Thursday, February 19, 2009


On Feb. 14 2009, I was charged with two crimes, § 18.2-308.1:2 and § 18.2-308.2:2.

The misdemeanor first:

§ 18.2-308.1:2. Purchase, possession or transportation of firearm by persons adjudicated legally incompetent or mentally incapacitated; penalty.

It shall be unlawful for any person who has been adjudicated (i) legally incompetent pursuant to former § 37.1-128.02 or former § 37.1-134, (ii) mentally incapacitated pursuant to former § 37.1-128.1 or former § 37.1-132

I wasn't adjudicated any of that stuff in italics because the statutes that this law is pursuant to expired in 2005. [Edit: Strike "expired" and replace with "repealed." Duh!]

or (iii) incapacitated pursuant to Chapter 10 (§ 37.2-1000 et seq.) of Title 37.2 and whose competency or capacity has not been restored pursuant to former § 37.1-134.1 or § 37.2-1012, to purchase, possess, or transport any firearm. A violation of this section shall be punishable as a Class 1 misdemeanor.

(1994, c. 907; 1997, c. 921; 2004, c. 995.)

That's not applicable because A) I never have been assigned a guardian or a conservator and B) if the state said I had been, then they should have been served with the warrants, not me.

Now for the felony.

§ 18.2-308.2:2 at part K:

K. Any person willfully and intentionally making a materially false statement on the consent form required in subsection B or C or on such firearm transaction records as may be required by federal law, shall be guilty of a Class 5 felony.

From the misdemeanor, I assume that the felony is questioning my answer of "No" to Question F. on the ATF's Form 4473

Have you ever been adjudicated mentally defective (which includes having been adjudicated incompetent to manage your own affairs) or have you ever been committed to a mental institution?

Now for the nitty-gritty part.

I recommend a quick review of the facts here

The Temporary Detention order is an order of detainment not involuntary committal.

A TDO is done by the magistrate. A Judge or Special Justice is the only one that can involuntarily commit someone.

And here is the purpose of my hearing with the Special Justice

And I was not deemed mentally incompetent or mentally ill nor was I involuntarily committed.

Proof One and Proof Two

So just what was the origin of the involuntarily committed garbage that you can read about in the papers?


(Please note that Sgt. Wyatt is the UVA Wise Campus Police officer who dragged me out of class, had me under custody, delivered me to Daphne Blanton for the TDO evaluation, etc.)

How effective was his under-oath willful and materially false statement?



Just what would make the college go to such great lengths to slander me as being mentally ill and involuntarily committed?

You see, when Sgt. Wyatt asked if I had any weapons in my vehicle I informed in that yes, I did (three in total, and only two of which were loaded), I also informed him that while I knew this was against school policy, but that also the school's policy was illegal. See, Virginia has a pre-emption law when it comes to firearms. The law says that certain groups can't prohibit the possession of firearms. One of the groups that can't is a local agency. Specifically:

§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.

Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.

The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.

B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

(1987, c. 629, § 15.1-29.15; 1988, c. 392; 1997, cc. 550, 587; 2002, c. 484; 2003, c. 943; 2004, cc. 837, 923.)

University of Virginia (And thus the Wise campus) is applicable because it is an Agency under the Virginia Administrative Code. Also, Jones v. Commonwealth, 267 Va. 218, 223, 591 S.E.2d 72, 75 (2004) held that UVA is a governmental entity.

Virginia has a common law principle known as the Dillon Rule. It states that unless the General Assembly explicitly gives you the power to do something, you don't have the power to do it. The GA has never given college campuses the power to ban guns (except for Virginia Commonwealth University , and a few others NOT INCLUDING UVA or UVA Wise under the Virginia Administrative Code, e.g. George Mason.)

A state statute explicitly allows for CHP holders to have concealed firearms in their vehicles on K-12 school property when the vehicles are in parking lots or other places of ingress or egress. It would stand to reason that should be allowed when there are more adults around and less kindergartners.

Uh oh, says UVA Wise. Steve Barber is going to sue us!!!

So they come up with a phony-baloney psych evaluation to petition for the TDO. (Two points on how it's phony-baloney: A) In the middle of the interview, I informed the counselor (Daphne Blanton) that I needed to urinate and that I had a pocket knife--I asked if she would like to hold on to it as a sign of good faith whereas I was going to the restroom alone. She said that would not be necessary, and I was then left in a bathroom with a door shut--alone--with a pocket knife--when she would soon diagnose me with suicidal and/or homicidal ideation. B) On the chart with all of the symptoms to circle, she did NOT mark 'depressed.' In the diagnoses section, she diagnosed me as being "depressed." I'm not a doctor, but I find it pretty suspicious that depression is not a prerequisite symptom for being diagnosed with depression.

Well, then--surprise surprise--I get a clean bill of health from the psych ward and from the General District Court. What is UVA Wise to do to stop the lawsuit now?

I know...

Let's have a fall guy (Sgt. Wyatt) say I was involuntarily committed the day after I was adjudicated to not be mentally ill! (My hearing and discharge was March 3, Sgt. Wyatt's evidence on March 4, and my CHP suspended on March 5.)

Curious note about my CHP suspension. I was told it was suspended, not by the officer required to serve me with a notice (that never happened!!!) but rather by Dr. Juhan (UVA Wise Vice Chancellor)at my expulsion hearing on campus weeks later. I received the papers after being told by him when I went to the Clerk's Office myself.

And the school is in trouble another way for suspending my CHP.

Universities are required to follow FERPA. TITLE 20 > CHAPTER 31 > SUBCHAPTER III > Part 4 > § 1232g

From the UVA Wise Student Handbook:

UVa-Wise complies with the Family Educational Rights and Privacy Act of 1974 (FERPA). This act restricts the information concerning the students that the college can make available without the student‘s consent. A complete review of the Release of Student Information Policy may be obtained from the Registrar‘s Office. The University of Virginia‘s College at Wise maintains the confidentiality of education records; neither such records, nor personally identifiable information contained therein, except for directory information, shall be released without student permission except as authorized by the Act. Exceptions to this policy are only made under the conditions specified by the Family Educational Rights and Privacy Act. They are:

a) directory information (routine information concerning a student‘s name, address, telephone number, etc.),
b) release of information in an emergency where such information is necessary for the protection of the health or safety of the student,
c) release of information to other College staff members who have a legitimate educational need for the information,
d) in connection with financial aid for which a student has applied,
e) under court order or subpoena.

Problem for Wise: I had been trespassed from campus and my firearms confiscated by Campus Police days before they turned over a copy of the short story and the scanned image of the concealed carry permit to the Prosecutor in Scott County. How is it an emergency to ban my permit when they have my guns and I can't come on campus?

There wasn't a court order for the papers, they were the ones to initiate faxing them to the Commonwealth Attorney.

One final problem for Wise. Again from the Student Handbook:

The College is a community of scholars in which the ideals of freedom of inquiry, freedom of thought, freedom of expression, and freedom of the individual are sustained. It is committed to preserving the exercise of any right guaranteed to individuals by the Constitution.

DC v. Heller?

Of course later on it states in the Code of Conduct:

Generally, prohibited conduct for which a student is subject to discipline is defined as, but not limited to, the following: [...] 7. Possession, storage, or use of any kind of firearms, air rifles or air pistols, BB guns, brass knuckles, ammunition, firecrackers or fireworks, nunchakus, gasoline, explosives or other combustible materials, and knives with a blade longer than six inches, other than ones used as kitchen tools.

It's my understanding that a Code of Conduct can be construed as a type of contract, and that when a contract contradicts itself, there is a preference for the interpretation of the person who DID NOT CHOSE the language.

Needless to say I didn't choose the language in the Code of Conduct for UVA Wise.


My character has been defamed across the whole state (Richmond Times Dispatch, etc. quoted Sgt. Wyatt's "involuntarily committed" lie.)

My right to possess a firearm was Deprived Under the Color of Law.

Obtaining the TDO without a legitimate psychological evaluation was an Abuse of Process.

Not being served with a notice of my CHP being suspended was a violation of Due Process.

Charging me with these two crimes is Malicious Prosecution.

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