H. B. 4305
(By Delegate Reynolds)
[Introduced February 2, 2010; referred to the
Committee on the Judiciary.]
A BILL to repeal §8-12-5a of the Code of West Virginia, 1931, as
amended; to amend and reenact §7-1-3 of said code; to amend
and reenact §8-12-5 of said code; to amend and reenact
§61-7-1, §61-7-2, §61-7-6, §61-7-9, §61-7-11a and §61-7-14 of
said code; to amend said code by adding thereto six new
sections, designated §61-7-11b, §61-7-16, §61-7-17, §61-7-18,
§61-7-19 and §61-7-20; to amend said code by adding thereto
two new sections, designated §64-5-1a and §64-5-1b; to amend
said code by adding thereto a new section, designated
§64-7-3a; to amend said code by adding thereto two new
sections, designated §64-10-3a and §64-10-3b; and to amend
said code by adding thereto a new article, designated §64-12-1
and §64-12-2, all relating to limitations upon the keeping and
bearing of arms; defining terms; repealing language concerning
county and municipal ordinances restricting firearms or
ammunition; creating additional exceptions to certain restrictions on where deadly weapons may be possessed;
declaring the provisions of the code to be the sole means by
which the keeping and bearing of arms may be regulated;
preempting any ordinance, rule, policy or administrative
action inconsistent therewith; exceptions; exempting certain
officers, employees and agents of the United States, this
state or a political subdivision of this state from
restrictions or prohibitions on possessing weapons imposed by
private property owners; requiring all property owners that
have legally restricted or prohibited the possession or
carrying of weapons on their premises to give notice of such
prohibitions or restrictions by posting specified signs;
format of signs; effect of failure to properly post signs
indicating such prohibition or restriction; prohibiting the
registration of firearms or firearm owners; exceptions;
penalty for unlawfully registering firearms or firearm owners;
compliance period for purging prohibited registries; limiting
seizures of concealable weapons; providing remedies for
unlawful seizure of concealable weapon; establishing
regulations for gun buy-back programs to protect interests of
owners of stolen firearms and evidence of certain crimes; and
repealing certain provisions of the Code of State Rules
restricting the possession or carrying of firearms.
Be it enacted by the Legislature of West Virginia:
That §8-12-5a of the Code of West Virginia, 1931, as amended, be repealed; that §7-1-3 of said code be amended and reenacted;
that §8-12-5 of said code be amended and reenacted; that §61-7-1,
§61-7-2, §61-7-6, §61-7-9, §61-7-11a and §61-7-14 of said code be
amended and reenacted; that said code be amended by adding thereto
six new sections, designated §61-7-11b, §61-7-16, §61-7-17,
§61-7-18, §61-7-19 and §61-7-20; that said code be amended by
adding thereto two new sections, designated §64-5-1a and §64-5-1b;
that said code be amended by adding thereto a new section,
designated §64-7-3a; that said code be amended by adding thereto
two new sections, designated §64-10-3a and §64-10-3b; and that said
code be amended by adding thereto a new article, designated
§64-12-1 and §64-12-2, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3. Jurisdiction, powers and duties.
The county commissions, through their clerks, shall have the
custody of all deeds and other papers presented for record in their
counties and the same shall be preserved therein, or otherwise
disposed of as now is, or may be prescribed by law.
They The
county commissions shall have jurisdiction in all matters of
probate, the appointment and qualification of personal
representatives, guardians, committees, curators and the settlement
of their accounts and in all matters relating to apprentices.
They
The county commissions shall also, under the rules as now are or
may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their
counties, including the establishment and regulation of roads,
ways, streets, avenues, drives and the like, and the naming or
renaming thereof, in cooperation with local postal authorities, the
Division of Highways and the directors of county emergency
communications centers, to assure uniform, nonduplicative
conversion of all rural routes to city-type addressing on a
permanent basis, bridges, public landings, ferries and mills, with
authority to lay and disburse the county levies.
They The county
commissions shall, in all cases of contest, judge of the election,
qualification and returns of their own members, and of all county
and district officers, subject to appeal as prescribed by law. The
tribunals as have been heretofore established by the Legislature
under and by virtue of Section thirty-four, Article VIII of the
Constitution of 1872, for police and fiscal purposes, shall, until
otherwise provided by law, remain and continue as at present
constituted in the counties in which they have been respectively
established, and shall be and act as to police and fiscal matters
in lieu of the county commission herein mentioned, until otherwise
provided by law. And until otherwise provided by law, the clerk as
is mentioned in section twenty-six of said article, as amended,
shall exercise any powers and discharge any duties heretofore
conferred on, or required of, any court or tribunal established for
judicial purposes under said section, or the clerk of the court or
tribunal, respectively, respecting the recording and preservation of deeds and other papers presented for record, matters of probate,
the appointment and qualification of personal representatives,
guardians, committees, curators and the settlement of their
accounts and in all matters relating to apprentices.
The county
commission may not limit the right of any person to purchase,
possess, transfer, own, carry, transport, sell or store any
revolver, pistol, rifle or shotgun or any ammunition or ammunition
components to be used therewith nor to so regulate the keeping of
gunpowder so as to, directly or indirectly, prohibit the ownership
of the ammunition: Provided, That no provision in this section may
be construed to limit the authority of a county to restrict the
commercial use of real estate in designated areas through planning
or zoning ordinances.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND
MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST
MUNICIPALITIES.
§8-12-5. General powers of every municipality and the governing
body thereof.
In addition to the powers and authority granted by: (i) The
Constitution of this state; (ii) other provisions of this chapter;
(iii) other general law; and (iv) any charter, and to the extent
not inconsistent or in conflict with any of the foregoing except special legislative charters, every municipality and the governing
body thereof shall have plenary power and authority therein by
ordinance or resolution, as the case may require, and by
appropriate action based thereon:
(1) To lay off, establish, construct, open, alter, curb,
recurb, pave or repave and keep in good repair, or vacate,
discontinue and close, streets, avenues, roads, alleys, ways,
sidewalks, drains and gutters, for the use of the public, and to
improve and light the same, and have them kept free from
obstructions on or over them which have not been authorized
pursuant to the succeeding provisions of this subdivision; and,
subject to such terms and conditions as the governing body shall
prescribe, to permit, without in any way limiting the power and
authority granted by the provisions of article sixteen of this
chapter, any person to construct and maintain a passageway,
building or other structure overhanging or crossing the airspace
above a public street, avenue, road, alley, way, sidewalk or
crosswalk, but before any permission for any person to construct
and maintain a passageway, building or other structure overhanging
or crossing any airspace is granted, a public hearing thereon shall
be held by the governing body after publication of a notice of the
date, time, place and purpose of the public hearing has been
published as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area for the publication shall be the municipality
: Provided, That any permit so granted shall automatically cease and
terminate in the event of abandonment and nonuse thereof for the
purposes intended for a period of ninety days, and all rights
therein or thereto shall revert to the municipality for its use and
benefit;
(2) To provide for the opening and excavation of streets,
avenues, roads, alleys, ways, sidewalks, crosswalks and public
places belonging to the municipality and regulate the conditions
under which any such opening may be made;
(3) To prevent by proper penalties the throwing, depositing or
permitting to remain on any street, avenue, road, alley, way,
sidewalk, square or other public place any glass, scrap iron,
nails, tacks, wire, other litter or any offensive matter or
anything likely to injure the feet of individuals or animals or the
tires of vehicles;
(4) To regulate the use of streets, avenues, roads, alleys,
ways, sidewalks, crosswalks and public places belonging to the
municipality, including the naming or renaming thereof, and to
consult with local postal authorities, the Division of Highways and
the directors of county emergency communications centers to assure
uniform, nonduplicative addressing on a permanent basis;
(5) To regulate the width of streets, avenues and roads, and,
subject to the provisions of article eighteen of this chapter, to order the sidewalks, footways and crosswalks to be paved, repaved,
curbed or recurbed and kept in good order, free and clean, by the
owners or occupants thereof or of the real property next adjacent
thereto;
(6) To establish, construct, alter, operate and maintain or
discontinue, bridges, tunnels and ferries and approaches thereto;
(7) To provide for the construction and maintenance of water
drains, the drainage of swamps or marshlands and drainage systems;
(8) To provide for the construction, maintenance and covering
over of watercourses;
(9) To control and administer the waterfront and waterways of
the municipality and to acquire, establish, construct, operate and
maintain and regulate flood control works, wharves and public
landings, warehouses and all adjuncts and facilities for navigation
and commerce and the utilization of the waterfront and waterways
and adjacent property;
(10) To prohibit the accumulation and require the disposal of
garbage, refuse, debris, wastes, ashes, trash and other similar
accumulations whether on private or public property:
Provided,
That, in the event the municipality annexes an area which has been
receiving solid waste collection services from a certificated solid
waste motor carrier, the municipality and the solid waste motor
carrier may negotiate an agreement for continuation of the private solid waste motor carrier services for a period of time, not to
exceed three years, during which time the certificated solid waste
motor carrier may continue to provide exclusive solid waste
collection services in the annexed territory;
(11) To construct, establish, acquire, equip, maintain and
operate incinerator plants and equipment and all other facilities
for the efficient removal and destruction of garbage, refuse,
wastes, ashes, trash and other similar matters;
(12) To regulate or prohibit the purchase or sale of articles
intended for human use or consumption which are unfit for use or
consumption, or which may be contaminated or otherwise unsanitary;
(13) To prevent injury or annoyance to the public or
individuals from anything dangerous, offensive or unwholesome;
(14) To regulate the keeping of gunpowder and other
combustibles:
Provided, That any regulation of the keeping of
gunpowder may not act, directly or indirectly, to prohibit the
otherwise lawful ownership, possession, control or storage of
gunpowder or ammunition for firearms;
(15) To make regulations guarding against danger or damage by
fire;
(16) To arrest, convict and punish any individual for carrying
about his or her person any revolver or other pistol, dirk, bowie
knife, razor, slingshot, billy, metallic or other false knuckles or any other dangerous or other deadly weapon of like kind or
character;
(17) (16) To arrest, convict and punish any person for
importing, printing, publishing, selling or distributing any
pornographic publications;
(18) (17) To arrest, convict and punish any person for keeping
a house of ill fame, or for letting to another person any house or
other building for the purpose of being used or kept as a house of
ill fame, or for knowingly permitting any house owned by him or her
or under his or her control to be kept or used as a house of ill
fame, or for loafing, boarding or loitering in a house of ill fame,
or frequenting same;
(19) (18) To prevent and suppress conduct and practices which
are immoral, disorderly, lewd, obscene and indecent;
(20) (19) To prevent the illegal sale of intoxicating liquors,
drinks, mixtures and preparations;
(21) (20) To arrest, convict and punish any individual for
driving or operating a motor vehicle while intoxicated or under the
influence of liquor, drugs or narcotics;
(22) (21) To arrest, convict and punish any person for
gambling or keeping any gaming tables, commonly called "A, B, C,"
or "E, O," table or faro bank or keno table, or table of like kind,
under any denomination, whether the gaming table be played with cards, dice or otherwise, or any person who shall be a partner or
concerned in interest, in keeping or exhibiting the table or bank,
or keeping or maintaining any gaming house or place, or betting or
gambling for money or anything of value;
(23) (22) To provide for the elimination of hazards to public
health and safety and to abate or cause to be abated anything which
in the opinion of a majority of the governing body is a public
nuisance;
(24) (23) To license, or for good cause to refuse to license
in a particular case, or in its discretion to prohibit in all
cases, the operation of pool and billiard rooms and the maintaining
for hire of pool and billiard tables notwithstanding the general
law as to state licenses for any such business and the provisions
of section four, article thirteen of this chapter; and when the
municipality, in the exercise of its discretion, refuses to grant
a license to operate a pool or billiard room, mandamus may not lie
to compel the municipality to grant the license unless it shall
clearly appear that the refusal of the municipality to grant a
license is discriminatory or arbitrary; and in the event that the
municipality determines to license any business, the municipality
has plenary power and authority and it shall be the duty of its
governing body to make and enforce reasonable ordinances regulating
the licensing and operation of the businesses;
(25) (24) To protect places of divine worship and to preserve
peace and order in and about the premises where held;
(26) (25) To regulate or prohibit the keeping of animals or
fowls and to provide for the impounding, sale or destruction of
animals or fowls kept contrary to law or found running at large;
(27) (26) To arrest, convict and punish any person for
cruelly, unnecessarily or needlessly beating, torturing,
mutilating, killing or overloading or overdriving or willfully
depriving of necessary sustenance any domestic animal;
(28) (27) To provide for the regular building of houses or
other structures, for the making of division fences by the owners
of adjacent premises and for the drainage of lots by proper drains
and ditches;
(29) (28) To provide for the protection and conservation of
shade or ornamental trees, whether on public or private property,
and for the removal of trees or limbs of trees in a dangerous
condition;
(30) (29) To prohibit with or without zoning the location of
occupied house trailers or mobile homes in certain residential
areas;
(31) (30) To regulate the location and placing of signs,
billboards, posters and similar advertising;
(32) (31) To erect, establish, construct, acquire, improve, maintain and operate a gas system, a waterworks system, an electric
system or sewer system and sewage treatment and disposal system, or
any combination of the foregoing (subject to all of the pertinent
provisions of articles nineteen and twenty of this chapter and
particularly to the limitations or qualifications on the right of
eminent domain set forth in articles nineteen and twenty
of this
chapter), within or without the corporate limits of the
municipality, except that the municipality may not erect any system
partly without the corporate limits of the municipality to serve
persons already obtaining service from an existing system of the
character proposed and where the system is by the municipality
erected, or has heretofore been so erected, partly within and
partly without the corporate limits of the municipality, the
municipality has the right to lay and collect charges for service
rendered to those served within and those served without the
corporate limits of the municipality and to prevent injury to the
system or the pollution of the water thereof and its maintenance in
a healthful condition for public use within the corporate limits of
the municipality;
(33) (32) To acquire watersheds, water and riparian rights,
plant sites, rights-of-way and any and all other property and
appurtenances necessary, appropriate, useful, convenient or
incidental to any system, waterworks or sewage treatment and disposal works, as aforesaid, subject to all of the pertinent
provisions of articles nineteen and twenty of this chapter;
(34) (33) To establish, construct, acquire, maintain and
operate and regulate markets and prescribe the time of holding the
same;
(35) (34) To regulate and provide for the weighing of articles
sold or for sale;
(36) (35) To establish, construct, acquire, maintain and
operate public buildings, municipal buildings or city halls,
Auditoriums, arenas, jails, juvenile detention centers or homes,
motor vehicle parking lots or any other public works;
(37) (36) To establish, construct, acquire, provide, equip,
maintain and operate recreational parks, playgrounds and other
recreational facilities for public use and in this connection also
to proceed in accordance with the provisions of article two,
chapter ten of this code;
(38) (37) To establish, construct, acquire, maintain and
operate a public library or museum or both for public use;
(39) (38) To provide for the appointment and financial support
of a library board in accordance with the provisions of article
one, chapter ten of this code;
(40) (39) To establish and maintain a public health unit in
accordance with the provisions of section two, article two, chapter sixteen of this code, which unit shall exercise its powers and
perform its duties subject to the supervision and control of the
West Virginia Board of Health and State Bureau for Public Health;
(41) (40) To establish, construct, acquire, maintain and
operate hospitals, sanitaria and dispensaries;
(42) (41) To acquire, by purchase, condemnation or otherwise,
land within or near the corporate limits of the municipality for
providing and maintaining proper places for the burial of the dead
and to maintain and operate the same and regulate interments
therein upon terms and conditions as to price and otherwise as may
be determined by the governing body and, in order to carry into
effect the authority, the governing body may acquire any cemetery
or cemeteries already established;
(43) (42) To exercise general police jurisdiction over any
territory without the corporate limits owned by the municipality or
over which it has a right-of-way;
(44) (43) To protect and promote the public morals, safety,
health, welfare and good order;
(45) (44) To adopt rules for the transaction of business and
the government and regulation of its governing body;
(46) (45) Except as otherwise provided, to require and take
bonds from any officers, when considered necessary, payable to the
municipality, in its corporate name, with such sureties and in a penalty as the governing body may see fit, conditioned upon the
faithful discharge of their duties;
(47) (46) To require and take from the employees and
contractors such bonds in a penalty, with such sureties and with
such conditions, as the governing body may see fit;
(48) (47) To investigate and inquire into all matters of
concern to the municipality or its inhabitants;
(49) (48) To establish, construct, require, maintain and
operate such instrumentalities, other than free public schools, for
the instruction, enlightenment, improvement, entertainment,
recreation and welfare of the municipality's inhabitants as the
governing body may consider necessary or appropriate for the public
interest;
(50) (49) To create, maintain and operate a system for the
enumeration, identification and registration, or either, of the
inhabitants of the municipality and visitors thereto, or the
classes thereof as may be considered advisable;
(51) (50) To require owners, residents or occupants of
factory-built homes situated in a factory-built rental home
community with at least ten factory-built homes, to visibly post
the specific numeric portion of the address of each factory-built
home on the immediate premises of the factory-built home of
sufficient size to be visible from the adjoining street
: Provided, That
in the event if no numeric or other specific designation of an
address exists for a factory-built home subject to the
authorization granted by this subdivision, the municipality
has the
authority to may provide a numeric or other specific designation of
an address for the factory-built home and require that it be posted
in accordance with the authority otherwise granted by this section.
(52) (51) To appropriate and expend not exceeding
twenty-five
cents $0.25 per capita per annum for advertising the municipality
and the entertainment of visitors;
(53) (52) To conduct programs to improve community relations
and public relations generally and to expend municipal revenue for
such purposes;
(54) (53) To reimburse applicants for employment by the
municipality for travel and other reasonable and necessary expenses
actually incurred by the applicants in traveling to and from the
municipality to be interviewed;
(55) (54) To provide revenue for the municipality and
appropriate the same to its expenses;
(56) (55) To create and maintain an employee benefits fund
which may not exceed one tenth of one percent of the annual payroll
budget for general employee benefits and which is set up for the
purpose of stimulating and encouraging employees to develop and
implement cost-saving ideas and programs and to expend moneys from the fund for these purposes;
(57) (56) To enter into reciprocal agreements with
governmental subdivisions or agencies of any state sharing a common
border for the protection of people and property from fire and for
emergency medical services and for the reciprocal use of equipment
and personnel for these purposes;
(58) (57) To provide penalties for the offenses and violations
of law mentioned in this section, subject to the provisions of
section one, article eleven of this chapter, and such penalties may
not exceed any penalties provided in this chapter and chapter
sixty-one of this code for like offenses and violations; and
(59) (58) To participate in a purchasing card program for
local governments authorized and administered by the State Auditor
as an alternative payment method.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
61-7-1. Legislative findings.
The Legislature finds that the overwhelming support of the
citizens of West Virginia for article three, section twenty-two of
the Constitution of this state, commonly known as the "Right to
Keep and Bear Arms Amendment", combined with the obligation of the
state to reasonably regulate the right of persons to keep and bear
arms for self-defense requires the reenactment of this article.
The Legislature finds and declares that:
(a) The right of individuals to keep and bear arms is
protected by both the Second Amendment to the United States
Constitution and Article III, §22 of the Constitution of this
state;
(b) The individual right to keep and bear arms is a
fundamental individual right that predates the Second Amendment of
the United States Constitution and Article III, §22 of the
Constitution of this state;
(c) The citizens of this state overwhelmingly support Article
III, §22 of the Constitution of this state, commonly known as the
"Right to Keep and Bear Arms Amendment";
(d) The Legislature has the power to reasonably regulate the
right of persons to keep and bear arms in the exercise of its
police powers;
(e) An individual's right to self-defense and access to the
means of self-defense are strong public policy interests of this
state;
(f) The safety and welfare of the citizens of this state are
inextricably dependent upon assurances of safety for children
attending, and the persons employed by, schools in this state and
for those persons employed with the judicial department of this
state. It is for the purpose of providing such assurances of safety, therefore, that sections eleven-a and eleven-b of this
article are enacted as a reasonable regulation of the manner in
which citizens may exercise those rights accorded to them pursuant
to Article III, §22 of the Constitution of this state;
(g) A list, record or registry of legally-owned firearms,
concealable weapons or law-abiding owners thereof is not a law
enforcement tool and can become an instrument for profiling,
harassing or abusing law-abiding citizens based on their choice to
own a firearm or concealable weapon and exercise their individual
right to keep and bear arms. Further, such a list, record or
registry has the potential to fall into the wrong hands and become
a shopping list for thieves;
(h) A list, record or registry of legally-owned firearms,
concealable weapons or law-abiding owners of firearms or
concealable weapons is not a tool for fighting terrorism, but
rather is an instrument that can be used as a means to profile
innocent citizens and to harass and abuse citizens based solely on
their choice to own firearms or concealable weapons and exercise
their individual right to keep and bear arms;
(i) Lists, records and registries of legally-owned firearms,
concealable weapons and law-abiding owners of firearms or
concealable weapons have been used in other jurisdictions both
domestically and internationally as the foundation for the eventual prohibition and confiscation of firearms or concealable weapons or
certain classes of firearms or concealable weapons, in violation of
the natural right of free people to keep and bear arms;
(j) Law-abiding owners of firearms and concealable weapons
whose names have been illegally recorded in a list, record or
registry are entitled to redress; and
(k) There is a need to provide uniform laws throughout the
state regulating the ownership, possession, purchase, other
acquisition, transport, storage, carrying, sale and other transfer
of concealable weapons, firearms and parts, components and
ammunition for firearms (including without limitation the
possession and carrying thereof in or on any public building or
other property owned, leased or controlled by any public agency),
and, except as specified in subsection (d), section seventeen,
article seven, chapter sixty-one of this code, for the Legislature,
to the exclusion of all other public agencies in this state, to
exercise exclusive occupation of and preempt the field of
regulation in these areas.
§61-7-2. Definitions.
As used in this article, unless the context otherwise
requires:
(1) "Blackjack" means a short bludgeon consisting, at the
striking end, of an encased piece of lead or some other heavy substance and, at the handle end, a strap or springy shaft which
increases the force of impact when a person or object is struck.
The term "blackjack" shall include, but not be limited to, a billy,
billy club, sand club, sandbag or slapjack.
(2) "Gravity knife" means any knife that has a blade released
from the handle by the force of gravity or the application of
centrifugal force and when so released is locked in place by means
of a button, spring, lever or other locking or catching device.
(3) "Knife" means an instrument, intended to be used or
readily adaptable to be used as a weapon, consisting of a sharp-
edged or sharp-pointed blade, usually made of steel, attached to a
handle which is capable of inflicting cutting, stabbing or tearing
wounds. The term "knife" shall include, but not be limited to, any
dagger, dirk, poniard or stiletto, with a blade over three and
one-half inches in length, any switchblade knife or gravity knife
and offensive knife or any other instrument capable of inflicting
cutting, stabbing or tearing wounds. A pocket knife with a blade
three and one-half inches or less in length, a hunting or fishing
knife carried for hunting, fishing, sports or other recreational
uses, or a knife designed for use as a tool or household implement
is not included within the term "knife" as defined
herein in this
subdivision and is not considered a deadly weapon or concealable
weapon unless such knife is knowingly used or intended to be used to produce serious bodily injury or death.
(4) "Switchblade knife" means any knife having a spring-
operated blade which opens automatically upon pressure being
applied to a button, catch or other releasing device in its handle.
(5) "Nunchuka" means a flailing instrument consisting of two
or more rigid parts, connected by a chain, cable, rope or other
nonrigid, flexible or springy material, constructed in such a
manner as to allow the rigid parts to swing freely so that one
rigid part may be used as a handle and the other rigid part may be
used as the striking end.
(6) "Metallic or false knuckles" means a set of finger rings
attached to a transverse piece to be worn over the front of the
hand for use as a weapon and constructed in such a manner that,
when striking another person with the fist or closed hand,
considerable physical damage may be inflicted upon the person
struck,
The terms "metallic or false knuckles" shall include any
such instrument without
reference regard to the metal or other
substance or substances from which the metallic or false knuckles
are made.
(7) "Pistol" means a short firearm having a chamber which is
integral with the barrel, designed to be aimed and fired by the use
of a single hand.
(8) "Revolver" means a short firearm having a cylinder of several chambers that are brought successively into line with the
barrel to be discharged, designed to be aimed and fired by the use
of a single hand.
(9) "Deadly weapon" means an instrument which is designed to
be used to produce serious bodily injury or death or is readily
adaptable to such use. The term "deadly weapon"
shall include
includes, but
is not
be limited to,
the instruments defined in
subdivisions (1) through (8), inclusive, of this section or other
deadly weapons of like kind or character which may be easily
concealed on or about the person firearms and concealable weapons.
For the purposes of section one-a, article five, chapter eighteen-a
of this code and section eleven-a, article seven of this chapter,
in addition to the definition of "knife" set forth in subdivision
(3) of this section, the term "deadly weapon" also includes any
instrument included within the definition of "knife" with a blade
of three and one-half inches or less in length. Additionally, for
the purposes of section one-a, article five, chapter eighteen-a of
this code,
section nineteen, article six of this chapter and
section eleven-a of this article and section eleven-a article seven
of this chapter, the term "deadly weapon" includes explosive,
chemical, biological and radiological materials.
Notwithstanding
any other provision of this section For the purposes of section
one-a, article five, chapter eighteen-a of this code and section eleven-a of this article, the term "deadly weapon" does not include
any item or material owned by the school or county board, intended
for curricular use, and used by the student at the time of the
alleged offense solely for curricular purposes.
(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.
(11) "Firearm" means any weapon
(including a starter pistol)
which will
or is designed to expel a projectile by action of an
explosion.
(12) "Controlled substance" has the same meaning as
is
ascribed to that term in subsection (d), section one hundred one,
article one, chapter sixty-a of this code.
(13) "Drug" has the same meaning as
is ascribed to that term
in subsection (1), section one hundred one, article one, chapter
sixty-a of this code.
(14) "Air gun" means any device other than a firearm which
will or is designed to expel a projectile by means of a compressed
gas that generates a propelling force.
(15) "Airport operator" has the same meaning as in subsection
two, twenty-nine-b, chapter eight of this code.
(16) "Ammunition" means ammunition or cartridge cases,
primers, bullets, or propellant powder designed for use in any
firearm.
(17) "Ballistic knife" means any knife that has a blade which
is forcefully expelled from the handle by means of a spring-loaded
device or a compressed gas that generates a propelling force.
(18) "Club" means an instrument that is specially designed,
made, or adapted for the purpose of inflicting serious bodily
injury or death by striking a person with the instrument, and
includes, but is not limited to, a blackjack, mace, metallic or
false knuckles, nightstick, nunchuka or tomahawk.
(19) "Concealable weapon" means any club, offensive knife,
handgun or other deadly weapons of like kind or character that may
be easily concealed on the person. For the purposes of sections
seventeen through nineteen of this article, the term "concealable
weapon" also includes any air gun, firearm or knife not otherwise
included within this definition.
(20) "Conviction" or "convicted," for the purposes of
determining whether a person is disqualified from licensure to
carry concealed weapons or prohibited from possessing firearms,
shall be determined in accordance with the law of the jurisdiction
in which the proceedings were held, but does not include any
conviction which has been expunged, set aside, vacated or for which a person has been pardoned, unless the expungement or pardon
expressly provides that the person may not be licensed to carry
concealed weapons or possess firearms.
(21) "Court facility" means the courtroom of the Supreme Court
of Appeals, a circuit court, a family court or a magistrate court;
the chambers of any justice, judge or magistrate; those portions of
a courthouse designated as witness rooms, jury deliberation rooms,
attorney conference rooms, prisoner holding cells or law library;
offices of the court clerks or other employees of the judicial
department of this state; but does not include any common area of
ingress or egress to a courthouse that provides access to the
noncourt facility areas of a courthouse.
(22) "Courthouse" means any state or local government office
facility that houses a court facility.
(23) "Crime punishable by imprisonment for a term exceeding
one year" does not include:
(A) Any federal or state offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade or other
similar offenses relating to the regulation of business practices;
or
(B) Any state offense classified by the laws of the state as
a misdemeanor and, punishable by a term of imprisonment of two
years or less.
(24) "Family or household member" has the same meaning as in
section two hundred four, article twenty-seven, chapter forty-
eight.
(25) "Handgun" means any firearm which has a short stock and
is designed to be held and fired by the use of a single hand and
includes any pistol or revolver.
(26) "Institution of higher education" means any higher
education institution as that term is defined in section two,
article one, chapter eighteen-b of this code.
(27) "Law-enforcement officer" means any law-enforcement
officer or law-enforcement official, as those terms are defined in
section one, article twenty-nine, chapter thirty of this code.
(28) "Loaded," with respect to a firearm, means that the
firearm:
(A) Has live, unexpended ammunition in the firing position or
a position whereby the manual operation of any mechanism once would
cause live, unexpended ammunition to be fired;
(B) Has live, unexpended ammunition in a magazine that is
locked in place in the firearm;
(C) Has live, unexpended ammunition anywhere in the cylinder,
if the firearm is a revolver; or
(D) If the firearm employs a percussion cap, flintlock or
other obsolete ignition system, the firearm is capped or primed and has a powder charge and ball or shot in the barrel or cylinders.
(29) "Machine gun" means any machine gun as that term is
defined in 26 U.S.C. §5845(b) as it exists as of February 11, 2009.
(30) "Mental health facility" has the same meaning as in
section nine, article one, chapter twenty-seven of this code.
(31) "Motor vehicle" has the same meaning as in section one,
article one, chapter seventeen-a of this code.
(32) "Offensive knife" means a:
(A) Knife with a blade over three and one-half inches;
(B) Hand instrument designed to cut or stab another by being
thrown, including, but not limited to, any throwing star or
oriental dart;
(C) Ballistic knife;
(D) Dagger, including, but not limited to, a dirk, stiletto,
and poniard;
(E) Bowie knife;
(F) Gravity knife;
(G) Switchblade knife;
(H) Sword; or
(I) Spear, but does not include any pocket knife with a blade
three and one-half inches or less in length, a hunting or fishing
knife carried for hunting, fishing, sports or other recreational
uses, or a knife designed for use as a tool or household implement.
(33) "Private property owner" means any property owner other
than:
(A) A public agency; or
(B) A lessee or other person charged with the care, custody or
control of any property owned, leased or controlled by a public
agency, except where the person is a lessee of a residential
premises or is exercising temporary control over other premises the
person exclusively occupies as a temporary place of lodging.
(34) "Property owner" means an owner, lessee or other person
charged with the care, custody and control of real property. For
the purposes of this definition, "person" means an individual or
any entity which may acquire title to real property.
(35) "Public agency" means:
(A) This state or any political subdivision of this state;
(B) Any department, agency, authority, board, commission,
council, state institution of higher education, airport operator,
government corporation or other entity or instrumentality of this
state or any political subdivision of this state;
(C) Any public agency within the meaning of section two,
article nine-a, chapter six of this code;
(D) Any public body within the meaning of section two, article
one, chapter twenty-nine-b;
(E) Any other entity or instrumentality:
(i) That receives a majority of its annual operating revenue
from funds appropriated by the Legislature, the governing body of
any political subdivision of this state, any entity described in
paragraphs (B), (C) or (D) of this subdivision or a combination of
these sources;
(ii) Whose chief executive or administrative officer or a
majority of whose board of directors or substantially similar
governing body is elected, appointed or subject to the confirmation
of any entity otherwise described in this subdivision; or
(F) Any officer, director, employee or other agent of any
entity described in paragraphs (A) through (E) of this subdivision.
(36) "Public building" means any building that is owned by a
public agency or those portions of any building that is not owned
by a public agency that is leased or controlled by a public agency.
(37) "Readily accessible for immediate use" and "about the
person" mean that a firearm, ammunition or other deadly weapon is
carried on the person or within such close proximity and in such a
manner that it can be retrieved and used as easily and quickly as
if carried on the person.
(38) "School bus" has the same meaning as in section one,
article one, chapter seventeen-a of this code.
(39) "School safety zone" means:
(A) Any public or private primary or secondary school building and its improved grounds, whether leased or owned by the school,
including any vocational education building, structure, facility or
grounds thereof where secondary vocational education programs are
conducted;
(B) The interior of a school bus when that school bus is
actually in use by any school described in paragraph (A) of this
subdivision for the purpose of transporting one or more primary or
secondary school students to or from school or school-related
activities, including curricular, cocurricular, noncurricular,
extracurricular and supplementary activities; or
(C) That portion of any property not described in paragraph
(A) of this subdivision that is open to the public and then
exclusively used for school-sponsored functions or extracurricular
activities, while those functions or activities are occurring.
(40) "State institution of higher education" has the same
meaning as in section two, article one, chapter eighteen-b.
(41) "State or local government office facility" means any
public building in which employees of a public agency regularly are
present for the purpose of performing their official duties as
employees of the public agency, but excludes: (i) Any public
building that is used primarily as a shelter, restroom or rest
facility; (ii) any public building or portion of a public building
that is used as a parking facility for motor vehicles; or (iii) any portion of any other public building accessible only from the
exterior of the public building, separate from those portions of
the public building in which employees of a public agency regularly
are present for the purpose of performing their official duties as
employees of the public agency, that is used primarily as a
shelter, restroom or rest facility.
(42) "Unloaded," with respect to a firearm, means the state of
a firearm not being loaded, as that term is defined in subdivision
(28) of this section.
(43) "West Virginia law-enforcement agency" has the same
meaning as in section one, article twenty-nine, chapter thirty.
§61-7-6. Exceptions to requirement for license to carry concealed
weapons.
The licensure provisions set forth in this article do not
apply to:
(1) Any person carrying a deadly weapon upon his or her own
premises; nor shall anything herein prevent a person from carrying
any firearm, unloaded, from the place of purchase to his or her
home, residence or place of business or to a place of repair and
back to his or her home, residence or place of business, nor shall
anything herein prohibit a person from possessing a firearm while
hunting in a lawful manner or while traveling from his or her home,
residence or place of business to a hunting site and returning to his or her home, residence or place of business;
(2) Any person who is a member of a properly organized target-
shooting club authorized by law to obtain firearms by purchase or
requisition from this state or from the United States for the
purpose of target practice from carrying any pistol, as defined in
this article, unloaded, from his or her home, residence or place of
business to a place of target practice and from any place of target
practice back to his or her home, residence or place of business,
for using any such weapon at a place of target practice in training
and improving his or her skill in the use of the weapons;
(3) Any law-enforcement officer;
or law-enforcement official
as defined in section one, article twenty-nine, chapter thirty of
this code
(4) Any employee of the West Virginia Division of Corrections
duly appointed pursuant to the provisions of
section five, article
five, chapter twenty-eight of this code sections eleven-b and
eleven-c, article one, chapter twenty-five while the employee is on
duty;
(5) Any member of the Armed Forces of the United States or the
militia of this state while the member is on duty;
(6) Any circuit judge, including any retired circuit judge
designated senior status by the Supreme Court of Appeals of West
Virginia, prosecuting attorney, assistant prosecuting attorney or a duly appointed investigator employed by a prosecuting attorney;
(7) Any resident of another state who holds a valid license
or
permit to carry a concealed weapon by a state or a political
subdivision which has entered into a reciprocity agreement with
this state, subject to the provisions and limitations set forth in
section six-a of this article;
(8) Any federal law-enforcement officer or federal police
officer authorized to carry a weapon in the performance of the
officer's duty; and
(9) Any Hatfield-McCoy regional recreation authority ranger
while the ranger is on duty.
§61-7-9. Possession of machine guns; penalties.
(a) It shall be unlawful for any No person
to may carry,
transport or
have in his possession, possess any machine gun,
submachine gun, or any other fully automatic weapon unless
he or
she the person has fully complied with
applicable federal statutes
the National Firearms Act, 26 U.S.C. Chapter 53, as it exists as of
February 11, 2009, and all applicable
federal rules
and regulations
of the secretary of the treasury of the United States relating to
such firearms promulgated pursuant to the National Firearms Act, as
they exist as of February 11, 2009.
(b) Any person who violates
the provision subsection (a) of
this section
shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more
than $5,000,
or shall be confined in
the county jail for not less
than ninety days
or nor more than one year, or both.
§61-7-11a. Possessing deadly weapons on school property;
exceptions; penalty; reports by school principals;
revocation of driver's license.
(a) The Legislature hereby finds that the safety and welfare
of the citizens of this state are inextricably dependent upon
assurances of safety for children attending, and the persons
employed by, schools in this state and for those persons employed
with the judicial department of this state. It is for the purpose
of providing such assurances of safety, therefore, that subsections
(b), (g) and (h) of this section are enacted as a reasonable
regulation of the manner in which citizens may exercise those
rights accorded to them pursuant to section twenty-two, article
three of the Constitution of the State of West Virginia.
(b) (1) It shall be unlawful for any (a) Except as otherwise
provided by subsection (b) of this section, no person
to may
possess any
firearm or any other deadly weapon
on within any school
bus, as defined in section one, article one, chapter seventeen-a of
this code, or in or on any public or private primary or secondary
education building, structure, facility or grounds thereof,
including any vocational education building, structure, facility or grounds thereof where secondary vocational education programs are
conducted safety zone or at any school-sponsored function.
(2) (b) This subsection shall Subsection (a) of this section
does not apply to:
(A) (1) A law-enforcement officer acting in his or her
official capacity;
(B) (2) A person specifically authorized by the board of
Education of the county or principal of the school where the
property is located to conduct programs with valid educational
purposes;
(C) (3) A person who
as otherwise permitted by the provisions
of this article, possesses
an unloaded firearm or any deadly weapon
other than a loaded firearm in
or on a motor vehicle
other than a
school bus, or leaves
an unloaded firearm or any deadly weapon
other than a loaded firearm in a locked motor vehicle
other than a
school bus;
(D) (4) Programs or raffles conducted with the approval of the
county board of education or school which include the display of
unloaded deadly weapons other than loaded firearms;
or
(5) Any person who possesses a deadly weapon as a part of any
program sponsored or facilitated by either the school or any
organization authorized by the school to conduct its programs
either on or off the school premises;
(6) A person possessing a knife or blade which he or she uses
customarily in his or her occupation, profession or trade;
(E) (7) The official mascot of West Virginia University,
commonly known as "The Mountaineer", acting in his or her official
capacity;
(8) A person transporting a deadly weapon other than a loaded
firearm, while traversing school premises for the purpose of
gaining access to public or private lands open to hunting; or
(9) Any person authorized by the county school superintendent
in the case of the county schools, or the chief administrative
officer of a private school, in writing, to carry such weapon.
(c) Each principal or other chief administrator of a public or
private school shall display at all public entrances to school
buildings, sports arenas, gymnasiums, stadiums and cafeterias; at
the corners of school property that make a turn of thirty degrees
or more and are not enclosed by fences, walls or other complete
barriers with gates or controlled entrances; at the gate or
controlled entrances of enclosed properties; and at the entrance of
any access road for all open areas owned, operated, leased or
controlled by the school, signs conforming to the specifications of
section sixteen of this article, which shall include the following
text:
"UNLAWFUL POSSESSION OF A WEAPON ON SCHOOL PROPERTY IN WEST VIRGINIA IS A FELONY.
"POSTED PURSUANT TO WV CODE SECTION ELEVEN-A, ARTICLE SEVEN,
CHAPTER SIXTY ONE OF THIS CODE."
Failure to post the required signs shall bar any prosecution
under this subsection of any person who is not a minor and not a
student of a primary or secondary school. Failure to post the
required signs shall not prohibit any prosecution or other
disciplinary action against any minor or student.
(3) (d) Any person
violating who violates subsection (a) of
this
subsection shall be section is guilty of a felony and, upon
conviction thereof, shall be imprisoned
in the penitentiary of this
state for a definite term
of years of not less than two years nor
more than ten years,
or fined not more than $5,000, or both.
(c) (e) It shall be the duty of The principal of each school
subject to the authority of the State Board of Education
to shall
report any violation of subsection
(b) (a) of this section
discovered by such principal to the State Superintendent of Schools
within seventy-two hours after
such the violation occurs. The State
Board of Education shall keep and maintain
such reports and may
prescribe rules establishing policy and procedures for the making
and delivery of
the same those reports as required by this
subsection.
In addition, it shall be the duty of The principal of
each school subject to the authority of the State Board of Education
to shall also report any violation of subsection
(b) (a) of this
section discovered by
such the principal to the appropriate local
office of the
West Virginia division of public safety State Police
within seventy-two hours after
such the violation occurs.
(d) (f) In addition to the methods of disposition provided by
article five, chapter forty-nine of this code, any court which
adjudicates a
person minor who is fourteen years of age or older as
delinquent for a violation of subsection
(b) (a) of this section
may, in its discretion, order the Division of Motor Vehicles to
suspend any driver's license or instruction permit issued to
such
person the delinquent minor for
such an appropriate period of time,
as the court may deem appropriate, such suspension, however, not to
extend beyond such person's nineteenth birthday,
as specified by the
court's order; or, where
such the person has not been issued a
driver's license or instruction permit by this state, order the
Division of Motor Vehicles to deny
such the person's application for
the
same driver's license or instruction permit for
such an
appropriate period of time,
as the court may deem appropriate, such
denial, however, not to extend beyond
such the person's nineteenth
birthday,
as specified by the court's order. Any suspension ordered
by the court pursuant to this subsection shall be effective upon the
date of entry of
such the order. Where the court orders the
suspension of a driver's license or instruction permit pursuant to this subsection, the court shall confiscate any driver's license or
instruction permit in the adjudicated person's possession and
forward the
same confiscated driver's license or instruction permit
to the Division of Motor Vehicles.
(e) (g) (1) If a person eighteen years of age or older is
convicted of violating subsection
(b) (a) of this section and
if
such person does not act to appeal such conviction within the time
periods described in subdivision (2) of this subsection,
such the
person's license or privilege to operate a motor vehicle in this
state shall be revoked in accordance with the provisions of this
section subsection.
(2) The clerk of the
circuit court in which
the a person is
convicted as described in subdivision (1) of this subsection shall
forward to the Commissioner
of Motor Vehicles a
transcript certified
abstract of the judgment of conviction
immediately upon the judgment
becoming final. If the conviction is the judgment of a magistrate
court, the magistrate court clerk shall forward such transcript when
the person convicted has not requested an appeal within twenty days
of the sentencing for such conviction. If the conviction is the
judgment of a circuit court, the circuit clerk shall forward such
transcript when the person convicted has not filed a notice of
intent to file a petition for appeal or writ of error within thirty
days after the judgment was entered.
(3) If, upon examination of the
transcript certified abstract
of the judgment of conviction
transmitted to the Commissioner of
Motor Vehicles pursuant to subdivision (2) of this subsection, the
Commissioner
shall determine of Motor Vehicles determines that the
person was convicted as described in subdivision (1) of this
subsection, the commissioner shall make and enter an order revoking
such the person's license or privilege to operate a motor vehicle
in this state for
the greater of: (i) A period of one year; or
in
the event (ii) if the person is a student enrolled in a secondary
school,
for a period of one year or until the person's twentieth
birthday.
whichever is the greater period The order shall contain
the reasons for the revocation and the revocation period. The order
of
suspension revocation shall advise the person that because of the
receipt of the court's transcript, a presumption exists that the
person named in the order of
suspension revocation is the same
person named in the transcript. The commissioner may grant an
administrative hearing which substantially complies with the
requirements of the provisions of section two, article five-a,
chapter seventeen-c of this code upon a preliminary showing that a
possibility exists that the person named in the notice of conviction
is not the same person whose license is being
suspended revoked.
Such request for A person seeking a hearing
pursuant to this
subdivision shall
be made request the hearing within ten days after receipt of a copy of the order of
suspension revocation. The sole
purpose of this hearing shall be for the person requesting the
hearing to present evidence that
he or she the person is not the
person named in the notice.
In the event If the commissioner grants
an administrative hearing, the commissioner shall stay the license
suspension revocation pending the commissioner's order resulting
from the hearing.
(4) For the purposes of this subsection, a person is convicted
when such person enters a plea of guilty or is found guilty by a
court or jury.
(f) (1) (h) It shall be unlawful for Any parent(s), guardian(s)
or custodian(s) of
a person less than eighteen years of age an
unemancipated minor who knows that
said person the unemancipated
minor is in violation of subsection
(b) (a) of this section, or who
has reasonable cause to believe that
said person's violation of said
the unemancipated minor will imminently violate subsection
is
imminent (a) of this section, to fail to shall immediately report
such knowledge or belief to the appropriate school or
law-enforcement officials.
(2) (i) Any person
violating this who violates subsection
shall
be (h) of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000,
or shall
be confined in jail
for not more than one year, or both.
(g) (1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon on any premises which houses a
court of law or in the offices of a family law master.
(2) This subsection shall not apply to:
(A) A law-enforcement officer acting in his or her official
capacity; and
(B) A person exempted from the provisions of this subsection
by order of record entered by a court with jurisdiction over such
premises or offices.
(3) Any person violating this subsection shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than one thousand dollars, or shall be confined in jail not more
than one year, or both.
(h) (1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon on any premises which houses a
court of law or in the offices of a family law master with the
intent to commit a crime.
(2) Any person violating this subsection shall be guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the
penitentiary of this state for a definite term of years of not less
than two years nor more than ten years, or fined not more than five
thousand dollars, or both.
(i) Nothing in this section may be construed to be in conflict with the provisions of federal law.
§61-7-11b. Possession of deadly weapons in courthouse prohibited;
exceptions; penalty; posting of signs.
(a) Except as otherwise provided by subsection (b) of this
section, no person may:
(1) Possess any deadly weapon within a courthouse; or
(2) Convey or attempt to convey any deadly weapon into a
courthouse.
(b) Subsection (a) of this section does not apply to:
(1) A law-enforcement officer acting in his or her official
capacity; or
(2) A person exempted from the provisions of subsection (a) of
this section by order of record entered by a court with jurisdiction
over the applicable courthouse. For the purposes of section
seventeen of this article, this subdivision is a specific statutory
authorization of restrictions or prohibitions on the possession and
carrying of concealable weapons, firearms and parts, components and
ammunition for firearms.
(c) The authority in control of each courthouse shall cause to
be displayed at all public entrances to the courthouse, signs
conforming to the specifications of section sixteen of this article,
which shall contain the following text:
"POSSESSING A DEADLY WEAPON WITHIN ANY COURTHOUSE OR CONVEYING OR ATTEMPTING TO CONVEY A DEADLY WEAPON INTO A COURTHOUSE IN WEST
VIRGINIA IS PROHIBITED BY LAW AND PUNISHABLE AS A MISDEMEANOR.
POSSESSING A DEADLY WEAPON WITHIN ANY COURTHOUSE OR CONVEYING OR
ATTEMPTING TO CONVEY A DEADLY WEAPON INTO A COURTHOUSE, WITH THE
INTENT TO COMMIT A CRIME, IS PUNISHABLE AS A FELONY. A LICENSE TO
CARRY A CONCEALED WEAPON IS NOT AN EXCEPTION TO EITHER OF THESE
PROVISIONS.
"POSTED PURSUANT TO W.Va. CODE SECTION ELEVEN-B, ARTICLE SEVEN,
CHAPTER SIXTY OF THIS CODE."
(d) Except as otherwise provided by subsection (e) of this
section, any person who violates subsection (a) of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be fined
not more than $1,000, confined in jail for not more than one year,
or both. No person may be convicted of an offense under this
subsection if the notice required by subsection (c) of this section
was not posted at each entrance to the courthouse in the form
required by section sixteen of this article and subsection (c) of
this section.
(e) Any person who violates subsection (a) of this section with
the intent to cause a deadly weapon to be used in the commission of
any crime within a courthouse is guilty of a felony and, upon
conviction thereof, shall be imprisoned for a definite term of not
less than two years nor more than ten years, fined not more than $10,000, or both.
§61-7-14. Right of private property owners to limit possession of
deadly weapons on premises.
(a) Notwithstanding the provisions of this article, any owner,
lessee or other person charged with the care, custody and control
of real Except as otherwise provided in this section, a private
property
owner may
restrict or prohibit the carrying, openly or
concealed, of any
firearm or deadly weapon on
private property under
his or her the domain
Provided, That for purposes of this section
"person" means an individual or any entity which may acquire title
to real property of the private property owner in accordance with
the provisions of this section and section sixteen, article seven,
chapter sixty-one, notwithstanding any license or other
authorization any person subject to the restriction or prohibition
has to carry the weapon.
(b) A private property owner who establishes any restriction
or prohibition on the carrying a deadly weapon pursuant to
subsection (a) of this section shall give notice of the prohibition
or restriction in the form required by section sixteen, article
seven, chapter sixty-one, unless the restriction or prohibition
pertains to the private property owner's private residence or
temporary place of abode. No property owner, employer or other
person may subject any person who violates any prohibition or restriction, other than a restriction or prohibition imposed by the
private property owner with regard to the private property owner's
private residence or temporary place of abode, on carrying a deadly
weapon unless the private property owner gave notice of the
prohibition or restriction in the specific form required by this
subsection or the person who violated the restriction or prohibition
carried the weapon in violation of federal law or a provision of
this article other than this section. The signage requirements of
this subsection are mandatory, technical requirements that no person
may waive under any circumstance. Any contractual provision waiving
the right to notice in the form required by this subsection is
unlawful and unenforceable.
(c) Any private property owner who establishes a restriction
or prohibition on the carrying of a deadly weapon pursuant to
subsection (a) of this section and, unless the restriction or
prohibition pertains to the private property owner's private
residence or temporary place of abode, gives notice of the
restriction or prohibition in accordance with subsection (b) of this
section and section sixteen, article seven, chapter sixty-one, may,
upon discovering that a person is possessing or carrying a deadly
weapon on the private property owner's premises in violation of the
restriction or prohibition established and, unless the restriction
or prohibition pertains to the private property owner's private residence or temporary place of abode, posted by the private
property owner pursuant to this section, personally demand either
that the person leave the premises or demand that the person leave
the premises or temporarily relinquish custody of the deadly weapon
while the person remains on the premises.
(d) A person who possesses or carries a deadly weapon on a
private property owner's premises in violation of a restriction or
prohibition established and, unless the restriction or prohibition
pertains to the private property owner's private residence or
temporary place of abode, posted by the private property owner
pursuant to this section and section sixteen, article seven, chapter
sixty-one, and complies with the personal demand of the private
property owner under subsection (c) of this section upon being
confronted about the violation, is immune from criminal and civil
liability for the violation and may not be subjected to any other
form of adverse action by the private property owner.
(e) Any person
carrying or possessing who possesses or carries
a
firearm or other deadly weapon on the
property premises of
another
who refuses to temporarily relinquish possession of such firearm or
other deadly weapon, upon being requested to do so, or to leave such
premises, while in possession of such firearm or other deadly
weapon, shall be a private property owner in violation of a
restriction or prohibition established and, unless the restriction or prohibition pertains to the private property owner's private
residence or temporary place of abode, posted by the private
property owner pursuant to this section and section sixteen, article
seven, chapter sixty-one, and defies a personal demand of the
private property owner under subsection (c) of this section upon
being confronted about the violation, unless the violation is
committed in a motor vehicle parking lot or parking facility open
to the general public, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000,
or confined
in
the county jail
for not more than six months, or both.
Provided,
That the provisions of Any person who possesses or carries a deadly
weapon in a motor vehicle parking lot or parking facility, in
violation of a restriction or prohibition established and posted by
the private property owner pursuant to this section and section
sixteen, article seven, chapter sixty-one, and defies a demand of
the private property owner under subsection (c) of this section upon
being confronted about the violation, is immune from criminal
liability under this section and instead is subject only to a civil
action for trespass based on the violation.
(f) Any prohibition or restriction on possessing or carrying
any weapon under this section does not apply to:
those persons set
forth in subsections (3) through (6) of section six of this code
while such persons are acting in an official capacity: Provided, however, That under no circumstances may any person possess or carry
or cause the possession or carrying of any firearm or other deadly
weapon on the premises of any primary or secondary educational
facility in this state unless such person is a law-enforcement
officer or he or she has the express written permission of the
county school superintendent
(1) Any officer, employee or agent of the United States, this
state or any political subdivision of this state, when that person
is acting in an official capacity and is lawfully present within or
upon the premises; or
(2) Any person serving any summons, subpoena or other legal
process for any proceeding before any court or administrative agency
of this state, the United States or another state, while that person
is actually engaged in the service of process, if that person is
otherwise lawfully present within or upon the premises.
§61-7-16. Regulation of signs prohibiting weapons; failure to post
constitutes defense.
(a) All signs indicating a prohibition or restriction on
possessing or carrying handguns or other deadly weapons must be in
the form prescribed by this section.
(b) A sign regulated by this section is not valid or
enforceable unless the sign:
(1) Expresses the prohibition in both written language interdict and universal sign language;
(2) Is posted at each entrance into a building where a person
is prohibited or restricted from carrying a designated weapon,
including each separate entry door at any entrance equipped with
more than one door, and must be:
(A) Clearly visible from outside the building from a distance
of at least thirty feet;
(B) Not less than eight inches wide by twelve inches tall in
size with an opaque white background;
(C) Contain in black one-inch tall or larger uppercase type at
the bottom of the sign and centered between the lateral edges of the
sign, words indicating the nature of the prohibition and text not
less than one and one-half-spaced, fourteen-point type detailing the
prohibition or restriction and any exemptions applicable to the
prohibition or restriction;
(D) Contain a black silhouette of a handgun inside a red circle
at least seven inches in diameter with a red diagonal line that runs
from the lower left to the upper right at a forty-five degree angle
from the horizontal;
(E) A diameter of a circle; and
(F) Placed not less than forty inches and not more than sixty
inches from the bottom of the building's entrance door; and
(3) If the premises where designated weapons are prohibited does not have doors, then the signs contained in subdivision (1) of
this subsection must be:
(A) Not less than thirty inches wide by forty-eight inches tall
in size;
(B) Contain in black three-inch tall or larger uppercase type
at the bottom of the sign and centered between the lateral edges of
the sign, words indicating the nature of the prohibition or
restriction and text not less than one and one-half-spaced,
eighteen-point type detailing the prohibition or restriction and any
exemptions applicable to the prohibition or restriction;
(C) Contain a black silhouette of a handgun inside a red circle
at least thirty inches in diameter with a red diagonal line that is
at least two inches wide and runs from the lower left to the upper
right at a forty-five degree angle from the horizontal and must be
a diameter of a circle whose circumference is at least two inches
wide;
(D) Placed not less than forty inches and not more than ninety-
six inches above the ground; and
(E) Posted in sufficient quantities to be clearly visible from
any point of entry onto the premises and readable from a distance
of at least thirty feet.
(c) Any sign regulated by this section must expressly declare
whether persons licensed or otherwise authorized by law to carry concealed handguns are exempt from the restriction or prohibition.
Failure to state that a person licensed or otherwise authorized by
law to carry concealed handguns constitutes an exception from the
prohibition or restriction for persons licensed or otherwise
authorized by law to carry concealed handguns.
(d) The requirements of this section are mandatory, technical
requirements with which any entity subject to this section must
strictly comply.
(e) Except as otherwise provided by a more specific provision
of this code, it is a defense to any criminal offense under this
code prohibiting or restricting the possession or carrying of deadly
weapons in specified locations, a defense to any civil action for
trespassing and a bar to termination from public or private
employment or any other adverse action taken against a person by a
property owner resulting from an alleged violation of a restriction
or prohibition on carrying deadly weapons, that the person was
licensed or otherwise authorized by law to carry concealed handguns
and that the signage required to be posted under this section was
not properly posted.
§61-7-17. Uniform law; preemption; exceptions; construction.
(a) This article is uniformly applicable throughout this state
and in all its political subdivisions.
(b) Except as otherwise provided in this section and notwithstanding any provision of this code, the Code of State Rules,
the common law of this state or other applicable law of this state
to the contrary:
(1) The Legislature fully occupies and preempts the entire
field of regulation of concealable weapons, firearms and parts,
components and ammunition for any firearm within this state, to the
exclusion of all other public agencies within this state;
(2) Except as specifically provided otherwise by the United
States Constitution, the Constitution of this state, federal law or
a specific provision of this code, any person, without further
license, permission, restriction, delay or process, may own,
possess, carry, purchase, sell, transfer, transport, store and keep
any concealable weapon, firearm and parts, components and ammunition
for any firearm; and
(3) Any ordinance, resolution, motion, rule, policy, condition
of employment or contracting, public employee or contractor code of
conduct, state institution of higher education student code of
conduct, administrative action or any other action of any public
agency, other than those expressly exempted by subsection (d) of
this section, pertaining, either directly or indirectly, to
concealable weapons, firearms or parts, components or ammunition for
any firearm, or otherwise inconsistent with this subsection,
regardless of whether the same is adopted before, on or after the effective date of this section, is void.
(c) In this section, the possession, transporting or carrying
of concealable weapons, firearms and parts, components and
ammunition for any firearm include, but are not limited to, the
possession, transporting or carrying, openly or concealed, on or
about the person, of a concealable weapon, a firearm or parts,
components or ammunition for any firearm.
(d) Subsection (b) of this section does not apply to:
(1) A county or municipal planning or zoning ordinance that
regulates or prohibits the commercial sale of concealable weapons,
firearms and parts, components and ammunition for any firearm, in
areas zoned for residential or agricultural uses;
(2) A county or municipal planning or zoning ordinance that
specifies the hours of operation or the geographic areas where the
commercial sale of concealable weapons, firearms and parts,
components and ammunition for any firearm may occur, if the
ordinance:
(A) Is consistent with planning or zoning ordinances for other
retail establishments in the same geographic area;
(B) Does not result in a de facto prohibition of the commercial
sale or other transfer of concealable weapons, firearms or parts,
components and ammunition for any firearm, in areas zoned for
commercial, retail or industrial uses; and
(C) Does not prohibit or restrict the commercial sale or other
transfer of concealable weapons, firearms or parts, components and
ammunition for any firearm, in areas zoned for commercial, retail
or industrial uses, based on the day of the week or time of the day
of the sale or other transaction, at any time between the hours of
eight o'clock antemeridian and ten o'clock postmeridian on any day;
(3) Rules established by the Director of the Division of
Natural Resources pursuant to chapter twenty of this code regulating
hunting to the extent those rules do not contain more restrictive
provisions regulating the possession, carrying or transportation of
firearms than provided by the Legislature in article two, chapter
twenty of this code;
(4) The otherwise lawful disarming of any person lawfully
detained by or in the lawful custody of any law-enforcement,
corrections or other criminal justice agency or mental institution;
(5) Firearm safety rules applicable to any shooting range
owned, leased or controlled by, or to the conduct of participants
in any firearm safety or training class or hunter safety class
conducted or supervised by or conducted on property owned, leased
or controlled by, the public agency that established and enforces
those rules;
(6) Any rules or administrative actions of any correctional
facility, jail, detention center, juvenile facility, juvenile detention center or mental health facility, other than rules or
administrative actions that prohibit the possession, carrying or
storage of concealable weapons, firearms and parts, components and
ammunition for firearms in motor vehicles operated or parked in any
publicly-accessible parking lot to which inmates, patients or other
persons in custody do not have access;
(7) Any resolution, motion, rule or policy adopted by the State
Board of Education, a county board of education, a primary or
secondary school under the jurisdiction of a county board of
education or a state institution of higher education relating to:
(A) Students receiving military training in the Reserved
Officers' Training Corps or other military training program
administered by the educational institution;
(B) Athletic events involving firearms or concealable weapons;
or
(C) Authorizing a resident of a dormitory located at a state
institution of higher education to request in writing only a
roommate who will not possess deadly weapons within the dormitory
room, providing for the exclusion of deadly weapons from any
dormitory room whose residents make the election described in this
paragraph in writing, reserving to the residents of any such room
the right to mutually agree in writing to make or change an election
under this paragraph at any time, and to enforce any valid, written election under this paragraph;
(8) Any regulation of the possession, carrying, storage,
transportation, use, care or maintenance of weapons owned by any
public agency;
(9) Any regulation of the possession, carrying, storage,
transportation, use, care or maintenance of weapons in the course
of employment by a public agency by individuals who are:
(A) Employed as law-enforcement officers or security personnel;
or
(B) Required by the public agency to possess, carry, transport
or store a weapon;
(10) Any otherwise lawful order of any justice, judge or
magistrate regulating or prohibiting firearms or other weapons in
his or her courtroom or chambers; or
(11) Any otherwise lawful action that is expressly authorized
by the Legislature in this code. For the purposes of this
subdivision, a provision of this code that does not specifically and
directly refer to concealable weapons, firearms or parts, components
or ammunition for firearms, or to deadly weapons, may not be
construed to provide express authorization.
(e) Notwithstanding any provision of this code, the Code of
State Rules, the common law of this state or other applicable law
of this state to the contrary, and except as specifically provided by the United States Constitution, federal law or the Constitution
of this state, when any person, group or entity challenges any
ordinance, resolution, motion, rule, policy, administrative action
or any other act of any public agency as being in conflict with this
section:
(1) The court shall presume that the challenged ordinance,
resolution, motion, rule, policy, administrative action or other act
is in conflict with this section unless the public agency proves
beyond a reasonable doubt that the challenged ordinance, resolution,
motion, rule, policy, administrative action or other act is not
preempted by this section and does not otherwise conflict with this
section;
(2) The court shall view all evidence in the light most
favorable to the person, group or entity challenging the ordinance,
resolution, motion, rule, policy, administrative action or other act
of a public agency, as a violation of this section;
(3) The court shall draw all presumptions, inferences and
judgments of credibility in the manner most favorable to the person,
group or entity challenging the ordinance, resolution, motion, rule,
policy, administrative action or other act of a public agency, as
a violation of this section;
(4) The court shall analyze the law and facts in the light most
favorable to the person, group or entity challenging the ordinance, resolution, motion, rule, policy, administrative action or other act
of a public agency, as a violation of this section, to faithfully
fulfill the requirements of subdivisions (1) through (3) of this
subsection;
(5) The court shall liberally construe the provisions of this
subsection and subsections (b) and (c) of this section and narrowly
construe the provisions of subsection (d) of this section and any
provision of this code purporting to provide express authorization
as that term is described in subdivision (11), subsection (d) of
this section;
(6) In any appeal of a case arising under this section, any
decision of the trial court in favor of the public agency shall be
reviewed de novo and no deference shall be accorded to any judgment
of the trial court favoring the public agency or any individual
decision of the trial court challenged on appeal; and
(7) In addition to any other relief provided, the court shall
award costs and reasonable attorney fees to any person, group or
entity that substantially prevails in a challenge to an ordinance,
resolution, motion, rule, policy, administrative action or any other
act of any public agency as being in conflict with this section,
including all attorney fees reasonably connected with attempts by
the challenging party to seek the public agency's compliance with
this section prior to commencement of any civil action seeking enforcement of this section.
§61-7-18. Prohibition of registration of firearms and concealable
weapons; exceptions; penalty.
(a) Legislative findings and intent. -- The Legislature intends
through the provisions of this section to:
(1) Protect the right of individuals to keep and bear arms as
protected by both the Second Amendment to the United States
Constitution and Article III, § of the state Constitution;
(2) Protect the privacy rights of law-abiding owners of
firearms and concealable weapons; and
(3) Establish protections from registration of firearms,
concealable weapons or law-abiding owners thereof supplemental to
section seventeen of this article.
(b) Prohibitions. -- No state governmental agency or county,
municipality, special district or other political subdivision or
official, agent or employee of such state or other governmental
entity or any other person, public or private, may keep or cause to
be kept any list, record or registry of privately-owned firearms,
concealable weapons or any list, record or registry of the owners
thereof.
(c) Exceptions. -- The provisions of subsection (b) of this
section does not apply to:
(1) Records of weapons that have been used in committing any crime;
(2) Records relating to any person who has been convicted of
a crime;
(3) Records of weapons that have been reported stolen that are
retained for a period not in excess of ten days after such weapons
are recovered. Official documentation recording the theft of a
recovered weapon may be maintained no longer than the balance of the
year entered, plus two years;
(4) Firearm records that must be retained by licensed firearm
dealers under federal law, including copies of such records
transmitted to law-enforcement agencies. However, no state
governmental agency or county, municipality, special district or
other political subdivision or official, agent or employee of such
state or other governmental entity or any other person, private or
public, may accumulate, compile, computerize or otherwise collect
or convert such written records into any form of list, registry or
database for any purpose;
(5) Records of an insurer that, as a condition to providing
insurance against theft or loss of a firearm or concealable weapons,
identify such weapon. Such records may not be sold, commingled with
records relating to other weapons or transferred to any other person
or entity. The insurer may not keep a record of such weapon more
than sixty days after the policy of insurance expires or after notification by the insured that the insured is no longer the owner
of such weapon;
(6) Lists of customers of a dealer in firearms or concealable
weapons retained by such dealer, provided that such lists do not
disclose the particular weapons purchased. Such lists, or any parts
thereof, may not be sold, commingled with records relating to other
weapons, or transferred to any other person or entity;
(7) Sales receipts retained by the seller of firearms or
concealable weapons or by a person providing credit for such
purchase, provided that such receipts may not serve as or be used
for the creation of a database for registration of firearms or
concealable weapons;
(8) Personal records of firearms or concealable weapons
maintained by the owner of such firearms or concealable weapons;
(9) Records maintained by a business that stores or acts as the
selling agent of firearms or concealable weapons on behalf of the
lawful owner of the weapons;
(10) Membership lists of organizations comprised of owners of
firearms or concealable weapons;
(11) Records maintained by an employer or contracting entity
of the firearms or concealable weapons owned by its officers,
employees or agents, if such weapons are used in the course of
business performed on behalf of the employer;
(12) Records maintained pursuant to section four, article seven
of this chapter pertaining to any person who is or was a licensee
or applicant under section four, article seven of this chapter, at
any time within the prior two calendar years;
(13) Records of weapons involved in criminal investigations,
criminal prosecutions, criminal appeals and post-conviction motions,
civil proceedings relating to the surrender or seizure of firearms
or concealable weapons including protective injunctions, commitments
to mental institutions and sheriff's levies pursuant to court
judgments, and voluntary surrender by the owner or custodian of the
weapon;
(14) Paper documents relating to weapons involved in criminal
cases, criminal investigations and criminal prosecutions, civil
proceedings relating to the surrender or seizure of weapons
including protective injunctions, commitments to mental institutions
and sheriff's levies pursuant to court judgments, and voluntary
surrender by the owner or custodian of the weapon; or
(15) Noncriminal records relating to the receipt, storage or
return of concealable weapons, including, but not limited to,
records relating to weapons impounded for storage or safekeeping,
receipts proving that a weapon was returned to the rightful owner
and supporting records of identification and proof of ownership, or
records relating to weapons impounded pursuant to levies or court orders: Provided, That such records may not be compiled, sorted,
or otherwise arranged into any lists, indexes, or registries of
concealable weapons or owners thereof.
(d) Penalties. --
(1) Any person who knowingly and willfully violates any
provision of this section is guilty of a felony and, upon conviction
thereof, shall be imprisoned for not less than one year nor more
than five years, fined not more than $50,000, or both. Any person
who otherwise violates any provision of this section is guilty of
a misdemeanor and, upon conviction thereof, shall be confined in
jail for not more than one year, fined not more than $10,000, or
both.
(2) Except as required by the provisions of the state
Constitution or the United States Constitution, no public funds may
be used to defend the unlawful conduct of any person charged with
a violation of this section, except where such funds are obligated
or paid after the final dismissal of charges against such person or
acquittal at trial. Notwithstanding the foregoing provisions of
this subdivision, public funds may be expended to provide the
services of the office of public defender or court-appointed counsel
as otherwise provided by law.
(3) The governmental entity, or the designee of such
governmental entity, in whose service or employ a list, record or registry was compiled in violation of this section may be assessed
a fine of not more than $5 million, if the court determines that the
evidence shows that the list, record or registry was compiled or
maintained with the knowledge or complicity of the management of the
governmental entity. The Attorney General or any person aggrieved
by a violation of this section may bring a civil action to enforce
the fines assessed under this subdivision.
(4) The prosecuting attorney shall investigate complaints of
criminal violations of this section occurring within his or her
county and, where evidence indicates a violation may have occurred,
shall prosecute violators.
(5) The prosecuting attorney, the Attorney General and any
person aggrieved by a violation of this section shall have
concurrent power to bring a civil action to enforce this section.
In addition to any other relief provided, the court shall award
costs and reasonable attorney fees to any person who prevails in a
civil action to enforce this section or in an action for a writ of
mandamus to compel a prosecuting attorney to act pursuant to
subdivision (4) of this subsection.
(e) Construction. -- This section shall be construed to
effectuate its remedial and deterrent purposes. This section may
not be construed to grant any substantive, procedural privacy right
or civil claim to any criminal defendant, and a violation of this section may not be grounds for the suppression of evidence in any
criminal case.
(f) Closed records. -- Information specified in subdivisions
(3), (4), (11), (12), (13), (14) and (15), subsection (c) of this
section shall be closed from public access and exempt from chapter
twenty-nine-b of this code.
(g) Grace period. -- Any list, record or registry maintained
or under construction on the effective date of this section shall
be destroyed, unless prohibited by law, within sixty calendar days
after the effective date of this section. Thereafter, failure to
destroy any such list, record or registry shall result in civil and
criminal liability under this section.
§61-7-19. Restrictions on seizures of firearms and concealable
weapons; exceptions; civil relief.
(a) If a law-enforcement officer stops a person to question the
person regarding a possible violation of this article, for a traffic
stop, or for any other law-enforcement purpose, if the person
surrenders a firearm or concealable weapon to the officer, either
voluntarily or pursuant to a request or demand of the officer, and
if the officer does not charge the person with a violation of this
article or arrest the person for any offense, the person is not
otherwise prohibited by law from possessing the firearm or
concealable weapon, and the firearm or concealable weapon is not contraband, the officer shall return the firearm or concealable
weapon to the person at the termination of the stop. If a court
orders a law-enforcement officer to return a firearm or concealable
weapon to a person pursuant to the requirements of this subsection,
subdivision (2), subsection (b) of this section shall apply.
(b) If a law-enforcement officer stops or detains a person for
any law-enforcement purpose and the person voluntarily or pursuant
to a request or demand of the officer surrenders a firearm or
concealable weapon to the officer, if a law-enforcement officer
stops a motor vehicle for any purpose and a person in the motor
vehicle voluntarily or pursuant to a request or demand of the
officer surrenders a firearm or concealable weapon to the officer,
or if a law-enforcement officer otherwise seizes a firearm or
concealable weapon from a person:
(1) If the law-enforcement officer does not return the firearm
or concealable weapon to the person at the termination of the stop
or otherwise promptly return the firearm or concealable weapon to
the person after the seizure of the firearm or concealable weapon,
the officer or other personnel at the officer's law-enforcement
agency shall maintain the integrity and identity of the firearm or
concealable weapon in such a manner so that if the firearm or
concealable weapon subsequently is to be returned to the person it
can be identified and returned to the person in the same condition it was in when it was seized; and
(2) If the law-enforcement officer does not return the firearm
or concealable weapon to the person at the termination of the stop
or otherwise promptly return the firearm or concealable weapon to
the person after the seizure of the firearm or concealable weapon,
if a court finds that a law-enforcement officer failed to return the
firearm or concealable weapon to the person after the person has
demanded the return of the firearm or concealable weapon from the
officer, and if the court orders a law-enforcement officer to return
the firearm or concealable weapon to the person, in addition to any
other relief ordered, the court also shall award reasonable costs
and attorney's fees to the person who sought the order to return the
firearm or concealable weapon.
(c) In this section, the term "law-enforcement officer" means
any law-enforcement officer, as that term is defined in section two,
article seven of this chapter, who is employed by a West Virginia
law-enforcement agency.
§61-7-20. Requirements for local gun buy-back programs.
(a) Every West Virginia law-enforcement agency that
participates in a "gun buy-back program" or other program in which
firearms or ammunition are purchased or surrendered for the purpose
of destruction shall assure that:
(1) The serial number of each firearm that is purchased or surrendered to the program is checked against local, state and
federal records of stolen firearms and, if the West Virginia law-
enforcement agency finds that the firearm is a stolen firearm, that
the firearm is not destroyed without the express written permission
of the lawful owner of the firearm and, if the lawful owner of the
firearm does not give express written permission for the firearm to
be destroyed, that the firearm is returned to its lawful owner;
(2) If the West Virginia law-enforcement agency determines that
a firearm that is purchased by, or surrendered to the "gun buy-back
program" is stolen, that the West Virginia law-enforcement agency
makes an effort to arrest the thief or any person who possessed the
firearm knowing it was stolen; and
(3) Prior to the destruction of any firearm that is purchased
or surrendered, that the West Virginia law-enforcement agency makes
a written determination as to whether the firearm may have been used
in a crime, and that if the West Virginia law-enforcement agency
determines that the firearm probably was used in a crime, that the
firearm is retained for evidence, and if the West Virginia
law-enforcement agency determines that the firearm probably was not
used in a crime, if the firearm is a rifled firearm, that a fired
bullet and fired cartridge case is retained for possible use as
evidence and that if the firearm is a smooth bore firearm, that a
fired cartridge case is retained for possible use as evidence.
(b) Prior to returning a stolen firearm to a lawful owner, the
West Virginia law-enforcement agency shall determine whether the
lawful owner of the firearm is prohibited from possessing a firearm
under federal law and the laws of the state in which the owner
resides. If the lawful owner of the firearm is prohibited from to
possessing a firearm under federal law or the laws of the state in
which the owner resides, the law-enforcement agency may destroy the
firearm after compliance with subdivision (2), subsection (a) of
this section.
CHAPTER 64. LEGISLATIVE RULES.
ARTICLE 5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN
RESOURCES TO PROMULGATE LEGISLATIVE RULES.
§64-5-1a. Health and Human Resources; child care centers
licensing.
The legislative rule contained in title seventy-eight, series
one, and filed in the State Register on April 25, 2007, under the
authority of section four, article two-b, chapter forty-nine of this
code, relating to Department of Health and Human Resources (Child
Care Centers Licensing, 78 CSR 1) is reauthorized with the following
amendment:
On page seventy, section one, by striking subsection 20.3.a in
its entirety and renumbering subsequent subsections.
§64-5-1b. Health and Human Resources; child-care and treatment facilities.
The legislative rule contained in title seventy-eight, series
three, and filed in the State Register on May 2, 2007, under the
authority of section three, article seventeen, chapter twenty-seven,
sections four, six and seven of article one-a, chapter twenty-seven
and article two-b, chapter forty-nine of this code, relating to the
Department of Health and Human Resources (Minimum Licensing
Requirements for Residential Child Care and Treatment Facilities for
Children and Transitioning Adults in West Virginia, 78 CSR 3) is
reauthorized with the following amendment:
On page thirty-one, section three, by striking subsection
12.5.c in its entirety and renumbering subsequent subsections
accordingly.
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO
PROMULGATE LEGISLATIVE RULES.
§64-7-3a. Lottery Commission; limited gaming facility rule.
The legislative rule contained in title eighty-seven, series
four, filed in the State Register on April 20, 2000, under the
authority of section five, article twenty-five, chapter twenty-nine
of this code, relating to the West Virginia Lottery Commission
(Limited Gaming Facility Rule 179 CSR 4) is reauthorized with the
following amendment:
On page twelve, section four, by striking subsection 3.12 in its entirety and renumbering subsequent subsections accordingly.
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-3a. Division of Natural Resources; Commercial Whitewater
Outfitters.
The legislative rule contained in title fifty-eight, series
twelve and filed in the state Register on March 27, 2008, under the
authority of section twenty-three-a, article two, chapter twenty of
this code, relating to the Division of Natural Resources (Commercial
Whitewater Outfitters 58 CSR 12) is reauthorized with the following
amendment:
On page seven, section twelve, by striking subsection 9.13 in
its entirety and renumbering subsequent subsections accordingly.
§64-10-3b. Division of Natural Resources; public use of state
parks.
The legislative rule contained in title fifty-eight, series
thirty-one and filed in the State Register on May 4, 2006, under the
authority of section seven, article one, chapter twenty of this
code, relating to the Division of Natural Resources (Public use of
West Virginia State Parks, State Forests, and State Wildlife
Management Areas Under the Division of Natural Resources 58 CSR 31)
is reauthorized with the following amendment:
On page two, section thirty-one, subsection 2.14 by striking "firearms, uncased".
On page two, section thirty-one, subsection 2.14.a by striking
"rifle, pistol, skeet, trap, target or shooting" and inserting
"archery" in its place.
ARTICLE 12. RACING COMMISSION.
§64-12-1. Thoroughbred racing.
The legislative rule contained in title one hundred seventy-
eight, series one and filed in the state Register on April 6, 2007,
under the authority of sections five, six, eight and thirteen,
article twenty-three, chapter nineteen of this code, relating to the
Racing Commission (Thoroughbred Racing 178 CSR 1) is reauthorized
with the following amendment:
On page thirty, section one, subsection 37.6 by striking
"firearm, or other deadly weapon".
§64-12-2. Greyhound racing.
The legislative rule contained in title one hundred seventy-
eight, series two and filed in the State Register on May 5, 2006,
under the authority of sections six, article twenty-three, chapter
nineteen of this code, relating to the Racing Commission(Greyhound
Racing 178 CSR 2) is reauthorized with the following amendment:
On page twenty-nine, section two, subsection 40.6 by striking
"carries or exhibits a deadly weapon".
NOTE: The purpose of this bill is to reform the state
preemption of firearm regulations and establish uniform signage
requirement for all places, both public and private property, where
the possession or carrying of weapons has been prohibited.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-7-1 has been completely rewritten.
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