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Thread: Question On OC

  1. #1
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    Not being dense, just not wanting to be arrested....

    From my understanding it is legal in VA for anyone over 18 to Open Carry.

    Is this correct? Where can I read the actual statue......

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    Regular Member CRF250rider1000's Avatar
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    You are correct. 18+ can open carry a handgun as long as they are not prohibited by law from owning a firearm. I am 20 and OC everywhere that I can. There is no "code" for OC because it is not prohibited, therefore it is allowed. Make sure to look at the list of where you can and can't go while OCing. Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.

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    Thanks...trying to calm the wife on the whole OC thing while I wait for my permit.

    Thanks again

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    CRF250rider1000 wrote:
    Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Ok...I am guessing to record any incidences....Correct?

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    BacknBlack wrote:
    CRF250rider1000 wrote:
    Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Ok...I am guessing to record any incidences....Correct?
    Correct!
    It's legal to record as long as you're a party to or have the consent of a party to, the conversation.....But if you intend it introduce it in court, you need to notify the other party they are being recorded.

    You;d be amazed at how polite the Cops are after you turn it on.

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    peter nap wrote:
    BacknBlack wrote:
    CRF250rider1000 wrote:
    Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Ok...I am guessing to record any incidences....Correct?
    Correct!
    It's legal to record as long as you're a party to or have the consent of a party to, the conversation.....But if you intend it introduce it in court, you need to notify the other party they are being recorded.

    You;d be amazed at how polite the Cops are after you turn it on.
    cite? I've never heard that before...

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    Accomplished Advocate peter nap's Avatar
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    nova wrote:
    peter nap wrote:
    BacknBlack wrote:
    CRF250rider1000 wrote:
    Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Ok...I am guessing to record any incidences....Correct?
    Correct!
    It's legal to record as long as you're a party to or have the consent of a party to, the conversation.....But if you intend it introduce it in court, you need to notify the other party they are being recorded.

    You;d be amazed at how polite the Cops are after you turn it on.
    cite? I've never heard that before...
    Do a search for Users legal advice on recording.

  8. #8
    Regular Member CRF250rider1000's Avatar
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    nova wrote:
    peter nap wrote:
    BacknBlack wrote:
    CRF250rider1000 wrote:
    Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Ok...I am guessing to record any incidences....Correct?
    Correct!
    It's legal to record as long as you're a party to or have the consent of a party to, the conversation.....But if you intend it introduce it in court, you need to notify the other party they are being recorded.

    You;d be amazed at how polite the Cops are after you turn it on.
    cite? I've never heard that before...
    X2!

  9. #9
    Accomplished Advocate peter nap's Avatar
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    CRF250rider1000 wrote:
    nova wrote:
    peter nap wrote:
    BacknBlack wrote:
    CRF250rider1000 wrote:
    Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Ok...I am guessing to record any incidences....Correct?
    Correct!
    It's legal to record as long as you're a party to or have the consent of a party to, the conversation.....But if you intend it introduce it in court, you need to notify the other party they are being recorded.

    You;d be amazed at how polite the Cops are after you turn it on.
    cite? I've never heard that before...
    X2!
    http://opencarry.mywowbb.com/view_to...highlight=user

    There's a special statute for taping telephone conversations; it's an evidentiary rule, not a criminal statute. In order to use a tape or transcript of the recording in evidence, you must tell the other person that he/she/it is being recorded, identify all parties to the conversation, and state the date and time. Also state the date and time at the close, so it'll be obvious if editing occurred.

    All other recordings are governed by the Eavesdropping, Wiretapping, and Electronic Surveillance Act, the federal statute that the former president admitted having violated thousands of times over on national TV a while back. It states that the act of recording, the possession of the recorded matter, or the use of the recorded matter, is a felony. All states have enacted variants of the federal statute, which means that both state law and federal law apply (you can get out of state penitentiary on one charge, then go to trial in federal district court on exactly the same charge - and you thought double jeopardy was prohibited by the Constitution!).

    Last time I checked, six states required that every party to the conversation have knowledge of the recording, and these include Pennsylvania and Maryland. The others, and the federal statute, require only that one party to the conversation have knowledge (i.e., you can't go to prison for recording your own conversation with someone). Virginia is a "one-party" state.

    In order to be prohibited, the recording must be of a "private conversation". That means that it has to take place in private, with a reasonable expectation of privacy (for fourth amendment purposes, not first amendment). So anyplace that eavesdropping is possible and not controlled for, such as a secluded table at a restaurant, is not private. If a person is in his own bedroom with the door shut, he has a reasonable expectation of privacy. Not if he's out in the hallway of an apartment building.

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    Here's the cite:
    § 8.01-420.2. Limitation on use of recorded conversations as evidence.

    No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage. The parties' knowledge of the recording pursuant to clause (i) shall be demonstrated by a declaration at the beginning of the recorded portion of the conversation to be admitted into evidence that the conversation is being recorded. This section shall not apply to emergency reporting systems operated by police and fire departments and by rescue squads, nor to any communications common carrier utilizing service observing or random monitoring pursuant to § 19.2-62.

    (1983, c. 503; 1992, c. 567.)
    So in the context that we all carry recorders for (LEO encounters), what actions might a LEO take that would be considered criminal conduct? Is erroneously requesting a permit for open carrying crinimal conduct? What about just give you grief for carrying? Is a civil rights claim criminal conduct?

  11. #11
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    Glock27Bill wrote:
    Here's the cite:
    § 8.01-420.2. Limitation on use of recorded conversations as evidence.

    No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage. The parties' knowledge of the recording pursuant to clause (i) shall be demonstrated by a declaration at the beginning of the recorded portion of the conversation to be admitted into evidence that the conversation is being recorded. This section shall not apply to emergency reporting systems operated by police and fire departments and by rescue squads, nor to any communications common carrier utilizing service observing or random monitoring pursuant to § 19.2-62.

    (1983, c. 503; 1992, c. 567.)
    So in the context that we all carry recorders for (LEO encounters), what actions might a LEO take that would be considered criminal conduct? Is erroneously requesting a permit for open carrying crinimal conduct? What about just give you grief for carrying? Is a civil rights claim criminal conduct?
    I am a lawyer, but not an attorney, and I am not your attorney. Having gotten that out of the way, the Code section cited above pertains only to the recording of telephone conversations. Regarding the recording of conversations with LEO, the advice varies depending on who is giving and who is receiving the advice.

    Expect most LEOs to have digital voice recorders of their own. They may not be obvious, but they are probably present.

    As a practical matter, one should say both their own name and the names of the LEOs involved so that the namesare recorded - memory is sometimes very unreliable. It never hurts <that's a HINT> to say the LEO's name every time you are talking to them. That way the recording can identify who is present and who said what. If you can pull it off,a goodtechniqueis torepeat what the LEO says - such as "Officer Jones, I hear you saying xxx. Did I undersatand you correctly?" or "Officer Jones, I heard Captain Smith tell you yyy. Is that what you heard him say?"

    At other times you may be too busy trying to figure things out to remember those tricks of the recording trade. Just do your best trying to get as many names in as you can if that's all you can do.

    In most situations it is not going to be a hotly adversarial situation unless you let it escalate. Keep your cool. Remain polite. Try to always think before you say anything. Do remember that anything you said before you were told you are now under arrest can be used against you, just as they can use anything you choose to say after you are placed under arrest. Remember that thinking part.

    Now, some folks say I have a loud and possibly abrasive voice. I say I have a hearing disability and need to speak that loudly in order to hear myself. The fact that it draws attention to myself, and occassionally a crowd of like-minded individuals to see what's going on, is just an unintended consequence. But whyever they arrived, witnesses are a Good ThingTM.

    As for the last question - "Is a civil rights claim criminal conduct?" - my answer is that it is criminal conduct only if the Justice Department prosecutes for violation of your civil rights. Otherwise it is a civil tort. YMMV.

    stay safe.

    skidmark
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    skidmark wrote:
    Glock27Bill wrote:
    Here's the cite:
    § 8.01-420.2. Limitation on use of recorded conversations as evidence.

    No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage. The parties' knowledge of the recording pursuant to clause (i) shall be demonstrated by a declaration at the beginning of the recorded portion of the conversation to be admitted into evidence that the conversation is being recorded. This section shall not apply to emergency reporting systems operated by police and fire departments and by rescue squads, nor to any communications common carrier utilizing service observing or random monitoring pursuant to § 19.2-62.

    (1983, c. 503; 1992, c. 567.)
    So in the context that we all carry recorders for (LEO encounters), what actions might a LEO take that would be considered criminal conduct? Is erroneously requesting a permit for open carrying crinimal conduct? What about just give you grief for carrying? Is a civil rights claim criminal conduct?
    I am a lawyer, but not an attorney, and I am not your attorney. Having gotten that out of the way, the Code section cited above pertains only to the recording of telephone conversations. <snip>
    Good point, Skidmark.

    I had not noticed that.

    I cannot find any code on other types of recorded conversations.

    Anyone got a link/cite for that?

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    CRF250rider1000 wrote:
    You are correct. 18+ can open carry a handgun as long as they are not prohibited by law from owning a firearm. I am 20 and OC everywhere that I can. There is no "code" for OC because it is not prohibited, therefore it is allowed. Make sure to look at the list of where you can and can't go while OCing. Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Picky technical correction, but the law doesn't prohibit anyone at all from owning a firearm. It prohibits possession. Two different things.

    And that electronic recording device thing has been beaten to death in another thread. I'll repeat my legal pontification here: it's never illegal to record another person's public conversation; i.e., one in which they had no reasonable expectation of privacy, whether they consent or not. The Eavesdropping, Wiretapping, and Electronic Surveillance Act, and all state statutes based on it, only prohibit the surreptitious recording of private conversations.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    CRF250rider1000 wrote:
    You are correct. 18+ can open carry a handgun as long as they are not prohibited by law from owning a firearm. I am 20 and OC everywhere that I can. There is no "code" for OC because it is not prohibited, therefore it is allowed. Make sure to look at the list of where you can and can't go while OCing. Also, if you are going to start OCing, make sure to get a digital recorder. It could possibly be your best friend.
    Picky technical correction, but the law doesn't prohibit anyone at all from owning a firearm. It prohibits possession. Two different things.

    And that electronic recording device thing has been beaten to death in another thread. I'll repeat my legal pontification here: it's never illegal to record another person's public conversation; i.e., one in which they had no reasonable expectation of privacy, whether they consent or not. The Eavesdropping, Wiretapping, and Electronic Surveillance Act, and all state statutes based on it, only prohibit the surreptitious recording of private conversations.
    I'm sorry, could you please speak up and repeat that?

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    BacknBlack wrote:
    Is this correct? Where can I read the actual statue......
    Right next to the one that says you're allowed to wear a red shirt in public.
    Why open carry? Because 1911 > 911.

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    AbNo wrote:
    BacknBlack wrote:
    Is this correct? Where can I read the actual statue......
    Right next to the one that says you're allowed to wear a red shirt in public.
    Here it is, let me know when you find it.

    http://leg1.state.va.us/000/src.htm
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    AbNo wrote:
    BacknBlack wrote:
    Is this correct? Where can I read the actual statue......
    Right next to the one that says you're allowed to wear a red shirt in public.
    Don't you have to get a permit from the police before you actually wear the red shirt, though? And aren't there exceptions for wearing red shirts in restaurants that serve alcoholic beverages? I don't know - I thought that was the blue shirt statute. But I could be wrong.
    ... But only when wearing a red shirt in a blue state and a blue shirt in a red state. I think that covers it!
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
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    MSC 45ACP wrote:
    user wrote:
    AbNo wrote:
    BacknBlack wrote:
    Is this correct? Where can I read the actual statue......
    Right next to the one that says you're allowed to wear a red shirt in public.
    Don't you have to get a permit from the police before you actually wear the red shirt, though? And aren't there exceptions for wearing red shirts in restaurants that serve alcoholic beverages? I don't know - I thought that was the blue shirt statute. But I could be wrong.
    ... But only when wearing a red shirt in a blue state and a blue shirt in a red state. I think that covers it!
    Ummmm.........Isn't that PURPLE????

  19. #19
    Founder's Club Member - Moderator ed's Avatar
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    BacknBlack wrote:
    Ok...I am guessing to record any incidences....Correct?
    Sort of. you don't want to wait for an incident to turn it on. You want to turn it on at the beginning of your carry and off at the end. Then.. if there is nothing to save.. you erase. Some keep their recorders "at ther ready" but you might have an incident when you want to capute the beginning or circumstances that lead up to it.



    Carry On.

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    ed wrote:
    BacknBlack wrote:
    Ok...I am guessing to record any incidences....Correct?
    Sort of. you don't want to wait for an incident to turn it on. You want to turn it on at the beginning of your carry and off at the end. Then.. if there is nothing to save.. you erase. Some keep their recorders "at ther ready" but you might have an incident when you want to capute the beginning or circumstances that lead up to it.


    +1
    No way in HECK am I putting my hand in my pocket when an officer approaches me. That is just asking for him to draw his gun or taze me:shock:

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    CRF250rider1000 wrote:
    ed wrote:
    BacknBlack wrote:
    Ok...I am guessing to record any incidences....Correct?
    Sort of. you don't want to wait for an incident to turn it on. You want to turn it on at the beginning of your carry and off at the end. Then.. if there is nothing to save.. you erase. Some keep their recorders "at ther ready" but you might have an incident when you want to capute the beginning or circumstances that lead up to it.


    +1
    No way in HECK am I putting my hand in my pocket when an officer approaches me. That is just asking for him to draw his gun or taze me:shock:
    +2
    I turn it on when leaving my vehicle and just before heading back home I'll switch it off and erase the memory if nothing happened.

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    I really hope I get a case someday in which the defendant has such evidence. Usually what happens is that the defendant will have shot his mouth off trying to justify his behavior to the cop, and will have thereby given the prosecution everything it needs for a conviction.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    I really hope I get a case someday in which the defendant has such evidence. Usually what happens is that the defendant will have shot his mouth off trying to justify his behavior to the cop, and will have thereby given the prosecution everything it needs for a conviction.
    Gosh how I used to love when they did that!
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    user wrote:
    I really hope I get a case someday in which the defendant has such evidence. Usually what happens is that the defendant will have shot his mouth off trying to justify his behavior to the cop, and will have thereby given the prosecution everything it needs for a conviction.
    User, if I ever get arrested for carrying a firearm in VA, I'll make sure to contact you. I prefer to cover all my bases and make sure that when I play the game, I'm going to have stacked the odds in my favor.

  25. #25
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    user wrote:
    I really hope I get a case someday in which the defendant has such evidence. Usually what happens is that the defendant will have shot his mouth off trying to justify his behavior to the cop, and will have thereby given the prosecution everything it needs for a conviction.
    My fear would be that the device had been confiscated along with other personal belongings and then mysteriously "erased" or corrupted.

    Would there be strong enough legal standing for dismissal if such a thing occurred? I mean, if a defendant said "Well, I recorded the entire encounter and when my recorder was returned it had been erased" would that carry any weight?

    Curious if that particular situation has ever been broached in your experience.
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