Home Guns AG Mark Herring Response to Appeal in Executive Order Lawsuit

AG Mark Herring Response to Appeal in Executive Order Lawsuit


From Attorney General Mark Herring’s office:

Attorney General Herring has filed the following brief this morning in the Supreme Court of Virginia asking it to deny an appeal by gun activists who seek to block Gov. Northam’s Executive Order.

Click here for AG Herring’s brief.

Attorneys from AG Herring’s team stayed at the office and worked through the night to complete the brief. We have also submitted a request to file a longer brief than usual because the haste with which the plaintiffs are proceeding means this is the first and likely only opportunity for the Commonwealth to file a brief on this matter.

AG Herring’s brief explains the need for the Governor’s Executive Order and clarifies what it actually does:

“On August 12, 2017, three Virginians were killed and dozens were injured during a permitted rally that turned violent in Charlottesville. “Opposing groups arrived early, armed and ready for conflict, many traveling from across the country to participate. Violent clashes ensued between protesters and counter protesters.”

“In recent days, the Governor received “[c]redible intelligence . . . that tens of thousands of advocates plan to converge on Capitol Square for events culminating on January 20, 2020.” Executive Order Forty-Nine at 1 (Northam) (EO). In particular, “[a]vailable information suggests that a substantial number of these demonstrators are expected to come from outside the Commonwealth, may be armed, and have as their purpose not peaceful assembly but violence, rioting, and insurrection.” Id.

“Determined to prevent another tragedy, the Governor issued a carefully limited Executive Order. The Order does not prevent anyone from speaking, assembling, or petitioning the government. Instead, it temporarily precludes private possession of firearms in a sensitive public place during a specified time to protect public safety and safeguard the rights of all citizens to peacefully speak, assemble, and petition their government. [Pg 1-2]”

His brief also explains the weakness of the gun activists’ position and its potential public safety implications:

“…petitioners ask this Court—with no evidentiary record and in a highly expedited proceeding, see note 7, supra—to simply disregard the judgment of the Governor and the advice of the seasoned law-enforcement officials on whose recommendations he relied—not to mention the powerful weight of the historical record given the tragic events in Charlottesville.” [Pg21-22]”

The table of contents is also a useful explanation for why the appeal should be denied:

I. The circuit court did not abuse its discretion in concluding petitioners were unlikely to succeed on the merits
A. The Executive Order is constitutional
1. No violation of the right to bear arms
a. Petitioners have no constitutional right to carry firearms in Capitol Square
b. The Executive Order satisfies any level of constitutional scrutiny
2. No violation of free speech or assembly
a. No one is prevented from speaking or assembling
b. Any restriction is justified by the interests in protecting public safety and safeguarding everyone’s constitutional rights
B. The Governor had the authority to issue the Executive Order

II. Petitioners cannot demonstrate that the balance of equities or the public interest favors a temporary injunction

We will communicate any further updates as soon as possible.

Charlotte P.L. Gomer
Press Secretary
Office of the Attorney General


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