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A violation of constitutional rights? Staunton incident highlights gun-rights debate

The Top Story by Chris Graham

“Three guys came into the restaurant, and two of them had guns in their belts. And, I mean, they didn’t look like undercover police. But then again, what does undercover police look like? But … uh … it just looks kind of odd. They kept getting up and going to the restroom and coming back and forth. They went to the restroom at least twice each. And I’m just a little concerned about it.”

The 9-1-1 call was logged at 6:31 p.m. the evening of July 15.

The caller was a patron at Casa di Scotto’s in downtown Staunton.

“Black or white?” the emergency dispatcher asked.


“One of them?” the dispatcher inquired.

“Three of them.”

“Can you describe them any more than that?”

“They’re sitting in the corner table,” the caller answered. “One of them … I should say two of them … are about six-foot, six-foot-two, maybe, mid-30s. One looks like he’s carrying either a Glock or, I’ll say, a .45.”

“Are two of them armed, or all they all armed?”

“I can only tell if two of them are armed. The other one, I couldn’t tell. The one that didn’t look like he was armed is the one that is in the red shirt. The other two appear to be definitely armed.”

‘Weird call’

Alexandria resident David Yates was one of the men sitting at the corner table at Casa di Scotto’s that evening.

“We sat down for dinner, and I would guess that maybe 10, 15 minutes after we sat down, one of my friends said he had seen a bunch of police cars rolling up. We kind of figured that something had happened. What really made it surreal was finding out why they were there,” Yates told The Augusta Free Press.

Yates has listened to the tape of the 9-1-1 call numerous times. To his ear, it sounds that it all comes down to a couple of trips to the bathroom.

“When you listen to the call, the whole premise of going to the bathroom being suspicious is kind of really out there. I know that that isn’t the only thing – but I think the salient point is that I think the caller was reaching for a problem,” Yates said.

Yates also thinks the dispatcher and the officers sent to the scene were themselves reaching for a problem – and a second call logged on tape a few minutes after the initial 9-1-1 call in which an unidentified Staunton police officer phoned Casa di Scotto’s and asked to speak to a manager there to find out what was going on inside the restaurant might back him up on that point.

“I don’t want to alarm you or anything, but I just got a weird call, and I’ve got officers on the way to your restaurant because of it, and I wanted to see what you see – what’s going on out there. I mean, does everything appear OK right now?” the officer asked the manager once she got to the phone.

“Yes, as far as I can tell,” the manager responded.

“I had somebody call me and tell me there are a couple of armed men sitting in one of the booths in the corner.”

“Yes, yes. I know one man has a gun.”

“OK, do you know who he is? Are they causing any problems?” the officer asked.

“I didn’t notice anything bad. I know they are drinking.”

“They’re drinking alcohol?”

“Yes. Only one …”

“They’re drinking alcohol. All right. But they’re not causing any problems?” the officer queried.

“No, no, no, no, no.”

“If you could tell the officers. We do have officers on the way to check on them, OK?”
The manager’s next reply was unintelligible on the tape.

“I want to … you’re sure there’s nothing going on? You’re OK?” the officer asked next.

“We are fine.”

“OK. If anything changes, go ahead and call us right back.”

“What I have an objection to, shall we say, is that the call was not handled well at the various stages,” Yates said. “You can hear the words that were actually said – at dispatch, in the cruiser, right up to the point where they got on scene. I think anybody can draw their own conclusion that the officers knew what this was about – and they certainly were not in any hurry to get involved in it.”

According to a police report filed on the incident, it took 12 minutes until the first units arrived on the scene at Casa di Scotto’s – an intriguing amount of time given the restaurant’s proximity to the police department’s headquarters in the downtown district.

The actions of the officers once they had arrived were also intriguing in the eyes of Yates.

“The officer in charge greeted us by indicating that they had received a call of armed people in the restaurant. At this point, the officer in charge asked, ‘Do you have identification?’ ” Yates said.

Yates replied that he did have ID, as did his dinner companions.

The officer in charge then told them that he needed to see them.

“He then ordered a younger officer to remain with us and ‘make sure they stay put,’ Yates said.

“The officer in charge returned after a few moments and said they were in the process of running background checks. When they were complete, he again approached us, returned our respective IDs and said, ‘Gentlemen, I understand that you have a right to be here, but the owner has said that they want you to remove the firearms from the restaurant, and that’s their right,” Yates said.

‘A hassle’

There has been a good bit of discussion in the Virginia General Assembly in recent years on the guns-in-restaurants issue. Current Virginia law does not place any prohibitions on the right of residents to openly carry weapons in restaurants – though, curiously, to some, there is a stricture on the books on carrying concealed weapons in restaurants.

Yates has a valid Virginia concealed-handgun permit.

“I’m astounded that this kind of thing can still happen in Virginia – because it’s no secret that state law requires open carry in restaurants, it’s no secret that open-carry is legal, and it’s no secret that people wash their hands before they eat dinner,” said Mike Stollenwerk, an Alexandria resident who got caught up in a similar kind of encounter with police in Reston when he and a group of friends, including Yates, sat down for dinner at a Champps restaurant in 2004 with guns strapped to their hips in plain view.

“That was a relatively mild encounter. It was just a little bit dramatic. A bunch of us after shooting had gone to eat at Champps in Reston, and the Fairfax police got called by somebody out in the street. At the end of the day, basically, they came, they saw, and they left. It was played up by The Washington Post as this huge, dramatic incident that illustrated that the General Assembly was out of control by continuing to allow people to open-carry in restaurants – but that was nothing to what it appeared to what they went through,” Stollenwerk said.
“The Fairfax County police responded to a man-with-a-gun call. They didn’t demand our IDs. They didn’t demand or tell us to stay seated. There was none of that. It was a little bit weird – but oh, well, they left. This Staunton thing is, I think, much more intrusive,” Stollenwerk told the AFP.

Yates has been pressing the issue of apparent intrusiveness in a string of communications with the Staunton Police Department in which he has requested that the city come up with and implement a policy for dealing with 9-1-1 calls involving reports of “armed citizens” who are not otherwise engaged in suspicious activity that does not include the kind of heavy-handed police measures that he feels he was made to fall victim to.

“I really think that more than likely this was an issue of standard procedure that doesn’t fit the specific situation. Nothing that was alleged was wrong. There has to be a nexus to some kind of wrongdoing, and there was none,” Yates said.

“This encounter could have been handled at a much lower level – with greater simplicity. This could have and should have been so much less of a hassle for everybody,” Yates said.

Staunton police chief Jim Williams, for his part, doesn’t like the description of his department’s handling of the Casa di Scotto’s incident as a hassle.

“We were responding to a citizen’s call for service. This wasn’t something that we initiated,” Williams told the AFP. “A citizen had called and said that there were individuals who were carrying guns in the restaurant, and there was something about them that didn’t look right. This isn’t something that you see every day in Staunton, and in the mind of the citizen making the complaint, the subjects seemed to be acting suspiciously. So they asked us to come check it out.
“I don’t know that you can ignore what was said by the person who initiated the call for service,” Williams said. “There is a balance in these kinds of situations between a citizen’s rights and the protection of the public. There has to be that balance.”

Staunton Commonwealth’s attorney Ray Robertson struck a similar chord in a Sept. 1 response to a letter from Yates asking for clarification of details of the police department’s response to the July 15 9-1-1 call.

“It was a patron of the restaurant who considered the activity of Mr. Yates and his friends suspicious enough that he made a 9-1-1 call to the police department,” Robertson, who serves as the chief legal advisor to the city PD, wrote in the letter. “It is disconcerting to many people to see laymen in public with guns strapped on their hips, although it is legal in many cases.

“The gun-toting patrons were also alleged to have left the open portion of the restaurant and gone to a back room (presumably the bathroom). In this day and age, when so many robberies occur, with so many disturbed people opening fire randomly in establishments like restaurants, and in which the threat of terrorism has become more and more scary to many citizens, it seems perfectly reasonable to me that a patron not used to observing such activity might place an emergency call.

“Complaints of this nature do not have to allege an illegal activity. All they need to show is an articulable suspicion. I would analogize with the case of a patrol officer late at night who observed a car driving very slowly, alternately going off the side of the road and then crossing the center line, and making wide turns. None of these actions constitute an illegal activity. However, they do arouse suspicion, and that is enough to give the officer the right, and indeed the responsibility, to investigate further.

“It seems to me that this is what the officers did in this case,” Robertson said.

Robertson declined to offer further comment on the matter when contacted by the AFP.

‘A constitutional right’

Fredericksburg Republican Del. Mark Cole has been working with fellow state legislators to add some common sense to the laws regarding open-carry and concealed-carry.

“The current law makes absolutely no sense,” Cole told the AFP. “What the current law does is prohibits someone who has had a criminal-background check done, and has a demonstrated proficiency in the safe handling of a gun, and has been issued a permit to carry concealed by the state, it prohibits them from carrying the gun concealed in any restaurants that serve alcohol. However, if they open-carry, if they show everybody that they’ve got a gun, they can carry – as can anybody who does not have a permit and can lawfully carry a gun. The current law is just plain stupid.

“We place way too many restrictions on concealed-carry,” Cole said. “You ought to be able, if you have a permit, to concealed-carry anywhere that you can open-carry. To place additional restrictions on concealed-carry makes absolutely no sense.”

Guns in restaurants – particularly those that serve alcohol, like Casa di Scotto’s – don’t make much sense, either, in the eyes of John Shanks, the director of law enforcement relations at the Washington, D.C.,-based Brady Campaign to Prevent Gun Violence.

“You think about barrooms and barroom brawls – and so many times away from bars, conflicts that are typically an exchange of words or maybe a pushing or shoving match, you introduce a gun into that, and it automatically turns into a deadly type situation. You do that, and then introduce a gun and alcohol into it, and not only are you putting the two people that are fighting who are in disagreement at risk, but you’re putting everybody in that room at risk. Because where are those bullets going to go if you miss the person, one, and two, if it goes through that person and comes out the other side at close quarters, where is that bullet going to go? What other innocent victims are going to be taken down by having a drunk with a gun?” Shanks told the AFP
“Police officers are trained to think before they pull the trigger – am I justified in pulling the trigger? Has the use-of-force continuum been met to where I’m authorized in using deadly force? They also have to think about – what’s behind my target, and what are the consequences of pulling the trigger, where is that bullet going to go if it goes through the suspect, if I miss the suspect? They think about that as well – and when you talk about people who are concealed-carry, or people who are carrying with no license at all openly, that thought process does not necessarily take place. They just have this kind of macho chip on their shoulder, and they say, Oh, there’s somebody who’s a threat, I’m going to shoot them. And they don’t think about the consequences and where that bullet is going to go,” Shanks said.

Bob Ricker of the advocacy group Virginians for Public Safety said state law needs to be updated to reflect these new realities.

“We’re opposed to guns anywhere there’s alcohol served – whether or not it’s open-carry or concealed-carry,” Ricker told the AFP.

“The state of the law in Virginia is that under the concealed-weapons-permit law, if you’re a permit holder, you’re prohibited from taking your gun concealed into a restaurant or bar. The open-carry part of it is there’s nothing that says you can’t do it, and there’s nothing that says you can do it – it’s just not covered under the law. So what’s happened is, a lot of people who I think are really irresponsible gun owners, what they do is, if they go into a restaurant or bar that serves alcohol, if they have a concealed-weapons permit, they simply unconceal the weapons and claim that they are legal.
“Everybody who is an expert in firearms recognizes the fact that guns and alcohol don’t mix. We think this is a very, very dangerous situation – not only the fact that somebody would have a gun in a bar and may be consuming alcohol, but especially a gun that’s openly carried. Even someone who goes into a bar or restaurant openly carrying who is not consuming alcohol, that gun sticking out there is an open invitation for anybody who’s had one or two drinks too many and can grab at it or do anything else.

“It’s one of those situations where it’s just not a safe firearms practice to have guns around alcohol,” Ricker said.

“We think that this whole kind of Wild West atmosphere that the gun lobby is promoting is really very counterproductive,” said Jim Sollo, the vice president of the advocacy group Virginians Against Handgun Violence.

“Most of these people are not trained in when it’s legitimate to use their weapons. The whole thing is just rife with problems. The more you get guns out in places where there are lots of people, the more you get them out in public, the more likely things are likely to go bad,” Sollo said.

“I know people are always saying, well, they’re going to be the hero, they’re going to run in there and stop the guy who’s robbing McDonald’s – but those things almost never happen. And so it’s just kind of a macho thing that doesn’t do anything except create danger,” Sollo told the AFP.

Joining Cole in the fight to protect the current open-carry law and amend the restrictions on concealed-carry is Philip Van Cleave, the president of the Virginia Citizens Defense League.

“We’re the only state in the union that requires that somebody openly carry in a restaurant as opposed to keeping their guns concealed. There are a few states that won’t let you carry in a restaurant at all – but the vast majority of them, if you have a permit, you’re perfectly free to carry in a restaurant that serves alcohol,” Van Cleave told the AFP.

“We’re the lone state that says, Well, we trust you to carry virtually everywhere you want concealed, but in a restaurant, even though you don’t drink, and you’ve got no problems with drinking and driving, because you couldn’t get a permit if you did, we know all of that about you, but we still don’t trust you to carry concealed.

“Many restaurants would love to see that changed. We run into places where the owner will say, We don’t like you carrying in here. Geez, I wish you could conceal it. And then we have to explain to them why.

“We’re constantly looking at the issue – because this is a constitutional right that we’re talking about here,” Van Cleave said.

‘Not happen again’

Yates has heard from Williams and Robertson to get their read on the events of July 15 – and is not satisfied with what they have had to say.

“I don’t want the conduct of the officers on the scene personally called into question. I never felt that they were unprofessional or anything like that. But a friend of mine said, Does being polite excuse being a tyrant? I’m not likening them to tyrants, but again, six cars for nothing wrong? Six cars for going to the bathroom?” Yates said.

“I don’t think it’s responsible of them to not have some kind of policy to deal with a situation like this,” Yates said. “To automatically assume criminality violates the entire tenet of our Constitution. The whole presumption of innocence gets thrown out the window when you start sending a six-car response to a bunch of people going to the bathroom.

“I did not ask for an apology. I did not ask for any kind of money compensation or anything like that. I simply want it to not happen again,” Yates said.

Williams noted in an Oct. 1 letter to Yates that he plans to address the issues that have been raised in connection with the Casa di Scotto’s incident with his department.

“We are always looking to improve our level of service to the citizens whom we serve, but we will meet with all of our officers and dispatch personnel to remind them that there is no law that prohibits individuals from carrying firearms in public places,” Williams wrote in the letter.

Aside from that, though, “We have to handle these kinds of things on a case-by-case basis. That’s the way that the courts handle these cases,” Williams said.

“This is not something that is common – and people are generally worried when they encounter these kinds of things. And they think it’s getting worse. They see reports on TV about school shootings and the other things going on, and they get worried when they think that something might happen. And then they call us – and we have to act,” Williams said.

(Originally published 10-16-06)