VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF …bloximages.chicago2.vip.townnews.com/fredericksburg.com/... · 2014. 12. 9. · 2. VCDL, as an organization, and through its individual

Prepared by Robert Herron Law, P.C.

•

VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF FREDERICKSBURG

VIRGINIA CITIZENS DEFENSE LEAGUE,

and

PATRICIA WEBB, Plaintiffs,

v.

CITY OF FREDERICKSBURG,

Defendant.

Serve: Kathleen Dooley City Attorney 601 Caroline St, Ste 200B Fredericksburg, VA 22401

Case No.: {! L 1 L/- f8 3

COMPLAINT FOR TEMPORARY INJUNCTION, DECLARATORY JUDGMENT, AND PERMANENT INJUNCTION

' )

COMES NOW, Plaintiffs, Virginia Citizens Defense League and Patricia Webb, by and

through counsel, pursuant to Virginia Code §8.01-184 and §8.01-620, et seq., and submit this

Complaint for Temporary Injunction, Declaratory Judgment, and Permanent Injunction, and in

support of say the following:

. Parties and Background

1. PlaintiffVirginia Citizens Defense League (hereinafter "VCDL") is a non-profit,

grassroots organization, incorporated in the state of Virginia, that is dedicated to advancing the

right of all Virginians to keep and bear arms as guaranteed by the United States Constitution and

VCDL, eta/. v. City of Fredericksburg Complaint for Temporary Injunction, Declaratory Judgment, and Permanent Injunction

Page I of II

Prepared by Robert Herron Law,P.C.

.·

Virginia Constitution.

2. VCDL, as an organization, and through its individual members, regularly participates

in public debate, legislative lobbying, and seeking government accountability as it relates to

regulation of firearms rights and the right to keep and bear arms.

3. Plaintiff Patricia Webb (hereinafter "Webb") is a firearms dealer, licensed pursuant to

18 U.S.C. §921, et seq., who owns and operates Gadsden Guns Inc., located in Beaverdam,

Virginia.

4. As a federally licensed firearms dealer, Webb buys and sells firearms in the regular

course of business, including firearms that may be offered for sale through auctions.

5. As a private citizen, Webb is an owner and collector of firearms. If a desirable

frrearm is available for sale, especially if it is a rare or collectible firearm, Webb may attempt to

purchase the frrearm if it meets her specific criteria (e.g., price, condition, value, etc.).

6. The Fredericksburg Police Department (hereinafter "Police Department") is the law

enforcement agency of the City of Fredericksburg. As such, the Police Department is an "agent"

of the City of Fredericksburg.

7. Gun buy backs have a tendency to attract old and unused firearms. Often, family

members will turn in a firearm that they inherited, without ever knowing or appreciating the

potential value of the weapon. Occasionally, one of these old and unused firearms will be a one-

of-a-kind collectible that is irreplaceable. Some of these firearms may also have important and

irreplaceable historical significance as well.

8. As a result, the auction of firearms that were received through a gun buyback

program has the potential to be valuable to a firearms dealer, as well as a collector.


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General Assembly Regulates Gun Buybacks

9. In 2012, the General Assembly enacted Va. Code §15.2-915.5, which sets forth

specific requirements and restrictions before any locality may participate in a gun buyback

program.

10. Specifically, Code §15.2-915.5(A) provides:

No locality or agent of such locality may participate in any program in which individuals are given a thing of value provided by another individual or other entity in exchange for surrendering a frrearm to the locality or agent of such locality unless the governing body of the locality has enacted an ordinance, pursuant to §15.2-1425, authorizing the participation of the locality or agent of such locality in such program.

(emphasis added)

11. Furthermore, subsection (B) requires that:

a. Any firearm received through a buyback program must be offered for sale by

public auction or sealed bid to a federally licensed frreanns dealer (certain

prohibited weapons are excepted), and

b. The public auction must be publicized in accordance with specific rules for timin

and circulation.

c. Lastly, the locality may only destroy a weapon if it was unable to sell the firearm

through the public auction process.

12. The General Assembly's intention is clearly evidenced in Code §15.2-915.5: In order

to participate in a gun buyback, localities must frrst engage in the public and transparent

legislative process of adopting an authorizing ordinance, and localities are prohibited from

destroying frrearms received through a gun buyback unless the firearms are frrst offered for


Page 3 of 11

auction.

Fredericksburg Police Department Gun Buyback

13. On November 27, the Police Department announced the "Fredericksburg Gun Give

Back Event," which is scheduled to be held on Saturday, December 13, 2014, at the

Fr~depcksburg Police Headquarters. (A screen shot of the Facebook announcement is attached

as Exhibit A.)

14. Within the Facebook post, the Police Department included a flier (attached as Exhibit

B) that provided the following additional details:

For every firearm turned in, our generous sponsor Ms. Doris Buffett will donate $100 to one of these local charities: Empower House, Cops and Kids (Shop with a Cop), Micah Ministries, Thurman Brisben Homeless Shelter

All firearms turned over to Police wiD be rendered safe and destroyed. You can be sure your unwanted firearms will never be used to commit a crime.

(original emphasis omitted) (emphasis added)

15. The individuals surrendering the weapons will be allowed to choose which of the fo

charities they wish to receive their $100 donation.

16. Through comments on the Police Department's Facebook page, the Police

Department confirmed that the firearms received through the buyback program will not be

Prepared offered for auction as required by Code §15.2-915.5(B). by Robert Herron Law,P.C.

VCDL, et al. v. City of Fredericksburg Complaint for Temporary Injunction, Declaratory Judgment, and Permanent Injunction

Page4 of 11


to

Summary of the Conflicting Interpretations of Code §15.2-915.5

17. The central dispute lies with the construction of Code §15.2-915.5(A), which applies

... [participation] in any program in which individuals are given a thing of value provided by another individual or other entity in exchange for surrendering a firearm to the locality ...

(emphasis added)

18. On their Face book page, the Police Department asserted that, because the $100 will

be given to a charity (as a third-party beneficiary), they believe the gun buyback is .exempted

from the requirements of Code § 15.2-915.5.

19. Stated differently, according to the Police Department, Code §15.2-915.5 does not

apply to their gun buyback, because (i) the ''thing of value" is the $100 donation, and (ii) the

donation is going to the charity-as opposed to the individual surrendering the firearm.

20. The Police Department's interpretation misses the mark.

21. True, the charities will receive the monetary donation. However, the $100 donation i

not the only "thing of value" involved in the transaction.

22. The "things of value" are (i) the promise to make the donation and (ii) the

individual's ability to choose the third-party beneficiary of the transaction.

23. There is no doubt that a promise is a "thing of value" that can be purchased in a

contract. See Brewer v. First Nat. Bank of Danville, 202 Va. 807, 815, 120 S.E. 2d 273, 279

(1961) (confirming that a promise can be "bought and paid for" with valuable consideration).

24. Within the context of a unilateral contract, as in the case at bar, once the accepting-

performance is complete, the performer's ;'previously inchoate rights [to the unperformed

VCDL, eta/. v. City of Fredericksburg Complaint for Temporary Injunction: Declaratory Judgment, and Permanent Injunction

Page 5 of 11

Prepared by Robert Herron Law, P.C.

promise] vest and become legally enforceable. Young v. Birth-Related Neurological Injury, 46

Va. App. 558, 620 S.E. 2d 131, 139 (2005) (citations omitted).

25. Lastly, it is beyond question that parties can direct the benefit of their bargains to

third party beneficiaries. See generally Brewer, 202 Va. at 815, 120 S.E. 2d at 280 (describing

that consideration will support a contract where the benefit "moves to a third party"); Evntl.

Staffing Acquisition Corp. v. B&R Constr. Mgmt. Inc., 283 Va. 787,792-793, 725 S.E. 2d 550,

553 (2012) (describing that "it is well established in this Commonwealth" that a third-party

beneficiary may have standing to enforce a contract).

26. In the case at bar, the Police Department's promise to pay $100 to a cl)arity, and the

individual's ability to choose the third-party beneficiary, are clearly "things of value" that are

given to the individual exchange for the firearm.

27. As such, Code§ 15.2-915.5 applies to the Police Department's gun buyback.

Plaintiffs Harmed by Defendant's Violation of Code §15.2-915.5

28. On information and belief, the City of Fredericksburg has not enacted an authorizing

ordinance to participate in a gun buyback program as required by Code §15.2-915.5(A).

29. The failure to enact an authorizing ordinance has deprived VCDL, its members, and

the public at large of the opportunity to engage in the public debate, public commenting, and

general legislative process that accompanies the enactment of city ordinances.

30. As a result, the City of Fredericksburg is attempting to engage in a gun buyback

program without frrst completing the transparent and public legislative process that is required

under Code §15.2-915.5(A).


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31. Furthermore, the Police Department has announced a clear and unequivocal intention

to destroy all firearms that were turned over, without first offering them for auction as required

by Code §15.2-915.5.

32. As a licensed firearms dealer and small business owner, Plaintiff Webb's livelihood

depends on her ability to provide valuable firearms to her ·customers at a price that will offer her

a reasonable profit for her efforts. The firearms collected through the gun buyback may contain

one-of-a-kind weapons of irreplaceable value. Even without exceptional value, the firearms may

be suitable to retail sales in Webb's store, Gadsden Guns Inc.

33. The failure to offer the firearms for auction will deprive Webb and other firearms

dealers of the opportunity to review and bid on potentially valuable and irreplaceable firearms

that she ~ould then sell in the regular course of business.

34. As an individual firearms collector, Webb enjoys the preservation and maintenance o

existing collectible firearms. Rare and unique firearms are of limited availability, and as a

collector, Webb may only have limited opportunities to buy collectible frrearms. Naturally, once

a collectible or historically significant frrearm is destroyed, the loss is irreplaceable.

35. The Police Department's clear intention to destroy all frrearms received through the

gun buyback, in violation of Code §15.2-915.5(8), will deprive Webb and similarly situated

collectors of the opportunity to purchase and preserve potentially irreplaceable firearms, the loss

of which may never be accurately quantified.

Reguest for Temporary Injunction Pending a Full Hearing

36. Plaintiffs repeat their allegations in paragraphs 1 through 35 of the Complaint as if


Page 7 of 11

Prepared by Robert Herron Law. P.C.

fully set forth herein.

37. Pending a full hearing and argument in this court, Plaintiffs request a Temporary

Injunction prohibiting the City of Fredericksburg, and its agent the Police Department,

a. From proceeding with the gun buyback program scheduled to occur on December

13, 2014.

b. From proceeding with any other gun buyback program without a properly enacted

authorizing ordinance.

c. In the alternative, from destroying or disposing of any firearms collected during

the gun buyback program, without first offering the firearms for auction.

38. A temporary injunction is necessary because Plaintiffs have no adequate remedy at

law and will likely suffer irreparable harm without a temporary injunction.

a. There is no administrative remedy available to Plaintiffs.

b. Defendant's violation of Code §15.2-915.5 cannot be reduced to an award of

money damages.

c. The likely injury to Plaintiff Webb, as a dealer and as a collector, is distinct and

cognizable, but it is too speculative to reduce to an award of money damages.

d. VCDL, its members, and the public at large have no legal cause of action to seek

redress for being deprived of the opportunity to engage in the public debate,

public commenting, and general legislative process that would have certainly

accompanied the enactment of the required, but non-existent, authorizing

ordinance.

39. Defendant is unlikely to suffer irreparable harm during a temporary injunction.


Page 8 of II


a. The Police Department's gun buyback is not time-sensitive and would not be

jeopardized by a delay.

b. Most importantly, even during a temporary injunction, the City of

Fredericksburg can enact an authorizing ordinance and continue with the

gun buyback program in accordance with Code §15.2-915.5. (Indeed, such a

course of action would likely render this entire litigation moot.)

40. The likelihood of success favors the Plaintiffs. The intent of the General Assembly is

clear, and it requires a strained reading of Code §15.2-915.5 to conclude otherwise.

41. A temporary injunction clearly benefits the public interest.

a. The public interest is clearly served by the City of Fredericksburg complying wi

state law.

b. The public interest will be harmed if the City of Fredericksburg is allowed to

proceed with the gun buyback without engaging in the nonnallegislative process

of adopting the authorizing ordinance. In essence, the City of Fredericksburg

would then be allowed to hold a gun buyback, without the public participation or

accountability, which the General Assembly has clearly mandated should be

subject to the nonnallegislative process.

c. The public interest will benefit in that potentially valuable and irreplaceable

firearms will be preserved for posterity and history, as well as offered for sale on

the free market.


Page 9 of 11

Request for Declaratory Judgment


fully .set forth herein.

43. Plaintiffs request a Declaratory Judgment that the Police Department's gun buyback

would be in contravention of Code §15.2-915.5, that Subsection (A) requires the City of

Fredericksburg to adopt an authorizing ordinance prior to holding any such gun buyback

program, and that Subsection (B) prohibits the City of Fredericksburg from destroying any

firearms before first offering them for auction.

Request for Permanent Injunction


fully set forth herein.

45. Plaintiffs request the issuance of a Permanent Injunction prohibiting Defendant from

holding any gun buyback program without complying with the requirements of Code §15.2-

915.5.

WHEREFORE, Plaintiffs respectfully request this Court grant a Temporary Injunction as

described above pending a full hearing of this matter, award a Declaratory Judgment to

Plaintiffs, and grant a Permanent Injunction as described above, and such further relief as justice Prepared by Robert and equity may require. Herron Law,P.C.

VCDL, eta/. v. City of Fredericksburg Complaint for Temporary Injun.ction, Declaratory Judgmen~ and Permanent Injunction

Page 10 of II


Robert W. Herron III, Esq. ROBERT HERRON LAW, P.C. One Columbus Center, Suite 600 Virginia Beach, Virginia 23462 Telephone: (757) 333-7529 Facsimile: (888) 511-0652 VSB: 78583 Counsel for Plaintiffs

Respectfully submitted,

VIRGINIA CITIZENS DEFENSE LEAGUE

PATRICIA WEBB

By: .

C el


Page 11 of 11

ExhibitA ·

. .

• Fredericksburg Police Department No"trnber 2.7 · 4(11

Our upcoming Gun Give Back event will allow you to turn in any unwanted firearms (NO QUESTIONS ASKED) and give back to the community! For every firearm we collect, our sponsor will donate S 100 to a local charity!

iJ Victoria Waldron, Christina Rydell Nye, Troy Dillard and 31 others like this.

L;J 15 shares

Q View 11 more commenn

II II

Clay Kle mm Is the donation considered a tax deduction? Dtcember 2 at 934am

Andrew Loposscr Yea, this is s tupid. Contact me lf you're Interested In giving away your unwanted firearm. 6 1 Deumber 2 at 10 24am

Ralph Carl Patrick Catrone By saying ' no questions asked', isn 't that asking criminals t o dispose of evidence you could hnve used to ~olve crimes?

Also, there's no mention of any effort to restore stolen firearms to their rightful owners ff one was turned tn. ()ecernber 2 at lO:l4am

Q 2 RepUes

Sun Colden Lol. ....... no questions asked December 3 at 2·29pm

Kim Bl.shop This Is not a good lde01. Yt.StRrd01y .11 4•47am

Devin Banker The criminals can now kill people and then get their guns destroyed. Its perfectl 23 hrs

Exhibit B

Documents

VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF …bloximages.chicago2.vip.townnews.com/fredericksburg.com/... · 2014. 12. 9. · 2. VCDL, as an organization, and through its individual