Bill in VA
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Didn't you read simmonsjoe's post? Paragraph H of 18.2-308 requires the CHP holder to present the permit to a LEO upon demand. Therefore it is against the law to not do so.TFred wrote:Not trying to be argumentative here, Fred, but if the law doesn't say it is unlawful to not carry your CHP then there's no lawful way to charge the defendant with a crime, let alone a felony....The act of "not carrying your permit" is not listed with any particular (lesser) penalty.
Using your analogy of a licensed driver ticketed for nothaving hisOL in his possesion,if a police officer did charge a CHP holderwith unlawful carry of a concealed handgun because said CHP holder failed to carry his CHP, producing thedocument in question (OL or CHP) results in a judgement of "complied with law."
Just sayin'...
Bill in VA wrote:Didn't you read simmonsjoe's post? Paragraph H of 18.2-308 requires the CHP holder to present the permit to a LEO upon demand. Therefore it is against the law to not do so.TFred wrote:Not trying to be argumentative here, Fred, but if the law doesn't say it is unlawful to not carry your CHP then there's no lawful way to charge the defendant with a crime, let alone a felony....The act of "not carrying your permit" is not listed with any particular (lesser) penalty.
Using your analogy of a licensed driver ticketed for nothaving hisOL in his possesion,if a police officer did charge a CHP holderwith unlawful carry of a concealed handgun because said CHP holder failed to carry his CHP, producing thedocument in question (OL or CHP) results in a judgement of "complied with law."
Just sayin'...
And your example proves my point. For Driver's Licenses, there is a specific section of code that states, in my paraphrase, if you don't have your license on your person, you must pay a small fine, but if you can show the court that you had one at the time you were cited, you don't have to. It's codified. That is all this bill does.
For the life of me I can't figure out why there is resistance here. The code is now ambiguous at the very best. This bill clears it up and eliminates any possibility that a LEO or a judge with an anti-CHP chip on their shoulder can put you in a lot of trouble.
TFred
It seems you haven't missed anything, Mike.TFred wrote:um, I am unaware of any penalty being assessed for failure to have the permit on your person - did I miss somthing?http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB52
Failure to carry concealed handgun permit. Provides that failure to produce, upon demand of a law-enforcement officer, a concealed handgun permit and a government-issued photo identification while carrying a concealed handgun is punishable by a $25 civil penalty. A court may waive this penalty if the person presents a valid concealed handgun permit and government-issued photo identification to the court.
Hopefully, it will soon no longer be a felony to forget a piece of paper twice in a lifetime of lawful concealed carry.
If J3 has no penalty, then why are we working so hard to repeal it? Why don't we all just ignore it?Mike wrote:It seems you haven't missed anything, Mike.TFred wrote:um, I am unaware of any penalty being assessed for failure to have the permit on your person - did I miss somthing?http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB52
Failure to carry concealed handgun permit. Provides that failure to produce, upon demand of a law-enforcement officer, a concealed handgun permit and a government-issued photo identification while carrying a concealed handgun is punishable by a $25 civil penalty. A court may waive this penalty if the person presents a valid concealed handgun permit and government-issued photo identification to the court.
Hopefully, it will soon no longer be a felony to forget a piece of paper twice in a lifetime of lawful concealed carry.
Sub H currently lacks a penalty, just as Sub J3 currently lacks a penalty.
Any case law on this subsection? I wonder who requested this bill?
Are you saying you would rather leave this clarification out of the law, so that people who forget to put a piece of paper in their pocket may be arrested, have to hire a lawyer, go to trial, and be acquitted, instead of clearly providing an easy administrative solution? That may be your idea of fun, but I'll pass.Yes, Fred, I did read it. You and Joe and some of the others seem to think that not having a permit is the same thing as not producing a permit. Nowhere in 18.2-308 is there anything that says failure to produce a CHP by apermitee is a felony. Nowhere.It's not in there. Repeater and Mike both correctly pointed out the same thing as well: there is no penalty and there is no stipulation that failure of a CHPholder to produce a CHP is a crime. The crime is "carrying concealed without having a permit"; it is not "carrying concealed without having your issued permit on you." They are two different things. Moreover, as I wrote earlier, having aduly issued CHP is an affirmative defense to carrying a conealed handgun;even if a CHP-holder is charged with unlicensed concealed-carry, producing the permit is the same as producing an OL when charged with driving without an OL: courts return a verdict of "complied with law." QED, no felony.
Attack of the Killer Tomatoes is better than Avatar.This is better than Avatar
All of of you seem to have overlooked the irony of subsection P1. That applies to non-residents who want to obtain a Virginia CHP. That also has a permit carry requirement; however it does not also provide a civil penalty for its violation. The courts will see those two subsections as being deliberately different and will construe them accordingly.Bill in VA wrote:Are you saying you would rather leave this clarification out of the law, so that people who forget to put a piece of paper in their pocket may be arrested, have to hire a lawyer, go to trial, and be acquitted, instead of clearly providing an easy administrative solution? That may be your idea of fun, but I'll pass.Yes, Fred, I did read it. You and Joe and some of the others seem to think that not having a permit is the same thing as not producing a permit. Nowhere in 18.2-308 is there anything that says failure to produce a CHP by apermitee is a felony. Nowhere.It's not in there. Repeater and Mike both correctly pointed out the same thing as well: there is no penalty and there is no stipulation that failure of a CHPholder to produce a CHP is a crime. The crime is "carrying concealed without having a permit"; it is not "carrying concealed without having your issued permit on you." They are two different things. Moreover, as I wrote earlier, having aduly issued CHP is an affirmative defense to carrying a conealed handgun;even if a CHP-holder is charged with unlicensed concealed-carry, producing the permit is the same as producing an OL when charged with driving without an OL: courts return a verdict of "complied with law." QED, no felony.
TFred
* The exact name of the law is: "§ 18.2-308. Personal protection; carrying concealed weapons; when lawful to carry."
Well, that's an option.Repeater wrote:If J3 has no penalty, then why are we working so hard to repeal it? Why don't we all just ignore it?Mike wrote:It seems you haven't missed anything, Mike.TFred wrote:um, I am unaware of any penalty being assessed for failure to have the permit on your person - did I miss somthing?http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB52
Failure to carry concealed handgun permit. Provides that failure to produce, upon demand of a law-enforcement officer, a concealed handgun permit and a government-issued photo identification while carrying a concealed handgun is punishable by a $25 civil penalty. A court may waive this penalty if the person presents a valid concealed handgun permit and government-issued photo identification to the court.
Hopefully, it will soon no longer be a felony to forget a piece of paper twice in a lifetime of lawful concealed carry.
Sub H currently lacks a penalty, just as Sub J3 currently lacks a penalty.
Any case law on this subsection? I wonder who requested this bill?
Here's the problem: you will now be charged with violating both subsection A and subsection H as the lesser-included offense, so it doesn't solve anything.Repeater wrote:I believe the penalty for both H and J3 is the same. You will be charged with Carrying a Concealed Weapon. Carrying a concealed weapon is an illegal act, and the permit grants you limited immunity from that under the conditions specified in the law. H says you must display a permit upon demand, and J3 says that your immunity does not apply in a restaurant that serves alcohol.Mike wrote:It seems you haven't missed anything, Mike.TFred wrote:um, I am unaware of any penalty being assessed for failure to have the permit on your person - did I miss somthing?http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB52
Failure to carry concealed handgun permit. Provides that failure to produce, upon demand of a law-enforcement officer, a concealed handgun permit and a government-issued photo identification while carrying a concealed handgun is punishable by a $25 civil penalty. A court may waive this penalty if the person presents a valid concealed handgun permit and government-issued photo identification to the court.
Hopefully, it will soon no longer be a felony to forget a piece of paper twice in a lifetime of lawful concealed carry.
Sub H currently lacks a penalty, just as Sub J3 currently lacks a penalty.
Any case law on this subsection? I wonder who requested this bill?
TFred
I really don't know what you are talking about. An affirmative defense, as I understand it, is what you may use in your trial to defend against the crime you have been charged with.A CHP provides an affirmative defense, nothing more.
Well, that's correct:Repeater wrote:I really don't know what you are talking about. An affirmative defense, as I understand it, is what you may use in your trial to defend against the crime you have been charged with.A CHP provides an affirmative defense, nothing more.
If your statement were true, then everyone who ever carries a concealed handgun would be subject to arrest and trial, even though they carry a valid CHP.
TFred
-- United States v. Morton, 400 F.Supp.2d 871, 877 (E.D. Va. 2005).B. Carrying a Concealed Handgun Is a Crime in Virginia.
The United States argues that Virginia's concealed handgun law, Va.Code Ann. § 18.2-308(A) (2005), makes the carrying of a handgun a crime and that the statutory provision that allows the carrying of a concealed weapon with a permit (§ 18.2-308(D)) provides an affirmative defense to that crime.
The Supreme Court of Virginia never has addressed this issue.
Yeah, we all know that no one has ever been arrested, charged, and even convicted of something that isn't a violation of the law.TFred wrote:Not trying to be argumentative here, Fred, but if the law doesn't say it is unlawful to not carry your CHP then there's no lawful way to charge the defendant with a crime, let alone a felony....The act of "not carrying your permit" is not listed with any particular (lesser) penalty.
This is a bill in the house; It hasn't passed yet.TFred wrote:um, I am unaware of any penalty being assessed for failure to have the permit on your person - did I miss somthing?http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB52
Failure to carry concealed handgun permit. Provides that failure to produce, upon demand of a law-enforcement officer, a concealed handgun permit and a government-issued photo identification while carrying a concealed handgun is punishable by a $25 civil penalty. A court may waive this penalty if the person presents a valid concealed handgun permit and government-issued photo identification to the court.
Hopefully, it will soon no longer be a felony to forget a piece of paper twice in a lifetime of lawful concealed carry.
This is from a Roanoke street cop with 10 years of experience:
Concealed Weapons
Ask a Cop in my Email:
Subject: Concealed Carry License
Message: Say a traffic stop, is it wise to show your CCW License along with your driver's license and proof of insurance? Or better to just produce the documents requested ?(I don't drink, so it won't be a DUI.)
I read somewhere it would reassure the officer that he is not dealing with a felon.
Aside, I am a member of the Class of 1962 at Va Tech. Roanoke has certainly changed since I passed through. I think I found you through Lawdog.
I am not anti-cop, but we must remember that, they can not have our interest as their priority. The reasons in blue are their priority. And it is understandable!I wish this is something they covered when issuing Carry Concealed Weapon (CCW) permits. Although I guess in Virginia it's technically a Carry Concealed Handgun but the common acronym around the country seems to be CCW.
Anyway, in a state like VA there are a lot of guns, legally, and we do run into them occasionally. I know the politicians would like to hear they cause problems but they don't. It's very rare to come across someone legally carrying a concealed gun. Once in a while a thug without a record is doing it but it's short lived since they usually disqualify themselves with a criminal record pretty quickly.
One of the few times that I do run into legal CCW's is on traffic stops or car accidents. This is one of the few times that normally law abiding folks end up coming into contact with law enforcement.
Here's how most stops for traffic infractions happen. I take off after a car and I'll call it in to dispatch so they know where I am.
Me: "RoaVaPD traffic stop." Activate blue lights and start the stop.
Dispatch acknowledges: "RoaVaPD traffic stop."
"RoaVaPD traffic stop Mason Mill at 13th St Northeast on Oh-Nine Virginia Alpha Bravo Charlie 1-2-3-4, grey Toyota Carolla, one occupant."
The car stops and I walk up. At this point dispatch might might run the tag and let me know if it's stolen or the owner is suspended.
I'll make contact with the driver and request their license and registration and inform them why I stopped them. When I return to my car I'll use my computer to check the car and the driver and for their DMV record and see if they are wanted.
When we do a DMV check the computer automatically checks VCIN. That's the Virginia Criminal Information Network and we pronounce it "Vee-Sin." VCIN contains records for, among other things, stolen cars, the Virginia Sex Offender Registry, and the CCW files. If whoever I'm running (the driver) has a CCW I'll get a response with all their information (name, address, date of birth, height, weight, eye color, hair color, when the permit expires, and the court that issued it.)
At this point I usually have a short out of body experience as I involuntarily shudder from being so close to a gun I didn't know about. Rationally I know that the holder is a law abiding citizen who has been through a background check. But the paranoid cop in me wonders why the driver didn't tell me. Are they planning on using the gun when I return with a ticket? Some people don't act rationally when we issue them a traffic summons.
If you have a CCW and you get stopped here's what I would prefer, and I think most cops would agree.
Get as far on the shoulder or off the road as you safely can. At night turn on your dome light. Roll down all four windows if you have power windows. Turn the engine off and place your hands on your steering wheel. Don't start digging around for your registration card, I can't tell if you are stashing a gun or getting one out. When I approach tell me you have a CCW and tell me where the gun is. Even if you aren't carrying I won't know that when I get the computer return so just tell me.
Me: "I'm Officer Paranoid with the Roanoke Police Department, the reason I stopped you tonight is I saw you roll through that stop sign back there, can I see your license and registration please?"
You, before you take your hands off the wheel: "Yes, officer I have a concealed handgun permit and my gun is on my right hip/in my backpack on the passenger seat/in the trunk/at home I'm not carrying it tonight."
If you are standing on the side of the road or in a parking lot after a car crash it's still the same. I'll walk up and ask each of the drivers what happened and return to my car with all the documentation. When you hand me your stuff, before I go to my car, ask to speak to me privately. Discretely tell me you have the CCW and where the gun is.
If you are a passenger in a car I won't know unless I run you. You can inform me upfront when I talk to the driver as a matter of courtesy. If for some reason I get around to checking the passengers and discover the CCW from the computer I'll have the same reaction I mentioned above.
If you go through a DWI or other checkpoint have your documents ready before reaching the officer. As you hand the officer your license, registration, insurance and CCW permit tell them where your gun is, even if it's just at home.
We often get lookouts for cars leaving the scene of crimes or suspicious activity. We'll stop cars or people who match that description and identify them and attempt to discover if they are one and the same with what was involved in the incident. You may be stopped as a purely investigative stop to identify you and see if you were involved with a crime because your car description is the same. If you didn't just rob the bank or burglarize a business etc you have nothing to worry about and will be released quickly. You may not know why we are stopping you so just be upfront about the CCW and where the gun is, even if it's just at home.
Depending on whether I'm alone or why I stopped you or my level of paranoia I may ask for the gun. I will return it when our contact is over. Some over zealous rookie may take your rounds out or return the gun with the magazine removed. Sorry about that. I won't though.
Most cops, especially when you get away from major metropolitan areas, are hunters. Many have military backgrounds, and many have their own personal firearms. Personally I'm very glad for CCW's and I had one before I was a cop. I'm not going to bust your chops for having it. I'm a bit of a gun nut myself. In fact I've used my discretion on several traffic stops and gave a verbal warning rather than a ticket because I was grateful for the driver informing me up front and then chatting about guns with me while I admired their carry handgun.
My training in the academy about legal guns was pretty lacking. I suspect most cops are very poorly trained on legal guns. Most of what I know is self taught. I've heard nightmares (not around here) about cops who order CCW's out of cars at gunpoint and handcuff and disarm them during the stop just because they identified themselves as legally armed. I think that's horrific and most cops probably agree with me. That's the response for someone who just committed a felony but most cops are so poorly trained about legal guns they don't know anything except high risk disarming. Keep in mind though if I think you match the description for a burglary suspect who just left the scene of the crime you may get a high risk disarming. I'll at least explain why when the dust settles. But you shouldn't get that treatment just because you are a legal CCW.
If you run into one of these cops just comply with everything they tell you to do. Arguing with us on the side of the road will never get you anything and usually tends to escalate the situation even more. If you are treated heavy handed by a poorly trained cop just cooperate. When it's over you can file an official complaint with the department. If you believe that your civil rights were violated then talk to an attorney. Your recourse is after the stop not during it. Always cooperate to avoid escalating the problem.