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Thread: Cuccinelli opinion seems flimsy

  1. #1
    Regular Member simmonsjoe's Avatar
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    Cuccinelli opinion seems flimsy

    Quote Originally Posted by Grapeshot View Post
    You mean like this one in Alexandria?
    http://www.vaag.com/OPINIONS/2010opn...09-Greason.pdf
    Interestingly, he states
    "The General Assembly has provided broad powers to local governments to lease local government property. Virginia law imposes no restraints on localities with respect to lease terms and firearms." (see below)

    He then goes on to include examples that

    a) Don't have Pre-emption to contend with.
    b) Aren't public access. (all of his examples, people had to meet certain requirements for entry)(Meanwhile, the Red Cross only excluding people based on firearms)
    c) Uses a School as an example, which is in itself contradictory to his entire opinion. (If I leased a high school auditorium for a Saturday open carry dinner, what do you think would happen?)
    d) Cites “not a right to keep and carry any weapon
    whatsoever in any manner whatsoever and for whatever purpose.” which may no longer be a legally valid argument given McDonald.( also disingenuous given (e))
    e) mentions the 2A, but ignores Heller. Odd, because the same quote as in (d) is used in Heller, which also states specifically that a handgun may be used for self defense, however the types of restrictions listed in Heller are not similar to this particular land, as it is not "sensitive" enough to require a firearms ban by VA law. This is disingenuous as the 2A wasn't incorporated yet.

    § 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.
    ----
    Is signing a lease not an Administrative action? It would seem to me, whoever signed the lease on the locale's side, does not possess the authority to grant a lessee the ability to ban firearms, unless there is a statute that expressly says so. (Cuccinelli cited "15.2-1800. Purchase, sale, use, etc., of real property." but there is no express statute within.) Furthermore, NONE of Cuccinelli's examples seem to meet the Public Use 1-219.1 requirement under 15.2-1800 .

    The question wasn't the only thing that wasn't worded properly. But IANAL and this is just my opinion. Law is complicated and I'm likely misreading or overlooking something.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    Campaign Veteran skidmark's Avatar
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    The problem is that you are refusing to stick with the question asked.

    The AG is obliged to respond to the question put before him. While he is not obliged to remain within the four corners of the specific question, it is rare for any attorney to go beyond those four corners until they become either state or federal supreme court justices.

    Whether or not we was robbed or not when the question was posed, we are stuck with the opinion until and unless a different question is posed that more squarely addresses the issue from a different direction such that the AG will see it as not being a "mere recitation" of a previously asked question.

    You say
    d) Cites “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” which may no longer be a legally valid argument given McDonald.( also disingenuous given (e))
    e) mentions the 2A, but ignores Heller. Odd, because the same quote as in (d) is used in Heller, which also states specifically that a handgun may be used for self defense, however the types of restrictions listed in Heller are not similar to this particular land, as it is not "sensitive" enough to require a firearms ban by VA law. This is disingenuous as the 2A wasn't incorporated yet.
    yet completely ignore the fact that both Heller and McDonald both are limited to the question of possessing a handgun in the home - they have nothing to do with the carry of firearms outside the walls of the dwelling, not even onto the curtilige of the home. Your doing so is much more disingenuous than anything the AG's opinion may have worked towards.

    Although I do not get a referrral fee for doing so, I'm going to suggest that you attend the next law lecture User ofers. He not only covers the specific statutes, Administrative Code, and case law, but does a fair presentation on how to undersatand all that on your own. The same recommendation goes for anyone else who has any questions about the hows and whys of firearms laws.

    stay safe.

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    Regular Member Thundar's Avatar
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    Screwed by the Cooch Part II

    Yup, he did it again.
    Last edited by Thundar; 08-24-2010 at 05:13 PM.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    The opinion is spot on - if a localitiy leases property, the lessee controls the property. Period. The preemption statute does not cover lessees of property, only agents of the locality.

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    Quote Originally Posted by Mike View Post
    The opinion is spot on - if a localitiy leases property, the lessee controls the property. Period. The preemption statute does not cover lessees of property, only agents of the locality.
    How about OC at the Starbucks at GMU. It is in a GMU building, but it is leased by Starbucks. Starbucks follows the laws of the state, so it should be fine. The Starbucks there has its own entrance to the building too so you don't have to go through the building to get to it (and therefore you do not violate the VAC gun ban).

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    Regular Member simmonsjoe's Avatar
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    So how should the question of been asked?

    and

    Could the "public use" of 1-219.1 requirement under 15.2-1800 restrain a lessee in any way?

    Does anyone know when users next class is?
    Last edited by simmonsjoe; 08-24-2010 at 11:02 PM.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
    G19 Gen 4; Bersa Thunder 380; Sig Sauer P238; Kel-Tec su-16c

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    Regular Member t33j's Avatar
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    Quote Originally Posted by nova View Post
    How about OC at the Starbucks at GMU. It is in a GMU building, but it is leased by Starbucks. Starbucks follows the laws of the state, so it should be fine. The Starbucks there has its own entrance to the building too so you don't have to go through the building to get to it (and therefore you do not violate the VAC gun ban).
    I'd like to get an answer to this too. So we know Starbucks in this example could impose whatever regulations it might want, but what about the entity leasing the property? Can it impose its own rules in addition to those the lessee may decide upon?
    Sic Semper Tyrannis

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    Regular Member Thundar's Avatar
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    Hogwash Mike

    Quote Originally Posted by Mike View Post
    The opinion is spot on - if a localitiy leases property, the lessee controls the property. Period. The preemption statute does not cover lessees of property, only agents of the locality.
    Spot OFF

    1) Administrative actions cannot win in a battle with fundamental rights. IMHO a lessee would not obtain all rights of possession under common law or Virginia contract law unless the lease was an unconditional lease (all rights of posession). Almost all short term leases are conditional as the locality wishes to retain some control; that means they share control.

    The Cooch simplified the analysis and did not recognize that posession is not a black and white issue. Cooch was very lazy and sloppy in his answer, throwing out a statement that leasing was not a way to get around preemption.

    2) What would be the enforcement mechanism? Tresspassing? How would you deliver prior notice about public property? Not easy to do considering the venues.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by simmonsjoe View Post
    So how should the question of been asked?

    Rather than asking if a lessee or licensee or any other configuration of entity can impose their own rules on public space they have been granted let by the local governing body to use, ask if that local governing body may abrogate any right of the people when creating the lease. license or let.

    simple, anit it?


    and

    Could the "public use" of 1-219.1 requirement under 15.2-1800 restrain a lessee in any way?

    I'd rather you explain how you believe either of those sections of the Code apply to the issue.

    Does anyone know when users next class is?
    Why don't you PM him and ask? We are not your research assistants.

    stay safe.

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    Quote Originally Posted by Thundar View Post
    Spot OFF

    1) Administrative actions cannot win in a battle with fundamental rights. IMHO a lessee would not obtain all rights of possession under common law or Virginia contract law unless the lease was an unconditional lease (all rights of posession). Almost all short term leases are conditional as the locality wishes to retain some control; that means they share control.
    So what if they share control - the issue is the preemption statute - if the private entity is not acting as an "agent" of the locality, then preemption does not apply to the actions of the private entity.

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    Regular Member simmonsjoe's Avatar
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    Quote Originally Posted by Mike View Post
    So what if they share control - the issue is the preemption statute - if the private entity is not acting as an "agent" of the locality, then preemption does not apply to the actions of the private entity.
    Nobody is claiming preemption applies to the private entity. I think the issue is, were they even granted the authority to make such a decision?

    I don't know the legal answer. Logically, however, I cannot grant someone authority I do not possess myself.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    Regular Member simmonsjoe's Avatar
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    Could the "public use" of 1-219.1 requirement under 15.2-1800 restrain a lessee in any way?
    (skidmark):
    I'd rather you explain how you believe either of those sections of the Code apply to the issue.
    ---------------

    § 15.2-1800. Purchase, sale, use, etc., of real property.
    A. A locality may acquire by purchase, gift, devise, bequest, exchange, lease as lessee, or otherwise, title to, or any interests in, any real property, whether improved or unimproved, within its jurisdiction, for any public use.
    [...]
    G. "Public use" as used in this section shall have the same meaning as in § 1-219.1.
    -
    § 1-219.1. Limitations on eminent domain.
    A. The right to private property being a fundamental right, the General Assembly shall not pass any law whereby private property shall be taken or damaged for public uses without just compensation. The term "public uses" mentioned in Article I, Section 11 of the Constitution of Virginia is hereby defined as to embrace only the acquisition of property where: (i) the property is taken for the possession, ownership, occupation, and enjoyment of property by the public or a public corporation; (ii) the property is taken for construction, maintenance, or operation of public facilities by public corporations or by private entities provided that there is a written agreement with a public corporation providing for use of the facility by the public; (iii) the property is taken for the creation or functioning of any public service corporation, public service company, or railroad; (iv) the property is taken for the provision of any authorized utility service by a government utility corporation; (v) the property is taken for the elimination of blight provided that the property itself is a blighted property; or (vi) the property taken is in a redevelopment or conservation area and is abandoned or the acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all the owners.

    --
    More specifically:
    This appears to limit the authority of the locality as lessor. 15.2-1800 also allows a locality to lease property it owns in paragraph B. It would appear the restrictions of paragraph A still apply.


    Barring arms is a private property type issue correct(below)?? It seems if the land must be for "public use" then it would preclude any restrictions on entry by a lessee that the locality itself cannot enforce.


    This, although a different section of the law entirely, goes back to the same issue as my preemption argument. How can a locality grant authority it does not possess itself? I say it can't do so.(logically, anyways)

    Speaking of preemption, I see yet another angle:
    § 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.
    --
    (n) agent (a representative who acts on behalf of other persons or organizations)
    (n) lease (a contract granting use or occupation of property during a specified time for a specified payment)
    When a lessee, who is in a contract with a locality, starts dictating certain restrictions that affect the localities land use requirement(see above), are they now acting as an agent of said locality?
    ---
    And lastly, lets say a lessee of public use land DID ban firearms. How would this be enforced? If I ignored this and just walked into the Red Cross event, what could be done about it? They could ask me to leave under what threat? Trespass? On public propery, for public use, at an event open to the public?

    § 18.2-119. Trespass after having been forbidden to do so; penalties.
    If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof,...

    "Of another" clearly refers to the property of another person. The lessee of public property doesn't appear to meet the requirements. Let's check the Trespass of public property laws!

    § 18.2-162. Damage or trespass to public services or utilities.
    Any person who shall intentionally destroy or damage any facility which is used to furnish oil, telegraph, telephone, electric, gas, sewer, wastewater or water service to the public, shall be guilty of a Class 4 felony, provided that in the event the destruction or damage may be remedied or repaired for $200 or less such act shall constitute a Class 3 misdemeanor. On electric generating property marked with no trespassing signs, the security personnel of a utility may detain a trespasser for a period not to exceed one hour pending arrival of a law-enforcement officer...


    Well damn even simple trespass on restricted access public utilities doesn't appear to be a crime. Unless it's some sort of power substation you can't even be detained.
    Last edited by simmonsjoe; 08-27-2010 at 05:56 AM.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
    G19 Gen 4; Bersa Thunder 380; Sig Sauer P238; Kel-Tec su-16c

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    Quote Originally Posted by Mike View Post
    So what if they share control - the issue is the preemption statute - if the private entity is not acting as an "agent" of the locality, then preemption does not apply to the actions of the private entity.
    Mike, another example very similar in nature is that while I as a home owner can conceal carry without permit while on the property I live at, my guests MAY NOT. I do NOT have the right / privilege / authority to grant my guests that capability.

    One would think that local government cannot establish a lease where the leasor can restrict firearm carry because their rights & authority over the property derive from the lease agreement. Since the government cannot restrict firearm carry like that, no lease they create should be able to either.

    I believe that is what Joe is getting at.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by darthmord View Post
    Mike, another example very similar in nature is that while I as a home owner can conceal carry without permit while on the property I live at, my guests MAY NOT. I do NOT have the right / privilege / authority to grant my guests that capability.

    One would think that local government cannot establish a lease where the leasor can restrict firearm carry because their rights & authority over the property derive from the lease agreement. Since the government cannot restrict firearm carry like that, no lease they create should be able to either.

    I believe that is what Joe is getting at.
    Darthmord,

    Unfortunately, the AG decision as rendered says precisely the opposite.

    Which is why I continue to propound that the question was asked inappropriately - it's not about what the lessee can or cannot do, but about what the local government lessor may not do regarding the rights of the citizens it represents.

    With all due respect, I disagree that Joe and the others are getting at that point, even from a back-door route. They continue to discuss what the lessee may or may not do. They continue to ignore the issue and question of what the local government lessor may not do - which is to abrogate the rights of all citizens when granting a temporary license to a private party regarding the use of public property.

    It is not about substituting "KKK" for "Red Cross" and "African Americans" for "firearms", or "National Socialist Workers' Party" and "Jews", or "Westboro Baptist Church" and "gays". Because, using the AG opinion's logic, the answer would have been the same.

    stay safe.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by Mike View Post
    So what if they share control - the issue is the preemption statute - if the private entity is not acting as an "agent" of the locality, then preemption does not apply to the actions of the private entity.


    Why do we care about preemption applying or not applying to a private entity? The right to keep and bear arms on public land has existed in Virginia since before there was a federal constitution. (Art I section 13 of VA Constitution). Regardless of whether preemption exists or not, the private company which has shared control cannot extinguish fundamental rights.

    The point is that when there is shared control, the hurdle that must be overcome is the US and Virginia Constitution, not preemption.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by Thundar View Post
    ... the hurdle that must be overcome is the US and Virginia Constitution, not preemption.
    I fear that too often this right here gets ignored completely in so many efforts to get "better" legislation. We have a strong constitution. Let's use it.

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    Campaign Veteran skidmark's Avatar
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    [QUOTE=simmonsjoe;1340837]Could the "public use" of 1-219.1 requirement under 15.2-1800 restrain a lessee in any way?
    (skidmark):
    I'd rather you explain how you believe either of those sections of the Code apply to the issue.
    ---------------

    § 15.2-1800. Purchase, sale, use, etc., of real property.
    A. A locality may acquire by purchase, gift, devise, bequest, exchange, lease as lessee, or otherwise, title to, or any interests in, any real property, whether improved or unimproved, within its jurisdiction, for any public use.
    [...]

    All of the above and what followed pertains to local government obtaining property. It has nothing to do with how local government can then utilize that property, including the granting of temporary license for use by a private third party.

    Nice try, but you won't even get onto the courthouse steps with that argument.

    stay safe.

  18. #18
    Regular Member simmonsjoe's Avatar
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    Thumbs down

    [QUOTE=skidmark;1341627]
    Quote Originally Posted by simmonsjoe View Post
    Could the "public use" of 1-219.1 requirement under 15.2-1800 restrain a lessee in any way?
    (skidmark):
    I'd rather you explain how you believe either of those sections of the Code apply to the issue.
    ---------------

    § 15.2-1800. Purchase, sale, use, etc., of real property.
    A. A locality may acquire by purchase, gift, devise, bequest, exchange, lease as lessee, or otherwise, title to, or any interests in, any real property, whether improved or unimproved, within its jurisdiction, for any public use.
    [...]

    All of the above and what followed pertains to local government obtaining property. It has nothing to do with how local government can then utilize that property, including the granting of temporary license for use by a private third party.

    Nice try, but you won't even get onto the courthouse steps with that argument.

    stay safe.
    It clearly states a locality may only obtain property for PUBLIC USE, Paul. That is ABSOLUTELY a restriction on what they may use the land for. When the locality acquired the land in question, they were only allowed to do so if the land would be for Public Use.
    It has EVERYTHING to do with how the locality may utilize that property. EVERYTHING TO DO WITH IT.

    You really are crazy. All you want to do is knock me down, no matter the reasonableness of your arguments. Your ******** has gotten out of hand. I continued reading your posts because you usually have reasonable things to discuss. Now however your letting it get personal and its disrupting public discussion. Unfortunately you've made my IGNORE list.

    PS - Don't YELL at people.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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  19. #19
    Campaign Veteran skidmark's Avatar
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    [QUOTE=simmonsjoe;1341796]
    Quote Originally Posted by skidmark View Post
    You really are crazy. All you want to do is knock me down, no matter the reasonableness of your arguments. Your ******** has gotten out of hand. I continued reading your posts because you usually have reasonable things to discuss. Now however your letting it get personal and its disrupting public discussion. Unfortunately you've made my IGNORE list.

    PS - Don't YELL at people.
    Someone believes I ought to apologize for the red color and increased font size, but in my opinion the emphasis was quite necessary. Therefore I will not be apologizing for the use of color and increased font size.

    The argument that licensing the use of a public park space to a private non-governmental entity for the promotion of a cause that has historically promoted the public welfare is not "public use" is beyond my ability to comprehend. It also was beyond the ability of the AG to determine, as that was a salient point of his argument, and his conclusion that said private non-governmental entity could thus establish its rules during the period of the license.

    The counter argument that I have been positing is that the local government ought not be allowed, permitted or granted leave to abrogate the rights of the citizens to said private non-governmental entity, regardless of the license or the promotion of the public welfare aspect of the event. That prohibition extends to any license of the use of public property for an event promoting the public welfare.

    Would someone please copy this in a PM to Joe so that he might have the opportunity to consider it, as he is now ignoring me?

    Although I seem to be "a voice in the wilderness" regarding the direction to approach the issue, I will continue to advocate for this position if only because attempting to focus on preemption fails as soon as a private non-governmental entity comes into play. Preemption does not apply to private non-governmental parties.

    stay safe.

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