Miranda Rights and the Castle Bill

[miknwv]

Let me provide a few more details. My brother in law was in the house and my sister was in the driveway getting things out of her car when the other party walked up to the house onto my brother in law's property (which is in a very rural area). 3 of them cornered my 7 month pregnant sister and assaulted and battered her, leaving bruises, etc. My brother in law was in the house, saw what happened, allegedly grabbed his gun and allegedly fired one shot into the air from his front porch so they would stop hitting my sister. He called 911 and told them what happened, told 911 that the gun was secured and put away and empty, and that he was standing on his front porch with his hands in the air. When the cops got there they told him to leave the porch. He asked them if he could reach down and unlatch the gate on the porch and they said yes. He did that, then they told him to get on his knees with his hands behind his back. When he did that, the young deputy (the trooper's cousin) dove into his back with his knee and pummeled him to the ground.

There was a deputy who is related to a state trooper and the states and deputies are trying to root out a senior deputy to fast-track the trooper's deputy cousin to a high rank.....so the trooper's deputy cousin was the one who looked at my sister while taking her statement and told her that if she didn't stop crying, he was going to take her to jail too. He asked if there were any other guns in the house and she said yes, they are empty and in their case, I'll go get them, you wait here. He pushed past her without being invited in, and without a search warrant (and nobody else in the house to be a threat) and began searching her room. Was that an illegal move on his part? She actually asked that he not enter the residence, and once he was in her room, she said she would point to where the guns were since he already barged his way in. Instead of letting her point to where they were, he just started tearing through stuff. He was never invited in and never obtained a warrant.

And all I did when I got on scene was shake all the officers' hands and introduced myself, everything was calm. I didn't lean in the window, I stood outside the car and told him it'd be a good idea if he didn't say anything without legal counsel.

 

[CdwJava]

He did that, then they told him to get on his knees with his hands behind his back. When he did that, the young deputy (the trooper's cousin) dove into his back with his knee and pummeled him to the ground.

"Pummeled" him to the ground ... not sure what that means, but when dealing with potentially armed subjects force is sometimes used.

Remember, YOU do not know what the officers saw or heard, nor do you know what the neigbhbors told the officers. I will wager to guess that the neighbors' account of events will be significantly different.

He asked if there were any other guns in the house and she said yes, they are empty and in their case, I'll go get them, you wait here.

Not a great idea for an officer to let a possible suspect arm themselves.

He pushed past her without being invited in, and without a search warrant (and nobody else in the house to be a threat) and began searching her room.

Arguably, there was an exigency present. If used as evidence, your brother-in-law's attorney can entertain a motion to suppress the evidence of the firearm if it becomes an issue. I suspect that the officers' can articulate the necessary probable cause coupled with an exigency to seize the weapon, but, maybe not.

I didn't lean in the window, I stood outside the car and told him it'd be a good idea if he didn't say anything without legal counsel.

And, you were not arrested. You were told to move away or you would be arrested, and you (apparently) did so.

Right now, your brother-in-law needs an attorney. Understand that anything he tells you or that your sister tells you is NOT confidential, so if they provide you with details you can be compelled to testify against them. Their best bet is to remain silent and talk only to their respective attorneys.

 

[betachains]

What is a virgin in West Virginia?

A 13 year girl who runs faster than her brothers.




Sorry. This case sounds like a deleted scene from "Deliverance".

Just get a lawyer. Or a cousin. Or a cousin who is a lawyer, who is also your sister.

 

[OHRoadwarrior]

Your updated story only adds to the mess. Clearly, the attack had plenty of warning and it appears she chose to stay and fight, rather than retreat. It is not unrealistic in a shooting situation, for an officer to secure weapons himself and not rely on one of the antagonists to obtain the weapons for him.

 

[miknwv]

Wow, what professionalism on a legal advice forum, acting like children and making WV jokes, nice.

As far as possibly being armed, he already relayed to 911 that he wasn't and that the firearm was secured and empty, his arms were behind his head and the police let him put his hands down to open the gate to his porch, so he then put his arms behind his head and went to lay on the ground with his arms still behind his head and thats when the "young gun" cop dove on him knee-first into his back. Wonder where the use of force form is on that one.

Plus the biggest issue is, the magistrate refused to allow my sister to file a protective order against the neighbors so she could be safe while her husband was in jail, she said to have the officers do it. They said they didn't have time, even though there were 5 of them there and it only takes 1, 2 officers at most to transport my brother in law. Do a search on lincoln county wv politics and see how corrupt it is.

 

[CdwJava]

As far as possibly being armed, he already relayed to 911 that he wasn't and that the firearm was secured and empty, his arms were behind his head and the police let him put his hands down to open the gate to his porch, so he then put his arms behind his head and went to lay on the ground with his arms still behind his head and thats when the "young gun" cop dove on him knee-first into his back. Wonder where the use of force form is on that one.

Of course, you weren't there, were you? I'm not sure where a knee dive is taught in the academy, but, if the force used was excessive then your b-in-law can complain about it to the agency. If he was injured, he can hire an attorney and sue them.

Plus the biggest issue is, the magistrate refused to allow my sister to file a protective order against the neighbors so she could be safe while her husband was in jail, she said to have the officers do it.

I don't know the process in your state so I can't really address that. My guess is that the neighbors aren't being charged with any crime at the moment, so there may be nothing for the magistrate to act on. I'm going to take a wild guess that the neighbors have a very different take on what happened and that may well contribute to the problem of no order and your b-in-law's arrest. If you want to help him, help him secure the services of a good attorney to defend against the criminal charges. If his actions fall within what is accepted as self defense in WV, then the attorney can make that argument.

 

[miknwv]

Of course, you weren't there, were you? I'm not sure where a knee dive is taught in the academy, but, if the force used was excessive then your b-in-law can complain about it to the agency. If he was injured, he can hire an attorney and sue them.


I don't know the process in your state so I can't really address that. My guess is that the neighbors aren't being charged with any crime at the moment, so there may be nothing for the magistrate to act on. I'm going to take a wild guess that the neighbors have a very different take on what happened and that may well contribute to the problem of no order and your b-in-law's arrest. If you want to help him, help him secure the services of a good attorney to defend against the criminal charges. If his actions fall within what is accepted as self defense in WV, then the attorney can make that argument.

Thank you for providing sound advice with no criticism or poking fun at my state. Your advice is much appreciated and we will definitely use your advice.

 

[dave33]

Let me provide a few more details. My brother in law was in the house and my sister was in the driveway getting things out of her car when the other party walked up to the house onto my brother in law's property (which is in a very rural area). 3 of them cornered my 7 month pregnant sister and assaulted and battered her, leaving bruises, etc. My brother in law was in the house, saw what happened, allegedly grabbed his gun and allegedly fired one shot into the air from his front porch so they would stop hitting my sister. He called 911 and told them what happened, told 911 that the gun was secured and put away and empty, and that he was standing on his front porch with his hands in the air. When the cops got there they told him to leave the porch. He asked them if he could reach down and unlatch the gate on the porch and they said yes. He did that, then they told him to get on his knees with his hands behind his back. When he did that, the young deputy (the trooper's cousin) dove into his back with his knee and pummeled him to the ground.

There was a deputy who is related to a state trooper and the states and deputies are trying to root out a senior deputy to fast-track the trooper's deputy cousin to a high rank.....so the trooper's deputy cousin was the one who looked at my sister while taking her statement and told her that if she didn't stop crying, he was going to take her to jail too. He asked if there were any other guns in the house and she said yes, they are empty and in their case, I'll go get them, you wait here. He pushed past her without being invited in, and without a search warrant (and nobody else in the house to be a threat) and began searching her room. Was that an illegal move on his part? She actually asked that he not enter the residence, and once he was in her room, she said she would point to where the guns were since he already barged his way in. Instead of letting her point to where they were, he just started tearing through stuff. He was never invited in and never obtained a warrant.

And all I did when I got on scene was shake all the officers' hands and introduced myself, everything was calm. I didn't lean in the window, I stood outside the car and told him it'd be a good idea if he didn't say anything without legal counsel.

That is his/your version of events, which will certainly differ from the officers. As sad as it sounds, it's not so much what the officer did, what what he can prove he did. Since it will take a lot of time and money to dispute the report, most times people resign themselves and focus on defending against the version of events contained in the report.
If your bro in law is going to hire an attorney he will need the report before going forward. There really isn't much to do now but wait. goodluck.

 

[miknwv]

That is his/your version of events, which will certainly differ from the officers. As sad as it sounds, it's not so much what the officer did, what what he can prove he did. Since it will take a lot of time and money to dispute the report, most times people resign themselves and focus on defending against the version of events contained in the report.
If your bro in law is going to hire an attorney he will need the report before going forward. There really isn't much to do now but wait. goodluck.

Thanks. If I'm not mistaken, if the other party is pressing charges (I'm not sure if they are or if the cops are the only ones pressing charges) then they bear the burden of proof. We are gathering all documentation from the police departments including asking to see if the "young gun" deputy filled out a use of force report.

I'm going to be a witness and I'm going to have his attorney ask the officer if he threatened to take my sister to jail. If he says he didn't threaten her, I can testify that he did, then we can ask if he is lying now or if he was lying then about the threats and completely destroy his credibility and also charge him with perjury. In the words of George Carlin, police officers will swear to tell the truth, the whole truth and nothing but the truth but they will lie their ass off if it support's their case. There are police officers out there that will tell the truth, but police officers like them are often ganged up on by officers like the deputy who was breaking the rules out there.

Plus, the deputy that they blamed all of the wrongdoing on at the scene will find out that the young gun's trooper friends tried to do a character assassination on him when I went to file a complaint with the senior trooper regarding their conduct, the trooper said that the deputy who actually followed the rules and helped us was the one who broke rules, threatened to throw everyone in jail, entered the house without a warrant, and said that due to his "shenanigans" that he wasn't long for the police force. I have had a run-in with the deputy in the past where I disagreed with what he did and I personally don't like him, but he conducted himself in a professional manner and he does things by the book. It appears that the "brothers in blue" are trying to get rid of the guy who goes by the book and are trying to blame everything done wrong on him, even though everyone on scene can testify that he was the only one acting like he had any sense at all. Once that deputy finds out what that trooper told me, he will be even more inclined to testify as to what really happened and which officers abused their power.

The officer we had the most problems with is just 22 years old and the ink hasn't even dried on his certificate from the academy. He thinks that he can just go around and do whatever he wants with no repercussions because his state trooper cousin has got his back.

I looked up some videos by Barry Kooper, former head of the DEA in Texas, and he busts out corrupt cops (you should check him out). He busted several cops down in Texas for corruption and they have constantly harassed him and gone out of their way to make his life a living hell. I can see now why Christopher Dorner did what he did. I'm not saying he was right in killing anybody, but when he reported that an officer kicked an innocent man in the head (the man did nothing but sit on a park bench and didn't respond to their initial questions) and when he reported the officer who kicked the man in the head, the officers banded together (even after admitting the kick to the head) and at the formal hearing denied, denied, denied, and several other officers took up for the veteran officer. The kid was doing what he felt was right by reporting it and the LAPD destroyed his name and railroaded him, didn't even give him a chance for redemption. When I first heard about it, my first thought was...What would drive a man to go as far as to murder other officers? Then I read his manifesto. The LAPD drove him to the point of homicide and then suicide. I personally don't think that was the right way to go, I wish he would have pushed to the highest courts OUTSIDE of that jurisdiction so that true justice could be done.

However, I no longer believe in the justice system. I do understand why justice is represented by scales, because the person who wins is the one who tips the scales with the biggest pile of money.

/rant

 

[OHRoadwarrior]

What part of what your BIL did was totally illegal and very dangerous to anyone with a few miles of the home did you not get? If you want to comment on anything, it seems likely both your sister and BIL would have succumbed to natural selection, if not for gov't protection.

I remember another rocket scientist that discharged his rifle in the air nearby, when it came down, it hit someone in the shoulder. It took a few weeks, but a neighbor reported the gunshot.

 

[CdwJava]

Wow ... well, nothing to say to refute such "logic."

 

[miknwv]

What part of what your BIL did was totally illegal and very dangerous to anyone with a few miles of the home did you not get? If you want to comment on anything, it seems likely both your sister and BIL would have succumbed to natural selection, if not for gov't protection.

I remember another rocket scientist that discharged his rifle in the air nearby, when it came down, it hit someone in the shoulder. It took a few weeks, but a neighbor reported the gunshot.

While I agree that someone could be hurt by a falling bullet, I disagree that it could kill someone. Mythbusters busted that myth. A bullet falling at terminal velocity can injure someone but in order to kill someone it has to maintain a ballistic trajectory, and straight up in the air isn't a ballistic trajectory. Plus, as I mentioned, we live in a very rural area. There are only 3 residences in the area where that bullet would have landed, and being that it was at night and nobody else was outside at the time other than those involved, I'd estimate a 1 in a billion chance of that bullet hitting someone. And if your natural selection comment is meant to insult my BIL and sister, that is incorrect. They are both brilliant individuals, they were just in a very tense situation. I'll reiterate:

BIL and sister were at the neighbor's house, an argument started so they left and walked to their house. My pregnant sister was getting some groceries out of their car in the driveway while my BIL was putting their 3 year old son to bed. The three neighbors followed them to my BIL's house on my BIL's property and 2 men and one woman began to physically assault and batter my pregnant sister. BIL hears the commotion, calls 911 and grabs his gun. Instead of firing at them because my sister was in the mix, he allegedly fired in the air to get them to stop attacking my sister, succesfully stopping them I might add. He then pulled the clip and emptied the gun and laid it down, then ran to her aid. Put yourself in his shoes...you have two men assaulting your pregnant wife on your own property, what would you do? Call your lawyer while they beat your wife and endanger your unborn child? It's easy to look back and say that the actions taken were stupid, but in the heat of the moment, a man will do anything to protect his family. Also, one of the men who was attacking her had fired shots at his brother's feet just a few weeks before then aimed the gun at his head and pulled the trigger but was out of bullets so he pistol-whippped him instead....so that's the type of person who was assaulting his wife.

I ask you this: Given the exact same situation, with the exact same type of person attacking your wife and unborn child....what would you do?

If it were me, I know exactly what I would've done in that exact same situation. I won't flat out say it, but I will say that dead men don't tell tales. A man lays his hand on my wife and I'm a force to be reckoned with.

 

[racer72]

If it were me, I know exactly what I would've done in that exact same situation. I won't flat out say it, but I will say that dead men don't tell tales. A man lays his hand on my wife and I'm a force to be reckoned with.

You are going to do you wife and child a lot of good sitting in jail for a good long time. And there are a number of people with the same attitude as you cooling their heels in Graybar Motels all over the country.

 

[justalayman]

=miknwv;3170872]While I agree that someone could be hurt by a falling bullet, I disagree that it could kill someone. Mythbusters busted that myth. A bullet falling at terminal velocity can injure someone but in order to kill someone it has to maintain a ballistic trajectory, and straight up in the air isn't a ballistic trajectory.

the myth busters aren't always correct. It would appear the cdc sees it a bit differently:

Editorial Note:

When fired into the air, bullets can return to the ground at speeds greater than 200 ft./sec., a sufficient force to penetrate the human skull and cause serious injury or death (1). News media reports from around the world suggest that celebratory gunfire injuries might be a widespread public health problem; however, further data are needed to determine the extent of the problem. The data presented in this report indicate that bullets from probable celebratory gunfire caused 19 injuries, including one death, during December 31, 2003--January 1, 2004, in Puerto Rico. These injuries primarily occurred at midnight on December 31 in a limited number of public housing areas. Celebratory gunfire injuries affected a high percentage of children and females, populations not typically at high risk for such injuries. These findings are consistent with a previous study of celebratory gunfire injuries in a metropolitan area (1).

Ordog GJ, Dornhoffer P, Ackroyd G, et al. Spent bullets and their injuries: the result of firing weapons into the sky. J Trauma 1994;37:1003--6.

Plus, as I mentioned, we live in a very rural area. There are only 3 residences in the area where that bullet would have landed, and being that it was at night and nobody else was outside at the time other than those involved, I'd estimate a 1 in a billion chance of that bullet hitting someone. And if your natural selection comment is meant to insult my BIL and sister, that is incorrect. They are both brilliant individuals, they were just in a very tense situation. I'll reiterate:

for being brilliant did a very stupid thing.

Instead of firing at them because my sister was in the mix, he allegedly fired in the air to get them to stop attacking my sister, succesfully stopping them I might add

.maybe he should point it at the ground. Duh.

He then pulled the clip and emptied the gun and laid it down, then ran to her aid.

apparently he has no gun training. Why would he pull the clip and empty the gun? What if they came back? A gun is worthless if unloaded, unless you like beating your assailants with a blunt object.

A loaded weapon is a serious threat, more so when it is in the hands of a person without training.

Put yourself in his shoes...you have two men assaulting your pregnant wife on your own property, what would you do?

not what he did

 

[TigerD]

Thanks. If I'm not mistaken,

You are.

I'm going to be a witness and I'm going to have his attorney ask the officer if he threatened to take my sister to jail. If he says he didn't threaten her, I can testify that he did, then we can ask if he is lying now or if he was lying then about the threats and completely destroy his credibility and also charge him with perjury.

I can guarantee you that this ^ isn't going to happen.

Plus, the deputy that they blamed all of the wrongdoing on at the scene will find out that the young gun's trooper friends tried to do a character assassination on him when I went to file a complaint with the senior trooper regarding their conduct, the trooper said that the deputy who actually followed the rules and helped us was the one who broke rules, threatened to throw everyone in jail, entered the house without a warrant, and said that due to his "shenanigans" that he wasn't long for the police force. I have had a run-in with the deputy in the past where I disagreed with what he did and I personally don't like him, but he conducted himself in a professional manner and he does things by the book. It appears that the "brothers in blue" are trying to get rid of the guy who goes by the book and are trying to blame everything done wrong on him, even though everyone on scene can testify that he was the only one acting like he had any sense at all. Once that deputy finds out what that trooper told me, he will be even more inclined to testify as to what really happened and which officers abused their power.

1. You and yours seem to have a lot of "run-ins" with law enforcement. I'm thinking of a saying... something about smoke and fire...

The officer we had the most problems with is just 22 years old and the ink hasn't even dried on his certificate from the academy. He thinks that he can just go around and do whatever he wants with no repercussions because his state trooper cousin has got his back.

Or, he is extremely attentive to his training because it is so fresh in his mind.

Your boy fired a gun during an altercation. Someone could have been killed. That he then called the police and reported himself doesn't clear him -- it magnifies the level of his stupidity.

DC

PS: By the way - The West -By God- Virginia jokes just write themselves. The best thing you can do for your boy is to be quiet and stop making trouble for him. He has enough of it already.