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‘Unconstitutional and worthless’: Emails show officials doubting gun sanctuaries

Spectators applaud as the Buckingham County Board of Supervisors unanimously voted to pass a Second Amendment Sanctuary City resolution at a meeting Dec. 9. (Steve Helber/AP)

RICHMOND — Tighter gun laws aren't the only thing rural Virginia counties have resisted as they've declared themselves Second Amendment "sanctuaries."

They’ve also defied legal advice in some cases, ignoring warnings from county attorneys and administrators that the sanctuary resolutions are legally meaningless and dangerously confusing.

“We are getting calls from people who believe this resolution has swept away ALL gun laws in the County,” Tazewell County administrator Eric Young, a lawyer, warned in a Nov. 26 email to Eric Whitesell, a private attorney then leading the sanctuary effort. One email, he wrote, came from a couple who “were denied licenses to sell guns and now want to sell them,”

In a Nov. 20 email to some supervisors, Young described sanctuary declarations as “unconstitutional and worthless.”

The emails were obtained under the Freedom of Information Act by Everytown for Gun Safety, a group that supports gun control. The organization provided copies to The Washington Post, which independently confirmed their authenticity.

The messages show local officials questioning the validity of sanctuary resolutions that were being rapidly adopted by Virginia counties, cities and towns as the new Democratic majorities in the state legislature prepared to pass sweeping gun control measures. The emails also describe confusion among residents about whether living in a so-called gun sanctuary would remove limits on how guns could be bought and sold.

Democrats won control of the state House and Senate on a promise to enact gun control, including universal background checks and a purchase limit of one handgun a month. More than 110 localities have since passed some type of resolution in support of gun rights, many of them proclamations asserting that officials will not enforce laws they see as unconstitutional.

The movement is a backhanded nod to the “sanctuary” status of places that declare opposition to certain federal immigration enforcement efforts. In those cases, local law enforcement officials vow not to help U.S. Immigration and Customs Enforcement detain or deport undocumented immigrants, which is considered a federal — not a local — responsibility.

The Virginia Citizens Defense League — the same group that organized last week’s gun-rights rally in Richmond — has led the charge, while the more cautious National Rifle Association, and Republican legislative leaders, have largely avoided talking about the effort.

VCDL President Philip Van Cleave acknowledged in an interview Friday that the declarations are “largely a statement. . . . The state has preemption laws and limits what localities can do.”

But he argued that sheriffs and prosecutors in sanctuary jurisdictions could refuse to enforce new gun laws, relying on the principle of prosecutorial discretion — the same approach that liberal prosecutors say allows them to stop charging people with such things as marijuana possession.

“Prosecutors have prosecutorial discretion, so they shouldn’t be upset when prosecutors say, ‘I’m not wasting time going after law-abiding gun owners,’” Van Cleave said.

He and others have advanced that argument as four new commonwealth’s attorneys in Northern Virginia are promising to use prosecutorial discretion for a different agenda: moving away from the death penalty, not prosecuting marijuana possession, ending cash bail and limiting cooperation with immigration authorities.

Charlotte Gomer, a spokeswoman for Attorney General Mark R. Herring (D), dismissed the comparison. “I don’t think any prosecutor wants to be the one who allows an unlicensed gun dealer to flood their community with deadly weapons or sell guns to dangerous felons or domestic abusers,” she said.

Herring issued a legal opinion in December that said the sanctuary resolutions have no legal weight.

The emails showed officials in Hanover, Fauquier, Buckingham and Tazewell counties, as well as Virginia Beach, raising concerns about the resolutions before they were voted on. In most cases, those were messages among county government lawyers, administrators and supervisors. In Hanover, the email exchange involved a supervisor and a resident.

“I cannot emphasize enough that the Board of Supervisors does not now, nor will it in the future have any responsibility for enforcing (or not enforcing) gun laws,” Hanover Supervisor Angela Kelly-Wiecek (R) wrote to a resident on Dec. 11, hours before the board passed a resolution that promised to oppose any infringement on the Second Amendment but stopped short of declaring the county a sanctuary.

Kelly-Wiecek was out of town that day and did not vote.

In a Dec. 3 message, G. Timothy Oksman, legal adviser to the Virginia Beach Sheriff’s Office, raised alarms about resolutions stating that local authorities will not enforce new state firearms laws.

“If enacted, such an ordinance would create a crisis for local police departments — an oath to enforce laws of the Commonwealth in direct conflict with an ordinance by their governing body directing them not to enforce some of those laws,” Oksman wrote on an Internet mailing list for local government attorneys across the state.

He did not share that advice with the board before its vote, Sheriff Ken Stolle (R), a former state senator, said in an interview Sunday. Oksman did not respond to messages seeking comment.

The Virginia Beach City Council ultimately passed a toned-down measure that expressed its strong support for the gun rights of law-abiding citizens but did not declare itself a sanctuary.

Fauquier County also opted for a milder resolution, declaring itself a “Constitutional County,” and expressing opposition to tighter gun laws without vowing to defy them.

That came after Deputy County Attorney Tracy Gallehr cautioned in a Nov. 20 email to board members and others that a sanctuary resolution “has no real legal enforceable meaning” and “sets up an expectation . . . that the BOS will litigate over any new state or federal gun legislation.”

Buckingham County went ahead with its resolution even though county administrator Rebecca Carter noted that under the “Dillon rule,” Virginia localities have only the power specifically granted to them by the legislature.

“[Y]ou all can adopt a resolution to become a sanctuary county but that does not mean you can legally be one,” Carter wrote to county attorney E.M. Wright and Supervisor Donnie Bryan.

In an interview Friday, Wright said the legal value of the resolution is open to interpretation. “There is no legal definition for ‘sanctuary,’” he said. “My home is my sanctuary, so what does that mean?”

Ahead of Tazewell County’s vote, Young, the county administrator, criticized sanctuary resolutions passed elsewhere. He wrote in a Nov. 20 email that he preferred one creating “a pool of potential militiamen/women.”

“It could give the Sheriff and Commonwealth’s Attorney something to hang their hat on so they do not go to jail for refusing to perform their duty,” he wrote to Tazewell Supervisor Charles A. Stacy (D) and other supervisors. “Basically a naked sanctuary statement from the Board is unconstitutional and worthless. In fact it probably violates all of our oaths of office. However, a militia resolution simply exercises a local power set forth in the state and federal constitutions.”

Among the emails released was a Nov. 25 message from the owners of Rudy’s Computer & Pawn Shop in Bluefield, asking if the resolution would make the store “exempt from State penalties for handling a transfer of any so called ‘banned’ weapons.”

“Personally I have a problem with the word ‘sanctuary’ because of the doors it could potentially open,” Tazewell board Chairman Travis Hackworth (R) wrote in an email circulated to the rest of the board the day before the vote. But Tazewell citizens, he concluded, would not be satisfied with anything else. “It seems the masses are demanding we use the phrase ‘sanctuary’ in our resolution,” he wrote.

On Dec. 3, Tazewell’s board passed two resolutions. One declared the county a sanctuary, the other asserted its right to a militia. Young was still trying to clarify the latter in the local paper a month later.

“Tazewell County Official: ‘We are not forming a militia,’” read the Bluefield Daily Telegraph headline. The resolution was only meant to offer training to residents, Young told the paper. “At the moment . . . the board has not called any such militia to arms and prays that such moment never occurs.”

In an interview Friday, Stacy said the resolutions were meant to give the county legal standing to challenge new gun restrictions in court, not to promise defiance of state law.

“We are not wishing to say, ‘We don’t care what laws you pass. We will not enforce them,’” he said. “I think everybody knows or has a reasonably good appreciation that sanctuaries are not a favored practice.”

But that message, he acknowledged, was muddled.

“We had convicted felons who said, ‘Oh, God, I just got my gun rights back,’” Stacy said.

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