This site is only an information site on the law in Virginia. The following information is not intended as legal advice and should not be relied upon as accurate or current. Consult an Attorney, or the Commonwealth's Attorney's Office or the Office of the Attorney General.
Docket Information for District of Columbia et al., v. Heller
Brief of The District of Columbia et al. Petitioners, Jan 4, 2008.
Brief of the United States in Support of the District of Columbia et al., Jan 11, 2008
Brief of Dick Anthony Heller, Respondent, Feb. 4, 2008.
Amicus Curiae Brief of Virginia1774.org, Feb 8, 2008 Reprint Feb 11, 2008
Amici Briefs In Favor of Petitioner
Amici Briefs in Favor of Repondent
Reply Brief of Petitioners : March 5, 2008
Transcript of the Oral Arguments March 18, 2008
Audio of the Oral Arguments by the Supreme Court .MP3
Media/Internet Articles of the Historic Case
June 29, 2008
Virginia Laws of Note that Change on July 1, 2008.
§18.2-308. Personal protection; carrying concealed weapons; when lawful to carry.
The Changes made:
§18.2-308(B)(7) Add Capitol Police: "any officer retired from the Division of Capitol Police "
See Also:
§18.2-308(B)(7) Service Disability for any Law Enforcement: "(iv) who is on long-term leave from such law-enforcement agency or board due to a service-related injury, An officer set forth in clause (iv) of this subdivision who receives written proof of consultation to carry a concealed handgun shall surrender such proof of consultation upon return to work or upon termination of employment with the law-enforcement agency. Notice of the surrender shall be forwarded to the Department of State Police for entry into the Virginia Criminal Information Network. However, if such officer retires on disability because of the service-related injury, and would be eligible under clause (i) of this subdivision for written proof of consultation to carry a concealed handgun, he may retain the previously issued written proof of consultation.
§18.2-308(B)(9), Exempt Commonwealth Attorney from the Law: "Any attorney for the Commonwealth or assistant attorney for the Commonwealth, wherever such attorney may travel in the Commonwealth."
§18.2-308(G), Proof of Competency: "nor shall any proof of demonstrated competence expire:"
§18.2-308(I), Permit Renewal: "If the new five-year permit is issued while an existing permit remains valid, the new five-year permit shall become effective upon the expiration date of the existing permit, provided that the application is received by the court at least 90 days but no more than 180 days prior to the expiration of the existing permit."
§18.2-308(J). Revocation of Permit: "Upon receipt of such notice of a conviction, the court shall revoke the permit of a person disqualified pursuant to this subsection, and shall promptly notify the State Police and the person whose permit was revoked of the revocation."
§18.2-308(J4). Revocation of Permit: "The court shall revoke the permit of any individual for whom it would be unlawful to purchase, possess or transport a firearm under 18.2-308.1:2 or 18.2-308.1:3, who holds a concealed handgun permit, may have the permit suspended by the court that issued the permit during the period of incompetency, incapacity or disability and shall promptly notify the State Police and the person whose permit was revoked of the revocation."
§18.2-308(K1), Renewal: "K1. The clerk of a circuit court that issued a valid concealed handgun permit shall, upon presentation of the valid permit and proof of a new address of residence by the permit holder, issue a replacement permit specifying the permit holder's new address. The clerk of court shall forward the permit holder's new address of residence to the State Police. The State Police may charge a fee not to exceed $5, and the clerk of court issuing the replacement permit may charge a fee not to exceed $5. The total amount assessed for processing a replacement permit pursuant to this subsection shall not exceed $10, with such fees to be paid in one sum to the person who accepts the information for the replacement permit."
_________________The Changes Made §18.2-308.1:1(A)(iii).
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§18.2-308.2. Possession or transportation of firearms, stun weapons, explosives or concealed weapons by convicted felons; penalties; petition for permit; when issued. Strike the words, "on or after July 1, 2005".
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§18.2-308.2:01. Possession or transportation of certain firearms by certain persons.
The Changes Made §18.2-308.2:1.
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§18.2-308.2:1. Prohibiting the selling, etc., of firearms to certain persons.
The Changes Made §18.2-308.2:1.
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The Changes Made §18.2-308.2:2(A)(iii). See also §18.2-308.2:2(A)(iii)
June 26, 2008
District of Columbia Handgun Ban Violates The Second Amendment
The Right of the People A synopsis of the historic case.
June 23, 2008
Right to Counsel Begins When Criminal Defendant is Brought Before a Judicial Officer
Rothgery v. Gillespie County, Texas, 554 U. S. ____ (2008).
"Although petitioner Walter Rothgery has never been convicted of a felony, a criminal background check disclosed an erroneous record that he had been, and on July 15, 2002, Texas police officers relied on this record to arrest him as a felon in possession of a firearm. The officers lacked a warrant, and so promptly brought Rothgery before a magistrate judge, as required by Tex. Crim. Proc. Code Ann., Art. 14.06(a) (West Supp. 2007)...The magistrate judge informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond. The bond, which the Gillespie County deputy sheriff signed, stated that "Rothgery stands charged by complaint duly filed ... with the offense of a ... felony, to wit: Unlawful Possession of a Firearm by a Felon." Id., at 39a. The release was conditioned on the defendant's personal appearance in trial court "for any and all subsequent proceedings that may be had relative to the said charge in the course of the criminal action based on said charge." Ibid. Rothgery had no money for a lawyer and made several oral and written requests for appointed counsel, which went unheeded. The following January, he was indicted by a Texas grand jury for unlawful possession of a firearm by a felon, resulting in rearrest the next day, and an order increasing bail to $15,000. When he could not post it, he was put in jail and remained there for three weeks. On January 23, 2003, six months after the article 15.17 hearing, Rothgery was finally assigned a lawyer, who promptly obtained a bail reduction (so Rothgery could get out of jail), and assembled the paperwork confirming that Rothgery had never been convicted of a felony. Counsel relayed this information to the district attorney, who in turn filed a motion to dismiss the indictment, which was granted...
The Sixth Amendment right of the "accused" to assistance of counsel in "all criminal prosecutions" is limited by its terms: "it does not attach until a prosecution is commenced." McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); see also Moran v. Burbine, 475 U. S. 412, 430 (1986). We have, for purposes of the right to counsel, pegged commencement to " 'the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,' " United States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). The rule is not "mere formalism," but a recognition of the point at which "the government has committed itself to prosecute," "the adverse positions of government and defendant have solidified," and the accused "finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." Kirby, supra, at 689. The issue is whether Texas's article 15.17 hearing marks that point, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made...
Our holding is narrow. We do not decide whether the 6- month delay in appointment of counsel resulted in prejudice to Rothgery's Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Because the Fifth Circuit came to a different conclusion on this threshold issue, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion."
June 6, 2008
The King is Dead. The Sovereign Has Been Slain by the Self-executing Will of the People!
For the first time since June 12, 1776, the modern Virginia Supreme court today recognized the Sovereignty of the People as intended by the Virginia Bill of Rights and allowed a law suit seeking declaratory and injunctive relief to move forward without being blocked by the King's Prerogative. It has been the practice of the Office of the Virginia Attorney General to stand up in court and shout Sovereign Immunity! Sovereign Immunity! And the most egregious violations of our rights have been allowed to stand because of the Supreme Court's refusal to recognize the sovereignty of the people expressed in their Constitution.
Gray v. Virginia Secretary of Transportation, __ Va., __ S.E.2d __ (2008).
"The Commonwealth Defendants and the MWAA responded by filing demurrers and pleas in bar asserting, among other things, that the plaintiffs' claims are barred by the doctrine of sovereign immunity and that the circuit court, therefore, lacked jurisdiction to hear the action. In their memorandum opposing the demurrers and pleas in bar, the Plaintiffs argued that their complaint alleged not only "violations of the separation of powers clauses of the Virginia Constitution (Article I, [Section] 5 and Article III, [Section] 1)" but also a violation of Article IV, Section 1 pertaining to the delegation of the General Assembly's taxing power. The Plaintiffs claimed that these provisions of the Virginia Constitution are self-executing and thus constitute a waiver of the Commonwealth's sovereign immunity. The circuit court sustained the demurrers and pleas in bar and dismissed the complaint....
Thus, "as a general rule, the sovereign is immune not only from actions at law for damages but also from suits in equity to restrain the government from acting or to compel it to act." Hinchey, 226 Va. at 239-40, 307 S.E.2d at 894 (citing Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949)). "Sovereign immunity may also bar a declaratory judgment proceeding against the Commonwealth." Afzall, 273 Va. at 231, 639 S.E.2d at 282. And because the Commonwealth can act only through individuals, the doctrine applies not only to the state, but also to certain government officials. Messina, 228 Va. at 308, 321 S.E.2d at 661. "[H]igh level governmental officials have generally been accorded absolute immunity." Id. at 309, 321 S.E.2d at 661, accord Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 455, 621 S.E.2d 78, 96 (2005)...
If a constitutional provision is self-executing, no further legislation is required to make it operative. Gill v. Nickels, 197 Va. 123, 129, 87 S.E.2d 806, 810 (1955); City of Newport News v. Woodward, 104 Va. 58, 60, 51 S.E. 193, 193 (1905); see also Black's Law Dictionary 1391 (8th ed. 2004) (defining the term "self-executing" as "effective immediately without the need of any type of implementing action").In Robb v. Shockoe Slip Foundation, 228 Va. 678, 324 S.E.2d 674 (1985), we explained how to determine whether a constitutional provision is self-executing:
"A constitutional provision is self-executing when it expressly so declares. See, e.g., Va. Const. art. I, § 8. Even without benefit of such a declaration, constitutional provisions in bills of rights and those merely declaratory of common law are usually considered self-executing. The same is true of provisions which specifically prohibit particular conduct. Provisions of a Constitution of a negative character are generally, if not universally, construed to be self-executing. . . ."
The fact that a self-executing constitutional provision is operative without the need for supplemental legislation means that the provision is enforceable in a common law action. Compare Kitchen, 275 Va. at 392, 657 S.E.2d at 140 (holding that a self-executing provision "permits a property owner to enforce his constitutional right to just compensation in a common law action"), with Robb, 228 Va. at 683, 324 S.E.2d at 677 (dismissing a bill of complaint because a constitutional provision was not self-executing). The constitutional provisions at issue in this case place duties and restrictions upon the Commonwealth itself and its departments. To give full force and effect to the provisions as self-executing, a person with standing must be able to enforce them through actions against the Commonwealth. Thus, we further hold that the self-executing constitutional provisions before us waive the Commonwealth's sovereign immunity...
We hold that Article I, Section 5; Article III, Section 1; and Article IV, Section 1 are self-executing constitutional provisions and thereby waive the Commonwealth's sovereign immunity. Because the Plaintiffs do not challenge the circuit court's finding that the doctrine of sovereign immunity applies to the MWAA, our conclusion applies only to the Commonwealth Defendants. Thus, we will reverse the judgment of the circuit court with regard to the Commonwealth Defendants and remand this case for further proceedings."
Presence of Firearms Do Not Constitute Fortifying a Drug House
Jones v. Commonwealth, __Va., __ S.E.2d __ (2008).
"The statute at issue in this appeal, Code § 18.2-258.02, provides:
Any office, store, shop, restaurant, dance hall, theater, poolroom, clubhouse, storehouse, warehouse, dwelling house, apartment or building or structure of any kind which is (i) substantially altered from its original status by means of reinforcement with the intent to impede, deter or delay lawful entry by a law-enforcement officer into such structure, (ii) being used for the purpose of manufacturing or distributing controlled substances or marijuana, and (iii) the object of a valid search warrant, shall be considered a fortified drug house. Any person who maintains or operates a fortified drug house is guilty of a Class 5 felony...
The statute at issue is not ambiguous. However, the phrase "substantially altered from its original status" is not defined. Thus, we give that phrase "its ordinary meaning, given the context in which it is used." Sansom v. Board of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Department of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). "The context may be examined by considering the other language used in the statute." Sansom, 257 Va. at 595, 514 S.E.2d at 349 (quoting City of Virginia Beach v. Board of Supervisors, 246 Va. 233, 236-37, 435 S.E.2d 382, 384 (1993))...
It is without question that the stove and 2 X 4 board wedged between the house's rear door and a stairway, as well as the screwdriver inserted into the door's latch, reinforced the door and impeded lawful entry by the police officers who were executing a search warrant for the house. However, those items as they were used in this case did not substantially alter that structure from its original status any more so than wedging a chair beneath the door's handle would have.2
2. The evidence also showed that several firearms were found in the house during execution of the search warrant and that individuals inside the house took shifts protecting it. While such measures may fortify a house and impede lawful entry by police officers, they also do not fall within the ambit of Code § 18.2-258.02.
May 14, 2008
Being in a High Crime Area is Sufficient Reason to Conduct a Terry Stop For a Possible Concealed Weapon Under Virginia's Concealed Handgun Law
United States v. Black __ F.3d __ (4th Cir. 2008).
"But when a police officer, during a voluntary encounter or otherwise, "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot," the officer may temporarily seize and detain a citizen. Terry, 392 U.S. at 30. Moreover, in connection with such a seizure or stop, if presented with a reasonable belief that the person may be armed and presently dangerous, an officer may conduct a protective frisk. Adams v. Williams, 407 U.S. 143, 146 (1972); see also Mayo, 361 F.3d at 806-07. In determining whether a Terry stop is supported by reasonable suspicion, we determine whether the "totality of the circumstances" presented the detaining officer with a "particularized and objective basis" to conclude that a crime may have been committed or was being committed. Mayo, 361 F.3d at 805 (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)) (internal quotation marks omitted).
In this case, during the encounter with Black, which was initially voluntary, Detective Adams was presented with the following circumstances, all of which were known or experienced before Adams effected a Terry seizure of Black:
First, the encounter occurred in a high-crime area that Detective Adams knew to be a locus of drug and firearm related criminal activity. His patrol arrived in the area as part of a Richmond initiative to reduce violent crimes, and he personally had made numerous arrests in Mosby Court.
Second, when police initially spoke with Black, he had his left hand out of his pocket and his right hand awkwardly inserted halfway in his right-hand pocket, "cupped" as if "grasping an object."2
Third, Black hesitated to remove his hand from his pocket, without saying either yes or no, in response to Detective Adams' request.
Fourth, after Black did remove his hand, Detective Adams saw a bulge which was "6 to 8 inches long along the bottom of the pocket," "1 to 1 1/2 inches high," and "appeared to have a flat side." Detective Adams stated that he suspected the object was a firearm.
Fifth, Black apparently lied about what the object in his pocket was, stating first that he had "nothing" in his pocket and then stating that it was "money and my ID." Neither answer explained the large bulge.
Sixth, after Detective Adams engaged Black in the conversation and Black surely recognized that Detective Adams did not believe his statements about what was in his pocket, Black put his hand back in the pocket where the suspected gun was.
In the totality of these circumstances, we conclude that Detective Adams had a reasonable suspicion that Black had a firearm concealed in his pocket, in violation of Virginia law, and therefore was justified in conducting a Terry stop and patting Black down. See Mayo, 361F.3d at 807 ("But the fact that Mayo removed his hand from his pocket did not reduce the level of suspicion that the officers had that Mayo was violating the law by carrying a concealed weapon without a permit.") (emphasis omitted). Surely, there could be other explanations for Black's actions and what the officers observed, but a reasonable suspicion need not rule out all innocent explanations; it need only be a suspicion, albeit a reasonable one. As the Supreme Court has stated, "A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct." Arvizu, 534 U.S. at 277. Even where each individual factor "alone is susceptible of innocent explanation," the question is whether, "[t]aken together," they are sufficient to "form a particularized and objective basis" for an officer's suspicions. Id. In the totality of the circumstances noted, we conclude that Detective Adams had a reasonable articulable suspicion that Black was concealing a firearm, and with that suspicion, he was then entitled, in the circumstances of this case, to pat Black down for the officers' safety. See Adams, 407 U.S. at 146; Mayo, 361 F.3d at 806-07."
Judge Gregory's Dissenting Opinion:
"I cannot accept that Fourth Amendment protections are suspended or reduced in so-called "high-crime" neighborhoods. Because the majority's opinion significantly lowers those constitutional protections for law-abiding citizens who, by choice or for reasons beyond their control, live in high-crime areas, I am compelled to dissent.
...It is undisputed that upon first seeing the officers, Black continued on his way and exhibited no suspect or evasive behavior. Neither the officers nor the Government point to any evidence in the record linking Black to seemingly criminal activity prior to his encounter with the police. Yet despite Black's compliance, the police continued to question him, apparently unnerved that Black was "cupping" his hand in his pocket on that cold December evening.
The majority writes that Officer Adams asked Black to take his hand out of his pocket because Adams was "concerned about the possibility of a weapon in Black's pocket." (Majority Op. 3.) However, "cupping" a hand does not indicate that one is carrying anything at all. Rather, cupping is the natural, relaxed position of a hand when placed in the warmth of a pocket. As such, to expect a man with his hand in his pocket to hold that hand stiffly open defies common sense. It would be far more unusual, and therefore suspicious, to observe someone holding his hand in his pocket in a completely straight and rigid position. Furthermore, as Black's counsel noted during oral argument, Black's having his hand cupped in his pocket is behavior completely consistent with the temperature on a winter evening in Richmond. In short, a "cupped" hand is nothing more than a relaxed hand and cannot create the sort of reasonable articulable suspicion required to justify a police search and seizure.
Without any suspicious behavior on the part of Black to justify his seizure, the majority is left with a de facto rule that allows police to search and seize anyone who finds himself in a "high-crime area."...Thus, by making much of the fact that the events of this case transpired in a "high-crime" area notably near public housing projects the majority embarks on the treacherous path of lowering the Fourth Amendment protection afforded to people in low-income areas.
Because the interaction between Black and the police was no longer voluntary when Adams demanded that Black remove his hand from his pocket after Black initially failed to comply, I would hold Black was seized at that time and that the police lacked a reasonable articulable suspicion for seizing and searching Black."
April 23, 2008
State Law Against Arrest does Not Implicate 4th Amendment Seizures When Probable Cause Exists to Arrest Suspect. Violation of State Law Against Arrest Creates A Cause of Action For Disciplinary Action and Tort Actions Against the Individual Arresting Officers
Virginia v. Moore __ , US __ Sp. Ct (2008).
" Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U. S. 218 (1973). We have described this rule as covering any “lawful arrest,” id., at 235, with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid. (emphasis added). Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. See Brief for Respondent 32–33 (citing People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923); People v. DeFore, 242 N. Y. 13, 17–19, 150 N. E. 585, 586 (1926)). But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson used “lawful” as shorthand for compliance with constitutional constraints. The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” Robinson, supra, at 234–235. Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls here. The state officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Robinson, supra, at 235."
Justice Ginsburg Concurring in the Opinion:
" I agree with the Court’s conclusion and its reasoning, however, to this extent. In line with the Court’s decision in Atwater v. Lago Vista, 532 U.S. 318, 354 (2001), Virginia could have made driving on a suspended license an arrestable offense. The Commonwealth chose not to do so. Moore asks us to credit Virginia law on a police officer’s arrest authority, but only in part. He emphasizes Virginia’s classification of driving on a suspended license as a nonarrestable misdemeanor. Moore would have us ignore, however, the limited consequences Virginia attaches to a police officer's failure to follow the Commonwealth's summons only instruction. For such an infraction, the officer may be disciplined and the person arrested may bring a tort suit against the officer. But Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons."
April 18, 2008
Reasonable Suspicion for a Pat Down (Terry) Search for Weapons Does Not Include Being in A High Crime Area
McCain v. Commonwealth, __Va. __, S.E.2d __,__ (2008).
"A person’s Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a “high crime” area. Despite the neighborhood, the activity Worsham observed on Sublett’s Alley was not sufficient to stop McCain because of a reasonable suspicion of criminal activity. However, Worsham did have a legitimate basis for stopping the vehicle McCain was traveling in.
An officer may effect a traffic stop when he has reasonable suspicion to believe a traffic or equipment violation has occurred. Bass, 259 Va. at 475, 525 S.E.2d at 923-24. Here, Worsham had probable cause to stop the vehicle in which McCain was riding when Worsham observed both an equipment violation and a traffic infraction. Thus, although there was no reasonable suspicion of criminal activity on the part of McCain, stopping the vehicle in which McCain was traveling was constitutionally permissible because of the traffic and equipment violations that Worsham observed. During the course of a traffic stop, an officer may take certain steps to protect himself, such as asking the driver and any passengers to exit the vehicle. Maryland v. Wilson, 519 U.S. 408, 414-15 (1997). “[P]olice officers may also detain passengers beside an automobile until the completion of a lawful traffic stop.” Harris v. Commonwealth, 27 Va. App. 554, 562, 500 S.E.2d 257, 261 (1998) (citing Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d 256, 259 (1992)). An officer’s authority to order an occupant from a vehicle during a traffic stop is justified by the potential risks associated with traffic investigation that implicate safety concerns. Wilson, 519 U.S. at 413-14; see Pennsylvania v. Mimms, 434 U.S. 106, 110-11 (1977). There was nothing constitutionally improper about Thompson asking McCain to exit the vehicle, nor was it improper to detain McCain during the traffic stop. The resolution of McCain’s motion to suppress hinges upon the constitutional propriety of subjecting McCain to a seizure and pat-down search after he exited the vehicle. “Because a frisk or ‘pat-down’ is substantially more intrusive than an order to exit a vehicle, . . . an officer must have justification for a frisk or a ‘pat-down’ beyond the mere justification for the traffic stop.” United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998). An officer may not automatically search a driver or his passengers pursuant to the issuance of a traffic citation or in the course of a Terry stop, but he may frisk the driver and passengers for weapons if he develops reasonable suspicion during the traffic or Terry stop to believe the particular person to be frisked is armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 117-18 (1998); see Adams v. Williams, 407 U.S. 143, 146 (1972). “Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted.” Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990)...Nervousness during the course of a traffic stop, standing alone, is insufficient to justify a frisk for weapons, but “nervous, evasive behavior is a pertinent factor” for consideration in assessing the totality of the circumstances. Wardlow, 528 U.S. at 124 (citing United States v. Brignoni- Ponce, 422 U.S. 873, 885 (1975); Florida v. Rodriguez, 469 U.S. 1, 6 (1984); United States v. Sokolow, 490 U.S. at 8-9)).
Here, the circumstances establish that McCain was a passenger in a vehicle stopped for a relatively minor traffic infraction. Worsham and Thompson detained McCain solely because of the actions of the driver. Neither officer articulated a reasonable suspicion of criminal activity implicating McCain, and viewing the circumstances objectively, none existed. Also, McCain’s actions gave the officers no legitimate reasonable suspicion that he was armed and dangerous. Although the character of the location and the time are relevant factors, they did not provide either officer a particularized and objective basis for suspecting McCain was armed and dangerous....Although he may have appeared to be nervous, McCain identified himself when requested, did not make any furtive movements, and cooperated with the police officers until Thompson asked permission to do a pat-down search. The Supreme Court’s decision in Terry does not permit a generalized policy that authorizes a police officer to frisk all persons....Therefore, we hold that McCain was seized and frisked in violation of his rights under the Fourth Amendment, and his motion to suppress should have been granted.
Police Generally Have no Right To Enter Home For Protective Sweep When Defendant is Arrested Outside of the Home
Commonwealth v. Robertson, __VA. __, S.E.2d __,__ (2008).
"Christopher Shawn Robertson (“Robertson”) was charged with violating Code § 18.2-308.2, possessing a firearm after having been declared delinquent while a juvenile over the age of fourteen for a crime that would have been a felony if committed as an adult. He was also charged with discharging a firearm within city limits, in violation of Danville City Code § 40.3. Robertson filed a motion to suppress in the Circuit Court of the City of Danville. He contested the search of his home and sought to suppress the admission into evidence of a shotgun found in his home and photographs depicting spent shotgun shells found near the shotgun and holes in the ceiling of his home. The court denied the motion to suppress and convicted Robertson on both charges. Robertson appealed to the Court of Appeals, and the Court of Appeals, in a published opinion, reversed the circuit court’s judgment on the motion to suppress. Robertson v. Commonwealth, 49 Va. App. 787, 645 S.E.2d 332 (2007). The Commonwealth appeals...
The confrontation ended when police officers subdued Robertson with a “Taser” electric stun weapon as he was sitting on the windowsill with his legs hanging out of the window. After being stunned by the Taser, Robertson fell to the ground outside of his residence where he was placed into police custody. After being apprehended, Robertson told the officers, as had Cobbs, there “[a]in’t nobody else in the house.” No one asked Cobbs or Robertson for permission to enter their home, and neither of them voluntarily consented to the police entering the dwelling...
In this case, Robertson was arrested outside of his home. Given the information provided to the police by Robertson and Cobbs, and the officers’ observations during their extended standoff with Robertson, once Robertson was arrested, there were no articulable facts to indicate that Robertson’s home harbored anyone posing a danger to the individuals present at the arrest scene. The protective sweep exception is not applicable in this instance where the officers broke through the barricaded door of Robertson’s home, after apprehending Robertson. The Court of Appeals, therefore, did not err in ruling that the protective sweep exception does not apply in this case.... Here, the officers entered Robertson’s home after Robertson had been apprehended. Robertson and Cobbs had informed the police officers that there was no one else in the home, and perhaps more importantly, the officers’ observations during their extensive surveillance of the premises for an extended period of time, indicated that there was no one present in the home after Robertson’s arrest. Further, there was no reason to believe that contraband was about to be removed or destroyed, little danger to anyone left to guard the site, no likelihood of any suspect escaping, and no hot pursuit. Thus, there is no evidence of an exigency that justifies the officers’ breaking through the barricaded door of Robertson’s home without obtaining a warrant. The Court of Appeals, therefore, did not err in holding the exigent circumstances exception to the Fourth Amendment warrant requirement inapplicable. The officers’ search of Robertson’s home was in violation of Robertson’s rights under the Fourth Amendment. Additionally, the Court of Appeals correctly applied the proper standard of review."
April 8, 2008
Fear is not the Same as Apprehension in Brandishing a Firearm
Huffman v. Commonwealth, __, Va. App. __ S.E.2d __,__ (2008).
"Baron testified that Huffman was intoxicated and "just going off," that is, he was "[d]oing a lot of yelling and just being loud," all while holding the gun in his hand. Baron also witnessed Huffman load the two bullets in the gun. Baron explained that Huffman was angry and complaining because she and Caruso had arrived home a day later than expected from an out-of-state trip. In addition, Huffman wanted Caruso to leave with him, but Baron would not permit Caruso to do so.
Upon hearing a "commotion" from the direction of the driveway while working in his backyard, James went to investigate. He found Moon, Baron, Caruso, and Huffman in Moon's yard, with Huffman "raising Cain about something" and "waving a gun around." Among other things, James stated to Huffman, "why don't you put that gun down before you hurt somebody," at which time Huffman threatened to shoot James...
Huffman contends the evidence was insufficient to prove he violated Code § 18.2-282(A) as to Moon. We disagree.
As to the first element, Huffman does not challenge the fact that he brandished a firearm in Moon's presence, for purposes of Code § 18.2-282(A). As to the second element, however, he argues there was insufficient evidence to establish that he brandished a gun in such a manner as to induce fear in the mind of Moon.
This Court has held, in connection with robbery, that "'the word "fear" . . . does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Seaton, 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original).
In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (quoting Charles E. Torcia, 4 Wharton's Criminal Law § 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Moon was reasonably apprehensive of bodily harm induced by Huffman brandishing the gun in her presence. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.Seaton, 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon's request of Huffman to put his gun away was sufficient evidence of Moon's requisite apprehension of bodily harm."
March 18, 2008
Exceprt from Oral Arguments of District of Columbia et al. v. Heller
"I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed." - Justice Scalia
February 29, 2008
The "Plain Feel" Doctine to Search for Weapons/Contraband under a Terry Stop
Cost v. Commonwealth, __ Va. __,S.E.2d. __,__ (2008).
"The “plain feel” doctrine comports with the traditional application of the Fourth Amendment because, when the character of the object felt by the officer is immediately apparent either as a weapon or some form of contraband, the object is for all practical purposes within the plain view of the officer. The Fourth Amendment does not require the officer to be subjected unreasonably to the risk of harm from a dangerous weapon or to ignore criminal activity occurring in his presence...“However, an item may not be retrieved under the plain view doctrine unless it is ‘immediately apparent’ to the officer that the item is evidence of a crime...It is not sufficient probable cause to seize an item from inside the suspect’s clothing if the officer has no more than an educated “hunch” based upon the “plain feel” that the item might be contraband...Consistent with these principles, we have stated that “when the character of the item is not immediately apparent from the ‘pat[-]down’ search, and the officer does not reasonably suspect that the item is a weapon, further search regarding the item is not allowed [by the Fourth Amendment] because such an evidentiary search is unrelated to the justification for the frisk” of the suspect...Cost’s failure to respond to the officer’s questions is of no particular significance because Cost was under no obligation to respond to Davis’s questions. Moreover, Cost complied with Davis’s order to exit the vehicle and immediately consented to the pat-down search by Davis. In sum, whatever significance Cost’s actions may have had in supporting Davis’ suspicions regarding Cost under the totality of the circumstances, they relate to the justification for the pat-down search conducted by Davis for a possible concealed weapon. Whether those circumstances support the seizure of the capsules is another matter."
February 20, 2008
Interpretation of the US Constitution and Incorporation under the 14th Amend.
Danforth v. Minnesota ___ US (Sp Ct.)___ (2008)
"[F]or much of our Nation’s history, federal constitutional rights—such as the Sixth Amendment confrontation right at issue in Crawford—were not binding on the States. Federal law, in fact, imposed no constraints on the procedures that state courts could or should follow in imposing criminal sanctions on their citizens. Neither the Federal Constitution as originally ratified nor any of the Amendments added by the Bill of Rights in 1791 gave this Court or any other federal-court power to review the fairness of state criminal procedures. Moreover, before 1867 the statutory authority of federal district courts to issue writs of habeas corpus did not extend to convicted criminals in state custody. See Act of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385.
The ratification of the Fourteenth Amendment radically changed the federal courts’ relationship with state courts. That Amendment, one of the post-Civil War Reconstruction Amendments ratified in 1868, is the source of this Court’s power to decide whether a defendant in a state proceeding received a fair trial—i.e., whether his deprivation of liberty was “without due process of law.” U. S. Const., Amdt. 14, §1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law”). In construing that Amendment, we have held that it imposes minimum standards of fairness on the States, and requires state criminal trials to provide defendants with protections “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937) .
Slowly at first, and then at an accelerating pace in the 1950’s and 1960’s, the Court held that safeguards afforded by the Bill of Rights—including a defendant’s Sixth Amendment right “to be confronted with the witnesses against him”—are incorporated in the Due Process Clause of the Fourteenth Amendment and are therefore binding upon the States. See Gideon v. Wainwright, 372 U. S. 335 (1963) (applying the Sixth Amendment right to counsel to the States); Pointer v. Texas, 380 U. S. 400, 403 (1965) (holding that “the Sixth Amendment ’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment ”). Our interpretation of that basic Sixth Amendment right of confrontation has evolved over the years...We “turn[ed] to the historical background of the Clause to understand its meaning,” id., at 43, and relied primarily on legal developments that had occurred prior to the adoption of the Sixth Amendment to derive the correct interpretation. Id., at 43–50...
...Justice Scalia explained:
“I share [the dissent’s] perception that prospective decisionmaking is incompatible with the judicial role, which is to say what the law is, not to prescribe what [the law] shall be. The very framing of the issue that we purport to decide today—whether our decision in Scheiner shall ‘apply’ retroactively—presupposes a view of our decisions as creating the law, as opposed to declaring what the law already is. Such a view is contrary to that understanding of ‘the judicial Power,’ U. S. Const., Art. III, § 1, which is not only the common and traditional one, but which is the only one that can justify courts in denying force and effect to the unconstitutional enactments of duly elected legislatures, see Marbury v. Madison, 1 Cranch 137 (1803)—the very exercise of judicial power asserted in Scheiner. To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours ‘applies’ in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense. Either enforcement of the statute at issue in Scheiner (which occurred before our decision there) was unconstitutional, or it was not; if it was, then so is enforcement of all identical statutes in other States, whether occurring before or after our decision; and if it was not, then Scheiner was wrong, and the issue of whether to ‘apply’ that decision needs no further attention.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 201."
February 12, 2008
Police Officer is Guilty of Involuntary Manslaughter after Killing Man Who Was Not an Immediate Threat
Couture v. Commonwealth __, Va. App.__,__ S.E.2d __ (2008).
"Instruction No. 9 rests on the settled proposition that a police officer "cannot kill unless there is a necessity for it, and the jury must determine upon the testimony the existence or absence of the necessity. They must judge of the reasonableness of the grounds upon which the officer acted." Hendricks v. Commonwealth, 163 Va. 1102, 1109, 178 S.E. 8, 11 (1935). "The law does not clothe him with authority to judge arbitrarily of the necessity. He cannot kill, except in case of actual necessity, and whether or not such necessity exists is a question for the jury." Id. at 1110, 178 S.E. at 11 (citations omitted).
Accepting Instruction No. 9 as the law of the case, we conclude a rational jury could have found Couture - while motivated, no doubt, by non-malicious fear - nonetheless used deadly force disproportionate to any reasonable apprehension of harm. Olavarria did not confront Couture with a weapon or appear to be trying to do so. Olavarria was shot while saying "don't" with both hands raised. The circumstances of the stop, moreover, did not involve a suspect either officer knew or reasonably suspected to be a violent criminal. The jury could have rationally concluded that, while understandably frightening, the movement of the vehicle and Couture's attempt to stop it produced an insufficiently grave risk of harm to warrant the use of deadly force. "
February 5, 2008
Knife Used for Work is Still a Weapon and Unlawful to Conceal
Thompson v. Commonwealth, __Va. App. __ S.E.2d __,__ (2008).
"The evidence in this case supports the conclusion that the knife in question was a "weapon" within the meaning of Code § 18.2-308.2. The type of knife appellant concealed in his pocket was a bladed instrument designed for fighting purposes. Giroux testified that such knives posed a hazard to police officers performing their duties, and he had seized similar devices from gang members. Regardless of appellant's claim that he had possessed the knife in the course of his work as an auto mechanic, the trial court was entitled to reject his testimony. See Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)."Upon establishing that the item in question is a 'weapon,' we turn to whether the item possesses such similar characteristics to the enumerated items in the Code § 18.2-308(A) such that its concealment is prohibited." Farrakhan, 273 Va. at 182, 639 S.E.2d at 230. Code § 18.2-308(A) provides that any weapon "of like kind" to those enumerated in the statute are likewise prohibited under the statute. Generally, the word "like" is defined as "alike, similar, analogous, or comparable." Webster's Third New International Dictionary 1310 (1993). It does not mean "exactly like or identical to." . . . [T]he statute contemplates that some "weapons" will resemble those specifically delineated in the statute, but will in fact have some different characteristics. Gilliam, 49 Va. App. at 516, 642 S.E.2d at 778.
The trial court found the physical characteristics of appellant's knife were the same as the "butterfly knife" described in Delcid, 32 Va. App. at 17, 526 S.E.2d at 274, as having a single blade with a two-part hinged handle, which folds to enclose the blade. A person holding one part of the closed handle can flip the other part open, leaving the blade exposed and locked, thus creating a straight-bladed knife approximately nine inches long. The blade is four inches long, with a sharp point. One edge of the blade is sharpened. The other is not. This Court found the knife described was "useful as a weapon of like kind to a dirk. Its fixed blade, sharp point, and single-sharpened edge afford unquestionable utility as a stabbing weapon, useful in the same manner as a dagger, stiletto, or dirk." Id. at 18, 526 S.E.2d at 275. Because the knife possessed similar physical characteristics to a dirk, the Court concluded that Code § 18.2-308.2 prohibited its concealment. Id. The facts support the trial court's conclusion that appellant's knife, which closely resembled the knife in Delcid, was a "weapon of like kind" to a "dirk." See id. Therefore, Virginia law prohibited appellant from carrying the knife in a concealed manner, and the evidence was sufficient to prove beyond a reasonable doubt that appellant was guilty of violating Code § 18.2-308.2."
BB Gun is a Firearm Under 18.2-53.1 Despite the Plain Meaning of Firearm
Wubneh v. Commonwealth ___ Va. App. ___ S.E.2d ___,___ (2008).
"In this case, the Commonwealth was required, under Code § 18.2-53.1, to prove that Wubneh used a "firearm" in the commission of the robbery. It is undisputed that Wubneh possessed a BB gun at that time. Wubneh argues his BB gun was not a "firearm" under the statute, as that term has been defined under Virginia law-i.e., a weapon fired by the explosion of gunpowder. According to Wubneh, the subject jury instruction erroneously included weapons fired "by spring mechanism, or by pneumatic pressure" within the definition of a "firearm," thus allowing for his conviction.
...First, because Code § 18.2-53.1"is aimed at preventing actual physical injury or death," the term "firearm" includes any
instrument that is capable of expelling a projectile by the force of gunpowder. See [Holloman, 221 Va. at 198-99, 269 S.E.2d at
357-58].
In addition, the term "firearm" in Code § 18.2-53.1 includes some objects that are not capable of firing projectiles by an explosion of gunpowder. In Holloman, the Supreme Court held that any instrument that "gives the appearance" of having the capacity to propel a bullet by the force of gunpowder is a "firearm" under Code § 18.2-53.1. See id. at 199, 269 S.E.2d at 358 (holding that a BB pistol that fires BBs by the force of a spring but resembled a .45 caliber handgun was a "firearm" because it "gave the appearance of having a firing capability"). . . .
Thomas, 25 Va. App. at 685, 492 S.E.2d at 462. We then explained the Supreme Court's twofold rationale for this "expanded meaning of 'firearm.'" Id. First, it reasoned that the word "firearm" included instruments that merely appear to have a firing capability because the General Assembly intended Code § 18.2-53.1"to discourage criminal conduct that produces fear of physical harm" and the victim of a crime "can be intimidated as much by a revolver that does not fire bullets as by one that does." In addition, the Supreme Court reasoned that, as a practical matter, a crime victim "cannot be required to distinguish between a loaded pistol and a spring gun when it is brandished during the commission of a felony."
January 11, 2008
Are You Free to Leave if an Officer Takes Your Gun?
Malbrough v. Commonwealth, ___Va. __ S.E.2d __,__ (2008)
"Officer Fortier saw a handgun lying in plain view on the center console of the Cadillac as he walked up to the driver's window and at the same time Malbrough told him that he had a handgun in the car. Officer Fortier told all the occupants of the car to keep their hands where he could see them and retrieved the handgun from Malbrough without incident. Fortier took the handgun back to his cruiser and announced on his police radio that he had recovered a weapon from the Cadillac. Two other police vehicles, driven by Officers Neal Flatt and Richard Holmes, respectively, arrived at the scene almost simultaneously. One parked on the side of the road behind Fortier's cruiser and the other parked on the side of the road ahead of the Cadillac but far enough ahead that "[t]here was plenty of room between the vehicles," such that Malbrough "would have been able to pull his vehicle out." The flashing blue lights of Officers Fortier's and Flatt's police vehicles continued to operate throughout the encounter but Holmes believed it likely that those on his vehicle did not. Officer Fortier returned to the Cadillac and asked Malbrough for his driver's license and registration. Malbrough handed these to Fortier, who took them back to his cruiser to verify them....While the foregoing conversation was going on, Officer Flatt, who was a firearms instructor, walked up to Officer Fortier's cruiser. Fortier handed Flatt the weapon Malbrough had handed him. Flatt "cleared" the weapon, a loaded .45 caliber semi-automatic pistol, and put it under his waistband in the small of his back. It remained there throughout the encounter and none of the participants made any further mention of it...
...The most significant distinction between Reittinger and the present case is that in Reittinger, the trial judge, who alone had the opportunity to look the witnesses in the eye and weigh their credibility, expressly found that the deputy effectively seized Reittinger without probable cause because a reasonable person in the circumstances would conclude that his detention continued and that he was not free to leave. Id. at 236, 532 S.E.2d at 27. Here, the trial court, after analyzing all the attendant circumstances, made the opposite finding and concluded that a reasonable person would have felt free to ignore the request and leave the scene when Fortier asked Malbrough to consent to a search of his person...The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to 'leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs...
Dissenting Opinion by Chief Justice Hassel and Justice Koontz
"While Officer Holmes may have concluded that he had no basis to detain Malbrough further relating to the shooting incident, he did not convey that subjective conclusion to Malbrough. The police had conducted searches of the passengers in the Cadillac as well as the vehicle because they had discovered the presence of Malbrough's gun; only Malbrough remained unsearched. The police retained possession of Malbrough's gun and had not indicated how or when the gun might be returned to him. At that point in the encounter, despite Officer Fortier's statement that he was free to leave, a reasonable person would not have believed that Malbrough was free to leave until there was some objective indication from Officer Holmes that such was the case as a result of his subjective conclusion that Malbrough was not going to be detained in connection with the shooting incident that Officer Holmes was investigating."
Possession of Firearm
Bolden v. Commonwealth, __ Va. __ S.E.2d __,__ (2008).
"A conviction for the unlawful possession of a firearm can be supported exclusively by evidence of constructive possession; evidence of actual possession is not necessary. Rawls v. Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 705 (2006); Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998). To establish constructive possession of the firearm by a defendant, "the Commonwealth must present evidence of acts, statements, or conduct by the defendant or other facts and circumstances proving that the defendant was aware of the presence and character of the firearm and that the firearm was subject to his dominion and control." Rawls, 272 Va. at 349, 634 S.E.2d at 705; accord Walton, 255 Va. at 426, 497 S.E.2d at 872; Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986); Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984); Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). While the Commonwealth does not meet its burden of proof simply by showing the defendant's proximity to the firearm, it is a circumstance probative of possession and may be considered as a factor in determining whether the defendant possessed the firearm. Rawls, 272 Va. at 350, 634 S.E.2d at 705; Walton, 255 Va. at 426, 497 S.E.2d at 872; Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982).
There is evidence to support a finding that Bolden was aware of the presence and character of the firearm and it was within his dominion and control. Bolden exited the vehicle along with the only other passenger, and Bolden attempted to contact the officer before the officer could get to the vehicle. The bag containing the gun was open and obvious to someone looking in the vehicle, and it was located in immediate proximity to where Bolden had been sitting. Additionally, Bolden possessed illegal drugs with the intent to distribute them, and an expert witness testified at trial as to the link between the distribution of drugs and the possession of a firearm.
For these reasons we hold that the evidence was sufficient to establish that Bolden possessed the firearm, and we will affirm the judgment of the Court of Appeals."
December 10, 2007
"The question is whether a person who trades his drugs for a gun “uses” a firearm “during and in relation to … [a] drug trafficking crime”
Watson v. United States, __ U.S.___ (2007).
"The Government may say that a person “uses” a firearm simply by receiving it in a barter transaction, but no one else would....The Government overreads Smith. While the neighboring provision indicates that a firearm is “used” nonoffensively, and supports the conclusion that a gun can be “used” in barter, beyond that point its illumination fails. This is so because the utility of §924(d)(1) is limited by its generality and its passive voice; it tells us a gun can be “used” in a receipt crime, but not whether both parties to a transfer use the gun, or only one, or which one. The nearby subsection (c)(1)(A), however, requires just such a specific identification. It provides that a person who uses a gun in the circumstances described commits a crime, whose perpetrator must be clearly identifiable in advance....The problem, then, is not with the sturdiness of Smith but with the limited malleability of the language Smith construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment (if Congress sees asymmetry) than by racking statutory language to cover a policy it fails to reach....Given ordinary meaning and the conventions of English, we hold that a person does not “use” a firearm under §924(c)(1)(A) when he receives it in trade for drugs. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."
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