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Jackson Miller on HB2943
By Greg L | 16 February 2007 | Virginia Politics | 20 Comments
Delegate Jackson Miller weighed in on the HB2943 discussion and deserves a little more prominence than being buried in the comments section of a post. For those unsure about what this is all about, here’s the real story from the author of the legislation:Greg, thanks for the call about this raging controversy on your blog. After reading the Tony’s pizza posts I felt I should jump on real quick and try to explain the reason and background for hb2943. Obviously I have been very busy lately and havent had the chance to read the blogs.
Hb2943 stems from the VA Supreme Ct. decision of Moore vs. Commonwealth which was decided a little over 3 months ago (nov 06). (btw, this bill has nothing to do with my immigration bills. It is strictly a criminal justice bill) Moore v Comm. basically says that police in Va. MUST release a misdemeanant on a summons commited in the officers precense, rather than give the officer the discretion to take the suspect into custody and bring him before a magistrate. Yes, there are many exceptions that I believe both Mack, and Mike S. mentioned. However, it does take away the officers discretion to take a suspect into custody in many cases where I believe a person should be brought to jail.
Prior to Moore v. Comm police/deputys in Va. (along with no objections from their respective circuit courts) were able to use their discretion to either release a person on a summons, or take a person into custody if that person committed a misdemeanor in their presence.
Keep in mind please, I am only keeping the discretion that law enforcement in Va. had prior to November of last year with this bill. I AM NOT suddenly giving law enforcement new sweeping powers that erode our liberty.
I will gladly give you an example of where the Moore decision would harm the safety of our Commonwealth ;
Ten at night, Officer Jones observes a suspect pressing his face
up against the bedroom window of your neighbors house. The
perpetrator is peeping (only a class 1 misdemeanor) at your
neighbors wife while her husband is away on a business trip.
Officer Jones arrests the suspect for peeping. The suspect has
valid I.D. and promptly promises the officer that he will gladly
appear in court for the charge.
Under Moore V. Comm. Officer Jones now MUST release the perpetrator
on a summons. Prior to Moore V. Comm. Officer Jones could
use his discretion and take the perp to jail.
I cant even begin to imagine what that female victim would be thinking as she watched officer Jones hand the suspect a piece of paper and let him walk on down the street.
Philip, Mack, and Mike, I have probably made a couple thousand misdemeanor arrests in my career as a Police Officer. Some very similar to the example above. I would have to say I probably released %90 of them on a summons. With hb2943 I am simply trying to keep the discretion that our Law Enforcement Community enjoyed prior to Nov. of last year.
Philip, on your previous post I couldnt agree with you more. Just remember though I am not creating new police/nanny state powers. I am only restoring the discretion police had prior to Nov. of last year.
You also state, “Its not the average officer we worry about, but the rogues.” I am stunned to hear you say that. THE ROGUES WILL STILL BE ROGUES, REGARDLESS OF MY BILL. Your arguement comes right out of the playbook of handgun control inc. What we have now under Moore v. Comm is the loss of our good officers ability to take some bad people to jail.
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Greg,
May God bless Jackson Miller and all the good law enforcement officers who are protecting us every day 24/7/365.
Haaaaa , I have come to love Miller (for his brave stand on immigration) and will still continue to encourage my friends in Manassas to vote for him. But this is hilarious. The nutty gun groups start to attack Miller who has made the political mistake of being such a hardcore pro-gun guy.
Hey Miller, you lay in the bed with dogs, your gonna get fleas.
It appears that VCDL has gotten off the course of being a second amendment organization. This is not really such a gun issue, its more of a pure libertarian issue.
Even with the VCDL opposition blitz it seems that all of the solid gun legislators have ignored VCDL’s requests. Miller got 73 votes in the house including most of the moderate/conservative democrats. The only ones to vote against the bill were the million mom march types - Amundson, BaCote, Brink, McEachin, Ebbin, Melvin, Plum, Watts, etc. etc. These are all the delegates who would gladly repeal the second amendment. Very odd it seems.
Has the VCDL become a fringe group in Richmond with no influence? Or have they joined sides with the liberals?
Anon, I read in the other thread a great point. The VCDL has become anti police. Just read some of Mike Stollenwack’s comments. He sounds like a member of the black panthers foaming at the mouth against the man (evil law enforcement officers.)
I must give Van Cleve some credit. He is wrong but at least he is trying to be level headed about the whole thing.
“With hb2943 I am simply trying to keep the discretion that our Law Enforcement Community enjoyed prior to Nov. of last year.
Philip, on your previous post I couldnt agree with you more. Just remember though I am not creating new police/nanny state powers. I am only restoring the discretion police had prior to Nov. of last year”
That is false.
A reading of the law, under the rules of statutory construction clearly shows that there already *IS* discretion in the existing statute
From the existing 19.2-74
“if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82
…
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 § 19.2-82″
when the court ruled in Moore, the court reasoned that the law meant what it said, not some made up fantasy as they have done some instances in the past - Esteban, Leith & Schaaf to name 3.
Other than the exceptions listed, the arresting officer is to release the misdemeanant on a recognizance bond(citation). If he believes that the person will not show, constitues a danger to himself or society then a custodial arrest is called for and the officer would have the discretion to do so.
Anyone who has made such an arrest for a class 1 or 2 misdemeanor not meeting one of these limited exceptions wasn’t themselves exercising discretion, rather they were - as the Virginia Appeals court said in Brown, ‘committing a battery upon the person (being arrested) in the act of an unlawful arrest’.
Isn’t this statutory power just the power that was stricken by the state supreme court in November, and is to be restored through this bill?
So far I haven’t seen anyone dispute that the court decision rescinded the authority of an officer to exercise his discretion with serious midemeanants. Critics have solely addressed the authority available before the decision, which is immaterial. If the authority available to police officers before November’s decision was good, how is ot that restoring that power now bad?
MUCHACHOS,
Notice again, how VCDL members go out for a night of “good fellowship” dining and premeditatedly carry certian “Letters of Mark” that they “just happen to have” with them,when they create a furor with some dumb cops and an overly excitable citizen. Then during the earlier threads the VCDL,through statements by Comandante Stollenwerk and Comandante Van Cleave, attack Jackson Miller’s
HB2943. Some BIG COINCIDENCE, No? Muchachos, when was the last time YOUwent to dinner at Tony’s with “Letters” in YOUR pocket and guns strapped on YOUR hips? Comandante Van Cleave even admits VCDL has been plotting to kill HB2943 for some time. Even,he admits, consulting with many ADOGABOS (lawyers). Some BIG COINCIDENCE….NO??? Only Sergent Garcia or Sergent Schultz (from Hogan’s Heros) would be dumb enough to think this provocation is a COINCIDENCE, No?
Beware When The Moon Shines Bright!!
Z
Greg,
The court didn’t rescind anything. When the court tries to determine intent (of the General Assembly) it uses either ‘the plain, obvious, rational meaning’ or a definition existing in the specific statute, elsewhere in the chapter, or within the VA code. If none of these exist, then the court will attempt to “interpret” what the Assembly meant when it wrote the law. They do this by the “rules of statutory construction”. One of these is “the inclusion of one thing in a statute necessarily means the exclusion of another”. If an officer may arrest for “a, b, or c” then by law that officer may NOT arrest for “d”. The __existing law__ clearly spells out which circumstances an arrest may be escalated to custody level for should the offense be equal or greater than a class 2 misdemeanor. Other circumstances that a custodial arrest occur for are 1: illegal. 2: criminal battery.
There’s a great deal of spinning going on here. Check out www.virginia1774.org. Rudy, the founder, has probably the best breakdown of the rules of statutory construction, legal rulings, AG opinions, etc. Do the research for yourself.
Again, HB2943 would not restore any authority to police officers to effect a custodial arrest for class 1 or 2 misdemeanors, this authority did not generally exist previously. This bill will create NEW arrest requirements. The General Assembly website, as well as Virginia1774 have a breakdown on the actual meaning of the words “may” and “shall” in a statute. The former is discretionary, the latter means required.
El Zorro,
How do you say, “black helicopters” in Spanish?
Greg, Mr. Y is correct, the Court did not rescind anything at all. They interpreted the statute differently than law enforcement and the courts in the Commonwealth had been interpreting the statute up until Moore V. Commonwealth.
The Supreme Court is not saying, “Custodial arrests for misdemeanors is outrageous and must stop now.”
They are basically saying, “Sorry VA. law enforcement, the way the code is currently written you must release on a summons. Change the code if you want to make custodial arrests.”
(I probably shouldnt have used quote marks above, but its close to the point.)
HB2943 could be considered a “clean up” bill that is simply allowing police and deputy’s in Va. to continue to have the discretion they used prior to Nov. of last year. This bill is re-working the languge that our Supreme Ct. said was different than how it was being applied by police in VA.
Philip, if your best arguement against this is the “rogue cop” as you repeated in the earlier thread, I will again say that is a very disapointing example. It starts to reveal what could be interpreted as inherent distrust for our officers. Worse yet, its the same arguement Hand Gun Control inc. uses against our law abiding gun owners. They want to repeal the second amendment not because of the guns that Jackson Miller and Philip Van Cleave own. We are two of the nice and responsible gun owners after all. They want to repeal the second amendment because of the “rogue gun owners”. The ones who will just shoot you because they have a chip on thier shoulder or they dont like the way you look at them.
I would strongly agree with the earlier post that this not a second amendment issue but more a libertarian issue.
Senor Fenian,
Just because Comandante Stollenwerk and Comandante Van Cleave are misguided on HB2943 (maybe they took advice from estupido adogabos) is no reason for you to be gleeful. Comandantes S & V do plenty good work beating back anti-gun CUCARACHAS (cockaroaches) like yourself. When was the last time one of your CUCARACHA pals got elected to a statewide position, No? Comandante Stollenwerk and Comandante Van Cleave kick CUCARACHAS’ CULO (ass), NO?
As far as NEGRO HELICOPTEROS…..Z has plenty of fire power and big cartuchos to take care of them.
Beware when the Moon Shines Bright!!
Z
el Zorro, Gov. Kaine used tax payers money to bus people from richmond to the million mom march rally in wash D.C. when he was governor of richmond. I seem to remember him winning a statewide election recently.
sorry, meant to say mayor of richmond.
Senor Anonimo,
Z…must have been blind and deaf during the last statewide election. Dummyrats…er DEMOCRATAS seem to have learned that anti-gun plataforma not such a good idea outside of Peoples Republic of Alexandria, where the MORON..er MORAN twins rule. This doesn’t mean anti-gun CUCARACHAS have left Virginia for Chiapas (sourthern most state in my old country ruled by Zapatista Marxists) but the CUCARACHAS have just crawled under rocks and only come out at night to eat BASURA (garbage). Comandantes Stollenwerk and Van Cleave are in large measure to credit for CUCARACHAS hiding, NO?
Beware When The Moon Shines Bright!!
Z
Delegate Miller:
You are making statements about Moore that are factually incorrect. If Greg would stop deleting my comments, you would have seen that.
You and other officers haven’t had that discretion since 1974. The courts have upheld that since at least 1999. In particular, read Farrow v. Commonwealth 02/22/2000:
http://www.courts.state.va.us/opinions/opncavwp/0212982.doc
West v. Commonwealth 07/24/2001:
http://www.courts.state.va.us/opinions/opncavwp/1405001.doc
and Spiers v. Sydnor (2001):
http://pacer.ca4.uscourts.gov/opinion.pdf/001712.U.pdf
I asked Colonel Richard H. Black what he thought about HB2943. Here is what he said:
“HB 2943 grants new arrest authority for misdemeanor crimes. It is an unwarranted expansion of police authority. This goes beyond traditional arrest authority and seems subject to abuse.
“I believe Virginia’s present arrest rules reflect long-standing common law. I’m aware of no sound basis for enlarging the coercive power of the state. This bill seems to be a solution in search of a problem.”
–dick
When we talked on the phone, he went further and described your bill as a “radical expansion of power” — we both agree it will lead to persecution of Christians in Virginia. Actually, that’s already happening. Do you care?
As I stated in the deleted comment, Moore restores the Rule of Law — that’s a good thing. For those who don’t know, Justice Carrico is not some bleeding heart judicial activist; he knows what he’s doing.
And as for trust, Delegate Miller, that’s a two-way street.
And as for you, Greg: stop deleting my comments. That’s rude.
[Ed note: I reserve the right to edit or delete comments when I feel they detract from the conversation, unfairly malign others, or otherwise reduce the quality of the discussion. My “rudeness” only comes into play when the rudeness of others require it.]
HB2943 could be considered a “clean up” bill that is simply allowing police and deputy’s in Va. to continue to have the discretion they used prior to Nov. of last year. This bill is re-working the languge that our Supreme Ct. said was different than how it was being applied by police in VA
Once again, this is simply a mischaracterization.
The law DID NOT ALLOW law enforcement in Virginia to arrest for class 1 or 2 misdemeanors unless one of the exemptions mentioned above existed. The existing code indicates that the last two revisions occurred in ‘95 & ‘88 respectively. Without going into a full review of the legislative history, the law has been this way for decades now. HB2943 would not “clean up” anything in any sense of the phrase. Rather, it would create a new requirement to arrest for the literally hundreds of offenses in the Virginia code.
Every time you hear about a “critical tool for law enforcement” remember what the Virginia State Police Supt. said when he testified at the General Assembly to lobby for a mandatory seat belt law: “I cannot envision ever needing the seat belt law to be primary enforcement”…
To my knowledge, every year since secondary seat belt enforcement has passed, VSP has lobbied to get primary enforcement.
As to the disappointment of the ‘abusive law enforcement’, VCDL does have a stake in ensuring that a person is not arrested for what the officer _thinks_ is a class 1 misdemeanor, but is not. One need only look back as far as 2004, and JM you can search the VA Alert archives for this. 2 people were carrying openly in Starbucks in Fairfax County, were issued 2 class 1 misdemeanor citations, firearms seized. Within 3 months, Champps of Reston - 8 units dispatched. It ended peacefully, but VCDL research revealed that the officer on the phone was on the phone to the magistrate attempting to convince them that they could issue a citation for a violation of 18.2-287.4(since amended) again a class 1 misdemeanor. Not 2 weeks after, 2 people were detained in Reston Town Center. Just this past year we’ve had Staunton, Smithfield & Manassass city so characterizing the ‘abusive law enforcement officer’ incident as rare is less than truthful. Granted, some of them may not know the law, but that’s no excuse.
Oh, and Zorro, brandishing is also a class 1 misdemeanor even when done to black helicopters.
So we have a correct, by-the-book court ruling in Moore and a bill that would actually remove discretion from the statute being forwarded as a “clean up” bill. Read the Moore decision here: http://www.courts.state.va.us/opinions/opnscvtx/1052619.txt
here’s what the AO said “..it was “[j]ust our prerogative, we chose to effect an arrest.”
As statutes go, 19.2-74 is pretty easy to read. The use of the words “may” and “shall” in a statute has been settled law since the early days of the Republic itself and the summons for misdemeanor arrests is part of the common law - in this case codified - which pre-dates our republic. The position that this is restoring something, or correcting something is just untenable. The officers in Moore erred, and pushed a bad situation. While the trial court found the facts that Moore had contraband in his possession, the fact remains that Moore was unlawfully assaulted when the officers put the cuffs on him (consistent with VA courts’ Brown v. Commonwealth) and took him to jail. That’s abuse. That’s how we got here, and the last thing we want to do is encourage or in this case REQUIRE more of it.
Zorro, do you hear a chopper?
MUCHACHOS,
Why keep asking Z ..about Helicopteros? Your Coronel Ricardo H. Black is a famous pilot of such flying things. Ask him, No?
Beware When The Moon Shines Bright!!!
Z
MUCHACHOS,
As reported below in Senor Greg thread ,VCDL pal Sendaor STOLLE and others, kill Miller’s Bill to arrest Class 1 & 2 Midemeanants. Today (2/22/07) in Manassas Journal report that alleged criminal brandish firearm at two citizens. Alleged criminal reportedly by paper released on summons, no arrested. See VCDL and STOLLE work product by killing Miller Bill? How you feel if some thug stick gun in your face and walk away with ticket to appear, like thug “speeding”? Nice work VCDL and Sendaor STOLLE.
Today Z…also go on-line to VCDL web Site. At least VCDL web site polite to citizens. Then Z… go look at Commandante Mike Stollenwerk web-site at OPENCARRY.org (at least Z..got immpression that Commandante Stollenwerk in charge) Maybe not? Some body Named “MIKE” claimed to be “SUPER MODERATOR”. Citzens on OPENCARRY.ORG don’t seem polite to Z…. Citizens seem mucho “angry”. Maybe need counseling,No? How can such “angry” citizens get concealed carry permit, No? Some pollicia make talk going by name “LEO 229″. Try to talk with “kindness and respect” on web-site. Many opencarry.org “angry” open carry citizens seem to Z…very hostile. Don’t take Z’s word go to www.opencarry.org and look for talk about “Manassas 7″. Minority nice…majority seem to Z…”mad” citizens. “Angry”, NO? What “LEO 229″ do or say except to dedicate his life to protect innocente citizens, No?
Now, VCDL and OPENCARRY.org plan big protest at Manassas City Council Feb.26th(according to web-sites). Just Good! First illegal aliens from out of town and ACLU types squawk at City Council. Then Homsexual Message Home Business Applicant, out of town friends and ACLU types squawk at City Council.(Strike Two). Now VCDL and Opencarry.org (and maybe ACLU types who like to kill Miller’s Bill too) come to squawk at City Council Meeting(foul ball or strike three?). Poor City Council Members never time do work. Always listen to out-of-towners squawk at meetings. OPENCARRY.ORG make Plea to local members to show-up because they know City Council sick of hearing out-of-towners squawk. Who knows who comes? Maybe VCDL can use black Helicopteros bring citizens from South Virginia. Maybe Coronel Ricardo H. Black fly citizens? Z..want ride!! City council better have plenty extra chairs for meeting. Or…Maybe Z…Mistaken, No?
MUCHACHOS,
Z….Sorry. Article about alledged thug with gun in Manassas Journal 2/23/07.
Beware when The Moon Shines Bright!!!
Z