David J. Toscano

Attorney at Law

Update on ABC / Martese Johnson Case

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April 1, 2015 – Given the interest in the Martese Johnson case, I want to provide you an update of my understanding of its status. Like many of you, I was very disturbed to see the graphic photos and watch the video of this recent incident at the UVa Corner. Many of you have seen my recent statement, and have heard a number of comments I have made about prospective legislation that can remove the ABC agents from enforcing laws that more properly should be province by local law enforcement. Most of you know by now that the actions at the UVa Corner were taken by ABC agents and not by the Charlottesville or University police departments.

Since this incident, several important events have occurred:

  1. The Governor immediately called for an investigation and administrative review. An administrative review is conducted by the Commonwealth’s office of Professional Standards. It is my understanding that the same office and the same personnel investigated the Elizabeth Daly incident several years ago.
  2. Very significantly, however, the Commonwealth’s Attorney for the City of Charlottesville, Dave Chapman, immediately requested a criminal investigation. That request has been fully supported by the Governor’s office and will be conducted by the State Police Bureau of Criminal Investigations. This is significant because it is a higher level of review than occurred in the Daly case. A Professional Standards administrative review looks at the law enforcement documents as they find them. Very little additional inquiry occurs; rather, the investigation focuses on whether the law enforcement personnel conformed to Professional Standards. A criminal investigation is a much higher level of inquiry and involves interviewing and collecting evidence from a wide variety of sources. This is significant because it is a higher level review than the Daly case, and I think it reflects the sensitivity and concern that many of us have about this incident.
  3. Also, unlike the Daly review, the Governor issued an executive order requiring the ABC to review its process, and authorized creation of a group that will determine what, if any, statutory changes need to be made. The Governor’s order requires retraining of ABC officers and the development of memoranda of understanding (MOU) between ABC and local police departments. So far as we know, there is presently no such MOU between the Charlottesville police department and the ABC. We know that some of the Charlottesville police officers knew that the ABC agents were working the Corner that night, but it was an informal notification and one that I do not believe went to the leadership of the police department. The Charlottesville police department does not have “veto power” on whether the ABC can conduct an investigation, and that is certainly one of the issues that would need to be defined in any MOU. Secretary of Public Safety, Brian Moran, is in the process of determining who will be on the review board. There are many persons who have interest in this and it will be a statewide panel. I expect that there will be student representation from UVa on the panel, but we will have to see.
  4. I understand that the restaurant involved in this incident has a hearing forthcoming for alleged violations of ABC regulations. That is something worth monitoring.
  5. There has been a suggestion that ABC agents be equipped with body cameras. That is an issue that is being discussed by the Commonwealth Preparedness Panel, who will likely report out in the next six months.
  6. Martese Johnson appeared in the Charlottesville General District Court on March 26, 2015.   This was a “first appearance” and usually nothing happens on those court dates. It is not uncommon for a trial date to be set the way it was in this case. The trial date has now been set for May 28, 2015, to enable the State Police to complete their criminal investigation in this case. I doubt that any decisions will be made about prosecuting the case until the investigation has been completed.

I have heard many calls to immediately dismiss the charges against Mr. Johnson. While this certainly seems reasonable given what many of us have seen, it is not likely that any decisions will occur in this case until the criminal investigation has been concluded. It is very important for eyewitnesses to come forward with any information that they saw that night or to provide names of people with whom they have come into contact that might have information related to this incident. If they have such information, they can call the Virginia State Police at 804-674-2000.

I will try to keep constituents informed about other developments as they become available to me.

Sincerely,

David Toscano

David Toscano

P.S. In 2014, I introduced HB 922, a bill to prevent ABC agents from using or threatening to use deadly force in the arrest or detention of a person suspected of underage drinking. The bill was tabled on a voice vote by the Committee on General Laws. I expect to introduce legislation this year to again address problems with the ABC.

Toscano Statement on ABC Arrest on the UVa Corner

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“I am very concerned about the events that occurred at the UVa Corner in the early morning hours of March 17, 2015. The photos are very disturbing, as are the videos that I have viewed. At this point, it is unclear why the ABC agents took this action against this young man. I fully support the independent investigation that has been initiated by the Governor and the Secretary of Public Safety. The Governor’s office has assured me that this will be conducted and concluded expeditiously.

“All of the information I have to date suggests that these were actions taken by ABC agents and not by the Charlottesville Police Department or UVa Police Department. So far as I know, Charlottesville and Albemarle officers arrived at the scene after the ABC agents made the arrest and were engaged in helping calm the crowd. I know how much attention the leadership of our Charlottesville, Albemarle, and UVa police departments pay to the civil rights of our citizens. The continued overreaction by ABC law enforcement personnel in these cases is key question that requires an answer.

“It is clear, based on the 2013 incident involving ABC actions against a student at the local Harris Teeter as well as from the recent events, that ABC policies, protocols, and training are inappropriate for dealing with these kinds of cases, and state and local leaders must take all efforts to enact reforms to protect the civil rights of our citizens as they enforce the laws of the Commonwealth.

“The young man himself has called for civility and calm, and I agree. But we must remain vigilant in gathering the facts and readdressing the legitimate concerns raised by this incident.”

Delegate David J. Toscano represents the 57th District in Virginia’s House of Delegates, which consists of the City of Charlottesville and parts of Albemarle County.  Since 2012, Delegate Toscano has also served as House Democratic Leader, elected by his fellow Democratic delegate peers.

Medicaid Expansion and Ethics Reform Lead the 2014 Session

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We are two weeks into the General Assembly and the dominant issue remains Medicaid expansion. Almost every interest group in Richmond, from the Chamber of Commerce to the Medical Society of Virginia to the Hospital Association to various anti-poverty groups have supported efforts to bring federal dollars to Virginia to help insure up to 400,000 people who presently do not have coverage. Gov. McAuliffe stands firmly behind the principle of accessing these federal dollars and bringing them back to Virginia to both spur our economy and provide coverage to more Virginians. Republicans in the House generally have been skeptical of this approach, arguing that the federal commitment to reimburse the state 100 percent of the cost of new enrollees will ultimately be eliminated, with the result that Virginia taxpayers will have to pick up the tab.

I gave two floor speeches on this topic in the last week. The first was a general exploration of the issue. I emphasized how we have 1 million uninsured Virginians (many of whom are using the hospitals’ ERs as their primary care) and how we are sending our taxpayer dollars to other states which have decided to use federal monies to insure their citizens. You can watch the speech here.

The second speech involved the challenges faced by our hospitals because of cuts in federal spending. This is particularly troubling for rural hospitals who are often the centers of economic activity in their localities. Many of these hospitals will face extremely difficult business decisions that may require layoffs, acquisition, or possible closure in the event that we do not access this money. Virginia is refusing $5 million per day in federal monies that could otherwise assist us in insuring the uninsured and supporting our hospitals. We must find a way to bring these dollars back to Virginia. You can see my speech on hospitals here.

In other news, the House continues to work on bipartisan ethics reform. I am part of the subcommittee that is writing this bill. I believe that we need to have a cap on gifts that can be taken by legislators and a strong Ethics Commission that has the ability to enforce the rules and sanction legislators who transgress.

Mental health continues to be an important topic for the General Assembly. Later this week, we will consider a number of bills that could provide assistance to a person in crisis. There are additional monies in the budget to help serve more people with serious mental illness, particularly persons under the age eighteen.

A bill to eliminate the $64 annual tax on hybrid vehicles has passed the state Senate and a similar bill appears poised to pass the House of Delegates.

Several of my bills are moving through the House, including one that will provide additional tools to help elderly citizens who are victims of financial exploitation; a bill that will require additional financial disclosure of tax preferences provided to large corporations; and a resolution that condemns the ABC for their role in the incident in Charlottesville last April.

As always, I enjoy hearing from you during the assembly session with your concerns and views about specific bills. Please do not hesitate to contact our office. It is a pleasure serving you in the General Assembly.

David Toscano

Statement from Delegate David J. Toscano on ABC Chairman’s Call for State Police Investigations

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CHARLOTTESVILLE – Delegate David J. Toscano released a statement today in response to ABC Board Chairman J. Neal Insley’s call for a Virginia State Police investigation of the April 11, 2013 incident in Charlottesville:

“Chairman Insley’s request for an impartial, third party review of the incident involving ABC law enforcement personnel is encouraging,”  said Toscano.  “A number of questions about this incident have been raised, and I believe this independent investigation by Virginia State Police will provide insight as to what went wrong, and how ABC can improve and implement better protocols and procedures to ensure than an incident like this does not occur again.”

Delegate Toscano recently sent a letter inquiring about the proper protocols and procedures to Shawn Walker, Director of Enforcement at ABC (see below).  In his letter, Mr. Toscano inquired about what policies are currently in place for ABC law enforcement to detain citizens when enforcement officers suspect individuals may be underage and in possession of alcohol, and specifically, what procedures are in place to detain individuals already in motor vehicles.  Additionally, Mr.Toscano  inquired as to the specific training ABC law enforcement personnel receive in handling their weapons, and what protocols are in place to determine when an officer of ABC should unholster their weapon.

“I have lived in this community for over 30 years and do not recall an incident like this during that time,” wrote Toscano.  “I appreciate the role that ABC plays in enforcing the laws against underage purchase, possession, and consumption.  But I am concerned about the apparent overreaction of the agents during the April 11 event.”

Toscano Letter to Shawn Walker

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