State Preemption

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I was stationed in Virginia until late last year. VCDL (Virginia Citizens Defense Leage) and I believe OC community were behind legislation that was passed that 1) allows localities to be sued for having invalid, preempted ordinances on their books and 2) allows for the recovery of legal fees upon prevailing.

It is probably too late to find supporting representatives to get something simlar introduce in Olympia this year, but I believe it is something that the OC and 2A community should work together to get introduced and passed next session.

I am attempting to get the text of the VA legislation and revised pre-emption law so that I can compare with WA's.

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Yeah, unfortunately, as we've found out here in WA; while we have state preemption, and it's strong in-and-of itself, there's really no penalty to speak of if localities choose to go ahead and restrict gun ownership anyways.......

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We had the same issue in Virginia, that is why this law was passed. Once I find getthe text of the VA Bill I will do more diggin into finding a friendly representative to introduce next year as well as a list of local ordinances that are still on the books that the preemption clause covers.

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Absolutely, specific CRIMINAL penalties. What good is a law with no teeth. Count me in.

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CmptrGuru wrote:

We had the same issue in Virginia, that is why this law was passed. Once I find getthe text of the VA Bill I will do more diggin into finding a friendly representative to introduce next year as well as a list of local ordinances that are still on the books that the preemption clause covers.

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Here you go:

Code of Virginia

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

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

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

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

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

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

(1987, c. 629, § 15.1-29.15; 1988, c. 392; 1997, cc. 550, 587; 2002, c. 484; 2003, c. 943; 2004, cc. 837, 923; 2009, cc. 735, 772.)

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915

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Not enough!

We already have a statue making it a gross misdemeanor to cause thru either Action or INACTION a violation of a persons civil rights. All we need is a provision adding that

Any person that causes thru action or inaction a violation of this section, or enforcement of any ordinance voided by this section shall be guilty of a gross misdemeanor under RCW 9A.80.010 (Official Misconduct) and in addition shall be barred from any public office or trust for a period of 10 years. Qualified Immunity Shall NOT apply.


Yes... I'm being a hard ass. It's what it will take to stop these idoits. They don't care if they have to pay your attorneys fees with your own money!

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Right Wing Wacko wrote:

Not enough!

We already have a statue making it a gross misdemeanor to cause thru either Action or INACTION a violation of a persons civil rights. All we need is a provision adding that

Any person that causes thru action or inaction a violation of this section, or enforcement of any ordinance voided by this section shall be guilty of a gross misdemeanor under RCW 9A.80.010 (Official Misconduct) and in addition shall be barred from any public office or trust for a period of 10 years. Qualified Immunity Shall NOT apply.


Yes... I'm being a hard ass. It's what it will take to stop these idoits. They don't care if they have to pay your attorneys fees with your own money!

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According to tenth district it already doesn't apply.

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Right Wing Wacko wrote:

Not enough!

We already have a statue making it a gross misdemeanor to cause thru either Action or INACTION a violation of a persons civil rights. All we need is a provision adding that

Any person that causes thru action or inaction a violation of this section, or enforcement of any ordinance voided by this section shall be guilty of a gross misdemeanor under RCW 9A.80.010 (Official Misconduct) and in addition shall be barred from any public office or trust for a period of 10 years. Qualified Immunity Shall NOT apply.


Yes... I'm being a hard ass. It's what it will take to stop these idoits. They don't care if they have to pay your attorneys fees with your own money!

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Unfortunately only the AG can charge them AFAIK. The advantage of the
VA statute is that you can sue as a resident of the area and have standing.

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Interesting that VA includes Administrative Actions - VERY important.
Interesting that it still does not provide for explicit PENALTIES. Thats bad.

Where is it written that only the Prosecutor can take action?

The game is that the Prosecutors OFfice can cover their a**es (whichever "they" is appropriate at the time, their own and/or the Govts) and if its only a Civil action, then theres not much in the way of jail time for Civil infractions.

JAIL for Elected 'officials' is whats needed, not a Civil infraction.

Considering the POSITIVE responses Ive received from our Legislators on SB 69 (deliberately derogatory term) Ill contact them and float the question.

Out
=======================QUESTION LAUNCHED=============

RE: Constituent: In re. SB6396 Thursday, January 28, 2010 2:21 PM From: "Dave" <gl1200harness@yahoo.com>
To: " Sen. JeromeDelvin" <Delvin.Jerome@leg.wa.gov>

Cc: " Sen. JeromeDelvin" <Delvin.Jerome@leg.wa.gov>

While were on the topic, many Cities are ignoring Pre-emption especially considering the CLEAR Opinion 2008 # 8.

There are some of us who are challenging these illegal Ordinances (such as Richlands) but are in despair because there are no explicit or substantive PENALTIES towards those who ignore the Constitution, the Legislature and the AGO.

How about we either get a petition together to present to the Legislature, or one of our Reps take charge and sponsor it?

Theres a discussion going on right now on this subject at:

http://opencarry.mywowbb.com/view_topic.php?id=37230&forum_id=55

THANK YOU. Dave.

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Capn Camo wrote:

Where is it written that only the Prosecutor can take action?

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I believe it is a part of law that the prosecutor must actually decide to charge or there will be no case. You can file a complaint but only the prosecutor that has authority over the district can file charges. I could be wrong but this has been my understanding.

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heresolong wrote:

Capn Camo wrote:

Where is it written that only the Prosecutor can take action?

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I believe it is a part of law that the prosecutor must actually decide to charge or there will be no case. You can file a complaint but only the prosecutor that has authority over the district can file charges. I could be wrong but this has been my understanding.

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Depends. Felonies can only be initiated by the county prosecuting attorney or the Attorney General. Misdemeanors are usually initiated by officers in the field using the same citation form used to write speeding tickets. Sometimes they are initiated by a prosecuting authority (might be a city attorney's office or, in small places, a contract prosecutor), usually after a felony arrest turns out to not be so serious. There is also a procedure for citizens to initiate a criminal complaint under CrRLJ 2.1(c). The prosecutor still has to prosecute the case whether filed by officer or citizen. Citizen complaints are very rarely attempted much less actually prosecuted, probably because people just don't know about the procedure. Here's where you can find the rule: http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=clj&set=CrRLJ&ruleid=cljcrrlj2.1

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Capn Camo wrote:

SNIP

then theres not much in the way of jail time for Civil infractions.

SNIP

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There can't be ANY jail time for civil infractions, only monetary penalties. That's what makes them civil instead of criminal.

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I found an interesting catch in the Prosecutor thing. Wont say what it is for obvious reasons, could be a valuable tactical item in the future.

Delvin agrees that the VA thing looks good:

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

Re: Constituent: In re. SB6396
Thursday, January 28, 2010 6:06 PM From: "Delvin, Sen. Jerome" <Delvin.Jerome@leg.wa.gov> To: "Dave" <gl1200harness@yahoo.com> Cc: "May, Jeri" <May.Jeri@leg.wa.gov>

Dave the Virgina law looks good. It's to late to do this short session but next year for sure.

Jerome Delvin
Senator, 8th District

On Jan 28, 2010, at 11:21, "Dave" <gl1200harness@yahoo.com>> wrote:

While were on the topic, many Cities are ignoring Pre-emption especially considering the CLEAR Opinion 2008 # 8.

There are some of us who are challenging these illegal Ordinances (such as Richlands) but are in despair because there are no explicit or substantive PENALTIES towards those who ignore the Constitution, the Legislature and the AGO.

How about we either get a petition together to present to the Legislature, or one of our Reps take charge and sponsor it?

Theres a discussion going on right now on this subject at:

<http://opencarry.mywowbb.com/view_topic.php?id=37230&forum_id=55>http://opencarry.mywowbb.com/view_topic.php?id=37230&forum_id=55

THANK YOU. Dave.

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

We just need to make sure the VA law really is good before getting the Legislature to pass it. Theres an old saying:

"Be careful what you ask for, you might just get it"

Realize that in ignoring the Constitutions, they have created a can of worms where its impossible to make efficient law that doesnt trip over itself (CCW cannot logically be enforced, its CONCEALED). Laws are proven to not be able to stop crime, its proven that gun control does not work except to increase crime so maybe its time to REPEAL ALL GUN LAWS.

PS I dont see anything particular in CrR 2 that bars a Citizen from launching an action, nor requires teh P.A. to approve or be the sole party to file. To do so seems to bar due process if the PA decides to not prosecute for personal/political reasons, and of course, that would NEVER happen in America... (mode = sarcasm_)

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The prosecutor still has to prosecute the case whether filed by officer or citizen.

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Lammo, doesn't the prosecutor have discretion on whether to prosecute or not? In Skagit County, it wasn't uncommon for the prosecutor's office to send cases back to local agencies with a letter declining to prosecute for one reason or the other.

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It is my opinion that any penalty that did not PERSONALLY effect and sanction the lawmaker, administrator, prosecutor, or officer involved is insufficient.

If all you do is make the county/city/whatever pay attorneys fees or damages they will not care because they are using YOUR money to pay you. They already have to do that all the time and is doesn't seem to bother them.

Make it THEIR PERSONAL money and include the possibility of jail time and loss of livelihood..... NOW you have their attention.

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erps wrote:

The prosecutor still has to prosecute the case whether filed by officer or citizen.

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Lammo, doesn't the prosecutor have discretion on whether to prosecute or not? In Skagit County, it wasn't uncommon for the prosecutor's office to send cases back to local agencies with a letter declining to prosecute for one reason or the other.

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I was outright told by Whatcom County prosecutors office they only prosecute complaints from Law Enforcement Departments. I was rather irked by this, because the only way for me to have any justice was to sue civilly which would take money. So right or wrong this is how it seems to work.

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erps wrote:

The prosecutor still has to prosecute the case whether filed by officer or citizen.

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Lammo, doesn't the prosecutor have discretion on whether to prosecute or not? In Skagit County, it wasn't uncommon for the prosecutor's office to send cases back to local agencies with a letter declining to prosecute for one reason or the other.

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Yes, sorry if I wasn't clear. I meant that the prosecutor will still have to be involved in the case either way.You are also correct, we do have discretion to decline cases. I suspect this is more likely to happen than not in citizen complaint cases unless the citizen has smoothed the way with the prosecutor in advance.

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Lammo wrote:

unless the citizen has smoothed the way with the prosecutor in advance.

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Or to paraphrase "if the citizen is charging the police with illegal conduct".

Nothing against you lammo (you said "we" so I assume you are a prosecutor) but that is one of the problems with our system. Prosecutors work for the same branch of government as the police so police officers rarely get charged unless there is an egregious breach of law. Whereas we the civilian get cuffed on the sidewalks in downtown Bellingham when no law has been broken.

Rob, what do we need to do to get you a lawyer? Have you filed a FOIA request for all 911 and vehicle tapes from the stop? I am willing to chip in to stop Bellingham PD from running roughshod over our rights.

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heresolong wrote:

Lammo wrote:

unless the citizen has smoothed the way with the prosecutor in advance.

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Or to paraphrase "if the citizen is charging the police with illegal conduct".

Nothing against you lammo (you said "we" so I assume you are a prosecutor) but that is one of the problems with our system. Prosecutors work for the same branch of government as the police so police officers rarely get charged unless there is an egregious breach of law. Whereas we the civilian get cuffed on the sidewalks in downtown Bellingham when no law has been broken.

Rob, what do we need to do to get you a lawyer? Have you filed a FOIA request for all 911 and vehicle tapes from the stop? I am willing to chip in to stop Bellingham PD from running roughshod over our rights.

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You guessed correctly - - I am a prosecutor - - 22 1/2 years.Sounds to me like you all have a hostile climate over there in the Bellingham area. The dry side is (usually) much more accommodating. My experience with citizen complaints is from 1987-88 - - I've worked in Superior Court since then. I never met one that was coherent or able to actually be prosecuted. That's not to say that they can never be without merit - - if you scan the thread you'll see that I posted the reference to the rule that allows them.

If you are having a hassle with your local PD or Sheriff and can't get any help from the Prosecuting Attorney, City Council or County Commissioners, I suggest you try contacting the Attorney General's office. They aren't subject to the same local political pressures and they do have the jurisdiction and ability to step in. Not guaranteeing you will succeed but it's worth a try.

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Lammo wrote:

heresolong wrote:

Lammo wrote:

unless the citizen has smoothed the way with the prosecutor in advance.

Click to expand...

Or to paraphrase "if the citizen is charging the police with illegal conduct".

Nothing against you lammo (you said "we" so I assume you are a prosecutor) but that is one of the problems with our system. Prosecutors work for the same branch of government as the police so police officers rarely get charged unless there is an egregious breach of law. Whereas we the civilian get cuffed on the sidewalks in downtown Bellingham when no law has been broken.

Rob, what do we need to do to get you a lawyer? Have you filed a FOIA request for all 911 and vehicle tapes from the stop? I am willing to chip in to stop Bellingham PD from running roughshod over our rights.

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You guessed correctly - - I am a prosecutor - - 22 1/2 years.Sounds to me like you all have a hostile climate over there in the Bellingham area. The dry side is (usually) much more accommodating. My experience with citizen complaints is from 1987-88 - - I've worked in Superior Court since then. I never met one that was coherent or able to actually be prosecuted. That's not to say that they can never be without merit - - if you scan the thread you'll see that I posted the reference to the rule that allows them.

If you are having a hassle with your local PD or Sheriff and can't get any help from the Prosecuting Attorney, City Council or County Commissioners, I suggest you try contacting the Attorney General's office. They aren't subject to the same local political pressures and they do have the jurisdiction and ability to step in. Not guaranteeing you will succeed but it's worth a try.

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I did that and was told they do not handle and it is not lawful for them prosecuting city officials or police departments and to take it up with my local prosecutor.

I agree with Heresolong's thoughts on prosecutors in general don't seem to be interested in prosecuting folks of their own branch.