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Thread: Petition for Appeal in GMU Case

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    Regular Member Virginiaplanter's Avatar
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    The Petition for Appeal in the GMU case has been filed today.

    The petition can be read here:

    http://www.virginia1774.org/GMUSCPetitionweb.pdf






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    edit: read through it. I notice you address a few items of interest that GMU was allowed to get away with before, specifically the "sensitive areas" (GMU is not by law a "school" which are K-12).

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    Since this is the most recent GMU thread, I'd like to ask a question.

    The lawsuit regards the VAC regulation that they can enforce even against non-univ. persons.

    This VAC regulation is NOT the same as the university policy that bans guns for students/faculty/staff (anywhere on campus grounds, not just buildings), correct?

    In short, there's actually two gun bans at GMU?

    Thanks.


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    8VAC35-60-20. Possession of weapons prohibited.

    Possession or carrying of any weapon by any person, except a police officer, is prohibited on university property in academic buildings, administrative office buildings, student residence buildings, and while attending sporting, entertainment or educational events. Entry upon [the aforementioned] university property in violation of this prohibition is expressly forbidden.

    The GMU policy against students/staff part of the complaint is geared towards the VA constitution and that GMU “shall be subject at all times to the control of the General Assembly” under Va. Code § 23-91.24. (atleast if i am reading it correctly) and that they cant have a policy inconsistent with state law.

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    Here's what I was talking about:

    http://www.gmu.edu/facstaff/policy/n...y/1120gen.html

    just verifying that this is different from the VAC regulation.

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    Yes, there policy isnt VAC, butthe policy doessay:

    "Consistent with the Code of Virginia, the Board of Visitors has approved a restriction against weapons on campus for faculty, staff and students."

    This appeal states that GMU should be subject at all times to the GA, which would make this policy "inconsistent with Code of Virginia".

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    cbackous wrote:
    Yes, there policy isnt VAC, butthe policy doessay:

    "Consistent with the Code of Virginia, the Board of Visitors has approved a restriction against weapons on campus for faculty, staff and students."

    This appeal states that GMU should be subject at all times to the GA, which would make this policy "inconsistent with Code of Virginia".
    That's what I read as well. I'm just trying to figure out which policy to follow.

    The minor difference in wording makes a big difference...the VAC reg means I can OC on campus grounds and in my vehicle, the univ. policy means I can't even transport an unloaded gun in my vehicle through campus.

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    I wonder if you've ever heard the aphorism, "hard cases make bad law"?
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Virginiaplanter, best of luck to you on this.

    Please let us know if there is anything we can do to help.



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    fairfax1 wrote:
    Virginiaplanter, best of luck to you on this.

    Please let us know if there is anything we can do to help.

    good to hear from you again, haven't seen you around for awhile!

    +1 to your comments...I have never watched anything court related as much as this, there's nothing I want to see more than a victory here and if we can help in any way, let us know

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    I hope I've made it clear that, if I were on the Court, I'd do everything I could to make sure VaPlanter wins. I'm absolutely one with him in jurisprudence.

    But I see this as an attempt to force the Court into a decision. And I know for a fact that there are justices who would very much like to decide this case. Because they're experts in coming up with legal fictions and fancy phrases to explain in legalese why the Constitution doesn't mean what we think it means.

    At this point, I very much hope they reject the petition for appeal. Because if it goes forward, it is very likely to create precedent that will apply throughout Virginia, and which will say, in effect, that the Federal judiciary's approach to manipulation of Constitutional precepts applies in Virginia with respect to firearms. They will turn Virginia into a pro-crime state through judicial fiat.

    "I may be wrong, now... but I don't think so. It's a jungle out there."
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Virginiaplanter wrote:
    The Petition for Appeal in the GMU case has been filed today.

    The petition can be read here:

    http://www.virginia1774.org/GMUSCPetitionweb.pdf




    Planter, I went over the whole side of the site pertaining to the lawsuit being I am a GMU student myself. If I could only explain how angry I was when I read the judge's opinion and the string of obscenities that flew from my mouth...

    I wish you the best of luck and I hope Ill be able to OC on campus before I graduate in the spring!
    OC - Kimber Custom II - trijicon night sights, beveled mag well, and Wilson combat mags
    CC/OC Sig Sauer 229 - trijicon night sights

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    Regular Member Virginiaplanter's Avatar
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    nova wrote:
    fairfax1 wrote:
    Virginiaplanter, best of luck to you on this.

    Please let us know if there is anything we can do to help.

    good to hear from you again, haven't seen you around for awhile!

    +1 to your comments...I have never watched anything court related as much as this, there's nothing I want to see more than a victory here and if we can help in any way, let us know
    Thanks everyone for the support. From a procedural standpoint, the Commonwealth (GMU) has 21 days to respond with a brief in Opposition to the petition under Rule 5:18

    "Vscr-5:18 Brief in Opposition.
    (a) Filing Time. A brief in opposition to granting the appeal may be filed with the clerk of this Court by the appellee within 21 days after petition for appeal is served on counsel for the appellee. Within the same time he shall mail or deliver a copy to counsel for appellant. Seven copies shall be filed. Carbon copies are acceptable."


    Their Brief in Opposition will be posted in this thread when available. Also, the Virginia Supreme Court has already entered this case in its database and assigned a Record or Case No. to it: 091934 . It can be tracked at the Supreme Court's website by party name(s) or case number.



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    Virginiaplanter wrote:
    nova wrote:
    fairfax1 wrote:
    Virginiaplanter, best of luck to you on this.

    Please let us know if there is anything we can do to help.

    good to hear from you again, haven't seen you around for awhile!

    +1 to your comments...I have never watched anything court related as much as this, there's nothing I want to see more than a victory here and if we can help in any way, let us know
    Thanks everyone for the support. From a procedural standpoint, the Commonwealth (GMU) has 21 days to respond with a brief in Opposition to the petition under Rule 5:18

    "Vscr-5:18 Brief in Opposition.
    (a) Filing Time. A brief in opposition to granting the appeal may be filed with the clerk of this Court by the appellee within 21 days after petition for appeal is served on counsel for the appellee. Within the same time he shall mail or deliver a copy to counsel for appellant. Seven copies shall be filed. Carbon copies are acceptable."


    Their Brief in Opposition will be posted in this thread when available. Also, the Virginia Supreme Court has already entered this case in its database and assigned a Record or Case No. to it: 091934 . It can be tracked at the Supreme Court's website by party name(s) or case number.

    sweet.

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    user wrote:
    I hope I've made it clear that, if I were on the Court, I'd do everything I could to make sure VaPlanter wins. I'm absolutely one with him in jurisprudence.

    But I see this as an attempt to force the Court into a decision. And I know for a fact that there are justices who would very much like to decide this case. Because they're experts in coming up with legal fictions and fancy phrases to explain in legalese why the Constitution doesn't mean what we think it means.

    At this point, I very much hope they reject the petition for appeal. Because if it goes forward, it is very likely to create precedent that will apply throughout Virginia, and which will say, in effect, that the Federal judiciary's approach to manipulation of Constitutional precepts applies in Virginia with respect to firearms. They will turn Virginia into a pro-crime state through judicial fiat.

    "I may be wrong, now... but I don't think so. It's a jungle out there."
    Could you elaborate on this a bit more? We already have a lower court that established that the university is free to ban guns even those carried by people not affiliated with the university.

    To be honest the only way I see us getting our rights back other than a lawsuit, is to have a bill get through in Richmond. We tried that and we saw how that turned out. I have no idea how it would play out today, after the VA Tech incident.

    Perhaps those in Richmond would do the right thing after considering Steiger's words of wisdom...I'm sure we'll "FEEL safe" since the carry bill was killed. No sir, 32 people were killed needlessly, all because a certain few thought they could dictate to others and take away their right to self defense...a right everyone is born with...a natural right. Instead we had 32 people defenseless because the only one with a gun was the guy who has no regard for law and order...and the only good guys with guns arrived minutes too late and hid behind trees and stairs, only to make entry seconds after the crazy offed himself...more bad policy

    Well I say **** your policy. You put my family at risk on 4.16.07. How many students and teachers must die before you realize that CRIMINALS DON'T GIVE A **** ABOUT YOUR STUPID GUN BANS

    /rant

    Yes, I care deeply about this issue, it's one that affects me every day.

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    I call myself a "Constitutional fundamentalist". I would give constitutional documents the plain meaning of the words used, with reference to the time at which they were written. To me, that requires no long-winded "interpretation"; I think that word is code for "we're going to twist the meaning of the document to cover what we want it to do."

    Because the underlying case, as well as the appeal are based solely on the Constitutions of the U.S. and Virginia, there is really only a constitutional question. That is to say, VaPlanter is asking the Supreme Court of the Commonwealth, not a bunch of Constitutional fundamentalists, to "interpret" the constitutional language. It would have been easier for the Court to have limited the case to the statute that prohibits any agency of the Commonwealth from enacting such regulations. But, instead, they have to decide whether the Constitutional ban on any infringement means what it says.

    Take, for example, the recent Heller decision which everyone hailed as a big win for "gun rights". That decision only applies on territory owned and operated by the United States, so wasn't as big a "win" as might have been supposed. But more significantly, the majority opinion stated in effect that the Constitutional limitation on federal power expressed by the word, "infringe" doesn't mean what it says at all, because it is subject to "reasonable regulation".

    The language under interpretation in that case is equivalent to that of Art. I, Sect. 13 of the Virginia Constitution (having been copied therefrom). So what I expect the Court to do, if they decide to grant the petition for appeal, is to decide that the language of the Virginia Constitution allows for "reasonable regulation" and to find that GMU's regulations are "reasonable".

    That is to say, I expect the Virginia Supreme Court to "interpret" the Constitution in a way that infringes on the right of the People to defend themselves. And they'll do that because they are limited by the scope of VaPlanter's petition for appeal. And he's painted them into a corner.

    I continue to assert that Va. Code section 15.2-915 applies to state colleges and universities. Either the university is a state agency, department, or authority, or it is not. If it is, then the statute applies; if it is not, then it lacks the power to enact the regulation in the Virginia Administrative Code.

    Va. Code § 2.2-4101:
    ..."Agency" means any authority, instrumentality, officer, board, or other unit of the government of the Commonwealth with express or implied authority to issue regulations other than the General Assembly, courts, municipal corporations, counties, ..., and educational institutions operated by the Commonwealth with respect to regulations that pertain to (i) their academic affairs; (ii) the selection, tenure, promotion and disciplining of faculty and employees; (iii) the selection of students; and (iv) rules of conduct and disciplining of students.
    ...
    That title, by the way, says, "Title 2.2 - ADMINISTRATION OF GOVERNMENT."; that limits the effect of the VAC to that task, administration of government. That is to say, the VAC cannot be used to create new law or define ordinances that purport to control the behavior of persons who are not carrying out governmental functions. The only "gray area" is that a governmental unit can use the VAC to define procedures that people have to comply with in order to interact with that agency. But that has to do with how many copies of which forms one has to use, and such stuff as that.

    I believe that VaPlanter's heart is in the right place. He wants the Supreme Court to say that the language of the Constitution means exactly what it says. I also believe, however, that the course of litigation is best influenced by recognizing that the people making the decisions do not necessarily share one's own values and principles, and that one must choose the path the case will take by appealing to the principles of the decision makers, be they judges or jurors. And some cases are best left unfiled.

    That is to say, there was a way, though litigation, of obtaining the effect that VaPlanter wants. But he didn't choose that path, preferring instead to attempt to force the courts to adopt his view of the meaning of the Constitution. I think he's on the functional equivalent of a religious mission, and that his approach is that of a romantic idealist. Well, as Otto Von Bismarck is often quoted, "Those who love the law and sausages should not observe the process by which either is made."

    And as popularized in a recent movie, "It's sorta like guidelines." The law is "subject to judicial interpretation", and those who are wise limit the opportunity for judges to "interpret" the law unless they're sure of the outcome.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    I call myself a "Constitutional fundamentalist". I would give constitutional documents the plain meaning of the words used, with reference to the time at which they were written. To me, that requires no long-winded "interpretation"; I think that word is code for "we're going to twist the meaning of the document to cover what we want it to do."

    Because the underlying case, as well as the appeal are based solely on the Constitutions of the U.S. and Virginia, there is really only a constitutional question. That is to say, VaPlanter is asking the Supreme Court of the Commonwealth, not a bunch of Constitutional fundamentalists, to "interpret" the constitutional language. It would have been easier for the Court to have limited the case to the statute that prohibits any agency of the Commonwealth from enacting such regulations. But, instead, they have to decide whether the Constitutional ban on any infringement means what it says.

    Take, for example, the recent Heller decision which everyone hailed as a big win for "gun rights". That decision only applies on territory owned and operated by the United States, so wasn't as big a "win" as might have been supposed. But more significantly, the majority opinion stated in effect that the Constitutional limitation on federal power expressed by the word, "infringe" doesn't mean what it says at all, because it is subject to "reasonable regulation".

    The language under interpretation in that case is equivalent to that of Art. I, Sect. 13 of the Virginia Constitution (having been copied therefrom). So what I expect the Court to do, if they decide to grant the petition for appeal, is to decide that the language of the Virginia Constitution allows for "reasonable regulation" and to find that GMU's regulations are "reasonable".

    That is to say, I expect the Virginia Supreme Court to "interpret" the Constitution in a way that infringes on the right of the People to defend themselves. And they'll do that because they are limited by the scope of VaPlanter's petition for appeal. And he's painted them into a corner.

    I continue to assert that Va. Code section 15.2-915 applies to state colleges and universities. Either the university is a state agency, department, or authority, or it is not. If it is, then the statute applies; if it is not, then it lacks the power to enact the regulation in the Virginia Administrative Code.

    Va. Code § 2.2-4101:
    ..."Agency" means any authority, instrumentality, officer, board, or other unit of the government of the Commonwealth with express or implied authority to issue regulations other than the General Assembly, courts, municipal corporations, counties, ..., and educational institutions operated by the Commonwealth with respect to regulations that pertain to (i) their academic affairs; (ii) the selection, tenure, promotion and disciplining of faculty and employees; (iii) the selection of students; and (iv) rules of conduct and disciplining of students.
    ...
    That title, by the way, says, "Title 2.2 - ADMINISTRATION OF GOVERNMENT."; that limits the effect of the VAC to that task, administration of government. That is to say, the VAC cannot be used to create new law or define ordinances that purport to control the behavior of persons who are not carrying out governmental functions. The only "gray area" is that a governmental unit can use the VAC to define procedures that people have to comply with in order to interact with that agency. But that has to do with how many copies of which forms one has to use, and such stuff as that.

    I believe that VaPlanter's heart is in the right place. He wants the Supreme Court to say that the language of the Constitution means exactly what it says. I also believe, however, that the course of litigation is best influenced by recognizing that the people making the decisions do not necessarily share one's own values and principles, and that one must choose the path the case will take by appealing to the principles of the decision makers, be they judges or jurors. And some cases are best left unfiled.

    That is to say, there was a way, though litigation, of obtaining the effect that VaPlanter wants. But he didn't choose that path, preferring instead to attempt to force the courts to adopt his view of the meaning of the Constitution. I think he's on the functional equivalent of a religious mission, and that his approach is that of a romantic idealist. Well, as Otto Von Bismarck is often quoted, "Those who love the law and sausages should not observe the process by which either is made."

    And as popularized in a recent movie, "It's sorta like guidelines." The law is "subject to judicial interpretation", and those who are wise limit the opportunity for judges to "interpret" the law unless they're sure of the outcome.
    thanks for your insight.

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    nova wrote:
    cbackous wrote:
    Yes, there policy isnt VAC, butthe policy doessay:

    "Consistent with the Code of Virginia, the Board of Visitors has approved a restriction against weapons on campus for faculty, staff and students."

    This appeal states that GMU should be subject at all times to the GA, which would make this policy "inconsistent with Code of Virginia".
    That's what I read as well. I'm just trying to figure out which policy to follow.

    The minor difference in wording makes a big difference...the VAC reg means I can OC on campus grounds and in my vehicle, the univ. policy means I can't even transport an unloaded gun in my vehicle through campus.
    The transport law should override that university policy anyways. It overrides all sorts of other laws that would otherwise prevent possession / ownership during travel.

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    Did some more digging and found something interesting. During the FxCo court hearing GMU stated that the university is not open to the public and that they can ask anyone to leave for any reason.

    Apparently (as we all know) that is incorrect. Certain buildings on campus are specifically listed by GMU as being open to the public.

    Halfway through this .pdf it lists them:

    http://mediarelations.gmu.edu/docs/pkQuickFacts.pdf

    and just in case they remove it, I'll attach it below:


  20. #20
    Regular Member Virginiaplanter's Avatar
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    The Attorney General just issued an Opinion on GMU, The Patriot Center, and the ability of Fairfax County to tax admissions to the Patriot Center.

    http://www.oag.state.va.us/OPINIONS/...066-Bulova.pdf



    Issue Presented

    You ask whether Fairfax County may adopt an ordinance requiring the private corporation that manages the George Mason University Patriot Center to collect admissions tax on persons who pay to attend non-university events held at the Patriot Center.

    Response

    It is my opinion, based upon the facts you provide, that Fairfax County may adopt an ordinance requiring the private corporation that manages the George Mason University Patriot Center to collect admissions tax on persons who pay to attend non-university events.

    Background

    You relate that George Mason University has a large multi-purpose facility on its Fairfax County campus known as the Patriot Center (“Center”). You advise that the Center is a successful venue that is the site of many university functions and is also used for non-university functions. You relate that non- university functions include musical concerts and various other entertainment shows. The Center is managed by a private corporation that also manages other multi-purpose venues...

    In a prior opinion (“2001 Opinion”), the Attorney General considered whether the City of Norfolk could require Norfolk State University to collect and remit the admission tax imposed by ordinance by the City of Norfolk.1 The 2001 Opinion concludes that the Norfolk ordinance, which purports to impose a duty on the Commonwealth or its instrumentalities to collect an admission tax, is ultra vires.2 In a similar vein, another opinion (“1983 Opinion”) considered whether the Town of Blacksburg could impose upon the officers and employees of a state university the obligation to collect the town meals tax for the meals sold by the university.3 The 1983 Opinion also concluded that the town has no authority to impose on the university the duty to collect and report the local meals tax.4

    Finally, a 1997 opinion (“1997 Opinion”) considered whether the City of Harrisonburg may require James Madison University or a private company that provides management services to the University to collect the city meals tax on the meals the University sells to its students through its dining services.5 Because the private company did not manage the University’s dining facilities, the city could not impose a tax collection duty on the private company.6 The 1997 Opinion also noted that whether the private company has assumed responsibility for the operation of the University’s dining system was a question of fact.7...

    In the situation you present, you advise that the Center also is used for a number of popular non- university functions, such as musical concerts and various other entertainment shows. Whether the private corporation that manages the Center has assumed responsibility for such non-university functions also is a question of fact. For purposes of this opinion, I assume that the private management corporation does, in fact, have contractual responsibility for the complete management of the Center for all non- university functions. Based upon that assumption, Fairfax County would be authorized to adopt an ordinance to levy a tax on the admissions charged by the private corporation for attendance at non- university functions.



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    Is the GMU chapter of SCCC still "inactive"? We've finally gotten the JMU group up and running (I just opened up our bank account today). I may be going to Mason next fall, so I'm curious as to their groups' status.

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    hunter45 wrote:
    Is the GMU chapter of SCCC still "inactive"? We've finally gotten the JMU group up and running (I just opened up our bank account today). I may be going to Mason next fall, so I'm curious as to their groups' status.
    Pretty much. The leadership has for the most part graduated. The facebook group is still there with a decent membership.

  23. #23
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    The Attorney General has filed his Brief in Opposition to the Petition for Appeal (Oct. 9, 2009). It's a scanned image so it's a little large.


    October 9, 2009: Filing of the Brief in Opposition to the Petition for Appeal to the Virginia Supreme Court.

    --

    "To be ignorant of what occurred before you were born, is to remain always a child." Marcus Cicero.


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    Virginiaplanter wrote:
    The Attorney General has filed his Brief in Opposition to the Petition for Appeal (Oct. 9, 2009). It's a scanned image so it's a little large.


    October 9, 2009: Filing of the Brief in Opposition to the Petition for Appeal to the Virginia Supreme Court.

    --

    "To be ignorant of what occurred before you were born, is to remain always a child." Marcus Cicero.
    Page 7 is a load of BS. Yup, a university regulation is going to stop a nut job from walking into a university building with the intent to do harm to others.

    Yup that'll work just like it did at Virginia Tech...oh, right...

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    nova wrote:
    Virginiaplanter wrote:
    The Attorney General has filed his Brief in Opposition to the Petition for Appeal (Oct. 9, 2009). It's a scanned image so it's a little large.


    October 9, 2009: Filing of the Brief in Opposition to the Petition for Appeal to the Virginia Supreme Court.

    --

    "To be ignorant of what occurred before you were born, is to remain always a child." Marcus Cicero.
    Page 7 is a load of BS. Yup, a university regulation is going to stop a nut job from walking into a university building with the intent to do harm to others.

    Yup that'll work just like it did at Virginia Tech...oh, right...
    Nova, it will not only not prevent it, you can make a good case it would invite it. I tend to believe that Cho would not have done what he did if he thought there was the possibility of armed confrontation. This is evidenced by the fact he shot himself as soon as he knew the police were in the building.

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