In the wake of the General Assembly’s special session, Attorney General Mark Herring released an opinion making clear that militias acting as unofficial security forces are breaking the law.
Attorney General Mark Herring released a formal opinion last month solidifying his opposition to private militia groups which act as unofficial security forces at public events.
In the formal opinion, Herring stated his opposition to these militias on the basis that, by acting as a security force, such groups are “…[usurping] a role specifically reserved to law enforcement.” Herring wrote that this does not conflict with the people’s rights to gather, petition or bear arms, which are all guaranteed under Article 1 of the Virginia Constitution.
The attorney general released the formal opinion on August 16, after it was requested by Del. Charniele Herring, D-Alexandria. Delegate Herring requested the opinion in response to the presence of militia-members at a Special Legislative Session on July 9. The session was about gun control, and members of the public attended to meet and speak with legislators on the issue. During the session, militia members patrolled the lines up to the Pocahontas Building where the session was held. They carried firearms and wore military clothing.
Attorney General Herring wrote in the formal opinion that, “The improper assumption of law enforcement authority can be used to intimidate or chill the exercise of rights reserved to our citizens…”
Herring believes this was the case on July 9. According to the Roanoke Times, Herring said they were there to “…intimidate Virginians from exercising their right to meet with their representatives.”
The formal opinion is consistent with Herring’s previous statements and actions. In 2017 and 2018, Herring sponsored SB 987, a bill that would make any group of people engaging in “unlawful paramilitary activity” guilty of a Class 5 felony. The same year, Herring also supported HB 1601, which would broaden law enforcement’s ability to label groups as domestic terrorists, especially in regards to white supremacists.
These bills were largely a response to the Unite the Right rally in August 2017, where alt-right and left protesters violently clashed in the streets of Charlottesville, Virginia. Many alt-right protesters at Unite the Right carried firearms, blunt weapons, and wore body armor. As chaos ensued, their presence made it more difficult to maintain order as it became harder for people to distinguish between law enforcement officers and private militia members.
Neither of these bills have managed to make it out of legislation, however. SB 987 was killed by Senate Republicans in 2018. Likewise, HB 1601 has been left in the Courts of Justice since February 2018. With neither of these bills passed, Herring released his formal opinion to help officers handle these militias with the current legislation, according to the Roanoke Times.
Top photo by Landon Shroder, RVA Mag archive