Lawsuit Against the Department of Conservation and Recreation
DiGiacinto v. Virginia Department of Conservation and Recreation
The following action was commenced on May 19, 2006 by a Bill of Complaint against the Defendant.
The Defendant owns and operates a Restaurant that has an ABC license to serve alcohol for on-premises consumption at Douthat Lakeview Restaurant which the Plaintiff wants to visit. The Plaintiff is barred from the restaurant because the Defendant's regulation regulates the manner of carry and does not allow open carry or the right to bear arms. It is unlawful to carry a concealed handgun in a restaurant that has an ABC license for on-premises consumption in Virginia and is chargeable as a class 1 misdemeanor. Violating the DC&R regulation and unconcealing a handgun is also chargeable as a class 1 Misdemeanor.
A Motion to Amend the Bill of Complaint was filed and heard on the Friday's Motion Docket. It was opposed by the Defendant. The Judge Ruled in Favor of the Plaintiff to amend the Bill of Complaint. The Amended Bill of Complaint contained three counts:
Count I. Violation of the Plaintiff's Constitutional Rights ( Article 1, Section 13)
Count II. No Authority to Regulate Concealed Weapons
Count III. No Authority to Pass or Maintain Regulations Inconsistent with State Law
On Friday September 8, 2006 the Defendant moved to have a change of Venue to Richmond instead of where the Plaintiff lived. A hearing was held and the judge ruled in the Plaintiff's favor under Va. Code § 8.01-261(1)(a)(1)
The Defendant then filed the required Memoranda in Support of their Pleas, The Plaintiff then filed his Memoranda in Opposition. The Defendant then filed a Reply Memoranda.
Oral arguments were supposed to be heard on September 22, 2006, but the judge decided the case solely upon the pleadings. The Circuit Court Sustained the Defendant's Plea of Sovereign Immunity and thus the Demurrer and then dismissed the case.
October 10, 2006. An appeal was filed with the Virginia Court of Appeals.
December 22, 2006. This case was transferred to the Supreme Court of Virginia.
January 4, 2007. Order by the Supreme Court for filing of a Petition for Appeal.
January 8, 2007. Petition for Appeal filed.
January 26, 2007. Reply Brief in Opposition to Petition filed. Or From the Attorney General's Website.
March 15, 2007. Oral Arguments before a Writ Panel of the Supreme Court has been scheduled.
April 4, 2007. Oral Arguments by Petitioner for a Writ of Error was held.
April 9, 2007. Supreme Court Declares the People Outside the Protection of Their Own Constitution. Denies Certiorari.
During oral arguments Justice Lemon stated, "The United States Supreme Court does not agree with your opinion (Individual right), but it's going to get a case real soon." Reference to Parker v. D.C. case.
What does the United States Supreme Court have to do with a case brought solely under Virginia Law? “Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed.” United States v. Miller, 307 U.S. 174 (1939)
Cannot Virginia Speak for itself as the U.S. Supreme Court has Stated? Does not Virginia have its own well documented history?
"In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.” Saucier v. Katz, 533 U. S. 194, 201 (2001) . If, and only if, the court finds a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established … in light of the specific context of the case.” Ibid. Although this ordering contradicts “[o]ur policy of avoiding unnecessary adjudication of constitutional issues,” United States v. Treasury Employees, 513 U. S. 454, 478 (1995) (citing Ashwander v. TVA, 297 U. S. 288, 346–347 (1936) (Brandeis, J., concurring)), we have said that such a departure from practice is “necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established.” Saucier, supra, at 201.4 We therefore turn to the threshold inquiry: whether Deputy Scott’s actions violated the Fourth Amendment." Scott v. Harris, __US__ (2007).