Virginia Gun Owners Forum - VGOF

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.

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.

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.

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. ...

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.

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.

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.

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.

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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.
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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.

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...