17 December 2019

I Think, Therefore I Mistake

The First Rule of Talking to a Jury:

Thou shalt never, ever, ever say "I think", "I believe", or "I" followed by any verb other "am" and then only once if you a need to introduce yourself.
          Corollary A: Don't use the word "my" either as in "my belief", "my thoughts", etc.

I've had that discussion with any number of times with younger lawyers looking toward their first jury trial. It is amazing how much attorneys want to give their opinion to the jury. It's a strange mistake to make because it doesn't really help much unless you're somebody with a big reputation. Young attorneys trying theft cases don't have that kind of reputation. And, any attorney who has been doing this job long enough for their reputation or position to matter should already have this trained into them.

Of course, anybody who watches nowadays realizes this ain't always the way it works out. I blame this on the fact that juries have been denigrated so much that even senior attorneys haven't tried many juries. So here's the reason for the rule: most importantly to the court, bolstering the argument ain't allowed; most important to the attorney, bolstering is almost always weaker than a straight argument.


"I wouldn't bring this charge of theft if I didn't believe Jane Doe did it."

"Jane Doe's a thief. It's obvious she's guilty. You know this because you've seen the evidence."

Which of these would be your stronger opening? I know the first one is "bolstering", but to be honest with you, when I hear something similar to the first statement I don't hear something that makes me confident. I hear something that says, "I know my case is weak, but please believe me." It's a dumb way to start your argument.

04 December 2019

Proposed Firearm Laws (Virginia)

Over the last few days, I've been summarizing the bills which are being put forth to restrict firearm ownership in the General Assembly of Virginia that have been proposed so far. More may be proposed, but I think the core of the proposals are already in place. These are merely bills at this point and I don't know the probability of any passing, but with the high level of interest and the kind of exaggeration or misunderstanding I see in social media I thought an actual summary of what everyone is talking about might be useful.

Here's an index of the posts:

1.  Firearms to be made illegal.

2.  New age limitations.

3.  Limitations on magazines and triggers.

4.  Newly forbidden locations.

5.  Background checks.

6.  Purchase limitations.

7.  The Right to Bear Arms under the Virginia Constitution.

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

Proposed Firearms Laws (Virginia) - The Remainder

Day four (part three) of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12141618, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Limitations on Pistol Purchases:

SB22 (Saslaw) and SB69 (Locke) - § 18.2-308.2:2(R) - A person can only buy one pistol every 30 days. Violation is a class 1 misdemeanor (up to 12 months).

Reporting Stolen Firearms:

HB9 (Del. Bourne) and SB67 (Sen. McClellan) - § 18.2-287.5 - Failure to report a lost or stolen firearm to law enforcement within 24 hours of realizing it's gone is subject to a penalty of up to $250.

More Posts about the Firearm Proposals

Proposed Firearms Laws (Virginia) - Forbidden Locations

Day four (part two) of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12141618, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Forbidden Locations:

Every year, the General Assembly seems to add a place or two where a citizen cannot carry a firearm. Here's this year's list.

SB16 (Sen. Saslaw) - § 18.2-287.4 - No shotguns that carry over 7 rounds anywhere in public. Class 1 misdemeanor (up to 12 months).

SB71 (Sen. Lucas) - § 18.2-308.1 - Pre-Schools and Daycare Centers. Class 6 felony. Up to 5 years if mere possession. Mandatory entire 5 years if use or try to use the firearm.

SB15 (Sen. Ebbin) - § 18.2-283.2 - Commonwealth owned buildings where government employees conduct their business. Class 1 misdemeanor (up to 12 months) and forfeiture of the firearm to the Commonwealth.

SB13 (Sen. Ebbin) - § 18.2-283.2 - Capital Square in Richmond. Class 1 misdemeanor (up to 12 months) and forfeiture of the firearm to the Commonwealth.

SB35 (Sen. Surovell) - § 15.2-915 - Allows localities to pass an ordinance to forbid firearms at an event which requires a permit. No punishment laid out.

SB51 - (Sen. Spruill) - § 18.2-308.012 - Cannot possess a firearm and drink in a public space that has been approved for alcohol consumption. Class 2 misdemeanor (up to 6 months).

More Posts about the Firearm Proposals

Proposed Firearms Laws (Virginia) - Magazines and Triggers

Day four (part one) of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12141618, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Non-Standard Magazines:

As most everyone knows, standard magazine size for most magazine fed rifles is 20 rounds (old school) or 30 rounds. Pistol magazines typically hold at least 12 rounds. The good news is that if you already own standard magazines you can keep them. The bad news is that if you want new ones you will have to travel to Kentucky, West Virginia, Tennessee, or North Carolina to buy them.

SB16, introduced by Senator Saslow, creates a new statute, § 18.2-308.9, which will limit the sale of magazines in Virginia to the non-standard 10 round capacity. It will be a class 1 misdemeanor (up to 12 months in jail). It also illegalizes "importing" such magazines, but that's not defined and in context within the statute the meaning would have something to do with bringing them in to give to another (noscitur a sociis). Buying standard magazines for ones self and returning to the Commonwealth would appear to be legal.

COMMENT:  Yes, I know that a judge in California has ruled the limitation to the non-standard ten round magazine is unconstitutional. However, the 4th Circuit Court of Appeals, which reigns over those of us in Virginia, has held that the limit is constitutional. It's not the sharpest opinion legally - relying a great deal on emotional appeals instead of legal analysis - and relies to some extent on the rather tenuous idea that a mass shooter will be taken down when he pauses to reload and therefore a ten round magazine will provide more such opportunities when a mass shooting is in progress. It is, of course, judged under an intermediate standard leaning toward rational basis. 

To be honest, the federal appellate courts have shown themselves over and over again hostile to asserted rights under the 2nd Amendment. I fully expect the decision by the California judge to be overturned by the 9th Circuit. Short of some sort of ruling by the US Supreme Court that these sort of cases should be subject to strict scrutiny, do not expect this law to be overturned on constitutional grounds.

Trigger Activators:

SB14, proposed by Senator Saslow, would make it a class a class 6 felony (up to 5 year in prison) to possess a device that will enable a firearm to fire a burst, which means it could fire more than one round per trigger squeeze without becoming fully automatic.

More Posts about the Firearm Proposals

03 December 2019

Proposed Firearms Laws (Virginia) - Illegal Firearms

Day three of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Illegal Firearms: This comes from SB16, proposed by Senator Saslow. It's a fairly sweeping change in the definitions of what firearms are illegal.

Assault Firearm: 18.2-308.8

This statute currently only makes the Stryker 12 "Streetsweeper" shotgun illegal. If the bill passes as written, it will create a class of firearms known as "assault firearms" and those will be illegal to possess.

Rifles and Pistols

To begin with, nothing in this statute has anything to do with revolvers. So, if you're sporting the Dirty Harry Special (.44 Magnum) you don't own an "assault firearm."

For both rifles and pistols, this is about all about firearms with either detachable or fixed magazines. Detachable magazines are self explanatory, but there's no definition in the statute for a "fixed" magazine. The common sense definition for this would be a firearm with an internal storage capacity. However, after doing some research, apparently this also means a semi-detachable magazine. As best I can tell, this would mean that the magazine cannot be ejected as normal by simply hitting a button on the side of the firearm and letting the magazine fall out. Instead, the magazine is held in place until a tool is used to remove it or the magazine is held in place until the rifle is broken open.

Under subsections (A)(1) and (3), if your "fixed" magazine is limited to ten rounds, there are no limitations as to what modifications you can do to your rifle or pistol or what cool stuff can be attached to it.

Subsections (A)(2) and (4) set out a two part test to declare a rifle or pistol an "assault firearm."

1.  Does the firearm have the ability to accept a detachable magazine?"


2.  Does it have any single one of the following?

Folding / Telescoping StockFolding / Telescoping Stock
Thumbhole StockThumbhole Stock
A Handgrip for Non-Shooting HandA Handgrip for Non-Shooting Hand
Bayonet MountCapacity for a Non-Handgrip Magazine
Grenade LauncherA Shroud to Protect Non-Shooting Hand
Flare LauncherWeighs 50 oz. or more
SilencerThreaded Barrel which can attach
Flash Suppressor     ~ Silencer
Muzzle Brake     ~ Flash Suppressor
Muzzle Compensator     ~ Barrel Extender
Threaded Barrel which can attach
the last four items
     ~ Forward Handgrip
Anything similar to the aboveAnything similar to above

There's a fair bit of the above that's humorous. Interestingly, your pistol can have a silencer, flash suppressor, and barrel extender as long as it doesn't screw on. Human ingenuity being what it is, I would expect clips or something similar to fill that gap. Or the pistol could simply be built with them. Are bayonets a serious issue? I don't remember hearing bayonets were a serious issue at any of the shooting events and mainly it's been a reason to make fun of USA Today for thinking AR-15 owners use chainsaw bayonets: "Sometimes I think the gun rights crowd is too hard on the media, and then I see stuff like this." I did learn some new things looking through this. I didn't know there were civilian models of M203's and when I looked up thumbhole stocks for pistols, certain that was a ridiculous idea, I got introduced to the concept of AR-15 pistols which apparently can have such a stock; it seems like a stupid concept, but it's a concept.


Under subsection (5) you cannot have a shotgun "with a revolving cylinder" which I'm pretty sure is supposed to cover the Striker 12 and its knockoffs.

Subsection (6) sets out a two part test to declare a shotgun an "assault firearm."

1.  Is the shotgun semi-automatic?


2.  Does it have any single one of the following?

Folding / Telescoping Stock
Thumbhole Stock
Pistol Grip 
Detachable Magazine
Fixed Magazine Over 7 Rounds
Anything Similar to the Above

Parts are a Firearm  - Any parts that can be used to change a firearm into an assault firearm or which can be assembled into an assault firearm are an assault firearm.


1.  Rendered permanently inoperable.

2.  Antique.

3. Curio or Relic.

More Posts about the Firearm Proposals

01 December 2019

Comparing the Virginia Right to Bear Arms with the Federal

Both the US Constitution and the Virginia Constitution have the right to bear arms baked in.

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
Art. I, Sec. 13.
 The highlighted section was added in 1971. Prior to that, it was a reflection of the belief of our founding leaders that a standing army is dangerous and that the citizens could and should stand to the defense of their nation as a militia instead. This belief is also reflected in the preamble section of the right recognized in the Federal Constitution.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amend. II.
Inherent in the militia concept is the idea that each person in the militia will possess and bring with him a firearm. In fact, it was a requirement under law. Don't believe it? Here are a few muster notices for various militias.

Notice that they all require the militiaman to report with his weapon. The last one even specifically lays out what weapon and accoutrements the militiaman is required to bring with him.

The federal amendment is notorious for its vagueness. Is the part left of the second comma a condition that controls the language right of that comma? Does it refer to the National Guard and limit the right to guardsmen? Or, does the language right of the second comma recognize a pre-existing right and perhaps specifically, by reference to militia, give a sense of what sorts of "arms" a citizenry has the right keep and bear? Does it guarantee that citizens have a right to weapons which could make them an effective military force if mustered? Or perhaps the language right of the second comma recognizes a right and the language before that comma is just surplusage not relevant in the modern world? It's a quagmire.

The Virginia Declaration of Rights, as modified and included as Article I section 13 of the Virginia Constitution, is in some ways much clearer. There is no doubt that it is referring to everyone in Virginia. It defines "militia" as "the body of the people." That's me, you, and every other permanent resident of Virginia. More specifically, most of us are in the unorganized militia which is a legalistic way of saying that the Commonwealth of Virginia has been failing to train us to arms as it seems required to per this constitutional provision.  BTW, for those of you who don't know, if you're between the ages of 16 to 55 you are subject to activation at the behest of the governor. Of course, the statutes are an overlay and limitations they place on "the body of the people" reflect choices in using the militia; they don't actually limit the composition. In other words, the fact that a statute limits ages of those serving within the militia doesn't mean that the age is actually limited - it just means the Commonwealth will only use those within the given age range.

The conscious decision to place the right to keep and bear arms in the militia section of the Virginia Constitution and adding "therefore" as a connector makes this far less ambiguous than the federal amendment. It applies to members of the militia. However, it makes it clear that we are all members of the militia so that's not a limitation.

The ambiguity is what "arms" means. As this right is specifically tied to militia service it seems to be those types of weapons which would be used by a militia. Note the third call to muster above. The arms for a militia are those which are minimally acceptable for military usage. In other words, if the governor were to call up companies from the unorganized militia and every person showed up with their pistols that unit would be almost completely useless. So, pistols wouldn't be covered by "arms" under the Virginia constitution. On the other hand, were the entire company show up with "assault" rifles the "arms" would be appropriate. This seems to indicate that under the Virginia Constitution pistols would have few protections while assault style rifles would have much more.


Caveat: Yes, we all know the militia concept is outdated and exists now only as a vestige of an unrealistic - one might even say quaint and romanticized - belief of our forefathers that our country could be adequately defended by citizen militias. Nobody believes in this system anymore except for some folks out there forming independent militias which are not what our forefathers meant when they wrote militias into our constitutions. "Who are the militia? They consist now of the whole people, except a few public officers." George Mason (debating Virginia's acceptance of the Federal Constitution). The militias foreseen by our constitutions consist of you and me and everybody in our county called together to serve under an officer or two appointed by the government.

And yet, the militia section is still in the Virginia Constitution and the militia statutes are still on the books. This means that the militia still exists constitutionally and legally  and the constitutional protection pursuant it is still extant.


Caveat 2:  OMG. I'm still subject to recall for military service. Hopefully, the governor of Virginia won't need to call me into militia service for just a couple more years so that I can age out. Of course, the level of desperation that a governor would need to call a overly rotund, terribly out of shape, old guy like me into militia service would probably require a simultaneous invasion by Canada, Mexico, China, Bulgaria, and Species 8472. Even then, a guy whose main job when he was in the Army was to speak Arabic probably wouldn't be of much use. Let's all keep our fingers crossed that it never comes to that.

30 November 2019

Proposed Firearms Laws (Virginia) - Age

Day two of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Age Restrictions: This comes from SB18, proposed by Sen. Saslaw. It changes several statutes relating to age and I shan't be following the order in the statute because that would bury the lead. I've glanced through all the bills that are proposed and this is the one which strikes me as being the one likely to run afoul of the US Constitution's 2nd Amendment and Virginia Constitution Art. I, Sec. 13 (which is facially broader than the 2nd Amendment).

Cannot Buy:

A new subsection of § 18.2-308.2:2, (R) will state that no person under the age of 21 will be allowed to buy a firearm in Virginia (people over 18 yoa at time of passage will be allowed to under a grandfather clause).

COMMENT: They'll have to pop over the state line and buy them in Tennessee, North Carolina, Kentucky, or West Virginia. I'm not a big fan of infantalizing those between 18 and 21. If 18 is the age of majority then 18 is the age of majority. Furthermore, when we pass laws forbidding law abiding adults from doing something entirely legal - whether they are about drinking, using nicotine, or buying firearms - we encourage wink and a nod lawlessness. Beyond even that, denying an adult a constitutionally guaranteed right, by attempting to make that right non-exercisable, without a particular and individualized reason, but only because she belongs to a non-harmful class, inclusion in which she has no control over, begs for a constitutional challenge.

Access by Minors: § 18.2-56.2

(A) An adult cannot "recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb" of someone under the age of 18. There are two real changes here. First, the age used to be under the age of 14. Second, the punishment went up from a fine to a class 6 felony (up to 5 years in prison).

(B) It's a class 1 misdemeanor (up to 12 months in jail) to authorize person under 18 to use a firearm without supervision by an approved 21 yoa person. The statute used to forbid authorization for a kid under 12 yoa.

COMMENT: I'm not sure what the burning need is for these changes.

(A) is a nothingburger. "Reckless" behavior is entirely subjective, but unless it's tied to a springloaded door trap (we all remember that case from law school), it's going to be hard to make the case that a 14-17 yoa minor doesn't understand the danger inherent in a loaded firearm. Once you get under 14 the scale begins to tip and things like having a loaded firearm in the desk drawer, or on the wall, or behind the door starts looking a lot more like reckless behavior as the child in question gets younger.

(B) is an anti-hunting statute. Prior to this, it appears that a minor of 12 yoa or older could go out with her .22 rimfire and shoot squirrels, rabbits, or the bleeping beaver that keeps flooding the corn field. Now she can't and her older 17 yoa brother can't go out with his .45-70 and cull the out of control deer or bear populations either. Now they can't unless they drag some adult along with them.

None of this protects the citizenry any more than the law as it currently exists. If (B) is meant to prevent adults from arming children in gangs or in riots or similar situations it's far too broad and needs to be narrowed. Perhaps (B) is meant to stop sales to minors, but if so the statute should ban authorization to possess not use.


Possessing Pistols or Assault Weapons: § 18.2-308.7

An adult under the age of 21 cannot "intentionally possess or transport a handgun or assault firearm anywhere in the Commonwealth."

Exceptions of Note:

Can possess if

(1) Have written permission from landowner. If under 18 the minor must also have her guardian's permission. (but not on property the 18-20 yoa owns herself)

(2) If accompanied by someone 21 yoa, at a firing range.

(3) Hunting (no further limitation; this appears to make the government clerk who issues a minor a hunting license a misdemeanant per § 18.2-56.2(B))

(5) A law enforcement officer. (new exception)

COMMENT:  Hmmm . . . This one clearly denies an adult a constitutionally guaranteed right, without a particular and individualized reason, but only because she belongs to a non-harmful class, inclusion in which she has no control over.

This one may actually rise to strict scrutiny analysis when challenged. The US Supreme Court hasn't set a standard for reviewing firearm cases and the appellate courts have generally adopted the intermediate standard with a rather strong lean toward the rational basis standard. However, the ones I've read seem to be more about the firearm and this is about an absolute ban on a class of citizens' constitutionally guaranteed right. It'll be interesting watching the constitutional challenges if this bill passes into law.

NOTESB16 also proposes a version  of this statute in which an under 18 yoa is forbidden to possess a "shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered." This version doesn't have the 21 yoa language at all.

 Loss of Driving Privileges: SB16 proposes that § 16.1-278.9 be changed so that any minor caught with an assault firearm cannot have a license until she is 18 years and 3 months old.

COMMENT:  Yeah, because that's we need. Another reason to make someone an illegal driver for a reason having nothing to do with a driving offense. 

More Posts about the Firearm Proposals

29 November 2019

Proposed Firearms Laws (Virginia): Criminal Background Checks

Okay, so I've been asked by several people to look at this. I don't usually look at bills because so few of them are passed into law and even those that do are often changed in the passing. Still, there's a lot of curiosity about this one, so I'm going to bend my rules a bit and look at the proposed bills (so far). From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). Yeah, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. That's why I generally don't do this. Still, once I got to looking there was a lot to discuss and I got intrigued.

Criminal Background checks: Four bills, SB12, SB18, SB70, and HB2, create a new statute that requires all persons transferring a firearm to another to get a background check on person receiving it: 18.2-308.2:5.  They were clearly all developed from a template with edits added by their patrons. Strangely, Senator Saslow felt it necessary to introduce this in two separate bills. Dealers can charge $15 to do the check. Under Sen. Saslow's version in the person transferring the firearm doesn't do the check he is guilty of a class 1 misdemeanor. In the other version the person transferring is guilty of a class 6 felony and the person receiving is guilty of a class 1 misdemeanor.

COMMENT: This last bit strikes me as contrary to logic. The receiving person knows he's a convicted felon; the transferring person does not. Thus the receiving person has a more guilty mens rea and an equal actus rea. I do, however think that a felony conviction could be appropriate for a person caught transferring without a check a second (or more appropriately a third) time. Selling your old pistol in an improper manner to some dude in your bowling league shouldn't be a felony. There should be some check on this so that the only people getting felonies are those purposefully avoiding the checks to sell multiple firearms.

Exceptions of Note:

(1)  The check isn't required if the firearm is gifted to an immediate family member and in Sen. Saslow's version "a personal friend."

(2)  The check isn't required if the transfer happens "by operation of law."

(4)  The check isn't required if the transfer is by an executor in accord with a will.

COMMENT: Probably the most common "by operation of law" situation is death without a will wherein things pass according to statutes and bad-apple Bobby, the convicted bank robber, is the only legal heir and gets Grampa's Garand. In that case there probably isn't anyone around to transfer the rifle. However, why in the world anybody would think an executor shouldn't have to check to see if Bobby can possess the weapon is beyond me. She should because if we are serious about keeping Bobby from having a firearm the fact that Grampa willed it to him shouldn't matter.

(9)  "The transfer occurs at a shooting range, shooting gallery, or any other area designed for the purpose of target shooting or for use during target practice, a firearms safety or training course or class, a shooting competition, or any similar lawful activity"

COMMENT: That is terrible draftsmanship. There are two ways to read that and both provide a loophole with the only difference being the second is bigger than the first. "or for use during" should be replaced with "and the transfer is only for the duration of." As it stands this exception, at the very least, authorizes without background check any transfer "at a shooting range, shooting gallery, or any other area designed for the purpose of target shooting." If the second "or" is interpreted as being linked to "area designed" rather than "The transfer occurs" it widens the locations available for unchecked transfer significantly. If the second "or" is interpreted as linking to "The transfer occurs" then unchecked transfers are only authorized at "a shooting range, shooting gallery, or any other area designed for the purpose of target shooting."

I'm not sure where they got the canned language, but somebody with basic reading skills should have caught that.

(10)  The transfer happens at a firearm show and the State Police performed the background check.
NOTEThe bill also proposing eliminating the language in § 54.1-4201.2 that allowed the background check to be foregone at gun shows.

More Posts about the Firearm Proposals

30 October 2019

Plain Spoken, EASILY UNDERSTOOD: Habitual Drunkard

The other day, I was lecturing a group of a few dozen law enforcement officers on the changes to and interpretations of Virginia's laws by appellate courts. As part of it, I had to tell them that the 4th Circuit Court of Appeals, shortly after supported by a Virginia Attorney General Opinion, has declared interdiction is unconstitutional.  Manning v. Caldwell. Interdiction in Virginia law is a process by which the government can petition a judge, accompanied by proof of abuse and notice to the person, and have the person be declared "interdicted." An interdicted person cannot be sold alcohol and cannot possess alcohol or be drunk in public. (the second is semi-redundant as that stands as its own lesser charge).

One of the officers asked why interdiction was unconstitutional and I had to inform him that it was because the 4th Circuit couldn't understand the words "habitual drunkard" because they were too vague.

The entire room dissolved into laughter.

Nobody can make a convincing argument that "habitual drunkard" is beyond easy understanding. That's why the judge writing this opinion spends pages 11 thru 33 trying to convince us that it is. It's definitely a "methinks thou dost protest too much" moment. Whenever you see a judge writing that much to convince you that two words from a minor statute don't mean what they seem to pretty clearly mean you know you're in the result oriented zone.

Eventually, the judge says that the only thing habitual drunkard could mean (although it is too vague to actually get there) is "alcoholic" and it violates the 8th Amendment to punish someone who is acting in accord with that status.

If that's the case then the laws that make it illegal for people under a certain age (21 in Virginia) to possess alcohol or nicotine products are status based and must to be unconstitutional as well. If possession of alcohol can't be prosecuted because it is an "involuntary manifestation" of alcoholism then possession of chewing tobacco must be an involuntary manifestation of nicotine addiction and possession of methamphetamine must be an involuntary manifestation of meth addiction. Read this way, it appears that the 4th Circuit believes that all possessors of addictive substances are not guilty by reason of insanity because they are acting in response to an irresistible impulse. That's ludicrous.

Or perhaps the judge is trying to tell us that "drunk in public" is in and of itself entirely unconstitutional unless it can be proven in court that the individual involved isn't an alcoholic or addict. However, this fails the judge's own logic because drunk in public applies to all without recourse to status as alcoholic or non-alcoholic.

At best, a kind reading of this opinion's 8th Amendment analysis would conclude that the opinion makes it unconstitutional to give a more severe penalty for an alcoholic if she is convicted of drunk in public because of her status as an alcoholic and that the opinion bypassed the illegal possession of alcohol portion of the statute.


Whence the jurisdiction?

Nowhere does the judge writing the opinion even attempt to explain how the 4th Circuit has jurisdiction to impose its will upon these statutes. This seems an awful lot like it's an end run around the Antiterrorism and Effective Death Penalty Act where the 4th Circuit would be held to a higher deference standard unless it could point to a specific US Supreme Court decision with a specific point that made the Virginia statutes clearly unconstitutional. Of course, that would be impossible because of Powell v. State of Texas, 392 U.S. 514 (1968):
The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own home. Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards, both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being mentally ill, or a leper.
It can be argued whether this applies because it is part of a plurality opinion, but it definitely makes it very difficult to claim that the Virginia statutes fall directly afoul of US Supreme Court precedent.  Having read the 4th Circuit case, I'm sure the judges involved could have cobbled together some excuse so they could impose their will on Virginia. Nevertheless, having not done so, the 4th Circuit opinion appears to be advisory at best and courts in Virginia would be bound by their own precedent.


In a world where we've moved away from individual responsibility, moved toward treatment solutions (arguably back toward them in a crippled, limping manner), and decided of late to ennoble the homeless at the expense of other citizens, the elimination of interdiction is not terribly surprising. However, it is and should be a legislative decision made by the Virginia General Assembly and signed off on by the governor. The 4th Circuit stretched further than it should have to get where it got. Despite the Attorney General's collapse in the face of this opinion, and without an explanation of what would allow the 4th Circuit to step on Virginia's sovereignty, I think that binding precedent for Virginia courts would be from Virginia's Court of Appeals in Jackson v. Commonwealth, 44 Va. App. 218 (2004):
Code § 4.1-322 imposes no criminal sanction for the status of being an alcoholic. It forbids specific behavior: possession of alcohol and public drunkenness by interdicted persons. Therefore, in accord with Powell and Fisher, we hold that Code § 4.1-322 does not violate the Eighth Amendment by punishing status or by imposing cruel and unusual punishment. 
Unless the General Assembly acts to change the law, I think that the trial courts of Virginia remain bound by Virginia precedent. The 4th Circuit, without some sort of statutory grant by Congress, doesn't stand as a court in lieu of Virginia's appellate courts and the Virginia Court of Appeals' constitutional interpretation will trump that of the 4th Circuit in Virginia trial courts. As well, prosecutors and officers acting in accord with a statute that has been specifically found constitutional by  the Virginia Court of Appeals will be well within their rights and abilities as actors under Virginia's binding precedent.

21 October 2019

A Frolicking Police Officer

A police officer is on duty until 6 p.m. At 4:30, she clocks out and goes to collect a $300 debt. She is in civies, but has a badge and pistol on her belt. An argument ensues and the person who owes her money sprays mace in the officer's face. The officer draws her firearm and shoots - missing the person who sprayed her, but grazing the guy in the next room.

Understandably perturbed, the victim sues in federal court under §1983. In order to do so, the plaintiff claims the defendant was operating as a police officer because her shift had not ended and she had her badge and service revolver on. Everyone seems to agree that although she clocked out she was still on her shift (not sure how that works - how else do you get off the clock? Quit?).  However, that's still not enough to win the day because the 6th Circuit determines she was "frolicking":

The purely private altercation between Morris and Adams does not possess the necessary indicia of authority to find that Adams was acting under color of law.2


 2  Adams’ conduct was the definition of the ancient concept of “frolic.” The general principle of the concept of “frolic” remains intact today, and vicarious liability arises only with respect to conduct that in part at least is in furtherance of the employer’s business. Restatement (Second) Agency, § 235. “If the agent is off on a frolic of its own, in a situation where the principal has neither given the agent authority to act for it nor done anything to suggest to others that the agent has such authority, and in the absence of ratification, courts do not ordinarily treat the act of the agent as the act of the principal.” Abbott Labs. v. McLaren Gen.Hosp., 919 F.2d 49, 52 (6th Cir. 1990); Carroll v. Hillendale Golf Club, Inc.,144 A. 693 (Md. Ct. App. 1929) (“Where there is not merely deviation, but a total departure from the course of the master’s business, so that the servant may be said to be on a frolic of his own, the master is no longer answerable for the servants conduct.”).
Hat tip to The Volokh Conspiracy.

15 October 2019

Non-Unanimous (Super-Majority) Verdicts

In case you've been living under a legal rock, let me inform you that most States and the federal courts require a unanimous 12 person jury to convict someone of a criminal offense. Now, the last couple States that allow super-majority verdicts (10-2) are being brought before the US Supreme Court on claims that a less than unanimous verdict is unconstitutional (specifically, it's Ramos v. Louisiana). And if you look around, all the talking heads types are fairly confident that the court will take the power of determining jury use away from the States and mandate unanimous jury votes from here on out.


No matter how much the American legal system has come to cherish this unanimity (while at the same time doing everything it can to de facto eliminate jury trials), this is not a mandated outcome of the constitution as written. As is often the case, we can look to the development of jurisprudence in England in order to see see an equally valid version which could have developed in the United States. In Section 13 of the Criminal Justice Act 1967, later replaced by Section 17 of the Juries Act 1974, England and Wales codified conviction by super-majority. Under this system, the jury has two hours to reach a unanimous verdict under the statute and apparently ten minutes has been added for time to travel back and forth to the jury room. Crown Court Compendium Part I21-4 Majority verdicts.  If they have not reached a unanimous verdict after two hours at any time thereafter (at the judge's discretion) they get an instruction from the judge that contains these elements:

(1) They should still, if at all possible, reach a unanimous verdict.
(2) If however they are unable to reach a unanimous verdict the time has now come when the court could accept a verdict which is not unanimous but one on which a majority of at least 10 of them agree; that is to say a majority of 10/2 or 11/1. 
Crown Court Compendium
Or if you prefer to see a version of this delivered (although fictionalized):
I would of course prefer a unanimous verdict, but I'm prepared to accept one upon which at least ten of you are agreed.
Kavanagh QC, Season 1 Episode 1, 01:32:05 (here on Amazon)
England/Wales weren't the first to reform toward super-majority juries. In Australia the various states adopted this systemSouth Australia (1927), Tasmania (1936), Western Australia (1960), the Northern Territory (1963), Victoria (1994), and New South Wales (2006). In 2009, New Zealand adopted super-majority verdicts. Jamaica adopted them in 2010. Of course, you could complain that these are all modernish developments and be semi-correct. If you did, I'd pass on arguing whether 1927 or 1936 could be called even modernish and point you to the Scottish system which has allowed simple majority verdicts in criminal trials since the 16th century.

So, you see, the unanimous 12 person jury was not some predestined commandment based on ingrained natural law. Instead, it's the shadow on the cave's wall. The question is how we've become so rapt in our belief of the reality of the shadow.


The entirety of the mentions in the constitution having to do with criminal petit juries are:

Art. III, Sec. 2(3): The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Amendment VI:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.
You'll notice that no requirement of unanimity under either passage. So where does it come from? We know that a lot of the Bill of Rights was based upon the Virginia Declaration of Rights (incorporated as the first part of Virginia's constitution). However, we can see that portions of the VDR were rejected.
That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.VDR Section 8.
Of particular interest to this discussion is the fact that Virginia's requirement "without whose unanimous consent he cannot be found guilty" was passed over in the federal version. We know that when the 6th Amendment was being put together by Congress language requiring unanimity was proposed:
The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction . . .
1 Annals of Congress 435 (1789)
Congress chose not to include the language requiring a unanimous verdict.


What followed was something we see far too often. Those who couldn't get their version into law declared that it was the law anyway. Here's an article from Reason in favor of unanimity that does a good job of summarizing all the ex post facto claims that the 6th Amendment says what it doesn't say - or at least encompasses unanimity by the mere mention of the word "jury." This interpretation sweeps aside Congress' choice not to include the requirement and the States' ratification of that choice by adopting the amendment as written (the States initially rejected two amendments).


The strongest argument for the word "jury" including in its definition unanimity is that it was that way under the common law. As with all things common law, the go to place to find this is Blackstone:
UPON theƒe accounts the trial by jury even has been, and I truƒt ever will be, looked upon as the glory of the Engliƒh law. And, if it has ƒo great an advantage over others in regulating civil property, how much muƒt that advantage be heightened, when it is applied to criminal caƒes! But this we muƒt reafer to the enƒuing book of theƒe commentaries: only obƒerving for the preƒent, that it is the moƒt tranƒcendent privilege which any ƒubject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his perƒon, but by the unanimous conƒent of twelve of his neighbours and equals. 2 Blackstone's Commentaries Chapter 23: Of the Trial by Jury, p. 379 (Book Three).
Of course, as with all things Blackstone, this is a cherry-picked section which provides support for a favored position. Remember, this is the same book that says:
WHEN the evidence is gone through on both ƒides, the judge in the preƒence of the parties, the counƒel, and all others, ƒums up the whole to the jury; omitting all ƒuperfluous circumƒtances, obƒerving wherein the main queƒtion and principal iƒƒue lies, ƒtating what evidence has been given to fupport is, with ƒuch remarks as he thinks neceƒƒary for their direction, and giving them his opinion in matters of law ariƒing upon that evidence.
I dare a trial judge out there to sum up the evidence only including what she thinks is relevant and to tell the jury what facts she thinks they should concentrate on. You could probably put a stopwatch on how quickly an appellate court would overturn that conviction.

Anyway, Blackstone provides the best legal argument for those wanting to declare that less than unanimous verdicts were unconstitutional from the beginning.  Of course, it assumes that this part of the common law was constitutional and neither merely a law nor a part that has been ignored as not fitting in the current American legal framework. Clearly, the parts about "affected . . . in his property" and the twelve person requirement have both been found to be laws, not constitutional guarantees and this shouldn't bode well for claiming the rest of the statement is something guaranteed.
Other than that those arguing unconstitutionality are on even thinner ice. Those more disposed toward legal arguments rely on Blackstone combined with the ex post facto arguments above made by those who couldn't get Congress to include their proposed condition in the 6th Amendment.


Some are making the argument that the non-unanimous rule should be done away with because of problems specific to Louisiana's adoption of the rule. Although neutral on its face, it was adopted for racist reasons. In 1880 the US Supreme Court ruled that Blacks must be allowed to serve on juries. In that same year, Louisiana changed its laws so that conviction would be allowed at 9-3 (changed in 1974 to 10-2); this was made part of their constitution in 1898. Thus, considering its roots, it should be swept away.


Unfortunately, a potentially powerful argument in favor of the unanimity requirement is that of majority rule. Of course, it's not the job of the constitution to impose what a majority of states choose upon the minority of states, but let's be realistic. It's a powerful influence even when it shouldn't be. 



(1) CONGRESSIONAL CHOICE:  The Congress by choosing not to include it in the 6th Amendment set unanimity of jury verdicts solidly in the "law" part of American jurisprudence rather than the "constitution" part. Thus, it falls within the realm of the Congress and the law making bodies of the various states to determine whether a jury verdict should be unanimous because every single body that determines law can change or outright override the common law.

(2) CONGRESSIONAL KNOWLEDGE:  Furthermore, it was well within the knowledge of a number of the writers of the Constitution and Bill of Rights that there were places in the world where a unanimous jury verdict was not required for conviction. Remember, the man who wrote the Constitution was born in Scotland. In fact, the members of Congress didn't even have to look overseas to find this legal condition. Connecticut, Pennsylvania, North Carolina, and South Carolina during colonial times developed jury systems that did not require unanimous verdicts (see note 45 here). The proposal for a unanimous verdict clause in the Constitution and its rejection did not occur in a vacuum.

(3) NEUTRALITY OF THE STATUTORY SCHEME:  There is nothing inherently racist, sexist, or anti-religious about a super-majority verdict. While this case and the news coverage of it have concentrated on the problematic origins of Louisiana's and Oregon's rules allowing super-majority verdicts, you'll notice that none of them comment on the military's use of majority juries. It doesn't fit the narrative. Neither does the adoption of super-majority verdicts in many (perhaps most) of the countries which have judicial frameworks that find their roots in the same British common law system as ours sprang from. Our system is the one that's anachronistic. And, of course, California isn't exactly known as a hotbed of laws based on racial bigotry and it considered changing to majority verdicts three times from 1980 to 1995.

(4) TRYING TO FIX THE WRONG PROBLEM:  The problem isn't really super-majority verdicts. The argument proceeds as such: the requirement that only ten people have to vote for a finding of guilt allows African-American votes on the jury to be silenced. If this is true, the problem isn't in the allowance of super-majority verdicts; it's in jury selection. 

32.18% of the residents of Louisiana are Black. As such, a twelve person jury should have at least three Black jurors and usually four. That means that a minimum of one or two Black jurors would need to vote for conviction in order to reach the super-majority. If the number of Black jurors on a jury aren't representative then the problem isn't the super-majority requirement - it's the summoning and selection of jurors. Assuming bad intent, the problem is found in the biased creation of the list of potential jurors, or the over-liberal allowance of strikes for cause, or the poor enforcement of Batson. The problem here might be that none of that applies. I can't find anything - including Ramos' brief - that states the composition of the jury had two or less Black jurors. I would expect that to be the lead fact pointed to if it were so. It's also of note that apparently Ramos identifies or at least was identified at trial as "Mexican or Hispanic" (Ramos' brief) which calls into question whether the number of Black and White jurors is even relevant.

His lawyers had to work with what they had. If they couldn't demonstrate actual prejudice they were left with an abstract argument that didn't have any real personal emotional hooks. Obviously, they've done a good job to get it this far, but that doesn't mean they're right.



Because the controlling precedent in this area, Apodaca v. Oregon, is weak. It's one of those 4/4/1 opinions you only see from the Supreme Court (because nobody else could get away with it). 4 justices wanted to make the states have unanimous juries, 4 justices didn't think the 6th Amendment required unanimity, and Justice Powell struck out on his own deciding that the 6th Amendment required unanimity but that it didn't apply to the states. As the Supreme Court has imposed more and more of the Amendments on the States through the 14th Amendment Justice Powell's decision has become more and more tenuous. Back in the day, the justices chose which parts of the constitution applied to the states; now they just impose everything.



I expect this will be a fairly shallow opinion. That doesn't mean it won't be between 25 to 40 pages, replete with tons of citations, and filled with repetitive circular reasoning (this is the Supreme Court after all). It simply means that I expect the justices to impose all of their 6th Amendment precedent on the states without a serious consideration of whether the precedent of unanimous juries should stand.

Even were they to consider it, I wouldn't expect a decision based on solid constitutional grounds. Oh, sure, there'd be lots of legalistic sophistry, but this one is a rule of five situation where the Supreme Court has already sat and would sit as a super-legislature writing laws. It would be decided on the "feels." Instead of recognizing the Constitution as a framework that allows different possibilities within the limits laid out in the 6th amendment, the Court would again impose the unanimous jury on every state. It would do so because it feels like they ought to. The vast majority of states already do it. Louisiana, the state specifically involved in this case, has changed its law to require unanimous verdicts. Extra-legal, American institutionalized guilt would weigh in. Whatever the  legal excuse given, the feels are the real reason this Court would affirm another denial of the power of states to decide their own laws.



America is behind in the jury reform movement. While we mouth words about how sacrosanct the jury is, in reality we are making it more and more like a unicorn: a beautiful creature of myth that is never seen. Drop in on your local felony court on any given day and you'll almost never see a jury. Juries are heavily disfavored and discouraged to the point that the defendants who demand them are usually irrational or have nothing to lose. They are inconvenient, time consuming, expensive, and take matters out of the hands of legal professionals (the unforgivable sin). They were as well in the countries who have engaged in reforms.

This is not to say that super-majority verdicts would bring back the number of juries seen in previous eras. It's just a start, but it's a start that has been adopted almost everywhere with a jury system similar to ours. When you're the odd man out, it's not a bad thing to reconsider your position. However, once the Supreme Court has declared that the states no longer have the power to reconsider, this rule will be carved in stone until the end of time unless someone amends the Constitution. Since we now seem to consider the Constitution as Holy Writ (rather than merely foundational, and changeable law) that is highly unlikely.