Are heavily-armed private militia members who patrol around a Virginia government building breaking the law?

Plain-English summary

Delegate Charniele Herring brought a serious public safety question to the AG: on July 9, 2019, heavily-armed private militia members showed up at the Pocahontas Building during a Special Legislative Session, where Virginians had lined up to meet with legislators. The militia members carried assault-style weapons, wore military fatigues and accessories, patrolled the crowd, and took positions suggestive of a security force, all without any affiliation with state or local police. They weren't in line to enter, and weren't trying to meet with legislators. With the upcoming State Crime Commission session in mind, the Delegate asked whether such conduct violates Virginia law.

AG Mark Herring's analysis worked through three layers of Virginia law and concluded that yes, the conduct described can violate § 18.2-174:

1. Constitutional baseline (Va. Const. art. I, § 13). Virginia's Bill of Rights, the "strict subordination clause," provides that "the military should be under strict subordination to, and governed by, the civil power." The Framers' intent was to ensure "no private army or militia would have any justified existence or authority apart from the federal, state, or local authorities." The clause is "closely intertwined with the survival of representative government and personal freedoms" (quoting Howard's Commentaries on the Constitution of Virginia).

2. Statutory reservation to police (§ 15.2-1704(A)). Local police forces are responsible for "the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws." Other Virginia statutes provide for cooperation among police forces in genuine emergencies (§§ 15.2-1724, 1726, 1734(A)). The peacekeeping function is statutorily reserved to "responsible to the people and answerable to the law" actors.

3. Criminal prohibition (§ 18.2-174). "Any person who falsely assumes or exercises the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or any local, city, county, state, or federal law-enforcement officer, or who falsely assumes or pretends to be any such officer, is guilty of a Class 1 misdemeanor."

The AG drew on the Charlottesville Circuit Court's 2018 decision in City of Charlottesville v. Pennsylvania Light Foot Militia, which arose from the August 2017 Unite the Right rally. That court catalogued the concerns when "a group comes as a unit, in uniform, with military or law enforcement weapons, equipment, tactics, and appearance, under a clear chain of command authority, looking like the police or military, and they are neither a part of or subject to the local, state, or federal military or police."

The opinion emphasized that nothing in this analysis denies anyone the right to speak, assemble, petition, or bear arms. But when a private group projects law enforcement authority and engages in crowd control at a public area, they usurp a role reserved to law enforcement and can violate § 18.2-174.

The Fourth Circuit's United States v. Chappell (2012) provided rhetorical support, noting that "adding to the legitimate number of officers an untold flock of faux policemen" would risk expanding the oppressiveness of the police function.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's strict subordination clause (Va. Const. art. I, § 13) is part of George Mason's Declaration of Rights. The provision reads: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

A.E. Dick Howard's COMMENTARIES ON THE CONSTITUTION OF VIRGINIA explains that the clause "ensures the right of all citizens ... to live free from the fear of an alien soldiery commanded by men who are not responsible to law and the political process." The Governor, as Commander-in-Chief under art. V, § 7, is the constitutional anchor: the military authority is integrated with the popular will through the elected Governor.

The City of Charlottesville v. Pennsylvania Light Foot Militia decision, from a Charlottesville Circuit Court in July 2018, applied the strict subordination clause to enjoin paramilitary groups from returning to Charlottesville after the August 2017 Unite the Right rally. The court emphasized that "[w]ith armed but unauthorized militia groups ... bringing weapons and other military equipment into the fray, law enforcement's job is much more difficult and dangerous."

Section 15.2-1704(A) statutorily reserves to local police forces the responsibility for crime prevention, criminal apprehension, life and property safeguarding, peace preservation, and law enforcement. Where extra help is needed, Virginia provides three statutory channels: § 15.2-1726 (reciprocal agreements between localities), § 15.2-1724 (sending officers across the Commonwealth in emergencies), and § 15.2-1734(A) (calling auxiliary police officers into service in emergencies).

Section 18.2-174 is the criminal prohibition. It punishes both actually exercising peace officer functions and merely pretending to be a peace officer. A Class 1 misdemeanor carries up to 12 months in jail and/or a fine up to $2,500.

The Fourth Circuit in United States v. Chappell, 691 F.3d 388 (4th Cir. 2012), in a different context, observed that "[t]he police function serves a significant salutary purpose in protecting public safety, but it also possesses an oppressive potential in the curtailment of liberty" and recognized the danger of "adding to the legitimate number of officers an untold flock of faux policemen."

Common questions

Q: Does the Second Amendment protect what the militia members were doing?
A: The AG explicitly preserved the right to bear arms. The question wasn't open carry as such; it was the combination of being armed, uniformed, organized as a unit, and projecting law enforcement authority at a public government building. That combination can cross into § 18.2-174 territory.

Q: What about the First Amendment right to assemble?
A: Same answer. The right to speak, assemble, and petition is protected. The opinion identifies the specific issue as private parties pretending to be peace officers, not the militia members' political views or assembly itself.

Q: What if the militia argues they were exercising their right to be a "well regulated militia"?
A: The Virginia Constitution's strict subordination clause and the Framers' intent foreclose that argument. As the Charlottesville court put it, "no private army or militia would have any justified existence or authority apart from the federal, state, or local authorities." A militia not under the civil power isn't the "well regulated militia" the Constitution contemplates.

Q: What conduct specifically can violate § 18.2-174?
A: The statute punishes (1) "falsely assum[ing] or exercis[ing] the functions, powers, duties, and privileges" of a peace officer, and (2) "falsely assum[ing] or pretend[ing] to be any such officer." Patrolling a crowd, projecting authority to manage it, dressing in uniform-style apparel, and acting as a coordinated unit can fall under either prong.

Q: What's the practical evidence of "false assumption" of peace officer functions?
A: The opinion identifies several markers from the July 2019 incident: coming as a unit, being heavily armed with assault-style weapons, wearing fatigues and military accessories, acting in coordinated fashion, patrolling a line of citizens, and projecting authority to manage the crowd. The Charlottesville court's list of indicators (uniform, weapons, tactics, chain of command, appearance) is also a useful guide.

Q: Is wearing camouflage by itself a problem?
A: The opinion does not single out clothing as dispositive. It's the totality: the visual presentation, the coordinated movement, the weapons, the patrolling. A single person in camo at a rally is different from an organized unit patrolling the line.

Q: How does this opinion compare to other states' anti-militia laws?
A: This opinion is rooted in Virginia's specific constitutional and statutory text. Other states have similar laws but with different language. The strict subordination clause in Va. Const. art. I, § 13 is one of the older versions of this principle in American law.

Q: Did this lead to legislative action?
A: The opinion was issued right before the General Assembly took up gun-violence legislation in the 2020 session. The substantive legal framework (§ 18.2-174) was already in place; the opinion was a clarification, not a request for new legislation.

Citations

The opinion rests on Va. Const. art. I, § 13; §§ 15.2-1704(A), 15.2-1724, 15.2-1726, 15.2-1734(A); § 18.2-174; A.E. Dick Howard's COMMENTARIES ON THE CONSTITUTION OF VIRGINIA; City of Charlottesville v. Pennsylvania Light Foot Militia (Charlottesville Cir. Ct. July 7, 2018); and United States v. Chappell, 691 F.3d 388 (4th Cir. 2012).

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/19-039-C-Herring-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Mark R. Herring
Attorney General

August 16, 2019

The Honorable Charniele L. Herring
Member, House of Delegates
Post Office Box 11779
Alexandria, Virginia 22312

Dear Delegate Herring:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You explain that, on July 9, 2019, heavily-armed private militia members[1] intimidated Virginians who lined up outside the Pocahontas Building to meet with and petition their representatives during a Special Legislative Session. You note that the militia members carried assault-style weapons, wore military fatigues and accessories, patrolled the crowd or took positions suggestive of a security force, and generally assumed the appearance of law enforcement officers. By your account, these militia members were not in line to enter the building and were not seeking to engage with members of the General Assembly. You express concern about similar conduct occurring at the upcoming session of the State Crime Commission, which will meet on August 19 and 20, 2019, to take up legislative proposals from the Special Legislative Session. Accordingly, you have asked whether the conduct of these militia members violates the law.

Applicable Law
Several provisions of the Constitution of Virginia and the Code of Virginia bear on this question.

Article I, § 13 of the Constitution of Virginia provides:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.[2]

Section 15.2-1704(A) of the Code of Virginia states:

The police force of a locality ... is responsible for the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances.[3]

Section 18.2-174 of the Code of Virginia states in relevant part:

Any person who falsely assumes or exercises the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or any local, city, county, state, or federal law-enforcement officer, or who falsely assumes or pretends to be any such officer, is guilty of a Class 1 misdemeanor.[4]

Discussion
The constitutional and statutory provisions quoted above do not deny anyone the right to speak, assemble, or petition the government. Nor do they impede anyone's right to bear arms. Legitimate concerns are raised, however, "when a group comes as a unit, in uniform, with military or law enforcement weapons, equipment, tactics, and appearance, under a clear chain of command authority, looking like the police or military, and they are neither a part of or subject to the local, state, or federal military or police."[5] The Framers of our Constitution and laws saw fit to address that activity, and proper enforcement of the provisions they crafted will not impair other rights guaranteed under the Constitution of the United States or the Constitution of Virginia.

Article I, § 13 of the Constitution of Virginia makes clear the Framers' intent to preclude private militias. By providing that civilian control of the military should be preserved "in all cases,"[6] the Framers instructed that "no private army or militia would have any justified existence or authority apart from the federal, state, or local authorities."[7]

Article I, § 13, and the strict subordination clause in particular, is closely "intertwined with the survival of representative government and personal freedoms."[8] The provision "ensures the right of all citizens ... to live free from the fear of an alien soldiery commanded by men who are not responsible to law and the political process."[9] It also facilitates the government's ability to protect the public. As the circuit court recognized in a case arising out of the events in Charlottesville in August 2017, "[i]t is a difficult enough job for the local or state police, or the National Guard for that matter, to control crowds at events such as the Unite the Right rally .... With armed but unauthorized militia groups ... bringing weapons and other military equipment into the fray, law enforcement's job is much more difficult and dangerous. This may have been part of the impetus for the constitutional provision ...."[10]

In accord with Article I, § 13, § 15.2-1704(A) of the Code of Virginia specifically reserves to local police forces "responsibil[ity] for ... the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances."[11] Likewise, § 18.2-174 of the Code of Virginia prohibits "falsely assum[ing] or exercis[ing] the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or any local, city, county, state, or federal law-enforcement officer, or ... falsely assum[ing] or pretend[ing] to be any such officer."[12] These provisions preserve the principle enshrined in Article I, § 13 that police power is reserved to those "responsible to the people and answerable to the law."[13]

The conduct you describe can constitute a violation of the criminal prohibition set out in § 18.2-174. You describe a group of private militia members coming as a unit, heavily armed with assault-style weapons, dressed in fatigues and other military accessories, and acting in a coordinated fashion. These militia members patrolled a line of citizens waiting to engage with legislators and projected authority to manage the crowd.

Under the Code of Virginia, the responsibility to "safeguard ... life and property" and to "preserv[e] ... peace" is vested in the local police and other properly designated law-enforcement personnel.[14] By engaging in crowd control or purporting to secure a public area, private militia members usurp a role specifically reserved to law enforcement, thereby "assum[ing] or exercis[ing] the functions, powers, duties, and privileges" of law enforcement or peace officers.[15] The improper assumption of law enforcement authority can be used to intimidate or chill the exercise of rights reserved to our citizens, such as the rights to speak, assemble, and petition the government.[16] Section 18.2-174 prohibits such conduct.

Conclusion
Accordingly, it is my opinion that the conduct described in your request can constitute a violation of § 18.2-174 of the Code of Virginia.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. Based on your request, I assume for purposes of this opinion that the individuals referenced were in fact members of a private militia.

2. VA. CONST. art. I, § 13.

3. VA. CODE ANN. § 15.2-1704 (2018).

4. VA. CODE ANN. § 18.2-174 (2014).

5. City of Charlottesville v. Pa. Light Foot Militia, No. CL 17-560, 2018 WL 4698657, at *12 (City of Charlottesville Cir. Ct. July 7, 2018).

6. VA. CONST. art. I, § 13.

7. City of Charlottesville, 2018 WL 4698657, at *4.

8. 1 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA, at 277 (1974).

9. Id.; see also id. at 274 ("The final clause of section 13, which dictates subordination of the military to the civil power, possesses more vitality. The passage must be read in conjunction with Article V, section 7, which names the Governor as Commander-in-Chief of the armed forces of the Commonwealth. Since the Governor is an elected official of the civil government, responsible to the people and answerable to the law, his appointment as Commander-in-Chief fulfills the need to keep the military authority integrated with the popular will as expressed through the elected officials of the Commonwealth.").

10. City of Charlottesville, 2018 WL 4698657, at *4.

11. VA. CODE ANN. § 15.2-1704(A). Virginia law recognizes that local police forces may need assistance in certain circumstances and makes appropriate allowances. See, e.g., VA. CODE ANN. § 15.2-1726 (2018) (permitting localities to enter into reciprocal agreements "for cooperation in the furnishing of police services"); Id. § 15.2-1724 (2018) (permitting localities to send police officers anywhere in the Commonwealth "in response to any law-enforcement emergency involving any immediate threat to life or public safety"); id. § 15.2-1734(A) (2018) (permitting localities to call into service auxiliary police officers "in time of public emergency" or "at such times as there are insufficient numbers of regular police officers to preserve the peace, safety and good order of the community").

12. VA. CODE ANN. § 18.2-174.

13. HOWARD, supra note 8, at 274.

14. VA. CODE ANN. § 15.2-1704; see supra note 11.

15. VA. CODE ANN. § 18.2-174. Even if militia members do not actually assume roles reserved for law enforcement, they also can violate the criminal prohibition by "pretend[ing]" to be law enforcement or peace officers. Id.

16. See United States v. Chappell, 691 F.3d 388, 399 (4th Cir. 2012) (observing that "[t]he police function serves a significant salutary purpose in protecting public safety, but it also possesses an oppressive potential in the curtailment of liberty" and recognizing that "adding to the legitimate number of officers an untold flock of faux policemen" would "risk expanding the oppressiveness of the police function").