To:
pmahoney@roanokecountyva.gov
Sent: 4/19/2012 1:36:52 P.M. Eastern Daylight Time
Subj: RE: § 15.2-915. Control of firearms; VIOLATION NOTICE - Roanoke County, VA
Mr. Mahoney,
Pardon my interest in Mr. Levine’s request but I am a Virginia resident and visit Roanoke County. In your response to Mr. Levine, you state, “The amendment adopted by the Board parallels this enabling language by including it in line 5 of Sec. 15-8(6).” For clarity, are you saying that line 5 of Sec. 15-8(6) states, “…as expressly prohibited by statute”?
Perhaps even better, as the County Attorney, can you please clarify in writing to us, that the language used by the County,
“as expressly prohibited by statute” has the same force and effect as the language in Va. Code § 15.2-915 (B) ,
“other than those expressly authorized by statute.” Since you did insinuate the Mr. Levine is “mis-reading and mis-interpreting the language in the amendments”, which means I am also misinterpreting it, please respond so there is no misinterpretation—such as, “Yes, the language used in Roanoke County Ordinance as Amended #032508-7, Sec. 15.8(6), ‘as expressly prohibited by statute’ has
the same force and effect as Va. Code § 15.2-915 (B) ‘other than those expressly authorized by statue’.”
If you would like to go further and explain why the BOS did not simply adopt or use the language in the Va. Code, that would be welcomed although I assume that you, as the County Attorney, would not have recommended or colluded to alter the language of Va. Code § 15.2-915 (B) in bad faith.
Ultimately, the BOS used language in Amendment #032508-7, Sec. 15.8 (6) which does NOT mirror Va. Code § 15.2-915 (B). Instead, it clearly directs any reader, from law enforcement and accused, to commonwealth attorney and Court that there is a violation. It is not even ambiguous--it is so distinct from the language in Va. Code § 15.2-915 (B) that it does not direct a reasonable person back to Va. Code, instead it goes to support what the ordinance attempts to prohibit. Unless the ordinance’s language is properly challenged case by case, post-violation, there is no reasonable outcome other than erroneously finding of a violation.
Moreover, blatantly avoiding the use of language within Va. Code § 15.2-915 (B) ,
“other than those expressly authorized by statute,” and replacing it with,
“as expressly prohibited by statute” is a clear indication that the intent of the County is to thwart Va. Code § 15.2-915 (B). This is an act of bad faith.
Noteworthy, in 2009, as a result of many local jurisdictions failing to alter or, as with Roanoke County, attempting to manipulate language to skirt around preemption in bad faith, the Virginia Assembly amended § 15.2-915 with (C), “
In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.”
When you, as the county attorney, have to inform someone that their interpretation of a county ordinance is due to “mis-reading and mis-interpreting the amendments,” that is a very clear indication that something is amiss but paves the path for both clarity and change.
I await your response and clarification.
Brian Reynolds
(Under the pre-2008 ordinance or the March 2008 Amendment, #032508-7, Sec. 15.8 (6), the language is clearly in violation of preemption.
http://weblink.roanokecountyva.gov/WebLinkBOS/DocView.aspx?id=4015&page=24&dbid=0.)
