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Thread: CC without a permit in a commons?

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    Regular Member CRF250rider1000's Avatar
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    Ok so I live in an apartment which consists of 4 rooms. Our apartment is in a commons which has many other apartments like ours. The commons is gated and all. My question to everyone would be can I CC on the grounds of the commons? As soon as I hit sidewalk I must OC, but to my understanding I am a paying tenant of the commons and therefore the commons is my place of residency. What do you all think?


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    Regular Member virginiatuck's Avatar
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    CRF250rider1000 wrote:
    Ok so I live in an apartment which consists of 4 rooms. Our apartment is in a commons which has many other apartments like ours. The commons is gated and all. My question to everyone would be can I CC on the grounds of the commons? As soon as I hit sidewalk I must OC, but to my understanding I am a paying tenant of the commons and therefore the commons is my place of residency. What do you all think?
    I highly doubt that would be legal. In my humble interpretation of § 18.2-308, the commons are not your place of abode or the curtilage thereof.

    The commons are not under your control and are certainly not your place of residency.

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    Founder's Club Member - Moderator ed's Avatar
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    virginiatuck wrote:
    I highly doubt that would be legal.
    +1
    Carry On.

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    Activist Member Wolf_shadow's Avatar
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    No the common area is not part of your residence. All though fenced in the commons are no different than the public sidewalk or park in a sub-development.


    Yes I carry a Bible and a Gun, your point.
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    Regular Member CRF250rider1000's Avatar
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    Well crap. I'll just have to carry it unloaded in a case till I get to my car. Good news though.... My roommate has a CHP and actively carries his HK.:celebrate

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    CRF250rider1000 wrote:
    Well crap. I'll just have to carry it unloaded in a case till I get to my car. Good news though.... My roommate has a CHP and actively carries his HK.:celebrate
    Why not just OC as you said you do when you leave the commons? Or do you actively have "No Guns" clause in your lease agreement? This is the only thing I can summise from your post. If so, it may be time to start looking for a new place to call home!

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    Regular Member wylde007's Avatar
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    So nobody here believes that the ground upon which this man's apartment stands qualifies as "curtilage"?

    From Dictionary.com:

    –noun Law. the area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosed.

    IANAL, but if he is upon the grounds that constitute the commons or "private" space of the apartments or condominium, then he is within the curtilage of his home.

    As a resident he has fair and reasonable access to those grounds as does any other residence. I would consider it the same if it was and apartment tower and he wanted to CC on the elevator. A "common" area is common to residents and guests of a condominium (at least in Virginia, where I am a licensed surveyor) and not public in that complete strangers can roll up uninvited and gallivant around.

    See http://leg1.state.va.us/000/cod/55-79.41.HTM and § 55-79.39, et seq.
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    Campaign Veteran skidmark's Avatar
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    From www.virginia1774.com :

    http://www.virginia1774.org/Page1.html

    (Yes, I know the web site is dot com and the page is dot org. It's not my web site, so don't ask me why.


    The Curtilage of Your Place of Abode



    The term curtilage according to the Virginia Courts is defined in the following cases:


    "Because homeowners possess a reasonable expectation of privacy in the curtilage surrounding their homes, Oliver v. United States, 466 U.S. 170, 180 (1984), "the curtilage . . . warrants the Fourth Amendment protections that attach to the home." Id.; see also Jefferson v. Commonwealth, 27 Va. App. 1, 15, 497 S.E.2d 474, 481 (1998) ("Consistent with the common law understanding of the extent of the 'home,' the Supreme Court has held that the Fourth Amendment protections that apply to the house also apply to the 'curtilage' of the house."). Because the Fourth Amendment protects the curtilage to the same extent as the home, a police officer may not enter the curtilage without a warrant, exigent circumstances, or pursuant to an express or implied invitation from the occupant. See Payton v. New York, 445 U.S. 573, 589-90 (1980) ("To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances . . . ." (internal quotations omitted)).

    Generally, the curtilage of a home is the "area around the home to which the activity of home life extends." Oliver, 466 U.S. at 180; see also Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 238 (1984) (defining "curtilage" as the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling"). "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis." Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481 (citing United States v. Dunn, 480 U.S. 294, 301 n.4 (1987)). In determining whether the area in question constitutes curtilage, "particular reference" to the following four factors is helpful:

    [1] the proximity of the area claimed to be curtilage to the home,

    [2] whether the area is included within an enclosure surrounding the home,


    [3] the nature of the uses to which the area is put, and

    [4] the steps taken by the resident to protect the area from observation by people passing by.

    Dunn, 480 U.S. at 301; Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481. "[T]hese factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301."



    The term curtilage when living in an apartment complex has been defined by the Virginia Court of Appeals in Jermaine Harris v. Commonwealth, Va. App. (2001 Unpublished):


    "Under the Fourth Amendment, a search is an invasion into a space or area where a person has a reasonable expectation of privacy in the 'person,' or the person's 'houses,' 'papers,' or 'effects.'" Hughes v. Commonwealth, 31 Va. App. 447, 455, 524 S.E.2d 155, 159 (2000).

    To determine whether a citizen "enjoys a reasonable expectation of privacy . . . we consider whether he [or she] has exhibited an expectation of privacy in the object and whether that expectation is one that 'society is prepared to recognize as reasonable.'" Anderson v. Commonwealth, 25 Va. App. 565, 576, 490 S.E.2d 274, 279 (1997) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)), aff'd, 256 Va. 580, 507 S.E.2d 339 (1998). "[W]here private lands are exposed to observation by members of the public who may legitimately come upon the property, a citizen does not reasonably have an expectation of privacy in areas that the passing public can observe." Shaver, 30 Va. App. at 795, 520 S.E.2d at 396.

    Here, appellant had no reasonable expectation of privacy in the front entrance to his apartment, an area "observable by members of the public who might approach [his] residence, pass by, or lawfully be upon [the] property.""
    If you cannot find statute, check case law. It's the basis of how the court will instruct the jury, or decide your fate if you elect not to be tried by a jury. You might as well know it in advance.


    stay safe.


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    Regular Member wylde007's Avatar
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    Wolf_shadow wrote:
    Although fenced-in the commons are no different than the public sidewalk or park in a sub-development.
    100% incorrect.

    Unless you are versed in VA property law, please refrain from commenting to such.
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    Regular Member CRF250rider1000's Avatar
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    My thought is that I am paying rent to use the facilities of the commons as are every other tenant. I have a keycard to gain access into the building. Someone from the street can not just come in here as it is private property. I dont OWN the whole property, but I am paying rent for my apartment and the common areas available to all tenants.

    Lets say that I would rather err on the safe side. What is the best way to get the pistol to my car then? Do I just toss it in my backpack unloaded and carry the mag or how would I do it?

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    CRF250rider1000 wrote:
    My thought is that I am paying rent to use the facilities of the commons as are every other tenant. I have a keycard to gain access into the building. Someone from the street can not just come in here as it is private property. I dont OWN the whole property, but I am paying rent for my apartment and the common areas available to all tenants.

    Lets say that I would rather err on the safe side. What is the best way to get the pistol to my car then? Do I just toss it in my backpack unloaded and carry the mag or how would I do it?
    Normally I'd say just OC, but I can guess why that's not an option in this case.

    I think it could be settled if the commons could be considered the curtilage of your place of residence.

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    Regular Member wylde007's Avatar
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    CRF250rider1000 wrote:
    My thought is that I am paying rent to use the facilities of the commons as are every other tenant. I have a keycard to gain access into the building.
    As I addressed and cited above.

    It is private property, common areas are common to tenants and guests only. All others would be deemed trespassers.
    The quiet war has begun, with silent weapons
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    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Regular Member Virginiaplanter's Avatar
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    skidmark wrote:
    From http://www.virginia1774.com :

    http://www.virginia1774.org/Page1.html

    (Yes, I know the web site is dot com and the page is dot org. It's not my web site, so don't ask me why.



    It's actually .org. The domain .com is also owned by the same so that if you can't remember which one, it will automatically redirect to the main web page virginia1774.org

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    Accomplished Advocate peter nap's Avatar
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    Your question was a legal one and I don't know if it is because you're interested in the law itself...or if you need to CC to the car.

    Regardless, a third HYPOTHETICAL question would be,,what would happen if a normally law abiding citizen, carried a CONCEALED weapon (without a permit) from his apartment to the car where he legally OC'ed?

    Of course I wouldn't think of doing such a dastardly act and neither would you. It's just a question you could mull over when things get dull

    You know...it was such an interesting question, I stuffed my 1911 Airsoft (since I wouldn't break a law) under my shirt and took a walk. Walked a few blocks and to my amazment, I was not immediately surrounded by the police.

    Well that answers that question, now I can go back to pondering "What if DOG, really spelled CAT".


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    Regular Member wylde007's Avatar
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    peter nap wrote:
    Well that answers that question, now I can go back to pondering "What if DOG, really spelled CAT".
    That's deep, Ogre.
    The quiet war has begun, with silent weapons
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    Regular Member TFred's Avatar
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    wylde007 wrote:
    CRF250rider1000 wrote:
    My thought is that I am paying rent to use the facilities of the commons as are every other tenant. I have a keycard to gain access into the building.
    As I addressed and cited above.

    It is private property, common areas are common to tenants and guests only. All others would be deemed trespassers.
    IANAL, but it appears to me that you are trying to squeeze your square dictionary definition into the round hole of case law that you wish was not... well, the case.

    As a grown up person, you are certainly entitled to do that, but I think it's nice of the fine folks here to go out of their way to research and quote the case law that would surely decide your fate, just because you asked the question.

    To add my opinion to the matter on why the case law is more correct than a carefully selected dictionary definition (among dozens, which were written with no regard to this law or your particular situation), remember the purpose of the concealed carry law is to protect other citizens from your "sinister deed" (as carried forth from the old days when it was ungentlemanly) of concealing a weapon from them.

    Since even in an apartment complex, you encounter other citizens who, although renting from the same landlord, are not members of your family or household, the law intends to protect those citizens from your concealed weapon too. IMHO, curtilage is intended to define an area that will under almost all circumstances be occupied by only you, members of your household, or invited guests. Common areas of an apartment complex clearly do not meet that intention.

    This interpretation seems to fit perfectly within the purpose and history of the law as I understand it.

    For what it's worth, or not... Or maybe you can just get a bigger hammer...

    TFred


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    Regular Member wylde007's Avatar
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    TFred wrote:
    Since even in an apartment complex, you encounter other citizens who, although renting from the same landlord, are not members of your family or household, the law intends to protect those citizens from your concealed weapon too. IMHO, curtilage is intended to define an area that will under almost all circumstances be occupied by only you, members of your household, or invited guests. Common areas of an apartment complex clearly do not meet that intention.
    I disagree and so does the section of the code I cited. Case law may - and that's a big MAY contradict, but it would serve that since a commons is definitively private property to the complex as a whole, with all tenants sharing for the expense of its maintenance and upkeep (either through their rental agreements or condominium association fees) and that they are also equally eligible by such, to exercise their rights upon those grounds.

    Now, if the landlord strictly forbids carry on the property, then you could be in trouble, but taking the dictionary definition of curtilage (as well as the legal definition, see Black's Law Dictionary, 7th Ed., Garner) and trying to bend it away from affording rights is ridiculous.

    I have cited the code and given substantial evidence to support my opinion in law and even provided where my expertise comes from.

    You do whatever you like. You obviously know more about property law than I do, since I only deal with it every day.
    The quiet war has begun, with silent weapons
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    Regular Member TexasNative's Avatar
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    So Wylde, you're so confident that you can live with yourself after someone follows your advice, and as a result gets arrested, charged and convicted of a Class 1 Misdemeanor?

    It's one thing to want to push the boundaries yourself. But to give folks the potentially false belief that the actions you promote are sanctioned by statute is a completely different kettle of fish.

    Look, you may be right. I doubt it, but I'm far from an expert in this field. But I just think it's prudent to let folks know that your position is more a result of your adamant belief in personal freedom than an objective examination of applicable law. Let them understand the risks and decide if they want to accept them, rather than implying that there's virtually no risk.

    ~ Boyd

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    Regular Member wylde007's Avatar
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    TexasNative wrote:
    Let them understand the risks and decide if they want to accept them, rather than implying that there's virtually no risk.
    It's private property. I have provided code section and legal definition, as well as my own knowledge understanding of private property law to support. One SINGULAR instance of case law does not create an impenetrable legal barrier.

    Is there risk? Sure. There's risk every time you set foot out your front door.

    Peter nap's response is really the one that makes more sense than anyone else's (after mine). Sometimes I think some of you are afraid of your own shadows because the law "could" be interpreted one way or another, but it just isn't so.

    The burden of proof would fall on the officer in court. Aside from the very unlikely opportunity for it to occur, here's how I foresee it happening:

    Judge: Officer, you arrested this man for illegally carrying a concealed handgun, correct?
    LEO: That's correct, your honor.
    Judge: And how did you know he was carrying this weapon concealed?
    LEO: I was investigating a residential alarm call and saw him walking nearby and stopped him. I asked him who he was and if he was armed.
    Judge: And what was his response?
    LEO: He said he was armed and it was concealed without a permit.
    Judge: Where were you when this happened?
    LEO: On the sidewalk in front of the apartment complex.
    Judge: And were you able to determine if the suspect was a resident of the apartments?
    LEO: Yes, your honor, he is.
    Judge: Case dismissed.

    I am not nearly as alarmist about my rights as I guess some of you are. If you want to take one case and build an entire dominion of law around it, more power to you.

    I doubt it, but I'm far from an expert in this field.
    I have provided my perspective from that of someone who is INTIMATELY familiar with real-estate and property law, and what does and does not constitute PRIVATE property.

    Do whatever you want. It's obvious that you're concerned for this young man's legal safety, but you don't give him anything other than alarmist "They're gonna get you if you do it" rigmarole.
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    Regular Member TFred's Avatar
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    wylde007 wrote:
    TFred wrote:
    Since even in an apartment complex, you encounter other citizens who, although renting from the same landlord, are not members of your family or household, the law intends to protect those citizens from your concealed weapon too. IMHO, curtilage is intended to define an area that will under almost all circumstances be occupied by only you, members of your household, or invited guests. Common areas of an apartment complex clearly do not meet that intention.
    I disagree and so does the section of the code I cited. Case law may - and that's a big MAY contradict, but it would serve that since a commons is definitively private property to the complex as a whole, with all tenants sharing for the expense of its maintenance and upkeep (either through their rental agreements or condominium association fees) and that they are also equally eligible by such, to exercise their rights upon those grounds.

    Now, if the landlord strictly forbids carry on the property, then you could be in trouble, but taking the dictionary definition of curtilage (as well as the legal definition, see Black's Law Dictionary, 7th Ed., Garner) and trying to bend it away from affording rights is ridiculous.

    I have cited the code and given substantial evidence to support my opinion in law and even provided where my expertise comes from.

    You do whatever you like. You obviously know more about property law than I do, since I only deal with it every day.
    You really don't have any need to get defensive, we're all just sharing our opinions here.

    The sections of code you cite do not use the word curtilage, so I don't understand how you can conclude that they have any bearing on the CHP law's use of the word.

    My point is that I don't believe those common areas fall within the CHP's intended use of curtilage. There isn't anything in that section to support that it does. As is always the case, the only people who can ultimately say who is correct would be the judge or jury that find you guilty or innocent.

    TFred

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    Regular Member wylde007's Avatar
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    TFred wrote:
    The sections of code you cite do not use the word curtilage, so I don't understand how you can conclude that they have any bearing on the CHP law's use of the word.
    Curtilage is the area of land occupied by its dwelling and outbuildings either actually enclosed or considered as enclosed (read: private).

    There isn't anything in that section to support that it does.
    The Common Area of an apartment or condominium meets the minimum of this definition EASILY under http://leg1.state.va.us/cgi-bin/legp...0+cod+55-79.55

    You might as well argue that a man standing below the bottom step of his front porch is no longer within the curtilage of his own home, yet I guarantee you there is no mention of the word "curtilage" in his deed. Would he be within his rights to carry concealed without a permit? Absolutely.

    Mr. CFR has an undivided interest as a tenant in the common areas of the private property which should (yes, now I'm saying "should" since I keep getting naysayed) afford him all rights and privileges thereto as if he were an individual homeowner.
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    Regular Member TFred's Avatar
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    wylde007 wrote:
    TFred wrote:
    The sections of code you cite do not use the word curtilage, so I don't understand how you can conclude that they have any bearing on the CHP law's use of the word.

    Curtilage is the area of land occupied by its dwelling and outbuildings either actually enclosed or considered as enclosed (read: private).


    There isn't anything in that section to support that it does.
    The Common Area of an apartment or condominium meets the minimum of this definition EASILY under http://leg1.state.va.us/cgi-bin/legp...0+cod+55-79.55

    You might as well argue that a man standing below the bottom step of his front porch is no longer within the curtilage of his own home, yet I guarantee you there is no mention of the word "curtilage" in his deed. Would he be within his rights to carry concealed without a permit? Absolutely.

    Mr. CFR has an undivided interest as a tenant in the common areas of the private property which should (yes, now I'm saying "should" since I keep getting naysayed) afford him all rights and privileges thereto as if he were an individual homeowner.
    Well, I guess we're all beating our heads against the opposite sides of the same wall here. The whole point of this difference of opinion is that there is no definition of curtilage in the code. Your definition is one of many, which may or may not be the same used by the judge and jury at your trial.

    TFred

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    Regular Member wylde007's Avatar
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    OK, allow me to go one step further. Assume you own a piece of property. Assume that the property is, for all intents and purposes, vacant. No buildings, no fences, no nothing.

    Now, as owner of that property would you say that you do or do not feel you have the right to act upon that land in any way as if it were occupied by a dwelling?

    It is true that the term "curtilage" appears in only four places in the State Code, two of which fall under the Firearms section 18.2-308 and 18.2-308.2. It would seem that the burden would fall to the arresting officer to prove:

    1. That the person was NOT on property that may commonly be considered curtilage either by direct or joint ownership.
    2. That the person did not have a right to exercise such rights on those grounds and
    3. That the officer made a legal stop of that person upon such private property and had reasonable grounds or suspicion of wrongdoing to do so.

    If you were standing in your front yard watering the grass and a LEO stopped in front of your house and then asked if you were armed and then arrested you if you did not have your permit on you, would that be a legal arrest? Of course not. And it is just as likely to occur that way in the confines of a private apartment/condominium complex as it is at a singular private residence.
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    Regular Member TFred's Avatar
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    wylde007 wrote:
    OK, allow me to go one step further. Assume you own a piece of property. Assume that the property is, for all intents and purposes, vacant. No buildings, no fences, no nothing.

    Now, as owner of that property would you say that you do or do not feel you have the right to act upon that land in any way as if it were occupied by a dwelling?

    It is true that the term "curtilage" appears in only four places in the State Code, two of which fall under the Firearms section 18.2-308 and 18.2-308.2. It would seem that the burden would fall to the arresting officer to prove:

    1. That the person was NOT on property that may commonly be considered curtilage either by direct or joint ownership.
    2. That the person did not have a right to exercise such rights on those grounds and
    3. That the officer made a legal stop of that person upon such private property and had reasonable grounds or suspicion of wrongdoing to do so.

    If you were standing in your front yard watering the grass and a LEO stopped in front of your house and then asked if you were armed and then arrested you if you did not have your permit on you, would that be a legal arrest? Of course not. And it is just as likely to occur that way in the confines of a private apartment/condominium complex as it is at a singular private residence.
    I'm sorry, you are obviously taking a lot of time to wring this out, but I really don't think you are correct. The law does not say you can carry concealed on your own property, only in your "own place of abode or the curtilage thereof".

    TFred

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    Regular Member wylde007's Avatar
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    Va Beach, Occupied VA
    Posts
    3,037

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    TFred wrote:
    I'm sorry, you are obviously taking a lot of time to wring this out, but I really don't think you are correct. The law does not say you can carry concealed on your own property, only in your "own place of abode or the curtilage thereof".
    So then, what do you define as "curtilage thereof"? Say you have ten acres. You have a house and perhaps a barn, yet they are separated by several hundred feet and a grove of trees.

    Are you not entitled to act as sovereign on the property between your house and the barn or from your house to the mailbox?

    I believe you are deliberately misconstruing the meaning of "curtilage" to meet your narrow definition, and that's fine for playing devil's advocate, but I'll be doggone if for one moment I believe that I am outside the "curtilage thereof" of my house when I break the plane of the eaves or overhang.

    You haven't been able to provide any instance that qualifies your limited definition and I have offered probably a half-dozen to back mine up.

    Like I said, you do what you feel is best for you and I will continue to do what I believe I have every right both by definition and under color of law.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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