Category Archives: Courts and law

Mayor Stoney Panders to the Mob, Lawsuit Says

by James A. Bacon

Two elderly residents of Monument Avenue have filed a lawsuit charging that Richmond Mayor Levar Stoney pandered to mob rule by ignoring proper legal procedures to remove Civil War statues and by failing to arrest protesters who assaulted homeowners living near the Lee statue and vandalized their houses.

Stoney justified the taking down of several statues by citing the need to preserve public safety, and he argued that the existence of a local emergency due to the COVID-19 virus gave him the authority to act. “That justification was pretextual and arbitrary,” stated the lawsuit, which was filed yesterday. “Mayor Stoney had encouraged protests and participated in protests during the weeks before the removal of the monuments at issue involving hundreds of people who were not required to observe distancing protocols or wear masks or face coverings.”

The lawsuit, filed by attorney Patrick M. McSweeney, named as plaintiffs two Monument Avenue residents: 93-year-old E. Morgan Massey and 96-year-old Helen Marie Taylor. Massey is remembered as former CEO of the now-defunct A.T. Massey Coal Co. Ms. Taylor is best known for her activism decades ago in the cause of Monument Avenue conservation. 

In a reference to Ms. Taylor, the lawsuit states that police officers responded to a call for assistance “after demonstrators assaulted members of the household, destroyed gates, [and] threw objects at a bedroom window of the 96-year-old owner.” Refusing to leave their vehicles, police officers stated “they were instructed not to go where they perceived a threat to their safety.” Not mentioned explicitly in the lawsuit, protesters also vandalized Massey’s house by spray-painting graffiti on his front door. Continue reading

What It Is, Is Not Journalism

Photo credit: Bob Brown, Richmond Times-Dispatch

By Dick Hall-Sizemore

I never thought that I would agree with Jim Bacon on the slant of the RTD’s news coverage, but an article on evictions today just really irritated me.

It was the usual article about activists demonstrating at the Richmond courthouse and protesting evictions. (At least the demonstration on Thursday was peaceful; no smashed windows, no pepper spray, no arrests.)  The article was a cut and paste job, recounting the familiar history of the how many evictions are pending and how a moratorium on evictions has been lifted. It concluded with several quotes from college-age demonstrators talking about the corrupt capitalist society. (I had another flashback to the 1960s). Continue reading

Virginia Supremes Uphold SCC, Rule Against Wal-Mart

by L. Steve Emmert

Yesterday the Supreme Court of Virginia issued a ruling in Wal-Mart Stores East, LP v. SCC. The question here is whether Wal-Mart can shed the shackles of buying electricity from the dominant utility, a regulated monopoly that you know as VEPCO or APCO, depending on where in Virginia you are.

Some time ago, the 140 Troublemakers created a framework for some semblance of competition in electric utilities. Nonresidential customers whose demand exceeds five megawatts have the right to buy electricity from a competitor to VEPCO and APCO. Any customer, including a plain-old homeowner, has the same right if they want 100% renewable energy and their “host” utility doesn’t offer a choice.

There’s a third category for nonresidential customers. If separately they demand less than five MW but can aggregate different locations to exceed that threshold, they may ask the State Corporation Commission to permit them to bolt and get their electricity elsewhere. The commission has the discretion to approve the request if there are no adverse effects to other customers and the request is consistent with the public interest.

Wal-Mart, as you know well, operates a lot of stores in Virginia. The individual locations don’t use five MW, but when you add up all of them, they greatly exceed that figure. Wal-Mart accordingly filed an application seeking to enter the wholesale energy market, to save a few dollars. Continue reading

Our Cell Phones Are Still Off-Limits to Robocalls

By Dick Hall-Sizemore

Here is a follow-up on a previous post.  The Supreme Court handed down a decision today that will probably be lost in the coverage of its other decision released today, the one about “faithless” Presidential electors. Nevertheless, the decision in that other case, Barr v. American Association of Political Consultants, inc., saves us all some aggravation.

Current federal law prohibits robocalls to cell phones, except calls made exclusively to collect a federal debt. The association representing political consultants sued, arguing that the prohibition violated the First Amendment right of its members. In its ruling, the Supreme Court agreed that the law violated the First Amendment, but the political consultants did not get what they wanted. The Court’s ultimate decision was unanimous, but the Justices were remarkably split all over the place about the reasons for the outcome. There were four separate opinions filed. Continue reading

Senate Democrat Promises on Police Reform

By Steve Haner

What follows, without edits, is the full list of legislative proposals now endorsed by the Virginia Senate Democratic Caucus. With 21 members, if they all show up and vote aye on all of these, they pass in the upcoming special session. Bills would then have to also pass the House of Delegates and be signed by the Governor. This follows up an earlier post by Dick Hall-Sizemore.

  1.  Bringing Equity to Virginia Policing
    ● Prohibit No Knock Warrants (Breonna Taylor)
    ● Ban Sex With Individuals Arrested by Law Enforcement
    ● Prohibit Hiring of Officers Fired or Resigned During Use of Force Investigations
    ● Create a Decertification Procedure for Law Enforcement Officers
    ● Ban chokeholds and strangleholds (George Floyd)
    ● Require Attempts at De-escalation Prior to Use of Force
    ● Require Warnings Before Shots Fired
    ● Require Law Enforcement to Exhaust All Other Means Prior to Shooting
    ● Create Duty to Intervene by Fellow Law Enforcement Officers
    ● Prohibit Shooting at Moving Motor Vehicles
    ● Require Departments to Create a Use of Force Continuum
    ● Require Comprehensive Reporting by All Law Enforcement Agencies Including Use of Force Data
    ● Defelonize Assault on Law Enforcement Officer (Return to Misdemeanor Offense)
    ● Cancel HB599 Funding (Virginia supplemental funding for local police departments) After Local Police Have Disproportionate Use of Force Incidents In their Jurisdiction
  2. Expand Local Authority to Respond to Mental Health and Regulate Law Enforcement
    ● Create Local Authority for a Marcus Alert System – System to Report Acute Mental Health Crises
    ● Create Local Option for Citizen Review Board Empowered to Investigate, Fire and/or Discipline Officers
  3. Restore Courts’ and Prosecutors’ Flexibility to Effect Mercy
    ● Confirm Prosecutors’ Authority to Drop Charges
    ● Enhance Courts’ Ability to Expunge Charges for Dismissed Charges, Substance Convictions and Pardoned Offenses
  4. Reduce Racial Profiling Opportunities for Law Enforcement
    ● Prohibit Searches of Person or Vehicle Based on Odor of Marijuana Without Probable Cause for Other Offenses
    ● Prohibit Stops for Equipment Violations Not Covered by State Vehicle Inspection
    ● Secondary Offense For Dangling Objects, Extinguished Tag Light, Tinted Windows or Loud Exhaust
  5. Restore Equity to the Sentencing Process
    ● Jury Sentencing Only at Option of the Accused
    ● Eliminate Commonwealth’s Right to Demand Jury Trial When Jury Trials Suspended for State of Emergency
    ● Require Agencies to Determine Cost Savings for Introduced Criminal Justice Legislation
  6. Restore Equity to the Virginia Prison System
    ● Allow Earned Sentence Credit for Good Behavior During Prison
    ● Create Discretion for Compassionate Release for Terminally Ill or Permanently Disabled Prisoners

Continue reading

“Bring That Sucker Down Without Anyone Getting Hurt”

Confederate statue in North Carolina

By Peter Galuszka

In a striking sign of the times, Popular Mechanics magazine has published a how-to article regarding removing statues on your own.

The article is titled: “How to Topple a Statue Using Science: Bring that sucker down without anyone getting hurt” by James Stout.

The force need to bring down a controversial statue is not all that great, Stout writes. Most statues are bronze, with an alloy of 90% copper and 10 percent tin with a maximum thickness of 3/16 of an inch. Most people statues weigh 3,500 pounds. One that includes a horse is maybe 7,000 pounds.

For a pure muscle job, you’d need about 70 people and several high-endurance recovery straps. One should be placed across the head. Once in place, you’ll need to break the statue from its base. This can be done by two teams on either side of the statue working a back and forth motion.

As for safety, this isn’t that big a deal as long as you have done the proper geometry.

If you don’t have many protestors, you can do the job using a high temperature approach with home-made thermite. Propane torches are also good. Continue reading

The Systemic Racism of Monument Avenue

By Peter Galuszka

Richmond’s grand Monument Avenue, a double lane, tree lined thoroughfare, has been the epicenter of the Black Lives Matter campaign that has focused on the statues of several Confederate figures one the road, including Robert E. Lee, J.E.B. Stuart, Thomas “Stonewall” Jackson and Jefferson Davis.

All are up for removal, but the same foot-dragging that has for years protected the statues that some consider racist is at work today. Protestors have torn down Davis and have defaced the rest. On Sunday night, they nearly ripped down the Stuart statue as two city council members urged that it be removed on an emergency basis.

Lee’s statue has been ordered down by Gov. Ralph Northam, but the effort has been tied up in lawsuits by several property owners. One claims either that the original deed that gave the state the site for Lee included language that it could not be removed. Other plaintiffs, most anonymous,  claim that removing the statues would hurt their property values and their special tax status.

If anything smacks of white privilege and entitlement, this is it. But for more perspective, this article in The Atlantic neatly sums up the history behind the statues and the Avenue, noting that the issue has everything to do with rewriting Richmond’s history and making a marketing play to sell expensive and exclusive real estate decades after the Confederacy was suppressed. Continue reading

An Enormous Bill is Coming Due in Virginia

by James C. Sherlock

We had a long discussion in this space earlier about whether the Virginia Supreme Court Order of March 16, 2020, that suspended writs of eviction and residential unlawful detainers was constitutional.

The June 8 extension of the original order was especially troubling because by that order the courts were open for business to all plaintiffs except residential landlords.

Regardless of individual views of constitutionality, that order constituted unmistakably a taking of private property.

For purposes of this discussion assume:

  1. the taking of the property of the landlords in order to stem the effects of COVID was for public purposes and thus constituted a taking for public use; and
  2. the method of the taking was not impeded by any barrier of constitution or law.

Under Article I Bill of Rights, Section 11 of the Constitution of Virginia Due process of law; obligation of contracts; taking or damaging of private property; reads in part: Continue reading

Virginia Democrats Gearing Up for Police Reforms

By Dick Hall-Sizemore

The upcoming special session of the General Assembly will be about budget cuts and police reform.   Speaker Eileen Filler-Corn announced last week that actions on police reform would be allowed to be taken up at the special session to be held on a to-be-announced date.

Whenever it is held, it apparently will not be soon enough for the Democrats. “There is an urgency to provide relief from what many have seen as a racist criminal justice system and its application,“ said Charniele Herring, the majority leader.

None of the proposals being talked about are radical and none will constitute an immediate fix. Some of the proposals will cost money. Furthermore, one limitation that seems to have been overlooked is that most policing is under the jurisdiction of localities, which means that there is just so much that the state can do. Finally, the General Assembly has grappled with some of these issues in the past and has not resolved some of their complexities, making it improbable that it will be able to do in a short special session. Continue reading

Libertarians Need Not Apply

By Peter Galuszka

The Virginia Republican Party had a big shock Saturday.

Far-right candidate Bob Good snatched the party’s nomination in the fifth congressional district from incumbent Denver Riggleman, who was backed by President Donald Trump and Jerry Falwell Jr., the head of Liberty University.

The remarkable twist could presage an arch-conservative backlash against Trump’s populism in the run up to elections this November.

University of Virginia political analyst Larry Sabato tweeted early Sunday morning that “the Virginia GOP has gone so far to the right that a congressman backed by (Trump and Falwell) isn’t conservative enough to renominate.”

The 5th District includes the cities of Lynchburg and Charlottesville and covers broad swaths of highly socially conservative rural areas. Riggleman’s problem was that he had Libertarian tendencies and had officiated at a gay wedding. Continue reading

State Supreme Court Backs Northam Decree Denying Landlords Access to Courts

The question: Are there any bounds on King Ralph’s rule by executive decree?

by James C. Sherlock

This essay is a follow-up based upon a June 7 letter from Governor Northam to the Virginia Supreme Court to which I just gained access. That letter makes the situation much worse.

The Order

On June 8 the Virginia Supreme Court issued IN RE: FIFTH ORDER MODIFYING AND EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.  

That order suspended the execution of tenant eviction orders. I have no problem with that. It represents a stay well within the Court’s authority and addresses emergency public health concerns brought about by COVID. 

It went further by acceding to a specific Gubernatorial request to deny access to courts by plaintiffs seeking residential unlawful detainer actions.   

Unlawful detainer actions determine who is entitled to possession of property. At the request of either party, they result in a jury trial.

Suspension of residential unlawful detainer actions is unconstitutional. It suspends access to the courts for plaintiffs seeking relief under Code of Virginia § 8.01-124. Motion for judgment in circuit court for unlawful entry or detainer and § 8.01-125. When summons returnable to circuit court; jury. 

The Bills of Rights of the Constitutions of Virginia and of the United States deny governments authority to suspend access to the courts for relief of grievances.

Continue reading

They Are Coming For Your Family, Your Strip Malls

Sen. Amanda Chase with sidearm

By Peter Galuszka

State Sen. Amanda Chase, R-Chesterfield County, has always played the clown.

The conservative politician grabbed attention a year or so back when she addressed a meeting at the General Assembly wearing a revolver in a holster on her hip. She’s also feuded with the county Republican Party and was defrocked.

Now Chase is striking again by spreading fears of ANTIFA attacks on mostly white and middle class suburban areas. She says the loosely organized far left group is targeting strip malls at Meadowdale and Hancock Village in Chesterfield County and in Hanover County at Mechanicsville.

She said that members of the Virginia Citizens Defense League, a pro-gun lobby, would be patrolling some of these areas.

A few problems here:

Chase said her source for source for the ANTIFA tip was Chesterfield Police Chief Jeffrey Katz. Contacted by the Chesterfield Observer, Katz said he was not her source. “At no time did I share any active criminal intelligence with her,” Katz told the Observer. Continue reading

Rule by Decree has Found a Co-conspirator – Virginia’s Chief Justice

by James C. Sherlock

One of the most clearly illegal court orders in Virginia history was issued on Monday, June 7.

At the request of the Governor, the order suspended the rights of some plaintiffs to access the courts. The order also refers to the fact that the Governor is planning to institute a “comprehensive rent relief program” by the end of the month.

The original sin in all of this is the fact that Governor Northam does not want to call a special session of the General Assembly to write laws to achieve his desired ends.

First the Supreme Court order… IN RE: FIFTH ORDER MODIFYING AND EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.

The order stated that the Supreme Court act “at the request of the Governor to allow the Commonwealth time to implement its comprehensive rent relief program and to help relieve the public health risk associated with evicting Virginians from their places of residence … Effective immediately and for the duration of the Fifth Order, through June 28, 2020, pursuant to Va. Code § 17.1-330, all residential unlawful detainer actions and the issuance of writs of eviction are suspended and continued.”

Continue reading

“Systemic Racism?” Damned Right!

By Peter Galuszka

There has been much debate on this blog regarding whether there is “systemic racism” in Virginia and the rest of the country.

It’s a crucial question in the aftermath of the death of George Floyd, an unarmed and handcuffed African American who was killed on video by a white Minneapolis police officer two weeks ago. The killing sparked nationwide demonstrations, some rioting and a big rethink of race relations.

Regarding is “system racism,” my answer in a resounding “yes” although I agree there has been significant progress in race relations since the since the 1960s.

A few examples:

  • Virginia was the embarkation point for American’s first slaves.
  • Slavery was a key social, economic and political institution for several hundred years.
  • The Civil War was fought over slavery. Most battles were in Virginia.
  • The state embraced Jim Crow laws and kept them for years. These made it crimes for people of different races to go to school together, go on public transit together, sit together in restaurants, get married and so on.
  • There were plenty of lynchings in Virginia. Many went unpunished.

Continue reading

Gunning Up Virginia’s Cops

By Peter Galuszka

 In 2014, the Sheriff’s Department of York County and Poquoson got their very own tank-like vehicle, called a “Mine Resistant Ambush Protected (MRAP).”

Fully armored and tan in color with steep sides, it looks like something out television footage of the war in Iraq where U.S. troops needed to get through mine-infested streets and terrain safely.

But why do such generally sleepy communities such as these need a high-powered armored car? Sheriff J.D. “Danny” Digs told The Virginian-Pilot and Daily Press that it isn’t meant to “intimidate people” but can be useful during adverse weather when trees are down. Really? Wouldn’t a pickup truck work?

The newspaper story is important since it combs through what Virginia law enforcement got after the “1033”Defense Department program started to sell surplus military gear to local law enforcement in 1997.

It notes that military surplus sales in Virginia went from $216,000 in 1999 to $853,824 in 2019, according to Defense Logistics Agency statistics. The latter number included the cost of another MRAP so Virginia Beach could get its very own armored truck. Over time, the City of Portsmouth got 87 M-16 assault rifles. Other goodies include night vision glasses. Continue reading