RichmondLiberty.org

file GA08-02-04
General Assembly, Monday February 4th, 2008

The Senate Courts of Justice Committee met at 8:45. They have a number of items, most things of interest are gun bills.

SB332, Cuccinelli, Access to CHP database; allows information to be redacted.

This is considered AFTER SB529, SB730, SB759. It allows exemption of permit-holders' personal data. Although the basic issue has been decided already, we're going to play the parlimentary maneuver game.

Motion to report fails. Motion to reconsider that vote passes.
Norment moves to conform this to SB529, then roll SB529 into THIS one -- this would give Cuccinelli bragging rights, instead of Houck. This ain't gonna fly. It don't. Bill is dead.

Ironically, a different bill reaches a different conclusion. See SB764, below.

SB436, Vogel, Concealed weapons in vehicles

Would allow legal handguns to be carried in a locked container/compartment in private vehicles by legal owners with no need for Concealed Handgun Permits.

At request of patron, passed by for the day.

SB476, Hangar, Concealed weapons, restaurants and alcoholic beverages

Present law says that, even with a permit, citizens may not carry a concealed weapon in any restaurant or club that serves alcoholic beverages. The weapon must be open and visible. This bill would remove that prohibition, and replace it with one that prohibits the carrier from consuming alcoholice beverages on the premises. (Current law allows drinking, but not intoxication.)

Committee lost its quorum, so passed by for the day.

HB529, Hauck, restricts access to information on names and addresses of people who hold Concealed Handgun Permits. It's a recommendation of the FOIA council, in response to the act of a Roanoke newspaper which published the information on their website.

Interestingly, I'm sitting between two representatives of the Virginia Press Association, which opposes the bill -- although the patron just said that VPA is good with the measure. One of the representatves explains that VPA supports THIS bll, but that there are others which they oppose. There are three other bills on the same subject on this morning's docket.

Amendment is offered to allow access to Lexis/Nexis, which has a contract to gather such data for the State Police. This provision has already been inserted into the House version of this bill.

SB730, Smith, was rolled into the bill, even though 730 has a provision for release of data to nonprofit groups which is not in the other two bills.

Sen Ruff's bill, SB759, is rolled into this one.

VCDL's Philip Van Cleave opposes the bill, as does FCPC's Mike Stollenwerk, since it still allows access to the information at the courthouse.

VPA's Craig Merritt supports the bill, as the product of the FOIA council with input from the media and other groups.

Senator Stolle asks about allowing exemptions, on request, for specific cases, such as law enforcement and victims of domestic abuse. Houck opposes.

(See discussion of SB764, below.)

AG's office asked whether Circuit Court judges have authority to withhold such information when there's a good reason to do so. He doesn't know. Stolle asks if there are other "public" records with similar exemptions.

Sen. Cuccinelli proposes amendment to protect privacy in cases where that may be justified, using language from his SB332. Question on who would be eligible for exemption; if no limits on whom, then why have this as public info at all?

Sen. Hurt asks VPA position. Well, these are Circuit Court records, and therefore presumably public, though there is inherent authority of judge to order record closed in some cases. Standard is not "for good cause", but must be "compelling interest", which requires a stronger reason to close records. He stresses that this is already an inherent right, and so doesn't need to be written into the statute.

Reynolds points out that you don't need a permit to open-carry, but if you do choose to get CHP, then you know that it is a public record.

Second for Cuccinelli amendment, using "good cause" standard.
Vote sounds like partyline; rollcall shows it fails.

Bill reported to full Senate.

SB730, Smith, Access to CHP database; allows data distribution to non-profit groups for educational purposes.

This was rolled into HB529, Houcck, even though that bill has no provision for nonprofit access.

SB759, Ruff, Access to CHP database

Rolled into Sb529, Houck, which is virtually identical.

SB764, Ticer, Substitute, Domestic Violence victims

This bill fine-tunes the provision in law allowing victims of domestic violence to use the Attorney General's office as their contact address. The AG would maintain a highly confidential list, and forward mail to them. Their actual addresses would be used in the Virginia Criminal Information Network, with access only for law-enforcement purposes. The program is new, and is applicable only in some localities.

It occurs to me that what this legislation restricts, the CHP program reveals; there's even a specific exemption for that list in the bill.

Substitute version reported to floor.

HB776, Hurt, Concealed weapons and Commonwealth's Attorneys

Would allow CAs to carry concealed weapons with no need for a permit.

Committee lost its quorum, so passed by for the day.

Committee rose before 11 am.

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House and Senate met at noon.

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At 2:30, the House Courts of Justice meets, after a considerable wait for a quorum.
Sex, arrest vs. summons, guns, self-defense, waiver of rights

HB312, Landes, Miscarriage or stillbirth; unintentional cause thereof.

Makes it a Class 5 felony to grossly/recklessly cause a miscarriage or stillbirth, EXCEPT if the action occurs while under the influence of marijuana, or Class I or II drugs, or while driving on a suspended license, or in an act of domestic violence, in any of which cases it would be a Class 4 felony

The difference between the general case, and the three cases with higher penalties, isn't clear to me at all. The difference in penalties is immense: from no jail up to 10 years, and no more than $2,500, for a Class 5 felony, compared to at least 2 years (and up to 10), and up to $100,000 for a Class 4 felony.

When the bill comes up, there's a substitute version. The sub makes exactly the change that I was going to push for, deleting section B. Even more amazing, that change was requested by the Commonwealth's Attorneys Association -- one of the few times that they and I agree. I didn't even have to speak to the bill!

After considerable discussion among the Committee, they decide to pass it by until later today. Later, it's decided to deal with it Friday.

No, taken up as last item, and substitute reported & referred to Appropriations.

HB436, Miller, Arrest or summons; charge for misdemeanor at discretion of law-enforcement officer.

The bill would allow actual arrest instead of issuance of summons.
This would have he effect of making it much easier for police to search someone without any sustainable reason -- although we're assured that this would never actually happen, of course.

This has been repeatedly argued in Subcommittee, and I don't expect that any of the opponents will be allowed to object today. Ah, actually, we CAN speak. Many people want to do so.
Christina Rebeil of Virginia Immigrant Peoples Coalition opposes, as giving greater latitude for harassment of Hispanic people. Delegate Athey quizes her as to exactly which localities have biased police.
A gentleman named Curran, who works with immigrants, opposed.
I oppose for VADV -- too many arrests with attendent searches, leading to even more arrests. Also asked whether the other five states that have the summons procedure handle all the terrible problems that we've been told require this bill. No answer.
VCDL's Philip Van Cleave opposes -- harassment of gun carriers.
FCPC's Mike Stollenwerk opposes -- privacy concerns.
AG's office supports.
Comm. Attys support.
VA Criminal Defense Lawyers oppose -- harassment of young, and of out-of-staters.
State Police support.

After all had spoken, and more discussion, reported, 19-2.

HB567, Crockett-Stark, Sexual offenses; those convicted prohibited entry onto school property.

Prohibits entry onto school property at all times, removing the part of present law that limits the prohibition to school hours. There had been extensive discussion on the bill, but eventually it was decided that it is a straight-up policy decision. Subcommittee recommended it 10-1.

Reported, and re-referred to Appropriations.

HB622, Brink, Sexual offender; prohibited from residing in public park in proximity to children.

Not heard today.

HB710, Janis, Self defense and defense of others; person occupying dwelling may justify when unlawful entry.

This is the "castle doctrine" bill, which says that you don't have to run away if someone breaks into your home and attacks you. I note that it's been the subject of some opposition from people who either can't understand English, or who are lying. (See http://barticles.mytimesdispatch.com/, and scroll down to "Never Mind the Facts, Just Start Panicking", posted February 1st.)

Amended to change the word "harm" to "injury".

Partridge from NRA supports.
Va. Center for Public Safety opposes, citing terrible consequences: the foreign exchange student who was shot by a paranoid homeowner several years ago in another state. (She failed to mention that the student merely knocked on a door to ask directions; he did NOT "enter unlawfully" anyone's home, so this would not have applied.)
Virginia Association of Commonwealth's Attorneys opposes: he's afraid that the bill would confuse judges in criminal cases.
VCDL supports.

Discussion among Committee members, questions.

Patron points out that the bill doesn't give anyone immunity to arrest or prosecution if there's reason to believe that a crime has been committed. All it does is protect a person who is lawfully in a private residence from being sued for using force under carefully limited circumstances: where someone elso "unlawfully entered the dwelling, has committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury." All three circumstances must obtain for the immunity to apply.

Bill is reported, with indicated amendment, 17-4.

HB815, Albo, Substitute, Voluntary admission; report to Central Criminal Records Exchange.

This will be heard in Criminal Law Subcommittee, later today.

HB1043, Watts, Polygraph; no sexual offense victim shall be requested to submit for investigation to proceed.

Not heard today.

HB1366, Cline, Probation; waiver of fourth amendment rights as condition.

This is moved to the end of the docket at his request.

This would make clear that a judge may force a defendent to "voluntarily" waive his Constitutional right to be secure against search and seizure in the absence of a warrant and probable cause. This would apply to people convicted of drug offenses and some other offenses, primarily as a condition of probation.

The patron offers an amendment to restrict the searches to times when the defendent is present. Adopted.

Delegate Moran offers an amendment to delete the reference to "home", so that searches would be authorized only for the defendent's person and vehicle. Long discussion, and amendment is defeated 13-8.

I spoke against the bill, as did the representative of the Virginia Criminal Defense Lawyers. Commonwealth's Attorneys spoke for it.

Bill is reported, 15-6.

Committee rises about 5:30

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At 6 pm the Criminal Subcommittee of the House Courts of Justice Committee is supposed to meet. Of course, we're on Legislative Standard Time, which is highly variable -- in this case, 15 minutes slow. It's looking to be a long night.
Hacking, sex, domestic violence, kids, guns, madness, etc.

HB384, Ware, Substitute, Computer trespass; alters elements of crime.

The original bill would have changed the definition of computer trespass to no longer require that a person act with malicious intent in order to be guilty, requiring instead that the act be committed without the consent and authorization of the computer's owner.

I was concerned that this was another "Death to Hackers" bill, over-reacting to innocent hacking. Turns out that this isn't the case. There's a substitute version proposed, which merely says that in a civil matter (such as a lawsuit or divorce) one cannot use evidence that was obtained unethically from a computer system.

Bill is approved, 7-4.

HB597, McClellan, Marriage, subsequent; effect thereof to child over 14 years of age.

Crimes; effect of subsequent marriage to child over 14 years of age. Repeals the code section that provides a defense to carnal knowledge of a 14-year-old female when there is a subsequent marriage of the victim and the perpetrator.

I found this interesting because it repeals a related section of the Code. Current law says that it's illegal for an adult to have sex, even with consent, with someone under 17. If a person is charged with this, and the court finds that since that time the couple has gotten married, and that they're properly living together as husband and wife, then the court may repeatedly continue the case until the younger spouse reaches 16. If at any time that the accused deserts his spouse, then the court can go ahead with the prosecution.

This bill repeals that section of the Code, as part of a policy decision (a recommendation of the Sexual Violence Study). The reasoning is that there should not be additional pressure on a victim to actually marry someone merely to keep them out of jail.

I had to point out to the subcommittee that, if there are currently any such marriages being monitored by the courts, the repeal will remove the authority for that, and so perhaps the repeal should be postdated.

An entirely separate problem is that the underlying criminal statute applies to conduct between "adult" and any minor who's at least 15 . . . and may be, in fact, 17 years and fifty-one months, while the adult is 18 years and one week.

The vote to report the bill (actually, to recommend to the full Committee that it be reported) failed on a 5-5 vote (a majority is required).

AHA! AFter another bill is considered, Delegate Albo moves to reconsider the bill, then Delegate Gilbert moves that it go by for the day, to allow a possible fix.

HB719, Janis, Underage drinking and driving; punishment.

Provides that "zero tolerance" (0.02% BAC) underage drinking and driving is punishable as a Class 1 misdemeanor. Currently, the punishment is loss of license for six months and a fine of no more than $500. This bill provides for forfeiture of such person's license to operate a motor vehicle for a period of one year from the date of conviction and a mandatory minimum fine of $250. Punishment set forth in the bill mimics punishment for DUI.

Bill heard briefly, then subcommittee decided that we'd have to break. Passed by until next meeting.

HB815, Albo, Voluntary admission; report to Central Criminal Records Exchange.

Adds to the section requiring reporting of involuntary commitment persons who were the subject of a temporary detention order and who subsequently agreed to voluntary commitment.

This FINALLY comes up, just before 11:30.

This refers ONLY to the "voluntary" admissions that are allowed after someone has been adjudicated as needing an involuntary committment. Such a person is allowed to receive such treatment "voluntarily", but this shouldn't be confused with someone deciding on their own, or after talking with friends and family, that they need treatment.

There are a number of proposed amendments to the bill, some proposed by VCDL and some by the AG's office. A quick runthrough doesn't show any conflicts between the two sets.

The AG's amendments are largely required to conform to Federal standards. They seem to do no harm, and in several parts actually improve the bill.

The gun-owners' rights amendments protect patient privacy, and ensure that people won't lose their rights without good reason.

Suncommittee approved the draft bill with no controversy, and approved changes as needed to make the bill meet the ends of all parties. The bill will be redrafted (incorporating HB835 as well as the other bills already incorporated into it, and it'll be ready for the Wednesday meeting.

A last-minute snag came up, since any notifications must also go into the Federal database, and no one, including the State Police, has any idea how to clear someone's name once it's been entered. (For those who aren't already aware, the Federal legislation includes a procedure for clearing names, but it has never been used, since the anti-gun forces in the Senate have always had a specific law prohibiting spending any money to implement it. This has been a deliberate policy, though never widely publicized. Only with the new act, just signed into law, has that ban been removed. This may help you understand why the law has been called the Veterans' Disarmament Act by its opponents.)

Bill should be finished on Wednesday.

HB835, Moran, Substitute, Firearms; misdemeanor to possess, etc. if mentally incompetent.

Provides that it is a Class 1 misdemeanor for a person who has been adjudicated incompetent to stand trial to purchase, possess, or transport any firearm. The bill also requires the court to send to the Central Criminal Records Exchange orders finding that a defendant is incompetent to stand trial and orders for involuntary treatment.

This bill is quickly incorporated into HB815, just about 11:15 pm.

Committee rises at 11:56 pm, just moments before we all turned into pumpkins.

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Next significant meetings are tomorrow:

House and Senate meet at noon.

1/2 hour after Senate adjourns, Senate Courts of Justice Criminal Subcommittee; 3rd Floor East Conference Room, General Assembly Building
Drug bills and others

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DETAILS:
To see the summary, text, status, estimated cost, votes, or other details on any bill, go to:
http://leg1.state.va.us/. 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:
http://leg1.state.va.us/ and http://legis.state.va.us/
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!