Important Virginia Statute (Code) Changes Effective on July 1, 2010
§ 18.2-308. This code will update on July 1, 2010 and the new wording to become effective on July 1, 2010 and not before. The following is only a partial listing of the up and coming changes and is taken from the Acts of Assembly by Chapter using weapon as the search term and Chapter as type. Read the statute when the changes become effective as the statue wording by the Legislative Services will be more authoritative.
Section J3 will change to the following: "No person who carries a concealed handgun onto the premises of any restaurant or club as defined in § 4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board under Title 4.1 of the Code of Virginia may consume an alcoholic beverage while on the premises. A person who carries a concealed handgun onto the premises of such a restaurant or club and consumes alcoholic beverages is guilty of a Class 2 misdemeanor. However, nothing in this subsection shall apply to a federal, state, or local law-enforcement officer."
Section B will add a new subsection 10.: "10. Any person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel."
Section D will change in part to: "A court may authorize the clerk to issue concealed handgun permits, without judicial review, to applicants who have submitted complete applications, for whom the criminal history records check does not indicate a disqualification and, after consulting with either the sheriff or police department of the county or city, about which there are no outstanding questions or issues concerning the application. The court clerk shall be immune from suit arising from any acts or omissions relating to the issuance of concealed handgun permits without judicial review pursuant to this section unless the clerk was grossly negligent or engaged in willful misconduct. This subsection shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law, or to affect any cause of action accruing prior to July 1, 2010...Only a circuit court judge may deny issuance of a permit...Upon denial of the application, the clerk shall provide the person with notice, in writing, of his right to an ore tenus hearing. Upon request of the applicant made within 21 days, the court shall place the matter on the docket for an ore tenus hearing. The applicant may be represented by counsel, but counsel shall not be appointed, and the rules of evidence shall apply. The final order of the court shall include the court's findings of fact and conclusions of law."
Section I will change to : "Persons who previously have held a concealed handgun permit shall be issued, upon application as provided in subsection D, and upon receipt by the circuit court of criminal history record information as provided in subsection D, a new five-year permit unless it is found that the applicant is subject to any of the disqualifications set forth in subsection E. Persons who previously have been issued a concealed handgun permit pursuant to subsection D shall not be required to appear in person to apply for a new five-year permit pursuant to this subsection, and the application for the new permit may be submitted via the United States mail. The circuit court that receives the application shall promptly notify an applicant if the application is incomplete or if the fee submitted for the permit pursuant to subsection K is incorrect."
Section E. 9. will change to:" 9. An individual who has been convicted of a violation of § 18.2-266 or a substantially similar local ordinance, or of public drunkenness, or of a substantially similar offense under the laws of any other state, the District of Columbia, the United States, or its territories within the three-year period immediately preceding the application, or who is a habitual drunkard as determined pursuant to § 4.1-333."
May 18, 2010
Machete in a Car on School Grounds Does Not Violate § 18.2-308.1(B)(VI).
McNamara v. Commonwealth, __ Va.App. __, __ S.E.2d.__ (2010)
"As part of an unrelated investigation, a police officer searched McNamara's automobile while it was parked on the grounds of Langley High School. The officer found a "double edged sheath knife" and a "small pocket knife" in the car, as well as a machete "underneath the driver's side middle seat." It is the machete that is at issue in this case...
The only question before this Court is one of statutory interpretation. Code § 18.2-308.1(A) criminalizes the possession of, among other things, any "(iii) weapon, including a weapon of like kind, designated in subsection A of § 18.2-308, other than a firearm[,] upon (a) the property of any public, private or religious elementary, middle or high school, including buildings and grounds..." Code § 18.2-308(A), referenced in Code § 18.2-308.1(A), makes unlawful the concealed carrying of, among other things, "any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor,...or any weapon of like kind." Code § 18.2-308(A)(ii). Thus, Code § 18.2-308.1(A) unquestionably prohibits the possession of a machete on school grounds.
However, Code § 18.2-308.1(B) contains exceptions to the prohibitions in Code § 18.2-308.1(A) depending upon the location or use of the item. As relevant to this case, Code § 18.2-308.1(B)(vi) allows possession of "an unloaded firearm that is in a closed container, or a knife having a metal blade, in or upon a motor vehicle, or an unloaded shotgun or rifle in a firearms rack in or upon a motor vehicle" on school grounds. Because we conclude that McNamara's machete is a type of knife, within the meaning of Code § 18.2-308.1(B)(vi), his conviction must be reversed as his possession of it in his automobile falls within the statutory exception."
April 27, 2010
Not Knowing the Meaning of a Word is not a Deffense to a False Mark on ATF Form
Smith v. Commonwealth, __ Va.App. __, __ S.E.2d.__ (2010)
"Charged with making a false statement on a firearm purchase form in violation of Code § 18.2-308.2:2, Smith took the stand in his own defense. He admitted reading ATF Form 4473 and answering its questions. At the time he filled out the form, Smith testified, he knew he had been charged with a felony and faced possible incarceration exceeding one year. He also knew he had earlier waived his right to a preliminary hearing. Smith likewise knew at the time he filled out the form that he had received letters from his counsel advising the felony charge had been certified to a grand jury and his trial had been preset for January 11, 2008. Even so, Smith testified he had no idea what the word "indictment" meant.
...Smith sought to excuse his falsehood by claiming he did not know the meaning of the word "indictment" when he signed the ATF Form. Even if this were true, we fail to see how his excuse did anything but prove his deceit. If Smith did not know what an indictment was, he should not have affirmatively represented on the ATF Form that he was not under indictment. Asserting that you know something to be true when you obviously do not is as much a fraud as asserting something to be true when you know it is false. A person lies when he makes a false statement that he knows to be untrue. It is no less a lie if the person makes a false statement when he knows he does not know whether it is true or false.
...Smith intentionally made a false statement because he made it purposefully - not negligently, recklessly, or at any lesser degree of deliberateness. He did not mistakenly assume he knew what he was saying to be true. Nor did he merely fail to perform some reasonable amount of due diligence before filling out the ATF Form or claim to have read the form too hurriedly. Instead, he affirmatively asserted something to be true while all along knowing he did not know it to be true. This was, at its core, an intentional deceit.
In sum, we hold a firearm buyer makes a false statement under Code § 18.2-308.2:2(K) when he admits he does not know what the word "indictment" means, yet he nonetheless affirmatively declares on an ATF Form he is not under indictment when, in fact, he is. Doing so amounts to a "deliberate disregard for its truth or falsity with a conscious purpose to avoid learning the truth," Hester, 880 F.2d at 802 - particularly where, as here, the false statement is made by a criminal defendant seeking to buy a handgun while on bail awaiting trial on a felony drug charge that had been pending for nearly a year and a half."
March 30, 2010
Appeal Granted by the Virginia Supreme Court in DiGiacinto v. The Rector and Visitors of George Mason University
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Passenger in Vehicle Did Not Have Firearm on or About the Person
Hunter v. Commonwealth, __ Va.App. __, __ S.E.2d.__ (2010)
"In Sutherland, our Supreme Court held that a pistol concealed in a saddlebag and carried by the defendant was not "about his person" as required by the statute. Sutherland, 109 Va. at 835, 65 S.E. at 15. Some seventy years later, the Supreme Court "distinguish[ed] and narrow[ed]," its holding in Sutherland by ruling that a firearm concealed in a purse and carried by the defendant was "about her person" as required by the statute. Schaaf, 220 Va. at 431-32, 258 S.E.2d at 575. The Court reasoned that "a handbag was usually carried closer to the defendant's person than was a saddlebag and was of a character that its contents were more readily accessible." Pruitt, 274 Va. at 388, 650 S.E.2d at 686. In contrast, the Supreme Court recently held that a firearm, placed in an unlocked car console, was not about the defendant's person because the defendant was not in the car and thus did not have "prompt and immediate use" of the weapon. Id. at 388, 650 S.E.2d at 687....
Hunter, however, did not have the keys to the car, nor did he have the key for the locked glove compartment. Thus, even viewing the facts in the light most favorable to the Commonwealth and granting to it all reasonable inferences, we hold that the firearm was not so "accessible to [Hunter] so as to afford 'prompt and immediate use.'" Pruitt, 274 Va. at 389, 650 S.E.2d at 687.
We are persuaded that once the glove compartment was locked and Quinn kept the key, the firearm was not '"so connected with [Hunter's] person as to be readily accessible for use or surprise if desired.'" Schaaf, 220 Va. at 431, 258 S.E.2d at 575 (quoting Sutherland, 109 Va. at 835, 65 S.E. at 15). There was no evidence establishing when Quinn locked the glove compartment. Further, Hunter's ownership of the firearm has little relevance to his ability to access the firearm for prompt and immediate use. See Watson, 17 Va. App. at 127, 435 S.E.2d at 430 (stating that "the location of the weapon is a significant circumstance . . . in weighing accessibility"). Moreover, we are convinced that this case is more like Pruitt because there is no evidence that Hunter was so connected with the firearm "for any appreciable period of time" so as to make the firearm "so accessible . . . as to afford prompt and immediate use...Having already decided that the firearm was not about Hunter's person above, we conclude that the evidence was insufficient to prove that Hunter was guilty of Code $sect; 18.2-308(A)."
March 23, 2010
John Wayne Replica Firearm is a Firearm (En Banc Rehearing)
Startin v. Commonwealth, __ Va.App. __, __ S.E.2d.__ (2010)
"It is clear that while the General Assembly did not define the word firearm in Code § 18.2-53.1, both the Supreme Court of Virginia and this Court have construed the General Assembly's intended meaning of this term and have set forth parameters of what does and does not constitute a firearm under the statute. "[B]ecause Code § 18.2-53.1 is aimed at preventing actual physical injury or death, the term 'firearm' includes any instrument that is capable of expelling a projectile by force or gunpowder." Thomas, 25 Va. App. at 685, 492 S.E.2d at 462 (citing Holloman, 221 Va. at 198-99, 269 S.E.2d at 357-58). As importantly, the term firearm in Code § 18.2-53.1 also includes other objects that are not capable of firing projectiles but give the appearance of being able to do so. Id.; see also Miller, 23 Va. App. at 211-13, 475 S.E.2d at 829-30 (determining that a rusted, inoperable revolver was a firearm within the meaning of Code § 18.2-53.1)."
March 18, 2010
Private Entity Can Ban Firearms While Leasing Public Property
Op. Va. Att'y Gen. No. 10-009 (March 2010).
"It is my opinion that a private entity leasing government property for an event generally may regulate or prohibit the carrying or possession of firearms on that property for such event...Having determined that a private entity leasing property from a local government may regulate the conduct of citizens pursuant to considerations of the status of invitee or a licensee, it must be stated that a locality cannot circumvent the constitutional rights of citizens through the expedient of leasing government land to private entities who effectively act as agents for the local government. That scenario, however, does not appear to present in the event that you describe."
March 2, 2010
Transcript of Oral Arguments in McDonald v. City of Chicago, 559 U.S. __ (2010).
Dec. 22, 2009
Scuba Knife is Not a Concealed Weapon or of Like Kind
McMillan v. Commonwealth, ___ Va. App. ___, ___ S.E.2d __ (2009 En Banc)
"The knife McMillan possessed is clearly neither a "switchblade" knife nor a "ballistic knife," and the Commonwealth does not claim otherwise. On appeal, the Commonwealth argued that McMillan's knife was either a dirk or a bowie knife or a "weapon of like kind" to one of those knives.
Observation of McMillan's knife, however, reveals that it does not match the description of a dirk or bowie knife. Unlike a dirk, the knife McMillan possessed lacked a "long blade" and a "protective guard where the blade meets the handle"2 or a "hilt...terminating in a pommel."3 Id. at 290, 673 S.E.2d at 473. As previously stated, the blade on McMillan's knife could hardly be described as long in that it measured approximately 3.75 inches. Further observation reveals that McMillan's knife does not fit the definition of a dirk, described as any stabbing weapon having two sharp edges and a point. The knife at issue has one sharp edge and one manifold edge; approximately half of which is serrated and the remainder of which is blunt. The blunt portion culminates in the point, making its stabbing capability dubious...Though McMillan testified that he carried the knife for protection, this statement does not change the physical characteristics of the knife he possessed or its method of operation such that it becomes a weapon.4 See Thompson, 277 Va. at 291, 673 S.E.2d at 474 (stating that "as we explained in Farrakhan, "[s]ubsequent use or circumstances may not be considered in the definitional analysis of "weapon.""' (citation omitted)). Nor can the purpose for which an individual carries a knife be dispositive as to whether that knife is either "designed for fighting purposes" or "commonly understood" to be a weapon. Cf. State v. Giltner, 537 P.2d 14, 16 (Haw. 1975) (holding that a scuba diver's knife is not a "deadly or dangerous weapon").
Though the knife in question, much like a kitchen knife, pocket knife, box cutter, butterfly knife, or letter opener, could be a dangerous instrument in the hands of a person with criminal intent, the issue before this Court is "what is proscribed by statute as unlawful not simply what may be dangerous." Farrakhan, 273 Va. at 183, 639 S.E.2d at 230. We strictly construe penal statutes against the Commonwealth. Harris, 274 Va. at 414, 650 S.E.2d at 91 (citing Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). We conclude that the evidence before us does not establish that McMillan's "scuba" knife is designed for fighting purposes nor is it commonly understood to be a weapon."
Concurring Opinion:
"The statutory language we are called upon to define - "dirk, bowie knife...or weapon of like kind" - has appeared in the Code of Virginia since at least 1849. Title 54, Chapter 7, § 7 Code of Virginia (1849) made it illegal to "habitually, carry about [one's person] hid from common observation, any pistol, dirk, bowie knife or weapon of like kind." Apparently, at that time, a mere thirteen years after the death of the designer of one of the knives in question, Colonel James Bowie, Virginians did not have much trouble differentiating this weapon, or weapons like it, from more utilitarian knives such as hunting knives.
By the end of the twentieth century, however, that recognition had apparently faded. In 1998 our Supreme Court was first called upon to determine which bladed weapons fell within the scope of the statute. In Wood v. Henry County Public Schools, 255 Va. 85, 495 S.E.2d 255 (1998), the Court concluded that a pocketknife was "neither a dirk, bowie knife...nor a weapon of like kind." Id. at 94, 495 S.E.2d at 260. Since that date, our Supreme Court and this Court have considered the applicability of Code § 18.2-308(A) to various types of knives on no fewer than ten separate occasions, and the only consistency in the conclusions reached has been inconsistency...
I recognize the very legitimate and necessary purpose of Code § 18.2-308 - "to interdict the practice of carrying a deadly weapon about the person, concealed and yet so accessible as to afford prompt and immediate use." Schaff v. Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574, 574-75 (1979). I also recognize, however, that there are very legitimate and lawful reasons to carry a concealed sharp instrument that is capable of injuring another person. Clearly, the General Assembly did not intend to prohibit all such conduct simply because of that capability. Because the "[s]ubsequent use or circumstances may not be considered in the definitional analysis of [a]'weapon,'" Farrakhan, 273 Va. at 182, 639 S.E.2d at 230, we must, therefore, continue to engage in an ad hoc comparison of the knife in question with weapons that are today primarily found in museums and knife collections.
In doing so, I am concerned that we are forgetting that a "statute or ordinance [must] be sufficiently precise and definite to give fair warning to an actor that contemplated conduct is criminal." Tanner v. City of Virginia Beach, 277 Va. 432, 439, 674 S.E.2d 848, 852 (2009) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). We require this level of precision because "[i]t is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail." Sorich v. United States, No. 08-410, slip op. at 4 (U.S. Feb. 23, 2009) (Scalia, J., dissenting).7
Time has not been kind to Code § 18.2-308(A). Whatever clarity and certainty it had in 1849 has been obfuscated by a series of confusing and sometimes contradictory interpretations as we have attempted to conform nineteenth century language to twenty-first century reality. As a result, it now provides neither notice to the citizenry of what conduct it criminalizes, nor does it provide guidance to the members of law enforcement and the prosecutors who must enforce it or the judges who must apply it. Additionally, because a literal application of this statute excludes many dangerous bladed weapons and ignores the intent of the accused, it does not effectively "interdict the practice of carrying a [concealed] deadly weapon about the person." Schaff, 220 Va. at 430, 258 S.E.2d at 574-75. For these reasons, I believe that it is time for the General Assembly to craft a replacement and to "[salute] the [statute as currently written] for its notable service in past ages [and] now accord it a decent burial." Harper v. B & W Bandag Center, 226 Va. 469, 474, 311 S.E.2d 104, 107 (1984) (Russell, J., concurring).8"
Dissenting Opinion:
