704 S.E.2d 365 (Va. 2011), 091934, DiGiacinto v. Rector and Visitors of George Mason University

Docket Nº:Record 091934.
Citation:704 S.E.2d 365, 281 Va. 127
Opinion Judge:S. BERNARD GOODWYN, Justice.
Party Name:Rudolph DIGIACINTO v. The RECTOR AND VISITORS OF GEORGE MASON UNIVERSITY.
Attorney:Rudolph DiGiacinto, pro se. E. Duncan Getchell, Jr., State Solicitor General (Kenneth T. Cuccinelli II, Attorney General; Charles E. James, Jr., Chief Deputy Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Stephen R. McCullough, Senior Appellate Counsel; David G. Drummey, Assis...
Judge Panel:Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.
Case Date:January 13, 2011
Court:Supreme Court of Virginia
 
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Page 365

704 S.E.2d 365 (Va. 2011)

281 Va. 127

Rudolph DIGIACINTO

v.

The RECTOR AND VISITORS OF GEORGE MASON UNIVERSITY.

Record No. 091934.

Supreme Court of Virginia.

January 13, 2011

Page 366

Rudolph DiGiacinto, pro se.

Page 367

E. Duncan Getchell, Jr., State Solicitor General (Kenneth T. Cuccinelli II, Attorney General; Charles E. James, Jr., Chief Deputy Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Stephen R. McCullough, Senior Appellate Counsel; David G. Drummey, Assistant Attorney General, on brief), for appellees.

National Rifle Association of America (Robert Dowlut; Lindsay K. Charles, on brief), in support of appellant, amicus curiae.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.

OPINION

S. BERNARD GOODWYN, Justice.

[281 Va. 130] In this appeal, we consider whether 8 VAC § 35-60-20, a George Mason University regulation governing the possession of weapons on its campus, violates the Constitution of Virginia or the United States Constitution.

I. Background

Rudolph DiGiacinto filed a complaint seeking declaratory judgment and injunctive relief against the Rector and Visitors of George Mason University (collectively GMU) in the Circuit Court of Fairfax County. DiGiacinto petitioned the circuit court to enjoin GMU from enforcing 8 VAC § 35-60-20 against him. The regulation provides as follows:

Possession or carrying of any weapon by any person, except a police officer, is prohibited on university property in academic buildings, administrative office buildings, student residence buildings, dining facilities, or while attending sporting, [281 Va. 131] entertainment or educational events. Entry upon the aforementioned university property in violation of this prohibition is expressly forbidden.

8 VAC § 35-60-20. DiGiacinto is not a student or employee of GMU, but he visits and utilizes the university's resources, including its libraries. He desires to exercise his right to carry a firearm not only onto the GMU campus but also into the buildings and at the events enumerated in 8 VAC § 35-60-20. DiGiacinto argued in his complaint that 8 VAC § 35-60-20 violates his constitutional right to carry a firearm, that GMU lacks statutory authority to regulate firearms, and that the regulation conflicts with state law.

GMU filed a demurrer and plea of sovereign immunity in response to DiGiacinto's complaint. GMU contended that while DiGiacinto could properly pursue constitutional claims to openly carry a firearm on campus, sovereign immunity barred all claims based on Virginia's concealed firearms statute, Code § 18.2-308, and claims challenging GMU's regulatory authority. The circuit court granted the plea of sovereign immunity regarding the statutory concealed firearms claims, but ruled that DiGiacinto could proceed on the open carry of firearms claims. The parties stipulated to the facts asserted in their trial briefs and, after hearing the legal arguments, the circuit court took the matter under advisement.

The circuit court held that sovereign immunity barred a declaratory judgment proceeding concerning the scope of GMU's regulatory authority, but even if sovereign immunity did not bar such a claim, GMU had the requisite authority to adopt 8 VAC § 35-60-20. The circuit court also held that 8 VAC § 35-60-20 was constitutional under both the Constitution of Virginia and the United States Constitution. The circuit court referred to District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and the facts, as stipulated by the parties, in explaining its decision:

Heller does not define what constitutes a sensitive place, but the Supreme Court lists as examples schools, [and] government buildings, " [p]resumably because possessing firearms in such places risks harm to great numbers of defenseless people; that is, children," [and] the buildings are important to government functioning.

[281 Va. 132] George Mason University notes there are 5,000 employees and 30,000 students enrolled, ranging from age 16 to even senior citizen age. Three-hundred fifty-two in the incoming Freshman class will be under the age of 18 beginning this semester. Approximately 50,000 elementary and high school students attend summer camps at the University. They use these academic

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buildings, which are part of the regulation. There is also a child development center in which approximately 130 student/employee children are enrolled [in the] preschool and ... both the libraries and the Johnson Center ... are regularly frequented by children ages two to five years old.

High school graduations, athletic games, concerts and circus performances are just a few of the family activities occurring on campus. The individuals who are part of this large community of interests clearly are the type of individuals whose safety concerns on a public university campus constitute a compelling State interest. The buildings and activities described in the regulations are those wherein the individuals gather: therefore, [they] are sensitive places as contemplated by [ Heller ]....

I find the regulation is constitutional.

The circuit court dismissed DiGiacinto's complaint with prejudice and ordered that GMU's regulation be sustained. DiGiacinto appeals.

II. Analysis

DiGiacinto argues that the circuit court erred in holding that GMU's regulation does not violate Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution. He also contends that the circuit court erred in sustaining GMU's plea of sovereign...

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