Stop and ID

Citizen · Jul 26, 2010

Thundar said:
I couldn't fing it either.

If the victim was arested for a non-existant law, what common law right does the victim have in the Commonwealth to resist?

The press report says they got into a wrestling match, the deputy used mace but eventually it was taken away from him. The bit that will get the victim in a lot of trouble is the spitting in the face. Can't justify that as resisting an unlawful arrest.

Commonwealth vs Hill addresses it. In Hill the VA Supreme Court declared there is no right to resist an unlawful detention. While discussing this, the court expressly states that we enjoy the right to use reasonable force to resist an illegal arrest.

I've been thinking about this angle a little bit. As far as I know, we are allowed to use reasonable force to resist an unlawful arrest. When I take into account that 1) cops don't stop trying to arrest you just cause you resist, and 2) cops are trained to escalate (they even have a scale of escalation they call the 'force continuum' or something), it seems to me you would have to incapacitate or maybe even apply lethal force to make him stop.

Although Latson pounded the cop's face enough to need reconstructive surgery, can we really accuse Latson for being effective?

I quoted Commonwealth v Hill in a post above. Here is the link again for anyone who missed it: http://www.courts.state.va.us/opinions/opnscvwp/1012526.pdf

Stafford_1911 · Jul 26, 2010

Stafford’s ID requirement falls under the loitering ordinance. Specifically Sec 17-7 subsection c http://library.municode.com/index.aspx?clientId=11500&stateId=46&stateName=Virginia

(c) It shall be unlawful for any person at a public place or place open to the public to refuse to identify himself, by name and address, at the request of a uniformed law-enforcement officer or a properly identified law-enforcement officer not in uniform, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

(e) Any person violating any provision of this section shall be guilty of a class 1 misdemeanor.

Unfortunately it doesn’t seem to imply that RAS necessary outside of being in a publicly accessible place. Just my opinion…..

peter nap · Jul 26, 2010

Good find!

Now, how enforceable will this be?
I would love to see User represent this fellow.

Stafford_1911 · Jul 26, 2010

I don’t know how enforceable it is in the eyes of the court.

I personally know of an incident in which a person was formally charge by the Magistrate under this ordinance. I’ll have to follow up on the outcome but if memory serves it involved a plea arraignment.

TFred · Jul 26, 2010

Stafford_1911 said:
Stafford’s ID requirement falls under the loitering ordinance. Specifically Sec 17-7 subsection c http://library.municode.com/index.aspx?clientId=11500&stateId=46&stateName=Virginia

(c) It shall be unlawful for any person at a public place or place open to the public to refuse to identify himself, by name and address, at the request of a uniformed law-enforcement officer or a properly identified law-enforcement officer not in uniform, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

(e) Any person violating any provision of this section shall be guilty of a class 1 misdemeanor.

Unfortunately it doesn’t seem to imply that RAS necessary outside of being in a publicly accessible place. Just my opinion…..

These Municode pages have hideous link formats... but here is the link directly to this section:

http://library.municode.com/HTML/11500/level2/CODEB_C17.html#CODEB_C17_s17-7

TFred

TFred · Jul 26, 2010

Just curious

Why would there be any question of enforceability? It seems that there are several states which do have ID laws, have there been issues there?

Just curious.

TFred

suntzu · Jul 26, 2010

Citizen said:
Thank you.

But, HA! I saw your earlier comment before you changed it. Tsk, tsk. Changing a hallowed boot camp experience.

And what happened to the capital letters? I can tell you that those particular words, in that order, are SHOUTED!!

ADVANCE FORWARD!

there, better?

remember--Patton said it--we are advancing constantly....

peter nap · Jul 26, 2010

TFred said:
Why would there be any question of enforceability? It seems that there are several states which do have ID laws, have there been issues there?

Just curious.

TFred

That's true, but we're talking about Virginia which is a Dillon Rule state, without an ID statute (Except Driving, CHP, etc)

The ID part combined with a loitering Ordnance which has had most of it's teeth pulled makes it very questionable.

It'll be interesting first to see if he has any kind of a lawyer (If he doesn't they'll try to plea it ) and second, if the Ordnance will hold up and last if he will be able to convince a Jury he was defending himself against a false arrest.

A lot is going to depend on the quality of his council.

TFred · Jul 26, 2010

peter nap said:
That's true, but we're talking about Virginia which is a Dillon Rule state, without an ID statute (Except Driving, CHP, etc)

The ID part combined with a loitering Ordnance which has had most of it's teeth pulled makes it very questionable.

It'll be interesting first to see if he has any kind of a lawyer (If he doesn't they'll try to plea it ) and second, if the Ordnance will hold up and last if he will be able to convince a Jury he was defending himself against a false arrest.

A lot is going to depend on the quality of his council.

I agree. As noted in the article, the mom is trying to round up support based on the Autism aspect of the case. A Google search pops out lots of hits on articles and blogs looking for support. Coincidentally, the first hit is the news report of a Grand Jury indictment about a month after the subject incident for "burglary and domestic assault and battery".

As we often note here, there are good gun cases and bad gun cases... for those who are looking to advance the cause of taking extra caution with Autism patients, this is quickly moving toward the "bad Autism case" pile.

TFred

peter nap · Jul 26, 2010

TFred said:
I agree. As noted in the article, the mom is trying to round up support based on the Autism aspect of the case. A Google search pops out lots of hits on articles and blogs looking for support. Coincidentally, the first hit is the news report of a Grand Jury indictment about a month after the subject incident for "burglary and domestic assault and battery".

As we often note here, there are good gun cases and bad gun cases... for those who are looking to advance the cause of taking extra caution with Autism patients, this is quickly moving toward the "bad Autism case" pile.

TFred

That pretty much goes without saying TFred. Even though the indictment can't be brought up in trial, it's there so he isn't the Golden Boy.

Look at the facts in the case. Cop was wrong IMO.

Suspect was right IMO.

It stops there.
99% of the people on this board would have allowed the officer to arrest them, then hot footed it to their lawyer.
As gratifying as it would be to take a swing at the cop, it's just not the way we would handle it.

That's one of the things that separates us from them.

It's still going to be an interesting case but i will keep it at arms length.

Citizen · Jul 26, 2010

I guess from an academic legal standpoint, this case will come down to whether Stafford's ordinance is invalid under the Dillon Rule, a subject about which I know little. But, since it is a legal concept, based on my experience reading other areas of law, I'm betting there are dozens of cases on the subject, with numerous exceptions, and exceptions to the exceptions.

Maybe this will be my next project--learn about the Dillon Rule with an eye to local stop-and-identify ordinances.

peter nap · Jul 26, 2010

Citizen said:
I guess from an academic legal standpoint, this case will come down to whether Stafford's ordinance is invalid under the Dillon Rule, a subject about which I know little. But, since it is a legal concept, based on my experience reading other areas of law, I'm betting there are dozens of cases on the subject, with numerous exceptions, and exceptions to the exceptions.

Maybe this will be my next project--learn about the Dillon Rule with an eye to local stop-and-identify ordinances.

Yep but I'd be willing to bet the loitering challange doesn't even get off the ground. If it wasn't a felony against a police officer, they would deal it down to simple assault and go home.

About 50 years ago, my father had just won his first Supreme court case and I asked him what it took to win a case like that. With his usual country lawyer manner, he said 'A whole lot of money".
As I've said before, justice ain't cheap!

The loitering laws were gutted during the civil rights years Citizen. The were a favored tool to keep Blacks out of White neighborhoods.

Simple loitering alone, on public property, is a non issue. There has to be something else tied to it.

Citizen · Jul 26, 2010

peter nap said:
SNIP...Simple loitering alone, on public property, is a non issue. There has to be something else tied to it.

I understand.

The ordinance includes a reference to public danger. I don't really know any law on the "public danger" aspect of things. My ignorance makes me think the "public danger" angle could be tricky. Unless public danger is a term of art that has a specific meaning that excludes everyday dangerous crime, I think "public danger" can/could be read to satisfy the RAS prong of Brown vs Texas.

If I am right, and if the Dillon Rule can be read under "implied powers" to permit a local stop-and-identify ordinance, the question then heads into whether the cop had RAS. A man with a gun alone is insufficient to justify a detention in a no-permit open carry state according to Florida vs JL, even if Latson had a gun, which he didn't.

One question does come to mind. Does VA have its own 1K-foot rule for schools? If so, does it have an exception for CHP holders? Meaning, would a VA cop have RAS for someone too near a school without a CHP?

nova · Jul 27, 2010

Citizen said:
Does VA have its own 1K-foot rule for schools? If so, does it have an exception for CHP holders? Meaning, would a VA cop have RAS for someone too near a school without a CHP?

I don't believe so. I'm 99% sure the only 1000ft rule is the federal "GFSZA".

is the annandale police station where our meetings are held not within 1000ft of a K-12? And of all public places, I'm sure there's enough LE present there that if there was an issue, it would have been brought up.

user · Jul 27, 2010

nova said:
I don't believe so. I'm 99% sure the only 1000ft rule is the federal "GFSZA".

is the annandale police station where our meetings are held not within 1000ft of a K-12? And of all public places, I'm sure there's enough LE present there that if there was an issue, it would have been brought up.

That is correct. Though as a matter of theory if you don't have a concealed carry permit and you're not a LEO, it's a federal felony to be within 1000 feet of the outer perimeter of school property. Local cops can make arrests for violation of fed law and local state courts are courts of competent jurisdiction. I think the fed law is a pile of crap, myself (to use the technical phrase meaning "unconstitutional").

user · Jul 27, 2010

Citizen said:
I guess from an academic legal standpoint, this case will come down to whether Stafford's ordinance is invalid under the Dillon Rule, a subject about which I know little. But, since it is a legal concept, based on my experience reading other areas of law, I'm betting there are dozens of cases on the subject, with numerous exceptions, and exceptions to the exceptions.

Maybe this will be my next project--learn about the Dillon Rule with an eye to local stop-and-identify ordinances.

The Dillon rule is really simple. No corporate entity, whether a business corporation or a municipal corporation, can exceed the authority granted by its charter or by general law. Any attempt to do so is called an "ultra vires" (beyond the power) and is a void act as a matter of law. Not "voidable" or "subject to rescission", but void, as if it had never happened. A local ordinance that exceeds the powers granted to the county, city, or town (or homeowners' association, for that matter) cannot be enforced, because it does not exist.

user · Jul 27, 2010

peter nap said:
Unfortunately Citizen, I suspect he'll get a court appointed lawyer. Even when the CAL's are good defense attorney's, they tend to do the least amount possible because they're basically on minimum wage.....

No, court appointed attorneys are not on minimum wage. If they do the work they're supposed to do, they're at much much less than minimum wage. It's basically charity. There are a lot of scumbags who don't do any work, show up in court, and relay the Commonwealth's offer of a plea deal to the defendant and insist that he take the deal. Even at that, they're underpaid; I charge two thousand bucks just to show up in the GDC, and those guys get two hundred or so for the entire case.

I defended the criminally indigent myself for about five years, long long ago. I mainly did it to get trial experience. It was a hundred bucks per misdemeanor at that time. Since that time, my own pro-bono work has been unrecorded, and unbilled. It just isn't worth the money to have to do all that extra paperwork.

peter nap · Jul 27, 2010

user said:
Local cops can make arrests for violation of fed law and local state courts are courts of competent jurisdiction. I think the fed law is a pile of crap, myself (to use the technical phrase meaning "unconstitutional").

Thank you User!
As with all your posts, I learn something new. Another myth busted.

user · Jul 27, 2010

Back to the original point of the thread: By statute in Virginia, a police officer or sheriff's deputy where there is no police department has all the powers of a constable at common law. And, at common law, the constable had the power to stop anyone AT NIGHT merely to demand that they state their name and their address. There was no power to demand any identification during the daytime and unless the cop has "reasonable suspicion" sufficient to detain a person on other grounds, there is no such power today. The U.S. Supreme Court has specifically held that the requirement that a person identify himself only requires that he truthfully state his name and address. Unless you're operating a motor vehicle in Virginia, there is no need to show an operator's license. (Carrying a concealed firearm requires presentation of a government-issued photo id and the CHP, but does not require any particular identification certificate).

TFred · Jul 27, 2010

user said:
The Dillon rule is really simple. No corporate entity, whether a business corporation or a municipal corporation, can exceed the authority granted by its charter or by general law. Any attempt to do so is called an "ultra vires" (beyond the power) and is a void act as a matter of law. Not "voidable" or "subject to rescission", but void, as if it had never happened. A local ordinance that exceeds the powers granted to the county, city, or town (or homeowners' association, for that matter) cannot be enforced, because it does not exist.

From the link to the Stafford County code, there are only two references to the Code of Virginia, one is to 18.2-404 Obstructing free passage of others, and the other is to 18.2-416 Punishment for using abusive language to another.

Beats me how either of those authorize them to pass and enforce a requirement to identify oneself to a LEO.

TFred

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