COMMITTEE SUBSTITUTE

FOR

H. B. 3087

(By Delegates Frazier and Lawrence)

(Originating in the Committee on the Judiciary)

[February 23, 2011]

A BILL to amend and reenact §7-4-1 of the Code of West Virginia, 1931, as amended; to amend and reenact §15-2-25 of said code; and to amend said code by adding thereto a new section, designated §30-29-11, all relating to requiring qualifying law-enforcement officers employed by a West Virginia law-enforcement agency to receive certification to carry a concealed firearm nationwide as provided in the federal Law-Enforcement Officers Safety Act of 2004; permitting and setting forth the requirements for prosecuting attorneys and assistant prosecuting attorneys to carry concealed handguns pursuant to that act; requiring prosecutors, assistant prosecutors or duly appointed investigators employed by a prosecuting attorney to complete firearms training and certification before carrying a firearm while performing their duties; establishing a procedure for a retired or medically discharged member of the State Police to appeal a denial of a letter of authorization to carry concealed handguns; providing that certain methods of authorization for retired or medically discharged members of the State Police to carry concealed handguns are cumulative; providing that a letter of authorization for a retired or medically discharged member of the State Police to carry concealed handguns is considered a West Virginia concealed handgun license for the purpose of participating in reciprocity with other states; providing that law-enforcement agencies are neither prohibited from nor required to permit an officer to carry his or her service weapon off duty; and requiring West Virginia law-enforcement agencies to offer access to training and certification for honorably retired officers to be permitted to carry a concealed firearm nationwide as a qualified retired law-enforcement officer as provided in the federal Law-Enforcement Officers Safety Act of 2004.

Be it enacted by the Legislature of West Virginia:

    That §7-4-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §15-2-25 of said code be amended and reenacted; and to amend said code by adding thereto a new section, designated §30-29-11, all to read as follows:

ARTICLE 4. PROSECUTING ATTORNEY, REWARDS AND LEGAL ADVICE.

§7-4-1. Duties of prosecuting attorney; further duties upon request of Attorney General.

    (a) It shall be the duty of The prosecuting attorney to shall attend to the criminal business of the state in the county in which he the prosecuting attorney is elected and qualified. and When he the prosecuting attorney has information of the violation of any penal law committed within such the county in which the prosecuting attorney is elected and qualified, he the prosecuting attorney shall institute and prosecute all necessary and proper proceedings against the offender and may in such case issue or cause to be issued a summons for any witness he may deem the prosecuting attorney considers material. Every public officer shall give him the prosecuting attorney information of the violation of any penal law committed within his the county in which the prosecuting attorney is elected and qualified. It shall also be the duty of The prosecuting attorney to shall attend to civil suits in such the county in which the prosecuting attorney is elected and qualified, in which the state or any department, commission, or board, thereof or other instrumentality of the state is interested, and to advise, attend to, bring, prosecute or defend, as the case may be, all matters, actions, suits and proceedings in which such the county or any county board of education is interested.

    (b) Any prosecuting attorney or assistant prosecuting attorney who elects to carry a concealed firearm pursuant to the federal Law Enforcement Officers Safety Act, 18 U.S.C. §926B, shall undergo annual firearms training and certification established by the sheriff’s department of his or her county, similar to that which is provided to members of the sheriff’s department eligible for training and certification under 18 U.S.C. §926B, and which shall reasonably accommodate any physical disability of the trainee. Any prosecuting attorney or assistant prosecuting attorney who elects to undergo training and certification pursuant to this subsection shall provide, at his or her own expense, a suitable firearm and any ammunition actually expended in training and certification pursuant to this subsection. Upon completion of training and certification pursuant to this subsection, each prosecuting attorney or assistant prosecuting attorney shall be issued a photographic identification and certification card, suitable to be carried in a wallet, valid for one year, which shall contain the name, title, official address, full-face color photograph of said prosecuting attorney or assistant prosecuting attorney, the sheriff’s signature, the expiration date, the words “qualified law-enforcement officer under 18 U.S.C. §926B” in conspicuous type and shall indicate completion of periodic training consistent with this subsection and 18 U.S.C. §926B. Prosecuting attorneys and assistant prosecuting attorneys who have successfully completed such training and certification shall have all the rights and authorities necessary in order to comply with 18 U.S.C. §926B and receive the rights, benefits, privileges and immunities conferred under 18 U.S.C. §926B. On and the effective date of this subsection, any prosecutor or assistant prosecuting attorney or any duly appointed investigator employed by a prosecuting attorney must first complete firearms training and certification established by the sheriff’s department of his or her county, similar to that which is provided to members of the sheriff’s department, before he or she may carry a firearm while performing their duties. This subsection is supplemental and additional to existing rights to bear arms, and nothing in this subsection shall impair or diminish such rights.

    (c) It shall be the duty of The prosecuting attorney to shall keep his or her office open in the charge of a responsible person during the hours polls are open on general, primary and special county-wide election days, and the prosecuting attorney, or his assistant prosecuting attorneys, if any, shall be available for the purpose of advising election officials. It shall be the further duty of The prosecuting attorney, when requested by the Attorney General, to shall perform or to assist the Attorney General in performing, in the county in which he the prosecuting attorney is elected and qualified, any legal duties required to be performed by the Attorney General, and which are not inconsistent with the duties of the prosecuting attorney as the legal representative of such the county. It shall also be the duty of The prosecuting attorney, when requested by the Attorney General, to shall perform or to assist the Attorney General in performing any legal duties required to be performed by the Attorney General, in any county other than that the county in which such the prosecuting attorney is elected and qualified, and for the performance of any such duties in any county other than that the county in which such the prosecuting attorney is elected he and qualified, the prosecuting attorney shall be paid his or her actual expenses.

    (d) Upon the request of the Attorney General, the prosecuting attorney shall make a written report of the state and condition of the several causes all cases in which the state is a party, pending in his the county, and upon any matters referred to him the prosecuting attorney by the Attorney General as provided by law.                  CHAPTER 15. PUBLIC SAFETY.

ARTICLE 2. WEST VIRGINIA STATE POLICE.

§15-2-25. Rules generally; carrying of weapons upon retirement or medical discharge.

    (a) Subject to the written approval of the Governor and the provisions of this article, the superintendent may make and promulgate proper rules for the government, discipline and control of the West Virginia State Police and shall also cause to be established proper rules for the examinations of all applicants for appointment thereto. The members of the West Virginia State Police shall be are permitted to carry arms and weapons and no license may be required for the privilege.

    (b) Upon retirement or medical discharge from the West Virginia State Police and with the written consent of the superintendent, any retired or medically discharged member who is not prohibited by federal law or the laws of this state from possessing a handgun may carry a handgun concealed handguns without a license for the life of the member following retirement or medical discharge notwithstanding the provisions of article seven, chapter sixty-one of this code: Provided, That the superintendent’s written letter of consent to carry a handgun concealed handguns may not last for more than five years at a time and a retired or medically discharged member who wishes to continue to carry a handgun concealed handguns beyond five years of the date of his or her initial retirement or medical discharge must request and obtain a renewal of the superintendent’s written permission to carry a handgun concealed handguns at least once every five years. A retired or medically discharged member desiring to carry a handgun concealed handguns after retirement or medical discharge must provide his or her own handgun. Upon request, each member shall be presented with a letter of authorization signed by the superintendent authorizing the retired or medically discharged member to carry a handgun concealed handguns. The written authorization shall be carried by the retired or medically discharged member at all times that he or she has a handgun concealed handguns on or about his or her person. The superintendent may not withhold, deny or revoke any letter of authorization issued under this subsection without cause if the retired or medically discharged member is qualified for the authorization. The superintendent may not issue a letter of authorization to any retired or medically discharged member who is no longer employed by the State Police due to a mental disability, or who the superintendent has reason to believe is mentally incapacitated to the extent it would present a threat of physical harm to one or more persons for the member to carry a concealed weapon handguns or who is prohibited by federal law or the laws of this state from possessing, purchasing or receiving a handgun. The superintendent may revoke the authority at any time without cause and without recourse for just cause. Conviction of the retired or medically discharged member for the commission of any felony or for a misdemeanor involving the improper or illegal use of a firearm shall cause or the retired or medically discharged member becoming prohibited by federal law or the laws of this state from possessing, purchasing or receiving a handgun causes this authority to terminate immediately without a hearing or other recourse and without any action on the part of the superintendent. The superintendent shall promulgate a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, which rule shall prescribe requirements necessary for the issuance and continuance of the authority herein granted and the procedure for appealing a denial or revocation of a letter of authorization to carry concealed handguns issued under this subsection. For the purposes of participation in concealed handgun license reciprocity with other states pursuant to subdivision (7), section six, article seven, chapter sixty-one of this code, a valid letter of authorization issued pursuant to this subsection constitutes a concealed handgun license issued by this state.
    (c) In addition to any letter of authorization under subsection (b) of this section, the superintendent must make available to all eligible retired or medically discharged members of the State Police a program for certification to carry a concealed firearm nationwide under Law-Enforcement Officers Safety Act, P.L. 108-277, if that retired or medically discharged member is a qualified retired law-enforcement officer as defined therein. Until that act is amended to increase renewal interval for a certification as a qualified retired law-enforcement officer to equal or exceed the renewal interval for letters of authorization under subsection (b) of this section, a retired or medically discharged member of the State Police who qualifies for both a letter of authorization under said subsection and certification as a qualified retired law-enforcement officer under the federal act is entitled to both and the corresponding rights, benefits, privileges and immunities appertaining to each.
    (d) Any denial, revocation or termination of a retired or medically discharged member's letter of authority under subsection (b) of this section or certification as a qualified retired law-enforcement officer under subsection (c) of this section is subject to article five, chapter twenty-nine-a of this code..

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION.

§30-29-11. Law-enforcement officers to receive certification to             carry weapons off-duty.

    (a) Every qualified law-enforcement officer employed by a West Virginia law-enforcement agency must receive the training and certification required to be considered a "qualified law-enforcement officer" pursuant to the federal Law-Enforcement Officers Safety Act, P.L. 108-277, in order to carry a concealed firearm nationwide. It is the duty of each law-enforcement official to provide to qualified law-enforcement officers under his or her command the identification required by that act. No officer may be charged any fees or costs for receiving this certification. This subsection may not be construed to require or prohibit a law-enforcement agency from permitting, requiring or prohibiting a law-enforcement officer to carry his or her service weapon off-duty.
    (b) Every West Virginia law-enforcement agency shall, at least once annually, notify each honorably retired law-enforcement officer who retired from that agency of the provisions of the Law- Enforcement Officers Safety Act, P.L. 108-277, permitting a qualified retired law-enforcement officer to carry a concealed firearm nationwide. The agency shall permit a retired officer who meets the eligibility requirements of this law to receive the training and certification required for the retired officer to qualify as a "qualified retired law-enforcement officer" as provided by that act. Each qualifying retired officer shall be offered the required annual recertification as provided in that act.