Stop and ID

[ProShooter]

(Carrying a concealed firearm requires presentation of a government-issued photo id and the CHP, but does not require any particular identification certificate).

Not trying to correct you user, but just to be more specific for everyone - the type of id to be displayed to LE is specifically "a photo-identification issued by a government agency of the Commonwealth or by the United States Department of Defense or United States State Department (passport)".

 

[Citizen]

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.

OK. But, a quick research of the Dillon Rule in a general sort of way, included the concepts of expressly delegated powers, and implied powers necessary to carry into effect the expressly delegated powers. Now, I am not a lawyer; but I am smart enough to know that when lawyers get to playing around at law, one can get all kinds of court opinions. And, lawyers have had over a hundred years since Dillon wrote his stuff to get it all monkeyed up to the point where I would not be surprised to learn that effectively "what is not expressly reserved has been granted."

So, I'm just trying to figure out the limits on crime fighting ordinancess by localities, or more precisely, where I should look to find the court opinions that decided the legal issues/questions about the limits.

 

[nova]

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").

Right. There CAN be an issue if the LEO present wants to make it one. As far as I know, the "GFSZA" has only been used as a secondary charge tacked on to someone already going down for another crime.

But I sure don't want to be a test case for it

 

[wylde007]

Right. There CAN be an issue if the LEO present wants to make it one. As far as I know, the "GFSZA" has only been used as a secondary charge tacked on to someone already going down for another crime.

It allows them to throw federal weight into a case that would otherwise be only a local ordinance violation.

But I sure don't want to be a test case for it

Aw, come on, Nancy.

Why not? :lol:

 

[MSC 45ACP]

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).

I am also a great admirer of User's advice. I still remember taking my CHL class in Texas. The instructor told us about "Criminal Mischief at Night" and how you could LEGALLY SHOOT someone for it in Texas. Example: Someone messing with your stuff in your yard or your car somewhere else and you can SHOOT THEM. Of course, they also still shoot horse and cattle thieves, too.

There was also absolutely NO MISTAKING a place you weren't allowed to carry (no OC in TX, only CC). The business had to have a HUGE sign with the "30.06" Statute and its complete wording. I sure don't miss the weather in Texas, but I kinda miss living there sometimes. When a guy tried to car-jack me with a knife, the cop that questioned me asked why I didn't shoot the guy. I told him "Too much paperwork", and he laughed and said "Good Point".

 

[SouthernBoy]

When a guy tried to car-jack me with a knife, the cop that questioned me asked why I didn't shoot the guy. I told him "Too much paperwork", and he laughed and said "Good Point".

This would qualify for one to respond with deadly force in Virginia as a knife is considered a very dangerous weapon and one might assume that the perp used it to threaten his victim and put him in fear of serious bodily harm. The introduction of the vehicle and the act of carjacking would not even be a consideration as I understand it under these circumstances.

 

[user]

Somewhat apropos of the topic of this thread, I offer the recent opinion of the U.S. District Court for the Western District of Virginia. This is from the case in which the occupant of an automobile was stopped by Roanoke police for a traffic violation, given the summons, and then subsequently detained because he didn't want to talk about firearms (although he had a CHP, he was openly carrying at the time). It doesn't address the issue of identification, but seems relevant because it discusses what the cops can detain a person for with respect to providing information generally.

 

[wylde007]

I am disgusted. "Held to standards of reasonableness, not perfection?"

Tell that to the next guy who gets a speeding ticket while keeping up with the general flow what the difference between "reasonableness" and "perfection" is.

And then citing NC statute as argument for leeway in the officers' indiscretions?

The enforcers are again exonerated for civil violations. Had their illegal detention and subsequent search of the vehicle led to other "discoveries" would they not be fruit of the poison tree?

 

[peter nap]

I am disgusted. "Held to standards of reasonableness, not perfection?"

Tell that to the next guy who gets a speeding ticket while keeping up with the general flow what the difference between "reasonableness" and "perfection" is.

And then citing NC statute as argument for leeway in the officers' indiscretions?

The enforcers are again exonerated for civil violations. Had their illegal detention and subsequent search of the vehicle led to other "discoveries" would they not be fruit of the poison tree?

If I am not mistaken, and hopefully User will correct me if I am, much of that decision is because Virginia has very few laws that will break down Sovereign Immunity in a case like this.

That's the very reason I push for more teeth in these statutes every year.
For instance, I keep asking for civil/criminal penalties for officers that knowingly detain OC'ers because they don't like the preemption statute.

As things sit now, there's a heavy burden of proof.

 

[darthmord]

I am disgusted. "Held to standards of reasonableness, not perfection?"

Tell that to the next guy who gets a speeding ticket while keeping up with the general flow what the difference between "reasonableness" and "perfection" is.

And then citing NC statute as argument for leeway in the officers' indiscretions?

The enforcers are again exonerated for civil violations. Had their illegal detention and subsequent search of the vehicle led to other "discoveries" would they not be fruit of the poison tree?

As much as I dislike that the guy was detained for legal actions on his part, the officers did NOT do anything wrong.

1. They (incorrectly) believed they had RAS.
2. They detained the gentleman for further investigation.
3. They contacted the appropriate parties to determine charges.
4. They could not come to a suitable charge.
5. They subsequently released the gentleman from custody.

That is supposed to be how it works when you've done nothing wrong but the authorities believe you did. Upon doing their part in a timely manner and finding they are mistaken, they let you go.

Perhaps an apology for the inconvenience would be in order as a matter of courtesy. But I don't see they did anything legally wrong.

The only 'wrong' I saw was telling him not to re-arm himself until after they had left. I hate to break it to the officers but if I'm not in your custody, then lawful actions are lawful actions regardless of the officers' likes or dislikes. Last I checked, re-loading my firearm for proper stowage in its holster is a lawful / permissible action.

I have to wonder what a police officer's response would be if you turned the tables on them.

PO: I am taking your firearm for my safety and to run the number. I'm also unloading it.
Citizen: Officer, I respectfully demand that you disarm for citizen safety as your firearm might accidentally go off and injure me or other citizens in the area.

 

[peter nap]

As much as I dislike that the guy was detained for legal actions on his part, the officers did NOT do anything wrong.

1. They (incorrectly) believed they had RAS.
2. They detained the gentleman for further investigation.
3. They contacted the appropriate parties to determine charges.
4. They could not come to a suitable charge.
5. They subsequently released the gentleman from custody.

That is supposed to be how it works when you've done nothing wrong but the authorities believe you did. Upon doing their part in a timely manner and finding they are mistaken, they let you go.

Perhaps an apology for the inconvenience would be in order as a matter of courtesy. But I don't see they did anything legally wrong.

The only 'wrong' I saw was telling him not to re-arm himself until after they had left. I hate to break it to the officers but if I'm not in your custody, then lawful actions are lawful actions regardless of the officers' likes or dislikes. Last I checked, re-loading my firearm for proper stowage in its holster is a lawful / permissible action.

I have to wonder what a police officer's response would be if you turned the tables on them.

PO: I am taking your firearm for my safety and to run the number. I'm also unloading it.
Citizen: Officer, I respectfully demand that you disarm for citizen safety as your firearm might accidentally go off and injure me or other citizens in the area.

I don't think there was any reason to cuff the man. I really get tired of Officer Safety.

For a group of people that take great pride on bragging about how they put their lives on the line, they sure a bunch of sissies when it comes to being in close proximity to someone that may or may not have committed a MINOR crime.

I guess Novacop will chime in now....wait, he's really Leo229 and in hiding again.:lol::lol::lol:

 

[wylde007]

1. They (incorrectly) believed they had RAS.
2. They detained the gentleman for further investigation.
3. They contacted the appropriate parties to determine charges.
4. They could not come to a suitable charge.
5. They subsequently released the gentleman from custody.

Due in part to their own ignorance of the law and further in part to the negligence of their department to properly train and inform its officers, up to item number 4 this falls in the category of "arrest him now, we'll find something to charge him with later".

They went on a fishing expedition because the citizen knew his rights (and the law) better than they did and it pissed them off. I don't care how "courteous" the video made them appear.

They started out with a faulty premise and grossly overstepped their authority under law. Further, they were determined to cite this gentleman for daring to refuse to answer their questions, which he had every RIGHT to do.

This is why I paint law enforcement in such a negative light. They SHOULD be held to a higher standard of at least pursuing perfection, if not achieving it. To hear many of them speak, they are FAR SUPERIOR to the rest of us because of their supposed sacrifice and the leeway they have to bend and shape the "rules" in order to get someone to do something unlawful so they can levy municipal fees on the hapless citizens of this country.

Are they all like this? Of course not...

I don't think there was any reason to cuff the man. I really get tired of Officer Safety.

There was absolutely NO REASON to put the man in handcuffs. "Officer safety" is cop code for "exercise dominion over". It places the officer in the position of supremacy and total control, leaving the citizen at the officer's whim and will over what? A traffic violation?

In this instance the officers were wrong and the citizen knew it. What would have been the response if the citizen resisted the unlawful detention? It can almost be assured that there would have been an escalation and, in those cases, almost always the citizen receives the short end of the stick (baton) and has little recourse, regardless of the legality/lawfulness of the detention.

And, at that point, if the citizen became resistant, he is now placing himself at risk of any number of additional dangers - simply defending yourself against unlawful arrest/detention could land you assault on a police officer - and that's a felony.

So by simply being right and the officers being wrong, you have to defer to the officer's whim and submit to their authority, no matter how flawed.

And furthermore, that's another danged problem with cross-linking the DMV database with the CHP database. They also bleat and bray "officer safety" in that context but it's not the ones who have lawfully gone to the trouble of acquiring a CHP that they have to worry about. And had the gentleman not had a CHP and still been carrying the altercation would not have occurred and the officers would likely have been none the wiser... something it remains to be seen that they could do with a good dose of.

 

[Citizen]

pdf of court judgement

The court in the linked case rendered a wrong judgement. St. John vs Alamagordo had a different fact pattern, but that court gave judgement for St. John essentially for the reason denied here. Mainly that the police are expected to know the law. St John even quoted one of my favorite court opinions as part of that court's rationale:

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.

It does not take a rocket scientist to recognize that the cops did not have clear and unquestionable authority of law to restrain or interfere with the detainee further. There is no law requiring notification. There is no law against refusing to answer a cop's questions. This was clearly a wrong judgement. The only reason for the complexity in the judgement is to manufacture a reason to support the government.

Notice the court's weasel words: "In passing, the court notes that the officer's belief in this case was not outside the realm of reason." It does not say why it was not outside the realm of reason. It just declares it was. It goes on to offer that there is a statute requiring a CHP holder to show it upon demand. Then offers a NC statute that requires disclosure. But, does not say why this puts the cops' error in the realm of reason. Clearly, these were offered to suggest "reasonable reasons" the cop might have erred. Oh, and it was "noted in passing"--despite the fact that it was essential to say it in order to misdirect and stay clear of a little problem: the court avoids the only reasonable legitimate reason--that the cop knows the laws of his jurisdiction and knows it is against the laws.

Basically, if a cop has a foggy memory, we are now all fair game. Now we are all at the mercy of whether the cop had a good night's sleep or has been taking his damn fish oil supplements. If he heard from another cop that NC has a disclosure requirement, and jumps to the conclusion that VA must have one too, that is good enough to violate the most sacred, carefully guarded right in the common law.

Bunch of jerks.

 

[Thundar]

1) Electrical tape over the serial #.
2) Voice recorder

There is a material difference in error of fact and error of law. Shame on the judge. RAS = RAS that a person violated xxx law, not RAS that a person violated an unknown law. Articulated Suspicion = suspected activity and law violation.

 

[Thundar]

The court in the linked case rendered a wrong judgement. St. John vs Alamagordo had a different fact pattern, but that court gave judgement for St. John essentially for the reason denied here. Mainly that the police are expected to know the law. St John even quoted one of my favorite court opinions as part of that court's rationale:

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.

It does not take a rocket scientist to recognize that the cops did not have clear and unquestionable authority of law to restrain or interfere with the detainee further. There is no law requiring notification. There is no law against refusing to answer a cop's questions. This was clearly a wrong judgement. The only reason for the complexity in the judgement is to manufacture a reason to support the government.

Notice the court's weasel words: "In passing, the court notes that the officer's belief in this case was not outside the realm of reason." It does not say why it was not outside the realm of reason. It just declares it was. It goes on to offer that there is a statute requiring a CHP holder to show it upon demand. Then offers a NC statute that requires disclosure. But, does not say why this puts the cops' error in the realm of reason. Clearly, these were offered to suggest "reasonable reasons" the cop might have erred. Oh, and it was "noted in passing"--despite the fact that it was essential to say it in order to misdirect and stay clear of a little problem: the court avoids the only reasonable legitimate reason--that the cop knows the laws of his jurisdiction and knows it is against the laws.

Basically, if a cop has a foggy memory, we are now all fair game. Now we are all at the mercy of whether the cop had a good night's sleep or has been taking his damn fish oil supplements. If he heard from another cop that NC has a disclosure requirement, and jumps to the conclusion that VA must have one too, that is good enough to violate the most sacred, carefully guarded right in the common law.

Bunch of jerks.

RAS = "Realm of reason"???

The courts have completely fu%*ed up the 4th A, and we may never get it back.

We need all of our rights, not just the 2nd to be free men.

 

[sol]

during the daytime and unless the cop has "reasonable suspicion" sufficient to detain a person

So, I had youtubed around and found this on an OC'er in Maine who was stopped and refused to identify. He held is ground and eventually walked away.
http://www.youtube.com/watch?v=Ifv5qfuXmKQ

He cites Maine 17-A, 15-A: http://www.mainelegislature.org/legis/statutes/17-a/title17-Asec15-A.html

I remembered the thread and wanted to dig for more info on the 'Stop and ID' as it pertains to VA. User, a question on your comment of an officer requiring reasonable suspicion, I am curious whether or not the officer must state what his or her reasonable suspicion is??

The thread has covered that we are required to verbally identify 'at night'; and during the daytime it is a requirement to have RAS (if I understand this all correctly), and that the AG Opinion suggests an inidividual cannot be arrested for merely refusing to ID. My googling skills when it comes to laws requires some fine tuning, but I am curious if there is such law, say an equivalent for Maine's 17A,15A,2 for Virginia (which I think states that you must give your name only if you are receiving a summons or arrested)?

 

[Citizen]

SNIP User, a question on your comment of an officer requiring reasonable suspicion, I am curious whether or not the officer must state what his or her reasonable suspicion is??...but I am curious if there is such law, say an equivalent for Maine's 17A,15A,2 for Virginia

In case User does not come back to the thread, I'll chip in my own knowledge. In all the cases I've read--4th Amendment appellate decisions--I've never once come across one that said the cop has to give his RAS to the detainee.

I believe the existence of such a decision is unlikely. I say this because I would expect to come across cases where the question before the court was whether the detainee was properly notified. As additional support to my conclusion I offer that it would be counter-productive to the government to require such declaration by the cop to the detainee. It would just be one more opportunity for the government to get it wrong, etc. The courts are the one's who analyze the sufficiency of circumstances with regard to RAS. They have little interest in the detainee analyzing the sufficiency during the encounter. And, it would totally upset the carefully unexamined and tolerated tactic of police lying to suspects.

There is no stop-and-identify statute in VA. A bill was offered in the last two General Assemblies. It was stopped both times. If you have a concern about this like I do, keep an eye on new bills starting next November (bills are often pre-filed before the session begins) and if one pops up be sure to write/call/fax your state legislators.

There was no stop-and-identify ordinance in Fairfax County last time I looked (9-12 months ago.) However, there is at least one locality that has one--Norfolk, Hampton Roads, something like that. So, its possible other NoVA jurisdictions have one. This does not speak to the legality of such an ordinance. I've read credible arguments that since VA is a Dillon Rule state, localities do not have the authority to make such an ordinance. Of course, any legal question like that only gets sorted out after the OCer is cited or arrested and develops legal costs.

 

[Patriot2A]

I came into this thread expecting a quick clarification and didn't seem to get one. I live in a va, if a cop (with no ras or pc) asks for my id, am i required to verbally tell him my full name? and what's this "at night" ********?

I need to learn

 

[Patriot2A]

Stop and ID...again.

I looked through the other stop and ID thread, and found little information.

If I'm open carrying and a cop asks for ID for no other reason than OC, what do I have to do?

Also, I heard something about having to identify at night.

All help is appreciated. thanks

 

[possumboy]

I came into this thread expecting a quick clarification and didn't seem to get one. I live in a va, if a cop (with no ras or pc) asks for my id, am i required to verbally tell him my full name? and what's this "at night" ********?

I need to learn

The OP mentioned you were on a bicycle. There are tons of rules and regs about riding bicycles in VA, and they can be different depending on where you are.

A smart LEO will look for some small thing you did so they can detain you and asked for an ID.

Here a few things to remember:
A bicycle is considered a vehicle in VA - http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+46.2-100
You must obey all traffic signs, signals, lights, and markings - http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+46.2-830

Now, with all that being said and cited , I can find no where that requires you to have a license to operate a bicycle on public roads.

Ever interaction I have had in the past while OC'ing on my bike went kinda like the following - there has been only two, but both went about the same.

Officer(s): Can I see some ID. (Notice the lack of a "?". It is a question, but said as a demand.)
Me: Am I being detained or arrested?
Officer(s): We just had some reports about a <man with gun>, <someone riding around with a gun>
Me: I with take that as a no which means I'm free to leave. Thank you for the job you do and have a nice day. <I pedal off wondering if they will be coming after me>

I have been lucky and all the officers understood the laws and upheld them.

I have only once had to produce ID, but I was detained based on a false report to the officer - this was not gun related. If you are going to pratice this, it should be in all interactions, not just when you are carrying.

Simple terms, Avoid showing if you can. Use the following questions and words:
Then I am free to leave.* *Only if they do not get you an affimative answer that you are being detained or arrested.
Am I being detained or arrested?
Is that a request or a demand?
I do not consent to <insert everything demanded by a LEO here>

Always remain calm. Never make the statement "I know my rights." Let you actions show you know your rights. And always try to be polite in your words.

OH, Yeah, Don't point your finger at anyone...