Doing Nothing is Not an Option

The Connecticut massacre defies description; it takes your breath away; it is a nightmare. Actions to prevent the slaughter of innocent children and adults cannot wait—the time is now for calm, non-partisan thinking and action.

There are things we can do here on the Northern Neck. First, we cannot allow our elected officials to run and hide from the needed, candid conversation. Second, we must make increased mental health a basic part of the solution.

Virginia has suffered two school shootings. Yet, in many respects our schools are no safer than before April 17, 2007. We need to talk calmly; we need to reject violence in every form. But here in the Northern Neck we elect an official arrested for domestic abuse, some have bumper stickers—“locked and loaded,” others scream and yell breaking up political discussions.

Elected officials often won’t communicate with the family of a school-shooting victim; specifically, Congressman Robert Wittman and state Delegate Margaret Ransone. Since the murder of our daughter-in-law, I have spent considerable money and time to help make our schools safer, I have written two books addressing the subject and I am co-writing another with the Virginia Tech families.

I have written both Wittman and Ransone with questions and comments on school safety. Both have at least two families with members who have been killed or wounded on college campuses—but that apparently counts for nothing. Ransone simply never answers. Wittman either never answers or his office obfuscates. Defending the Second Amendment and keeping guns out of the hands of the dangerously mentally ill are not mutually exclusive.

If the politicians won’t even talk about what needs to be done to prevent mass murders--nothing will be done. Nothing is not an option; the slaughter of 20 beautiful little children and six wonderful adults is proof of that. 

VIRGINIA TECH FOIA REQUEST

December 10, 2012

Mr. Larry Hincker

Vice President University Relations

315-F Burruss Hall (0229)

Blacksburg, Va. 22482

Re: Freedom of Information Request

Dear Mr. Hincker:

At the suggestion of Lynda Turrieta-McLeod, FOIA Administrator, Attorney General’s Office, I am submitting the following requests to you.

1. Would you send me all documents pertaining to the amount of money spent by Virginia Tech in appealing the Department of Education’s ruling that Virginia Tech violated the Clery Act?

2. Would you also send me any documents in possession showing payments or contributions to payments by any individuals, organizations, or foundations on behalf of Virginia Tech in the appeals process?

Thanking you in advance,

                                                                                    Sincerely,

                                                                                    David Cariens, Jr.

                                                                                    

ATTORNEY GENERAL'S INADEQUATE RESPONSE

           

            The Attorney General’s Office response to my Freedom of Information request pertaining to the Pryde and Peterson lawsuit against Virginia Tech is--not to release any documents. This lack of transparency regarding school shootings in Virginia is the norm and raises troubling questions. Consistently, pertinent information to these crimes has not been shared with investigators or the public.

            The failure of the State Police and the ATF to give documents concerning Seung-Hui Cho’s gun purchases to the Governor’s Review Panel Report means a critical part of the puzzle is missing for both investigators and the public.

            This pattern of not sharing vital information to people investigating school shootings is all too frequent in Virginia. At the time of the shooting at the Appalachian School of Law, the police and Attorney General’s office refused to make information public pertaining to a threat that one of the victims received.

            Now, the Attorney General’s office refuses to make public any documents pertaining to its hiring of Dr. Dennis Mileti as an expert consultant for the state in the Pryde and Peterson trial. So, the question remains, why was Mileti paid over $27,000.00 in consultation fees? He appears to posses few if any qualifications to give expert testimony on mass shootings. Was this some sort of ‘ole boy’ network at work? I am really at a loss to see what Mileti could supply that is worth $27,000.00.

            If you look at Mileti’s biography he specializes in natural disasters, earthquakes, and volcanoes. The Attorney General did not call him to testify. Here is Mileti’s biography:

            Dr. Mileti is Professor Emeritus at the University of Colorado at Boulder, where he served as Chair of the Department of Sociology and as Director of the Natural Hazards Center—the U.S.’s national clearinghouse for social and behavioral science research on hazards and disasters.

            Dr. Mileti is the author of more than 100 publications, most of which are on the societal aspects of hazards and disasters. His book Disasters by Design summarized and assessed knowledge in all disciplines and U.S. national policy for hazards and disasters. He was the founder and coeditor-in-chief of the all-hazards and all-disciplines journal Natural Hazards Review.

            He has served on a variety of advisory boards, including the Committee on Natural Disasters in the National Research Council; the Board of Visitors to FEMA’s Emergency Management Institute; the Board of Directors of the Earthquake Engineering Research Institute; the Advisory Board to the U.S. Geological Survey’s Research Program on Earthquakes and Volcanoes; the Expert Advisory Panel for the National Institute of Standards and Technology’s study of evacuation of the World Trade Center towers on 9/11; the American Society of Civil Engineers’ Expert Panel for the Army Corps of Engineers’ assessment of the New Orleans levee failures, for which he was given the Outstanding Civilian Service Medal by the Department of the Army; and as a member of the California Seismic Safety Commission. Dr. Mileti is currently a member of the START Center at the University of Maryland, which is a Department of Homeland Security National Center of Excellence for research on terrorism. He also serves on the NRC’s Committee to Evaluate the U.S.’s National Tsunami Warning Program and on the Board of Directors of the Southern California Earthquake Center.

Here is the response from the Attorney General’s office:
COMMONWEALTH of VIRGINIA

Office of the Attorney General

December 6, 2012

David Cariens

Kilmarnock, Virginia 22482

            Re:  Freedom of Information Request

Dear Mr. Cariens;

            This office is in receipt of your request for records made in accordance with the Virginia Freedom of Information Act, 2.2-3700 et seq.

            You have asked for several different categories of documents pertaining to Dr. Dennis Mileti, an expert witness retained to testify in the Pryde and Petersen trial. You requested the “document review” itemized by Dr. Mileti as well as Dr. Mileti’s review of “documents from their expert,” “Laughery deposition and attachments,” and Dr. MIleti’s review of “Morva documents.”

            Counsel’s communications with Dr. Mileti including counsel’s requests that Dr. Mileti review certain documents were done in anticipation of litigation, and were made for use during litigation. They reflect counsel’s legal theories and constitute the work product of defense counsel. These materials are work product prepared for use in litigation and will be withheld pursuant to Virginia Code 2.2-3705 (3) which creates an exclusion from the Freedom of Information Act for such work product.

            Dr. Mileti’s “write up of draft opinions,” notes of telephone conversations with Ed.  Spencer, Kim O’Rourke, Lisa Wilkes and attorneys, and the unobtrusive indicators study are not in the possession of this Office. Furthermore, and such documents created by Dr. Mileti for use in litigation constitute work product which is exempt from disclosure pursuant to Virginia Code 2.2-3705.1 (3).

            “Deposition guidance for our attorneys,” “bibliography preparation for deposition” and any notes, records or documents related to “position plan development,” were created by Dr. Mileti for use in the litigation and they constitute work product which is exempt from disclosure pursuant to Virginia Code 2.2-3075.1 (3).

            None of the documents you refer to in paragraphs 5 and 6 of your letter of November 26, 2012 are in the possession of this office.

            All of the documents that you have requested relate to an expert witness retained to testify in a lawsuit. As such, these materials, which approximate 500 pages, constitute “work product complied specifically for use in litigation” pursuant to Virginia Code 2.2-3705.1 (3). For this reason, these documents will not be released.

                                                                      Sincerely,

                                                                           signed

                                                                      Peter R. Messitt

                                                                      Senior Assistant Attorney General

Rebutting Bowes

Richmond Times-Dispatch

Letter-to-the-Editor

Editor:

The recent article by Mark Bowes on gun sales and reduced crimes may be a classic example of manipulation of the facts. First, the Times-Dispatch asked VCU Professor Thomas Baker to do their research. Baker studied under pro-gun Professors Gary Kleck and Marc Gertz at Florida State. The paper apparently wanted the end result to be pro-gun rights. There are scholars whose research is not tainted by past associations. Second, the spike in Virginia gun sales is probably an anomaly directly attributable to the hysteria (fed by manufacturers and gun shop owners to increase sales) that President Obama is going to take guns away from law-abiding citizens. Therefore the results (and conclusions) are skewed.

The Times-Dispatch has retreated from the outstanding investigative journalism done in connection with the shooting at Virginia Tech. The paper now outsources its work. With the departure of reporter David Ress, the Times-Dispatch apparently has not found anyone to carry on his hard-hitting research and writing.

David Cariens

FREEDOM OF INFORMATION REQUEST CONCERNING THE PRYDE/PETERSON LAWSUIT

In reviewing the expenses incurred by the Virginia Attorney General’s office incurred in connection with the Pryde/Peterson trial, I came across a puzzling bill for over $27,000.00 for an “expert” in earthquake and natural disasters. I have therefore filed a Freedom of Information request to determine how and why the state used Dr. Mileti.

Virginia Attorney General Kenneth Cuccinelli

Office of the Attorney General

900 East Main Street

Richmond, Va. 23219

REF: Freedom of Information Request

Attorney General Cuccinelli:

Dr. Dennis Mileti was paid $27,097.64 for his expertise in connection with Pryde and Peterson trial, according to Mileti’s itemized expenses provided to me by your office on July 12, 2012. Please provide me all written documents, notes, and materials referred to in Dr. Mileti’s invoices dated July 30, 2011, August 29, 2011, September 29, 2011, February 22, 2012, and March 15, 2012. I would specifically like the package to include, but not be limited to, the following:

1.     All written documents and notes pertaining to his teleconferences with all attorneys, as well as with Kim O’Rourke, and Lisa Wilkes. The Write-up of draft opinions referred to in Dr. Mileti’s invoice for the period of July 13, 2011-July 28, 2011.

2.     All written material pertaining to Dr. Mileti’s “document review and opinion formulation.”

3.     The deposition “guidance preparation for our attorneys” referred to in the August 29, 2011 invoice.

4.     All notes, records, and documents related to the “position plan development” referred to in the invoice dated September 29, 2011.

5.     The “scope unobtrusive indicators study” referred to in the February 22, 2012 invoice, as well as all notes and documents from the “unobtrusive indicator teleconference w/Ed Spence” referred to in the same invoice.

6.     All documents and notes referred to by “case preparation” in the March 15, 2012 invoice.

Thank you in advance for your cooperation.

                                                                                    Yours sincerely,

                                                                                   

                                                                                    David Cariens

                                                                        

Reinstate Steger

Attorneys for the two Virginia Tech victims’ families who sued the school for failing to warn that a killer was on the loose on April 16, 2007, have appealed to the Virginia Supreme Court to reinstate school President Steger as a defendant.

There are, however, serious questions whether the families have a chance. The Virginia court system is politicized, and judges seem to care more about ideology than about truth.

Unlike other states’ Supreme Courts, Virginia’s highest court usually rules based on the far right ideological premise that organizations, businesses, and government agencies have absolutely no obligation to warn despite overwhelming evidence of imminent violence. The need-to-warn concept is “foreseeablility.” Other states’ courts recognize it; Virginia’s supreme court usually doesn’t.

The plaintiffs’ lawyers correctly argue that Steger has not been truthful in recounting April 16, 2007.  Following the shooting, Steger hired a crisis-management firm. That team prepared Steger for a Meet the Press interview that aired on September 23, 2007 in which he said a suspect was taken into custody after the dormitory double homicide—two hours before the Norris Hall massacre. Steger’s words were a lie. If Steger will lie on national television, can we believe anything he says?

Evidence in court documents, in the Governor’s Review Panel Report, and Steger’s own words show that he has repeatedly been less than candid and frequently untruthful.

Virginia judges are appointed by the state legislature. Brutally powerful right-wing politicians tried to derail the families’ lawsuit. These same politicians will work behind-the-scenes to ensure Steger is not held accountable.

When I wrote the book on Virginia’s first school shooting at the Appalachian School of Law, our Kilmarnock lawyer asked me, “How many corrupt judges have you uncovered?” I hope none of those, or like-minded, judges are on the Virginia Supreme Court.

            

Cuccinelli—One White Lie After Another

There seems no end to the depths the Virginia Attorney General will sink in order to deny justice to the families of the victims of the Virginia Tech shootings.

 The Attorney General’s office has appealed to the Virginia Supreme Court to overturn the jury decision that Tech failed to live up to its obligation to warn the campus that a killer was on the loose.  In fact, the Attorney General’s office may have broken the law in writing the appeal. You cannot represent to a court something that you know is false—and that is what the Attorney General’s office appears to have done. Furthermore, if you present something to a court leading to an incorrect inference because you have not presented all the facts, it is tantamount to a lie. And Cuccinelli’s office appears to have done that as well.

In describing the morning of April 16, 2007, Cuccinelli’s denies a duty to warn because “multiple police forces on the scene did not believe the campus was in danger.” That is simply not true. The erroneous decision that the dormitory double homicide was a “domestic incident” was the decision of one man alone—Chief Wendell Flinchum. Furthermore, the dead male was gay; there was no reason for the dead female’s boyfriend to be jealous.

Without presenting evidence (because there is none), Cuccinelli’s office says school President Steger “understood … that the perpetrator likely left the campus” and did not warn. The Attorney General appears to believe that a killer is any less dangerous after committing murder than before?

Finally, the Supreme Court is not told of the thirteen bloody footprints leading away from the crime scene and a bloody thumbprint on a doorknob leading to a stairwell and a building exit. That alone is evidence to warn immediately.  

            

It's Past Time, Speaker Boehner

Now Is the Time. Actually, It's Past Time, Speaker Boehner

By Colin Goddard

Trayvon Martin, Gabrielle Giffords, The Virginia Tech 32, The Columbine 13. Reagan, JFK. All shot by people who shouldn't have had access to guns.

After each of these tragedies, leading politicians have said, basically, "Now is not the time to talk about gun policy."

Last year, House Speaker John Boehner said it a nanosecond after the attack on Congresswoman Giffords and the others in Arizona.

The fact is, the tragedies that make national headlines represent only a small fraction of the thousands of deaths that occur every year at hands of people who never should have had guns. It is easier to take home a gun in our country than an adopted dog from a shelter.

Convicted felons, domestic abusers, the dangerously mentally ill, even terrorists, can buy guns in most states through gun shows or private sales over the internet with no background check whatsoever.

If Speaker Boehner knew firsthand what it was like to lose a loved one because of one of these people who never should have had a gun, would he think differently? Would it then be time to talk about gun policy?

On Monday, I'm going to try to meet with Speaker Boehner, and as many Members of Congress as I can. I want to ask simple questions like, "Do you think a convicted felon should be able to buy, carry or use a gun anywhere in our nation?"

I'll be joined by 31 of my friends, friends who I probably wouldn't have ever met except that they, too, were victims of guns in the hands of dangerous people who never should have had them. I've written to the Speaker (and other Congressional leaders) asking to meet. As of this point I've heard he's too busy.

I was shot four times at Virginia Tech -- five years ago this coming Monday, April 16. It's a sickening and surreal feeling, to be lying on the floor, hearing a constant BANG! BANG! BANG!, feeling the warmth your own blood, smelling what smells like fireworks on the 4th of July. It's absolutely terrifying, and it's nothing like you see glorified in movies.

I talk about it at length in a documentary about the shooting called Living for 32 that is going to be watched at more than 32 colleges and universities Monday evening, and I'll be discussing my experience after the movie in a livestreamed Q and A with NBC News' Luke Russert.

After the fourth shot, the shooter must have thought he got me, so he moved on. Seconds later, he shot himself, but I didn't learn that until the SWAT team stormed the room.

What does it say about Mr. Boehner if he, as the Speaker of "The People's House" will not meet with me and 31 other victims of gun violence to discuss how our tragedies might have been prevented?

I know the Speaker has met with people from the gun industry and their lobbyists at the NRA -- the House recently passed a bill to force every state to allow in people carrying loaded, concealed guns from every other state -- your own state requirements be damned.

Is Mr. Boehner scared to face the consequences of his actions, or complete lack thereof, as he has done the bidding of the gun lobby? Does he just want to sweep us under the carpet? We know he is an emotional guy. Might facing the real human toll of his political expediency force him to rethink his actions? Or might it just be embarrassing?

We must demand change now. We can't wait for another mass-shooting -- another "Breaking News" banner with people crying, ambulances screaming, flowers piling, then candles lighting. And, given the reaction of Congress I wouldn't count on them to do anything no matter how horrific the next tragedy might be.

That's why we need to take matters into our own hands. We can't hope for something to change anymore. We have to make it change. We have to put the realities of what happens when dangerous people have easy access to guns right in their face.

Every day in America, 32 people are murdered by guns. That's a "Virginia Tech" happening in our nation every single day. That's why there will be 32 of us walking the halls of Congress next week. But we will not just be there speaking for ourselves and our lost loved ones. We will be speaking for all of the 30,000 Americans who are lost to guns every year -- all of their families loved ones and communities -- all Americans who are sick and tired of living with the preventable tragedy of gun violence in our nation and who demand accountability from our elected leaders to end it.

Mr. Speaker, we're coming over to your office this week, and the offices of many of your colleagues. If you think it's not "appropriate" to talk about gun violence during the week that marks both Virginia Tech and Columbine -- the worst shootings in our country's history -- then when would it be for you?

Mass Shootings—As American As Apple Pie

            The American tradition continues; another mass shooting, this time at a Sikh temple in suburban Milwaukee, Wisconsin. Seven people are dead including the shooter and three more are wounded.

            Once again there are condemnations, words of sympathy—and, there is no attempt to do anything about the growing gun violence in this country. The politicians just ring their hands, shed tears for the cameras, and then shrug their shoulders and walk away. The shooting epidemic has now reached the point where an average of 32 people are killed every day in the United States by gun violence. To quote the Brady Campaign “We are better than this”—particularly if we really are the greatest country on earth.

            Slightly more than two weeks after James Holmes butchered 12 innocent people and wounded 58 others in an Aurora, Colorado movie theater, Wade Michael Page walked into a Sikh temple in Oak Creek, Wisconsin on Sunday morning, August 5, 2012, and turned his automatic weapon on unarmed worshipers. The death toll could have been higher. Had Page waited another hour, the temple would have been full of Sunday worshipers.

            Among the wounded survivors is 51-year-old police officer Brian Murphy. Murphy was shot at least eight times and is in critical condition, but is expected to survive. The police are calling the shooting a possible domestic terrorist incident, and have released few details. It is known, however, that Page was a singer in a skinhead band called “End Apathy.” Acquaintances have described him as a white supremacist.

            The suspect enlisted in the army in 1992 and in 1994 and was assigned to the psychological operations unit at Fort Bliss, Texas. In 1998, he was discharged under “honorable conditions,” which is not an honorable discharge. A pattern of misconduct, including being drunk on duty, led the military to discharge him.

NOW SUBURBAN DENVER: WHEN IS THE RIGHT TIME?

            Following the Tuscon shooting that killed six and seriously wounded 12 others including Representative Gabriele Giffords, members of the Brady Campaign asked to meet with House Majority Leader John Boehner to discuss ways to curb gun violence. Boehner said that “now is not the right time.” On the fifth anniversary of the Virginia Tech shooting Brady Campaign officials asked for a meeting with La. Sen. Vitter to discuss a bill he had introduced making it easier for the mentally ill to buy guns. Vitter was too busy.

            Congressman Boehner isn’t too busy to visit tanning booths and Vitter found time to frequent New Orleans prostitutes.

            Now we have 12 dead and some 50 wounded in a movie theater in suburban Denver. So when is the right time to discuss ways to keep guns out of the hands of convicted felons, convicted domestic abusers, terrorists, and mentally ill people who are a threat to themselves and others?

            The guns rights advocates’ assault on the First Amendment rights of freedom of speech and dialogue with elected officials has been blistering and deadly. With rare exception, politicians are so afraid of the National Rifle Association they won’t even talk to people looking for ways to curb this epidemic of violence.

            Following the massacre at Virginia Tech, UCLA Professor Douglas Kellner monitored coverage on the Sunday news shows on all the major networks. The results debunked claims of liberal media bias. What he found was a feeding frenzy of right wing, pro-gun advocates. Only one gun control advocate spoke, and that was just for a few moments on ABC’s “Good Morning America.”

            So, when will our elected officials respect the First Amendment as much as they fear the Second? When will they engage in a dialogue?

Freedom of Information Request

June 30, 2012

Virginia Attorney General Ken Cucinnelli

Office of the Attorney General of the Commonwealth of Virginia

900 East Main Street

Richmond, Virginia 23219

REF: Freedom of Information Request

Attorney General Cucinnelli,

I am requesting all documents relating to the amount of money your office and the state of Virginia (including Virginia Tech University) spent on the Pryde and Peterson lawsuit.

Specifically, I would like all documents showing all money and expenses paid to individuals, lawyers and their staff for legal service from:

McGuire Woods

One James Center

901 East Cary Street

Richmond, Va. 232190

I would also like the names of all deputy attorney generals and their staff members used in the state’s defense? What are their salaries (daily salary rate if possible), and how many days did each devote to the trial?

Would you also send me a list of all expenses, travel, miscellaneous, etc. associated with the state’s defense?

Thanking you in advance,

                                                                                    Yours sincerely,

                                                                                    David Cariens

                                                                                      

cc: Governor McDonnell

The Medieval Mind of Kurt Hofmann

Kurt Hofmann is a former paratrooper who was paralyzed in a car accident in 2002. He has become a gun rights advocate and writes a blog entitled, Armed and Safe. The Mission Statement of his blog reads:

Armed and Safe is a gun rights advocacy blog, with the mission of debunking the "logic" of the enemies of the Constitutionally guaranteed, fundamental human right of the individual to keep and bear arms.

I can be reached at 45superman@gmail.com.You can follow me on Twitter at http://twitter.com/45superman.

Mr. Hofmann, instead of examining the constitutional arguments of the second amendment, engages in immature name calling with those who disagree with him. Certainly that is right under the first amendment—freedom of speech. But such words are indicative of an individual who relies on emotion and not thought. Hofmann is telling so much more about himself than those he criticizes. Furthermore, it is somewhat disturbing when he picks on those who have been wounded in school shootings.

Everyone has the right to deal with and heal from catastrophic events in their own way; no one can tell someone else how to heal from being shot four times. But Hofmann feels he has that right, and he has labeled Colin Goddard an alchemist for working for the Brady Campaign. Hofmann’s cheap shot is that Goddard is making money off the Tech massacre. In fact, if Goddard wanted to make money off that tragedy he would work for the National Rifle Association (NRA). The NRA has money to burn and buys one politician after another. The NRA is not only rolling in cash, it has not hesitated to exploit school shootings. It is not Goddard who is getting rich off school shootings.

It is troubling that Hofmann would stir his cauldron of medieval hatred, paranoia, and self-pity in order to defame a young man who is walking around with bullets in him, bullets that could move at any time and cause potentially serious damage.

I can only assume Hofmann will not stop with Goddard. I know of a young woman, injured in a school shooting, who is walking around with a bullet lodged next to her spine. One tiny move and she will be paralyzed for life. I wonder how Hofmann will attempt to degrade her because she wants to keep guns out of the hands of convicted felons, terrorists, convicted domestic abusers, and those who are dangerously mentally ill?

 Or, Mr. Hofmann, why not attack the father who had to be put on suicide watch after his child was gunned down in a school shooting; the father who cannot hold down a job because he is so emotionally and psychologically upset, and may now lose his home. You should have a field day making fun of him.

What a shame. Just because you have suffered a terrible trauma, Mr. Hofmann, does not mean that you have the right to cheaply criticize others who handle trauma differently.

GUN SHOP THAT SOLD TO CHO CLOSES

Homeland Security News Wire

Business

Gun shop which sold gun to Virginia Tech killer closes its doors

Published 21 June 2012

Madison, Wisconsin-based online weapon dealer TGSCO, which gained notoriety after it was disclosed that it had sold guns to three individuals – including the Virginia Tech killer — who then went on to commit mass killings, closed its doors last month

Madison, Wisconsin-based online weapon dealer TGSCOM, which gained notoriety after it was disclosed that it had sold guns to three individuals – including the Virginia Tech killer — who then went on to commit mass killings, closed its doors last month.

The three killers are:

•               Seung-Hui Cho used a .22-caliber handgun purchased through TGSCOM when he killed thirty-two people at Virginia Tech in April 2007

•               Stephen Kazmierck, who killed five people in a Northern Illinois University classroom in 2008, bought two empty magazines and a holster through a company site

•               George Sodini, who killed three women when he opened fire at a Pittsburgh-area health club in 2009, bought an empty magazine and a magazine loading apparatus from the company

MyrtleBeachOnlinereports that the store may have delivered the weapons to Cho, Kazmierck, and Sodini, but it was forced to close after dozens of customers complained that they never received the guns they purchased from the company. The newspaper says that the Wisconsin Better Business Bureau has catalogued nearly 200 complaints from consumers in forty-four states between January and this week, accusing TGSCOM of charging them but failing to deliver on their orders.

The Green Bay Police Department and the FBI have launched their own investigations of the business.

Eric Thompson, the business owner, told the Green Bay Press-Gazette that he was doing his best to resolve the problems the business is facing, and that he is trying find investors who could help him reopen. He said he doubted he would face criminal charges.

The Press-Gazette reported in 2011 that an inspector from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives found a number of violations at TGSCOM in 2009, including selling a gun without the required waiting period; selling a gun to someone who did not answer all the required background questions; and failing to maintain proper records. Two years earlier, in 2007, ATF detected other violations by the company, including selling ammunition to an underage customer.

The AP reports that there may be another angle to the story: Thompson and his wife have been locked in a bitter divorce battle, and the company is one of the couple’s main assets. The lawyer of Thompson’s wife has now filed papers with the judge, asking him to place the company under the control of a third party in order to assess the company’s value, and establish Thompson’s “motivation and intent” in closing it.

Judge Uphold Negligence Verdict

Judge upholds negligence verdict in Virginia Tech shootings and reduces award

By Tonia Moxley
381-1675

Roanoke Times

ROCKY MOUNT – On Wednesday presiding Judge William Alexander upheld the March jury verdict against the state for Virginia Tech’s handling of the April 16, 2007, shootings, but reduced the awards from $4 million per plaintiff to $100,000 each.

That may not be the end of the five-year-old case, however. Both parties are expected to ask the Virginia Supreme Court to hear their arguments, but for different reasons.

Plaintiffs’ attorney Bob Hall said after the hearing that his clients intend to appeal to the top court to reinstate university President Charles Steger as an individual defendant. Alexander dismissed Steger on a technicality shortly before the case went to trial, leaving the commonwealth as the sole defendant.

In a statement released after the hearing, Virginia Attorney General Ken Cuccinelli wrote that while he’s pleased with the reduction in the awards, "we continue to maintain that the court has misapplied Virginia law in its finding that the commonwealth or its employees could be liable under the facts of this case. Because of that, we are currently reviewing our options."

Under the Virginia Tort Claims Act, negligence claims against the state are capped at the higher of $100,000, or the amount of any liability policy maintained to insure against such negligence. The state has said in hearings and filings that no relevant liability policies are known to exist.

On March 15, after eight days of emotional and sometimes confrontational testimony, a Montgomery County jury awarded the families of the late Erin Peterson and Julia Pryde $4 million each. They found that university officials, including Steger, breached a duty to warn the women of reasonably foreseeable harm from a gunman known by police and officials to be on the loose.

That gunman, troubled Tech student Seung-Hui Cho, shot to death two students in a dormitory room shortly after 7 a.m., then opened fired in Norris Hall classrooms at about 9:50 a.m., killing 30 more and wounding dozens of others. Pryde and Peterson were fatally shot in Norris.

Police who worked the dormitory crime scene, and university officials convened to respond to it testified that they believed the shooting was domestic, and posed no threat to the wider community. No warning was issued to the campus, but an email notification describing a "shooting incident" was sent minutes before Cho entered Norris.

The Attorney General’s office, representing Tech, had asked Alexander in a motion to set aside the jury’s verdict and find in favor of the commonwealth, based in part on a state Supreme Court ruling handed down in April.

In Burns v. Gagnon, the court found that a public high school assistant principal, who was told that a student might be in a fight and did nothing to prevent it had no legal duty to intervene, or to warn of the potential danger. The student was attacked and permanently injured.

"We have a case this court must follow," Assistant Attorney General Mike Mellis told Alexander. "We have the Burns case."

"The Burns case is problematic. There’s no question about it," Alexander said. "But there are enough factual and legal differences" between the two that the state Supreme Court ought to look at the Tech case and clarify the issues.

The judge went on to defend the verdict in the Tech case, saying that it was supported by the facts. Furthermore, Alexander said, the court properly found that Steger and Tech Police Chief Wendell Flinchum did have a duty to warn Pryde and Peterson of foreseeable harm.

"Thank you all very much, and we’ll see what happens," Alexander said.

The judge is expected to enter a final order in the Tech case in the next month or so. Both parties then have 30 days to file notice of any appeals.

Cantor's Duplicity

Eric Cantor’s meeting with representatives of the Brady Campaign on the fifth anniversary of the Virginia Tech shootings exposed the House Majority Leader’s hypocritical duplicity.

Talking to those gathered in his office, Cantor expressed his “full support” for keeping guns out of the hands of dangerous people. However, the Majority Leader, who had just returned from speaking at an NRA convention, refused to sign a Statement of Principle capturing the ideas he had just agreed to. The statement calls for keeping guns out of the hands of those who are convicted felons, convicted domestic abusers, terrorists, or people who are dangerously mentally ill.

The Statement of Principle is not a pledge, and Cantor cannot say he is opposed to signing such documents when they advance his career. He willingly signed Grover Norquist’s pledge not to raise taxes. Apparently when it comes to the lives of students, staff, and faculty the Majority Leader says no dice—there is nothing in it for me. What a shame. Voters are crying out for politicians with backbone and principle, and Cantor took a pass. He apparently prefers to gamble with people’s lives rather than act responsibly.

He volunteered to those gathered that you have to set standards low around here (Congress), and then proved it. He told them he would not allow a vote on a bill strengthening background checks in order to buy a gun because a Democrat sponsors the bill.

DOE RESPONSE TO APPEAL

            The following is the letter of response I received in response to my appeal of Judge Canellos’s decision on Virginia Tech:

Depart of Education

May 10, 2012

Dear Mr. Cariens:

Thank you for your recent correspondence to Secretary Arne Duncan (Secretary) regarding the hearing official’s decision in the Virginia Polytechnic Institute and State University’s (Virginia Tech) fine. Because Federal Student Aid (FSA) is chargedwith enforcing the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics (Clery Act), your letter was referred to FSA for consideration.

FSA takes its responsibility to monitor and enforce Clery Act compliance very seriously. Accordingly, shortly after the tragic events of April 16, 2007 FSA began a focused program review to evaluate Virginia Tech’s actions in light of its own published policies and procedures and the Clery Act’s timely warning requirements. As you know, FSA issued a program review report that identifies certain findings non-compliance. After a very careful consideration of the  (sic.)Virginia Tech’s response to the program review report, FSA issued a Final Program Review Determination (FPRD) stating our conclusion that Virginia Tech, did in fact, fail to meet the timely warning requirements set forth in the Clery Act. Furthermore, FSA initiated a fine as result of the serious non-compliance documented in the FPRD. Virginia Tech appealed the fine action. As you know, the hearing official issued an initial decision which concluded that the fine should not be upheld.

Notwithstanding that decision, FSA continues to believe that the law and the facts of the case support our finding and that those findings support the imposition of a fine. Accordingly, FSA filed an appeal of the haring official’s March 29, 2012 decision with the Secretary on May 4, 2012.

FSA appreciates your interest in this case and your advocacy on behalf of campus crime victims. If you have any questions, please feel free to contact Mr. James Moore, Team Leader of the Clery Act Compliance Team on 215-656-6495 or at james.moore@ed.gov.

Sincerely,

(signed)

Mary E. Gust

Director

Administrative Actions and Appeals Service Group

Appeal Of Judge Canellos's Decision on Virginia Tech

I have sent the following appeal of Judge Canellos's decision on Virginia Tech to the Secretary of Education. I am asking the Secretary to overturn Canellos's decision that Tech did not violate the Clery Act and to reimpose the fines.

APPEAL OF JUDGE ERNEST C. CANELLOS’S

DECISION TO

OVERTURN THE DEPARTMENT OF EDUCATION’S RULING THAT

VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY

VIOLATED THE CLERY ACT

ON APRIL 16, 2007

On March 29, 2012, Judge Ernest C. Canellos ruled “… it is ORDERED that Virginia Polytechnic Institute and State University is relieved of any obligation to pay to the United States Department of Education a fine for an alleged failure to follow the timely warning requirements of the Clery Act.

An examination of the judge’s rulings indicates his decision was based on flawed evidence and should be overturned. Virginia Polytechnic Institute and State University, the Virginia Tech Police Department, and the lawyers representing the state knew of these flaws when the appeal was heard. It is therefore highly possible that those arguing the case before the judge on behalf of the State of Virginia either withheld pertinent information, or for some unexplainable reason, were ignorant of widely known facts about the violation of the Clery Act on April 16, 2007. The evidence would seem to point to the former. In either case, the judge’s ruling was based on flawed testimony and therefore, the decision should to be reversed.

There were two critical facts, not presented to the judge, demonstrating that Virginia Polytechnic Institute and State University was in violation of the Clery Act as it stood on April 16, 2007.

First, the judge ruled that it was reasonable for the police and the school to believe that the murder of Emily Hirscher and Ryan Clark sometime around 0715 on the morning of April 16, 2007, was a “domestic issue”—the implication being a love triangle between Ryan Clark, Emily Hirscher, and her boyfriend, Karl Thornhill. The fact is, that it was well known before 0715 on April 16, 2007, in the immediate aftermath of the two murders that day, that Ryan Clark had no romantic interest in Emily Hirscher or any woman in that dormitory much less the campus. A “domestic issue” (as portrayed by the school and the police) was highly unlikely. Yet, the school and its legal representatives continue to perpetuate this fallacy as justification for not complying with the Clery Act—and the judge accepted the state’s position without question. (It is disappointing that Judge Canellos did not show more intellectual curiosity and ask the lawyers representing Virginia Tech for a definition of the words, “domestic issue.”)

Second, the judge’s decision rests largely on the timeline of events following the double homicide on the morning of April 16, 2007. That timeline was inaccurate in the Governor’s initial report, in the first revision of that report, and remains inaccurate in the final version. The timeline was inaccurate when the judge made his decision.

To base an analysis of a crime on the most critical, but deeply flawed aspect of that crime, is a cardinal error. Then, to base a legal judgment on that same flawed timeline is tantamount to a miscarriage of justice. Had the full facts about the possible “domestic issue” been presented to the judge, it would have been readily apparent that the criteria for an immediate warning, under the Clery Act, had been met:

1. One dead and one seriously wounded student, bloody footprints leading away from the crime scene, and a bloody thumb print on a hallway door—there could be no other conclusion that the murderer was on or near the campus.

2. The school violated its own rules for warning under the Clery Act. Some eight months earlier the school had immediately warned the campus when a convict, William Morva, killed two people while escaping custody. There was no evidence that Morva (versus the evidence on the morning of April 16, 2007) was on campus and the school issued a warning. If you apply to the April 16 double homicide the same timeline from when Tech became aware of Morva to when the school issued a warning, Tech would have issued a campus-wide warning between 0812 and 0816—one hour after Clark was killed and Hirscher seriously wounded.

3. Others on campus and in Blacksburg, complied with the Clery Act, and they did so having less knowledge of the 0715 crime than did Chief Flinchum, the Virginia Tech Police, and Virginia Tech President Charles Steger: In a move compliant with the Clery Act, the Virginia Tech Office of Continuing and Professional Education “locked down” at 0800. In a move compliant with the Clery Act, the Blacksburg public schools “locked down” at 0852. Between 0900 and 0915, the Virginia Tech Veterinary College locked its doors—in affect, a “lock down,” again, in compliance with the Clery Act. If these actions were consistent with the Clery Act, then the Steger administration’s (and Virginia Tech’s) inaction was not in compliance with the Act.

To quote the judge’s ruling, “The Clery Act mandates that institutions notify the campus community when certain enumerated crimes occur. These crimes include murder, sex offenses (forcible or non-forcible), robbery, aggravated assault, burglary, motor vehicle theft, manslaughter, and arson. The statute states that an institution “… shall make timely reports to the campus community on crimes considered to be a threat to other students and employees … that are reported to campus security or local law enforcement agencies. Such reports shall be provided to students and employees in a manner that is timely and that will aid in the prevention of similar occurrences.”

“The statute does not define timely reports, but the legislative history provides some insight into the purpose of a timely warning as well as how soon such a report should be issued. “

“ED’s (Education Department) implementing regulation captions the statutory provision as ‘timely warning’ and states that an institution must, in a manner timely and will aid in the prevention of similar crimes, report to the community on the aforementioned enumerated crimes that are reported to campus security authority, and considered by the institution to represent a threat to students and employees. ED specifically determined that it would not define timely reports in the regulation:”

“The Secretary does not believe a definition of timely reports is necessary or warranted. It must be decided on a case-by-case basis in light of all the facts surrounding a crime, including factors such as the nature of the crime, the continuing danger to the campus community, and the possible risk of compromising law enforcement efforts.”

The Department of Education, and the Secretary of Education specifically, did not define “timely,” saying that “timely” must be decided on a case-by-case basis. Because of this reasoning, it is logical to expect the case-by-case basis will be decided according to the gravity of the situation. If you remove the “domestic issue” from the double homicide, the gravity is serious—the evidence points to a killer on the campus and an immediate warning is called for.

If you accept the contention that under the Clery act a warning is issued on a case-by-case basis, then it only makes sense that the people in a position of authority should act based on the standards of crime scene analysis. The standard operating procedure of a crime scene investigation, when there is one dead, one wounded, and bloody footprints leading away from the scene, is to issue an immediate warning. This is an action consistent with the Clery Act as it existed on April 16, 2007.

Virginia Tech Police Chief Flinchum, who arrived at the crime scene at 0800, has testified under oath that he had the authority to issue a campus-wide alert. The chief therefore, broke the standards of his profession (and the Clery Act) by not exercising that authority and issuing the warning. Indeed, Chief Flinchum has said that he doesn’t recall ever raising the possibility of a campus-wide warning with Tech President Charles Steger. Again, a violation of basic police practices occurred—practices that the Clery Act relies on. The Clery Act definition of “timely” relies on sound police practices. The failure to adhere to basic crime-scene investigative practices is evidence of violation of the Clery Act.

Tech President Steger admitted under oath, “we didn’t know where the gunman was.” This admission, coupled with the bloody footprints leading away from the crime scene, clearly shows that the standards for an immediate warning—under the Clery Act as it existed in April, 2007—were met.

I need to address the timeline once more, because in crime scene analysis, the timeline is critical. Chief Flinchum has testified under oath that he knew about errors in the timeline and did not call them to anyone’s attention because he “assumed” they knew and the errors were “common knowledge.” A school official testified that she notified then-Governor Kaine’s office of the errors but the Governor’s office refused to correct them. These errors and the willful suppression of the corrections are evidence of hiding a violation of the Clery Act, because the Clery Act specifically pertains to the warning of the campus in a timely manner.

For the reasons stated above, I ask the Secretary of Education to overturn Judge Ernest C. Canellos’s ruling, and reinstate the decision that Virginia Tech did break the Clery Act. I also ask that the fines be re-imposed.

David Cariens, Jr.