RichmondLiberty.org

GA290107.odt ­ General Assembly Fri 29 Jan 07

Yesterday was a very long day, and when I finally
got back home after 15 hours or so, I did not
have the energy to polish up my notes and file a
report. “Sorry about that, Chief!” Here's the report from yesterday.

(3:50 am Wednesday: Sorry again; seem to be
sicker than I thought. Will finish this up and
get it out ASAP with no further bells or
whistles.) Here's the report from Monday, which
by now is the day before yesterday. Apologies
being said, Monday was a pretty good day; we killed a bunch of bad bills.

At 8:30 this morning, we had simultaneous
meetings of House Finance Committee Subcommittee
#1, and Senate Courts of Justice Committee.

In Finance, there was one bill of interest to us.

HB2754 (Hurt) would impose a tax on Schedule I
and II illegal substances, and marijuana, and
illegal booze. The patron had a substitute bill
ready for the subcommittee, intended to address
some of the bill's many problems.
Both Lennice Werth and Michael Krawitz were
lying in wait for this bill. Lennice opposed it
on behalf of Virginians Against Drug Violence
(VADV), whereas Michael explained how useful this
would be in helping the Virginia chapter of the
National Organization for Reform of Marijuana
Laws (VA-NORML). (Sometimes we can “improve” a bill to death . . . )
The Subcommittee in its wisdom decided that the
time has not yet come for this rough bill to
slouch toward Richmond . . . uh, that is, the bill is dead, by a 6-2 vote.

Meanwhile, down the hall, the Senate Courts of
Justice Committee also met at 8:30 am, and considered these bills among others.

SB858 (Reynolds) would address SLAPP lawsuits (See SB1250).

SB880 (Deeds) would have made some benign changes
to the procedures for expungement of criminal
records. After considerable discussion
(including a proposal to merge it with SB1223),
it was passed by for the moment, and insofar as I
know was not further acted upon. (See SB1223.)

SB1007 (Saslaw) would have prohibited possession
of weapons in any part of any law-enforcement
facility. It's been rewritten to prohibit this
only in the “secure areas” of such facilities,
after an earlier hearing at which it was made
clear that there had been a misunderstanding
between the requesting police agencies, the
patron, and the Division of Legislative Services
(which actually writes the bills).
I asked that the provision for secure storage of
citizens' firearms, discussed at the previous
hearing, be inserted. Chairman Stolle said that
he thought that that could be left up to the
individual police agencies. Philip from VCDL
asked for more restrictive language on which
parts of facilities would be covered, and was rejected.
The substitute bill was reported.

SB1048 (Lukas) would have allowed expungement of
criminal records in cases where a defendant had
been granted deferred judgment for possession of
marijuana, providing at least ten years have
passed since the offense. (See HB2778.) The
present law does not allow those records to be
expunged, and they can cause problems even years and decades later.
Various law-enforcement agencies oppose the
bill, and Committee members pointed out that it
would not do as much as some proponents had
hoped. I showed that it could indeed be useful
in limited circumstances, and requested that it
be passed, promising also to work with Senator
Lukas to present a better bill next year. The
vote was close: two votes better than last year,
but still rejected on a vote of 8-7. (It would
be interesting to see the votes actually cast by
the members in attendance, excluding the many votes cast by proxy!)

SB1217 (Hangar) would have required the
Department of Forensic Science to provide
forensic laboratory services to “any private
police department”. These now have to submit
requests for DFS service through public
law-enforcement agencies. The concern has been
expressed that, were this measure to be enacted,
that the DFS would be inundated with requests for
DNA analyses for trivial drug cases. (“Test this
roach to match the saliva with a suspect, so we
can bust him for misdemeanor possession!”)
Stricken from the docket at the request of the patron.

SB1223 (McDougle) would have made some benign
changes to the procedures for expungement of
criminal records. Insofar as I know it was not acted upon today. (See SB880.)

SB1250 (Herring) addresses SLAPP lawsuits. (See
SB858.) The bill provides protection to citizens
who may be sued merely for speaking out in public
meetings against proposed measures and
actions. (Typically, speaking against proposed
rezoning applications. Such lawsuits are rarely
successful, but citizens may face legal fees of
tens of thousands of dollars before they are
resolved, and those fees are not always
reimbursed even if the lawsuits are dismissed as
groundless.) This is a measure of particular
concern to those of us who speak out frequently on public issues.
There were half a dozen proponents for this
bill, and reference was made to a number of
others who supported it but had already been
scared off from speaking out because they had
been sued. Most noticeably, a representative for
the Henrico County Board of Supervisors spoke for
it, citing the need for citizens to be able to
speak freely to governmental authorities without fear that they would be sued.
A spokeswoman from a housing development
association spoke against it, and said that there
was no problem, because both the suits of which
she knew had been ultimately resolved in favor of
the citizens. She failed to mention how long
this had taken, or how many thousands of dollars
the defendants had had to pay, or how many days
people had had to take off from work, or whether
or not they had ever been reimbursed.
SB858 was combined with this bill, and it was
reported to the full Senate as a Committee Substitute for both bills.

The only part of the action on the House floor
that I noticed was that HB1727 (Lohr), which has
been combined with HB3047 (Cole), regulating
school clubs, had the committee substitute
rejected, and the floor substitute reinstated and
advanced to third reading. The aim of the bill
is to make it harder for middle- and high-school
students to participate in controversial groups.
(But the bills are certainly not, repeat not
never nohow noway, targeted toward groups that
promote tolerance of or provide support for kids
with sexual-orientation issues!) The floor
substitute version is more restrictive than the
version which had been approved by the Committee.
I remind you all that you can track any bill as
it wends its way through the legislative process
at the websites listed at the end of each of
these reports. For the vast majority of bills,
that will give you more up-to-date information than I'm able to send you.

After the House and Senate sessions, the Criminal
Law Subcommittee of the House Courts of Justice
Committee was to meet a half-hour after
adjournment. This was delayed until 3:30 to
allow time for other subcommittee meetings (Civil
Law was addressing Eminent Domain problems). The
meeting was held in the relatively small and
noticeably under-air-conditioned 7th-floor West
conference room, and moved to the much better
House Room C as soon as Civil Laws subcommittee
vacated it. Bills scheduled for this meeting include the following.

HB1626 (Janis) Would protect people who use force
in self-defense within their own homes against an
illegal intruder. (See HB2458.) Common law in
Virginia allows use of only the the minimum
degree of force necessary, and only where the
homeowner has had absolutely no part in the altercation.
This is an important change. Under present
Virginia law, if you argue with your neighbor in
the back yard, and he gets mad, grabs a machete
and chases you into your house and up the stairs,
and you push him and he falls down the stairs and
breaks his neck, you can expect to be sued for
his injuries. After all, there was an argument
at the start of the incident, so you're not
completely innocent; and you used deadly force
rather than merely taking the machete away from him.
Recommendation was to report. HB2458 was
incorporated into the bill as reported.

HB1857 (Wittman) would make it a Class 1
misdemeanor (up to 12 months) to possess any
amount of marijuana on the premises of any
school. Presently first-offense possession is an
unscheduled misdemeanor with a maximum penalty of
thirty days, while repeated offenses are Class 1 misdemeanors.
Patron said how important it is to maintain a
zero-tolerance polcy for drugs at
school. Opponents (including Lennice, Mike, and
me) said how important it is not to brand a kid
for life as a criminal, and how important it is
not to sap one in jail with murderers and
rapists, for a single youthful indiscretion.
The vote was 8-2 to “lay on the table”; bill is dead.

HB2458 (Cline) self-defense. (See HB1626.) At
patron's request, was combined with HB1626.

HB2526 (Iaquinto) would make it a Class 1
misdemeanor to possess a firearm at the same time
that a person illegally possesses any amount of
marijuana or any Schedule III, IV, V, or VI
drug. At present, it is a felony to possess a
firearm and a Schedule I or II drug, but there is
no additional penalty for possessing a firearm at
the same time one possesses lower-scheduled drugs.
The patron had very sensibly prepared amendments
to his bill in response to objections that I had
raised to him earlier in private
conversations. The first modified “possess” a
firearm to “possess, on or about his
person”. The original phrasing (still used in
section “A” of the statute) would cover firearms
that might be many miles away. The second
amendment removed Schedule VI drugs from the
purview of the bill; Schedule VI consists of all
drugs not in other schedules which are labeled
“prescription-only”. (I think that there are few
problems caused by people who have firearms at
the same time that they have two capsules of
their mother's antibiotic prescription.)
The patron explained that the Virginia Beach
authorities had asked for this bill, and that it
was needed to protect the large tourist trade at
the Beach, which was somehow being adversely
impacted by hordes of people with guns and
illegal prescription medication. He wasn't able
to present any examples, however, since the
representatives from Virginia Beach police and
politicians had gone back home by the time the bill was considered.
Lennice, Mike, and I all spoke against the bill,
even in its modified form. There simply is no
evidence that there is any need for this
bill. ALL the drugs that wold be covered by it
are simply prescription medications of one sort
or another, and many millions of ordinary
Americans use prescription medications that have
been prescribed for a friend when they're
suffering from what seems to be an ailment
similar to that for which the medicine was
prescribed. This practice is so wide-spread
(though illegal, and in some cases unsafe) that
there's no significant nexus between it and gang activity or drug-dealing.
Philip Van Cleave from VCDL also spoke against
it, pointing out that “We're tired of seeing
these false links between firearms and
drugs.” The measure, if enacted, could cause
people to lose their Constitutional right to bear
arms merely for carrying some medication prescribed to someone else.
The bill was roundly defeated, laid on the table.
In conversation afterwards, Delegate Iaquinto
and I discussed ways to address whatever problem
might exist in Virginia Beach without unduly
criminalizing normal behavior. He's an
intelligent and reasonable person, and it's
likely that there will be a bill next year which we can support.
[Note: See the “DRUGS ON-LINE” footnote below to
understand ­ or at least to learn about ­ the
different Schedules under the Drug Control Act.]

HB2584 (Janis) deals with analysis in marijuana
cases. The patron asked that it be conformed to HB2760.

HB2713 (Barlow) would make it a crime
(obstruction of justice, Class 1 misdemeanor) to
NOT call police, in order to avoid prosecution,
when a person knows that a crime has been committed.
Think about that.
As written, the proposed law means that it would
be a crime for me not to call the police if I saw
someone smoking a joint ­ or if I lit one up
myself. The Constitution codifies my right not
to incriminate myself, and this bill as written
would directly contradict that right.
That being said, the patron is attempting to
address a real concern. As one example, two kids
climb a fence with “No trespassing” signs in
order to swim in a neighbor's pool. One kid gets
into trouble and is drowning. The other one is
afraid of being prosecuted, so instead of calling
“911” he just runs away. The other kid
drowns. You can imagine many other scenarios,
including cases of overdoses of illegal drugs.
I spoke briefly to the bill, and suggested that
it might be possible to craft wording that would
avoid Constitutional problems. It was too late
at night, and the bill was laid on the table ­
killed ­ overwhelmingly. The possibility remains
that it might be revived at the full Committee
meeting if a viable redraft is then available.
Delegate Barlow and I spoke after the hearing,
and agreed that a different approach to the
problem is needed, which will have to wait until
next year. We're thinking of some sort of grant
of immunity, similar to that granted to people
who “abandon” an infant at a designated safe place.
For this year, the bill and the issue are dead.

HB2760 (Hurt) Sets forth procedures dealing with
analysis in criminal (mostly drug) cases. HB2584
has been merged into this bill. (See HB2584 and HB2790)
Sorry, do not know enough to comment
intelligently on this issue ­ and did not stay to hear procedure.

HB2778 (Morgan) would have allowed expungement of
criminal records in cases where a defendant had
been granted deferred judgment for possession of
marijuana. It's the House twin of SB880,
defeated this morning in Senate Courts Committee.
At request of the patron, the bill was stricken from the docket (killed).

HB2790 (Gilbert) deals with analysis in marijuana
cases. The patron is still out sick. Insofar as
I know, it was not considered.

HB2895 (Phillips) would have added litter-control
officers to people authorized to access criminal-history databases.
The patron explained that rural areas may have
people patrolling areas where illegal dumping has
occurred, and that in some cases (he cited one)
those people may stumble onto other illegal
activities. He'd like for the enforcers to have
access to confidential criminal-history information for their own protection.
He did not explain how such access would help
prevent an anti-litter-enforcer from blundering
into a drug deal, as apparently happened in his
area. After all, in order to check the records,
one needs to know the names of the suspects.
I recalled “Ossifer Obie” in “Alice's
Restaurant”, and suggested that this bill would
unduly compromise the confidentiality of the
records, without returning any commensurate value to the Commonwealth.
The Subcommittee decided to gently lay the bill
on the table, reserving the possibility to revive
it for the full Committee if there was a new
version that was more tightly drafted.

HB2943 (Miller) was NOT on the agenda for this
meeting, but nevertheless was heard. It deals
with police officers' response to Class 1 and 2
misdemeanors committed in their presence. At
present, under a law passed in the seventies,
officers are supposed (in most cases) to merely
issue a summons, rather than take the subject
into custody by arrest. This bill would change
“shall” to “may”, having the effect of giving
officers total discretion in whether to use a summons or an arrest.
This law has often been ignored, and a recent
court case (Moore vs. Commonwealth, I believe)
has highlighted it. The difference between
issuing a summons and arresting a subject is
crucial. If a suspect is arrested, the officer is
entitled to search him, and any evidence found in
that search may be used for prosecution. If an
officer merely issues a summons, the only search
permitted is, for the safety of the officer, a
“carefully limited pat-down of the outer clothing
to determine the presence or absence of
weapons”. In the relevant case, officers found a
“squishy bag”, and arrested the subject for drug
possession. There was no evidence that the bag
might have been a weapon, and the evidence was thrown out.
Law enforcement/prosecutors want the authority
to perform a full search whenever they want
to. Defense attorneys/citizens want to be safe
from full searches with no justification.
Proponents of this bill suggest that, if the
present law is enforced as it is written, police
officers might see someone smoking a joint, and
not have the power to search the subject to find
other evil stuff in his/her pockets. Opponents,
including me, say “Gee, you say that like it's a
BAD thing!” We also pointed out that granting
officers absolute discretion would absolutely
result in dicriminatory application.
D.J. Geiger, of the Virginia Indigent Defense
Commission, spoke against the bill, pointing out
that the existing exemptions to the summons law
already provide all the leeway needed.
The bill was eventually recommended for
approval, with many members voting “Aye” only
with extreme reluctance, and predictions that the
issue will be back in front of the Assembly next year.

HB2983 (Janis) applies standards of procedure for
asset forfeiture cases. These are commonly used
in drug cases, although they are civil, not
criminal. It provides for jury size, discovery,
and “nonsuit” (dropping of the case). The intent
is to give the defendant some additional
protection, but there was considerable discussion about some of the features.
The bill was recommended for reporting.

Tomorrow morning, there are meetings with bills
of interest, but which I will not attend. Time
and energy are both limited, and some things can't be covered.
[Itemization deleted Wednesday morning, since it's obsolete.]

I spent much of yesterday and last night in
bed. This morning's RTD provides several tidbits
of which you may wish to be aware.
In House and Senate actions:

HB2585 (Janis), to allow adults to ride
motorcycles without helmets in some circumstances, was defeated 39-59.

HB3077 (Abbitt and Ware, R.L.), changing the
penalty for riding without a helmet to a $25
civil fine, was advanced to third reading.

SB905 (Rerras), which grants more freedom to
citizens (including children) to choose for
themselves which medical treatments they will
choose, was engrossed and passed to third reading.

Today (it's now 7:47am), there are numerous
meetings which I expect to attend. These include:

House Militia and Police Subcommittee #3, 8:30 am.
HB2300 (Cole) would establish uniformity across
State institutions on gun laws. I probably will
not make this one, but VCDL will, I'm sure.

House and Senate meet at noon.

House Courts of Justice Criminal Law subcommittee
meets ½ hour after adjournment. Many bills.

Hope to do better with this report in the future.
-- Roy

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DRUGS ON-LINE:
To see what substances are in which Schedules of the Drug Control Act, go to:
.
Click on “Code of Virginia - statutory law”.
Click on “Popular Names”.
Scroll down and click on “Drug Control Act”.
The criteria for classification, and the contents
of each Schedule, are in Code sections 54.1-3445 through 54.1-3455.

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DETAILS:
To see the summary, text, status, estimated
cost, votes, or other details on any bill, go to:
. Click on:
“Bills & Resolutions ­ status of individual bills and related information”.
At the text-entry block, enter the bill and type
just as I have it listed above. (Use “SB921”, not “S.B. 921”, for example.)

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REMINDER:
and
These are the two websites where you can access
nearly anything you want to know about
practically anything related to the General Assembly. Use them!

end

- - Roy B. Scherer