WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

West Virginia Gun Laws – July 2019

I’m seeing more and more confusing regarding West Virginia’s gun laws as of 2019.  Here is a quick rundown of some important things every West Virginian should know:

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“Constitutional Carry”

West Virginia recognizes the right of United States Citizens, or Legal Residents of the United States, who are 21 years of age or older, and who are not otherwise prohibited under state or federal law from possessing a firearm, to carry a concealed weapon in West Virginia without first obtaining a concealed carry license.  This is known as “Constitutional Carry,” in this, as well as other freedom-loving states.

This allows qualified persons to carry any “deadly weapon,” not just a pistol/revolver, like the old permit process allowed.  What can be carried concealed under constitutional carry?

A “deadly weapon” is generally deemed as “an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use.” W. Va. Code § 61-7-2(9). It includes, but is not limited to, knives, switchblades, metallic knuckles, pistols, revolvers, and blackjacks. W. Va. Code § 61-7-2. Other items will be considered a “deadly weapon” for purposes of this statute where the circumstances of a particular case demonstrate that the weapon was “dangerous or deadly.” See Syl. Pt. 5, State v. Choat, 178 W. Va. 607, 363 S.E.2d 493 (1987).

What is the definition of “concealed” under the law?

“Concealed,” for purposes of W. Va. Code § 61-7-1, et seq., means: 

hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried. For purposes of concealed handgun licensees, a licensee shall be deemed to be carrying on or about his or her person while in or on a motor vehicle if the firearm is located in a storage area in or on the motor vehicle. 

Exceptions:

  1.  West Virginia’s constitutional carry law applies only to persons physically within the State of West Virginia.  It does not authorize any person to carry in another state.
  2. It does not apply to persons under the age of 21, even if they are otherwise eligible to possess a firearm.

18-21 year olds:

Just how is freedom denied to 18-21 year olds who have fought and died in foreign wars for the politicians who restricted their God-given rights?

  1. WV residents from 18-20 years of age who are not otherwise prohibited by law may obtain a “Provisional License” to carry a concealed pistol/handgun (ONLY- no nunchucks,etc.) for a total cost of $40.00.  It will be valid until the person turns 21.
  2. NOTE: The provisional license only applies to pistols or revolvers. Other concealed deadly weapons (such as brass knuckles, knives longer than 3.5″, clubs, ASPs, etc…) may result in arrest, fine, and jail time. An 18-20 year old who carries any concealed deadly weapon without a license will face a year in jail and a $1000 fine, and could find themselves disqualified for firearms ownership in the future. The same penalty applies to an 18-20 year old who carries a concealed deadly weapon other than a handgun, even if they have a provisional license. 21+ persons are allowed to carry deadly weapons other than firearms concealed, provided that weapon is legal to possess, and that they are not prohibited by law from possessing firearms. Disqualified persons (felony convictions, etc..) who carry concealed deadly weapons of any kind face severe criminal penalties.
  3. 18-20 year old members of the United States Armed Forces, Reserves, and National Guard may carry concealed handguns without a license. NOTE: This does not cover deadly weapons other than handguns. Knives with blades longer than 3.5″, switchblades, dirks, ASPs, etc… are NOT covered under this section. Handguns only. See: §61-7-6.
  4. Persons between the ages of 18 and 21 in lawful possession of a rearm are not prohibited from carrying an unconcealed rearm (“open carry”) without a provisional license as long as the person obeys all other applicable laws and restrictions.

 

“Prohibited Persons” from owning a firearm under West Virginia law:

Under West Virginia law, individuals falling within the following categories are prohibited from possessing a firearm: 

–  Has been convicted in any court of a crime punishable by imprisonment for a    term  exceeding one year;

–  Is habitually addicted to alcohol;

–  Is an unlawful user of or habitually addicted to any controlled substance;

–  Has been adjudicated to be mentally incompetent or who has been              involuntarily committed to a mental institution

–  Is an alien illegally or unlawfully in the United States;

–  Has been discharged from the armed forces under dishonorable conditions;

–  Is subject to a domestic violence protective order (provided the DVP prohibits    possession of firearms/ammunition; note that an emergency, ex parte domestic    violence protective order must prohibit the respondent from possessing a    firearm);

–  Has been convicted of a misdemeanor offense of assault or battery either    under state or federal law which the victim was a current or former spouse or    sexual or intimate partner, person with whom the defendant has a child in    common, person with whom the defendant cohabits or has cohabited, a parent    or guardian, the defendant’s child or ward or a member of the defendant’s    household at the time of the offense or has been convicted in any court of any    jurisdiction of a comparable misdemeanor crime of domestic violence.

W. Va. Code 61-7-7(a)(1)-(8) (2016).

Temporary Personal Safety Orders:

West Virginia also recently enacted W. Va. Code Section 53-8-5, which provides for “temporary personal safety orders”, which are essentially domestic violence protective orders for petitioners who are not related to the respondents.  PSOs are available where the respondent alleges sexual offenses, stalking (W. Va. Code Section 61-2-9(a)), or repeated credible threats of bodily injury (W. Va. Code Section 53-8-4).  A PSO may prohibit the respondent from possessing a firearm if a weapon was used or threatened to be used in the commission of the offense; or the respondent has violated any previous order; or the respondent has been convicted of an offense involving the use of a firearm. See W. Va. Code Section 53-8-5.  These orders can be in effect up to two years.

For more information, see the Attorney General’s handbook:

https://ago.wv.gov/gunreciprocity/Documents/On%20The%20Mark.pdf

 

 

July 15, 2019 Posted by | West Virginia Concealed Carry Laws, West Virginia Gun Laws | Leave a comment

Open-Carry of Firearms in WV in 2019: “Am I being detained?”

This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis.  But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….

1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed; 

2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.

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Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.

The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun.  Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.

A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.

When does a seizure occur?

A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.

The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).

When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?

Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more.  Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968). 

To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980).  The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009).  As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.”  Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).

Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure.  An officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. Robinson at 696 (2017 case) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

The importance of the Black case to open-carry rights in our circuit:

In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms.  Although that case was from North Carolina, it applies equally here.  In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:

At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion. 

Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion. 

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded. 

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. 

United States v. Black, 707 F.3d 531, 540 (2013).

 

February 21, 2019 Posted by | Governmental Liability, John H. Bryan, Judges, Lawsuits, Police, Police Misconduct, Searches and Seizures, Vehicular Crimes, West Virginia Concealed Carry Laws, West Virginia Gun Laws, Wrongful Arrest, Wrongful Imprisonment | Leave a comment

West Virginia Lawyer Charged in Relation to Shooting

Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony.  This was reported by WCHS, as well as the Charleston Gazette.  Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run.  And then he was allegedly uncooperative with police when they asked him the identity of the shooter.

It was reported that all of this can be viewed on surveillance footage:

“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”

So my initial thought is, how can you view what someone is saying on surveillance footage?  You can’t.  We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.

The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video.  Well you certainly cannot tell what someone is saying to another.  How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it.  And if a cell phone is handed to you in such a situation, does that make you a felon?  What if you are a lawyer potentially representing the individual.  Can you preserve evidence yourself?  Are you compelled to turn over your own evidence to police at their demand?  The West Virginia Rules of Criminal Procedure don’t provide for that.  In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.

As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:

“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said. 

. . .

Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.

What ever happened to “innocent until proven guilty”?  Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct?  Or that the individual has abused a position of authority?  Or that the person is unethical?

I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts.  After all, isn’t that what police say when one of their own are accused of misconduct?  Well, it’s under investigation and we don’t know all of the facts.  So what if he did take the guy’s cell phone and told him to run?  What negative consequences did that have?  Who is a victim to the lawyer’s alleged crime?  None and nobody.

January 3, 2014 Posted by | Concealed Weapons, Lawyers, Media Coverage, Police, Police Misconduct, Self Defense, Uncategorized, West Virginia Concealed Carry Laws, West Virginia Gun Laws | Leave a comment

WV gun owner stops home invasion. When can you legally shoot someone?

There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.

He shot one of the burglars, and held the other at gunpoint until police arrived.  This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).

When can you legally shoot someone in a home invasion scenario?  

In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm.  People tend to get obsessed with the “castle doctrine.”  Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity.  It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.

There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified.  Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.

Everyone should think about these types of things ahead of time.  You should draw a mental line in the sand regarding when you shoot, and when you do not shoot.  What is enough?  What if someone in a ski mask is lurking outside your house?  What if someone in a ski mask is outside your house with a gun in their hand?  What if someone is burglarizing your vehicle in your driveway?  What if someone is burglarizing your neighbor’s home?  Or car?

There is not necessarily a right answer for these types of scenarios.  But you should never pull the trigger unless you really do fear for a life.  It’s not that they don’t deserve a dirt nap.  If it were up to me, all thieves entering your property at night should be executed.  But unfortunately it’s not.

Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them.  Unfortunately, here we are not allowed to use deadly force in order to protect property.  For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers.  Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.

1.  It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”.  I knife, gun, or even a stick could count as a weapon.  It is never a good idea to provide your own weapon after the shooting.  The facts are what they are.  Never try to change them.

2.  It’s always going to be more difficult to justify a shooting where the person shot was shot in the back.  This would indicate that the person was walking, or running, away from you.  That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving.  It’s also hard to argue that the threat was imminent.  But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home.  Generally when we shoot someone, our natural tendency is to keep shooting.  So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away.  Good shoot, but bullets in the back are always going to make things more difficult.

3.  In your home, it’s game on.  Like I said, draw a line in the sand.  If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice.  But it still has to be reasonable.  You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying.  For this reason, always have a good home defense light.  You have to know your target – and what’s behind it.

It’s outside the home, where most of the grey areas live.  So be very careful venturing outside your castle with a gun in the dark of night.  Know where your line in the sand is.

As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story.  Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion?  If so, good shoot.  If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.

4.  Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class.  A basic concealed weapons class does not qualify as training.  This is me at a handgun class a couple of weeks ago.  It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.

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December 23, 2013 Posted by | Burglary, Concealed Weapons, Murder, Negligent Homicide, Robbery, Self Defense, West Virginia Concealed Carry Laws, West Virginia Gun Laws | Leave a comment

Fourth Circuit Open Carry Decision

The Fourth Circuit issued a decision bolstering our 2nd Amendment rights.  The case is styled  USA v. Nathaniel Black, out of the Western District of North Carolina.  Essentially, a guy who was a convicted felon was open carrying a firearm.  He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm.  But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?

The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity.  The importance of this decision is that it protects our 2nd Amendment rights.  If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc.  The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).

March 20, 2013 Posted by | Concealed Weapons, Police, Police Misconduct, Searches and Seizures, Self Defense, Suppression, West Virginia Concealed Carry Laws, West Virginia Gun Laws | 3 Comments

Anti-gun and Ignorant West Virginia News Anchor Educated on the 2nd Amendment

This video is great.  It shows the anti-gun and ignorant Bray Cary, with the State Journal, absolutely owned by Keith Morgan, of the West Virginia Citizens Defense League.  Bravo!

 

 

The State Journal’s website offered this promo for the segment:

DECISION MAKERS: Bray Cary takes on the gun rights debate

On this week’s edition of The State Journal’s Decision Makers, host Bray Cary takes on the need for semi-automatic weapons with Keith Morgan with the West Virginia Citizens Defense League.

Thank you Mr. Cary for taking on our “need” for semi-automatic weapons.  I hope you learned something in your embarrassing display of ignorance and arrogance.  While you’re at it, are there other constitutional rights you feel that we don’t need?  Do we really need the First Amendment with people like you on television?

February 28, 2013 Posted by | Media Coverage, West Virginia Concealed Carry Laws, West Virginia Gun Laws | Leave a comment

Two more thoughts of the day: 1) Without video proof, police misconduct didn’t occur; 2) Sex offender registration mania is out of control

It blows my mind that this is on video, but it is.  A scumball cop in Ohio abused his authority and violated the civil rights of an innocent citizen.  He basically threatened to execute the guy, etc.  Of course the poor guy is then prosecuted for “failure to notify” that he had a concealed weapon permit and was carrying.  I heard through the grapevine that in the criminal prosecution which ensued (of the victim of course – not the cop) the prosecutor offered to dismiss the charges if the victim/defendant signed a release of liability foreclosing any possibility of a lawsuit over civil rights violations.  If this is true (and I have no proof that it is), the prosecutor should be prosecuted for attempting to cover up a crime.  I just found this statement from the police chief in that jurisdiction:

I want to assure our citizens that the behavior, as demonstrated in this video, is wholly unacceptable and in complete contradiction to the professional standards we demand of our officers. As such, appropriate steps were placed in motion as dictated by our standards, policies and contractual obligations. Those steps included: The officer immediately being relieved of all duty. The incident has been referred to the Internal Affairs Bureau for what will be a complete and thorough investigation. As bad as the video indicates our officer’s actions were, there is a due process procedure to follow. That process is designed in the best interest of both our employees and the citizens at large. That process will be followed in this case as in all others. Anyone shown to be in violation of our rules and regulations will be help appropriately responsible as dictated by all the facts. ~Chief Dean McKimm

The 800 pound gorilla in the room is this: if the video did not exist, nobody would believe the victim.  And it blows my mind that the video was recovered.  By the way, if you watch the video, take note of the illegal search of the backseat of the car which happens almost immediately after the stop.  This sort of garbage happens all the time.  After the fact the cops will claim to have received consent to search the vehicle.  There was no consent, and there was no probable cause to search.

Secondly, there is a story out today about 14 year old boys being required to register as sex offenders due to a high school prank.  It’s time to tell the whining hippy women and the “new-castrati” that enough is enough with this sex offender garbage.  Of course it has its place with real sex offenders.  But this has gotten out of control.  I’m tired of seeing this ruin the lives of good young people.  The sex offender laws are too broad.  Then once we label good people as “sex offenders”, it ruins their lives.  Not only this, but it waters down the real purpose of having registered sex offenders.  So what’s the point?

If you were wondering what the law is in West Virginia, it is basically this: if there is any conviction of an individual and the presiding judge makes a finding that the offense was “sexually motivated” in any way, that person then becomes a registered sex offender.  It doesn’t have to be an actual sex offense charge.

July 21, 2011 Posted by | Civil Liability, Corruption, Governmental Liability, Police, Police Misconduct, Prosecutors, Sex Crimes, Sex Offender Registration, West Virginia Concealed Carry Laws, West Virginia Gun Laws | 2 Comments

Two Requirements for Concealed Carry in West Virginia

For concealed weapon carry permit holders in West Virginia, there are two very important items of documentation that you must have on you at all times:

(1) your West Virginia concealed pistol/revolver license, which of course is legally required to be on your person any time you are carrying a concealed weapon; and

(2) your attorney’s business card, in case you get arrested by a law enforcement officer regarding your firearm, or in case, God forbid, you are forced to use your firearm in self defense.

Step one is legally carrying the weapon.  Its a whole separate ordeal explaining the situation of having to use deadly force to defend yourself or others to law enforcement and later, the prosecuting attorney.  You should leave it to a professional.  Have your attorney’s card laminated and keep it in your wallet along with your CCW permit card.

Of course, my business cards already come pre-laminated in a glossy finish and will stand the test of time in your wallet.  If you want an attorney who knows guns and the many facets of self defense and gun laws in West Virginia, and who also has a proven track record of successfully defending gun charges, both through obtaining dismissals from judges and prosecutors and from obtaining acquittals from juries, call me and I will send you several of my cards free and with no questions or obligations.

Remember: saying “with all due respect sir, I would like to have my attorney here before I answer questions – I will call him right now” cannot be used against you.  Even if they arrest you, your innocence can be sorted out after the fact.  Make sure that your attorney gives you some way of contacting him or her after hours if an emergency arises.  You have to use your brain.

You may want to say (especially if there is no attorney handy) something to officers, depending on the circumstances, so that they understand that it is a self defense situation.  “Officer, this was self defense, I was in fear for my life, I have a concealed carry permit.  That is his gun over there lying next to his body.  This man over there was a witness”.  If an officer is going to support you, he will not push you to answer questions beyond that.  If he is not going to support you, then there is no point in talking with him anyways.

 

ETA from Matt Harvey, Esq.:

“Concealed” means hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried. For purposes of concealed handgun licensees, a licensee shall be deemed to be carrying on or about his or her person while in or on a motor vehicle if the firearm is located in a storage area in or on the motor vehicle.

W. Va. Code Ann. § 61-7-2 (West)

January 27, 2011 Posted by | John H. Bryan, West Virginia Concealed Carry Laws, West Virginia Gun Laws | 5 Comments