District of Columbia v. Heller
April 30, 2008 - Another Victory for Civil Rights
Civil Rights Victory – The
Right To Personal Protection
On April 30, 2008, the law
firm announced that another victory in civil liberties was achieved when
the firm’s client whom we will call “John Doe” was re-issued a new
five-year permit to carry a concealed weapon, after his application for
renewal of the permit had been originally declined.
After an evidentiary hearing, which John Doe demanded under
Virginia Code § 18.2-308(I),
the Circuit Court found that John Doe “is well trained in the use of
firearms and conscientious with regards to the safe use of firearms, and
that his specific acts including but not limited to shooting on October
23, 2007 away from his neighborhood into the ground and toward a dense
backstop do not make it likely that [John Doe] would use a weapon
unlawfully or negligently to endanger others, and that there is no good
cause shown for refusing to reissue a new five-year concealed handgun
The strange and sordid
saga began on October 23, 2007, in rural
, when the client, leaned out of his 2nd story window and
shot three times at a rodent that had entered a rodent trap, safely
shooting into the ground and in the direction of the arrow indicated in
the plat below away from any houses.
Completely unrelated, it
seems that a neighbor was feeling a little nervous due to strained
relations with his daughter’s x-boyfriend who had just been released
from jail or prison. The
neighbor had allegedly had words with the boy and may have obtained a
protective order against the x-boyfriend.
So, while the neighbor was sipping coffee on his deck, he heard
gun fire, and immediately and mistakenly concluded that the x-boyfriend
must be hiding in the green space gulley shooting at him, so he ran
inside his house. Once
inside the shooting stopped, so he jumped to the erroneously conclusion
that the x-boyfriend couldn’t see him and stopped shooting.
The neighbor called 911 to report that he was being shot at and
the local sheriff’s deputies responded.
While the sheriff’s deputies was scurrying about looking for
the x-boyfriend, John Doe, a 60 something, rather large bald headed man
with a white beard put on a pair of short pants and a t-shirt, walked
out the back of his house on the other side of the green space and
moseyed over to the trap to see that the rodent was still alive.
Standing over the trap he fired a pistol down into the trap
killing the rodent.
The deputies, jumped to
erroneous conclusions and ran down the green space gulley and up the other side to
the surprise of John Doe who was standing in his back yard with the wind
blowing in his ears. Although
John Doe was obviously not a young buck, but looking more like an Amish
Elder, the deputies were yelling all the while pointing rifles at his
chest, described by the young officer as “tactical weapon’s
systems.” John Doe could
not tell what they were yelling due to the wind and distance, and did
not notice any insignia’s indicating that they were law enforcement,
but when some of them moved towards the woods, he concluded that there
must be some danger in the woods and that the boys must have been
directing him to move away from the woods.
He slowly moved away from the woods a few steps when he heard the
young men yelling for him to put his pistol down, which had remained
pointed at the ground the entire time.
He promptly followed their instructions, removed the clip and
placed the pistol on the ground and then followed further instructions
to lay down on the ground as well.
Instead of accurately assessing the situation in the manner one
might expect from trained officers of the law, the officer arrested John
Doe without a warrant for alleged misdemeanors not committed in their
presence and charged him with reckless use of a firearm in violation of
§ 18.2-56.1 and obstruction in violation of § 18.2-460(A).
He was taken in handcuffs to the Sheriff’s office and booked,
fingerprinted and eventually released.
Code § 18.2-56.1(A)
states “It shall be unlawful for any person to handle recklessly any
firearm so as to endanger the life, limb or property of any person.”
For conduct to be “reckless” it must be such as to evince
disregard of, or indifference to, consequences, under circumstances
involving danger to life or safety of others, although no harm was
intended. Black’s Law
Dictionary 1142 (5th ed. 1979) quoted approvingly in Darnell
v. Commonwealth, 6
App. 485, 491 (1988)
Code § 18.2-460(A)
requires "actual hindrance or obstruction of the officer,"
"opposition or resistance by direct action." Polk v.
App. 590, 594, 358 S.E.2d 770, 772-73 (1987). "Obstruction of
justice does not occur when a person fails to cooperate fully with an
officer or when the person's conduct merely renders the officer's task
more difficult" or "frustrates [his or her]
investigation." Ruckman v. Commonwealth, 28
App. 428, 429-430, 505 S.E.2d 388, 389-390 (1998).
John Doe clearly violated neither.
An arrest for such misdemeanors violated
law. First, there was no
probable cause, required by the Fourth Amendment to the
to arrest Doe on the misdemeanor charges.
Second the arrest was without a warrant.
Third, the officer was not authorized to arrest John Doe under
law. In pertinent
law, the officer would have been only authorized to issue John Doe a
summons if a violation of law had been committed in the
officer’s presence, which did not happen, and if the alleged offense
was punishable as a Class 1 or Class 2 misdemeanor.
Only if the person is believed by the officer likely to disregard
the summons issued or if reasonably believed by the arresting officer to
be likely to cause harm to himself or to others could the officer arrest
In pertinent part the
Code § 19.2-74.
Issuance and service of summons in place of warrant in
misdemeanor case; issuance of summons by special policemen and
conservators of the peace
A. 1. Whenever any person is detained by or is in the custody of
an arresting officer for any violation committed in such officer's
presence which offense is a violation of any county, city or town
ordinance or of any provision of this Code punishable as a Class 1 or
Class 2 misdemeanor or any other misdemeanor for which he may receive a
jail sentence, except as otherwise provided in Title 46.2, or §
18.2-266, or an arrest on a warrant charging an offense for which
a summons may be issued, and when specifically authorized by the
judicial officer issuing the warrant, the arresting officer shall take
the name and address of such person and issue a summons or otherwise
notify him in writing to appear at a time and place to be specified in
such summons or notice. Upon the giving by such person of his written
promise to appear at such time and place, the officer shall forthwith
release him from custody. However, if any such person shall fail or
refuse to discontinue the unlawful act, the officer may proceed
according to the provisions of §
Anything in this
section to the contrary notwithstanding, if any person is believed by
the arresting officer to be likely to disregard a summons issued under
the provisions of this subsection, or if any person is reasonably
believed by the arresting officer to be likely to cause harm to himself
or to any other person, a magistrate or other issuing authority having
jurisdiction shall proceed according to the provisions of §
One would have expected the assistant commonwealth attorney to
quickly move to dismiss the charges as improvidently charged, however,
shockingly, he refused to do so and further insisted that John Doe
relinquish his firearm to the State.
John Doe refused and the criminal charges were tried before the
court and ultimately dismissed.
Several Thousand Dollars later, the criminal charges were
dismissed and John Doe was re-issued a new five year concealed weapon
Pursuant to Virginia Code § 18.2-308(I),
previously have held a concealed handgun permit shall be issued,
upon application as provided in subsection D, a new five-year permit
unless there is good cause shown for refusing to reissue a permit.
If the circuit court denies the permit, the specific reasons for the
denial shall be stated in the order of the court denying the permit.
Upon denial of the application, the clerk shall provide the person
with notice, in writing, of his right to an ore tenus hearing. Upon request of the applicant made within 21
days, the court shall place the matter on the docket for an ore
tenus hearing. The applicant may be represented by counsel, but
counsel shall not be appointed, and the rules of evidence shall
apply. The final order of the court shall include the court's
findings of fact and conclusions of law.
§ 18.2-308(I) of the Code of
For more extensive reading regarding the 2nd
Amendment, see District
of Columbia v. Heller, (June 26, 2008)