Carrying in your car...

[gtommec]

Sorry to bring up an old thread, but am I reading this right? Is having my gun holstered on my side considered concealed while I am in my car?

If it is "hidden from common observation," then yes. The general idea is if someone looking at you would not be able to see that you have a gun on your hip, then it would be concealed.

For example, there was a case several years ago in which a cop stopped a guy walking down the street, carrying a backpack. It turned out the guy had a gun in his hip pocket - but the backpack had covered it up, so the cop couldn't see it until he moved the backpack away. The gun was "hidden from common observation" and therefore was concealed.

If you have a CHP, it doesn't matter - that's the whole point of a CHP - it allows you to conceal a handgun.

But if you don't have a CHP, you generally can't carry a handgun concealed, even in your car - other than the exception discussed above, which allows you to conceal a gun "secured in a compartment or container" in the vehicle.

How is me sitting my car any different from me sitting in a movie theater seat, or even a restaurant booth though? If I am standing with an officer on my left side he can't see my gun holstered on my right hip, so what makes sitting in a car any different?

[ProShooter]

Sorry to bring up an old thread, but am I reading this right? Is having my gun holstered on my side considered concealed while I am in my car?

If it is "hidden from common observation," then yes. The general idea is if someone looking at you would not be able to see that you have a gun on your hip, then it would be concealed.

This is incorrect. It doesn't matter what the other person can see. What matters is the manner in which you are carrying.

[TenchCoxe]

Virginia Code § 18.2-308 A:

If any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material ... he shall be guilty of a Class 1 misdemeanor.

If it is "hidden from common observation," it is illegally concealed, unless you have a permit or meet another exception to the rule. It doesn't matter whether you're in your car or in a theater or walking down the street.

If you are carrying a gun and a person could not see it when looking at it (e.g., it's covered by the tail of your jacket), then yes indeed, it is "hidden from common observation" and is concealed.

The Virginia Court of Appeals has repeatedly ruled that a gun is considered "concealed" or "hidden from common observation" under this statute when it is "hidden from all except those with an unusual or exceptional opportunity to observe it." A key case is Main v. Commonwealth, 457 S.E.2d 400 (1995). In that case, the police officer was driving on the right side of the road and the defendant was walking away from him on the left side of the road. The officer could see the defendant's right side and rear. He did not see a weapon on the defendant; however, he did see a blue duffle bag that hung from a strap across the defendant's shoulder. The duffle bag "hung down about waist level and hip level on (the defendant's) right side."

The officer stopped, got out of his vehicle, and approached the defendant from the defendant's rear. He still did not see a weapon on the defendant, but saw the duffle bag on his right hip. He called to the defendant, who turned to face the officer. When the officer reached the defendant, the officer asked the defendant if he had a gun on him. The defendant moved his right hand toward his rear pocket, and the officer grabbed his hand, whirled him around, and saw the handle of a firearm protruding from the defendant's right, rear pocket.

The officer later testified that he did not see the gun when he first saw the defendant because "of the bag over his right side." The trial court ruled that the gun therefore was illegally concealed. The Virginia Court of Appeals confirmed, saying:

If the gun was in the defendant's right rear pocket and its handle, the only part extending outside of his pocket, was covered by the duffle bag, the weapon was hidden from common observation. It was hidden from all except those with an unusual or exceptional opportunity to view it. The defendant had no permit to carry a weapon so hidden from public view. Therefore, his concealment of it in this fashion was unlawful.

Similarly, in Winston v. Commonwealth, 497 S.E.2d 141 (1998), a cop was chasing the defendant and testified that he had an opportunity to view appellant from the back and front and that he "observed no visible sign that appellant was carrying a weapon." After they scaled a large fence, the cop saw the defendant retrieve a handgun from his right coat pocket and drop it on the ground. The Virginia Court of Appeals ruled: "Even though Officer Hannah's pursuit of appellant occurred in darkness, his direct observation of appellant before he retrieved the gun from his coat pocket was sufficient to support the trial court's conclusion that this gun was 'hidden from common view.'"

So yes, in fact, it does matter what the other person can see. If you're carrying a gun and it's visible such that a person who is looking at it can see you're carrying a gun, it's not "hidden from common observation" and therefore not a violation of the statute. If someone looking at it can't see it, or can't tell that what they're seeing is a gun (i.e., it is "observable but is of such deceptive appearance as to disguise the weapon's true nature" (see Va. Code 18.2-308 A.)), it is "hidden from common observation", which is illegal unless you have a permit or qualify for another exception.

If you're sitting in your car, behind the steering wheel, with your gun in a holster on your right hip, such that a person looking into the car cannot see it, I submit that there would be a strong argument that you are carrying, about your person, a gun that is "hidden from common observation." You're sitting on the darn thing.

[TenchCoxe]

BTW, the difference between standing next to the officer and sitting in your car is that if he looked at your right side when you were standing next to him, he would plainly see the gun openly carried on your hip. In your car, if he looked at your right side and could not see the gun because your shirt or jacket had fallen over it or you were sitting on it, so that it was not visible, then it might be a different case. As the Virginia courts have ruled, all it takes is for a jacket or duffel bag to cover the gun and make it not visible to someone looking at it.

[TenchCoxe]

BTW, another case is even closer on point to this discussion. In Clarke v. Commonwealth, 527 S.E.2d 484 (2000), a police officer stopped to check out a car he suspected might have been stolen. He could not see into the car as he approached, but when he walked to the driver's side, he noticed a man sitting in the passenger's side front seat, with one arm positioned behind his seat. McIntire asked him to produce identification. When the individual offered his identification, the officer recognized him as defendant Clarke, whom he had arrested previously. The officer then radioed another officer whom he knew to be nearby, to come assist.

When the second officer arrived, he approached the car from the passenger's side and observed a handgun in a pocket compartment in the fabric covering the back of the passenger's seat.

The Virginia Court of Appeals ruled:

"A weapon is hidden from common view under Code § 18.2-308(A) when it is `hidden from all except those with an unusual or exceptional opportunity to view it.'" The gun found in the pocket of the vehicle seat in which Clarke was seated was concealed from common view, and became visible to Officer Snyder only when he approached the front passenger seat of the Cadillac close enough for him to peer down into the seat's pocket compartment from directly above. The discovery of Clarke's handgun provided the officers with probable cause to arrest Clarke for possession of a concealed weapon."

Clearly, because the cop could not see the gun unless he got right up close to the car and peered down from just the right angle to see it, the court ruled it was "hidden from common observation."

[gtommec]

So by this reasoning, If I go into a restaurant then I can not sit with my gun-side towards a wall because that would make my gun "hidden from common observation"

I am not talking about covering my gun with my shirt tail, jacket or duffelbag here, the gun on my side is not "covered up" by anything it is just out of the officers field of vision, just like it would be in my previous example of an officer walking beside me on my left side. If the officer looks at me he would not be able to see the gun unless he asks me to turn around- same thing in my car.

[TenchCoxe]

I think you're looking too hard for a bright-line, always correct, rule that applies in every conceivable situation.

In the real world, an officer - and a court of law considering the case - will take into account all of the facts and circumstances.

I reported above what the law states and what the authoritative Virginia courts have said about it. Beyond that, I don't want to speculate as to hypotheticals, because, as has been shown from experience, you never know what charge an officer might try to come up with, and you never know if some judge might buy it. We can offer up our opinions and arguments as to whether any hypothetical situation would be "o.k" or whether it would be illegal, but without some binding legal precedent on point, there is no real certainty to be had.

Having said all that, I tend to agree that if your gun is in a holster openly carried on your hip, the fact that your hip is facing the wall does not make the gun illegally concealed - as long as it's not covered by your jacket or anything, as you say. There, it is merely the case that, as you say, the officer simply is standing on the wrong side of you to be able to see it.

I have to say, though, that I would not put it past some police officers to claim that your gun in an IWB holster at the 3:30 position is "hidden from common observation" when you're in your car, because, as I indicated above, you're basically sitting on it and covering it up. Even if the cop was on the other side of the car, looking right at your right hip, he still wouldn't be able to see it, because it's buried in the seat cushion. Which is not to say he would be right, or that it always would be problem, or whatever. Just saying I believe it to be a possibility. And this might be sufficient to distinguish it from the diner situation, where your right side is simply facing the wall, but the gun is not covered up.

Of course, if you have a CHP, then this entire discussion pretty much is moot, because who cares if it's concealed then.

Just keep in mind there was a guy convicted of "assault on an officer" because he pointed his finger at the cop who had pulled him and his buddy over, and said "bang." And the conviction was upheld on appeal. I was pretty surprised about that one. If they can successfully argue that pointing your finger at someone and saying "bang" is a criminal "assault", I certainly could envision them saying that you sitting in your car with a gun on your hip that nobody can see, no matter where they're standing, constitutes the gun being "hidden from common observation."

[gtommec]

I think you're looking too hard for a bright-line, always correct, rule that applies in every conceivable situation.

Not really what I am looking for is a general consensus about this issue. I am not trying to be a pain (and sorry if I am coming off that way) but I posted this question both here and on OCDO and am just trying to get some opinions. I only got one response on opencarry and it was that I was fine. I know that in the end the only opinions that actually matter are that of the LEO and the courts but like I said just trying to see what other people think.

[TenchCoxe]

Ah... well good luck trying to find "general consensus" about anything among gun enthusiasts! In my experience, we're an opinionated and prickly bunch!!

[gtommec]

noted, and thanks for all your insight

[SHMIV]

Suppose that, upon being pulled over, a non-chp holder just stuck his gun on the dashboard after stopping the vehicle, but before the officer approached, and then just kept his hands glued to the steering wheel. When the officer approaches the vehicle, immediately (and respectfully!!) point out the gun to the officer (keeping hands on the wheel, of course).

Wouldn't that remove any question of whether or not the gun was concealed?

[gtommec]

Suppose that, upon being pulled over, a non-chp holder just stuck his gun on the dashboard after stopping the vehicle, but before the officer approached, and then just kept his hands glued to the steering wheel. When the officer approaches the vehicle, immediately (and respectfully!!) point out the gun to the officer (keeping hands on the wheel, of course).

Wouldn't that remove any question of whether or not the gun was concealed?

well it definitely wouldn't be concealed but there is no way in hell I am going to be pulling out a gun while being pulled over, even if it is before the officer approaches.

[MWhiteDesigns]

i would urge you to visit opencarry.org and go to the Virginia section. Many of your questions will be answered there.

[MrSmitty]

I believe that a glove compartment, or console capable of being closed and staying closed pretty much covers it (no pun intended) With the exception of the 30 day waiting period, for handguns, you have in Va, it does seem to be a more gun friendly state than most. Indiana you have to have a license to carry, open, concealed, or in your car,and until last year shoot a handgun at a state range, on the plus side, our govenor signed a bill last year allowing the purchase of long guns in ANY state that allows it, I am currently in Colorado, and I could purchase any rifle,or shotgun I want (now if I just had the money!!!!)

[TenchCoxe]

I never really though of it as a "30 day waiting period". Just to be clear, that applies only if you're buying more than one handgun and you don't have a CHP. If you haven't bought a handgun within the previous 30 days, you can walk in, buy a handgun and walk out with it (assuming you pass the NICS check). And if you have a CHP, the "one gun a month" rule doesn't apply to you.

There is legislation currently in the General Assembly to do away with the OGAM rule, but I haven't checked the status of it recently.