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VA Code section 18.2-308 question about CHP, other weapons.

The Code of Virginia is not preemptible by local statute

Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby OakRidgeStars » Mon, 14 Dec 2009 19:25:37

Even if Virginia had "Alaska-type" carry laws, it would not exempt the carrier from laws prohibiting mere possession on school grounds (or anywhere else for that matter). A CHP is a permit to carry with the condition of abiding by the laws in effect, and nothing more.
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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby wally626 » Mon, 14 Dec 2009 22:51:39

Section D of § 18.2-308 gives you permission with a permit to carry a handgun concealed. Section B (8) covers persons with out-of-state permits.


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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby WRW » Tue, 15 Dec 2009 00:16:22

As the permit is described in the code (law), I would guess that the permission conveyed by permit is de jure.

I am not a lawyer. In fact, on proof reading my post, I found I had written du joure.


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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby wally626 » Tue, 15 Dec 2009 08:41:54

Kinda of an interesting aside. While looking up the information on the CHP in 18.2-308, I noticed that under the opening section on concealed weapons and the list of exemptions that out-of-state permits are listed as being exempt. As has been noted for in-state the permit is listed in a separate section D not under the specific exemptions for carrying a concealed weapon and only mentions handguns. Many have interpreted this to mean a CHP person could not carry a Dirk concealed for instance. But apparently a person from Maryland could?? I tried to looked up cases in the state court appeals database and found no instance of a case involving a CHP holder and the carrying of a weapon other than a handgun.

Did find a interesting case about a person carrying a folding knife with a three and a half inch blade that was considered a concealed weapon because it contained a hilt (was not a CHP holder). Also found one where a guy was convicted of assault (upheld on appeal) for pointing his finger at a police officer and saying bang.


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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby zephyp » Tue, 15 Dec 2009 20:19:43

wally626 wrote:Did find a interesting case about a person carrying a folding knife with a three and a half inch blade that was considered a concealed weapon because it contained a hilt (was not a CHP holder). Also found one where a guy was convicted of assault (upheld on appeal) for pointing his finger at a police officer and saying bang.


I carry a combat folder (no hilt) with a 3 1/2" blade in my back pocket. Its got a clip so I clip it on the inside. I wonder if that means concealed? Its visible and I'm not trying to disguise the true nature.

Convicted of assault for pointing a finger and saying bang. WOW.
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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby wally626 » Tue, 15 Dec 2009 20:59:12

The argument was that it was a fighting style knife, with the hilt to allow for effective stabbing. The opinion was not real clear on what would be acceptable, a Boy Scout pocket knife was an example of an OK knife but they did not try and set a specific standard.

The finger gun was for a fellow during a traffic stop at night, the LEO was lighting the inside of the car with his flashlight to check for stuff and the passenger pulled out his hand quickly, pointed and said bang. The LEO jump back and drew his weapon but did not fire as he noticed it was only a hand before he pulled the trigger. The court said any action that made someone else fear that he would be harmed qualified as assault.


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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby zephyp » Wed, 16 Dec 2009 08:04:44

wally626 wrote:The argument was that it was a fighting style knife, with the hilt to allow for effective stabbing. The opinion was not real clear on what would be acceptable, a Boy Scout pocket knife was an example of an OK knife but they did not try and set a specific standard.

The finger gun was for a fellow during a traffic stop at night, the LEO was lighting the inside of the car with his flashlight to check for stuff and the passenger pulled out his hand quickly, pointed and said bang. The LEO jump back and drew his weapon but did not fire as he noticed it was only a hand before he pulled the trigger. The court said any action that made someone else fear that he would be harmed qualified as assault.


Ok, that makes sense and was indeed a stupid thing for the passenger to do...
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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby studyinthelaw » Wed, 13 Oct 2010 14:51:44

russianwol wrote: In fact, I can't seem to find explicit provision that allows a CHP holder to carry a concealed handgun or exempts the CHP holder from the law the prohibits a concealed weapon carry.


I think you're absolutely right. I specifically remember CHP holders being on the exempt list when I read the law a while ago. It seems it's been changed. Perhaps so that CHP holders are ONLY permitted to have a concealed hand (and not long) gun? But most likely it's just another technical blunder. under the current writing, persons in their place of abode and curtilage thereof can concealed carry long guns. It's also important to note that only handguns are specified in the allowance of carrying in a container or compartment inside a vehicle.

Hopefully not many LEOs and DAs will pick up on this and no one will get charged. Section D does suggest that a CHP holder is exempt but it's certainly not explicit like it used to be.


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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby user » Wed, 13 Oct 2010 21:05:50

russianwol wrote:...In fact, I can't seem to find explicit provision that allows a CHP holder to carry a concealed handgun or exempts the CHP holder from the law the prohibits a concealed weapon carry. ...


I'm pretty tired, and had a long day, and this is off the top of the head - if I think of anything better tomorrow, I'll let you know. But this sentence kind of popped out at me, because you're looking for something that is not there. Possession of a concealed handgun permit gives the person an affirmative defense, not an exemption, to the crime of carrying a concealed weapon. That is, in theory, the cop could arrest me for carrying a concealed weapon, even though he knows I've got a permit, take the case to trial, and it's up to me to prove I've got a permit in order to get the case dismissed. An affirmative defense has to be made in writing, by the way. Now most of the time, they're not going to do that because they know it would make them look pretty dumb - judges don't like having the judicial resources of the Commonwealth used for dumbness.

Oh, and as to "other weapons", shiriken and nunchucks are just plain illegal due to other statutes - no possession allowed in Va. The edged weapons that you can't conceal are various kinds of long knives or short swords, including machetes, and razors, ballistic knives (those that shoot out of a tube), switchblades, and weapons like unto these. There was a case in the Va. Ct. Apps. that said that a box cutter is like a razor, but in a later case, the Sup. Ct. said, no, it's not a "weapon", and is therefore not a razor (which the court said meant a "straight-razor", not a safety razor etc.). So it's ok to have a pocketknife, and be safe within other statutes if your knife has a folding metal blade of three inches or less. You can, in theory, carry a small fixed-blade camp or utility knife concealed, but there are cops who will arrest you for it on the theory that it's "like" a bowie knife (which is normally at least eight inches in length with a backswept blade and hilt made for knife fights or skinning bears). There is a case in which the court held the conviction in the trial court was erroneous because the knife was in a sheath, and the cop said he couldn't see the blade because it was in a sheath and thus concealed. The court, in effect said, "you dummy, you don't know what a sheath is for?".
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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby Diomed » Thu, 14 Oct 2010 02:02:40

user wrote: So it's ok to have a pocketknife, and be safe within other statutes if your knife has a folding metal blade of three inches or less.

I've seen people argue about this ad nauseam elsewhere, so I'd love to get a firm handle on this. Where does the three inch part come from? The only thing I've seen mentioned is possession on school grounds.

No dog in the fight, as my pocket knife is well under three inches. Just curious.


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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby zephyp » Thu, 14 Oct 2010 06:08:21

Diomed wrote:
user wrote: So it's ok to have a pocketknife, and be safe within other statutes if your knife has a folding metal blade of three inches or less.

I've seen people argue about this ad nauseam elsewhere, so I'd love to get a firm handle on this. Where does the three inch part come from? The only thing I've seen mentioned is possession on school grounds.

No dog in the fight, as my pocket knife is well under three inches. Just curious.


Can someone please provide a VA code citation for folding knife length? AFAIK there is none. I believe length is only stipulated by certain localities.
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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby Jim » Thu, 14 Oct 2010 06:36:38

wally626 wrote:.....The finger gun was for a fellow during a traffic stop at night, the LEO was lighting the inside of the car with his flashlight to check for stuff and the passenger pulled out his hand quickly, pointed and said bang. The LEO jump back and drew his weapon but did not fire as he noticed it was only a hand before he pulled the trigger. The court said any action that made someone else fear that he would be harmed qualified as assault.

Can you say "REALLY STUPID"? :doh:
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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby WRW » Thu, 14 Oct 2010 09:21:13

zephyp wrote:
Diomed wrote:
user wrote: So it's ok to have a pocketknife, and be safe within other statutes if your knife has a folding metal blade of three inches or less.

I've seen people argue about this ad nauseam elsewhere, so I'd love to get a firm handle on this. Where does the three inch part come from? The only thing I've seen mentioned is possession on school grounds.

No dog in the fight, as my pocket knife is well under three inches. Just curious.


Can someone please provide a VA code citation for folding knife length? AFAIK there is none. I believe length is only stipulated by certain localities.


§ 18.2-308.1.A for school grounds and busses. That's all I could find.


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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby user » Thu, 14 Oct 2010 16:47:26

NovaSig226r: nothing wrong with your analysis of the law, and I'd come to the same conclusion for pretty much the same reasons except for one thing. There is a pretty good collection of courts around the country, including those in Virginia, who feel that the cops shouldn't be put to the trouble of having to actually do an investigation and think for themselves. In fact, I was thinking just this morning about how so many cases seem to suggest that the cops are idiots who shouldn't have to think at all. The courts seem to think they're doing the cops a favor in that regard, by making it easier on them with respect to rules that are supposed to apply to everyone. What's that about "equal protection of the laws"? Never mind. That's the question you're not supposed to ask.

With respect to this particular issue, the courts say that it's an affirmative defense not because of what the law says, but because of the "public policy consideration" that cops shouldn't have to know whether your CHP is valid or not, only that you're carrying a concealed weapon prohibited by the statute. Implicit in that argument is the concept that you're a bad guy, and if you weren't, the cops wouldn't have arrested you. "Presumption of innocence"? What?

...
Section 18.2-308(A) defines the prohibited conduct by providing that: “If any person carries about his person, hidden from common observation, (i) any pistol, revolver . . . he shall be guilty of a Class 1 misdemeanor.” Va. Code Ann. § 18.2-308(A). Clauses (B) and (C) identify the persons to whom the statute does not apply. Clause (D) provides that any person 21 years or older who meets all of the rigorous conditions set forth in that clause may apply for a permit which, if granted, will permit the holder thereof to carry a concealed handgun. Clause (A) makes no mention of the specific exemptions of clause (B) and (C) nor of the permit provision stated in clause (D). This statutory structure makes it relatively clear that the prohibited conduct is the carrying about one's person of a concealed weapon and that one can be exempted from the prohibitive reach of the statute if covered by one of the explicit statutory exemptions or, if not, by securing a permit to engage in the conduct that is otherwise prohibited by the first clause.

This interpretation of the statute is mirrored in the standard instructions given to juries in Virginia's courts when a violation of § 18.2-308 is charged. Under the instructions, the Commonwealth must prove “(1) [t]hat the defendant was carrying (name of weapon listed in § 18.2-308) about his person; and (2)[t]hat this weapon was hidden from common observation.” Virginia Model Jury Instruction, Criminal, Vol. I, No. I-497 (2004 Repl. ed.). At oral argument on the motion to suppress, counsel for the defendant agreed that these two components were the elements of the crime of carrying a concealed weapon and that the permit provision was not such an element.

Decisions from other jurisdictions with concealed firearm statutes similar to the one in Virginia reinforce this interpretation of the statute. See Allen v. State, 86 Ga. App. 604, 71 S.E.2d 870, 870 (1952) (once the state makes a prima facie case by proving that defendant had a pistol, the burden shifts to the defendant to show that he had a license to carry it); Ezzard v. State, 229 Ga. 465, 192 S.E.2d 374, 375 (1972) (same); Williams v. United States, 237 A.2d 539, 541 (D.C. App. 1968) (same); Newman v. State, 751 N.E.2d 265 (Ind.Ct. App.2001) (same); Commonwealth v. Bigelow, 250 Pa.Super. 330, 378 A.2d 961, 963 (1977) (possession of permit to carry concealed handgun is defense to crime, not element); Commonwealth v. Poindexter, 248 Pa.Super. 564, 375 A.2d 384, 387 (1977) (same); Mackall v. State, 283 Md. 100, 387 A.2d 762, 769 (1978) (license must be shown as affirmative defense); People v. Henderson, 391 Mich. 612, 218 N.W.2d 2, 4 (1974) (same for law prohibiting concealed weapon in vehicle); State v. Bowdry, 337 N.W.2d 216, 219 (Iowa 1983) (state not required to prove that defendant did not have a permit); State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (burden of proof on defendant to show he had a concealed handgun permit); People v. Superior Court of Santa Barbara, 2 Cal. App.3d 197, 82 Cal.Rptr. 463, 466 (1969) (same). See generally Dag E. Ytreberg, Annotation, Burden Of Proof As To Lack Of License In Criminal Prosecution For Carrying Or Possession Of Weapon Without License, 192 A.L.R.3d 1054 (2005).

This interpretation is logical and achieves the statutory purpose of the prohibitive provision of the statute. By defining the crime as the carrying of a concealed weapon, the General Assembly made it possible for law enforcement officers to identify and react to simple objective criteria. Then, by providing a long list of exemptions from the prohibited conduct, the General Assembly made it possible for citizens to demonstrate facts that would render lawful conduct that is otherwise unlawful. But, those facts are knowable only by the citizen who qualifies for a statutory exemption or who has a permit. Given the rapidity with which law enforcement must react to the events transpiring on the streets, they cannot be expected reasonably to know whether an otherwise unknown person is protected by an exemption or possesses a permit. See § 18.2-308(B)-(D). This conclusion is bolstered by the general evidentiary principle that the government ordinarily is not required to prove a negative: here, to prove that the citizen does not have a concealed handgun permit or is otherwise exempt from the statute. See e.g. United States v. Denver & R.G.R. Co., 191 U.S. 84, 92, 24 S. Ct. 33, 48 L. Ed. 106 (1903) (“It is a general rule of evidence, noticed by the elementary writers upon that subject (1 Greenl. Ev. § 79) that ‘where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.’”). Thus, it is reasonable to construe the statute to place on citizens the burden of proving facts that demonstrate the possession of a permit or the protection of an enumerated exemption.
...

--United States v. Morton, 400 F. Supp. 2d 871, 878-879 (E.D. Va. 2005)
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Re: VA Code section 18.2-308 question about CHP, other weapons.

Postby wally626 » Sat, 16 Oct 2010 17:45:18

Can someone please provide a VA code citation for folding knife length? AFAIK there is none. I believe length is only stipulated by certain localities.


There is no law in VA that specifies when a knife is a weapon as opposed to being a tool. There are some knives specifically listed as being concealed weapons in state law
any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor,....any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart; or (v) any weapon of like kind as those enumerated in this subsection...
However what type of knife falls under "any weapon of like kind" is up to the courts. Since parts of the law list knifes with under three inch blades as not being considered weapons, you are pretty safe with any knife that short. With longer knifes you get into the gray areas. One judge stated his standard as being if the knife is a fighting knife it counts as a weapon, If you are stopped with a knife and you are charged with having a concealed knife see a good lawyer. All the knife cases I found in the appellate literature (on-line) were associated with people being arrested for other things and being charged with carrying a concealed weapons. I found none that dwelt with CPP holders and knives as concealed weapons.


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