DiGiacinto v. The Rector and Vistors of George Mason University

STATEMENT OF PARTIES’ CONSENT TO FILE AMICUS CURIAE BRIEF

All parties have consented in writing to the filing of this amicus curiae brief. Rudolph DiGiacinto consented on behalf of the appellant. Steve McCullough, Senior Appellate Counsel in the Office of the Attorney General, consented on behalf of the appellee. This brief is filed in support of appellant in that it seeks reversal of the judgment below.

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I think you guys will like the NRA brief....to bad they don't file one like this in the other 43 states that have a rkba provision.

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

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The Heller Court stated in dicta that “forbidding the carrying of firearms in sensitive places such as schools and government buildings” is a “presumptively lawful regulatory measure.” 128 S. Ct. at 2817. This reference was unnecessary to the holding of the case, and “cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights.” United States v. Skoien, 587 F.3d 803, 805 (7th Cir. 2009), reh’g granted by United States v. Skoien, No. 08-3770, 2010 WL 1267262 (7th Cir. Feb. 22, 2010). Moreover, it is clear that college buildings are not the kind of specialized government buildings, such as the Governor’s mansion or the state legislative chambers, to which the dictum refers. Nor is a college campus a school full of young children as the reference to schools presumably refers. Defendant’s Opening Brief describes in 21 detail the minors that may be present on campus, yet provides no evidence that this regulation is necessary to protect them. See Def. Open. Br. 9. Defendant states that freshmen under the age of eighteen, elementary and high school summer campers, and minor children with their families, are often present in campus buildings and at special events. See id. at 9-10. Nowhere does Defendant explain why children are more likely to be present (or guns likely to be more dangerous) in these locations relative to areas like the public streets, sidewalks, and lawns of campus, where guns are currently allowed. Presumably, to get into these buildings and events, the children would have had to traverse some of the open areas of campus. This kind of loose decision to regulate one area but not another may suffice in most contexts, but not when strict scrutiny is used to evaluate the infringement of a fundamental right.5

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For example, persons with a Concealed Handgun Permit could be exempted.

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I don't want to turn this thread into a discussion of the NRA's brief, but I did not care at all for this part from page 23:

[align=left]Intent to menace can be inferred from the circumstances, as demonstrated by the examples given in Defendant’s Opening Brief. See id. A rejected student applicant or expelled student who wears a visible sidearm to meet with a dean could be removed from the premises immediately, because it is reasonable to presume that he is carrying for the purpose of intimidating the dean. By contrast, it would not be reasonable to presume that a man waiting for his girlfriend in a building lobby, or quietly doing research in the library, has any intent to intimidate others or commit an act of violence.[/align]

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Citizen wrote:

SNIP (quote from NRA brief about menacing)

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Yeah, that's a load of crap. Isn't it already established in case law that simply carrying a firearm is not RAS?

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nova wrote:

Citizen wrote:

SNIP (quote from NRA brief about menacing)

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Yeah, that's a load of crap. Isn't it already established in case law that simply carrying a firearm is not RAS?

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More precisely, brandishing is already established. Brandishing is the long- recognized legal threshold for inducing reasonable fear in another. It isn't being brandished if it is just being worn in a holster in everyday fashion.

Now, if the person called attention to it like opening his coat, or saying something like, "Either, I get admitted to the school or else (turns to show gun better). You get my drift?" That would be menacing.

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Citizen wrote:

I don't want to turn this thread into a discussion of the NRA's brief, but I did not care at all for this part from page 23:



[align=left]Intent to menace can be inferred from the circumstances, as demonstrated by the examples given in Defendant’s Opening Brief. See id. A rejected student applicant or expelled student who wears a visible sidearm to meet with a dean could be removed from the premises immediately, because it is reasonable to presume that he is carrying for the purpose of intimidating the dean. By contrast, it would not be reasonable to presume that a man waiting for his girlfriend in a building lobby, or quietly doing research in the library, has any intent to intimidate others or commit an act of violence.[/align]

[align=left]Yeah, that's a load of crap. Isn't it already established in case law that simply carrying a firearm is not RAS?[/align]

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Citizen wrote:

nova wrote:

Citizen wrote:

SNIP (quote from NRA brief about menacing)

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Yeah, that's a load of crap. Isn't it already established in case law that simply carrying a firearm is not RAS?

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More precisely, brandishing is already established. Brandishing is the long- recognized legal threshold for inducing reasonable fear in another. It isn't being brandished if it is just being worn in a holster in everyday fashion.

Now, if the person called attention to it like opening his coat, or saying something like, "Either, I get admitted to the school or else (turns to show gun better). You get my drift?" That would be menacing.

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As you said, that's already covered by current laws.

§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.

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nova wrote:

Citizen wrote:

nova wrote:

Citizen wrote:

SNIP (quote from NRA brief about menacing)

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Yeah, that's a load of crap. Isn't it already established in case law that simply carrying a firearm is not RAS?

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More precisely, brandishing is already established. Brandishing is the long- recognized legal threshold for inducing reasonable fear in another. It isn't being brandished if it is just being worn in a holster in everyday fashion.

Now, if the person called attention to it like opening his coat, or saying something like, "Either, I get admitted to the school or else (turns to show gun better). You get my drift?" That would be menacing.

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As you said, that's already covered by current laws.

§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.

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And, from the reverse angle, if it ain't being brandished, their fear isn't reasonable. Other clear examples of menacing excepted of course.

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Their whole argument seems to be wanting to feel free from imagined threat.

That is an internal mental condition that has nothing to do with the acts of others - it is classic hoplophobia.

Its okay somewhere else but not here. :banghead:

Yata hey

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I would even grant that except for transportation issues and other such practical matters, almost everyone, no matter their ideology, would be OK with a park with absolutely NO firearms. The difference is that one side lives in the real world, and the other lives in fantasy-land.

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TFred wrote:

I would even grant that except for transportation issues and other such practical matters, almost everyone, no matter their ideology, would be OK with a park with absolutely NO firearms. The difference is that one side lives in the real world, and the other lives in fantasy-land.

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Can't go there TFred - still would be other lethal weapons in the world: knives, machetes, iron pipes. Now if we could get rid of all of the bad guys, maybe.........................nope thought about it - not gonna do it.

Yata hey

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Grapeshot wrote:

TFred wrote:

I would even grant that except for transportation issues and other such practical matters, almost everyone, no matter their ideology, would be OK with a park with absolutely NO firearms. The difference is that one side lives in the real world, and the other lives in fantasy-land.

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Can't go there TFred - still would be other lethal weapons in the world: knives, machetes, iron pipes. Now if we could get rid of all of the bad guys, maybe.........................nope thought about it - not gonna do it.

Yata hey

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Well, you can't pull your mind out of reality for long enough...

The point is, they believe they are creating a safe world with the sign... my conjecture is that many of us would be OK to participate in that imaginary safe world, if it were actually possible...

TFred

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Colorado - -(AmmoLand.com)- Today the CSU Board of Governor’s voted to rescind their illegal ban on concealed carry on campus.

“They didn’t have a legal leg to stand on,” said Dudley Brown, Executive Director of Rocky Mountain Gun Owners (RMGO). “We told them in January, in no uncertain terms, that state law did not allow them to create their own gun ban. Unfortunately, it took a lawsuit to force them to back down.”
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RMGO filed suit against CSU’s Board of Governors on April 15th, proving that unelected board had no authority to override existing state law, which explicitly allows permit holders to carry on college campuses. A day later, a Colorado Appeals Court ruled against CU’s ban on carrying.

“This has been a good couple of weeks for law-abiding citizens who want to defend themselves on Colorado campuses, and a terrible week for criminals who assume no one is able to defend themselves on campuses,” Brown said. “We’re now going to track the policy of every secondary education campus in the state — every community college, every university, all of them — and file suit against those who attempt to violate Colorado law.”
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“The citizens, students and faculty at these facilities should thank the members and donors of Rocky Mountain Gun Owners, the organization responsible for correcting these errant bureaucrats, and Students for Concealed Carry on Campus, who put a lot of hard work into this battle.”
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Mr. DiGiacinto:

Seems to me the only Law under Virginia Code that would bar possesion of Firearms on School Property would be 18.2-308.1.

'School', per this Code, means any: [Public, Private, Religious] Elementary, Middle, High School, for Primary or Secondary Education, under Virginia Law Title 22.1.

In accordance with Virginia Law 15.2-915, Virginia Law supercedes any such regulation by GMU, it being a Higher Institution of Learning, not being applicable to Virginia Code 18.2-308.1.

As to why the Fairfax Circuit Court did not grant your request to invalidate GMU's Ordinance, which stands contrary to 15.2-915, is beyond me, however; I trust that The Virginia Supreme Court will fix that matter.

As stated on page 4, of the 2009 George Mason University Police Department Policy Handbook, governing Student/Visitor Conduct on GMU Property, Weapons are forbidden. Clearly, this prohibition runs afoul with Virginia Law 15.2-915.

Is not it ironic that The GMU Police so vehemetly cite Virginia Law relating to Alcohol, Drugs, and Sexual Assault so studiously, yet refuse to do so with Weapons?

§ 15.2-1425. Actions by localities.

The governing body of every locality in the performance of its duties, obligations and functions may adopt, as appropriate, ordinances, resolutions and motions.

(1997)

§ 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 by15.2-1425, 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.

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

Last time I checked..., unless I am mistaken..., HB 1271 failed in The Militia, Police, and Public Safety Committee during the Virginia 2010 Legislative Session. This Bill would have allowed this regulation permissable, however; it failed through Vote.

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The problem is that state agencies (which VA public universities are) are not "localities" under that law.

That doesn't mean they can ban guns, but it means that preemption doesn't apply since they are part of the state government and not a local government.

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