Openly carrying weapons is not illegal, even on the grounds of the State Capitol. But members of privately organized militias who assume law enforcement duties without permission can be arrested and charged with a misdemeanor “of falsely assuming or pretending to be” a sworn officer of the law.

That’s the opinion of Virginia Attorney General Mark. R. Herring, who has been raising alarms about the paramilitary activity of white supremacist militias and similar groups.

His official opinion, issued Aug. 16, in response to a question from Delegate Charniele L. Herring, a Democrat from Alexandria, who is chair of the House Democratic Caucus.

The opinion represents an implied rebuke of the Capitol Police Division’s allegedly lax operation on July 9, when the General Assembly was in special session to consider gun control laws.

Capitol Police stoutly rejects the rebuke.

Delegate Herring asked the Attorney General’s Office whether the conduct of armed militia members who came to the Capitol on July 9 violated one or more state laws, even though no arrests were made at the time.

According to the delegate, as summarized by Mr. Herring, private militia members in military fatigues entered Capitol Square carrying assault-style weapons, patrolled the crowd, 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,” Mr. Herring wrote, but instead “were patrolling a line of citizens waiting to engage with legislators and project(ing) authority to manage the crowd.”

If that accurately described what happened, Mr. Herring stated that “by engaging in crowd control or purporting to secure a public area, private militia members usurp(ed) a role specifically reserved to law enforcement.” In this case, it was the Capitol Police, although Mr. Herring never mentioned them.

That “improper assumption of law enforcement authority” that “can be used to intimidate or chill ... rights reserved to our citizens ... to speak, assemble and petition the government” is prohibited conduct under the state Constitution and state law, he wrote.

However, Capitol Police is pushing back against the notion they gave private militias free rein to act like police officers. Capitol Police officials rejected Delegate Herring’s description of the activities on July 9.

“At no point on or after July 9, did the (Capitol Police) receive any complaints to our communications center about alleged intimidation by armed individuals (or) of people allegedly patrolling crowds or people allegedly taking positions suggestive of a security force,” Capitol Police spokesman Joseph Macenka stated Monday in response to a Free Press query.

He stated that the Capitol Police division “for more than four centuries has been charged with the important and vital public safety mission of making sure all citizens are able to safely visit their seat of government and have their voices heard. As such, the division is committed to enforcing all laws accordingly.

“The division takes great pride in maintaining a safe environment not only for all elected officials, but employees and visitors as well,” he added.

He also urged “anyone who witnesses a violation of law to contact the division at (804) 786-2120.”

However, in a statement issued with his opinion, Mr. Herring, a Democrat, indicated that, in his view, the Capitol Police failed to take appropriate action, although he again did not mention the division.

“The private militias we saw purporting to be police outside of the General Assembly building during the special session were there to intimidate Virginians from exercising their right to meet with their representatives,” he stated.

“Seeing a group of people all dressed alike in military garb and carrying large assault-style weapons, like the white supremacist militia and paramilitary ac- tivity we saw in Charlottesville, can be intimidating and terrifying.

“I hope,” he continued, “that this opinion will help law enforcement better understand the tools that they have at their disposal to handle these private militias when they show up to events,” including a meeting of the legislature.