Virginia Tech publishes final ‘Weapons on Campus’ regulation

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.

UPDATE:  JMU has reportedly finalized their proposed regulation as well.

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.


About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group OpenCarry.org.

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
This entry was posted in Administrative Regulations, Campus Carry, Virginia. Bookmark the permalink.

7 Responses to Virginia Tech publishes final ‘Weapons on Campus’ regulation

  1. Matt Arnold says:

    This phenomenon is, unfortunately, widespread – affecting colleges and universities across the nation.

    In Colorado, CSU tried to implement a gun ban but were stopped by a court case (when CU’s gun ban was struck down by the Colorado Court of Appeals in 2010).
    The CU Board of Regents appealed the case to the Colorado Supreme Court – had they won, CSU’s gun ban would’ve come right back.
    Fortunately, the composition of the Colorado Supreme Court changed in that period of time – Mullarkey was forced out before the elections, and Martinez quit after the elections – so that the CU Gun Ban was decisively defeated in a triumph for the rule of law:
    http://www.clearthebenchcolorado.org/2012/03/06/colorado-supreme-court-upholds-colorado-court-of-appeals-rejection-of-cu-gun-ban/

    Now, however, the University of Colorado Board of Regents appears poised to promulgate a similar legal end-run via “regulation” or contractual imposition (making abdication of one’s statutory or constitutional rights to keep and bear arms a condition of employment or enrollment).

    Unless this year’s elections result in a change in the composition of the CU Board of Regents, the approach may succeed in establishing a very bad precedent.

    Fortunately, there IS a constitutional conservative and strong, principled leader running on a platform of reform: http://www.arnold4colorado.net/

  2. TFred says:

    Nobody has ever been able to explain to me how this exemption from the long process of establishing these regulations:

    6. Educational institutions operated by the Commonwealth, provided that, with respect to § 2.2-4031, such educational institutions shall be exempt from the publication requirements only with respect to regulations that pertain to (i) their academic affairs, (ii) the selection, tenure, promotion and disciplining of faculty and employees, (iii) the selection of students, and (iv) rules of conduct and disciplining of students.

    applies to an educational institution which is making regulations that specifically address the behavior of ordinary citizens, unaffiliated with the institution in any way.

    This is the short term answer, all these new regulations were instituted in violation of the rules, and should be rendered null and void.

    Please, someone tell me what I am missing!

  3. 230therapy says:

    These rules obviously violate Section 13 of the Constitution of the Commonwealth of Virginia.

  4. jmelvin says:

    I would like to understand if 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

    are even permitted to keep a firearm or any of the potential weapons in the car on campus during their visit. If it is not permissible for the vendors and third parties who are involved in the list of events or activities to keep firearms and other weapons in their vehicles left on campus, then you potentially have tens of thousands of people who visit the campus for sporting events who may be eligible for the punishment of a Class 1 Misdemeanor which includes 12 months imprisonment and the leveraging of large fines for daring to keep any of these object even in their car during the games, all the while thinking they have violated no law.

  5. John Pierce says:

    Jmelvin,

    I believe the answer to your question is in 8VAC105-20-20. While it is written in a very vague and arguably over-broad fashion, I believe the use of the phrase ‘facilities’ where ‘storing’ is concerned, coupled with the holding in DiGiacinto would tend to mean that the ban does not extend to visitors or third parties which have lawfully stored firearms in their vehicles in parking lots.

    Having said that, the punishment under the regulation where visitors are concerned appears to be a trespassing charge, also laid out in 8VAC105-20-20 which does allow a visitor to comply voluntarily prior to a charge being laid.

    “B. Any such individual who is reported or discovered to possess a firearm or weapon on university property will be asked to remove it immediately from university property. Failure to comply may result in a student conduct referral, an employee disciplinary action, or arrest.”

  6. John Pierce says:

    Tfred,

    What you are missing is that you are correct in that Virginia Tech is still not exempt from the PUBLICATION requirements of § 2.2-4031 (which is why they had to publish in the Virginia Register for the regulation to take effect). But they ARE exempt otherwise. Therefore, as ill-informed as it is, this reg was promulgated properly. :(

    • TFred says:

      I’m still not satisfied… the four exemptions listed are to the extensive review process. Virginia Tech did not complete that review process. It is quite clear that the regulation does not satisfy any of the four exemptions listed, since it applies to “visitors and third parties”.

      Virginia Tech has enacted a new law that applies to all citizens of Virginia who are otherwise entitled to carry a weapon. This new law was not passed by the legislative process. It should be considered null and void.

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