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"I think that was wrong. I don't think that was the original meaning of the Fourth Amendment. But nonetheless it's been around for so long, we are not going to overrule that." Justice Antonin Scalia, United States v. Jones (No. 10-1259), Tr. of Oral Arguments 6 (November 8, 2011).

"I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa." Justice Ruth Ginsburg, February 2012.

February 5, 2013

Handgun in Unlocked Glove Compartment Not a Concealed Weapon

Doulgerakis v. Commonwealth, __ Va. App.__, __ S.E.2d __ (2013)

"Officer Jones asked appellant if he had anything in his glove box to cause him concern. Appellant responded that he had a handgun in the glove compartment. The glove box was closed and latched, but not locked. Officer Jones removed the handgun and charged appellant with carrying a concealed weapon without a permit.

Code § 18.2-308 makes it unlawful for particular individuals to carry a firearm concealed from common observation. However, subsection (B)(10) of the statute creates an exception by excluding the concealed weapon prohibition from "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 . . . ." It is uncontested that the vehicle in question is a personal, private motor vehicle.

On brief, the Commonwealth explains that because of the precise wording of the statute, a handgun need not be in a locked glove compartment to be exempt from the concealed weapon prohibition. Generally speaking, "we are not bound by concessions of law by the parties." Epps v. Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc); see also Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc). Here, however, we agree with the Commonwealth's concession.

The Supreme Court of Virginia, in Schaaf v. Commonwealth, 220 Va. 429, 258 S.E.2d 574 (1979), explained the rationale of the concealed weapon statute:

"The purpose of the statute was to interdict the practice of carrying a deadly weapon about the person, concealed, and yet so accessible as to afford prompt and immediate use. 'About the person' must mean that it is so connected with the person as to be readily accessible for use or surprise if desired."

Id. at 430, 258 S.E.2d at 574-75 (quoting Sutherland v. Commonwealth, 109 Va. 834, 835-36, 65 S.E. 15, 15 (1909)).

The legislature, by adopting the exception relevant here, determined that a weapon "secured in a container or compartment in the vehicle" was not "readily accessible for use or surprise if desired." See Uniwest Constr., Inc. v. Amtech Elevator Servs., Inc., 280 Va. 428, 440, 699 S.E.2d 223, 229 (2010) ("The public policy of the Commonwealth is determined by the General Assembly, for 'it is the responsibility of the legislature, not the judiciary, . . . to strike the appropriate balance between competing interests . . . . Once the legislature has acted, the role of the judiciary is the narrow one of determining what [it] meant by the words it used in the statute.'" (alteration and omissions in original) (quoting Dionne v. Southeast Foam Converting & Packaging, Inc., 240 Va. 297, 304, 397 S.E.2d 110, 114 (1990)))

That being said, our inquiry becomes one of defining "secure" as contemplated by the General Assembly within the meaning of the statute. "Secured" is defined as "in safekeeping or custody," Webster's New Universal Unabridged Dictionary 1641 (2d ed. 1983), or "well-fastened," The American Heritage Dictionary 1173 (New College Ed. 1982).

The evidence here shows that appellant's handgun was in a closed, latched and "well-fastened" glove compartment. Pursuant to the statute, appellant's gun was "secured in a . . . compartment" in his vehicle, thus reducing his access to the weapon. Because appellant's handgun was in compliance with the exception to the concealed weapon prohibition, his possession of the gun did not violate Code § 18.2-308

December 18, 2012

Unlawful Search Requires Suppression of Concealed Weapon

Knight v. Commonwealth, __ Va. App.__, __ S.E.2d __ (2012)

"Here, Officer Lancaster approached appellant immediately after he unlawfully opened and searched appellant's backpack, confronted appellant with the backpack in his hand,6 asked appellant what was in the backpack, and demanded that appellant tell the truth. When he asked appellant what was in the backpack, and told him not to lie, Officer Lancaster already knew that the backpack belonged to appellant and that his prior warrantless search of that backpack revealed it contained a handgun. Unlike in Segura, here the "information obtained during" Officer Lancaster's unlawful warrantless search of appellant's backpack was clearly "used by [Officer Lancaster] to secure" appellant's admission that there was a gun in his backpack. Id. Rather than being "wholly unconnected" to Officer Lancaster's unlawful warrantless search of appellant's backpack, id., appellant's admission that there was a handgun in his backpack was "obtained by exploitation of th[at] unlawful search," Ealy, 12 Va. App. at 755, 407 S.E.2d at 688. The evidence in the record on appeal, viewed in the light most favorable to the Commonwealth, clearly demonstrates that appellant's response to Officer Lancaster's direct question and demand that appellant tell the truth of what was in the backpack, was not "sufficiently distinguishable [from the illegal search] to be purged of the primary taint," Wong Sun, 371 U.S. at 488, nor was it "wholly unrelated" to Officer Lancaster's illegal conduct, Segura, 468 U.S. at 814."

December 11, 2012

Venue Must be Proven for Offense of Removal of Firearm Serial Number Under § 18.2-311.1

Bonner v. Commonwealth, __ Va. App.__, __ S.E.2d __ (2012)

Whether a BB Gun Constitutes a Deadly Weapon Must be Proven and is up to the Trier of Facts Under § 18.2-93

Justiss v. Commonwealth, __ Va. App.__, __ S.E.2d __ (2012)

November 1, 2012

"Possession" by a Felon Can be Multiple or Singular Under § 18.2-308.2(A)

Baker v. Commonwealth, __ Va. __, __ S.E.2d __ (2012)

"Baker contends that the Court of Appeals erred in affirming his three convictions for possession of a firearm by a convicted felon under Code § 18.2-308.2(A) because the conduct charged should have constituted one continuous possession. He claims that the use of the concept of separate "occasions" as the relevant unit of prosecution fails to describe what length or duration of possession is sufficient to constitute a separate offense. Baker argues that under this ambiguous standard, a felon who comes into possession of a firearm, takes it home, and places it in a safe for a year could be convicted of 365 separate violations of Code § 18.2-308.2 (A) .

According to the Commonwealth, each separate and distinct occasion would constitute a separate possession under Code § 18.2-308.2(A) , thereby justifying three separate convictions of Baker under the statute. In response to Baker's contention that such a finding could lead to 365 convictions for a year of continuous possession of a firearm in a locked safe, the Commonwealth points out that such a situation could not occur because separate and distinct occasions of possession must be proven by the Commonwealth for each individual conviction. The Commonwealth contends that if a firearm remained untouched in a safe for 365 days, nothing separate or distinct would occur to establish a new occasion under the statute. Nor would there be evidence to prove possession on each of the 365 days of that year. We agree with the Commonwealth that the three convictions should be affirmed as each is a separate and distinct act or occurrence of possession, however, we reject as unclear the term "unit of prosecution" previously employed by the Court of Appeals.

In this issue of statutory construction, we conduct a de novo review. Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011). Code § 18.2-308.2(A) provides, in pertinent part, "[i]t shall be unlawful for . . . any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm . . . or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308.2." In interpreting this statute, "courts apply the plain meaning . . . unless the terms are ambiguous or applying the plain language would lead to an absurd result." Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006) . A statute is considered ambiguous "if the text can be understood in more than one way or refers to two or more things simultaneously or when the language is difficult to comprehend, is of doubtful import, or lacks clearness or definiteness." Id. at 227 n.8, 623 S.E.2d at 926 n.8 (citations, internal quotation marks, and alteration omitted). This statute, Code § 18.2-308.2(A), lacks definition and is therefore ambiguous as to whether possession of a single firearm on different dates or at different times constitutes one continuous offense or multiple offenses.

Since we find the statute ambiguous as to when one offense ends and the next begins, we join the Court of Appeals of Virginia and the appellate courts of many other jurisdictions in using the gravamen of the offense to determine the legislature's intent. See, e.g., Acey v. Commonwealth, 29 Va. App. 240, 249-50, 511 S.E.2d 429, 433-34 (1999) (finding simultaneous possession of multiple firearms does not justify multiple convictions for possession because the possession of a firearm by a felon is, of itself, the dangerousness that is the gravamen of the offense of possession); United States v. Evans, 854 F.2d 56, 60 (5th Cir. 1988) (determining that the making of a false statement, not the acquisition of the firearm, was the gravamen of the offense of the crime of furnishing false identification made in connection with the purchase of firearms and ammunition); Bautista v. State, 863 So. 2d 1180, 1186-87 (Fla. 2003) (finding the gravamen of the offense of DUI manslaughter to be the killing of a human being rather than a traffic violation).

In creating this statutory offense, the General Assembly recognized that each act of possessing the firearm places the public in a heightened level of danger that does not coincide with the defendant's initial receipt of the firearm. This is evidenced by the language of Code § 18.2-308.2, which, along with possession of a firearm, includes specific prohibitions against the distinct acts of transporting a firearm and "carry[ing] about [the felon's] person, hidden from common observation, any weapon" named in the statute. We have held that "every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary." Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998). We therefore find that the inclusion of these specific references expresses the General Assembly's intent that separate instances of possession, and therefore of heightened danger to the community, be punished separately. If the statute was meant to restrict the offense only to the receipt, initial possession, or even extended possession of the weapon, such a specific reference to the transporting or carrying of that weapon would be a frivolous and unnecessary addition to the statutory language. The implicit danger in each separate instance of possession was also noted by the Court in Armstrong v. Commonwealth, 263 Va. 573, 582-83, 562 S.E.2d 139, 144 (2002), where we found a felon "unfit to possess firearms," making each possession of a firearm by a felon, whether for a lawful or unlawful purpose, the conduct the General Assembly intended to curtail.

The General Assembly's goal in punishing a convicted felon for possessing or transporting a firearm is therefore not limited to preventing a felon's receipt or initial possession of a firearm, but extends to the prevention of the heightened danger each new instance of possession creates. In light of the legislative intent behind this provision, each separate incident of possession of a firearm by a convicted felon proven by the Commonwealth establishes a new offense because each incident is sufficient to create a new danger to members of the community exposed to the armed felon."

Justice Powell, Dissenting

"In my opinion, the majority fails to apply a crucial rule of statutory construction applicable to unit of prosecution cases such as this one. In so doing, the majority ignores the necessary application of the rule of lenity requiring that we construe an ambiguous statute in a criminal defendant's favor. Therefore, I must respectfully dissent...

In attempting to ascertain the General Assembly's intent, the majority is correct that we must look to the gravamen of the offense. However, we must also be mindful of the fact that "[w]hen a penal statute is unclear, the statute must be strictly construed against the Commonwealth and in favor of an accused's liberty, and the accused is entitled to the benefit of any reasonable doubt concerning the statute's construction." Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825 (1998) (emphasis added). Indeed, we have previously recognized that, before the accused can be punished, "'his case must be plainly and unmistakably within the statute.'" Harward v. Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985) (quoting United States v. Lacher, 134 U.S. 624, 628 (1890))...

I am particularly persuaded by the United States Court of Appeals for the Sixth Circuit's decision in United States v. Jones, 533 F.2d 1387 (6th Cir. 1976). The facts of Jones are markedly similar to the present case as both cases involve a convicted felon who was observed to have possession of the same firearm on three separate occasions over a three year period which ultimately resulted in three convictions for possession of a firearm by a convicted felon. Id. at 1389-90. In reversing two of the convictions, the Sixth Circuit explained:

It is true that in the case at bar the Government is claiming that Jones possessed the pistol on three separate occasions, not that continuous possession existed which has been broken down into arbitrary time period[s]. With equal propriety the Government might have charged Jones with possession on more than 1100 separate days and obtained convictions to imprison Jones for the rest of his life. The fact that the Government merely has proof that he possessed the same weapon on three separate occasions, rather than continuously for a three-year period, should not dictate the result that Jones could receive three times the punishment he would face if continuous possession for a three-year period were proved. There is no proof that there was any interruption in the possession by Jones of the weapon.

Id. at 1391 (emphasis added). The majority in this case, however, would require a different result.

I am also not persuaded by the majority's reliance on the General Assembly's inclusion of "specific prohibitions." The plain language of Code § 18.2-308.2 prohibits a convicted felon from

knowingly and intentionally possess[ing] or transport[ing] any firearm or ammunition for a firearm, any stun weapon as defined by § 18.2-308.1, or any explosive material, or . . . knowingly and intentionally carry[ing] about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308.

In making its argument, the majority fails to recognize the significance of the disjunctive "or" that immediately proceeds the "specific prohibitions" upon which it relies as well as the subsequent change in verbiage regarding the prohibited acts. As evidenced by the use of the word "or," possessing a firearm can be distinguished from carrying a concealed weapon. While every weapon that is concealed is possessed, not every weapon possessed is concealed. Indeed, it is worth noting that the "specific prohibitions" set forth in Code § 18.2-308.2(A) do not prohibit a convicted felon from possessing many of the weapons delineated (firearms being the obvious exception); rather, that portion of the statute only prohibits a convicted felon from carrying and concealing those weapons about his person. Thus, had Baker been charged with carrying a concealed firearm on each of the three occasions, only then would the specific prohibitions be applicable.

Moreover, the presence of this change in verbiage clearly demonstrates the General Assembly's ability to distinguish a distinct unit of prosecution where it elects to do so. In the absence of such an election by the General Assembly, the statute is clearly ambiguous and our jurisprudence requires that we apply the rule of lenity. See Waldrop, 255 Va. at 214, 495 S.E.2d at 825. In my opinion, the proper course of action is to follow the guidelines established in Bell. Such application would necessarily require this Court to hold that the General Assembly only intended to punish as a single offense all acts of dominion demonstrating uninterrupted possession of the firearm. If the General Assembly had intended to punish each time a felon is witnessed to be in possession of a firearm, as the majority suggests, it could have done so by forbidding each act of dominion instead of the entire course of conduct.

It is further worth noting that the majority's stated holding necessitates reversal in the present case. The majority specifically holds that "a new offense of possession can be established with each separate act or occurrence that can be proven by the government." However, as previously discussed, possession is a continuing offense. Therefore, it is axiomatic that, in order for there to be a separate act or occurrence of possession, there must be some form of interruption in the initial act or occurrence of possession. See, e.g., Rivera, 77 F.3d at 1351 ("Where there is no proof that possession of the same weapon is interrupted, the Government may not arbitrarily carve a possession into separate offenses"); United States v. Conley, 291 F.3d 464, 470 (7th Cir. 2002) ("a felon may be charged and convicted of two counts of possessing the same firearm only if: (1) he possesses the weapon; (2) he is aware that his possession of the weapon has been interrupted; and (3) he thereafter reacquires possession of the weapon himself."). In other words, the defendant must have been dispossessed of the firearm before there can be a separate act or occurrence of possession. As there is no evidence of Baker being dispossessed of the firearm, there is only a single act or occurrence of possession. "

October 23, 2012

No Proof of Propellant in Ammunition Needed to Convict Under § 18.2-308.2(D)

Williams v. Commonwealth, __ Va. App. __, __ S.E.2d __ (2012)

"Orlando Rondell Williams, appellant, was convicted in a bench trial of possession of ammunition for a firearm by a felon, in violation of Code § 18.2-308.2 . On appeal, he challenges the sufficiency of the evidence. Specifically, appellant contends that the Commonwealth's evidence failed, as a matter of law, to prove beyond a reasonable doubt that the cartridges found on his person contained a propellant.

...The legislature intended to keep firearms and ammunition out of the hands of felons. Code § 18.2-308.2(D) requires the ammunition to be designed for use in a firearm. Armstrong defines a firearm as "an instrument which was designed, made, or intended to expel a projectile by means of an explosion." The emphasis in both definitions is the design, and not the operability, of the firearm or ammunition.

Clearly, a bullet designed for use in a firearm does not need to be operable, i.e. to be capable of firing a round by the use of a propellant. If a bullet was so designed, one could remove the gunpowder, but the design would remain the same, and the bullet would still be governed by Code § 18.2-308.2(D).

We find nothing in the statute that indicates it was the "obvious intention of the legislature" that the disjunctive "or" was intended to mean "and." To the contrary, such an interpretation of the definition of ammunition, i.e. the inclusion of a propellant, makes operability a required element. To find such is contrary to Armstrong's definition of a firearm and contrary to the Code § 18.2-308.2(D) definition. Further, Officer Kleinholz testified, without objection, that a cartridge consists of a metal casing, a bullet, and usually a propellant of gunpowder. He described the two cartridges in evidence as complete cartridges. The trial court found, based on this testimony, it would have to speculate to believe the cartridges had no propellant inside. The officer's testimony supported the trial court's finding."

September 14, 2012

A Felons Restoration of Firearms Rights Is Contingent Upon the Circuit Courts, not Solely by Executive Clemency

Gallagher v. Commonwealth, __ Va. __, __ S.E.2d __ (2012)

We construe the term "power to . . . remove political disabilities," contained in Article V, Section 12 of the Constitution, not to include the power to restore firearm rights. There is therefore no overlap or tension between Article V, Section 12 and Article VI, Section 1, and no violation of the separation of powers guaranteed by Article III, Section 1 of the Constitution...

"A person convicted of a felony in Virginia must first obtain an order from the Governor removing his political disabilities as a condition precedent to his right to petition the circuit court for restoration of his firearm rights. A person convicted of a felony in another jurisdiction may similarly satisfy that condition precedent by first obtaining a restoration of his civil rights from the appropriate authority of that jurisdiction.

We have concluded, for the constitutional reasons discussed above, that firearm rights may only be restored to a convicted felon by a permit issued by a circuit court. To the extent Farnsworth can be read to imply that a Governor's order removing political disabilities would be sufficient alone to restore a felon's firearm rights, without a permit issued by a circuit court pursuant to Code § 18.2-308.2(C), Farnsworth is expressly overruled."

July 1, 2012

New/Changed Laws That Take Effect on July 1, 2012

Va. Code § 18.2-308.2:2 Repeal of the One Handgun A Month Limitation on Purchase

Strike all of Section P

Va. Code § 18.2-308 Concealed Weapons

Change in Section B(3) & Add B(11):

3. Any regularly enrolled member of a target shooting organization person who is at, or going to or from, an established shooting range, provided that the weapons are unloaded and securely wrapped while being transported;

11. Any enrolled participant of a firearms training course who is at, or going to or from, a training location, provided that the weapons are unloaded and securely wrapped while being transported.

Change in Section D, Add: No information or documentation other than that which is allowed on the application in accordance with this subsection may be requested or required by the clerk or the court.

Change in Section D: Strike entire section that allows for Local Governments to Fingerprint Applicants

As a condition for issuance of a concealed handgun permit, the applicant shall submit to fingerprinting if required by local ordinance in the county or city where the applicant resides and provide personal descriptive information to be forwarded with the fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding the applicant, and obtaining fingerprint identification information from federal records pursuant to criminal investigations by state and local law-enforcement agencies. However, no local ordinance shall require an applicant to submit to fingerprinting if the applicant has an existing concealed handgun permit issued pursuant to this section and is applying for a new five-year permit pursuant to subsection I. Where feasible and practical, the local law-enforcement agency may transfer information electronically to the State Police instead of inked fingerprint cards. Upon completion of the criminal history records check, the State Police shall return the fingerprint cards to the submitting local agency or, in the case of scanned fingerprints, destroy the electronic record. The local agency shall then promptly notify the person that he has 21 days from the date of the notice to request return of the fingerprint cards, if any. All fingerprint cards not claimed by the applicant within 21 days of notification by the local agency shall be destroyed. All optically scanned fingerprints shall be destroyed upon completion of the criminal history records check without requiring that the applicant be notified. Fingerprints taken for the purposes described in this section shall not be copied, held or used for any other purposes.

Change in Section H, Add:

Failure to display the permit and a photo identification upon demand by a law-enforcement officer shall be punishable by a $25 civil penalty, which shall be paid into the state treasury. Any attorney for the Commonwealth of the county or city in which the alleged violation occurred may bring an action to recover the civil penalty. A court may waive such penalty upon presentation to the court of a valid permit and a government-issued photo identification. Any law-enforcement officer may issue a summons for the civil violation of failure to display the concealed handgun permit and photo identification upon demand.

Va. Code § 18.2-283.1 Carrying Weapon into Courthouses

Change : "The provisions of this section shall not apply to any police officer, sheriff, law-enforcement agent or official, conservation police officer, conservator of the peace, magistrate, court officer, judge, or city or county treasurer while in the conduct of such person's official duties.

Va. Code § 30-34.2:2 Disposal of unclaimed firearms or other weapons in possession of the Division of Capitol Police (New Code Section)

Subject to the provisions of § 19.2-386.29, the Division of Capitol Police may destroy unclaimed firearms and other weapons that have been in the possession of the Division for a period of more than 60 days. For the purposes of this section, "unclaimed firearms and other weapons" means any firearm or other weapon belonging to another that has been acquired by a law-enforcement officer pursuant to his duties, that is not needed in any criminal prosecution, that has not been claimed by its rightful owner, and that the State Treasurer has indicated will be declined if remitted under the Uniform Disposition of Unclaimed Property Act (§ 55-210.1 et seq.).

At the discretion of the chief of police or his designee, unclaimed firearms or other weapons may be destroyed by any means that renders the firearms or other weapons permanently inoperable. Prior to the destruction of such firearms or other weapons, the chief of police or his designee shall (i) make reasonable attempts to notify by mail the rightful owner of the property and (ii) obtain from the attorney for the Commonwealth of the jurisdiction from which the unclaimed item came into the possession of the Division of Capitol Police in writing a statement advising that the item is not needed in any criminal prosecution.

Va. Code § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

Add to A:

However, no locality shall adopt any workplace rule, other than for the purposes of a community services board or behavioral health authority as defined in 37.2-100, that prevents an employee of that locality from storing at that locality's workplace a lawfully possessed firearm and ammunition in a locked private motor vehicle.

The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or , juvenile detention facility, or state-governed entity, department, or agency.

Add new Section D:

D. For purposes of this section, "workplace" means "workplace of the locality."

Va. Code § 15.2-915.5. Disposition of firearms acquired by localities. (New Code Section)

A. No locality or agent of such locality may participate in any program in which individuals are given a thing of value provided by another individual or other entity in exchange for surrendering a firearm to the locality or agent of such locality unless the governing body of the locality has enacted an ordinance, pursuant to § 15.2-1425, authorizing the participation of the locality or agent of such locality in such program.

B. Any ordinance enacted pursuant to this section shall require that any firearm received, except a firearm of the type defined in § 18.2-288 or 18.2-299 or a firearm the transfer for which is prohibited by federal law, shall be offered for sale by public auction or sealed bids to a person licensed as a dealer pursuant to 18 U.S.C. § 921 et seq. Notice of the date, time, and place of sale shall be given by advertisement in at least two newspapers published and having general circulation in the Commonwealth, at least one of which shall have general circulation in the locality in which the property to be sold is located. At least 30 days shall elapse between publication of the notice and the auction or the date on which sealed bids will be opened. Any firearm remaining in possession of the locality or agent of the locality after attempts to sell at public auction or by sealed bids shall be disposed of in a manner the locality deems proper, which may include destruction of the firearm or, subject to any registration requirements of federal law, sale of the firearm to a licensed dealer.

Va. Code § 44-146.15. Construction of chapter. Emergency Declarations

Nothing in this chapter is to be construed to:

3. Empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms as guaranteed by Article I, Section 13 of the Constitution of Virginia or the Second Amendment of the Constitution of the United States, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms except to the extent necessary to ensure public safety in any place or facility designated or used by the Governor, any political

Va. Code § 24.2-643. Qualified voter permitted to vote; procedures at polling place; voter identification.

Add to Section B: his concealed handgun permit issued pursuant to § 18.2-308

May 25, 2012

Attorney General Opinion On Handgun In a "Secured Container" under § 18.2-308(B)(10)

Op. Va. Att'y Gen. No. 11-111 (May 25, 2012) :

"It is my opinion that, provided the handgun is properly secured in a container or compartment within the vehicle, persons who may lawfully possess a firearm but have not been issued a concealed weapons permit may possess, in a vehicle, a handgun that is loaded and the handgun may remain within reach of a driver or passenger under such conditions. It further is my opinion that, for a handgun to be "secured in a container or compartment," such storage tool need not be locked. Finally, it is my opinion that an individual may not keep a firearm stored in his vehicle at a place of employment if there is a company policy or signage prohibiting firearms on the premises."

..."You next ask whether a handgun that is being transported in a motor vehicle may be within reach of the driver or a passenger. Section § 18.2-308(A) makes it a Class 1 misdemeanor for any person without a permit to carry a firearm "about his person, hidden from common observation." Under the statute, "about his person" contemplates "the accessibility of a concealed weapon for prompt and immediate use"12 and therefore such weapon may not be within reach. Nonetheless, § 18.2-308(B)(10) provides an exception to the prohibition when carrying a handgun in a vehicle. That exception applies when the handgun is "secured in a container or compartment in the vehicle[.]" There is no further condition placed on the exception. Thus, provided the handgun is stored accordingly, it can be within the reach of a driver or a passenger inside the vehicle.

You also ask whether a center console, glove compartment or any other "container or compartment'' must be locked to constitute a "secured container or compartment." The legislative history of the 2010 amendment shows that the container or compartment storing the handgun need not be locked for the exception to apply. When § 18.2-308 was amended to include § 18.2-308(B)(10), "locked in a container or compartment'' was considered as possible statutory language;13 however, "secured in a container or compartment" was the wording that was ultimately adopted.14 By choosing "secured" instead of"locked," the General Assembly evinced its intention that a handgun may be carried in a vehicle without requiring the container or compartment storing it to be locked.15"

May 7, 2012

State Park Regulation on Firearms Repealed

The regulation was officially repealed on May 7, 2012.

March 2, 2012

The King is Back on His Throne, Disguised as the Commonwealth

Cuccinelli v. Rector and Visitors of University of Virginia, __ Va. __, __ S.E.2d __ (2012)

"It is well-settled law that Commonwealth agencies are not bound by statutes of general application "no matter how comprehensive the language, unless named expressly or included by necessary implication." Commonwealth ex. rel. Pross v. Board of Supervisors of Spotsylvania County, 225 Va. 492, 494, 303 S.E.2d 887, 889 (1983) (emphasis added). This "ancient rule of statutory construction" has been "consistently applied by this Court for more than a century." Id. See, e.g., Whiteacre v. Rector, 70 Va. (29 Gratt.) 714, 716 (1878) ("It is old and familiar law . . . that where a statute is general, and any . . . interest is diverted or taken from the king, . . . the king shall not be bound unless the statute is made by express words or necessary implication to extend to him."); Levasser v. Washburn, 52 Va. (11 Gratt.) 572, 577 (1854) ("[L]egislative acts are intended to regulate the acts and rights of citizens; and it is a rule of construction not to embrace the government or effect its rights by the general rules of a statute, unless it be expressly and in terms included or by necessary and unavoidable implication.")."

Historical Note from Virginia1774:

"RESOLVED that the most important and valuable Part of the British Constitution, upon which its very Existence depends, is the fundamental Principle of the People's being governed by no Laws, to which they have not given their Consent, by Representatives freely chosen by themselves; who are affected by the Laws they enact equally with their Constituents; to whom they are accountable, and whose Burthens they share; in which consists the Safety and Happiness of the Community: for if this Part of the Constitution was taken away, or materially altered, the Government must degenerate either into an absolute and despotic Monarchy, or a tyrannical Aristocracy, and the Freedom of the People be annihilated" - George Mason, Fairfax County Resolves (July 18, 1774).

Observation From Virginia1774:

Why did the Court not cite the Constitution of Virginia?

Va. Const. Art. V § 8, Information from administrative officers

"The Governor may require information in writing, under oath, from any officer of any executive or administrative department, office, or agency, or any public institution upon any subject relating to their respective departments, offices, agencies, or public institutions; and he may inspect at any time their official books, accounts, and vouchers, and ascertain the conditions of the public funds in their charge, and in that connection may employ accountants. He may require the opinion in writing of the Attorney General upon any question of law affecting the official duties of the Governor."

Va. Const. Art. IX § 7. Exclusions from term "corporation" or "company."

"The term "corporation" or "company" as used in this article shall exclude all municipal corporations, other political subdivisions, and public institutions owned or controlled by the Commonwealth."

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