Followup to Chet Szymecki's arrest

[Robert Hairless]

Gunsmith:

Merely an acquaintance for a brief time long ago and other trivial connections not worth exploring.

Joab:

The problem these other people seem to be having is that they expect law enforcement officers to know the law. They obviously believe that law enforcement officers are supposed to enforce the law and can't do that job if they don't know the law.

That view of law enforcement is far too limited. It does not take into account the job of law enforcement officers in Norfolk, for example, to arrest people for not breaking laws. Once the importance of that function is understood it becomes immediately apparent that a law enforcement officer simply does not need to know the law. She only needs to know what he is told to do by the city administration, which is elected by the people of Norfolk to not listen to their protests.

When Councilman Paul R. Riddick walked out of the city council meeting in protest of the protestors, he made it obvious that the Norfolk city administration understands that it is there to not serve the public. In exactly the same spirit, the Norfolk law enforcement officers who arrested that fellow for not breaking the law demonstrated that the police are there to not serve and protect the public either.

There is no need for the city administration or its law enforcement officers to know the law when the law is irrelevant. Which is why I join with you in defending these misunderstood Norfolk law enforcement officers. Although we are fighting an uphill battle that is rapidly going downhill there always is hope.

 

[Well Regulated]

The Evidence

You obviously believe that the officers should have known, but to my mind there has been nothing compelling to show this

1. Va Code 15.2-915 "No locality shall adopt or enforce any ordinance, resolution or motion...governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof..."

2. Va Code 18.2-287.4 Norfolk is specifically mentioned as well as the exemption to permit holders. Chet would have been lawful to carry a rifle with a high capacity magazine as a permit holder. He told the police he was a permit holder

3. Op. Va. Att'y Gen. 2006, "The right to carry openly has not been revoked by the General Assembly."

4. Op. Va. Att'y Gen. 2007, "The common law right to carry a nonconcealed handgun has not been revoked by the General Assembly."

5. However, "a belief based on a mistaken understanding of the law cannot constitute the reasonable suspicion required for a constitutional traffic stop." United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000); see also United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) ("[F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable."); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003) (holding that a mistake of law cannot provide the "objectively reasonable grounds for reasonable suspicion or probable cause"). "f officers are allowed to stop vehicles based upon their subjective belief that traffic laws have been violated even where no such violation has, in fact, occurred, the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and the costs to privacy rights excessive." United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999)." Commonwealth v. Snyder, Va. App. 2007 (Unpublished Opinion).

6. " It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted." GROH v. RAMIREZ et al., 540 U.S. 551 (2004).

 

[Deanimator]

The law does not require them to know, it requires them to act in good faith

Good faith which was totally lacking in those officers. They knew or should have known that the law was facially invalid. Ignorance is no defense to prosecution. The law and the controversy over its adoption was widely known. If the city attorney claims at trial that HE did not know, he's simply perpetrating a fraud on the court. He needs to be disbarred.

Those PARTICULAR officers who falsely arrested and physically abused Chet to the point of torture not only committed criminal and tortious acts, they did so with an infamous malice and cruelty. The ONLY way to prevent a repetition of such scandalous and criminal behavior is to impose crushing civil judgements against the perpetrators.

 

[cassandrasdaddy]

i do sympathise with the man wrongfully arrested. norfolk is a pit. that said the cops are gonna be fine i hope all the cops appreciate that the one who called the city attorney bought em alla get outa jail free card

 

[joab]

Good faith which was totally lacking in those officers.

For the last time
Proof, please

Ignorance is no defense to prosecution

So are you saying in your laws must be enforced stance the that the only laws that are to enforced are those that you agree with?
Look up qualified immunity ( I believe that that is the protection clause)

If the city attorney claims at trial that HE did not know, he's simply perpetrating a fraud on the court. He needs to be disbarred.

No where have I defended the CAs actions

physically abused Chet to the point of torture

You have proof or at least supported speculation on that?

they did so with an infamous malice and cruelty

Over the top hyperbole is what makes it so hard to consider you credible

Nothing you have presented even remotely counters my argument Well Regulated

I have to wonder why all those that are calling for these officers heads cannot even stick to the argument or have to resort to cutsy little nonsense posts to make there point

Not one person has presented any proof or substantiated. or even supported, speculation for their position that the officers were intentionally violating Chet civil rights
When they fail at that they pulled out the unsupported sympathy rhetoric of cruel and malicious treatment
Why can they not stick to the facts?
Why can they not present any?
Why is the question of qualified immunity being ignored?
That's a legal precedent, I thought you guys were all about the law

 

[Novus Collectus]

Why can they not stick to the facts?
Why can they not present any?
Why is the question of qualified immunity being ignored?
That's a legal precedent, I thought you guys were all about the law

Allright joab, I'll give this a shot. I am not sure about the law structure in the Commonwealth, but in my state there is something called prima facie and per se evidence.
In criminal courts malice usually has to be shown or proven and it may be impossible to prove beyond a reasonable doubt the officers had malicious intent and that is pretty much what prima facie is if I understand it correctly.
With per se there just has to be shown a law or statute was broken and negligence per se just requires a presumption of negligence as I understand it. Negligence per se is usually used in civil law and that is where the "qualified immunity" will not usually apply depending on Commonwealth law (as I understand it).
In other words it is hard to convict them criminally, but it is a lot easier to hold them accountable in civil court on the negligence or even the malpractice alone.
Ultimate proof or concrete facts are not needed for lawsuits in most states and what is obvious or what reasonable people can see based on the circumstances is allowed. (as I understand it as a layman)

 

[Deanimator]

So are you saying in your laws must be enforced stance the that the only laws that are to enforced are those that you agree with?
Look up qualified immunity ( I believe that that is the protection clause)

Not only should facially invalid laws not be enforced, they MUST not be enforced, lest a crime be committed by those so doing.

The Norfolk police pierced their own qualified immunity by enforcing a facially invalid law, and in cruel and infamous ways.

Either the Norfolk police are responsible for knowing and obeying the law under pain of prosecution, or NO ONE else is either. To claim otherwise is to do the utmost injury to the principle of equal protection under the law. To claim that police trained in the law have a defense in their ignorance of specific law, while claiming that citizens NOT trained in the law have an absolute duty to know the law is a perversion of the equal protection clause, common sense and common decency itself.

Were the police who committed these cruel and infamous acts not to be held civilly liable, it would do fatal injury to the concept of equality of all before the law by creating a two tier system of justice, create a shocking injustice, and encourage further lawless behavior on the part of officers of the Norfolk PD.

 

[gunsmith]

Norfolk VA must be one heck of a place

You can face arrest for not breaking the law.
The police can arrest you because you offend someone by your mere presence.
Yet I cant help but wonder, who will arrest the police if I am offended by their presence?
I hate the saggy pants look and find it offensive, will they arrest those guys?
I have offended many young black men by being a white guy dating a black women and there are white guys out there who feel the same way but vice versa, can guys like me who do not discriminate against good looking women be jailed because it is offensive to someone?
Norfolk PD will arrest you for not breaking the law , I wonder how they find time to get the people that are breaking the law?

 

[Lew]

I'd like to bring up, if anyone has forgotten, that VA state preemption is NOT NEW. It is, IIRC, at least a decade old. I guarantee the entire council and the entire LE agency know this law, in no small part thanks to VCDL.

Excuses = 0

 

[joab]

I guarantee the entire council and the entire LE agency know this law,

Guarantee or speculate?

enforcing a facially invalid law, and in cruel and infamous ways.

Handcuffing during an arrest is not cruel or infamous
I can't see any point in discussing this with you if you can't do so with out the melodramatics

With per se there just has to be shown a law or statute was broken and negligence per se just requires a presumption of negligence as I understand it

The officers can show that they were following an ordinance or statute and that call to the City Attorney could certainly show a lack of negligence
Qualified immunity does apply in civil court unless it can be shown, not presumed, that the violation was willful and that the officers did not act in good faith and use due care
That call to the city attorney can not be easily dismissed

The cops can not be expected to know all the laws and nuances of law if they were we would call them Yer Honor and they would get paid a lot more
The city attorney can not reasonably be expected to know all the laws either, but he can be expected to know how to look then up in the comfort of his office before he has a man locked up
The city commissions should be expected to research the laws before enacting statutes that violate state law
I don't think that it is unreasonable to believe that the cops would have faith in the system that they work in to take these simple precautions before instructing them to enforce these laws

How long a law has been on the books is no indication of how well known it is, or whether it has been changed or reinterpreted
I still hear about the three step rule in Florida, and that never has been on the books

 

[Smurfslayer]

Without undercutting Chet's case, The city PD and attorney were notified -in writing- on several occasions concerning 15.2-915, and it's meaning since 2003. It's not that we haven't given you any evidence, or for that matter any showing that they "knew, or should've known", they had no authority to either craft - OR ENFORCE any local firearms code, it's that you choose not to believe it.

VCDL news breaks do not constitute common knowledge


---Quote---
Noun 1. common knowledge - anything generally known to everyone

I never asserted the alerts constituted common knowledge. It's irrelevant anyway because under the Lofton ruling, it only has to be published.

Qualified immunity reaches Virginia's supreme court at least 4 times a year. There are cases all over the map on it. On officer was held liable for a traffic collision on the way back from serving a warrant.

 

[WeedWhacker]

Not sure what good this will do, being buried so deep but...

Maybe. If the officers knew that it was illegal, but arrested him anyway, that's a federal crime and I would hope the USA would take that one.

If I was the wrongfully arrested, I would want to see federal prosecutions more than dollars.

The federal crime in question is codified in 18 USC 241. Pretty serious stuff in there.

 

[joab]

The city PD and attorney were notified -in writing- on several occasions concerning 15.2-915, and it's meaning since 2003.

Again
Nowhere have I defended the city attorney or the PD if you check you will see that I hold them responsible for the entire matter

No proof or even substantiated speculation has been shown for the allegations that the officers willfully and knowingly violated state law with the intent of cruelly violating this mans civil rights
There is however proof or at least supported speculation that they did use due care and act in good faith when they called the city attorney before making the arrest

On officer was held liable for a traffic collision on the way back from serving a warrant.

HUH?

 

[Rumble]

Out of curiosity, I poked around for info on qualified immunity. The test for qualified immunity, as I understand it, is something like 1) determine what right was violated, 2) determine whether the law on that right clearly established, and 3) determine whether a reasonable officer have known his or her conduct was unlawful.

I think the first two parts of the test are relatively clear (first off, there is a right to keep and bear arms in the U.S. constitution and the Virginia constitution, plus state law and so forth establishing same; second, it seems clear that the preemption law was clearly published and established at the higher levels of law enforcement for several years, at least).

However, I believe all three are required to pierce qualified immunity, so it will rest on "did the officers get that memo?" If so, then I would personally (not legally...I'm no lawyer) say "they should have known." I don't care whether they read the memo, or whether they called the City Attorney; if they received a memo or update or whatever on it, then it's incumbent upon them, personally, to understand their responsibilities.

But, if not...I think qualified immunity will stand. So my question is: how does the Norfolk PD advise its officers of changes in the law?

 

[Deanimator]

Handcuffing during an arrest is not cruel or infamous

TIGHTENING the handcuffs after being told that they are TOO tight and causing injury IS. THAT in itself should pierce the qualified immunity of the officer who committed that crime and tortious act. They weren't in Chicago, so torture was outside of the normal scope of their duties...

 

[SWMAN]

Prior to the event at which Chet was arrested, the city council had previously "passed" a little known ordinance that prohibited guns in a specific area at a specific time. This first no guns allowed event reported no incidents, protests or arrests. So, the city council decided to do it again and passed another ordinance similar to the first. This was the one for which Chet was "arrested" for violating.

The cops were there to enforce the law and did as they were told. The City Attorney Bernard A. Pishko said city officials were unaware of a state law prohibiting localities from banning guns. This guy is the one who is responsible for knowing whether or not ANY law the city is considering passing conforms to existing law. At the very least, Pishko is responsible in his position as the city attorney for advising the city council and the mayor on the pros and cons or potential problems of any ordinances they are contemplating. The bottom line is he failed to perform the task for which he is paid. I'd say at the very least, the city council and mayor need a new city attorney.

 

[Smurfslayer]

No proof or even substantiated speculation has been shown for the allegations that the officers willfully and knowingly violated state law with the intent of cruelly violating this mans civil rights

This is a moot point. The arrest was without cause, unlawful and illegal. Under Brown, this constitutes battery under both the common law recognized in title 1 of Virginia code and statutory law. Once the arrest was effected, on an ordinance that was superceded 4 years prior, and published as required by law 4 years ago, and each year since, they had actual and constructive notice that local firearms ordinances were both invalidated and unenforceable, they broke the law, period. There's no ambiguity in that, and it's not in dispute between the parties. They will of course assert immunity, but the courts have already ruled against PDs on similar circumstances.

There is however proof or at least supported speculation that they did use due care and act in good faith when they called the city attorney before making the arrest

Pinko or Phisko or whatever his name is is the city attorney, not the Commonwealths Attorney. If they had a question of law, the correct course of action would be to 1: call the magistrate's office. 2: Contact the senior magistrate. 3: contact the commonwealths attorney directly.


I'm only speculating here, but the only reason I could think of that they would call Pinko would be Chet telling the PD that under 15.2-915, local gun laws were wiped out by the General Assembly and couldn't be enforced(legally). Maybe this is why there's been no response to the multiple FOIA requests. Or maybe they did try to reach all the above contacts and couldn't (unlikely, magistrates are available 24x7).

I don't see good faith here, and I'm certainly not alone in that observation. Even if you subscribe to the theory that the city council and mayor passed the invalid law, that doesn't excuse the city PD from enforcing it at the point of a gun as our courts have held.

Maybe you think it's ok for police departments in general to treat people like Chet, his wife and his kids like this generally, or that they should "get off the hook" because they thought they were right. I think that the position that "police departments should be allowed to commit incidental felonies, after all, how else will we do our jobs?" is just patently ridiculous. Once you start down that path, things go down hill really fast. There were several steps along the line at which someone in Norfolk could have stood up and said - 'yeah, but 15.2-915 makes the ordinance illegal', that didn't happen. Nor did due diligence by the NPD and officers on scene.

 

[JimmyN]

The state preemption law dates back to 1987, when localities were prohibited from passing any new laws. Existing laws were allowed to remain in effect. The latest revisions removed the grandfathering of laws existing prior to 1987, along with some other changes.

So I find it very hard to believe that City Council and the City Attorney were not aware of a state law that is 20 years old. They passed temporary legislation specifically banning firearms at the festival, an action that has been illegal for the last two decades.

Why would they try to get away with such an act? Well we might want to note that Norfolk City Mayor Fraim is a member of Bloomberg's Coalition of Mayors intent on disarming everyone. Riddick's opinion is obvious, he walked out of the meeting. He has no need to talk to the common people, he already knows whats best for them, but those pesky state laws keep getting in the way. And the police chief is of course another political figure, and follows Fraim's opinion that only criminals should have weapons.

 

[wjustinen]

No officer can possibly know all the laws.

Correct, however each officer has a responsibility to determine what the law actually says before making an arrest. That is particularly so when peoples' lives may be placed in jeopardy by his actions.

In addition, I believe that you may find - as is the case where I live - that an officer is forbidden to act in contravention of the law, whether by order of his superiors or the politicians running the government for which he works. It is his responsibility, and no one else's.

I recall many years ago being harassed on a firearms issue by a city police sergeant acting on political orders. He was smart enough to sit down with me and look at the Criminal Code. He then took his leave and left me in peace. Unfortunately the officer in question displayed considerably less sense.

 

[Lew]

Guarantee or speculate?

Guarantee.

Handcuffing during an arrest is not cruel or infamous
I can't see any point in discussing this with you if you can't do so with out the melodramatics

A few of us have actually been keeping up on this, myself included, as well as many goings on in Virginia. I will take Chet's and his wife's word on the abusive and disgusting nature (both spoke at the council meeting) with which he was arrested. It is not melodramatic.

Again, preemption dates from 20 years ago, and VCDL is very active in Virginia. Yes, I damn well guarantee they all know about it.

Cheers all, and happy weekend!
Lew

 

[joab]

Yes, I damn well guarantee they all know about it.

Guarantees require proof
Please present yours here

Maybe you think it's ok for police departments in general to treat people like Chet, his wife and his kids like this generally, or that they should "get off the hook" because they thought they were right.

Why does it always boil down to this
Perhaps you can show me where I have condoned the treatment of the family
I have commented on the arrest and nothing more
Others have tried to claim tortuous actions but have failed to demonstrate any evidence at all and have instead chosen o resort to melodramatic hyperbole not me
I have one point here and one point only
The officers demonstrated due care and acted in good faith. Until there is some kind of POOF to counter that claim I will give them the benefit of doubt due to the fact that it has been demonstrated that they did try to validate there position and the fact that the opposition accepts that it is a case of the officers not understanding the law

Correct, however each officer has a responsibility to determine what the law actually says before making an arrest.

You did read the part about them contacting the city attorney, the highest legal authority in their immediate chain of command, right?

 

[Deanimator]

You did read the part about them contacting the city attorney, the highest legal authority in their immediate chain of command, right?

What do you think would happen if my lawyer told me I never have to pay Federal income tax because I was born in Chicago, and I took that advice at face value?

You haven't absolved the cops who assaulted and tortured Chet. You've just thrown another perpetrator into the mix. He should be disbarred, THEN sued into oblivion. Any claim on his part that the didn't know the law is going to, to put it charitably, meet with extreme skepticism. Of course not knowing the law isn't a defense to prosecution anyway...

 

[joab]

the cops who assaulted and tortured Chet.

You are obviously just doing this for comic relief now

What do you think would happen if my lawyer told me I never have to pay Federal income tax because I was born in Chicago, and I took that advice at face value?

What authority does your lawyer have within the tax system?
Do y'all even try to think when you come up with these nonsensical comparisons?

What do you think would happen if the head of the IRS verifiable told you that same thing?

Or even better yet
What would your reaction be if the head of the IRS told somebody that they didn't have to pay taxes and when that was found to be an error on the part of the head of the IRS a group tax payer haters called for that somebody to lose every thing he had worked for and have his head put on a federal pike?

 

[Deanimator]

What do you think would happen if the head of the IRS verifiable told you that same thing?

If I followed his advice, I'd be prosecuted for tax evasion. At a MINIMUM, I'd owe the taxes.

Bad advice by IRS officials does not absolve you of tax obligations.

Don't believe me? ASK them.

 

[legaleagle_45]

Bad advice by IRS officials does not absolve you of tax obligations.

The law, for whatever reason, has usually held that you can not rely upon the government to give you accurate advice...

I believe that the strictness of that rule has been lessened somewhat by the Taxpayer's Bill of Rights to the extent that if you reasonably rely upon IRS advice you will not be criminally liable, nor will civil penalties be applied. You will still have to pay the full amount of the tax plus applicable interest, however...