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Thread: New to open carry, just a couple of questions.

  1. #1
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    Well, I've been trolling on these boards for a while, but after not finding anyone with apparent similar concerns as I have I guess I need to post. Why not, yall look like a good group of guys to chat with anyways.

    Fist off I just bought my first gun, a Glock 21SF and I love this thing. I was lamenting the fact that I can't get my CHP until July 26th when I turn 21, but then I realized that I can open carry!

    I wanted to be sure everything I have been doing is perfectly legal so here comes the questions.
    • I have attached velcro straps to the dashboard of my car to make sure the gun doesnt slide around. I belive that it must be carried on the dash or front seat, however removing it from the dash and holstering it involves handeling the gun. Could that be considered brandishing or somehow twisted into something illegal by a cop in a bad mood?
    • When I first went to the gun shop to buy my first holster I had no choice but to carry the gun into the shop in my hand. The store was all out of 21SF's with the Pic rails so I had to bring mine in to make sure it fit. Was that legal? (not that I had any issues)
    • I know a law that would have allowed me to carry the gun in my glovebox while driving got vetoed, but can I store the gun in my glovebox if I go somewhere where I cannot carry?
    • Am I correct in believing that all I am compeled to tell a cop is my name and state of residence? Do I need to tell him my county or city even though state gun laws have full preemption?
    • I don't want to go LEO bashing, but needless to say there are some who wish open carry was illegal and may give me trouble. Is it legal to use my cell phone or another device to record the interaction without informing the officer?
    • When I finally get my CHP, can I go from conceled to open at will, or would doing so be considered brandishing?
    • Though I will likely not do this, I considered it the first time I drove with the gun sliding around on my dashboard. Can I carry my gun without a round in the chamber while driving, then chamber a round before holstering, or would the act of racking the slide in my car be illegal?
    • Finally, if I am asked to leave a business by an employee can I stay on the premisis and ask to see a manager without being considered trespassing? Basically who is allowed to kick me out and how much time do I have to comply? Do I have to leave immediately and not pay for whatever food I may have consumed?
    I know I'm a pretty needy n00b, but thanks for your help and I look forward to being involved in the forum.

    BTW mods, I wasn't sure if this went better in the questions or VA forum. It seems state specific questions are being moved to the state forums, but please move it if I am wrong.

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    asforme wrote:
    Well, I've been trolling on these boards for a while, but after not finding anyone with apparent similar concerns as I have I guess I need to post. Why not, yall look like a good group of guys to chat with anyways.

    Fist off I just bought my first gun, a Glock 21SF and I love this thing. I was lamenting the fact that I can't get my CHP until July 26th when I turn 21, but then I realized that I can open carry!

    I wanted to be sure everything I have been doing is perfectly legal so here comes the questions.
    • I have attached velcro straps to the dashboard of my car to make sure the gun doesnt slide around. I belive that it must be carried on the dash or front seat, however removing it from the dash and holstering it involves handeling the gun. Could that be considered brandishing or somehow twisted into something illegal by a cop in a bad mood? Check out this link for definition of brandishing: http://leg1.state.va.us/cgi-bin/legp504.exe?000+coh+18.2-282+408238
    • When I first went to the gun shop to buy my first holster I had no choice but to carry the gun into the shop in my hand. The store was all out of 21SF's with the Pic rails so I had to bring mine in to make sure it fit. Was that legal? (not that I had any issues) Walking around with a pistol in your hand in front of a shop is probably not the smartest thing to do. You could have brougth the pistol in the case that came with your gun or a backpack. It's probably not wise to walk around with the gun in your hand as that could be considered brandishing IMO.
    • I know a law that would have allowed me to carry the gun in my glovebox while driving got vetoed, but can I store the gun in my glovebox if I go somewhere where I cannot carry? Yes you can store it in your glovebox, but it's probably not the best solution. They sell little safes that you can hide in your car: http://www.center-of-mass.com/
    • Am I correct in believing that all I am compeled to tell a cop is my name and state of residence? Do I need to tell him my county or city even though state gun laws have full preemption? It all depends on the situation. If you're driving, you have to provide him with your operators license.
    • I don't want to go LEO bashing, but needless to say there are some who wish open carry was illegal and may give me trouble. Is it legal to use my cell phone or another device to record the interaction without informing the officer? I can't find the cite for it, but if memory serves me correctly you can audio record in public without informing. I think it's only a phone conversation that you have to inform.
    • When I finally get my CHP, can I go from conceled to open at will, or would doing so be considered brandishing? See definition of brandishing above
    • Though I will likely not do this, I considered it the first time I drove with the gun sliding around on my dashboard. Can I carry my gun without a round in the chamber while driving, then chamber a round before holstering, or would the act of racking the slide in my car be illegal? You can OC a gun in any condition in your vehicle. Since you do not have a CHP, and if you didn't want to OC it, you would have to "secure the weapon and it would also have to be unloaded": http://leg1.state.va.us/cgi-bin/legp...8.2-308+503234
    • Finally, if I am asked to leave a business by an employee can I stay on the premisis and ask to see a manager without being considered trespassing? Basically who is allowed to kick me out and how much time do I have to comply? Do I have to leave immediately and not pay for whatever food I may have consumed? Personally, once asked to leave by any store employee, I'm leaving. No need for me to have a round of verbal judo, while someone calls the cops on me. I can always follow up with a phone call to the business or corporate office.
    I know I'm a pretty needy n00b, but thanks for your help and I look forward to being involved in the forum.

    BTW mods, I wasn't sure if this went better in the questions or VA forum. It seems state specific questions are being moved to the state forums, but please move it if I am wrong.

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    Point 1: doesn't really matter where the gun is as long as it's visibly a gun. I highly suggest NOT putting it on the dash as it's guaranteed to slip and slide off. I suggest putting it on a seat of some kind, and the back seat is OK too.

    point 2: In Virginia, brandishing is specific - you have to handle the gun in a way that a reasonable person would fear that you're going to shoot them. So while there's nothing really against carrying a gun in your hand in the majority of circumstances, that can change if there's a confrontation of some sort.

    Point 4: As a general rule it's ok to use video or audio recording in public, regardless of who's present. just be careful that you don't put yourself in a situation of "obstructing justice" whatever that means.

    Point 5: See point 2. It's dependant upon the circumstances. standing outside of your car minding your own business while you take off your jacket really shouldn't give you too much grief; during an argument would be a different story.

    Point 6: There's nothing illegal about racking the slide, loading or unloading in your car or in public. But again, refer to the brandishing scenario, and the fact that you're going to look pretty odd sitting there in your car locking and loading. Don't forget that the more a gun is "handled" the higher the risk of a negigent discharge (based upon the principal that a person that doesn't drive or ride in a motor vehicle has a very small chance of being in a car accident, vs. someone who drives 100 miles a day)
    Based upon these points, my suggestion is to leave the gun alone as much as you can.


    See the virginia statute on brandishing for more info:

    http://law.justia.com/virginia/codes.../18.2-282.html

    BTW, welcome to the boards!



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    asforme wrote:
    SNIP Am I correct in believing that all I am compeled to tell a cop is my name and state of residence? Do I need to tell him my county or city even though state gun laws have full preemption?for your help and I look forward to being involved in the forum.

    There is no law in VA requiring you to identify yourself to an LEO.

    You are required to provide a driver's license if stopped while driving, of course. But if you are on foot, or not driving, there is no law requiring you to identify yourself.

    Neither is there any law in VA requiring you to carry ID. Carrying a driver's license while driving is a different matter. Carrying a Concealed Handgun Permit when carrying concealed, is a different matter also, including theproperphotoID you have tocarry along with the CHP.

    However, refusing a request or demand will likely bring antagonism and commentary about how if you have nothing to hide, why won't you cooperate?It may also prolong a detention.

    If you are given a summons, there are LEO's who will arrest you for refusing to provide ID, using the provision in the law that lets them arrest a misdemeanant who they believe will ignore the summons. The rationale used is that they can't track down someone who may have verbally given them a false name. Refusing the ID being, to them, clear cut evidence that you are giving them a false name with the intention of not appearing in court.

    You have to decide for yourself whether to identify yourself.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Thank you all for your help. I have tested my velcro solution and am very confident in it, but if the law simply states that it must be visibly a gun, does that mean that I can carry it in the car on my belt? I was told that it had to be on the seat or dash.

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    asforme wrote:
    SNIP I don't want to go LEO bashing, but needless to say there are some who wish open carry was illegal and may give me trouble. Is it legal to use my cell phone or another device to record the interaction without informing the officer?
    Virginia is known as a one-party consent state, meaning that as long as one of the parties being recordedconsentsto the recording, it is generally legal.

    ยง 19.2-62. Interception, disclosure, etc., of wire, electronic or oral communications unlawful; penalties; exceptions....

    B2. It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.


    However, discretion is advised. If the officer interacting with you knows he is being recorded, he may seize the device, taking your evidence.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    asforme wrote:
    Thank you all for your help. I have tested my velcro solution and am very confident in it, but if the law simply states that it must be visibly a gun, does that mean that I can carry it in the car on my belt? I was told that it had to be on the seat or dash.
    from 18.2-308
    "For the purpose of this section, a weapon shall be deemed to be hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon's true nature."

    this doesn't specify where or how, but in my non-lawyer mind, these places would be ok:

    Dash
    Seat
    on top of or in a visible pocket of most center consoles
    holster somehow secured to the dashboard

    these places wouldn't be OK in my mind (unless you had a CHP)

    Door pocket
    overhead, but open pocket (like where you would store sunglasses)
    Under the pile of sh*t in your back seat


    The debate about it being openly carried on your belt has been debated here before, and i don't think there really are any right or wrong answers. And until the supreme court rules on it, i don't think there will be any right or wrong answers. It also depends on your car. In my car (a pontiac grand prix) i sit pretty deep in the car, so even my phone on my hip would be "concealed." However, a pickup with a straight bench seat may be a different story.

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    You've asked plenty of good questions.

    One area to not overlook is 4th Amendment court opinions.

    Your 4th Amendment rights regardingencounters with police are defined in court opinions.

    I recommend that over the next several months you become a screaming expert at 4th Amendment case law. Its not literally necessary, but when you know the law cold, your confidence goes way up, and you become immune to the various verbal tactics police can try on you. That is to say, you know when they are handing you some BS. And you can work with it to your advantage.


    Agood place to start is www.flexyourrights.org


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Thanks again, maybe I need to learn how to use the state website and research these laws myself, but I'm not too good with leagalese, and typically laws have very loose meanings until there is a court case to set a precedent.

    So it looks like I have my bases covered as far as OC goes... Now to work on convincing my school that regulating itself as a victim disarmament zone does not enhance the educational experience. You'd think the school rated as one of the most conservative in the country (Liberty University) would be leading the charge on this!


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    asforme wrote:
    Thank you all for your help. I have tested my velcro solution and am very confident in it, but if the law simply states that it must be visibly a gun, does that mean that I can carry it in the car on my belt? I was told that it had to be on the seat or dash.
    Welcome to the wonderful workings of the law as administered by human beings.

    The real question is whether a police officer will treat a gun anywhere besides seat or dash as "concealed." If he's anti-gun for citizens, or doesn't like one of your bumper stickers, he may try to apply his own interpretation of the law against you. Or find inventive ways to apply (mis-apply) the law.

    I don't know of any requirement that clearly says "dash or seat". However, if its on the dash or seat, in clear view, it would be hard for a police officer to claim it was concealed.

    So, the safest place (safest from inventive interpretations of the law) is the dash or seat.

    If I show it during a traffic stop (I have a CHP), I'm planning on laying it on the dash right next to the VIN plate. Nobody can claim they didn't notice it there.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    asforme wrote:
    Thanks again, maybe I need to learn how to use the state website and research these laws myself,
    No maybe's to it.

    You definitely want to do that. The subject is too important to take the word or gosh-knows-who on some internet web forum. You want to have real certainty on what the law says.

    You've made a good start.The wonderful thing about a forum like this is thatmany people hereknowwhere tofind the laws.If you can't find it after a little looking yourself, just ask.

    Checkgunstores forThe Virginia Gun Owner's Guide by Bloomfield Press. Oryou can order one directly from them on line. Its www.gunlaws.comI believe. A real trove of info, plus some of the statutes are reproduced right in thebook.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    asforme wrote:
    So it looks like I have my bases covered as far as OC goes... Now to work on convincing my school that regulating itself as a victim disarmament zone does not enhance the educational experience. You'd think the school rated as one of the most conservative in the country (Liberty University) would be leading the charge on this!
    You might plan that campaign well before you start.

    Maybe hunt up a group called Students for Campus Carry to get some ideas. They had their own sub-forum here a while back. It may still be linked on the home page.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Lol good plan. I was more ranting about the fact that the administration doesn't really care about how many people are wearing empty holsters. But I guess in the end its my decision and I guess I've decided that I will risk being killed by a psycho for the opportunity to earn a degree.

    However I will be OC'ing just about everywhere else. Its not worth disarming myself to patronize a business that does not value my safety. Thats what I love about OC, now I get to see where all of the local businesses stand on the issue.

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    asforme wrote:
    Thank you all for your help. I have tested my velcro solution and am very confident in it, but if the law simply states that it must be visibly a gun, does that mean that I can carry it in the car on my belt? I was told that it had to be on the seat or dash.
    Now I suggest that you test your velcro solution by going about 60mph and standing on the brakes, stopping as short as you can without touching your pistol. Where is it going to end up?

    Now think about the fact that you didn't pull nearly as many g's as you would have in a 30 mph collision. If someone hits you at 30mph your velcroed pistol essentially becomes a 40 lb brick at the moment of impact. Where is that 40lb brick going to be, what is it going to hit and who is going to get hurt by it?


    IMO dash carry in normal driving is a bad idea for both you and the general public.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Regarding the issue of brandishing a weapon in Virginia case law -

    It is not necessary to touch the weapon with your hand(s) to be guilty of brandishing. Iunderstand that many of those who read this forum do not like reading case law, and that some oithers may have difficulty understanding exactly what the case law means. However, it is absolutely necessary to refer to case law when deciding if an action does or does not violate any portion of the Code of Virginia.

    Below is the case law regarding brandishing that is most relevant to the OP's situation. There are other cases that also address brandishing in other settings and circumstances. You can find them at www.virginia1774.org .
    Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
    Agee, JJ., and Carrico, S.J.

    DONOVAN PAYNE MORRIS
    OPINION BY
    v. Record No. 032714 SENIOR JUSTICE HARRY L. CARRICO
    January 14, 2005
    COMMONWEALTH OF VIRGINIA

    FROM THE COURT OF APPEALS OF VIRGINIA

    INTRODUCTION
    At issue in this appeal is Code  18.2-308.2, which makes
    it a Class 6 felony to knowingly and intentionally possess or
    transport a firearm after having been convicted of a felony.
    Also at issue is Code  18.2-282, which makes it a Class 1
    misdemeanor to point, hold, or brandish a firearm in such manner
    as to reasonably induce fear in the mind of another
    . [emphasis added]
    PROCEDURAL BACKGROUND
    In a two-count indictment, Donovan Payne Morris (Morris)
    was charged with possession of a firearm, to-wit, a flare
    pistol, after having been convicted of a felony, and with
    brandishing a firearm. In a bench trial, Morris was convicted
    of both offenses and sentenced to five years' imprisonment with
    three years suspended on the possession charge and to twelve
    months on the brandishing charge.
    One of the judges of the Court of Appeals denied Morris's
    petition for appeal. Morris v. Commonwealth, Record No. 3395-
    02-4 (August 5, 2003). For the reasons assigned in that order,
    a three-judge panel of the Court of Appeals also denied Morris
    an appeal. Morris v. Commonwealth, Record No. 3395-02-4
    (October 30, 2003). We awarded Morris this appeal.
    FACTUAL BACKGROUND
    The record establishes that Morris has a string of nine
    felony convictions dating back to 1977. With respect to the
    present offenses, the evidence shows that on June 20, 2002,
    Peter Molina, an engraver of tombstones, was working in an
    Alexandria cemetery accompanied by his wife, who was his
    business partner. Morris appeared on the scene, dragging a
    bicycle and smelling of alcohol. He sat on a tombstone, staring
    at Molina and his wife, cursing and mumbling. After about five
    minutes, Morris looked at Molina's wife and said, "I'd like
    that." When Molina asked Morris what he had said, Morris stood
    up, "raised up his shirt," and "showed [Molina] this gun he had
    in his waistband."
    [emphasis added]
    Because Molina did not know "what the situation was or what
    the situation could be," he became "worried about" his wife's
    safety and decided he "needed to get her out of there." They
    got into their truck and, as they were leaving the cemetery,
    they encountered Officer Vincent Omundson of the Alexandria
    Police Department.
    Molina told Officer Omundson "there was a man back there
    with a gun in his waistband." Omundson, armed with a shotgun,
    found Morris sitting on "a stump or a bucket," drinking beer.
    When Omundson told Morris to put down his drink and raise his
    hands, Morris responded by reaching under his shirt, pulling out
    the flare gun, and throwing it into some grass about twenty-five
    feet away. After some resistance from Morris, Omundson arrested
    him and retrieved the flare gun. One "fired round" of
    ammunition was found in the flare gun and three "loaded rounds"
    were found on Morris's person.
    STANDARD OF REVIEW
    In keeping with familiar principles, we will consider the
    evidence and all reasonable inferences fairly deducible
    therefrom in the light most favorable to the Commonwealth, the
    prevailing party below. Dowden v. Commonwealth, 260 Va. 459,
    461, 536 S.E.2d 437, 438 (2000). However, since the statutes at
    issue here are penal in nature, they must be construed strictly
    against the Commonwealth, and any ambiguity or reasonable doubt
    as to their meaning must be resolved in Morris's favor. See
    Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761
    (1979). But this does not mean that Morris is entitled to a
    favorable result based upon an unreasonably restrictive
    interpretation of the statutes. See id.
    DISCUSSION
    Possession of a Firearm

    As noted previously, Code  18.2-308.2 proscribes the
    possession of a firearm by a convicted felon. While this Code
    section does not define the term "firearm," we held in Armstrong
    v. Commonwealth, 263 Va. 573, 562 S.E.2d 139 (2002), that "in
    order to sustain a conviction for possessing a firearm in
    violation of Code  18.2-308.2, the evidence need show only that
    a person subject to the provisions of that statute possessed an
    instrument which was designed, made, and intended to expel a
    projectile by means of an explosion." 263 Va. at 584, 562 S.E.
    2d at 145.
    Morris was certainly a person subject to the provisions of
    Code  18.2-308.2. He contends, however, that the Commonwealth
    did not prove that a flare gun is a firearm as the latter term
    is defined in Armstrong, i.e., an instrument which was designed,
    made, and intended to expel a projectile by means of an
    explosion.
    We disagree with Morris. Detective William Bunney of the
    Alexandria Police Department was recognized by the trial court
    as "an expert in the field of firearms." Detective Bunney
    examined Morris's flare gun and test-fired it, using two of the
    three rounds of ammunition recovered from Morris's person.
    Detective Bunney testified that the flare gun operated "the
    way it was intended to by the manufacturer, meaning [the] hammer
    comes back, stays in the locked position until the trigger is
    pulled and the hammer falls forward, and when it falls forward,
    the firing pin falls forward of the breech plate so that it will
    strike the primer of the shell to ignite the primer, to ignite
    the propellant, to send a projectile downrange." Detective
    Bunney explained that the primer is "sort of like a dynamite
    cap. It's an initiator of . . . a larger explosion."
    Detective Bunney also testified that a round of ammunition
    identical to that found on Morris's person contains a projectile
    made up of a metal cap holding a mixture of black powder and
    paraffin. The detective said that black powder is an explosive
    and that it was the cause of "a burnt residue" found inside the
    empty cartridges of the two rounds of ammunition used in the
    test-firing.
    In the test-firing, Detective Bunney set up a paper target
    "at the approximately 25 yard line" of the firing range. When
    he pulled the trigger on the flare gun, he "felt a decidable
    recoil within the firearm" and "[s]moke appeared at the muzzle
    end." He saw "an object leave the barrel," saw "an object . . .
    hit the paper [target]," and heard a "metallic object strike a
    metallic object further downrange." A metal deflection guard
    was in place "at the further end of the range."
    The first time Detective Bunney fired the flare gun, he
    used only a paper target. The shot traveled through the paper
    and produced two holes. On the second shot, the detective
    backed up the paper target with a cardboard target. The shot
    traveled through the paper and the cardboard and produced two
    holes. Detective Bunney likened his test-firing of the flare
    gun with his experience in firing a 12-gauge shotgun "at medium
    to short distances," where one hole is created in a target by
    the projectile and one is created by wadding.
    Finally, Detective Bunney was asked whether the trigger,
    hammer, barrel or breech, and firing pin of the flare gun were
    "consistent or inconsistent with other firearms with which [the
    detective was] familiar." He answered, "[c]onsistent."
    Accordingly, we conclude that the Commonwealth proved that
    Morris possessed an instrument that was designed, made, and
    intended to expel a projectile by means of an explosion.
    Morris argues, however, that under Code  18.2-308.2, the
    Commonwealth had the burden of proving that he "knowingly and
    intentionally" possessed a firearm. Citing Staples v. United
    States, 511 U.S. 600 (1994), Morris states that "[a]n essential
    element of the crime that must be proved beyond a reasonable
    doubt is mens rea, scienter, or criminal intent," yet the
    Commonwealth did not show that he "knew that [his] flare gun was
    a firearm."
    Morris cites a stipulation entered into below stating that
    flare pistols and flares are sold at a retail store in
    Alexandria; that these items are not kept under lock and key;
    that the store has no minimum age of purchase for the items,
    does not require registration of the items or a waiting period
    for their purchase, observes no restriction on the sale of the
    items, and does not require a potential purchaser to produce
    identification. Morris then says that "[t]here is apparently
    little to no regulation of who may purchase or possess flare
    guns in Virginia" and that "[n]o average, reasonable person
    would ever consider that possession of [a] plastic safety device
    that can be purchased with no restrictions and is not otherwise
    regulated would subject them to criminal liability."
    We reject Morris's argument that he did not know a flare
    gun is a firearm. He admitted in his testimony that he had seen
    flare guns fired before, and when asked whether he had "any idea
    that the flare gun was capable of expelling a projectile by
    means of an explosion," he evaded the question, saying that "to
    me it's a safety device, you know, of somebody being on a boat,
    of somebody in trouble . . . to me it ain't no gun." Morris
    also testified that he had never fired the flare gun, that he
    had bought it for $10.00 from "this guy on the street" and
    planned to sell it to "the owner of the graveyard."
    Morris has not explained, however, why, if he thought the
    flare device "ain't no gun," he felt it necessary to try to
    dispose of the device when Officer Omundson arrived on the
    scene. Nor has Morris explained how, if he had never fired the
    flare gun, it just so happened that a fired round of ammunition
    was found in its chamber. In any event, the trial court was not
    bound to credit the testimony of Morris, a convicted felon.
    Indeed, the trial judge said he found Morris's testimony
    "questionable at the least for a variety of reasons." And, upon
    finding Morris's testimony unworthy of belief, the trial judge
    could draw the reasonable inference that Morris testified
    falsely "in an effort to conceal his guilt." Covil v.
    Commonwealth, 268 Va. 692, 696, 640 S.E.2d 79, 82 (2004) (citing
    Emmett v. Commonwealth, 264 Va. 364, 372, 569 S.E.2d 39, 45
    (2002)). See also Black v. Commonwealth, 222 Va. 838, 842, 284
    S.E.2d 608, 610 (1981). The judge could also "consider whatever
    [he] concluded to be perjured testimony as affirmative evidence
    of guilt," Wright v. West, 505 U.S. 277, 296 (1992).
    Finally, the trial judge found that the flare gun was
    "obviously . . . intended to be used as a weapon" and that from
    "the way [the instrument] was used under the facts of this case,
    it may well be inferred [that Morris knew the flare gun had the
    characteristics that would make it fall within the statute]."
    The judge also said: "I believe the mens rea is there. He used
    [the flare gun] for essentially a criminal purpose." We agree
    with the trial judge and conclude that the evidence was
    sufficient to show that Morris knowingly and intentionally
    possessed a firearm within the intendment of Code  18.2-308.2.
    Brandishing a Firearm
    As noted supra, Morris was charged with pointing, holding,
    or brandishing a firearm in such a manner as to reasonably
    induce fear in the mind of another, pursuant to Code  18.2-282.
    Morris argues "[t]here was insufficient evidence that [he]
    pointed, held or brandished the firearm, and there was
    insufficient evidence that there was reasonable fear in the mind
    of Peter Molina."
    Morris says that although Peter Molina saw the flare gun in
    Morris's waistband, he never testified that he was in fear of
    the gun. Morris asserts that Molina, solely out of concern for
    his wife, insisted that they should leave the area where Morris
    was sitting. Indeed, Morris states, Molina indicated in his
    testimony that he "may have stayed where he was had his wife not
    been there."
    Morris says further that he "never touched the gun in the
    presence" of Molina or his wife and there is no evidence that
    "he pointed the flare gun." Hence, Morris concludes, the
    evidence is insufficient to support a conviction for brandishing
    a firearm.
    We disagree with Morris. "Brandish" means "to exhibit
    or expose in an ostentatious, shameless, or aggressive
    manner." Webster's Third New International Dictionary, 268
    (1993). When Morris looked at Ms. Molina, said "[he'd]
    like that," and then pulled up his shirt to uncover the
    flare gun, he exhibited or exposed the weapon in a
    shameless or aggressive manner. And Morris brandished the
    weapon in such a manner as to reasonably induce fear in the
    mind of Peter Molina. Although Molina may not have said he
    was in fear for his own safety, he stated unequivocally
    that he feared for the safety of his wife, and that is
    sufficient to prove the "induced fear" element of a
    conviction for brandishing a firearm under Code  18.2-282
    . [emphasis added]
    CONCLUSION
    Finding no error in the judgment of the Court of Appeals,
    we will affirm the judgment.
    Affirmed.
    Code  18.2-282 makes it a Class 6 felony to point, hold,
    or brandish a firearm on or within 1000 feet of school property.
    The question in Armstrong was whether, in a prosecution
    for violation of Code  18.2-308.2, the Commonwealth is required
    to prove as an element of the offense that the object possessed
    by the defendant was an "operable" firearm. The Court answered
    in the negative. 263 Va. at 584, 562 S.E.2d at 145.
    On brief, Morris complains that the trial court improperly
    allowed Detective Bunney to testify as an expert on several
    matters in controversy, but Morris has not assigned error to the
    trial court's action in this respect. Accordingly, we will not
    consider the complaint. Rule 5:17(c).
    In another case decided by the Court of Appeals while this
    case was pending, the court held that a "flare gun clearly falls
    within the definition of 'firearm' articulated in Armstrong."
    Quesenberry v. Commonwealth, 41 Va. App. 126, 129, 583 S.E.2d
    55, 56 (2003).
    Code  18.2-308.2:2(B)(1) provides for a criminal history
    check of a person purchasing a firearm from a dealer and
    requires the person to furnish information relating to his or
    her identification and residency in Virginia. This Code section
    defines the term "firearm" in much the same way as we defined
    the term in Armstrong, and we said we would read the Code
    section in para materia with Code  18.2-308.2, the section then
    under review, "in order to give consistent meaning to the
    language used by the General Assembly." 263 Va. at 583, 562
    S.E.2d at 145. But it should not be implied from our reference
    to Code  18.2-308.2:2 in Armstrong that we consider flare guns
    to come within the ambit of that Code section. Indeed, the
    Attorney General agrees that "flare guns are not subject to the
    restrictions set forth in  18.2-308.2:2."
    During argument on a defense motion for a new trial, the
    trial court admitted into evidence "for purposes of appeal" a
    letter signed by the Chief of the Firearms Technology Branch of
    the Bureau of Alcohol, Tobacco and Firearms of the United States
    Department of the Treasury. The letter stated that the flare
    gun possessed by Morris was not designed as a weapon or to expel
    a projectile by the action of an explosive and was not a firearm
    subject to the provisions of 18 U.S.C., Chapter 44, the Gun
    Control Act of 1968. The trial court also received a written
    stipulation asked for by defense counsel and agreed to by the
    Commonwealth's Attorney, "except as to relevance." The
    stipulation stated that "Doug Craze of the Bureau of Alcohol,
    Tobacco, and Firearms would testify that a flare gun is not
    regulated by the BATF." We consider both statements irrelevant.
    How the BATF interprets the federal statute and decides what is
    and what is not a firearm is not binding upon this Court, or
    even persuasive.

    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  16. #16
    Regular Member
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    asforme wrote:
    Now to work on convincing my school that regulating itself as a victim disarmament zone does not enhance the educational experience. You'd think the school rated as one of the most conservative in the country (Liberty University) would be leading the charge on this!
    Yes but when it was founded by Jerry Falwell and folks that believe in his message you just might have a tough row ahead of you. I'm not saying you shouldn't give it the old college try, but some efforts are more likely to succeed than others.

    Welcome to the forum.

  17. #17
    Campaign Veteran
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    bohdi wrote:
    Yes but when it was founded by Jerry Falwell and folks that believe in his message you just might have a tough row ahead of you. I'm not saying you shouldn't give it the old college try, but some efforts are more likely to succeed than others.

    Welcome to the forum.
    Don't quote me on this, but from what I hear, the last time the issue was discussed (shortly after VT) it was shot down by the chief of campus police. It seems as most of the administration does not have any major objection... at least for faculty and staff.

    Oh, and thank you skidmark for digging that up. If I'm reading this correctly it seems that the court opinion is *gasp* "use common sense". As long as I am discrete about handeling the gun I should be okay.

    And for further clarification about my velcro setup heres what it includes. A sticky patch (I think it's commonly called moleskin) of leather like stuff attached to the dash with adhesive. Then I used a staple gun to staple two velcro straps the dash. The strips loop around the handle and barrel of the gun. I think people had the impression that I was just using a patch of velcro and sticking a cloth holster to it or something. The strips loop around the gun and attach to themselves and I have tugged and pulled on it quite a bit and I really don't think it's going anywhere. However I'm definately interested if anyone has any better creative solutions. Since it's still an issue of debate and I don't have my CHP, I don't want to just keep the gun on my hip.

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