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Thread: State code question on carrying where private owner does not allow

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    Regular Member Saint1911's Avatar
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    State code question on carrying where private owner does not allow

    Based on 18.2-308. Personal protection; carrying concealed weapons; when lawful to carry. section O states:

    O. The granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law or is prohibited by the owner of private property.

    This section doesn't specifically DISALLOW carrying a firearm on property where posession is prohibited by the owner. Is it simply saying that the CCW permit does not expmpt you from the standard Tresspassing Laws? It has been an interpretation I have been unsure of for some time.

    Is that the reason that you can only be charged with tresspassing? Can someone tell me if I am interpreting this law correctly?
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    Regular Member ocholsteroc's Avatar
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    From what I understand, say your in a mall you see a sign says no weapons allowed. You are trespassing if you have your gun on you. You should leave. Weapons signs hold weight in this state I believe. CHP does not exempt you from this. I know a few states that "no weapon signs" hold no weight.

    If you are asked to leave a place because you are carrying a firearm, and refuse to leave you can be charged with trespassing.
    Last edited by ocholsteroc; 03-23-2011 at 01:07 PM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Regular Member Saint1911's Avatar
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    Does anyone have any information on laws that give those signs any legal weight? I have heard they do and they don't. I've been told repeatedly you aren't actually tresspassing until you are asked to leave.

    Regardless that doesn't answer if it is only tresspassing or can you be charged with illegal possession based on section O sited above?
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    Founder's Club Member - Moderator ed's Avatar
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    Quote Originally Posted by Saint1911 View Post
    Does anyone have any information on laws that give those signs any legal weight? I have heard they do and they don't.
    They don't. There is no cite because there is no law.
    Carry On.

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    Regular Member ocholsteroc's Avatar
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    Quote Originally Posted by ed View Post
    They don't. There is no cite because there is no law.
    Oh so "no firearms signs" hold no weight?

    I always thought they did! I have been misinformed.

    So you can conceal carry(with permit) into a mall that says NO GUNS ALLOWED, and not get charged with trespassing unless you are asked to leave( your gun prints)

    ?

    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Founder's Club Member - Moderator ed's Avatar
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    Quote Originally Posted by ocholsteroc View Post
    Oh so "no firearms signs" hold no weight?

    I always thought they did! I have been misinformed.

    So you can conceal carry(with permit) into a mall that says NO GUNS ALLOWED, and not get charged with trespassing unless you are asked to leave( your gun prints)

    ?

    as I understand it.
    Carry On.

    Ed

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    What the law says

    Quote Originally Posted by Saint1911 View Post
    Does anyone have any information on laws that give those signs any legal weight? I have heard they do and they don't. I've been told repeatedly you aren't actually tresspassing until you are asked to leave.

    Regardless that doesn't answer if it is only tresspassing or can you be charged with illegal possession based on section O sited above?
    Quote Originally Posted by ed View Post
    They don't. There is no cite because there is no law.
    Actually, there is.

    http://leg1.state.va.us/cgi-bin/legp...0+cod+18.2-119

    18.2-119. Trespass after having been forbidden to do so; penalties.

    If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or 19.2-152.10 or an ex parte order issued pursuant to 20-103, and after having been served with such order, he shall be guilty of a Class 1 misdemeanor. This section shall not be construed to affect in any way the provisions of 18.2-132 through 18.2-136.

    The parts in red make the signs legally enforceable. However, the part in blue can serve as a defense in cases like shopping malls, where they post the prohibition in 0.1 font off in a corner. However, if the sign is reasonably visible, it has legal force.

    However, because it can be a real hassle to have someone charged with trespassing, they will usually at least give you a verbal warning before involving the police.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
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    Regular Member ocholsteroc's Avatar
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    ah....
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Regular Member ProShooter's Avatar
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    and some of us (me) believe that under 18.2-308 O, if you are carrying with a CHP on property where it is not allowed by the owner, its as if you are carrying concealed with no permit at all (since your permit is not valid for concealed carry on that property). That IMO leads to an 18.2-308 violation.
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    Quote Originally Posted by ocholsteroc View Post
    ah....
    Just remember, if the sign can't be reasonably seen, it's not valid. Signs that are practically microscopic, or aren't clearly posted next to the entrance aren't reasonably placed, and so you are clear until informed either verbally or in writing.

    Quote Originally Posted by ProShooter View Post
    and some of us (me) believe that under 18.2-308 O, if you are carrying with a CHP on property where it is not allowed by the owner, its as if you are carrying concealed with no permit at all (since your permit is not valid for concealed carry on that property). That IMO leads to an 18.2-308 violation.
    On what basis? The law (18.2-308 (O)) simply says that it doesn't authorize possession. It doesn't say that it no longer authorizes concealment. Since mere possession of a firearm on private property where the owner prohibits it is not illegal, that means that it defaults back to trespass.

    A CHP provides an affirmative defense against the charge of concealing a handgun from common observation. Nothing in (O) revokes that affirmative defense. It simply states that it does not exempt you from being charged under 18.2-119 (Trespass).
    Last edited by grylnsmn; 03-23-2011 at 01:45 PM.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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    Regular Member Saint1911's Avatar
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    Quote Originally Posted by grylnsmn View Post
    Just remember, if the sign can't be reasonably seen, it's not valid. Signs that are practically microscopic, or aren't clearly posted next to the entrance aren't reasonably placed, and so you are clear until informed either verbally or in writing.



    On what basis? The law (18.2-308 (O)) simply says that it doesn't authorize possession. It doesn't say that it no longer authorizes concealment. Since mere possession of a firearm on private property where the owner prohibits it is not illegal, that means that it defaults back to trespass.

    A CHP provides an affirmative defense against the charge of concealing a handgun from common observation. Nothing in (O) revokes that affirmative defense. It simply states that it does not exempt you from being charged under 18.2-119 (Trespass).
    That is also my interpretation of the law. The verbage of sign posting in the tresspassing law is also a good point. Lynnhaven mall for example has it posted at some but not all doors.
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    Regular Member ocholsteroc's Avatar
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    Some malls dont even have it posted at all on doors, its just on a sign some where in the store on their "rules board"
    Last edited by ocholsteroc; 03-23-2011 at 02:20 PM.
    How come a DUI you can get your driver licence back, which it is a privilege. But if commiting a felon, even something non violent like stealing, you are denied your constitutional rights for the rest of your life?
    If you don't support the Second Amendment to the Constitution, what other parts of the Constitution do you reject?
    More restrictions on guns? how about restrictions on chainsaws and knives?

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    Regular Member ProShooter's Avatar
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    Quote Originally Posted by grylnsmn View Post


    On what basis? The law (18.2-308 (O)) simply says that it doesn't authorize possession. It doesn't say that it no longer authorizes concealment. Since mere possession of a firearm on private property where the owner prohibits it is not illegal, that means that it defaults back to trespass.

    A CHP provides an affirmative defense against the charge of concealing a handgun from common observation. Nothing in (O) revokes that affirmative defense. It simply states that it does not exempt you from being charged under 18.2-119 (Trespass).
    On the basis of that's what I believe, that's my interpretation, and I don't want to be the test case.

    Also, some of my lawyer type prosecutor friends have said that it could go either way. I prefer to err on the side of caution.
    Last edited by ProShooter; 03-23-2011 at 02:36 PM.
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    Quote Originally Posted by grylnsmn View Post

    On what basis? The law (18.2-308 (O)) simply says that it doesn't authorize possession. It doesn't say that it no longer authorizes concealment. Since mere possession of a firearm on private property where the owner prohibits it is not illegal, that means that it defaults back to trespass.

    A CHP provides an affirmative defense against the charge of concealing a handgun from common observation. Nothing in (O) revokes that affirmative defense. It simply states that it does not exempt you from being charged under 18.2-119 (Trespass).
    Yeah I don't buy that either. It just looks like a reminder that private property owners have control of their private property; just because a CHP holder has special permission to break the law and carry a firearm concealed does not mean he also has special permission to disregard a command to leave property / signs / any other law...
    Last edited by t33j; 03-23-2011 at 02:40 PM.
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    Lone Star Veteran DrMark's Avatar
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    Quote Originally Posted by Saint1911 View Post
    Can someone tell me if I am interpreting this law correctly?


    I am not a lawyer, but I've read 3 different/competing positions on this topic from lawyers.

    First...
    It's not illegal to break a store rule, whether it's "No Guns" or "No more than 10 items in the Express lane." If they don't like it, and choose to ask you to leave, and if you do not, you are guilty of the crime of tresspassing per 18.2-119 (referenced previously). Leave if they ask (and who wouldn't?) and you're fine.

    Second...
    18.2-308(O) (referenced previously) indicates that carrying concealed where there's a "No Guns" sign means mean that you are carrying concealed where you are not authorized to do so. You are then guilty of of the crime of carrying a concealed weapon.

    Third...
    Somehow (haven't heard a good explanation of this) a store rules sign, whether it's "No Guns" or "No more than 10 items in the Express lane," is equivalent to you being forbidden from being on that property if you're breaking that rule, regardless of the property owner's choice of infraction (if any) for breaking the rule. Per this interpretation, this invokes 18.2-119 and you are guilty of the crime of tresspassing whether the owner tells you to leave or not.


    People tend to believe the lawyer they're paying, so pay your money and pick your poison.

    Last edited by DrMark; 03-23-2011 at 05:26 PM.

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    There is no legal weight for "Mall rules". Private citizens can't make code sections. If there are no Trespassing signs, you can charge someone for trespassing(18.2-119) if you can prove it was reasonable they disregarded the sign. Carrying past signs that say no carry is disrespectful IMO. Just as you want others to respect your right to carry a gun, you should respect their right to make the rules for their own property. Don't give them your money and/or contact them to change their opinion.
    Last edited by NovaCop10; 03-24-2011 at 08:04 AM.

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    Quote Originally Posted by DrMark View Post

    I am not a lawyer, but I've read 3 different/competing positions on this topic from lawyers.

    First...
    It's not illegal to break a store rule, whether it's "No Guns" or "No more than 10 items in the Express lane." If they don't like it, and choose to ask you to leave, and if you do not, you are guilty of the crime of tresspassing per 18.2-119 (referenced previously). Leave if they ask (and who wouldn't?) and you're fine.

    Second...
    18.2-308(O) (referenced previously) indicates that carrying concealed where there's a "No Guns" sign means mean that you are carrying concealed where you are not authorized to do so. You are then guilty of of the crime of carrying a concealed weapon.

    Third...
    Somehow (haven't heard a good explanation of this) a store rules sign, whether it's "No Guns" or "No more than 10 items in the Express lane," is equivalent to you being forbidden from being on that property if you're breaking that rule, regardless of the property owner's choice of infraction (if any) for breaking the rule. Per this interpretation, this invokes 18.2-119 and you are guilty of the crime of tresspassing whether the owner tells you to leave or not.


    People tend to believe the lawyer they're paying, so pay your money and pick your poison.
    The way I read the actual text of the law, the third position is the closest to the law as written. However, because of the ambiguities in the law (requiring that signs be reasonably seen or that you be informed verbally or in writing of the prohibition), in practice it functions like the first position.

    After all, if they simply call the police to have you arrested for trespassing, and it is then determined that your signs were not able to be reasonably seen, you could theoretically face some sort of liability. However, if you verbally inform someone of a prohibition, regardless of any signs that are posted, there remains no ambiguity about whether the person has been informed, and it reduces your liability. It also potentially eliminates the hassle of having to call the police in the first place (if the individual voluntarily complies).

    I honestly see no basis in the text for the second position. 18.2-308 doesn't apply to the possession of a handgun at all. Offenses under that statute only involve carrying a handgun "hidden from common observation", not the mere act of carrying a handgun. As there is no law that specifically criminalizes carrying a handgun on private property without permission of the owner, the matter falls back to general property law, including trespass.

    The way that 18.2-308 A is structured, all acts of carrying concealed are illegal. 18.2-308 B then carves out a series of exemptions to 18.2-308 A that act as an affirmative defense to the charge of carrying a handgun hidden from common observation. 18.2-308 O states that a CHP does not authorize you to possess it on private property without permission of the owner, but no other section of law specifically criminalizes that behavior. 18.2-308 O does not create a separate charge related to possession of a handgun on private property without permission of the owner, and it says nothing about invalidating the exemptions outlined in 18.2-308 B. Therefore, I see no basis in the text to claim that carrying concealed on private property without permission of the owner is a violation of 18.2-308 in addition to being a violation of 18.2-119.

    Of course, I'm no lawyer. I'm just a Linux admin who likes to read too much.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
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    Regular Member t33j's Avatar
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    Quote Originally Posted by grylnsmn View Post
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    Quote Originally Posted by NovaCop10 View Post
    There is no legal weight for "Mall rules". Private citizens can't make code sections. If there are no Trespassing signs, you can charge someone for trespassing(18.2-119) if you can prove it was reasonable they disregarded the sign. Carrying past signs that say no carry is disrespectful IMO. Just as you want others to respect your right to carry a gun, you should respect their right to make the rules for their own property. Don't give them your money and/or contact them to change their opinion.
    Yup!

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    Regular Member MSC 45ACP's Avatar
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    I'm old, retired and don't see "too good". I don't walk "so good" either. If I don't clearly see a sign somewhere I'm going, I don't worry about it. If I'm CCing correctly, no one will ever know I'm even carrying. I don't OC somewhere unless I'm pretty darn sure they allow it. Its just 'rude' to try OCing somewhere you are pretty sure doesn't allow it. I think by now, we all know that malls don't allow OCing. Bridget and I found out personally, but it took a few visits to do so.

    Anyone remember my past last year from Patrick Henry mall when we were OCing in the food court and a small child was rather verbal about seeing Bridget's .45? It only took the mall cops about 30 minutes to find us (and we weren't even hiding from them) and then "escort" us out of the mall, all the way to our vehicle. Coincidently, there was a mall-cop vehicle with amber lights flashing to ensure our safe passage to our car. I wonder if they kept info about my car 'for future reference' after that? I hope so. I hope they're STILL looking for that car that is now scrap metal... :-)
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    Regular Member Saint1911's Avatar
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    Exactly my concern

    Quote Originally Posted by DrMark View Post

    I am not a lawyer, but I've read 3 different/competing positions on this topic from lawyers.

    First...
    It's not illegal to break a store rule, whether it's "No Guns" or "No more than 10 items in the Express lane." If they don't like it, and choose to ask you to leave, and if you do not, you are guilty of the crime of tresspassing per 18.2-119 (referenced previously). Leave if they ask (and who wouldn't?) and you're fine.

    Second...
    18.2-308(O) (referenced previously) indicates that carrying concealed where there's a "No Guns" sign means mean that you are carrying concealed where you are not authorized to do so. You are then guilty of of the crime of carrying a concealed weapon.

    Third...
    Somehow (haven't heard a good explanation of this) a store rules sign, whether it's "No Guns" or "No more than 10 items in the Express lane," is equivalent to you being forbidden from being on that property if you're breaking that rule, regardless of the property owner's choice of infraction (if any) for breaking the rule. Per this interpretation, this invokes 18.2-119 and you are guilty of the crime of tresspassing whether the owner tells you to leave or not.


    People tend to believe the lawyer they're paying, so pay your money and pick your poison.



    I have heard the same arguements and I am curious if there is an AG opinions or Case Laws that address this specific situation. I get if it is posted don't do it and if you are ask to leave comply but there still seems to be room to get into hot water when you are trying to comply with the law "as you understand" "interpret it" "have been told" etc.
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    Quote Originally Posted by NovaCop10 View Post
    If there are no Trespassing signs, you can charge someone for trespassing(18.2-119) if you can prove it was reasonable they disregarded the sign. .
    How do you "prove" that if there are no signs?

    Is there a training block on how to charge someone for disregarding a non-existent sign?

    OK, I'll cut you some slack as I know you meant "No Trespassing" signs
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    Quote Originally Posted by Grapeshot View Post
    How do you "prove" that if there are no signs?

    Is there a training block on how to charge someone for disregarding a non-existent sign?

    OK, I'll cut you some slack as I know you meant "No Trespassing" signs
    HAHA thank you, yeah I think I should stay off the board when I first wake up.

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    Quote Originally Posted by NovaCop10 View Post
    HAHA thank you, yeah I think I should stay off the board when I first wake up.

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    Quote Originally Posted by xdm guy View Post
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