WOODBRIDGE, Va. -- A new lawsuit says some of Virginia's gun-related laws are unconstitutional. The federal complaint is being filed April 11, 2019 in the the Eastern District of Virginia.
A military veteran in Fredericksburg, Virginia, was prosecuted for merely holding a B.B. gun down by his leg, upside down with the trigger hanging down near the ground. He then leaned the gun up against his own fence.
The veteran was arrested for "assault by intimidation" and "brandishing" for merely holding a gun with other people around down next to his leg. He asked trespassers from his own backyard what they were doing there across his own fence in a private parking lot next door.
The Fredericksburg prosecutor argued that Wolff was guilty of frightening people with his B.B. gun because he grabbed the B.B. gun on the way out his back door for self-protection. The prosecutor turned self-defense into guilt of assault by intimidation.
Virginia attorney Jonathon Moseley filed a "declaratory judgment" lawsuit, at: http://www.jonathonmoseley.com/ComplaintDeclaratoryJudgmentFederal.pdf. Details are at: http://www.jonathonmoseley.com/brandishing.html.
Criminal statutes can be ruled "void for vagueness" if they do not establish clear standards for a law-abiding person to follow or for a court to follow.
"Nobody knows what 'brandishing' means," explains Moseley, "because dictionary definitions disagree with one other. So effectively it becomes anything a prosecutor wants to claim." These laws are unconstitutional under the Due Process clause of the U.S. Constitution, the lawsuit alleges.
Virginia Code 18.2-282 and in some situations Virginia Code 18.2-57 are also unconstitutional because they violate the Second Amendment. A person cannot be prosecuted for merely holding or carrying a firearm. The Second Amendment cannot be limited by someone's feelings.
The lawsuit also claims that the right to keep and bear arms includes actually pointing a gun to discourage, ward off, or deter an attack. Moseley says: "It is very strange for the law to argue that it is okay to actually kill someone in self-defense, but it is a crime to display a firearm to make someone stop, turn around, and go away."
Mr. Wolff is asking for donations to a legal defense fund at: https://www.gofundme.com/prosecuted-for-quotopen-carryquot-need-transcripts
SOURCE Attorney Jonathon Moseley