Last year, this blog reported that the U.S. Supreme Court would be ruling on a key Second Amendment case arising in Chicago that may have a bigger impact on state and local governments than the D.C. gun ban case previously decided.  The post was entitled, “U.S. Supreme Court to hear Key Second Amendment Case.”

My post suggested that one of the key issues to be decided was whether the Second Amendment applied to state (and localities) via the Due Process Clause or the Privileges and Immunities Clause.

Today, the case was decided. 

Justice Samuel Alito, writing for a four-justice plurality, based the application of the Second Amendment — which on its face only applies to the federal government — to the states by means of the Due Process clause of the Fourteenth Amendment.  A fifth justice, Clarence Thomas, appeared to base the incorporation of the Second Amendment upon the Privileges and Immunities Clause, the SCOTUSblog and the ABAJournal report.   A Washington Post article is here.

The fact that only one of the nine justices seemed to apply the Privileges and Immunities Clause seems to doom this argument for now.  Instead, the Due Process Clause of the Fourteenth Amendment seems to be the means by which the Second Amendment — like the other amendments — will be applied to the states.

The decision did leave the door open for reasonable state and local regulation of guns as a U.S. Constitutional matter.  Outright bans like that in Chicago seem to be in serious question.  What lesser level of regulation will be considered reasonable will be determined by future litigation. And lots of it.

In his opinion, Justice Alito issued an assurance that “doomsday” had not come to state and local gun regulation.  Likely not.  And the result was no great surprise to Supreme Court-watchers.  But now the path to legally challenge state and local gun regulations is clear, and states and local governments will inevitably see increased litigation as a result.

Douglas Berman, professor of law at Moritz College of Law, said bluntly today on the SCOTUSblog, “Even before having a chance to skim the Supreme Court’s important McDonald ruling concerning the application of the Second Amendment to the states, I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms.”

States (and localities) had better be ready, locked and loaded.

The U.S. Supreme Court denied the request for a writ of certiorari by the City of Virginia Beach to review the Virginia Supreme Court’s decision overturning the City’s noise ordinance in Tanner v. City of Virginia Beach, 277 Va. 432, 674 S.E.2d 848 (2009).  The Daily Press article on the writ denial is here, and the Virginia Lawyer’s Weekly article on the same topic is here.

Unfortunately, the U.S. Supreme Court did not ride to the aid of Virginia Beach, Virginia localities and others dealing with the aftermath of Tanner.

This leaves Virginia localities to grapple with various issues.  Local government drafting issues were discussed in my first blog article from last year, while larger questions of law were discussed in my second blog article on the topic. 

The two biggest issues that remain post-Tanner have nothing particularly to do with noise ordinances.  Tanner may cast a big shadow.  The question is — how big?

The first issue is the arguable inconsistency in how the Virginia Supreme Court has interpreted the Virginia and U.S. due process clauses.  The Virginia Supreme Court has repeatedly held them to be co-extensive.  And yet, the Virginia Supreme Court has ruled in Tanner that the “due process clause” is violated by the “reasonable person standard” as inherently vague and subjective.  This is inconsistent with how the federal courts have dealt with the issue, including the Fourth Circuit Courts of Appeals, which have upheld the standard as inherently objective.  This is discussed further in my earlier article.   

What does this mean for other due process cases down the road?  Are the two due process clauses no longer the same legal standard?

The second issue is also significant one in legal jurisprudence — that is, the arguable end of the objective “reasonable person” standard in Virginia, at least in criminal statutes and ordinances.  Since violations of most local government ordinances are misdemeanors, this falls heavily upon Virginia localities.  Already, criminal cases have been thrown out by judges in localities because the ordinance in question used the “reasonable person” standard.

But is Tanner limited merely to criminal statutes and ordinances?  What is Tanner‘s effect in the civil context?  After all, the “reasonable person” standard is used frequently and routinely in statutes, ordinances, regulations, and contracts.  Is it subjective and vague in all contexts? 

Since law school, I have been taught and read in case after case that the “reasonable person” standard is objective.  This has been sustained in legal jurisprudence through the centuries.  Now, in Tanner, the Virginia Supreme Court has apparently held that it is subjective (at least in Virginia, in this case).  Does this mean that the venerable “reasonable person” standard is now off-limits, or at least inadvisable in any context that calls for an objective standard for clarity and enforceability, be it statute, ordinance, regulation or contract?

Many local government attorneys would say “no.”  The Virginia Supreme Court made its ruling in a criminal context, applying a familiar due process vagueness standard — “that a statute or ordinance be sufficiently precise and definite to give fair warning to an actor that contemplated conduct is criminal.”  Tanner, 277 Va. 432, 439, 674 S.E.2d 848 (2009).  The Court used the word “context” several times in its discussion of  the ‘reasonable person” standard, and even distinguished the use of the “reasonable person” standard in a noise ordinance from other criminal contexts.  The analysis and reasoning the Supreme Court used in Tanner simply does not apply to a civil ordinance, and may not even apply to a non-noise ordinance.

Because of this criminal – civil distinction, many localities have sought to address Tanner by making the noise ordinance a civil affair, thus avoiding the  case’s criminal due process analysis. 

As I write, 2010′s Senate Bill 246 (Watkins) and several identical bills are making their way through the Virginia General Assembly.  If adopted, these bills would clarify that localities have the authority to impose civil penalties on noise ordinance violators.  Many localities intend to retain the often-preferred “reasonable person” standard to regulate noise, but avoid the constitutional infirmity of the Virginia Beach criminal noise ordinance.

So, the “reasonable person” is not dead. It’s being resuscitated as we speak.  If it needed such heroic measures at all.

What do you think?  Is the “reasonable person” standard dead in Virginia? On life support? Or, alive and well, just not for use in defining criminally loud noise?

These questions arise from the Virginia Supreme Court’s reliance on the “Due Process Clause” – all caps, with no citation – to strike down the City’s noise ordinance for being unconstitutionally vague.   The Court mentioned U.S. Supreme Court opinions whenever referring to this clause, so it appears the Court applied the Due Process Clause of the U.S. Constitution, found in the Fourteenth Amendment, Section 1.

If so, this presents the first question:  Has Virginia’s highest court has ruled contrary to the United States Supreme Court in interpreting the federal Due Process Clause?

The justices in Washington, D.C. have repeatedly upheld some version of the “reasonable person” standard in Due Process Clause vagueness challenges.  See Grayned v. City of Rockford, 408 U.S. 104 (1972), Cameron v. Johnson, 309 U.S. 611, 616 (1968),  Kovacs v. Cooper, 336 U.S. 77, 79 (1949).  For example, the nation’s highest court has opined that so long as an ordinance contains an “ascertainable standard” such as “the sensitivity of a hypothetical reasonable man,” the ordinance is not unconstitutionally vague.  Coates v. City of Cincinatti, 402 U.S. 611, 613-614 (1971).

Not surprisingly, the Fourth Circuit Court of Appeals has reached the same result. See Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 493 (4th Cir. 1983) (“we have no difficulty sustaining the Section [prohibiting “loud, disturbing … noise”] against the charge of vagueness.”); Asquith v. City of Beaufort, 139 F.3d 408, 411 (4th Cir. 1998) (upholding local noise ordinance against constitutional due process vagueness challenge because it had been interpreted by the state supreme court to prohibit noises “unreasonably loud under the circumstances.”)

Given this, is it possible that the Virginia Supreme Court intended to apply the state due process standard found in Article I, Section 11 of the Virginia Constitution?  It does not appear so.  The Court did not cite the Virginia Constitution, or even cite its own precedent which has interpreted the Virginia due process standard.  However, if the Court did rely upon the Virginia Constitution, it seems that the federal Due Process Clause now provides a different standard of protection than its Virginia counterpart.

But, if so, this raises a second, more troubling question.

The Virginia Supreme Court has always declared Virginia’s due process protection to be “co-extensive” with the federal Due Process Clause of Section 1 of the U.S. Fourteenth Amendment.  E.g., Willis v. Mullett, 263 Va. 653, 657 (2002).  In its Tanner opinion, while the Virginia Supreme Court cited numerous federal cases to support its opinion, it did not address the “co-extensive” issue.  In fact, the Court declined to discuss this issue when explicitly requested to do so.  In its Petition for Rehearing, the City of Virginia Beach fairly presented the second question:  Does the Virginia Constitution’s due process protection remain co-extensive with the U.S. Constitution’s Due Process Clause?

Two major, alternative questions remain after the Tanner decision:  (1) Has the Commonwealth’s highest court interpreted the U.S. Constitution’s Due Process Clause differently than the U.S. Supreme Court?  (2) Has the Virginia Supreme Court, without discussion or comment, uncoupled the formerly identical constitutional due process protections so they are no longer “co-extensive?”

As big an impact as the Virginia Supreme Court’s striking down the “reasonable person” test as a criminal standard will have on local noise regulation, the answers to these two questions may have an even greater long-term impact on constitutional jurisprudence.