COUNSEL

Robert Ross, Esq.
Assistant County Attorney, Fairfax
12000 Government Center Parkway
Room 549
Fairfax, Virginia 22035-0064

Ronald Smith, Esq.
Lawrence, Smith & Gardner
3900 University Dr.
Suite 320
Fairfax, Virginia, 22030-2513

LETTER OPINION BY JUDGE DENNIS J. SMITH:

This matter came to be heard on Friday, April 4, 2003 upon Defendant's demurrer to Plaintiffs Motion for Declaratory Judgment. After hearing argument, this Court took under advisement the issue of whether the Fairfax County Police Department may require applicants for concealed handgun permits to present evidence of residency in addition to the information requested on the State application pursuant to Virginia Code section 18.2-308. After further consideration of this matter, the Defendant's demurrer is SUSTAINED.

The ability of this Court to grant applications for concealed handgun permits is contingent upon this Court having jurisdiction. The Fairfax County Circuit Court may only grant concealed handgun permits to those applicants who reside within our jurisdiction. See Va. Code Ann. § 18.2-308(D) (Michie 2003). As a result, it is imperative that this Court, with the assistance of the Fairfax County Police Department, take the necessary steps to insure that applicants are in fact residents of Fairfax County. This is a daunting task considering the population of Fairfax County, the close proximity of neighboring jurisdictions, including jurisdictions outside of Virginia, and the ease and frequency with which residents move between these jurisdictions.

Virginia Code section 18.2-308(D) vests this Court with the power to require documentation to confirm an applicant's residence, and thus establish jurisdiction. Specifically, the statute states that, "[tjhe application shall be made under oath before a notary or other person qualified to take oaths and shall be made only on a form prescribed by the Department of State Police, in consultation with the Supreme Court, requiring only that information necessary to determine eligibility for the permit. The court shall consult with either the sheriff or police department of the county or city and receive a report from the Central Criminal Records Exchange." Va. Code Ann. § 18.2-308(D) (Michie 2003) (emphasis added). As previously stated, a predicate to this Court's authority to issue concealed handgun permits is that the applicant is a resident of Fairfax County, Fairfax City, or the towns of Vienna or Herndon. Additionally, the Court and the Police Department are charged with the responsibility of determining whether the applicant is ineligible due to a disqualifying criminal record. The submission of corroborating proof of residence is a reasonable request "requiring only . . . information necessary to determine eligibility for the permit," e.g., residence, both for purposes of establishing jurisdiction and to facilitate the record check mandated by statute.

Plaintiff may choose to submit his application without proof of residency. Upon rejection of the application, pursuant to Virginia Code section 18.2-308(I), Plaintiff may then file a request for an ore tenus hearing where he may prove residency, and therefore jurisdiction, by one of the methods set out in the "Notice to All Applicants," or by any other means he chooses. Of course, the proof presented at the hearing must establish his residence at an address within the jurisdiction of the Court by a preponderance of the evidence.

Defendants' Demurrer is sustained with prejudice and accordingly. Plaintiffs Bill of Complaint is dismissed. Mr. Ross is to prepare an Order and circulate it for signature. The parties are to appear at 11:30 a.m. on May 30, 2003 for entry of the Order, unless it is agreed to as to form, fully endorsed, (with any exceptions noted), and submitted for entry before that date.