In the April 9, 2012 edition of the Virginia Register, the final Virginia Tech ‘Weapons on Campus’ regulation was published and now has the force and effect of law.
The regulation, which is codified at 8VAC105-20-10 through 8VAC105-20-40, addresses the “carrying, maintaining, or storing” of both “firearms” and “weapons.”
The regulation specifically separates the two terms and defines them broadly. In 8VAC105-10, firearms are defined as:
… any gun, rifle, pistol, or handgun designed to fire any projectile including but not limited to bullets, BBs, pellets, or shots, including paint balls, regardless of the propellant used.
Weapons are defined in the same section as:
… any instrument of combat, or any object not designed as an instrument of combat but carried for the purpose of inflicting or threatening bodily injury. Examples include but are not limited to (i) firearms; (ii) knives with fixed blades or pocket knives with blades longer than four inches; (iii) razors or metal knuckles; (iv) blackjacks, foils, or hatchets; (v) bows and arrows; (vi) nun chahkas; (vii) stun weapons; or (viii) any explosive or incendiary device. Stun weapon is defined as any device that emits a momentary or pulsed output that is electrical, audible, optical, or electromagnetic in nature and that is designed to temporarily incapacitate a person.
From a legal perspective, it is interesting to note that this definition of ‘weapon’ clearly would encompass even pepper spray carried by an employee or student for self-defense since it is ultimately carried for “the purpose of inflicting or threatening bodily injury” when necessary. And the exceptions to the general prohibition codified at 8VAC105-20-30 do not include any provisions that would allow even the most basic of non-offensive self-defense tools.
Since a jury recently held that Virginia Tech has a “special relationship” with students such that the students could be expected to be reasonably protected, forbidding such basic personal protection options to students will almost certainly give rise to future lawsuits against the university.
In any case, returning to an analysis of the regulation as promulgated, it addresses the behavior of two distinct groups of people.
The first group is comprised of “university’s employees, students, and volunteers.” This group of people is generally prohibited from “carrying, maintaining, or storing a firearm or weapon on any university property.”
The second group is comprised of “[a]ny visitor or other third party.” However, in attempting to bring this group under the auspices of the power granted to the University by their enabling statute at § 23-122 of the Code of Virginia, they limit the times that visitors and third parties are subject to the prohibition. The regulation only applies to those visitors and third parties who are:
- attending a sporting event
- attending an entertainment event
- attending an educational event
- visiting an academic building
- visiting an administrative office building
- visiting a dining facility
- visiting a residence hall
- attending any events on campus where people congregate in any public or outdoor area
In drafting the regulation, Virginia Tech clearly paid close attention to the holding in DiGiacinto v. Rector and Visitors of George Mason University which held that a campus regulation is constitutional where it “is tailored, restricting weapons only in those places where people congregate and are most vulnerable – inside campus buildings and at campus events.”
One might argue that the last element in the Virginia Tech regulation is too vague and would have a chilling effect on non-regulated carry, exceeding the holding in DiGiacinto by not clearly defining “the open grounds of [the university], and … other places on campus not enumerated in the regulation” where carry is not prohibited. But given the dicta in DiGiacinto, I believe the current court would ultimately uphold the regulation despite the thinly veiled attempt to impose what is effectively a total ban.
And Virginia Tech is not the only University to use the holding in DiGiacinto, coupled with the almost complete exemption to the Virginia Administrative Process Act (VAPA) that Virginia grants to colleges and universities operated by the Commonwealth to promulgate similar fast-track regulations.
Both Old Dominion University and Longwood University in Farmville Virginia published their final bans in the January 30, 2012 Virginia Register.
In the January 2nd, 2012 Virginia Register, VMI and William and Mary published their final bans and Richard Bland College published a proposed ban.
And in the December 5, 2011 Virginia Register, UVA and Virginia State University in Petersburg published their final bans.
Long-time readers of this blog will remember that I wrote about Attorney General Cuccinelli’s opinion that UVA’s policy prohibiting carry on campus is trumped by Virginia’s concealed carry law but a properly promulgated regulation is not. Consequently, UVA used their VAPA fast-track powers to start this trend which has lead us to where we are today.
So where do we go from here? If we are serious about protecting the self-defense rights of adult students and employees of Virginia’s many fine colleges and universities, then we need to make Administrative Agency preemption one of our key goals in the upcoming legislative session.
© 2012, John Pierce. All rights reserved.