Virginia on the Road to Anarchy

Steve Descano

by James A. Bacon

Enforcement of the laws of Virginia may become optional in Fairfax and Arlington Counties when newly elected Commonwealth’s Attorneys — Steve Descano in Fairfax and Parisa Dehghani-Tafti in Arlington — take office. Both have promised to stop prosecuting marijuana possession, reports the Washington Post.

Descano and Dehghani-Tafti said pot possession prosecutions do little to protect public safety, disproportionately fall on people of color, saddle defendants with damaging convictions and can be better spent on more serious crimes. …

Descano said the policy brings Fairfax County’s values into the courthouse. “I traveled around Fairfax County for over a year listening to people,” Descano said. “The thing that came up time and time again was simple possession of marijuana — how it was a waste of resources and led to unjust outcomes.”

The arguments against prosecuting pot possession are not unreasonable. Indeed, Governor Ralph Northam has proposed decriminalizing the offense. What’s disturbing is that the two prosecutors aren’t willing to wait for the General Assembly to enact a law this session, which would go into effect in July. They feel compelled to take legislative matters into their own hands and nullify the state law now in effect.

First sanctuary cities. Then second amendment sanctuaries. Now pot possession. The conviction is spreading across Virginia like a mutant flu virus that local officials are free to ignore laws they don’t like. 

Regardless of your sentiments regarding illegal immigrants, gun rights or pot possession, every Virginian should find this trend alarming. If there’s one issue that transcends all others, it is that the United States and the Commonwealth of Virginia are subject to the rule of law, not men. When government officials — especially when those in charge of enforcing the law and prosecuting violators — pick and choose the laws they enforce and prosecute, we are hurtling toward anarchy.

Every argument Descano advanced could be replicated with minor alterations in the 100+ localities in Virginia that have declared themselves to be Second Amendment sanctuaries.

Local prosecutor So-and-So had traveled the length and breadth of [insert name of rural county] for over a year listening to people. The thing that came up time and again was gun rights — how it was a waste of time to prosecute people for possession of arms guaranteed by the U.S. Constitution. So-and-So said his policy of non-prosecution of gun crimes brings [name of rural county]’s values into the courthouse.

Governor Northam will face a choice. He has expressed his determination to enact new gun-control laws and then to enforce them. Given the hyper-polarized times in which we live, he had better not crack down on local officials in “red” Virginia for failing to enforce the law while overlooking similar failures of local officials in “blue” Virginia. Refusal to uphold all local officials accountable, not just those with whom he disagrees philosophically, will only feed the widespread alienation in “red”‘ Virginia against the ruling elite, with potentially dire consequences.

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17 responses to “Virginia on the Road to Anarchy

  1. Jim –

    I fear your horse left its Charlottesville barn in Va.’s spring and summer of 2017, and has been running wild ever since.

  2. My Irish grandmother always warned of “interesting times.”

  3. There has always been the ability for police and prosecutors to exercise discretion. How many of the cars traveling on I-95 are obeying the speed limit? From my experience, the majority do not, with the State Police stopping very few of them. Is this anarchy?

    Several years ago, the Republican Commonwealth’s attorney announced that members of his staff would not be appearing in general district court on misdemeanor charges. Anarchy in Chesterfield?

    If the police hauled in every pot user they encountered in the city of Richmond, there would probably not be enough jail space. Anarchy in Richmond?

    I do have a concern about the CAs announcing publicly a blanket policy. Usually, discretion is exercised on a case-by-case basis. But that is how law enforcement gets criticized for favoring certain groups.

    Also, there needs to be some perspective. How many cases of possession of small amounts of marijuana were prosecuted in those jurisdictions in each of the last five years. Unfortunately, the Crime in Virginia reports put out by the State Police do not break out the data this discretely. However, I suspect that there were not that many cases. If my suspicion is correct, these new CAs are just turned what their predecessors did as a matter of course into official policy.

  4. Yep. There are dozens of laws still on the books and not enforced – heck most of the adult population at one point or another have probably broken the laws on sexual conduct!

    If there are laws the State wants to enforce – and the locality will not – would they send in the State Police to do it?

    As far as I can tell – right now – there are two proposed laws – one for universal background checks and the other “Red Flag” – both of which have more than 80% support in the Polls but suspect it’s not 80% in rural Va.

    The State Police already have a presence at most Gun shows and gun dealers need a state license but private sales are not regulated.

    It’s the selling and trading of guns among private owners that would be the issue.

    HB2 “…. Requires a background check for any firearm transfer and directs the Department of State Police (the Department) to establish a process for transferors to obtain such a check from licensed firearms dealers. A transferor who sells a firearm to another person without obtaining the required background check is guilty of a Class 6 felony.”

    that sounds like it’s the State Police enforcing the law… not the locality.

    Since the State actually funds local law enforcement, Commonwealth Attorney’s and Judges – the State would have more leverage than the locality and so the 2nd Amendment folks would/will go after their elected HOD and Senate who might vote for these bills.

    I can see a compromise where possibly only guns sold in bulk to out of state buyers have to have background checks.

    Right now, there is no law that requires a private seller to determine if the buyer is a felon. If I understand correctly, VA law just says one can’t sell to a felon – but it does not require him to see if he actually is……….. pretty big loophole. In theory, he can be charged if the felon is arrested later and they trace the gun back to the seller.

    You know the funny thing here is that you cannot sell a vehicle without both the seller and the buyer reported to DMV… The DMV and State Police know the current owner of virtually very vehicle in the state!

    • Even if the State Police are the enforcement arm on these gun laws, i.e. background checks, the local Commonwealth’s attorneys are the prosecutorial arm. And, as Jim suggests, some of them could make these a low priority.

      I disagree with you that the state has more leverage due to its financing judges and prosecutors. Judges’ salaries are set by law, as a class, i.e. by type of court. Also, CA’s salaries are set by the Appropriation Act. And the funding for individual CA offices is pretty much set by formula. Gone are the days in which the Byrd Machine controlled local prosecutors through the Compensation Board. Because they are elected, local prosecutors are probably somewhat sensitive to local sentiment.

  5. Sowing the seeds of another civil war. On the merits, I agree with Descano – we shouldn’t be spending lots of public resources on prosecutions of possession of small amounts of marijuana. This should be changed by the General Assembly. I’m not troubled when a prosecutor decides on a case-by-case basis not to prosecute an offense. But deciding that some offenses should not be prosecuted across the board borders on violating on violating the oath of office to faithfully execute the laws.

    And if it’s OK to do for marijuana, why isn’t it OK to do for gun laws?

    Either we are a nation of laws or we are not.

    P.S. to Larry, driving a motor vehicle is a privilege not a right. Possessing a firearm is a constitutional right not a privilege that remains until revoked by a court of law.

    • Larry cites polling data to justify gutting the Second Amendment. He clearly doesn’t grasp the Founder’s basic idea of a document protecting the minority against the majority…..

      Most histories of the Prohibition Era, which made criminals of millions of otherwise honest Americans who just wanted a drink, indicate it damaged the public’s attitudes toward law enforcement. Not sure if we are repeating that, or just seeing the slow deterioration in action. On grass I think the votes are there in the GA and have been. On guns the votes in the GA cannot override the Bill of Rights. Period.

      • well I did not use the word “gut”. And yes I DO understand the concept but what you do not understand is that the 2nd amendment does not give the right for anyone to own any weapon.

        that’s the problem we have right now.

        What does the Constitution say about semi-auto weapons? what about auto-weapons? what about RPG and grenades? Does the Constitution guarantee the right of any person to own any weapon?

        Tell me – do you support the right to own grenades or RPGs?

        why not?

        what reason will you give as to why they are not guaranteed as a right?

        • Legal scholars and historians for hundreds of years have generally stated that the Second Amendment recognizes and protects the natural right of self defense. The Second Amendment does not give any rights that did not already belong to Americans as citizens. Funny how there is criticism of “not recognizing science” but none about not recognizing real history.

          This is not dissimilar to the recognition and protection of the right to free speech in the First Amendment. Free Speech is a natural right.

          Heller held that a ban on felons possessing firearms is “presumptively” valid. But there are other cases based on state constitutions that hold a statute prohibiting a felon from owning arms is invalid, especially in the case of non-violent felonies. But doesn’t our new view of justice that concludes ex-felons should be able to vote essentially force restoration of the right to bear arms except where there is ample proof the person is still dangerous? I’d like to see some caselaw on that topic.

          And one more time Larry. A person who goes through the federal licensing process can own a machine gun (a real assault weapon), a hand grenade, a grenade launcher, a canon, a tank, etc. Your statement that one cannot own any type of gun is wrong. (I am assuming compliance with the National Firearms Act.) Here is a pretty good summary (albeit a few years old) of the interplay of the National Firearms Act and Connecticut law with respect to a machine gun. https://www.cga.ct.gov/2009/rpt/2009-R-0020.htm

          I’d say that the presumption is anyone can own and bear arms unless certain conditions are established.

    • TMT – nope. It’s conditional. For instance, you cannot own any type of gun and if you are a felon you cannot normally own a gun. It’s conditional.

  6. I think TMT draws the line in the correct place: “I’m not troubled when a prosecutor decides on a case-by-case basis not to prosecute an offense. But deciding that some offenses should not be prosecuted across the board borders on violating the oath of office to faithfully execute the laws.”

    • but to be fair and accurate – there ARE prosecutors across Va that do not prosecute some laws – like adultery or fornication or “unnatural” sex, etc.

      If “we” – any and all of us are going to take a principled position on this – we must deal with the realities…. we cannot paper over what we don’t want to admit is true! The truth is that there are some laws on the books that are not prosecuted – that’s a true statement.

      Does this mean we have “anarchy”?

      only to the drama queens…

      what it means – is that – over time – people’s attitudes about what constitutes a “crime” – change and when that happens – the law can change but sometimes the law takes longer to formally change and the lag time it gets ignored.

      no anarchy… just evolution….

  7. johnrandolphofroanoke

    This is like the 1850s all over again. The key problem is weak and less able leadership. I have no confidence that Northam, Herring, the new Speaker, or even the Republican opposition in the General Assembly can weather any storm. I see no one who is capable of handling a crisis that is going to ask law enforcement to intervene. Just look at the lousy affair in Charlottesville a couple of years back. Decisive leadership could have made that story page 2 news. Must we peer down the path to a “Bleeding Virginia”?

  8. Once more. Does the Constitution guarantee than any person can own any weapon?

    if not, why not?

    how do we decide that SOME people (not all) can own an assault rifle but not an RPG or grenades?

    please explain.

    Where in the Constitution does it say WHO have a right to own weapons (and who does not) and what kinds of weapons they have a right to own (and ones they do not)?

    who decided that?

  9. No answer. So I assume that some folks think that anyone SHOULD be entitled to own fully-auto weapons, grenades and RPGs… after all it says so in the Constitution – that it IS their right – and “restrictions” are unconstitutional.

    So we really do need “good guys” with grenades/RPGs to oppose “bad guys” with granades and RPGs – right?

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