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Thread: Could this be a wedge to eliminating carry prohibition on state school campus?

  1. #1
    Campaign Veteran skidmark's Avatar
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    Could this be a wedge to eliminating carry prohibition on state school campus?

    http://fredericksburg.com/News/FLS/2...3082011/611821


    The University of Mary Washington had no reason to believe a student who was raped on campus in 2008 was in imminent danger, according to the state Attorney General's Office.

    Nor did the university have a legal obligation to protect the student, who was a sophomore at the time of the crime, the office claims.

    For those reasons, the Attorney General's Office has asked that a $10 million lawsuit against UMW be dismissed.

    The suit filed on behalf of the rape victim accuses UMW of negligence and claims the attacker's actions were "reasonably foreseeable" by university officials.

    A hearing is scheduled for March 28 in Fredericksburg Circuit Court.

    In a written response to the lawsuit, the Attorney General's Office says the plaintiff's allegations "paint a picture of a young woman who endured a heinous assault."

    "The person who committed the assault should be brought to justice," the response continues. "But the Commonwealth of Virginia cannot be held liable in this case because it did not violate a legal duty it owed to anyone.
    The Attorney General's Office disagrees, noting that the Virginia Supreme Court does not consider it a special relationship when adults agree to care for another's child.

    "It is difficult to imagine that an adult entrusted with the care of a minor child has an inferior duty than a university has to an adult student," the Attorney General's Office wrote.

    1) Most sophomore students are 18-19-20 year olds who are, in Virginia, still prohibited many "adult" activities because of their tender and immature years - things such as (legally) drinking, or carrying a concealed handgun.

    2) MWC prohibits the possession of firearms on its campii.

    3) Heller and McDonald shattered the notion that the government can prohibit the most effective means of self defense in the home.

    4) There are 5 cases where SCOTUS has ruled that the state has no duty to protect an individual.

    5) Possession, ownership, and the (open) carying of firearms are all legal activities in Virginia for a person between the ages of 18 and 21.

    6) Both Heller and McDonald acknowleged that a handgun is the most effective and common means of self defense.

    7) In Virginia it is a felony to, by commission or omission, cause a child to suffer an injury.

    7a) In Virginia a person over the age of 18 may legally be treated as a "child" if they are found to be incompetent. The court has a wide latitude for considering incompetence under the rubric of "unable to substantially care for self".

    7b) It is posited that a person who is substantially unable to or legally prohibitted from providing for the protection of their self may be considered incompetent.

    Not that the victim or her attorneys would choose the tack of injecting a Second Amendment issue into the lawsuit. However, as an intellectual exercise I'm interested in how Virginia OCDO constitutional scholars would view the road I am pointing towards.

    stay safe.

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    I was thinking just the other day of how it is that a public university / college's prohibition on the possession of firearms in on campus owned dormitories and apartments could stand the test of a legal challenge using both Heller and McDonald. It would seem logical that at a minimum public colleges and universities with campus housing must provide for residents to keep and use firearms for their own protection in their dormitory / apartment housing. It would also seem that any state laws that would stand in the way would need to fall as well, since more often than not the various states have their own limits even if a particular schoold does not.

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    Campaign Veteran marshaul's Avatar
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    Skidmark makes a point that's been bugging me for years.

    Either it's a "secure area" containing people for whom the school is responsible, or it isn't.

    Clearly, the latter is the case, although every school would love to have its cake and eat it too.
    Last edited by marshaul; 03-08-2011 at 05:12 PM.

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    It seems to continuously come up that the only person responsible for your safety in many circumstances is yourself. Being stripped of the acknowledged most effective and common means to defense, and of the constitutionally acknowledged right to help ensure that responsibility/safety, would certainly seem detrimental to one's ability to actually be reasonably comfortable in the level of security they could provide for themself. I think it could probably be pushed to eliminating carry prohibition.

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    Regular Member Repeater's Avatar
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    The AG is certainly aware of DeShaney case law, and that makes clear the fact that government has no duty to protect.

    It would be helpful if the AG's opinion, and other court documents, were on the web for us to read and review.

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    Regular Member ocholsteroc's Avatar
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    7) In Virginia it is a felony to, by commission or omission, cause a child to suffer an injury.

    7a) In Virginia a person over the age of 18 may legally be treated as a "child" if they are found to be incompetent. The court has a wide latitude for considering incompetence under the rubric of "unable to substantially care for self".


    Last edited by ocholsteroc; 03-08-2011 at 06:34 PM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

  7. #7
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by ocholsteroc View Post
    OK, so we're treating college students as children, assumedly because they have been "found to be incompetent". Real nice, a**holes.

    Not to mention that the law referenced in 7) is stupid because A: a felony. for real? and B: why only children?
    Last edited by marshaul; 03-08-2011 at 06:42 PM.

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    Regular Member ocholsteroc's Avatar
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    Thumbs up

    Quote Originally Posted by marshaul View Post
    OK, so we're treating college students as children, assumedly because they have been "found to be incompetent". Real nice, ********.

    Not to mention that the law referenced in 7) is stupid because A: a felony. for real? and B: why only children?


    Someone should start a lawsuit...
    I am not talking about money, I am talking about rights.

    Who would be a good laywer to do a case like this? what type of laywer would someone look for this type of case?
    Last edited by ocholsteroc; 03-08-2011 at 06:47 PM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Ya know, in the long run, I think I would prefer the government feel it had no duty to protect me.

    Imagine the mischief that could be worked if government felt it had a duty to---oh, wait.

    At least we still have a little sector of law that says people have to take responsibility for themselves.

  10. #10
    Moderator / Administrator Grapeshot's Avatar
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    Water this one well. I think a seed as been planted.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member TFred's Avatar
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    Legal question: Can one file an amicus curiae brief in this kind of a case?

    If so, we should take up a collection and hire User to do just that!

    Even if the plaintiff won't bring it up, the general public sure does have an interest in doing so.

    TFred

  12. #12
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by TFred View Post
    Legal question: Can one file an amicus curiae brief in this kind of a case?

    If so, we should take up a collection and hire User to do just that!

    Even if the plaintiff won't bring it up, the general public sure does have an interest in doing so.

    TFred
    It seems to me that there really isn't a huge public interest in this case. The plaintiffs just want money; they aren't making any second amendment claims or anything.

    The interest in this derives from the government's position, which is both predictable and legitimate, and seems to override the notion that government universities do provide, are able to provide, or even wish to provide, a secure area on campus. If they are not "secure areas" -- like high schools with police in the halls and (potentially) metal detectors at the entrance -- then clearly they are not sensitive areas as referenced in Heller. So if our own state's constitutional precedent isn't enough, we now have a standard for what places the right may be limited in, and clearly universities don't want to take the responsibility of becoming one of them.

  13. #13
    Regular Member TFred's Avatar
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    Quote Originally Posted by marshaul View Post
    It seems to me that there really isn't a huge public interest in this case. The plaintiffs just want money; they aren't making any second amendment claims or anything.

    The interest in this derives from the government's position, which is both predictable and legitimate, and seems to override the notion that government universities do provide, are able to provide, or even wish to provide, a secure area on campus. If they are not "secure areas" -- like high schools with police in the halls and (potentially) metal detectors at the entrance -- then clearly they are not sensitive areas as referenced in Heller. So if our own state's constitutional precedent isn't enough, we now have a standard for what places the right may be limited in, and clearly universities don't want to take the responsibility of becoming one of them.
    Exactly... the point of my question is really more along the lines of "can we file an amicus curiae brief in a case at this level that might nudge the court into a position that would help our cause either in the short or long term?"

    I don't suppose these briefs have to explicitly address one side or the other... I'm sure we could say things about this case that would put the RKBA cause in a good light.

    IANAL, that's why I'm asking.

    TFred

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    Founder's Club Member ixtow's Avatar
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    It seems to me that a Firearms Ban encourages Crime. Science and Math says so, who am I to argue with FACTS?

    Not only were they aware, they were instigating it.
    "The fourth man's dark, accusing song had scratched our comfort hard and long..."
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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by TFred View Post
    Exactly... the point of my question is really more along the lines of "can we file an amicus curiae brief in a case at this level that might nudge the court into a position that would help our cause either in the short or long term?"

    I don't suppose these briefs have to explicitly address one side or the other... I'm sure we could say things about this case that would put the RKBA cause in a good light.

    IANAL, that's why I'm asking.

    TFred
    There's no point in filing an amicus in the case currently against MWC because the issue has not been raised in that case. Seems the courts actually want to stay on topic, as opposed to internet fora participants.

    I was tossing several legal points and a few random thoughts around and wanted to see what a few others thought of the specific mixture. The notion that goes along with that is a future challenge of the various Virginia Administrate Code and local policy prohibitions against carry/possession especially by students who live on campus, and by anyone else who lawfully is present on the campus, using the AG's position as the prime argument.

    As for you folks who are not aware of the penalties for child neglect, as opposed to child abuse - all I can say is "Shame on you! Go study the law to the point that you can use it to your benefit." Same holds for basic child welfare and mental health laws - make them your friends and tools as opposed to them being your enemies.

    (Sorry folks. Some of those that know me are aware that I spent several previous lifetimes interpreting and applying the law "for the chillllldrunnnnnnn," for those no longer children, and for adults. Yes, I got to know how to use the law to achieve different things different ways. But at least I can still sleep at night and look myself in the mirror in the morning.)

    stay safe.

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    The UMW Code of Conduct forbids "Illegal or unauthorized possession of firearms, explosives, fireworks, other weapons, or dangerous chemicals on University premises, or at University-sponsored events or activities."

    The 2010-2011 student handbook states
    No student may keep, use, possess, display, or carry any lethal or dangerous devices capable of casting a projectile, any martial arts weapons, any toy weapon resembling any real weapon, any swords, any illegal knives or knives with a blade longer than 5 inches, any explosives (including fireworks or sparklers) or any other such devices that could be used to threaten the health or safety of a person or property. Code of Virginia Sec. 18.2-311 lists weapon restrictions at www.vsp.state.va.us/Firearms.shtm. For additional information, visit www.umw.edu/judicialaffairs/weapons_projectiles.

    Neither shall a student throw or project any item that has the potential for defacing or damaging property, causing injury, or causing disruption.
    The Weapons and Projectiles policy states:
    No student shall keep, use, possess, display, or carry any rifle, shotgun, handgun, or other lethal or dangerous devices capable of casting a projectile by air, gas, explosion, or mechanical means on any property or in any building owned or operated by the University. In addition, no student shall keep use, possess, display or carry any toy weapons which resemble any real weapons, any swords, any illegal knives, any explosives (including fireworks, sparklers) or any other such devices which could be used to threaten the safety or well-being of a person on any property or in any building owned or operated by the University.

    No student shall throw or cause to be projected any object or substance that has potential for defacing or damaging University or private property or causing personal injury or disruption.
    The combination basically says no OC/pepper spray, no toy guns, and no guns. A student is allowed a knife but that means the attack is well within arms length.

    So, the school is saying it doesn't have to protect students and students cannot protect themselves. Wonderful
    ---

  17. #17
    Regular Member ocholsteroc's Avatar
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    Neither shall a student throw or project any item that has the potential for defacing or damaging property, causing injury, or causing disruption.

    "project" "throw" can a car be in this category?
    Last edited by ocholsteroc; 03-09-2011 at 01:53 PM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

  18. #18
    Campaign Veteran skidmark's Avatar
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    Add this to your consideration -

    - students may register to vote in the locality where they attend college
    - therefore the school is their official residence
    - your residence may also be your abode. In the case of college students who register in the locality where they attend school residence and abode would be one and the same
    - under Va law you can CC without a CHP in your abode and the curtilige thereof

    Now comes the questions -

    - what are the boundaries of the curtilige of one's abode if the student lives in on-campus housing and there is a dining facility separate from the residence facility? (think separate dining hall or student union where students may use meal plan)
    - what are the boundaries of the curtilige of one's abode if the student lives in on-campus housing and local custom and practice is to use a separate facility (again, think student union) for socialization and recreation, as opposed to doing so in the dorm room?
    - what are the boundaries of the curtilige of one's abode if the student lives in on-campus housing and one is required to park one's vehicle other than immediately outside the residence facility? (as in the case of MWC a parking deck located on the other side of a major highway, or the parking lots of GMU, JMU, UVa, etc.)
    - what are the boundaries of the curtilige of one's abode if the student lives in on-campus housing and the place where mail is regularly received is located in another facility? (don't know much about this except how the set-up was at NC State when I attended eons ago - mailboxes were not in the dorms but at the student union)
    - what are the boundaries of the curtilige of one's abode if the student lives in on-campus housing and<insert other conditions/scenario as you can imagine them>?

    stay safe.

  19. #19
    Regular Member paramedic70002's Avatar
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    I wonder, suppose "Bob" is a student who gets expelled for carrying a gun legally.

    Does "Bob" have have recourse through the courts to fight the expulsion officially, not a civil suit?

    "Bob" could base his argument on his inalienable right to armed self defense a la Heller, McDonald, VA Constitution Section 13, US Second Amendment.

    This of course assumes you can find a student willing to throw away a college education for the cause.
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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by paramedic70002 View Post
    I wonder, suppose "Bob" is a student who gets expelled for carrying a gun legally.

    Does "Bob" have have recourse through the courts to fight the expulsion officially, not a civil suit?

    "Bob" could base his argument on his inalienable right to armed self defense a la Heller, McDonald, VA Constitution Section 13, US Second Amendment.

    This of course assumes you can find a student willing to throw away a college education for the cause.
    But "Bob" would have the undying gratitude of so many. Isn't that worth something?

    Wonder if UMW has any sporting equipment that "could be used to threaten the health or safety of a person or property" i.e. field hockey stick.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

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    Regular Member t33j's Avatar
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    Well Bob doesn't necessarily have to be a "traditional" student. I suppose anyone could apply, get accepted, and add the cheapest course to his schedule to achieve standing. Shouldn't be too significant compared to legal costs.
    Last edited by t33j; 03-10-2011 at 10:06 AM.
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  22. #22
    Regular Member Repeater's Avatar
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    Quote Originally Posted by paramedic70002 View Post
    I wonder, suppose "Bob" is a student who gets expelled for carrying a gun legally.

    Does "Bob" have have recourse through the courts to fight the expulsion officially, not a civil suit?

    "Bob" could base his argument on his inalienable right to armed self defense a la Heller, McDonald, VA Constitution Section 13, US Second Amendment.

    This of course assumes you can find a student willing to throw away a college education for the cause.
    Well, suppose 'Jane Doe' is a full-time student, and has a valid Virginia CHP. She has expressed, in writing, her preference to carry for her own personal protection. The administration denies her request to carry. She obeys all policies. Later, she is brutally raped.

    She file suit in federal court, alleging the 'No Gun' policy created a danger for her and others like her. This suit invokes the 'State Created Danger' doctrine, and is one of the few ways to circumvent DeShaney. You can look it up if you like. Even though denying students the right to carry is an affirmative act, the Fourth Circuit is unlikely to be helpful.

  23. #23
    Campaign Veteran skidmark's Avatar
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    That's why filing in Federal court is NOT the way to proceed.

    A STATE agency violated her STATE rights (since her 2A rights to keep/bear and self defense are incorporated against the States).

    Forget the 4th Circuit. Let's look at what the Va Court of Appeals and the Va Supreme Court would say.

    stay safe.

  24. #24
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by Repeater View Post
    Well, suppose 'Jane Doe' is a full-time student, and has a valid Virginia CHP. She has expressed, in writing, her preference to carry for her own personal protection. The administration denies her request to carry. She obeys all policies. Later, she is brutally raped.

    She file suit in federal court, alleging the 'No Gun' policy created a danger for her and others like her. This suit invokes the 'State Created Danger' doctrine, and is one of the few ways to circumvent DeShaney. You can look it up if you like. Even though denying students the right to carry is an affirmative act, the Fourth Circuit is unlikely to be helpful.
    Unfortunately, this is one of those scenarios that just isn't worth having pan out.

  25. #25
    Regular Member 2a4all's Avatar
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    Quote Originally Posted by skidmark View Post
    Add this to your consideration -

    - students may register to vote in the locality where they attend college
    - therefore the school is their official residence
    - your residence may also be your abode. In the case of college students who register in the locality where they attend school residence and abode would be one and the same
    - under Va law you can CC without a CHP in your abode and the curtilige thereof.
    Age restrictions do not apply while in your abode and the curtilige thereof.
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

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