Technicality question - Page 2

Technicality question

This is a discussion on Technicality question within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by DaveH Interesting. INAL but my understanding is that those opinions are binding on all State executive agencies, state boards and commissions, and ...

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Thread: Technicality question

  1. #16
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    Quote Originally Posted by DaveH View Post
    Interesting.

    INAL but my understanding is that those opinions are binding on all State executive agencies, state boards and commissions, and institutions of higher education -- until reversed by a subsequent AG or reversed by a court.

    In court, the AG is is the Commonwealth's law firm. So, at that time, it's an just one of two, or more, conflicting opinions. Once the Court rules that is the binding opinion, until reversed by a higher court opinion, or a subsequent opinion of the same court.

    As for local governments the AG's opinion are generally binding until reversed in court also.

    If a State employee goes against the AG's opinion he's on his own to represent and defend that action -- w/o any claim of solvent immunity and might well have the weight of the State Executive Branch on the other side.

    So, IMHO it is the 800 pound gorilla opinion within that State, not just another opinion.

    Hence the need to have your local delegate ask for you.
    DavidH...

    While I understand your train of thought, and I don't disagree. There are other considerations which require 'caution'.

    In our school district, and I cannot remember the times I was willing to take something to court based upon an AG's opinion, and our law firm quickly noted that going to court based upon an AG's opinion does not necessarily mean you will win the battle.
    A state's statutes on the other hand are pretty clear (although even those can be misinterpreted).
    While I understand the 'weight' of an AG's opinion, I would want to become a test case, because his opinion backs up my desired outcome.

    Note:
    Normally, opinions of the Attorney General are persuasive but not controlling on the courts. We consider that great weight should be given such opinions when the legislature has specifically delegated to the Attorney General the duty of interpreting the Act and aiding in its enforcement.

    Here is the 'double-edged sword'...
    Although the courts have generally ruled that opinions are "advisory in nature," persons who reasonably rely on Attorney General Opinions may be protected from civil and criminal liability, even if the Attorney General has erred in his interpretation. Conversely, the failure to follow the authoritative advice of the Attorney General may be evidence of a lack of good faith.

    In summary, Attorney General Opinions are not binding on the courts; however, they are persuasive and the courts may give them great weight. Since the Attorney General is constitutionally and statutorily charged with interpretation of the law upon request by certain persons, reasonable reliance upon an Attorney General Opinion would constitute an affirmative defense to criminal prosecution.

    Exercise Caution

    One should always exercise caution in interpreting and applying opinions. The State Legislature may, for example, pass a law which would render a previously issued opinion inoperable; while more recent opinions may overrule part or all of previous opinions. In addition, opinions are responses to specific, factual situations in point of time, which may or may not be the same as those of the reader. An attorney should be contacted if you seek further advice.

    Take care,
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  2. #17
    VIP Member Array chiefjason's Avatar
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    Quote Originally Posted by ScubaDuba View Post
    If your question pertains to carrying in NC, then this is what you want to know. Also, NC allows you to carry 1 handgun concealed with a permit, it does not specify what model.
    Although the NC CCP only applies to handguns, no other weapons. The fact that it uses the singular, handgun, is a very thin reason to interpret that it applies to carrying only one handgun. There is no language in the scope of permit that limits it to one. YMMV, IANAL, etc, etc

    I find it interesting the all revolvers must be the same and all Semi's must be different in NV. That's obnoxious.

  3. #18
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    The discussion we are having regarding AG opinions is probably the biggest reason they don't reply to questions from individuals, as opposed to state agencies/offices....
    "Texas can make it without the United States, but the United States can't make it without Texas!".... Sam Houston

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  4. #19
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    Quote Originally Posted by retsupt99 View Post

    ....
    Normally, opinions of the Attorney General are persuasive but not controlling on the courts.... Conversely, the failure to follow the authoritative advice of the Attorney General may be evidence of a lack of good faith.

    ....

    In summary, Attorney General Opinions are not binding on the courts; however, they are persuasive and the courts may give them great weight. Since the Attorney General is constitutionally and statutorily charged with interpretation of the law upon request by certain persons, reasonable reliance upon an Attorney General Opinion would constitute an affirmative defense to criminal prosecution.

    ....

    Exercise Caution

    One should always exercise caution in interpreting and applying opinions. The State Legislature may, for example, pass a law which would render a previously issued opinion inoperable; while more recent opinions may overrule part or all of previous opinions. In addition, opinions are responses to specific, factual situations in point of time, which may or may not be the same as those of the reader. An attorney should be contacted if you seek further advice.

    Take care,
    ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑

    Absolutely agree.

    The Courts have the last word.

    It's the "the failure to follow the authoritative advice of the Attorney General may be evidence of a lack of good faith" that's of value if (or when) an elected, or an appointed official (in this thread, read: LEO) fails to follow the Attorney General opinions.

    However, IMHO, such opinions are second only to established case law.

    And I absolute second your advice on exercising caution in interpreting and applying opinions. I keep finding a twist somewhere, which I hadn't know about before.

    INAL and even good lawyers get blindsided by obscure precedent on occasion.
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  5. #20
    Senior Member Array Keltyke's Avatar
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    ask a police officer
    No. That's the last person to ask if you want court-provable opinions. Line officers often to NOT know the law - that's why they have D.A.s and Prosecutors. "Hey, Mr. D.A., what can we charge this guy with?" The D.A. is the man to ask.

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