Plaintiffs have filed their response brief in Woollard v. Sheridan

Posted on May 10, 2012 by John Pierce

Judge Benson Everett Legg

As you may recall, Woollard v. Sheridan is the Maryland case in which US District Court Judge Benson Everett Legg struck down Maryland’s discretionary may-issue handgun permitting scheme.

In that ruling, he held that “the right to bear arms is not limited to the home” and declared Maryland’s requirement that applicants articulate a “good and substantial reason” unconstitutional both in general and as-applied to Mr. Woollard.

As reported in this column, Judge Legg subsequently granted a temporary stay of his order pending a consideration of arguments for and against the issuance of a permanent stay.  The temporary stay laid out a timeline in which three briefs will be filed before he makes his final decision.  The first was an April 19th deadline for the state.

In this reporter’s opinion, the state’s arguments in their first brief were scattered, unsupported by facts, and in some cases outright misleading.  They claimed that they were only concerned about applicants who do have a “good and substantial reason”, that permit holders are dangerous, that shall-issue permits increase crime, that such a system would be difficult and expensive to maintain, and most astonishingly, that people should instead open carry rifles or shotguns for self-defense.

The deadline for the plaintiff’s response was yesterday and, as expected, attorneys Alan Gura and Cary Hansel absolutely shredded each of the state’s points.

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Plaintiff’s attorneys quickly latched onto the concession in footnote 1 of the state’s brief wherein the state concedes that the court has no discretion to grant a stay as-applied to the plaintiff.  They note that this case involves “the widespread denial of a fundamental constitutional right” and that since the state has “never claimed that Woollard is differently-situated than anyone else, or that they erred in applying the [“good and substantial reason”] requirement against him … [i]f the Court lacks discretion to stay the injunction in Woollard’s favor, it lacks discretion to stay the injunction in the public’s favor.”

As for Maryland’s claim that administering a shall-issue permitting system would impose significant costs and burdens upon the state, plaintiffs’ attorneys noted that “the costs of obeying the constitution are irrelevant” especially where what is at stake is “the continued deprivation of a fundamental right.”  They also noted that Maryland is part of an extremely small minority of states which do not administer their permit systems as shall-issue and that none of the existing shall-issue states appear to have the administrative problems which Maryland is predicting.

Moving on to the claim that states with shall-issue permits have increased crime or that permit holders themselves are dangerous, plaintiffs’ attorneys compared Maryland’s crime rates with those of surrounding states with shall-issue permitting schemes.

Citing FBI Uniform Crime Reports statistics, they demonstrate that Maryland, with its discriminatory rationing system, is far more dangerous than  Virginia, West Virginia, Pennsylvania, Delaware, North Carolina, and South Carolina, where firearm murder rates are concerned.

They also provided the following data comparing crime statistics per 100,000 residents in may-issue and no-issue states as a bloc vs the national average.

May/No Issue States

National Average
Firearm Murders

4.41

2.84
Firearm Robberies

56.62

42.00
Firearm Assaults

32.62

45.00

They put the finishing touches on this argument by citing to McDonald v. Chicago wherein the court stated that analyzing Second Amendment cases does not “require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise.”  In short, the battle of competing studies which Maryland introduced in their first brief are not of the nature that is useful or appropriate in making such a decision.

They end their brief by quoting from the 2012 case of Bateman v. Perdue.  As a Second Amendment advocate, I find this quote both heart-warming and indicative of a sea-change in how the courts are treating Second Amendment cases.

“[T]he Second Amendment right to keep and bear arms ‘is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur’. . . . Although considerable uncertainty exists regarding the scope of the Second Amendment right to keep and bear arms, it undoubtedly is not limited to the confines of the home.”

There is much more in the opinion and I would encourage everyone to read it all when you have the time.  We are one more step closer to what is looking more and more like a decision to lift the stay and bring Maryland kicking and screaming back into the fraternity of states which give the proper legislative and judicial weight to the Second Amendment.

UPDATE:  The state has filed their final brief

Posted in Abuse of Discretion, Maryland, Permit Requirements | 7 Comments

Gun owners’ guide to the 4th Amendment: Seizures

Posted on May 9, 2012 by John Pierce

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … – 4th Amendment

One of the most common interactions between law-abiding gun owners and law enforcement occurs when  a citizen, unfamiliar with the practice, sees someone openly carrying a firearm in a store, or a park, or just walking down the street.  In many cases, they call the police to report what the media has lead them to believe must be a crime.

This usually results in a law enforcement officer approaching the person who is openly carrying their firearm to “ask them a few questions.”  This is what we call a law enforcement “stop”.  But not all stops rise to the level of a seizure subject to 4th Amendment protection.

The modern era of 4th Amendment jurisprudence started in 1968 with the landmark ruling in Terry v. Ohio.  Under Terry, a seizure occurs “[o]nly when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”

After Terry, there are three broad categories of allowable “stops”, only one of which is not considered a seizure of the person.  These are consensual stops, Terry Stops, and detentions which amount to arrest.

Consensual Stops

A consensual stop is one in which law enforcement approaches a citizen and initiates a conversation but the citizen is free to leave at any time.  This is the only of the three allowable stops which is not a seizure of the person for 4th Amendment purposes.

A perfect example of a consensual stop is this encounter between an open carrier and officer Evans of the Blacksburg, Virginia police department.  The officer asked his questions and, when the open carrier chose not to answer, identified himself and told the open carrier he was free to go.  The officer was knowledgable and professional.  I cannot commend him enough.

But not all officers are as professional and ethical as Officer Evans.  While claiming that a suspect is “free to leave at any time“, they often use interrogative techniques that make it difficult for a reasonable person to know whether they are actually free to leave.

This concept of an objective ‘reasonable person’ test first surfaced in the 1980 case of U.S. v. Mendenhall where the court articulated the rule that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

An important additional note from Mendenhall was found in the footnotes where the court stated that even if the officer had already decided to detain a person should they decide to leave, this does not factor into the analysis unless the officer has made this known to the person being ‘stopped’.  If the officer has made this known to the person being stopped then it will trigger the second “show of authority” prong from the Terry analysis, potentially making the encounter a ‘seizure’ for 4th Amendment purposes.

While the holding in Mendenhall sounds like a bright-line rule, the courts have continued to allow law enforcement significant latitude in this regard.  A recent example of this comes to us from Pima Arizona where an officer tells the open carriers that they are free to leave but when they attempt to leave, they are chased down and detained.

Take note of the discussion on the video of whether ID is required when stopped by police.  We will discuss that in a future segment of this column.

After Mendenhall, the next important seizure case occurred in 1991 with Florida v. Bostick.  Bostick involved officers boarding a bus at a bus stop and asking passengers if they would consent to a search of their luggage.  The twist in Bostick was the fact that the encounter occurred in a bus.  The defendant argued that, because he did not want to leave the bus and be left behind and thus “did not believe he was free to leave”, he was ‘seized’ without probable cause or even reasonable suspicion.

The court in Bostick stated that the “free to leave” language from the rule must be read in context.  They noted that, when an encounter occurs in an area where the citizen wishes to remain such as a bus, airplance, etc, the rule should be interpreted as whether they “would feel free to decline the officers’ request or otherwise terminate the encounter.”

There was also a second important 4th Amendment seizure case decided in 1991.  In the case of California v. Hodari the court refined the two prong test from Terry which required that, in  order for a seizure to occur, there must be either physical force or a show of authority.  Under Hodari, a mere show of authority is not sufficient to establish a seizure.  The suspect must also submit to that show of authority.

Terry Stops

A Terry Stop, named aptly enough for the aforementioned case of Terry v. Ohio, is a ‘seizure’ of the person (there is also a ‘search’ component to Terry which I will address in a future article but here we are focused on ‘seizures’).  According to the court, it is justified when “swift action based upon on-the-spot observations of the officer on the beat is required.”  No warrant is required for a Terry Stop, nor is there a requirement for probable cause such as would be a prerequisite for obtaining a warrant.  Rather, a Terry Stop requires only “reasonable suspicion that criminal activity may be afoot.”  If the officer wishes to search or “frisk” the person he is seizing, they must also have reasonable suspicion that they “may be armed and presently dangerous” but this is not required to simply seize the person.

If it isn’t the same as probable cause then what is reasonable suspicion?  According to the court in  Alabama v. White, reasonable suspicion is  “considerably less than proof of wrongdoing by a preponderance of the evidence.”  So what does that mean in real life?  Unfortunately, it is a low-bar indeed.  Reportedly, a common saying amongst law enforcement circles is that “Reasonable suspicion is what my nightstick says it is.”

The requirement of reasonable suspicion from Terry is known today as reasonable and articulable suspicion or RAS.  And if an officer has RAS that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, then the seizure is considered justified at its inception.  One can easily understand why this broad rule has been repeatedly refined since Terry.

In Illinois v. Wardlow, the court tackled the question of whether running from identified police officers (or marked police cars) in a high crime area gives rise to RAS.  The court held that it generally does despite a rousing dissent from Justice Stevens in which he noted that minority citizens rightly and reasonably fear police encounters even absent criminal activity.  The court stated that this is not a per-se rule but depends upon a number of factors beyond simple flight in a high-crime neighborhood.  These include:

  • Furtive movements
  • Time of day
  • Number of people
  • Number of police
  • Whether police were in uniform
  • Direction and speed of flight

In Florida v. Royer, the court held that a Terry Stop, valid at its inception, does not cross the line into a detention that amounts to arrest when there is good reason to move a suspect some distance from the original encounter within the same building or general area.

In Pennsylvania v. Mimms, the court held that during a valid traffic stop, officers may order a driver out of the vehicle even if the stop is based upon the flimsiest of violations.  And in Maryland v. Wilson, the court held that the same rule applies to passengers.  Brendlin v. California clarified that in a traffic stop, both the driver and any passengers are seized and thus all have standing to challenge the constitutionality of the seizure.

Detention That Amounts to Arrest

A detention that amounts to an arrest cannot be based upon the lower standard of “reasonable suspicion.”  It must be based upon probable cause that a crime has been committed and that the accused committed that crime.  And what is probable cause?  It is “facts and circumstances sufficient for a reasonable person to believe that crime is more likely than not.”

The courts have articulated a number of situations where detainment exceeds the “on the street exigency” of Terry and  rises to the level of an effective arrest.

In  Hayes v. Florida, the court held that a suspect being taken against their will to the police station for fingerprinting or other investigative purposes, regardless of how brief the detention, would cross the line between a Terry Stop and an arrest.  However, they also noted that fingerprinting at the scene of a Terry Stop is not necessarily violative of the 4th Amendment.

In United States v. Sharpe, the court articulated a two prong test to determine whether a given detention crosses the line between a Terry Stop and an arrest.  Those prongs are:

  1. Whether the officers’ actions were justified at the inception by reasonable suspicion
  2. Whether the officers’ actions were reasonably related in scope to the circumstances which justified the interference in the first place

The Sharpe court also added a “bolt-on” concerning the length of the detention.  This bolt-on third prong also requires that the officers “diligently pursue a means of investigation that [is] likely to confirm or dispel their suspicions quickly.”

If any of these factors are not satisfied then the detention amounts to an arrest and probable cause is required.  If the office did not have probable cause then the seizure may be challenged.

In Summary

If you find yourself in an encounter with law enforcement, you should know that you always have the right to refuse consent to any request.  If a reasonable person would not feel free to politely decline the officers’ requests and terminate the encounter (as seen in the first video above), then you have been ‘seized’ and thus are entitled to 4th Amendment protection.  The key question is “Am I free to leave?” and if the answer is anything other than “No” then do so.  If it is “No”, then lawyer up, do not resist other than to state that you do not consent to any search or detainment, and keep the video camera running if you are in a jurisdiction where such recording is legal.

UPDATE:  The next chapter of the “Gun Owners Guide to the 4th Amendment” has been published.    It covers Stop and Frisk.

DISCLAIMER:  Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship.  For legal advice, you should contact a member of your state’s Bar association.

Posted in Fourth Amendment, Open Carry | 16 Comments

Should people be allowed to carry guns openly?

Posted on May 4, 2012 by John Pierce

This is an article I wrote as part of the US News & World Report Debate Club.  This is the second time that they have asked me to write an open carry opinion piece and I am very honored by the opportunity.

VCDL Members Open Carry at the Virginia Capitol During Lobby Day

The first thing I noticed about the question for this debate was the way it is worded. “Should people be ‘allowed’ to carry guns openly?” Using the phrase ‘allowed’ implies that open carry is a privilege that the state grants to citizens. However, nothing could be further from the truth. The right to openly bear arms for security and self-defense is enshrined not only in the Second Amendment of the U.S. Constitution but also in a majority of state constitutions.

While concealed carry is seen today by much of the populace as synonymous with the right to carry, it is not, in fact, a right in most states (residents of Vermont may pat themselves on the back at this point). Rather, in the vast majority of states, concealed carry is held to be a state regulated privilege and this was affirmed by the majority opinion in the landmark 2008 ruling in District of Columbia v. Heller.

Open carry on the other hand is very much in keeping with the framers’ view of the constitutional right to bear arms. Today, in a whopping 29 states (that’s a majority for those who are keeping score), any law-abiding citizen who is not prohibited by law from possessing firearms may openly carry with no government permit or license required.

In an additional 14 states, legislatures have passed statutes regulating the wearing of arms and have determined that, even today, the choice to open carry has great value and should remain an option for permit holders. In fact, there are only seven states in which open carry is completely unavailable, and that number seems certain to go down this year as Oklahoma appears poised to add the option to open carry to their carry permit law.

Returning to the question at hand, the answer is an unequivocal “Yes!” Not only is it a right, but it also provides numerous benefits for public safety. A 2006 FBI study entitled “Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers” noted that criminals go to great lengths to conceal their firearms, do not wear holsters, and do not open carry under any circumstances.

Open carriers on the other hand wear their firearms properly holstered and go forth willing to subject themselves to the scrutiny of their neighbors and of law enforcement. They are a visible symbol of law-abiding citizens exercising their rights.

Posted in Media Views on The Second Amendment, Open Carry | Leave a comment

Senate bill S1813 does not allow the IRS to take your guns

Posted on May 1, 2012 by John Pierce

Gun owners are as susceptible to urban legends as any other group of people on the internet.  In fact, they may be more susceptible since there are so many convoluted attempts to use backdoor means to obstruct the right to keep and bear arms that nothing seems impossible.

Having said that, the latest urban legend to gain traction in the gun rights community is the claim that Senate Bill S1813 allows the IRS to strip you of your gun rights and carry permit based upon back-taxes owed.

This is not true.

I was first made aware of this urban legend last week when I was forwarded an email from a concerned gun owner who had read Anthony Martin’s Conservative Examiner column in which Mr. Martin passed on the claim reported at Before It’s News that the bill would grant the IRS the ability to “authorize the removal of  the right to own firearms.”

I should note for the record that I am not attacking Mr. Martin.  He acted responsibly and couched his report in very skeptical terms given the source of the original report.  He noted that:

“[T]he part of the bill that has gun rights activists worried is on pages 1320-1324. This subsection is entitled, “Firearms.” While the wording is in obscure legalese, it seems to be saying that the person designated as “the Secretary” is given broad powers over permits and the revocation of permits. And this power is described under the section that specifically deals with firearms.

Lawyers may debate whether or not the wording of the bill gives the IRS the power to suspend gun rights. But government watchdogs have become alarmed over the tendency of legislation to be written in such a manner as to create broad leeway for interpretation, meaning that nebulous wording often leads to an interpretation of the law that confirms the suspicions of many citizens that the federal government is relentlessly engaged in power grabs aimed at limiting the Constitutional rights of Americans.”

Mr. Martin was right to be skeptical.  The bill, which is a reauthorization of multiple Federal-aid highway and highway safety construction programs, does attempt to give the IRS the controversial ability to revoke the passports of those significantly in arrears on their taxes.  But what it does not do is give them any rights to control taxpayer’s gun rights.

In fact, the only thing correct about the Before It’s News claim is the page number.  Here is my response to the person who emailed me originally:

1)  There is such a bill.

2)  It does have a page 1320

3)  The word ‘firearm’ does appear on that page

4)  It is on a section dealing with special permits for the transportation of hazardous materials

5)  It says that firearms transported by individuals for personal use or in commerce are NOT subject to the hazardous materials special permit requirements.  This is a PRO-GUN provision in the bill.

But Mr. Martin was not the only reputable commentator to be taken in by the claim.  I received a followup email yesterday noting that even the administrator of Congressman Tom Tancredo’s blog has posted the claim.

The lesson to be learned here is, where internet claims are concerned, follow the sage wisdom of President Reagan; “Trust … but verify.”

UPDATE:  The NRA, which has significantly more reach than this column, is also trying to dispel this rumor.

 

Posted in Myths & Misconceptions | 1 Comment

A very personal statement

Posted on April 25, 2012 by John Pierce

When you apply to law school, you must submit a personal statement with your application that describes how you see yourself as a person and how you will approach the study of law.  These statements often mean the difference between being accepted and being rejected. I spent weeks working on various approaches but this is how I ultimately told my story.  And as I sit here today, somewhat melancholy, thinking of the last four years of law school and how much I will miss the wonderful friends I made during the journey, I thought I would share it with you.

One of my earliest memories is of waking on a stormy winter morning and shaking the bed covers to dislodge the snowflakes which were blowing in through the small uneven cracks around the window.  The window casement had probably fit tightly enough when the house had first been built in the late 1800’s, but by the time I was born, it had seen far too many harsh winters and hot summers.  But that tiny house, with all its flaws, was a happy home to me, my parents, my uncle and my grandfather, housing being far too precious a commodity to waste on too few people.

In the remote mountains of Southwestern Virginia, life was much the same that day as it had been three decades earlier when my grandfather had reared my mother and uncle in that same weather-beaten house.  Looking back upon it now, even though we were poor by the standards of the outside world, I see that in so many ways I was wealthy beyond measure.  My childhood seems composed entirely of a happy blur of memories.  When I try to place them in some linear fashion, I get only a flickering collage; the quick run through knee-deep snow to the outhouse on a winter’s morning, milking the cow before dawn, plowing the fields with a mule named Katie, hunting and fishing with my uncle.

Given my current world perspective, I realize that my childhood was an anachronism, an echo of a way of life that was all but extinct even before I lived it.  But I did live it, and it shaped and molded me in ways that were refined, but never replaced, by my later experiences.  The man I am today is built entirely upon the shoulders of that small boy who loved the feel of plowed earth beneath his bare feet.

I learned so many of life’s lessons on that farm.  I learned the value of hard work and perseverance, and that life isn’t fair but it can be joyful nonetheless.  There are few better teachers of these lessons than the handle of a hoe, the hot summer sun, and trusting animals whose lives depend upon your care.

Other lessons I would learn from the people in my life.  From my father, who was born in 1918 and lived through the Great Depression, I would gain an almost religious belief in individualism and self-reliance.  From my uncle, who had fought in the Korean War, I would come to see that one should take a fierce pride in doing what is right even if the cost is dear.  And from my mother, who had suffered so much in her life, I would take an understanding of true strength.

Time too, taught those lessons that only she could teach.   The stages of my life seemed to progress through a series of stop-motion tableaus; tiny four room elementary school, high school, first job, community college, university, career, graduate school, starting a business, lobbying for civil rights.  And at each of these steps in my life, the world became a little bit smaller.

Now, in my 40s, I stand ready to face the challenges in the next stage of my life.  I have come so far from the small boy who thought the boundaries of the world were just over the next mountain.  I know now that there are no boundaries, only new horizons.

Posted in Law School | Leave a comment

Roanoke County’s preempted parks ordinance is prompting calls for legal action

Posted on April 23, 2012 by John Pierce

A Roanoke County parks ordinance that violates the state’s preemption statute is prompting calls for legal action

I recently wrote about a Roanoke County ordinance which seemingly imposes a complete ban on the possession and carrying of firearms inside county parks. As I pointed out in the original article, such an ordinance would be void due to Virginia’s preemption statute.

However, Roanoke County claims that their ordinance was brought into compliance with the  preemption statute by the addition of a clumsily-worded clause in March of 2008.  Let’s look at how the evolution of such an ordinance would occur according to Roanoke County …

Clearly Preempted Ordinance Banning all Carry and Possession in County Parks

Sec. 15-8. – Prohibited uses of parks.

(6)  … No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety … The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity.

Roanoke County’s Corrected Ordinance

Sec. 15-8. – Prohibited uses of parks.

(6)  … No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, as expressly prohibited by statute, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety … The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity.

Well that clears it right up doesn’t it?  After that change, any citizen could easily read that ordinance and understand that it is now perfectly legal to carry in County parks.  Of course not!  And the same is true of a law enforcement officer or a magistrate who is perhaps unfamiliar with the history of the ordinance and the scope of Virginia’s preemption statute.  Sooner or later, someone is going to be deprived of their liberty because of this ordinance.

When you look at it from the viewpoint of an outside observer, it is really hard to imagine any reason that Roanoke would choose to use such a misleading tactic unless they had an invidious purpose such as chilling the rights of gun owners.  And many residents of Roanoke County seem to agree with that assessment.  Since my original article, numerous parties have expressed interest in mounting a legal challenge to the ordinance.

In anticipation of such an eventuality, let’s see what we can discover about how the county made the decision that this particular language was the absolute best way to address the fact that their ban was completely voided by the preemption statute.  Guided by Roanoke County Attorney Paul M. Mahoney’s defense of the ordinance from my original article, I surfed over the the Roanoke County Board of Supervisor’s official website which I must congratulate them on.  They have on-line access to meeting minutes going back all the way to 1973.

But I was interested in the March 2008 meetings referenced by Mr. Mahoney.  Where the parks ordinance amendments are concerned, there were three distinct events that occurred that March.  The first reading of the ordinance occurred at the March 11th meeting.  And then at the March 25th meeting, there was a work session concerning the proposed changes followed by a second reading and passage.  The relevant sections of the minutes are below:

March 11, 2008 First Reading

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March 25, 2008 Work Session

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March 25, 2008 Second Reading

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As you will have no doubt noticed by the time that you finish scanning all three of these, there is no substantive discussion of how they came to develop that particular wording. They simply state that the Assistant Director of Parks Mark Courtright, in consultation with the Parks, Recreation and Tourism Department, the County Attorney’s Office and the Roanoke County Police Department undertook the task of reviewing and updating the ordinance.

Where the firearms regulation in particular is discussed, it is simply noted that it was updated to “reflect the state statute.”  We can only assume they are referring to the preemption statute.  During the March 25th Work Session, the minutes reflect specific questions and points of debate concerning many of the changes being made to the ordinance but the firearms section contains no discussion at all.

At this point, the next step is to submit FOIA requests for all memos, emails, and working papers that any of the involved parties might have concerning the development of the “corrected” wording.  Stay tuned …

Posted in Abuse of Power, Dillon Rule, FOIA, Local Ordinances, Public Parks, Virginia | 11 Comments

Roanoke ordinance may run afoul of state preemption statute

Posted on April 21, 2012 by John Pierce

Virginia is a Dillon Rule state.  Under the Dillon Rule, municipalities have powers that are strictly limited. As the Virginia Supreme Court has repeatedly held, Virginia municipalities have only those powers that are:

  1. Expressly granted; or
  2. Necessarily or fairly implied from those powers that are expressly granted; or
  3. Essential and indispensable

Where possession, transportation, and carrying of firearms and ammunition are concerned, the Virginia Legislature has left no question as to the ability of municipalities to regulate the field.  They cannot.  The legislature has specifically preempted the entire field under § 15.2-915 of the Code of Virginia.

§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.

Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.

The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.

B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.

Although the preemption statute has been in existence since 1987, the Virginia Citizens Defense League (VCDL) still receives several reports per year of local ordinances that are in violation of the preemption statute.

Generally, these ordinances are on the books but are not being enforced.  In many cases, local government officials are not even aware of their existence.  In these cases, there is little to do other than to notify the appropriate official that the ordinance is in violation of state law and it will be scheduled for repeal.

However, there are occasions where local officials are all too aware of what they are doing. They have enacted the ordinance in question in direct defiance of the preemption statute. And while such ordinances are void and unenforcable, they do serve the purpose for which they are intended. They make citizens afraid to engage in conduct that is both legal and affirmatively protected by state law. They exert a “chilling effect” on the exercise of citizens’ rights.

That is why, in 2009, subdivision C was added to the preemption statute.  It allows any party which prevails in a challenge against a municipal ordinance or administrative action to receive reasonable attorney’s fees and expenses. By putting teeth in the preemption statute, “rogue” localities have to either cease their efforts to “chill” the exercise of citizens’ rights or they need to become more subtle in their misdeeds.

Which leads us to an analysis of the Roanoke County ordinance in question …

Well known gun rights activist Ed Levine ([email protected]) had been informed that Roanoke County had a preempted ordinance on its books.  Sure enough, Chapter 15, section 15-8, subsection 6 of the Code of Ordinances of Roanoke County provides:

Sec. 15-8. – Prohibited uses of parks.

(6)  … No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, as expressly prohibited by statute, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety … The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity.

As is customary, he contacted Roanoke County Attorney Paul M. Mahoney.  But that is where things stopped being customary.  In an emailed reply, Mr. Mahoney defended the wording of the ordinance, citing to the phrase “as expressly prohibited by statute” as a qualifier which he insists brings the ordinance in line with § 15.2-915.

Dear Mr. Levine:

Thank you for your email concerning this topic. I have previously
responded to similar inquiries.

In March of 2008 the Board of Supervisors reviewed the County’s Parks &
Recreation ordinance and considered amendments to it. Changes in the scope of operations and activities, as well as changes in enabling legislation
adopted by the Virginia General Assembly prompted this review. On March 25, 2008 the Board adopted an amendment that comprehensively changed this chapter of the County Code.

I respectfully suggest that you are mis-reading and mis-interpreting the
amendments to Sec. 15.8 of this ordinance. The language added to this
section by the amendment complied both with the direction of the General
Assembly as evidenced by Virginia Code Sec. 15.2-915, and other provisions of the Code of Virginia. Sec. 15.2-915 includes the phrase “other than those
expressly authorized by statute” to limit its otherwise broad prohibition.
The amendment adopted by the Board parallels this enabling language by
including it in line 5 of Sec. 15-8(6).

The Virginia Code Sec. 15.2-915 to which you make reference makes specific
exception for local ordinances relating to firearms which are expressly
authorized by state statute. Roanoke County’s ordinance specifically
incorporates that provision. This office had carefully considered the legislation adopted by the Virginia General Assembly, and analyzed that legislation with reference to existing County Code provisions. In March of 2008 we recommended that the Board of Supervisors consider an amendment to Section 15-8 of the Roanoke County Code to bring it in to compliance with Section 15.2-915 of the Code of Virginia. The Board accepted our recommendation and adopted Ordinance #032508-7. This amendment cured any infirmity.

Roanoke County makes every effort to insure that our county code is in
compliance with the requirements of Virginia law. Thank you again for your inquiry.

The argument that the county is making seems to be that, since the state preemption statute does allow municipalities to regulate certain aspects of firearms if they are specifically granted the power, that it is acceptable to pass an ordinance that contains what appears to be a blanket ban in direct violation of current law just in case the state ever decides to grant them that power.

Let’s all be serious here.  In 2008, Roanoke County added the phrase “as expressly prohibited by statute” to their preempted ban on the carry of firearms in public parks as a response to state preemption.  Since the county was represented by counsel when making this change, the use of such tortured language seem strange indeed.

Given the clear intent of the legislature to reserve to itself the sole power to regulate firearms and ammunition, the intentionally tortured wording of the ordinance can be reasonably calculated to have a significant “chilling effect” upon those exercising the rights guaranteed them by the Virginia State Constitution and statutorily protected by the preemption statute.

I would suggest that Mr. Mahoney and the Roanoke County Board of Supervisors take a good look at subsection C of § 15.2-915 and heed the words of the Court of Appeals of Virginia from Ohree v. Com., 26 Va.App. 299, 305 (Va.App.,1998).

“Whatever might be said of [the county’s] objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. The question is not whether the chilling effect is ‘incidental’ rather than intentional; the question is whether that effect is unnecessary and therefore excessive.”

At best, the tortured wording in the ordinance could reasonably be calculated to lead a law enforcement officer or magistrate to improperly arrest or charge a citizen.  At worst, it may encourage a significant percentage of citizens to refrain from exercising their right to lawfully possess a firearm in the county parks.  Clearly the effects of the ordinance cannot pass the test articluated in Ohree.

If the county fails to act in a timely manner, then the courts are open every day … and the attorney’s fees are on the house if the court agrees with my assessment that the tortured wording is “unnecessary and therefore excessive.”

UPDATE:  The preempted park ordinance is prompting calls for legal action

Posted in Abuse of Power, Dillon Rule, Local Ordinances, Public Parks, Virginia | 15 Comments

Maryland files first brief in support of permanent stay in Woollard v. Sheridan case

Posted on April 20, 2012 by John Pierce

As reported here, on March 30th Judge Legg granted a temporary stay of his ruling in Woollard v. Sheridan.  In that case, he ruled that the “good and substantial reason” requirement to receive a Maryland handgun permit was unconstitutional.

The temporary stay order set three deadlines for briefs to be filed.  The first was an April 19th deadline for the state. The second is May 9th for the plaintiff’s response.  And a final brief is due from the state on May 23rd.  Following that, Judge Legg will issue his decision on whether or not a permanent stay is appropriate while the ruling is being appealed.

Today, as ordered, the state submitted their first brief in support of their motion for a permanent stay pending appeal.

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The state made several arguments in their brief which can only be described as jaw-droppingly misleading.

They start by expressing deep concern for those who do have a “good and substantial reason” to receive a handgun permit and how unfair this ruling could be to them because in the event that the state wins their appeal, they plan on revoking any permits issued during the interim.  They fail to mention that “good and substantial reason” is often a code word for “campaign donor” in may-issue states such as Maryland.

They then go on to make the astonishing argument that, despite the almost universal experience of the rest of the country to the contrary, “shall issue” laws “likely increase the rate of aggravated assaults.”  Without going into too much detail here, I will direct you to page 35 of Guy Smith’s Gun Facts for an excellent summarization of the data and studies which debunk this particular assertion.

The next argument they make is to parrot the thoroughly discredited VPC claims about permit holders committing crimes.  Please take a moment to read my earlier article on just how flawed that particular claim was.

Finally, they made the assertion that a restriction on handguns did not foreclose armed self-defense since long guns could be legally carried openly for self-defense outside the home.  I imagine that the first Baltimore citizen who tries such a thing will be treated with all the courtesy that the Baltimore PD can muster.

In summary, I do not think the state did itself any favors with this brief.  The plaintiffs will certainly have no problem taking apart each of these arguments thoroughly.  And I believe Judge Legg’s reaction to the brief will be nothing short of irritation.  He is no stranger to the topic of Second Amendment jurisprudence nor is he one to be swayed by simple-minded, emotional arguments unsupported by facts.  To be treated as if he were would seem to be little more than an insult to his intelligence.

UPDATE #1:  Plaintiffs have filed their response brief

UPDATE #2:  The state has filed their final brief

Posted in Abuse of Discretion, Abuse of Power, Concealed Carry, General Civil Rights, Gun Control, Maryland, Myths & Misconceptions, Open Carry | 3 Comments

In Bloomberg’s nightmare nation it’s ‘guilty until proven innocent’

Posted on April 19, 2012 by John Pierce

Mayor Bloomberg

In the wake of the 2012 NRA Convention in St Louis, Missouri, the group Mayors against Illegal Guns (MAIG), under the leadership of New York Mayor Michael Bloomberg, has mounted a full-scale media blitz against the Second Amendment.

In an article in which he decries the NRA’s ‘nightmare nation’, Bloomberg and his allies rail against a litany of perceived problems with American gun laws.

One of the proposals they are reviving is one that I find particularly offensive from a constitutional perspective.  It is the demand that those whose only offense is that their name appears on the so-called ‘Terrorist Watch List’ be denied the right to purchase firearms.

Given that there is such a clamor to use this list to deny fundamental rights, you might assume that there are some fairly elaborate due-process protections in place.  But you would be wrong.

Let’s do a little question and answer session …

Question: How accurate is the list?  

Answer: Not very!

Senator Susan Collins of Maine has said that:

“The evidence used to compile the watch list is often fragmentary and can be of varying degrees of credibility. It is not, in other words, the equivalent of a criminal history report.”

 In fact, in response to a FOIA request to the DOJ, the results of which were finally released on September 27, 2011, it was revealed that there may be entries on the Terrorist Watch list that are simply names with no additional identifying information or even biometric data only with no name at all (see page 15).

Even worse, a 2006 ABC News investigative report yielded shocking allegations that air marshals are required to add at least one name of a traveler to the Terrorist Watch List every month.   ABC News reports that agents have been told that failure to meet the quota will result in their being denied raises, bonus and special assignments.

A management memo from the Transportation Security Administration appears to encourage agents to fabricate reports when none are available, stating “There may come an occasion when you just don’t see anything out of the ordinary for a month at a time, but I’m sure that if you are looking for it, you’ll see something.”   When asked if agents are making up reports, an un-named agent responded, “I know they are.”   The agent gave an example from his personal experience of an air marshal in need of meeting his quota reporting a passenger for taking a picture of the Las Vegas skyline from their window seat.

Question: But at least it is easy enough to check whether you are on the list … right?

Answer: No!

According to the FBI, they cannot reveal whether an individual is on the watch list; “there are legitimate law enforcement reasons for keeping the list secret: Disclosure of such information would tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny.“

Question: But there is a process to get off the list … right?

Answer: No!

In 2004, when Senator Ted Kennedy found himself on the list he was able to contact Homeland Security Secretary Tom Ridge for assistance.  But even then, it took over a month for his name to be removed from the list.

In 2008, it took an actual act of Congress to remove Nelson Mandela’s name from the list.  Also in 2008, it took a request from Texas Representative Sheila Jackson Lee to Homeland Security Secretary Michael Chertoff before Georgia Congressman and civil rights legend John Lewis could get his name removed.

Question: So it sounds like I can eventually get off the list … right?

Answer: No!

For those those who do not have the ability to ask the Secretary of Homeland Security for favors, there is simply no way to have your name removed from the list.  The Washington Post has reported that such common names as James Rogers, Mary Smith, and Kevin Johnson are among the those on the Terrorist Watch List.

Based upon data released to the news show 60 Minutes, CBS News has also reported that the name Robert Johnson is on the list.   In the CBS News report, Donna Bucella, who ran the FBI’s Terrorist Screening Center from its inception in 2003 until her departure in 2007, was quoted as saying that “it’s a price society and anyone named Robert Johnson has to pay for security.”

When pressed on the point, she stated emphatically that these common names “will never get off the list.“

Question:  So we just have to let terrorists get guns?

Answer:  Of course not!

In fact, the government already compares the names of those who purchase firearms against the Terrorist Watch List and passes any resulting matches on to the appropriate investigative agency for increased surveillance.  As the FBI states, denying them would only “tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny.”

Removing this tool from our intelligence agencies would be a significant detriment to national security, not an improvement.

In summary …

While Bloomberg continues to rant about the NRA’s ‘nightmare nation’, it is clear that in his vision of America, the nightmare will be an almost complete absence of individual rights.  Just ask any of the over half-a-million minority citizens of New York who were stopped and searched without probable cause at Bloomberg’s behest last year.

In the rest of the United States, citizens are considered innocent until proven guilty in a court of law and similarly are born with certain rights that may only be removed after adjudication with the proper due process.  Enabling the government to secretly strip a citizen of their right to purchase a firearm based upon secret evidence that the citizen cannot see is the very definition of what our constitution was designed to prevent.

As the court noted in District of Columbia v. Heller, “The very enumeration of the right takes out of the hands of government-even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

Posted in Abuse of Power, Bloomberg, Firearm Sales, FOIA, General Civil Rights, Gun Control, MAIG, National Politics, New York, NRA | Leave a comment

Mother of VA Tech victim speaks out in support of campus carry

Posted on April 17, 2012 by John Pierce

Leslie Sherman

Five years ago today, on a cold, sad Monday in April, Virginia Tech senior Seung Hui Cho went on a rampage that cost the lives of 32 of the Commonwealth’s best and brightest young people and sent a nation into mourning.

Almost from the moment the attack was first reported, people started asking the question “What could have been done to prevent this tragedy?”   While administrators at Virginia Tech continue to insist that there was nothing they could have done, I can point to a defining moment where Virginia Tech failed these students.

It was January 31st, 2006 and Virginia Tech spokesman and Vice President Larry Hincker was expressing the University’s extreme happiness with the failure of a bill that would have allowed Virginia college students with concealed carry permits to possess their defensive firearms while on campus. HB 1572, introduced by Delegate Gilbert, had failed to report out of the Militia and Police Subcommittee and upon hearing this, Mr. Hincker made the following statement; “I’m sure the university community is appreciative of the General Assembly’s actions because this will help parents, students, faculty and visitors feel safe on our campus.”

But we all know that “feeling safe” and “being safe” are two very different things and we also know that criminals and the mentally disturbed do not obey laws.  But the good guys do … oh yes.  And that is why Cho was able to extinguish so many bright flames that day.  There was no one equipped to oppose him.  Not one.

Now, on the fifth anniversary of this terrible tragedy, one courageous parent is speaking out.  Holly Adams lost her daughter Leslie Sherman that day and it is in remembrance of her daughter that Holly put out the following statement:

On April 16, 2007, my child, Leslie Sherman, was killed by Seung-Hui Cho during the Virginia Tech massacre. Today is the fifth anniversary of her death. Always in my memories, every day I wish that this tragedy was a nightmare and I could wake up to hold my daughter even if it is just one more time. That opportunity might have been possible if someone been able to defend and protect my daughter in her classroom before Cho took 30 precious lives.

There is an unfortunate drive for more gun control and the continuation of preventing guns on campus by parents whose children lived or survived during that fatal day. Several family members of those victims have actively voiced their support for increased gun control measures. As result, it has been assumed that they speak for all families of the Virginia Tech victims. I am writing this to make it clear that this is not the case. They do not represent me and my views.

Speaking for myself, I would give anything if someone on campus; a professor, one of the trained military or guardsman taking classes or another student could have saved my daughter by shooting Cho before he killed our loved ones. Because professors, staff and students are precluded from protecting themselves on campus, Cho, a student at Virginia Tech himself, was able to simply walk on campus and go on a killing rampage with no worry that anyone would stop him.

I ask a simple question: Would the other parents of victims be forever thankful if a professor or student was allowed to carry a firearm and could have stopped Seung-Hui Cho before their loved one was injured or killed? I would be. I also suspect that the tragedy may not have occurred at all if Cho knew that either faculty members or students were permitted to carry their own weapons on campus. Cho took his own life before campus police were able to reach him and put a stop to his killing spree.

A sad testament to this anniversary date is the number of similar killings in schools and public places that have taken place afterwards as if nothing has changed to help prevent such needless and heartbreaking events. That is why I fully support the VCDL in their outstanding efforts to help prevent this type of tragedy and loss from occurring in the future.

Holly Adams

As a parent myself, I am having a hard time seeing the screen because of the tears these words bring to my eyes.  But despite the terrible loss in her own life, Holly is thinking of the safety of other students … in future classrooms … who might one day face a madman themselves.  She wants them to have the protector that Virginia Tech denied to Leslie.

Our thoughts and prayers should go out to Holly Adams on this day of sad remembrance.  We should also offer her our heartfelt gratitude for her support of VCDL’s efforts to restore the self-defense rights of teachers, administrators, adult-students, and visitors on the many beautiful campuses of Virginia’s colleges and universities.

“Thank you Holly“

Posted in Abuse of Discretion, Administrative Regulations, Campus Carry, Virginia | 11 Comments