West Virginia Citizens Defense League

While browsing http://www.pafoa.org I came across a thread (http://forum.pafoa.org/concealed-open-c ... post935865) discussing an update from our AG concerning concealed carry. The purpose of the update was to indicate WV's recognition of non-resident licenses, but the discussion evolved into other things and these other things may be items we need to address.

Firstly is the Attorney Generals "new" pamphlet. I say new because this is the first I've seen it. The pamphlet is located here: http://www.wvago.gov/pdf/brochures/2009_gunbrochure.pdf

At the bottom of page 4 there is this sentence: "While West Virginia is an “Open Carry” state, only residents of West Virginia may do
so."

I'm relatively familiar with our code, for a layman at least, but I can remember nothing about restricting out-of-state visitors from open carrying. Is there a section which does restrict open carry for non-residents? If there is not, what do I (we) need to do to have this incorrect information corrected?

Next ... in this (http://www.wvago.gov/pdf/BookletWVFirearmLaws.pdf) there is a section on the bottom of page 1 which states: "It is important to note that while West Virginia is an “open carry” state the ability to carry openly is
deemed by law enforcement to apply only to West Virginia residents. West Virginia law enforcement’s
interpretation of “open carry” is that the handgun must be visible from three sides." (Bold is mine)

Our code is very clear on what "concealed" means. I'm currently on my honeymoon, so I don't have ready access to my saved links, but the code says something to the effect of "the firearm must be visible in the normal course of events" or something very similar. While this isn't as important as the whole "only WV residents may OC" issue, I do think it is something that needs to be addressed.

Edit: She isn't awake yet, so I dug up the code:

§61-7-2. Definitions.
(10) "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.

To summarize, the AG is publishing a pamphlet which states only WV residents may open carry, when there is no portion of our code, that I know of, which restricts non-residents from open carry. We should make an attempt at getting this information corrected, if indeed it is incorrect.

Secondly, our law enforcement is interpreting 62-7-2-(10) concerning what "concealed" means. "Hidden from ordinary observation" does not mean "visible from 3 sides". Is this an important of an issue to address? What dangers are inherent in the law enforcement "interpreting" our state code? Isn't that the judiciaries job?

Very interesting catch. I'll get on the phone shortly.

Just an update on this, the appropriate point of contact is out until Monday.

Thanx for the quick update. Oh well I guess that is the way it is.

I have spoken with the Attorney General's office. The AG's office states that they've been placed in a precarious position by the West Virginia State Police. The AG's office had no response regarding whether or not there is any statutory prevention of open carry by non-residents. However, what they have stated is that the State Police both interprets, and enforces the law in that manner. As such, the AG's office made a judgment call on best intentions. They stated that since the WV State Police interpret the law that way, they did not want to issue a nation-wide green-light to open carry in West Virginia, only to have some poor guy acting on their information arrested by a state trooper who didn't get the memo.

And I can kind of see why this, while not necessarily technically correct, may be a wise thing to do. Because of our sporting code spaghetti, anyone who is open-carrying in the woods or in in a vehicle (without a permit) could be charged in violation of hunting law. An out-of-state resident could easily come to the conclusion that "open carry means open carry" and drive around our state open-carrying. Or alternately, go hiking around the woods open carrying. And they would almost certainly find themselves arrested for the practice.

So now my charge is to see if I can find out what statute the WVSP is interpreting to prohibit open carry to non-residents, as the AG's office was completely unaware of any actual cases which support the WVSP's position.

So perhaps we need to solicit information from our friends over at PAFOA. If any of them have actually been arrested by the West Virginia State Police or other LE organizations for open carry in WV, we need that information. We need to know what statute was cited in the arrest, because I'll be damned if I can find any prohibition or restriction based on state of residency within our state code.

Feel free to copy/paste this over on the PAFOA forums.

-- Keith

Edit: I have a call in to Colonel Pack's (WVSP Superintendent) office regarding this issue. I'll update as more information becomes available.

Keith,

Thank you for taking the lead in this. I am off on friday and was intending to put in a call to the AG's office and see what I could find out, but without any contacts I was concerned I would just get brushed off.

Now we know why the AG's office worded it the way they did, its just a matter now of finding out the why of the WVSP's interpretation.

If I can be of any assistance let me know.

I'll ask around PAFOA, but to my knowledge no one from there has had a negative encounter with any WV LEO's.

Should we cast a broader net and ask on OCDO if anyone has ever been arrested/charged for open carry by a non-resident? Granted the WV section doesn't see much activity, but we could also ask on the Ohio, PA and VA forums.

Let me know what I can do.

I have an account at OCDO, I'll go post there and see if we get any hits.

I've posted in the PAFOA forum, and posted in the running topic at OCDO. I'll keep you guys updated as this moves.

I posted on AR15.com about it in the Virginia hometown forum, if I don't get any hits there, I'll try the GD forum over there.

Jeremy

How wonderful it is to have a client (let's remember that the AG is the state's lawyer and the state and all its agents and instrumentalities are the AG's clients) with a cavalier attitude toward the law.


Because there is none and even if there was, it would be unconstitutional as a violation of the Privileges & Immunities Clause of Article IV, § 2 of the U.S. Constitution.


The executive branch may enforce, but the courts interpret, the law.


Ah, here we go again with W.Va. Code § 20-2-5. We really need to pass HB 3333 (with revisions I have been preparing since the last legislative session) next year.


T -12 hours until I am admitted to practice, along with about 120 others. However, it will be at least a couple of weeks until I open my office.