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Posted: 3/9/2006 6:08:59 AM EDT
[Last Edit: 3/13/2006 3:32:50 AM EDT by tspike]
Will update.
Link Posted: 3/9/2006 6:16:33 AM EDT
Good luck. Let us know how it goes. Maybe you can sue the security guard for violating your civil rights later on.
Link Posted: 3/9/2006 6:35:58 AM EDT
That is stupid, it wasnt a public place, you wernt pointing it in a maner to threaten anyone, and you brought it for self defence. Lets see you are in YOUR residence and you see a shady person outside messing with YOUR truck. You went to ask him what was going on and you took YOUR firearm on YOUR property with you for protection. Finally, the very fact that he asked if you had a permit later doesnt seem like he fealt very threatened. HOW FRIGGIN STUPID.

Did the security officer swear out the warrent or did the police?

Good luck with this one. Sounds like you shouldnt have too much to worry about if you have a good lawyer. Was anyone else in your house that saw the whole thing?
Link Posted: 3/9/2006 6:43:25 AM EDT
[Last Edit: 3/9/2006 6:44:15 AM EDT by NoVaGator]
tow truck drivers are the lowest forms of life on earth.

That's why I fuck with them every chance I get

When I lived in a condo complex, they would park two trucks at the entrance to the community and scour the parking lot on foot in black sweatshirts moments after the permits were enforced at 10 pm.

So I took counter measures.

Turns out, it's a bitch to tow vehicles when your tow truck has flat tires. And soaped up windows. And (apparently) tags fall off of tow truck sometimes.

So then they dedicated a spotter to watching the vehicles.

I adjusted my tactics and went right after the roaming guys.

I should stop now


Good luck in court
Link Posted: 3/9/2006 7:20:25 AM EDT
[Last Edit: 3/13/2006 3:33:27 AM EDT by tspike]
will update
Link Posted: 3/9/2006 7:36:20 AM EDT
I would countersue, namimg the the security company and tow truck company and the two individuals as the defendants. As you said it is your word against theirs, and you were in fear of your life. Once you get to court, and the judge hear's both sides, he'll probaly dismiss both cases. Good luck.
Link Posted: 3/9/2006 7:39:10 AM EDT
Good luck, that sounds pretty bogus to me.

+1 to tow truck drivers being the lowest forms of life. I remember in college reading the student paper on Mondays before class- just about every weekend one would get shot with a pellet gun and it was always funny.
Link Posted: 3/9/2006 8:03:54 AM EDT

Originally Posted By koolaid:
I would countersue, namimg the the security company and tow truck company and the two individuals as the defendants. As you said it is your word against theirs, and you were in fear of your life. Once you get to court, and the judge hear's both sides, he'll probaly dismiss both cases. Good luck.



___

Agreed. You seemingly would have had a right to fear for your life while verifying the security of your vehicle at night. A couple of sneaky characters (to the best of your knowledge) at night?

Best wishes...keep us updated.

Link Posted: 3/9/2006 8:33:36 AM EDT
soudns like you were a) not brandishing b) completely justified. shouldn't be hard, but good luck with the legal fees. The more I hear about HOA's, the less I like.,
Link Posted: 3/9/2006 8:36:33 AM EDT
Good luck in court. From the way you told the story it sounds like you have nothing to worry about. +1 for the update.
Link Posted: 3/9/2006 8:40:57 AM EDT
It was dark, there were two people around your truck WHO YOU DIDN'T know, and were unidentified, you brought a gun out with as you had no idea of the motives of the SUSPECTED car thieves.

Were you on your property, or was this a townhouse community? If you were in the public street you might need some slick talking to work around that...
Link Posted: 3/9/2006 8:58:10 AM EDT
Definite tag for outcome.

Best of luck.
Link Posted: 3/9/2006 9:28:54 AM EDT
Here are some question that I am wondering.

1) Is it a house or apartment?

2) Was the security guard armed and was he a security guard or a SCOP?

3) If it was your house why was he on your property?

4) Check the code to see if he even has jurisdiction to tow your vehicle.
I checked when I got a parking ticket at VCU and read that organization are only allowed to ticket or tow a trespassing vehicle. IF you live there the vehicle is not trespassing. I would argue the attempt to tow the vehicle instead of citing you would be more along the lines of larceny. He might not intend to perminatly deprive you of it but he definitly intends to take it and make you pay to get it back.
Link Posted: 3/9/2006 9:32:00 AM EDT
House = your driveway? Or parking lot?

HOA ...just wondering. Did this occur on 'community property' or public property?

These two were probably looking for a nice big king cab to re-enact brokeback mountain scenes in ;)

(hopefully that'll cheer you up)
Link Posted: 3/9/2006 9:38:41 AM EDT

Originally Posted By tspike:
The security guard informs me that it was not lawful to use “Deadly Force” to protect my property.


Was deadly force used to protect property? No. So where's the problem?


Originally Posted By tspike:
Then tells me since I came out he would not tow the truck if I would cover the truck so the violation was not visible.


If that's all it takes he could have called or knocked on the door and made his request without calling the tow truck.


Originally Posted By tspike:
That was the cue for the tow truck drive to tell me “He fells threatened” with the security guard echoing him immediately.


Well, if he wasn't in the business of taking other peoples vehicles without their consent he might not feel so threatened. How about you felt threatened by suspected auto thieves and only made sure you had means to protect yourself if you were assaulted when you confronted them.

Link Posted: 3/9/2006 9:42:56 AM EDT
Most of the time if the police pull you with expired tags you get a ticket. They also sometimes will not let you drive the vehicle after it is parked on a private lot. Very seldomly do they tow the thing. Bottom line is that it isnt his job to tow your vehicle from your house. It is his job to protect your stuff. Have you talked to the management for the security place?
Link Posted: 3/9/2006 10:00:04 AM EDT
I would also make sure my lawyer highlighted that towing a violating vehicle could have been done at some other time -- other than by cover of darkness.

I would certainly countersue for hardship created by clandestine towing methodolgy & rule enforcement.
Link Posted: 3/9/2006 10:03:53 AM EDT
[Last Edit: 3/9/2006 10:04:34 AM EDT by brickeyee]
In Virginia there are two different charges.
For tags less than 30 days you get a simple ticket for expired tags and are on your way.
For tags more than 30 days old you have an unregistered vehicle and it will be towed from the public road and impounded on the spot.

Link Posted: 3/9/2006 10:56:37 AM EDT
I'm sure your lawyer knows this about VA law, but just in case:

RIGHT TO ARM

A. A person who reasonably fears that he will suffer serious bodily harm from an imminent attack has the right to arm himself for his self defense.

B. No malice will be inferred from the mere fact that the defendant armed himself under these circumstances.

C. Jury instruction:

The Court instructs the jury that when a person reasonably apprehends that another intends to attack him for the purpose of doing him serious bodily harm, then such person has the right to arm himself for his own necessary self defense and if he has reasonable grounds to believe that an attack will be made upon him then no inference of malice can be drawn from the fact of such preparation.

However:
F. Case law:

1. Defense of property

Even if [the] actions [of the person threatening the defendant's property] were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force. In Montgomery v. Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), we said:

The law is clearly stated by a learned judge in State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or do great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies. There is a recklessness and a wanton disregard of humanity and social duty in taking or endeavoring to take, the life of a fellow-being, in order to save one's self from a comparatively slight wrong, which is essentially wicked, and the law abhors. You may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty." See, also, 1 Bishop on New C. L., secs. 839, 841, 850.

However, the defendant contends, and the Court of Appeals held, that these principles do not apply when there is a mere threat to use deadly force in protection of personal property. We do not agree. Moreover, the owner of land has no right to assault a mere trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36 S.E. at 373. For these reasons, we agree with the trial court that a deadly weapon may not be brandished solely in defense of personal property. Commonwealth v. Alexander, 260 Va. 238, 242, 531 S.E.2d 567, ___ (2000).

Link Posted: 3/9/2006 11:08:01 AM EDT
Sorry to hear it, good luck in cort.
Link Posted: 3/9/2006 11:46:36 AM EDT
[Last Edit: 3/9/2006 1:30:43 PM EDT by leadnbrass]
The part about why they were on your property is not important. You went outside to see what was going on and brought the gun to protect yourself against what may happen. If you have no prior criminal history you should be fine...most likely It'll be dismissed or pleaded down to next to nothing.
Link Posted: 3/9/2006 12:03:12 PM EDT
Good luck, keep us posted.
Link Posted: 3/9/2006 12:09:09 PM EDT
[Last Edit: 3/13/2006 3:33:52 AM EDT by tspike]
will update
Link Posted: 3/9/2006 12:24:44 PM EDT
Good luck man, any bumps at night around the house I go to check on Im carring my gun out the door with me.
Link Posted: 3/9/2006 1:02:47 PM EDT

Originally Posted By tspike:
Hallmark, I've done a little research and found that very same case.

"I" feel that if someone is brash enough to steal from you, who knows what else are they capable of? I served 23 years in the Navy and believe that I am pretty familiar with the limitations of "Deadly Force". I'm not naive enough to try and protect a 18 year old truck with deadly force. I merely was trying to ensure my safety, as I had no idea what the person’s intentions were that was looking into my truck.



Just offering information, not trying to say you did this or that. Remember, in Court, it is what the judge or jury thinks, not any of us.
Link Posted: 3/9/2006 1:08:35 PM EDT
[Last Edit: 3/9/2006 1:12:27 PM EDT by scuba_ed]

Originally Posted By tspike:
Hallmark, I've done a little research and found that very same case.

"I" feel that if someone is brash enough to steal from you, who knows what else are they capable of? I served 23 years in the Navy and believe that I am pretty familiar with the limitations of "Deadly Force". I'm not naive enough to try and protect a 18 year old truck with deadly force. I merely was trying to ensure my safety, as I had no idea what the person’s intentions were that was looking into my truck.



__

Agreed, tspike. There's also something inherently unseemly in such nocturnal actions.

I'm not a legal-eagle, though if this was an acceptable practice in your community, regardless of HOA "rules", then they could have done this in daylight. I don't know what part of the legal boundary of your property (not vehicle) that this occurred within, though if you were on your property, it seems that some aspect of curtilage would apply.


Link Posted: 3/9/2006 1:55:10 PM EDT
That is a bunch of BS. Hope everything works out ok.

PS I hate tow truck companies as well. They are predators around here since it is a college town. I got towed once, cost me $145 to get my truck back (with a dented bumper and miss aligned steering).
Link Posted: 3/9/2006 3:34:53 PM EDT
Link Posted: 3/9/2006 4:46:20 PM EDT
[Last Edit: 3/9/2006 4:51:37 PM EDT by possumkop]
I never understood why those associations make up all those stupid rules. I'm looking for a house right now and am trying my best to stay away from them, but it's hard to find anything in my price range. Based on your post, I'm suprised that you were even charged. I've never seen any officer in the two agencies I worked for get a warrant w/o talking to both parties first. But then again VA has much different system than here in WV. Best of luck to you.
Link Posted: 3/9/2006 4:51:56 PM EDT
Holy crap, hopefully the DA will drop the charges when he realizes the case dosen't have much merit. Having the CHP is definatley a big thing your lawyer can stress. Weird thing is that if you went out with it concealed the whole time you wouldn't have broke the law, and if you went out with it in a holster you wouldn't have broke the law. Good luck.
Link Posted: 3/9/2006 6:43:28 PM EDT
may want to look into the relationship between the tow truck driver and the security gaurd,,
not the broke back mountian thing,

but one may be "hooking" (slight pun intended) the other up and getting a kickback,

if so, you may want to alert your HOA,

if you have a good lawyer, use him/her to make those guys lives miserable,,,,
Link Posted: 3/10/2006 6:21:26 AM EDT
I am pretty sure you have nothing to worry about , I had a guy send a .44 magnum slug about a foot over my and my wife's head when we in bed "accidently" (negligently) and he got a $250 fine and got his gun back. I have sat in on alot of court cases when I was in school and find you can get away with alot of stuff


I really think this is going to get dismissed.
Link Posted: 3/10/2006 6:47:00 AM EDT
Well you will be in general district court, there will be no jury like dude was saying. The part about it being your property is important because of the public place part of the requirement in the code. Now it is up to the judge to decide if the front yard is public but the fact that it was your property and not a random street corner as you were coming out of windys that will help the totality of circumstances. Also, you reasonably considered that the person might be armed and you brought the weapon for your safety. The fact that someone would try and break into your truck, possibly committing a felony, at night while you were home can help further your suspicion that he might be armed or intended to hurt someone if confronted.
Link Posted: 3/10/2006 7:27:24 AM EDT
be sure to point out to the judge that the tow driver/security guard "felt threatened" because they were engaging in dangerous activity under the cover of darkness on someone elses property.

It's called contributory negligence.

additionally, I think it's important to state that you were not out there to protect you property with force...you were there to investigate the matter. The pistol was to protect YOU, not the vehicle.
Link Posted: 3/10/2006 7:33:01 AM EDT
Like I said before, I dont think they should have been there to begin with. I would ask the security company where in the law it says that they can come onto your private property and tow your car. I would also file a complaint with DCJS.
Link Posted: 3/10/2006 7:46:31 AM EDT

Originally Posted By NoVaGator:
be sure to point out to the judge that the tow driver/security guard "felt threatened" because they were engaging in dangerous activity under the cover of darkness on someone elses property.

It's called contributory negligence.

additionally, I think it's important to state that you were not out there to protect you property with force...you were there to investigate the matter. The pistol was to protect YOU, not the vehicle.

I am going to have to file than fancy term to use for a later date.
Link Posted: 3/10/2006 7:54:59 AM EDT

Originally Posted By VTHOKIESHOOTER:

Originally Posted By NoVaGator:
be sure to point out to the judge that the tow driver/security guard "felt threatened" because they were engaging in dangerous activity under the cover of darkness on someone elses property.

It's called contributory negligence.

additionally, I think it's important to state that you were not out there to protect you property with force...you were there to investigate the matter. The pistol was to protect YOU, not the vehicle.

I am going to have to file than fancy term to use for a later date.



it's worth noting that contributory negligence is only a defense to a tort claim....not a criminal charge.

(I'm not a lawyer, but my wife is and I helped her study for the bar by using flash cards....I know all sorts of useless crap)
Link Posted: 3/10/2006 7:56:05 AM EDT
Good luck, keep us posted
Link Posted: 3/10/2006 8:10:54 AM EDT

Originally Posted By NoVaGator:

Originally Posted By VTHOKIESHOOTER:

Originally Posted By NoVaGator:
be sure to point out to the judge that the tow driver/security guard "felt threatened" because they were engaging in dangerous activity under the cover of darkness on someone elses property.

It's called contributory negligence.

additionally, I think it's important to state that you were not out there to protect you property with force...you were there to investigate the matter. The pistol was to protect YOU, not the vehicle.

I am going to have to file than fancy term to use for a later date.



it's worth noting that contributory negligence is only a defense to a tort claim....not a criminal charge.

(I'm not a lawyer, but my wife is and I helped her study for the bar by using flash cards....I know all sorts of useless crap)

Hell I find it usefull even if the only time I will be able to use it is if it comes up on Jeopardy. Knowing useless crap means one day that useless crap will become usefull.
Link Posted: 3/10/2006 2:05:24 PM EDT

Originally Posted By NoVaGator:
be sure to point out to the judge that the tow driver/security guard "felt threatened" because they were engaging in dangerous activity under the cover of darkness on someone elses property...


Don’t know if that’d be a good argument - I get the impression the tow truck guy said he felt threatened due to the presence of the handgun.

Anyway, absolutely talk to a good lawyer before saying anything. The first words out of your mouth are going to be very important.

I don’t know the legalities, but maybe getting your lawyer to get a statement from the tow truck driver before someone else talks to him might be a good idea if doable.

I’d think the fact that the security guy was apparently trespassing on your property after dark should make your legal position much better.

I don’t get the bit from other members about countersuing since nobody is suing you yet (nor are they likely to).

That said, assuming you are not found to have acted illegally, I’d consider threatening to sue the HOA for putting you in this position by the (I guess) illegal acts of one of it’s employees. Maybe sue for legal fees. Possibly you can at least get this guy fired and/or get your legal fees covered.

While I don’t see the point, you might even able to get a similar complaint filed against the security guard for trespassing (though I’m wondering if your HOA agreement might allow him to do this?)

Wish you luck in this.
Link Posted: 3/10/2006 3:39:25 PM EDT

Originally Posted By 199:

Originally Posted By NoVaGator:
be sure to point out to the judge that the tow driver/security guard "felt threatened" because they were engaging in dangerous activity under the cover of darkness on someone elses property...


Don’t know if that’d be a good argument - I get the impression the tow truck guy said he felt threatened due to the presence of the handgun.




My point was that the guy should expect to feel threatened because he's doing something inherently dangerous......much in the same way anyone caught in the act of a shady behavior might expect SHTF. The pistol was just icing on the cake.
Link Posted: 3/10/2006 5:25:22 PM EDT
[Last Edit: 3/10/2006 5:29:38 PM EDT by El_Abogado]
Dude, I'm not your lawyer and I'm not giving you legal advice, but I've got to say the following.

1. Until you are cleared, you should not post anything on a public forum. This is discoverable and may be considered a statement against interest.

2. If you are going to be on your property, either go concealed OR wear openly in a holster. It was a really poor idea to walk out with your pistol in your hand. Whatever your intentions, it is much easier to argue "brandishing" when you are holding a pistol than when it's concealed or safely stored in a holster.

3. You should not have answered any questions from either individual.

4. Once you saw the security guard, you should have gone back into your house and stored your firearm.

5. Unless you live in Texas, you may not use deadly force to protect property. Your life was not in danger while you were in your house, no matter how shadyh the character was.

6. I doubt that either the tow truck driver or the security guard violated any laws. Whether their actions are proper is another thing. You should read your HOA rules very closely. If the rules say that you must have your vehicle registered, you better have it registered. Don't like it? Move somewhere else. HOA rules are voluntary and a condition of living in the community.
Link Posted: 3/10/2006 6:56:48 PM EDT

Originally Posted By NoVaGator:
tow truck drivers are the lowest forms of life on earth.




That is the absolutely most truthful statement I have ever seen on this site.

I've only had one experience. It was enough to make me hate tow truck drivers forever.
Link Posted: 3/10/2006 9:09:28 PM EDT
Man, win this and countersue. PLEASE countersue. And buy toys with it. Do it for all college students everywhere.


I got towed from my apartment lot back in PA. With a valid parking permit. They tried to charge me anyway for their mistake. One time in my life where threatning a lawsuit and criminal charges worked, and I got my car back from the bastards.
Link Posted: 3/10/2006 9:20:07 PM EDT
Tom, good luck! I would definitely contact the security company and express my displeasure with the guard for acting against the people he's supposed to protect. It's amazing what a simple phone call would have done. "Mr. tspike, we're coming to tow your car for expired plates...please don't shoot us as we're coming at night." Morons. Hopefully, you'll get a sympathetic judge who will see this for the foolishness that it is.


Link Posted: 3/11/2006 2:33:24 AM EDT
Talk to a good lawyer and let him be your mouthpiece.

You're a fish out of water in court. You need someone that really knows that enviroment and that's a lawyer.

My personal opinion after being in court as a witness, and later a juror, is that if you don't have a lawyer, you're going to get screwed.

I wouldn't do heart surgery on myself. I'd get a good doctor. I wouldn't represent myself in court. I'd get a good lawyer.

It sounds like you'll be OK, but with so many little things that can be made to seem one thing or the other by the way you told the story, I'd think paying a professional to do the telling is the way to go.

Also don't ever live in place with an HOA.

Link Posted: 3/11/2006 11:00:36 AM EDT
It is a shame VIrginia, and other states do not have Floridas "Castle Doctrine law"

Do not say anything until you have spoken with your lawyer. Virginia magistrates can be surprisingly harsh when deal with any gun law violations or similar matters.
Best of luck.
Link Posted: 3/11/2006 7:26:35 PM EDT
Link Posted: 3/11/2006 11:23:22 PM EDT

Originally Posted By Ross:

Also don't ever live in place with an HOA.





Yeah.

There's a reason I'm buying a place way out in the country when I get a job. It ain't 'cause I like yardwork.
Link Posted: 3/12/2006 2:53:58 AM EDT
HOA rules would boarderline if it would be legal for them to trespass onto your property and take your stuff. Sorry, but security officers under state law are prohibited from following employee laws that are contrary to state law. If you own the house and you tell him to leave, he has to leave unless he is arresting you for a crime. He couldnt do that because he didnt arrest you then for brandishing. I think your actions were as close to common sense as they could be. The situation was a bad one but you didnt cause it by lurking around in someones yard at night. They are lucky you wernt some nut job and offed them both. Dont mean to be so harsh when I say that but they dont know so why are they going to do that expecially at NIGHT.
Link Posted: 3/12/2006 5:12:43 AM EDT

Man, win this and countersue. PLEASE countersue.


He's not being sued. He's being prosecuted.
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