Category Archives: Firearm Attorney

Carrying a Concealed Weapon or Firearm

Many people mention the Second Amendment, but if you ask them to quote it, only a handful would be able to.  Here is the exact text of the second amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

This has been interpreted by courts throughout the years, and each interpretation helps to define exactly what the amendment means. This amendment provides a limited right to possess firearms. The right is “limited” because it is a right that can be lost in certain circumstances, and it does not apply universally to all types of firearms.

Concealed Weapon Law in Virginia

firearms. But the most commonly charged crime is Carrying a Concealed Weapon under Va. Code Section 18.2-308.  This statute makes it illegal to possess any one of many kinds of weapons with it being concealed. In addition to firearms, it is also illegal to conceal and carry: most knives, nun chucks, throwing stars, and any weapons “of like kind” as those. This law has an exception in that anyone with a Concealed Handgun Permit may carry a handgun concealed. But even with that permit, it is still illegal to conceal and carry any of the other types of weapons in this statute. This law also does not apply when you are at your home or in your own yard, near your home.

The Carrying a Concealed Weapon criminal charge has many other exceptions and defenses. In addition to the exceptions in the law itself, any police officer who charges you with this crime must have strictly abided by the Fourth Amendment before searching you or seizing your weapon.

Open Carry in Virginia

In Virginia, anyone who is legally able to possess a firearm, may openly carry it. Open carrying means that the firearm is carried in such a way that any casual observer would be able to see it and identify it as a gun. Before open carrying a firearm, there are a few points to consider:

  1. If it is illegal for you to possess a firearm (for example, if you are a felon), then it is still illegal for you to open carry a firearm.
  2. Open carry might make you a target. If your goal is self-defense, becoming a target might be counter-productive.
  3. You will be noticed. Law enforcement officers cannot detain or arrest you merely because they see a firearm openly carried. However, a good rule of thumb for staying out of trouble with the police is not drawing attention to yourself and openly carrying a firearm will make you worth noticing to police, who may then observe or follow you with the idea that they will see some other wrongdoing and be able to detain you, arrest you, or seize the gun.

For all of those reasons, you might want to consider not openly carrying your gun, even though you do have a legal right to do so. If you qualify for one, you can get a concealed carry permit and carry your handgun however you like.

Defense Attorney for Carrying a Concealed Weapon in Virginia

I regularly defend clients on all of the gun crimes in Virginia. If you’re facing one of those crimes, you need an experienced Virginia gun crime attorney. Contact me for a free consultation.

 

Possession of a Firearm by Felon

If you are a convicted felon, it is unlawful for you to possess a firearm unless your right to do so has been restored by a court. So if you have a felony record, and a police officer realizes you are in possession of a firearm, the officer will almost certainly arrest you and seize the gun as evidence.

Firearm by Felon in Virginia

possession of firearmThis crime is defined by Virginia Code Section 18.2-308.2.  As with all crimes, in order for you to be convicted of this the Commonwealth will have to prove each element of the crime. This crime has 2 basic elements:

That you were previously convicted of a Felony;  OR that on some date after July 1, 2005, while you were a juvenile, you were adjudicated delinquent (like “found guilty” but for juveniles) for Murder, Armed Robbery by gun, or Rape; OR that you are under the age of 29, and were adjudicated delinquent as a juvenile 14 years of age or older for any felony.

and

That you knowingly and intentionally possessed or transported, or knowingly and intentionally carried about his person, hidden from common observation, any Firearm, Stun gun, or explosive material.

Possession of a Firearm by Felon is a Class 6 Felony in Virginia

Any person who was previously convicted of a “violent felony” will be sentenced to a minimum mandatory of 5 years imprisonment.

Any person who was previously convicted of a felony within the past 10 years will be sentenced to a minimum mandatory of 2 years imprisonment.

If neither of those applies, the sentence could include time in jail or prison up to 5 years, as applies with all Class 6 Felonies in Virginia.

Defenses for Possession of a Firearm by Felon

The virginia law provides some exceptions to this law. You may have a good defense to being charged under this particular statute if any of the following apply to you:

  1. You only possessed a Stun Gun, and were at or very near your own residence.
  2. You were carrying out your duties as a member of the Armed Forces of the United States or of the National Guard of Virginia or of any other state.
  3. The governor of Virginia restored your gun rights previously.
  4. Your right to possess firearms or ammunition has been restored under the law of another state.
  5. The evidence against you was unlawfully obtained in violation of your Fourth Amendment Rights.
  6. The evidence against you was unlawfully obtained in violation of your Miranda rights.

Illegal Search and Seizure in Possession of a Firearm by Felon Cases

Even when you were possessing a firearm unlawfully, the Commonwealth and Police still must not violate your Constitutional Rights in obtaining the evidence against you.  The Virginia Court of Appeals, in Minter v. Commonwealth (2014), recently considered a case where the Defendant had been charged with this crime, and his attorney moved to suppress the evidence of the gun, because police had violated the defendant’s rights.

In that case, the Defendant, a felon, was carrying a concealed gun when officers saw him walking in a public parking lot. While they drove their unmarked vehicle slowly past, the defendant appeared very interested in their vehicle and began to walk away faster, crossing a muddy pool of water to get away. Officers stopped their vehicle and asked to speak to him and he agreed. The defendant appeared very nervous and was shaking and stammering over his words. The defendant reached into his pockets twice and after the officers had told him to keep his hands out of his pockets. Officers conducted a pat-down and asked the defendant if he had any weapons. He stated that he did, and they located a handgun on his person.  At the defendant’s trial, the evidence of the gun was allowed and he was convicted.  But the Defendant appealed that decision.

On his appeal, the Court of Appeals held that the Defendant had been “seized” by the police officers at the moment they did the frisk, or “pat-down”. And when they did that, they did not have reasonable suspicion to believe the Defendant had been committing a crime, and they had no other reason to believe he was carrying a weapon.  Because they did the pat-down without reasonable suspicion, the gun should not have been admitted into evidence at the Defendant’s trial. As a result, the Defendant’s conviction was reversed.

The point is this:  Officers have to follow the rules, and if they haven’t followed the rules in your case, an experienced attorney who has handled firearm cases should be able to help you get a good result.  Many of these same principles apply to various drug charges as well.

Can I get my Gun Rights Restored?

Maybe.  You can petition to have your right to possess a firearm restored. That petition is usually made in the Circuit Court, and a firearm law attorney should be able to help you with the process. The Virginia State Police have provided some good information regarding Restoration of Gun Rights.

Firearm Crimes and Defenses

Virginia Gun Crime Defense Attorney

gun-charges-attorneyThere are a number of Virginia crimes you might be charged with that relate to Firearms. This area of criminal law is somewhat complex and changes frequently, and not all Virginia Defense Attorneys have experience dealing with gun charges. Our firm represents clients charged with various criminal offenses involving the use of firearms and other weapons under the various statutes that police use to prosecute these crimes. There are many defenses available, some based on Second Amendment case law and some based on recent Virginia Supreme Court and Court of Appeals decisions. To defend anyone on accused of a firearm crime in Virginia, it is important not only to understand what the law is, but also how the Courts interpret that law.

Reckless Handling of a Firearm (Va. Code § 18.2-56.1)

This law says, in part, “It shall be unlawful for any person to handle recklessly any firearm so as to endanger the life, limb or property of any person.”  This crime is usually charged as a Class 1 Misdemeanor, which carries a potential penalty of up to 1 year in jail and a $2,500 fine.  But if the handling of the firearm causes injury to someone, then it might be charged as a Class 6 Felony.  If so, then the penalty could be up to five years in prison. When selecting a Defense Attorney to represent you on a charge of Reckless Handling of a Firearm, be sure to ask whether he or she has handled these cases before. Our firm has experience with Reckless Handling Firearm cases. A conviction under this section can also cause you to lose your hunting and fishing licenses, as well as your concealed carry permit and can prevent you from lawfully possessing a firearm in Virginia.

Willfully Discharging Firearms in Public Places (Va. Code § 18.2-280)

This law covers several different situations and locations where discharging a firearm, even if it is not done recklessly, is still unlawful. This includes firing a gun on any public street, public location, or place of public gathering. This is construed broadly, and essentially makes it illegal to discharge a firearm on any property that is not your own private property where the public is not invited to be present. However, this law does have an exception for self-defense.  However, asserting a claim of self-defense to a firearm charge is no easy task. You need an experienced Firearm Defense Attorney if you have been charged with this crime. This can be a Class 1 Misdemeanor which carries a potential penalty of up to 1 year in jail and a $2,500 fine. Or can be charged as a Felony with much greater consequences.

A few of the many other Virginia Firearm laws that prohibit possession, carry, or transportation of a firearm by: 1) a person who is not a citizen or lawful permanent resident of the U.S., 2) a person convicted of any felony, 3) a person convicted of certain juvenile offenses at age 14 or older, 4) persons with certain drug offenses or combinations of drug offenses, 5) anyone who is subject to a protective order, 6) anyone under the influence of alcohol or illegal drugs, and 7) anyone in a liquor-serving establishment who is consuming any alcoholic beverage.

It is also illegal, under Va. Code § 18.2-286.1, to fire a gun from a vehicle.

Generally open carry of weapons is allowed in many places in Virginia, but this right is limited. Concealed Carry requires a permit, but there are exceptions and defenses to that rule for anyone charged with Carrying a Concealed Weapon. If you or a friend have been charged with a Virginia Firearm offense, call an Attorney with experience in firearm cases.