Carrying a gun to church

The Virginia Code at section 18.2-283 outlaws the carrying of a dangerous weapon to a house of worship while meeting for religious services, an odd sort of prohibition that comes up more often as a question at parties ("Hey, you're a lawyer; I've got a question...") than in the courthouse.

What has made the question particularly difficult to easily answer is a unique and undefined qualifier stuck right in the middle of the statute: "without good and sufficient reason."

The Attorney General has now weighed in on the question, apparently shooting a big hole right through the middle of the statue.  In a formal Opinion issued April 8, Mr. Cuccinelli declares that "lawfully carrying a firearm for self-defense and personal protection constitutes a 'good and sufficient' reason" under the statute.  There is no indication that the worshipper needs to be able to articulate a particular need or an imminent threat at the time of the carrying.

Keep in mind that the prohibition on concealment in public without a court-issued permit is still required for handguns and that a church or other private property owner can trump such a permit and ban the possession of guns on its property.

Harrisonburg on the (Immigration) Map

The Bureau of Citizenship and Immigration Services recently announced that beginning April 1, 2011, all change of address forms filed by immigrants across the US are now to be filed in Harrisonburg.

Another path to justice, mercy

The Supreme Court of Virginia announced its decision in Hernandez v. Commonwealth today (1/13/2011), a decision that vindicates the authority of the judiciary and limits the power of the prosecutor.  The decision is a victory for Justice and Mercy.

In Hernandez, the defendant was tried on the charge of assault and battery of a police officer.  At the conclusion of the evidence, the judge announced that there was sufficient evidence to find the defendant guilty and that he was inclined to take the case under advisement, assign community service work, and dismiss the charge after a period of time.  However, the judge said that because he did not have the authority to defer the disposition of the case, he reluctantly found the defendant guilty and imposed the required prison sentence.

On appeal, the Virginia Court of Appeals held that the trial judge was correct, that he lacked the authority to do anything other than to find the defendant guilty and impose the prescribed sentence. 

But the Virginia Supreme Court upset the apple cart and surprised us all by ruling that the "observation by the court as to the sufficiency of the evidence does not amount to a formal adjudication of guilt.  Until the court enters a written order finding the defendant guilty of a crime, the court has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date."

This is a very good development.  Until now, our judges would not consider taking a case under advisement without the concurrence of the prosecutor, believing that they did not have the authority to do so.  This gave the prosecutor an inordinate amount of power, the ability to insist on a conviction where justice or mercy might demand otherwise.  We look forward to seeing how the Hernandez decision affects local practice here in Harrisonburg and the Shenandoah Valley.

If it's too good to be true...

An Ashland, Virginia, lawyer is in court after having given way $223,200 of his clients' money, having fallen for an email scam.  We regularly receive similar emails targeted at lawyers; in fact, we received one this morning.  If is seems to good to be true, it probably is -- especially by email.  Beware!

The One Punch Rule

Simple assault and battery is a misdemeanor offense in Virginia, while there are several different classes of felonious assault, such as unlawful wounding, malicious wounding, and aggravated malicious wounding.

Both clients and police officers have asked me over the years, When does an assault and battery rise to the level of a felony?

Many people incorrectly believe that the presence of blood or the extent of the injury is what escalates the charge from a misdemeanor to a felony.

The distinction between misdemeanor assault and battery and one of the felony assault charges is the intent to permanently maim, permanently disfigure, permanently disable, or kill the injured person. 

In order to convict a person of a felonious assault the judge or jury must believe beyond a reasonable doubt, after considering all of the evidence, that at the time of the attack the perpetrator had in his mind the specific intent or purpose to permanently harm this particular person, whether or not the permanent harm actually occurred.

This distinction was recently highlighted by the Virginia Court of Appeals in the unpublished case of Worrell v. Commonwealth (December 21, 2010).  In the Worrell case, Demonte Worrell confronted Larry Donnell, accusing Donnell of breaking into a woman's house.  When Donnell started to run away, Worrell chased him down and "delivered a single blow with his fist to Donnell's face."  Donnell fell to the ground and was injured.  Convicted by a jury of unlawful wounding, a felony, Worrell appealed, and on appeal the conviction was overturned. 

In Worrell, the court said that in just about every imaginable case where a single punch is thrown, the jury will not be able to reasonably infer the required intent to maim, disfigure, disable or kill.  Without "unusual violence and brutality, beyond the realm of a typical punch," a single-punch should be charged as a misdemeanor assault and battery.

While the same court has on one previous occasion upheld a felony conviction for an unprovoked and premeditated single-punch "of great force," see Johnson v. Commonwealth, 53 Va. App. 79 (2008), the Worrell decision seems to try to distance itself from Johnson, relegating the Johnson punch to a category the court calls "particularly brutal and generally gruesome assaults."