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Virginia AG Mark Herring Issues Advisory Opinion Concluding It’s Unlawful for Individuals or Groups to “Assume the Functions” of Law Enforcement Agency

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Interesting news from AG Mark Herring’s office:

Attorney General Herring issued an advisory opinion today that concludes it could be unlawful for individuals or groups to “assume the functions” of a law enforcement agency.

The request comes after heavily-armed militia members positioned themselves outside the Pocahontas Building in Richmond during the July 9 special session on gun violence.

AG Herring has been warning of the rise in white supremacist violence for years and has been working to address the issue. He has introduced legislation in the past two legislative sessions that would further restrict the kind of paramilitary activity by white supremacist militias and similar groups that was seen in Charlottesville in August 2017.

According to AG Herring:

“The private militias we saw purporting to be police outside of the General Assembly building during the gun violence special session were there to intimidate Virginians from exercising their right to meet with their representatives,” said Attorney General Herring. “Seeing a group of people all dressed alike in military garb and carrying large assault-style weapons, like the white supremacist militia and paramilitary activity we saw in Charlottesville, can be intimidating and terrifying. I hope that this opinion will help law enforcement better understand the tools that they have at their disposal to handle these private militias when they show up to events.”

A few key lines from the opinion:

–       “The conduct you describe can constitute a violation of the criminal prohibition set out in § 18.2-174. You describe a group of militia members coming as a unit, heavily armed with assault-style weapons, dressed in fatigues and other military accessories, and acting in a coordinated fashion. The militia members patrolled a line of citizens waiting to engage with legislators and projected authority to manage the crowd.”

–       “Under the code of Virginia, the responsibility to “safeguard…life and property” and to “preserv[e]…peace” is vested in the local police and other properly designated law-enforcement personnel. By engaging in crowd control or purporting to secure a public area, militia members usurp a role specifically reserved for law enforcement…”

–       “The improper assumption of law enforcement authority can be used to intimidate or chill the exercise of rights reserved to our citizens, such as the right to speak, assemble, and petition the government. Section 18.2-174 prohibits such behavior.”

And here’s the full opinion: