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WINCHESTER — A lawsuit challenging Winchester’s ban on guns at some public events and places is continuing.
On Monday in Winchester Circuit Court, Judge William Warner Eldridge IV allowed plaintiffs Brandon Angel, Shannon Nuckols, Mark B. Stickley, Loren Wilkerson and Stonewall Arms to continue their litigation. He dismissed the Gun Owners Foundation, Gun Owners of America, Virginia Citizens Defense League, and U.S. Law Shield of Virginia from the suit. Eldridge ruled the effect of the ban on gun rights groups was abstract while it directly affected the local plaintiffs.
In a party-line vote in January, the Democratically-controlled Virginia legislature approved a law allowing local governments to ban guns at government buildings and government-run public places such as parks. On Feb. 9, the Democratically-controlled City Council approved the ban in a 7-2 party-line vote. About 100 of the approximately 120 people who commented on the ban when it was proposed opposed it.
The lawsuit was filed in April. Plaintiffs asserted it criminalizes constitutionally-guaranteed behavior and endangers them.
Angel, a Kearneysville, West Virginia, resident, and proponent of openly carrying guns, said the ban could deter him from openly carrying if he holds a pro-gun rally in Winchester. Nuckols, owner of Mac Shack Express, a food truck that operates in Winchester and a concealed carry pistol permit holder, wanted to carry to defend herself from robbers. She said she's been previously robbed.
Stickley and Wilkerson are also permit holders. Stickley, owner of Runners Retreat at 135 N. Loudoun St. on the Loudoun Street Mall, said city events on the mall might restrict his ability to carry his gun to and from work. Wilkerson said she wants to carry for personal protection at city parks and park buildings.
Stonewall Arms is a gun store at at 2426 Valley Ave. Andrew John "A.J." Williams, store general manager, said he regularly transports ammo and guns through Winchester for business purposes and fears arrest if he carries near a city event.
Attorney Gilbert Ambler, who represents the plaintiffs, wrote in a motion last month that the case should continue because the state constitutional rights of his clients, and all Virginians, were being violated.
"By subjecting members of the public to intrusive searches as they go about their day, without so much as reasonable suspicion of crimes committed, let alone probable cause, the ordinance harms the rights of all in Winchester to be free from general searches," Ambler wrote. "The Winchester ordinance has caused, and continues to cause, irreparable harm that is ripe for injunctive relief."
In seeking to dismiss the case, attorneys Nicholas J. Lawrence and Michael E. Thorsen, who represent the city and Police Chief John R. Piper, wrote last month that the gun groups didn't have legal standing. They also argued that until it was changed in 1970, the Virginia constitution adopted in 1776 made no reference to the collective right to keep and bear arms and referred strictly to a "well-regulated militia."
"The provision addressed primarily the dangers inherent in standing armies and the necessity of strict subordination of the military to civil authorities," Lawrence and Thorsen said. "It said nothing about the rights of individuals to carry weapons in parks, recreation centers or at all."
Wilkerson said in an interview after the hearing that the case has many unique aspects and is still in its early stages.
"It's a case that the [state] courts have not ruled on the specific constitutional provisions in this context," he said. "Fortunately, we've got a good judge who's going to to give it his careful attention."
Ambler said he was encouraged Eldridge allowed the case to move forward despite dismissing the gun groups from it.
"It's an acknowledgement that there is a problem with this ordinance," he said. "We can talk about the legal details of who is allowed to challenge it, but, at the end of the day, the ordinance is a problem."
Eldridge said arguments at an upcoming hearing that hasn't been scheduled yet would help him decide how to rule. He noted the case is the first of its kind in Virginia, meaning there aren't specific state legal precedents to rely on.
"There are still open constitutional issues to be decided based on the facts. There is no bright-line precedent," he said. "I want to make sure I get it right."
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