Latest Legal News

This site is only an information site on the law in Virginia. The following information is not intended as legal advice and should not be relied upon as accurate or current. Consult an Attorney.

Virginia Department of Conservation and Recreation Violating Governor's Directive to Repeal § 4 VAC 5-30-200

It has been almost a year since the Governor of Virginia Bob McDonnell issued his directive to the Department of Conservation and Recreation on January 14, 2011, to cease enforcement of § 4 VAC 5-30-200 and "Further, I am directing that § 4 VAC 5-30-200 be repealed through an exempt Administrative Process Act regulatory action to bring it in conformity with this opinion and law." A Freedom of Information (FOIA) request was recently initiated to determine if the DC&R has obeyed the Governor's directive to repeal the regulation. The DC&R has not even tried to obey that directive.

It is important to note that the regulation change is exempt from the normal process under the Virginia Administrative Process Act as it was a change in law and therefore subject to immediate repeal under § 2.2-4006 (A)(4). This was done before under the same exact circumstances on February 12, 2003 and is a boiler plate fix.

The following request was part of the FOIA:

"1. Supply the Records that deal with directly or indirectly the Department's efforts to repeal § 4 VAC 5-30-200 as directed by the Governor of Virginia.

2. If no records exist, please supply what authority or law allows the Department to disobey the commands of the Governor of Virginia."

The following was received on December 8, 2011 in response to the request:

"This e-mail is in response to yours below in which you invoke the Virginia Freedom of Information Act. We do not have any documents to share at this time concerning the repeal of § 4 VAC 5-30-200. We have not yet started the Administrative Act process of having it repealed. This is strictly a workload function; over the past year we have had several major regulatory and legislative actions underway, with legislatively mandated timelines, while we have lost two key staff members familiar with § 4 VAC 5-30-200.

However, it is important to understand that as a department we immediately complied with the Gov. McDonnell's instruction to cease enforcement. So, for those who visit Virginia State Parks they will see no indication that § 4 VAC 5-30-200 exists. We have attached a January 17, 2011 e-mail from State Parks Director Joe Elton to state parks and other DCR staff informing them that enforcement was to cease immediately.

Given this immediate action, we believe that we have honored the spirit of the Governor's letter and we will honor the full intent as workload allows."

Filling in No on ATF Form on Question of Indictment Was not "willfully and intentionally" a False Statement

Smith v. Commonwealth, __ Va. __, __ S.E.2d __ (2011)

On November 13, 2007, the grand jury in the City of Newport News indicted Smith for possession of marijuana with intent to distribute. Two days later, on November 15, Smith entered a pawnshop in the adjacent City of Hampton and applied for the purchase of a .40 caliber semi-automatic pistol. As required by law, he filled out and signed a form prepared by the Bureau of Alcohol, Tobacco, Firearms and Explosives of the United States Department of Justice (the ATF form). The form contained warnings that violations of the gun laws and making a false statement on the form were crimes punishable as felonies. Question 11(b) on the form asked: "Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year? Smith wrote "No" in answer to this question. The record contains no evidence that Smith, when executing the ATF form, was aware that the Newport News grand jury had returned an indictment against him two days earlier.

An officer of the Virginia State Police made a routine check of Smith's criminal history before the gun purchase could be completed. He discovered the recent Newport News indictment and reported it to the pawnshop proprietor, who cancelled the sale. The officer obtained a warrant for Smith's arrest on a charge of making a false statement on a firearm purchase form in violation of Code § 18.2-308.2:2(K).

It is undisputed that the ATF form is one required under this statute and that Smith's answer to question 11(b) on that form was, in fact, false. The sole question remaining is whether Smith made this false statement "willfully and intentionally" so as to bring it within the statute under which he was convicted. Because the statute employs the two adverbs conjunctively, both words together define an element of the crime. Stated differently, if the Commonwealth fails to prove beyond a reasonable doubt that the defendant's conduct was both willful and intentional, the evidence is insufficient to support a conviction. To answer the question presented by this appeal, it suffices to focus upon the word "intentionally."

"Intentional" is defined as: "Determination to act in a certain way or to do a certain thing." Black's Law Dictionary 810 (6th ed. 1990). The adverb "intentionally" is defined as: "To do something purposely and not accidentally." Id.

We presume that the General Assembly, in framing a statute, chose its words with care. Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702 (2001). When statutory terms are plain and unambiguous, we apply them according to their plain meaning without resorting to rules of statutory construction. Id. at 99-100, 546 S.E.2d at 702. We perceive no ambiguity in the word "intentionally." By coupling it with "willfully," the General Assembly removed any ambiguity that would have resulted from the use of "willfully" alone. By using the two words in conjunction, it is clear that the General Assembly intended to impose upon the Commonwealth a very strict standard of scienter in prosecutions for violations of Code § 18.2-308.2:2(K).

While that analysis may be valid in other contexts, we do not agree with the Court of Appeals' conclusion that it applies under the strict scienter requirement the General Assembly has adopted in Code § 18.2-308.2:2(K). We construe that section to require the Commonwealth to prove, beyond a reasonable doubt, as an element of the crime, that the defendant had actual knowledge that his statement was false when he made it. There must be evidence to support a finding that he knew the truth but nevertheless intended to, and did, utter a falsehood....There was no evidence to support a finding that Smith knew that he had been indicted when he signed the ATF form. The Commonwealth thus failed to prove an element of the crime.

Attorney General Opinion on Campus Carry at UVA

Op. Va. Att'y Gen. 11-078 (July 1, 2011) .

"With respect to the general right of "open carry," the University may develop a policy that restricts the right of open carry within certain buildings. Prior opinions of this office have recognized the right, tied to the Second Amendment, to openly carry a firearm. 19 This right to openly carry, like the Second Amendment right generally, may be limited in "sensitive places" like "schools and government buildings.20 In other words, the right to bear arms does not include an unqualified right to openly carry a firearm in a sensitive place or certain government buildings. No statute or regulation specifically addresses the right to openly carry a firearm. Therefore, the University, which is vested with the authority to promulgate and enforce policies governing its buildings, may enforce this policy. University officials may request that persons who openly carry in buildings covered by the policy abide by the policy. If these persons refuse to follow it, and also refuse to leave, they may be charged with trespass."

Unlike open carry, there is an additional statutory overlay that addresses persons who have received a concealed carry permit. Section 18.2-308(0) provides that "[t]he granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law[.]"21 A prior opinion of this Office concluded that "[t]he clear intent of the General Assembly is to allow concealed handgun permit holders to carry handguns only in areas where it has not specifically prohibited the carrying of handguns.22 Where the possession of a handgun is prohibited by law, persons with a concealed carry weapon may not bring their weapons to such locations 23 In DiGiacinto, George Mason University promulgated a regulation, which has the force of law, prohibiting a person from carrying a fIrearm in certain buildings. Therefore, persons with concealed carry permits could not bring them into the specified buildings because doing so under this regulation was "otherwise prohibited by law." The University of Virginia's policy, in contrast, is not a regulation and, therefore, does not have the force of law. Consequently, the policy does not fall within the terms of the exception contemplated in § 18.2-308(0). Under § 18.2-308(0), persons with valid concealed carry permits may not, through a policy, as opposed to a regulation, be prohibited from exercising their right to carry a concealed handgun. To prevent persons who have concealed carry permits from bringing them into University or Medical Center buildings, the University would need to promulgate a regulation tailored to that effect."

---------

Virginia1774.org Note to this Opinion: The General Assembly under Va. Code § 18.2-308 (G)(3) states the following: "3. Completing any firearms safety or training course or class available to the general public offered by a law-enforcement agency, junior college, college, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or the Department of Criminal Justice Services;" Clearly the General Assembly anticipates firearms being available and possessed for these safety/training classes at colleges in buildings especially when most require firearms handling such as the NRA Basic Pistol class.

Various Laws go Into Effect on July 1, 2011

1). Localities preempted from prohibiting the discharge of Pneumatic Guns under certain circumstances. Va. Code § 15.2-915.4 (B)(No such ordinance authorized by subsection A shall prohibit the use of pneumatic guns at facilities approved for shooting ranges, on other property where firearms may be discharged, or on or within private property with permission of the owner or legal possessor thereof when conducted with reasonable care to prevent a projectile from crossing the bounds of the property. )

2. Homestead Exemption For One Firearm During Bankruptcy/creditor Process Not to Exceed $3,000: Va. Code § 34-26 (4b)(One firearm, not to exceed $3,000 in value. )

3.Protective Orders: Va. Code § 18.2-308.1:4

4. Restoration of Firearm Rights: Va. Code § 18.2-308.1:1, Va. Code § 18.2-308.1:2, Va. Code § 18.2-308.1:3 , Va. Code § 18.2-308.2:1

5. Documentation for Military Members for Purchase of Firearms: Va. Code § 18.2-308.2:2.(Where the photo-identification was issued by the Department of Defense, permanent orders assigning the purchaser to a duty post in Virginia, including the Pentagon, shall be the only other required documentation of residence.).

6. Va. Code § 18.2-308.1, Va. Code § 18.2-308, Va. Code § 18.2-56.1

Attorney General Opinion On Hanover County Firearm Discharge Ordinance

Op. Va. Att'y Gen. 11-065 (June 22, 2011)

The second ordinance you ask about, Hanover County Code § 24-4, provides as follows: If any person discharges or shoots any firearm or other weapon in or along any public road or street or within one hundred (100) yards thereof or within one hundred (100) yards of any building occupied or used as a dwelling or place where the public gathers, not his own dwelling or residence, except in the lawful defense of his own person or property or that of a member of his family, he shall be guilty of a Class 1 misdemeanor.

The right to bear arms is protected by the Constitutions of Virginia 6 and of the United States. 7 The United States Supreme Court has recognized that the Second Amendment of the United States protects an individual right to bear arms 8 and, further that this right operates as a restriction on the States as well as the federal goverment.9 The protections afforded by the Virginia Constitution in this area are co-extensive with those of the Second Amendment.10

6. [T]he right of the people to keep and bear arms shall not be infringed[.]" VA. CONST. art. I, § 13.

7. [T]he right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. The Second Amendment applies to the States as well as to the United States government. McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010) (quotations and citations omitted).

8. "District of Columbia v. Heller, 554 U.S. 570, 606 (2008). McDonald, 130 S. Ct. at 3026 (quotations and citations omitted).

9. McDonald, 130 S. Ct. at 3026 (quotations and citations omitted).

10. DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127, 133-34, 704 S.E.2d 365, 368-69 (2010).

11. Heller, 554 U.S. at 595.

12. Id. at 635. In addition to self-defense, an armed citizenry serves as a check upon tyranny. See JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES § 450, p. 246 (1840) ("One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms."). An armed citizenry also will serve as a deterrent to foreign invasion - a less likely prospect in modem times, but one that has occurred repeatedly throughout our history. As the Continental Congress noted, "Men trained to Arms from their Infancy, and animated by the Love of Liberty, will afford neither a cheap or easy Conquest." Journals of the Continental Congress, Petition to the King (July 8, 1775), available at http://avalon.law.yale.edu/18th_century/contcong_07-08-75 .asp.

13. United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010).

14. Id

15. Id

16. Id

17. Id at 682 (quoting United States v. Skoien, 587 F.3d 803, 813-14 (7th Cir. 2009), vacated, 614 F.3d 638 (7th Cir. 2010) (en banc)).

The law is not settled at this time with respect to how strictly courts will evaluate restrictions on the use of firearms. We know that the right to bear arms is "not unlimited, just as the First Amendment's right of free speech was not."11 Although the right is broader than merely protection of the home, at its core the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in 12 defense of hearth and home."

Here in the Fourth Circuit, federal courts will apply a two part test to evaluate the validity of restrictions on bearing or using firearms. The first question is "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee.13 This is a "historical inquiry," which "seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid.14 If the law at issue burdens conduct that was within the scope of the Second Amendment as historically understood, then the court will apply "an appropriate form of means ends scrutiny.15 "[U]nless the conduct at issue is not protected by the Second Amendment, the Government bears the burden of justifying the constitutional validity ofthe law.16

In conducting this review, the United States Court ofAppeals for the Fourth Circuit has noted that

[t]he Second Amendment is no more susceptible to a one-size-fits-all standard of review than any other constitutional right. Gun-control regulations impose varying degrees of burden on Second Amendment rights, and individual assertions of the right will come in many forms. A severe burden on the core Second Amendment right of armed selfdefense should require strong justification. But less severe burdens on the right, laws that merely regulate rather than restrict, and laws that do not implicate the central self-defense concern of the Second Amendment, may be more easily justified. 17

In light of these principles, I conclude that the ordinance does not violate the constitutional right to bear arms.18 First, it specifically exempts from its scope actions taken in defense of self, others or property. Therefore, it does not implicate one of the core concerns of the right to bear arms. Second, it does not preclude anyone from carrying a firearm. Instead, it simply prohibits certain uses of a firearm. Moreover, the ordinance serves a proper purpose, to protect the public safety, by prohibiting firearm discharges on roads or near occupied buildings.

In addition, this ordinance does not violate any property rights. Under a highly deferential "rational basis" review, courts easily would sustain this ordinance against a challenge that it infringed on property rights.

18. I note parenthetically that VA. CODE ANN. § 15.2-915(A) (Supp. 2010) does not apply to this ordinance. That statute prohibits a locality from adopting ordinances governing the "purchase, possession, transfer, ownership, carrying, storage or transporting of firearms...." The County ordinance prohibits, in limited fashion, the discharge of a firearm, but it does not prohibit the purchase, possession, transfer, ownership, carrying or transporting of a firearm.

---------------------------

Virginia1774.org Note to this Opinion. On July 1, 2011 this opinion will be outdated with respect to Pneumatic Guns under Va. Code § 15.2-915.4 (B)(No such ordinance authorized by subsection A shall prohibit the use of pneumatic guns at facilities approved for shooting ranges on other property where firearms may be discharged, or on or within private property with permission of the owner or legal possessor thereof when conducted with reasonable care to prevent a projectile from crossing the bounds of the property.).

Prior Criminal History Obtained During a Traffic Stop is Enough to Make a Citizen "Armed and Dangerous" Under a Terry Stop

Commonwealth v. Smith, __ Va. __, __ S.E.2d __ (June 22, 2011)

"We find that a reasonably prudent police officer, in light of his experience, and with due regard to his own safety when executing a valid traffic stop, has reasonable suspicion that an individual may be armed and dangerous based upon the officer's knowledge of the individual's prior felony conviction, followed by repeated charges over the previous eleven months involving firearms and a drug offense closely associated with firearms. The remoteness of arrests and convictions or an absence of weapons-related or dangerous offenses in an individual's criminal history may be such that the individual's criminal history is not sufficient for an officer to reasonably be concerned about his safety or the safety of others in order to establish reasonable suspicion for a frisk. However, in this case, Smith's criminal history of a prior felony conviction, his arrest eleven months prior for possession of a firearm by a convicted felon, and his arrest six months prior for possession of cocaine with the intent to distribute, was sufficient to provide the officers with reasonable suspicion that Smith may be armed and dangerous, justifying a pat-down or limited search of his outer clothing for weapons."

From the Dissenting Opinion of Three Justices:

"There is no authority to support the majority's proposition that a prior criminal record involving arrests for weapons and intent to distribute narcotics is sufficient to provide reasonable suspicion to support a frisk, without any additional indicators that the individual is armed and presently dangerous. While a person's criminal record is among the proper factors to be considered in determining if reasonable suspicion exists, no other jurisdiction has found that a person's criminal record, standing alone, creates a reasonable suspicion to support a search or seizure. In fact, every other jurisdiction in the United States that has considered the issue has decided the opposite. Each has required some additional evidence of a suspect's appearance or behavior or circumstances regarding the encounter, in addition to the defendant's criminal record, to support the existence of a reasonable suspicion....In apparent contravention of previous precedent, the majority holds that certain people, because of their criminal record, are subject to a pat down search if stopped for a minor traffic violation, regardless of whether the police have any contemporaneous objective indicia of their current involvement with criminal activity or of their being armed and presently dangerous. Inherent in the majority opinion's ruling is the conclusion that individuals, who have been determined by a judicial officer to be sufficiently safe to release from custody, may be presumed by law enforcement officers to be armed and dangerous. Such a presumption is the type of "hunch" the Supreme Court of the United States has admonished should not be allowed in determining the constitutional propriety of a search. See Terry, 392 U.S. at 27."

Self Defense is a Good and Sufficient Reason to Possess a Firearm at a Place of Worship Under Va. Code § 18.2-283

Op. Att'y Gen. No. 11-043 (April 2011)

Brandishing Under Code § 18.2-282 is not a Lessor Included Offense of Code § 18.2-53.1 Use or Display of Firearm in Committing Felony

Dezfuli v. Commonwealth, __ Va. App. __, __ S.E.2d __ (2011)

"Code § 18.2-282, on the other hand, "makes it a Class 1 misdemeanor to point, hold, or brandish a firearm in such manner as to reasonably induce fear in the mind of another." Morris v. Commonwealth, 269 Va. 127, 129, 607 S.E.2d 110, 111 (2005). A conviction for brandishing, thus, requires proof of two basic elements: "(1) pointing or brandishing a firearm, and (2) doing so in such a manner as to reasonably induce fear in the mind of a victim." Kelsoe v. Commonwealth, 226 Va. 197, 198, 308 S.E.2d 104, 104 (1983). "'Brandish' means 'to exhibit or expose in an ostentatious, shameless, or aggressive manner.'" Morris, 269 Va. at 135, 607 S.E.2d at 114 (quoting Webster's Third New International Dictionary 268 (1993)). And "[t]his Court has held, in connection with robbery, that 'the word "fear" ... does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Huffman v. Commonwealth, 51 Va. App. 469, 472, 658 S.E.2d 713, 714 (2008) (emphasis in original) (quoting Seaton v. Commonwealth, 42 Va. App. 739, 749, 595 S.E.2d 9, 14 (2004))...

Thus, in cases involving the threatening display of a firearm under Code § 18.2-53.1, the defendant must display his firearm to "promise punishment, reprisal or other distress to" the victim, whereas in cases involving brandishing under Code § 18.2-282, the defendant must merely brandish or display a firearm in such a manner as to reasonably "bring about or cause fear" in the mind of the victim. While the concepts are concededly similar, they are not the same.

True, it is possible to brandish a firearm during a violation for Code § 18.2-53.1; in fact, brandishing often does occur when one uses or displays a firearm in the commission of a felony. See Bailey v. United States, 516 U.S. 137, 148 (1995) ("The active-employment understanding of 'use' certainly includes brandishing, displaying ... and most obviously, firing or attempting to fire a firearm." (emphasis added)); see also Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980) (A victim "cannot be required to distinguish between a loaded pistol and a spring gun when it is brandished during commission of a felony." (emphasis added)). In fact, arguably, any time a criminal defendant displays his firearm in a threatening manner toward a victim, he necessarily brandishes it....

The requirements of Blockburger are, therefore, not satisfied in this case, because the Commonwealth can obtain a conviction for use of a firearm during the commission of a felony without proof that the defendant brandished the firearm, and it can obtain a conviction for brandishing without also proving use of the firearm in the commission of a felony. See Coleman v. Commonwealth, 261 Va. 196, 200-01, 539 S.E.2d 732, 734 (2001)...Thus, each of the convictions involved in this appeal contains required elements of proof not contained in the other conviction as required in the Blockburger test.); Schwartz, 45 Va. App. at 442, 611 S.E.2d at 649 (rejecting double jeopardy argument because "one of the two alternative means of establishing appellant's guilt" could have been the basis for the conviction). Although the evidence presented to prove the former offense may, indeed, overlap with the evidence used to prove the latter, the fact remains that the Commonwealth must submit proof of completely different elements for a finding of guilt as to each separate offense. These offenses are, therefore, different for purposes of Blockburger.

It follows that, because it is possible to commit a violation of Code § 18.2-53.1 without brandishing a firearm, and because one can brandish a firearm without also committing a violation of Code § 18.2-53.1, the act of brandishing is not a lesser-included offense of use of a firearm in the commission of a felony. The offenses are not the same. The trial court, therefore, erred in convicting Dezfuli of violating Code § 18.2-282."

U.S. Fourth Circuit Court Of Appeals Rules that the U.S. Const. Amend. II Does Not Exist in National Parks

United States v. Masciandaro, (4th. Cir. 2011)

"We need not, however, resolve the ambiguity in the "sensitive places" language in this case, because even if Daingerfield Island is not a sensitive place, as Masciandaro argues, 36 C.F.R. § 2.4(b) still passes constitutional muster under the intermediate scrutiny standard."

In reaching this result, we conclude first that the government has a substantial interest in providing for the safety of individuals who visit and make use of the national parks, including Daingerfield Island. Although the government's interest need not be "compelling" under intermediate scrutiny, cases have sometimes described the government's interest in public safety in that fashion. See Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997) (referring to the "significant governmental interest in public safety"); United States v. Salerno, 481 U.S. 739, 745 (1987) (commenting on the "Federal Government's compelling interests in public safety"). The government, after all, is invested with "plenary power" to protect the public from danger on federal lands under the Property Clause. See U.S. Const. art. IV, § 3, cl. 2 (giving Congress the power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States");"

Va. Code § 18.2-279 is not a Strict Liability Crime. However, Know Your Target and What is Beyond Applies to Criminals

Ellis v. Commonwealth, __ Va. __, __ __ S.E.2d __ (2011)

"Ellis contends, however, that even under this general intent standard the evidence was not sufficient for the circuit court to find that he knew or should have known that the convenience store was within his line of fire. This is so, Ellis contends, because the evidence showed only that he and "D.A." were walking toward Marshall Avenue at an undetermined distance from the store when he fired his weapon at "D.A." Thus, Ellis asserts that there was "[n]o evidence . . . presented to even suggest that [he] even knew where the building was located or that it was occupied...

During oral argument of this appeal, the Commonwealth conceded that Code § 18.2-279 is not a strict liability crime, and that factors such as visibility, time of day, the character of the neighborhood, and, most especially, the distance between the shooter and the building struck could impact the fact finder's determination of whether the defendant reasonably should have known that he was shooting at an occupied building. The Commonwealth further acknowledged that the nexus between the shooter and the building struck could become so attenuated as to be legally insufficient to support a conviction under Code $sect; 18.2-279. The Commonwealth contends, however, that the evidence in this case was sufficient to permit the circuit court to find that the Commonwealth's evidence was legally sufficient, and, as the trier of fact, to make the further determination that Ellis knew that the convenience store was in his line of fire or should have realized that the natural, probable consequences of his actions was that stray shots were likely to strike occupied buildings. We agree.

Given these facts, we hold that the Commonwealth's case was legally sufficient to survive Ellis' motion to strike and that the circuit court, as the fact finder, could reasonably infer from the character of the neighborhood, the presence of others in the vicinity, and the density of the surrounding development, that Ellis knew or should of known that an occupied building would be in his line of fire when he unlawfully discharged his weapon toward "D.A." In this instance, it was not necessary for the Commonwealth to prove by direct evidence that Ellis was actually aware that the convenience store was within his line of fire or that it was occupied at the time, because it was reasonable for the fact finder to infer from the evidence that these elements of the offense were established beyond a reasonable doubt."

Supreme Court of Virginia Expands What Constitutes a Firearm to Include an Obvious Toy Gun Under Va. Code § 18.2-53.1

Courtney v. Commonwealth, __ Va. __, __ __ S.E.2d __ (2011)

"The Commonwealth's Attorney additionally stated that:

Your Honor, what I'll start with is defense counsel said that no one believes that this was a real gun. We, you, defense counsel and I didn't believe that this was a real gun, but I would submit to you that the victim did. She never saw the pistol, she never saw what was recovered in this car. She knows that the defendant told her that he had a gun and that he had something under his shirt. She believed it was a real gun."

Courtney argues that the Commonwealth conceded that an actual firearm was not used in the commission of the offense. Considering the Commonwealth's argument in context, we do not agree. Clearly, the Commonwealth conceded that an actual firearm was not recovered. Nonetheless, the Commonwealth consistently maintained that the evidence was in conflict concerning whether Courtney used an actual firearm in the commission of the robbery. The Commonwealth argued that Courtney's statement "I have a gun," and that he would "have to kill" or "shoot" the victim if she continued to disregard his commands, combined with his opportunity to discard an actual firearm, were sufficient to find him guilty of use or display of a firearm in the commission of a felony under Code § 18.2-53.1."

Justice Koontz Dissenting Opinion:

In my view, a "toy gun" is neither a "firearm" or "such weapon" contemplated by the plain language of Code § 18.2-53.1. Today, however, the majority of this Court judicially broadens the scope of this statute beyond the plain meaning of its language to permit a conviction pursuant to this statute where the evidence establishes that the defendant used a toy gun lacking the appearance of an actual gun to commit a robbery. I am unwilling to ascribe to the General Assembly an intent to include such toy guns within the sweep of this criminal statute.

Code § 18.2-53.1, in pertinent part, provides that: "It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit ... robbery ... Violation of this section shall constitute a separate and distinct felony."

This statute is not ambiguous. Its plain language makes no reference to a toy gun. Moreover, a toy gun is not a "firearm" because a toy gun is generally understood and accepted to be an object designed, made, and intended for amusement and not an object designed, made, and intended to have the capability of expelling a projectile by explosion as is the case of a "pistol, shotgun, rifle, or other firearm." See, e.g., Code § 18.2-433.1 (defining a "firearm" as "any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material"); Armstrong v.Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002)("to sustain a conviction for possessing a firearm in violation of Code $sect; 18.2-308.2, the evidence need show only that a person subject to the provisions of that statute possessed an instrument which was designed, made, and intended to expel a projectile by means of an explosion"). Likewise, a toy gun is not a "weapon" because a toy gun lacks the capability, common to a pistol, shotgun or rifle, to inflict physical harm...

Like in Powell, the defendant in this case stated that he had a gun and although the victim did not see a gun, the victim was reasonably threatened. Thus, there is no question the evidence was sufficient to sustain the defendant's conviction for robbery of the victim. That determination, however, does not resolve the issue of whether the facts support a separate conviction of the defendant for violation of Code § 18.2-53.1 because, unlike in Powell, here the Commonwealth introduced evidence regarding the particular "gun" the defendant used in the commission of the robbery. That "gun" was a toy gun; it was not a "firearm." Additionally, the Commonwealth's evidence established that this toy gun "looks like" a toy gun. A toy gun that looks like a toy gun logically does not also have the appearance of having capability of an actual firearm."

A John Wayne's Replica Gun is a Firearm Under Va. Code § 18.2-53.1

Startin v. Commonwealth, __ Va. __, __ __ S.E.2d __ (2011)

No Use of a Firearm in the Commission of a Burglary. Elements of the Burglary Were Completed Before the Use or Display of a Firearm under § 18.2-53.1

Rowland v. Commonwealth, __ Va. __, __ __ S.E.2d __ (2011)

DiGiacinto v. The Rector and Visitors of George Mason University, 281 Va. 127, 704 S.E.2d 365 (2011)

"We hold that the protection of the right to bear arms expressed in Article I, § 13 of the Constitution of Virginia is co-extensive with the rights provided by the Second Amendment of the United States Constitution, concerning all issues in the instant case...We hold that GMU is a sensitive place and that 8 VAC § 35-60-20 is constitutional and does not violate Article I, § 13 of the Constitution of Virginia or the Second Amendment of the federal Constitution...Neither Heller nor McDonald casts doubt on laws or regulations restricting the carrying of firearms in sensitive places, such as schools and government buildings. Indeed, such restrictions are presumptively legal.

GMU claims that Article I, § 14 is not a self-executing provision of the Constitution of Virginia. We disagree...Despite our conclusion that Article I, § 14 is self-executing, in order for DiGiacinto to prove a violation of that constitutional provision, he must establish that GMU, in promulgating 8 VAC § 35-60-20, functioned as a separate or independent government. The history of Article I, § 14 indicates that its origin related to the boundary problems that the Commonwealth faced during its inception: "Virginians were concerned that some of the land companies might attempt to create a new state within the boundaries of Virginia in order to enhance their chances of successfully defending claims to vast amounts of unsettled and sparsely settled land." 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 279 (1974). In the instant case, the argument that GMU, in promulgating 8 VAC § 35-60-20, was attempting to function as a separate government is without merit. GMU had statutory authority under Code § 23-91.29 to make regulations concerning the university. Therefore, GMU did not violate Article I, § 14.

Lastly, DiGiacinto argues that the General Assembly cannot acquiesce or delegate its powers away to GMU. Code § 23-91.24 makes clear that GMU is "subject at all times to the control of the General Assembly." The General Assembly did not improperly give or delegate its powers to GMU. Therefore, we hold that this argument likewise lacks merit.

Accordingly, for the reasons stated, we will affirm the circuit court's judgment."

For analysis of this opinion and all the documents of the case, goto GMU Lawsuit

Choose Your Next Destination