or disgusted.

 

[danbus]

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Virginiaplanter wrote:

Here is a 2001 4th circuit case on pepper spray and excessive force involving Louisa County police. I don't know if this is still good law. It goes over the details of when a person may use pepper spray etc.

Brenda Park

Thank you VERY much for the find. After reading it, it differs from my situation. Mrs. Park was pepper sprayed AFTER she was in handcuffs. She was also "suspected" ofcommitting a crime.

I sprayed the individual while trying to arrest him for a crime I knew he committed. After he was in handcuffs, the only other further action I took was placing him down on his stomach and making sure he didn't try and get up.

An analysis of excessive force, "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 398 (1989)

I'm sure this is the reason why my actions were deemed "excessive". However, with the details of my situation, it can be said that my actions were not "excessive" by others.

The calculus of reasonableness must embody allowances for the fact that police officers are often forced to make split-second judge- ments -- in circumstances that are tense, uncertain and rapidly evolving -- about the amount of force that is necessary in a particular situation. Sigman v. Chapel Hill, 161 F. 3d 782 (4th Cir. 1998). As the trial court judge explained in his opinion,"Such a determination requires me to balance the nature and the quality of the intrusion on the plaintiffs' Fourth Amendment interests against the importance of the governmental interests alleged by the instant intrusion. The out- come of that test depends on all of the circumstances of the case as they existed at the time of the incident from the perspective of a rea- sonable police officer, not with 20/20 hindsight at the time of this trial."

With that said, my actions were based off the previous encounter with the same individual. At the end of the last encounter, he made a threat to my life. I wondered how another LEO would respond to a threat like that. Would they stop them and detain? Doubtful, no RAS. Who knows. But I believe that another reasonable officer would take effective steps to affect the arrest of the same individual. Would they be exactly the same? Who knows. Would they be similar? Who knows. But given all my encounters with the same suspect would lead me to such force.

 

[MSC 45ACP]

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Good luck, Dan. I'm sorry I can't do more. Just know that our heartfelt prayers are with you always.

Resepctfully;

Mike

 

[MSC 45ACP]

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Good luck, Dan. I'm sorry I can't do more. Just know that our heartfelt prayers are with you always.

Resepctfully;

Mike

 

[Hawkflyer]

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danbus wrote:

...SNIP

With that said, my actions were based off the previous encounter with the same individual.  At the end of the last encounter, he made a threat to my life.  I wondered how  another LEO would respond to a threat like that.  Would they stop them and detain?  Doubtful, no RAS.  Who knows.  But I believe that another reasonable officer would take effective steps to affect the arrest of the same individual.  Would they be exactly the same?  Who knows.  Would they be similar?  Who knows.  But given all my encounters with the same suspect would lead me to such force.

Dan-

I think this may be the issue the court had a problem with. Two weeks is a significant gap when one is considering a threat. Had the "finger shooting" taken place immediately prior to spraying the guy the Judge MIGHT have seen this in a different light. Your OP did not mention a deep history with this particular individual, but it is likely that the guy mentioned that history to the magistrate and might have convinced him that your actions over time constituted harassment.

No matter how difficult you have to approach a person without reacting to much to past encounters. Certainly caution may be in order, but rapid escalation may not.

Don't give up the fight. It appears that the whole story has never been before a judge. Maybe if it had the whole thing might have turned out different. But let the forum know what you need. You know that people here will provide support where they can.

Regards

 

[Tomahawk]

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Got to agree with Hawkflyer's posts here, Dan. Wish you the best at getting yourself out of this jam.

 

[DrMark]

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A couple pieces of advice for Dan stood out to me...


Hawkflyer wrote:

...Dan needs to get a BETTER lawyer, and a good Forensic Video Analyst to present his case before a judge.

ODA 226 wrote:

Dan, ... Call me.

Craig

Dan, have you called Craig?



Best of luck, Dan. You're in my prayers.

Mark

 

[taurusfan]

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What makes you think the judge wants you in jail for a year ? That is ridiculously excessive it seems to me. I think even 30 days would be too much.

 

[ODA 226]

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ODA 226 wrote:

Hawkflyer wrote:

ODA 226 wrote:

Hef wrote:

You have no authority to assault someone for trespassing at a business. He may be a douchebag, but you can't legally attack him for it.

Hef,

You are wrong here. Once someone is given official notice of trespass in Virginia, he can be physically ejected from the premises if he refuses to leave.

Language is important and words have meaning.Lets have a few definitions so we all know what we are discussing here.

Eject:
To remove from premises; to push out or cast off.

Arrest:
The detainment or restraint of a person or thing for the purposes of determining legal rights as regards a thing, or suspicion of criminal activity as regards a person

Assault:
At Common Law, an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.

An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the common law definition is the same in criminal and Tort Law. There is, however, an additional Criminal Law category of assault consisting of an attempted but unsuccessful Battery.

Battery:
At common law, an intentional unpermitted act causing harmful or offensive contact with the "person" of another.

Battery is concerned with the right to have one's body left alone by others.

Battery is both a tort and a crime. Its essential element, harmful or offensive contact, is the same in both areas of the law. The main distinction between the two categories lies in the penalty imposed. A defendant sued for a tort is civilly liable to the plaintiff for damages. The punishment for criminal battery is a fine, imprisonment, or both. Usually battery is prosecuted as a crime only in cases involving serious harm to the victim.

You are correct that a person may be EJECTED from the premises. However, by his own words Dan was ARRESTING this guy. The guy asked "for what" and Dan answered by first spraying, then ASPing and handcuffing the guy.

I have been in Law Enforcement long enough to know and recognize the difference between ejection and arrest. I have also seen a lot of righteous arrests turned in to reasonable law suits against the officer by inappropriate or overstepping actions on the part of the LEO.

This guy may have been a trespasser, but it would appear that the magistrate and the court did not think so. What Dan did may have been perfectly correct, but the magistrate and the court did not think so. Since this has been adjudicated it is perfectly appropriate for people to take a decision, express and opinion, or point out issues as to what happened and who is guilty or innocent. I have seen far more insignificant, not yet adjudicated, acts allegedly committed by LEO's posted on this forum, and watched as people ripped into LEO's in general like jackals.

Dan is a valued member of this forum and a patriot for his activist roll in standing up for peoples RTKABA. But it appears by his own words that he overacted in this case. Like I said before, Dan needs to get a BETTER lawyer, and a good Forensic Video Analyst to present his case before a judge. It may already be too late. I would suggest these guys for the video part-

http://www.brucekoenig.com/

Regards

And I have been in Law Enforcement long enough to know and recognize the the difference between ejection and arrest also. Additionally I agree with you that "Language is important and words have meaning."

Hef did not say that Dan was "arresting" the perp. He stated that Dan had," no authority to assault someone for trespassing at a business" and in that, Hefs' statement took on an entirely different meaning.

We both know that armed security guards that work for a DCJS licenced security firm DO have the powers of arrest on the properties that they are contracted to protect.

I feel that there are too many "Schadenfreude" on this board who, by the tone of their writings, are happy that this happened to Dan. I for one, find this a travesty of justice and cannot believe that the magistrate would allow a retaliatory warrant to be issued in a clear case of Trespassing".

It would be interesting to know if the same Magistrate issued both warrants. I doubt it.

Read what Hef said and read my response again. His choice of words had a completely different meaning. I didn't state that Dan was correct or not in his actions.

 

[ODA 226]

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DrMark wrote:

A couple pieces of advice for Dan stood out to me...


Hawkflyer wrote:

...Dan needs to get a BETTER lawyer, and a good Forensic Video Analyst to present his case before a judge.

ODA 226 wrote:

Dan, ... Call me.

Craig

Dan, have you called Craig?



Best of luck, Dan. You're in my prayers.

Mark

NOPE!

 

[jgress]

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From what I can tell from this thread, at this point you are left with an appeal to either the Court of Appeals or the Supreme Court. Those courts will only look at the evidence presented, and whether the judge got the law correct. If the video was introduced but was not objected to by your lawyer at that time it's too late now. Unless the evidence is so out of whack from the verdict an appellate court will not disturb the trial court's evidentiary finding.

What was your sentence in general district court? Around here the circuit court judge usually imposes the same sentence as imposed below.

With a clean record, a first offense misdemeanor A&B usually results in a suspended sentence. Better yet, your lawyer should be arguing that the court shouldtake this under advisement for a year and then dismiss it. On the other hand, the judgemaywant to send a message to whom he considers to be out of control security guards. In that case disregard the firsttwo sentences in this paragraph.

Yes, I am a lawyer.

 

[jgress]

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From what I can tell from this thread, at this point you are left with an appeal to either the Court of Appeals or the Supreme Court. Those courts will only look at the evidence presented, and whether the judge got the law correct. If the video was introduced but was not objected to by your lawyer at that time it's too late now. Unless the evidence is so out of whack from the verdict an appellate court will not disturb the trial court's evidentiary finding.

What was your sentence in general district court? Around here the circuit court judge usually imposes the same sentence as imposed below.

With a clean record, a first offense misdemeanor A&B usually results in a suspended sentence. Better yet, your lawyer should be arguing that the court shouldtake this under advisement for a year and then dismiss it. On the other hand, the judgemaywant to send a message to whom he considers to be out of control security guards. In that case disregard the firsttwo sentences in this paragraph.

Yes, I am a lawyer.

 

[Reverend73]

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danbus wrote:

Reverend73 wrote:

I'm confused Dan. It sounds as if you were initially found guilty, and then appealed, and lost on appeal as well. Is this correct? Do you have another appeal, or do you just need this stuff to help minimize the sentence?

Whatever the case, I wish you only the best.

Brian

I was found guilty in general court, then I appealed, and was also found guilty.  I have yet to be sentenced.  At this time I am to report to a probation officer who will write a presenetencing report.  This could lessen my sentence.  I also will be able to have character references to speak on my behalf.  There is a witness who was unable to testify the fact that she witnessed me advised the individual if he came back he would be arrest for trespass and observed the individual drive by and point is finger like a gun at me.  She may have turned the tide, however my lawyer came to court late and we were unable to attain any info from her before court began.  I suggested to my lawyer that she may not remember, tell the wrong truth, or outright lie.  I suppose I was incorrect.

After trial, I spoke to her and she asked why she was unable to testify.  We advised her that we wasn't sure her testimony would assist.  She then told us ALL the details.  I believe she would have in fact assisted my case.  Sucks for me.  She did however state she wanted to add to my character reference at sentencing.  I pray she pulls through.

If you or anyone else is willing to provide references, it will be MOST appreciated.

Dan, I'd love to testify on your behalf, unfortunately though I will be in California on orders during that time period.

You need to call Craig (ODA226)

 

[paramedic70002]

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jgress wrote:

1. What was your sentence in general district court? Around here the circuit court judge usually imposes the same sentence as imposed below.

2. With a clean record, a first offense misdemeanor A&B usually results in a suspended sentence. Better yet, your lawyer should be arguing that the court shouldtake this under advisement for a year and then dismiss it. On the other hand, the judgemaywant to send a message to whom he considers to be out of control security guards. In that case disregard the firsttwo sentences in this paragraph.

1. In Isle of Wight I had an excessive punishment thrown out in Circuit Court. Cost $$$ in lawyers fees but it was worth it. Stupid part time judge wanted to suspend my license for 30 days for SPEEDING TO AN EMS CALL in my private vehicle when he knew I worked for an EMS agency and needed my license to work. Circuit judge said he didn't care how fast I was going and that was that...

2. My thoughts exactly.

Dan, I did armed security for 3 years and feel for you. Not fun walking up on a POS like that when you don't have a radio to call for backup and you KNOW he is pushing your buttons cause he considers you a worthless rent-a-cop. I would have gone for the quick takedown too, although I would have used the magical words, "You're under arrest for trespassing" as I did it.

I also have had a problem with one guy refusing to sit down after being cuffed. Lets just say the third time I pushed his abdomen a bit harder to get him to comply.

I also had a hard time with a Newport News Magistrate who threatened to turn me in for prosecution for excessive use of force, for using OC too much. Once I mentioned it to his boss, he was never seen again.

Stay strong, you have my support. Get a good lawyer any way you can and let him work some magic. IF he can convince the Judge that this is an unfortunate circumstance of an otherwise law abiding ENFORCER OF THE LAW then you might get a walk on jail time. Still pursue the appeal, although they get more expensive as you go along.

With no evidence of injury and a shaky video, you definitely got railroaded. You think this was someone's big chance to stick it to you for your activism? Crooked officials would be a big prize to a federal prosecutor or the media...

 

[paramedic70002]

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What city did this occur in?

 

[MSC 45ACP]

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I really hope it didn't happen in Norfolk... :banghead:

 

[KBCraig]

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I've stayed quiet, trying to formulate a reply that says what I intend, without suggesting what I don't intend at all.

I'll leave the legal advice to those who know the VA court system.

Dan, I cherish you as one of our better advocates for legal OC. You've walked the walk and taken the lumps, and won.

That said, I think --hope!-- that you realize you weren't exactly pure here. Technically you were arresting the guy for trespass. In reality, it was for contempt of officer.

Not many of us find that acceptable, no matter whether the officer is a cop, or armed security. Your employer's policies were wrong; to remove someone who had been barred from the premises, you should have called the PD.

The unpressurized OC was a failure. I suspect it had been used before, but not fully discharged. OC is a "use once" item, whether you empty it or not: once the seal is popped, that canister needs to be relegated to training.

Going so quickly to the baton was a failure. You didn't describe anything that justified using the baton. I suspect your omission of "justification" reflects well on your basic honesty, and the lack of training in buzzwords. A police officer who had done exactly the same way would have written it up differently, even if it took some creative license.