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Introduced Version Senate Bill 340 History

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Senate Bill No. 340

(By Senator Sypolt)

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[Introduced January 28, 2011; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §61-6-19 of the Code of West Virginia, 1931, as amended; to amend and reenact §61-7-1, §61-7-2, §61-7-11a and §61-7-14 of said code; and to amend said code by adding thereto a new section, designated §61-7-11b, all relating to crimes against the peace and possession of deadly weapons; clarifying the prohibition against disrupting governmental processes; permitting the possession of weapons on the grounds of the State Capitol Complex; expanding legislative findings concerning dangerous weapons; redefining the term “knife” and what is considered to be a deadly weapon; defining additional terms; expanding the school areas where the possession of deadly weapons are prohibited; prohibiting the possession of deadly weapons in courtrooms; providing exemptions; permitting loaded firearms in locked motor vehicles, other than school buses, on school property; permitting property owner to prohibit deadly weapons on his or her property; and imposing penalties.

Be it enacted by the Legislature of West Virginia:

    That §61-6-19 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §61-7-1, §61-7-2, §61-7-11a and §61-7-14 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §61-7-11b, all to read as follows:

ARTICLE 6. CRIMES AGAINST THE PEACE.

§61-6-19. Willful disruption of governmental processes; offenses occurring at State Capitol Complex; penalties.

    (a) If any No person may willfully interrupts or molests interrupt or molest the orderly and peaceful process of any department, division, agency or branch of state government or of its political subdivisions: he or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars, or imprisoned in the county or regional jail not more than six months, or both fined and imprisoned Provided, That any assembly in a peaceable, lawful and orderly manner for a redress of grievances shall not be a violation of this section subsection. Any person who violates this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100, confined in jail for not more than six months, or both.

    (b) It is unlawful for any person to bring upon the state Capitol complex any weapon as defined by the provisions of section two, article seven of this chapter. It is unlawful for any No person to may willfully deface any trees, wall, floor, stairs, ceiling, column, statue, monument, structure, surface, artwork or adornment in the State Capitol Complex. It is unlawful for any

    (c) No person or persons to other than a law-enforcement officer acting in his or her official capacity may willfully block or otherwise willfully obstruct any public access, stair or elevator in the State Capitol Complex after being asked by a law-enforcement officer acting in his or her official capacity to desist: Provided, That in order to preserve the Constitutional right of the people to assemble, it is not willful blocking or willful obstruction for persons gathered in a group or crowd, if the persons move to the side or part to allow other persons to pass by the group or crowd to gain ingress or egress. Provided, however, That this subsection shall not apply to a law-enforcement officer acting in his or her official capacity

    (d) Any person who violates any provision of this subsection section for which another penalty is not provided is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100, or confined in the county or regional jail for not more than six months, or both.

ARTICLE 7. DANGEROUS WEAPONS.

§61-7-1. Legislative findings.

    (a) 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.

    (b) The Legislature also 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 that sections eleven-a and eleven-b, article seven of this chapter have been enacted as a reasonable regulation of the manner in which citizens may exercise rights accorded them pursuant to Article III, section twenty-two of the Constitution of this state.

§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 shall not be included within the term “knife” as defined herein in this subdivision and shall not be 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 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, article seven of this chapter, 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) “Ammunition” means ammunition or cartridge cases, primers, bullets or propellant powder designed for use in any firearm.

    (15) “Ballistic knife” means any knife that has a blade which is forcefully projected from the handle by means of a spring-loaded device or a compressed gas that generates a propelling force.

    (16) “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.

    (17) “Concealable weapon” means any club, offensive knife, handgun, spring stick or other deadly weapons of like kind or character that may be easily concealed on the person.

    (18) “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; and 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.

    (19) “Courthouse” means any state or local government office facility that houses a court facility: Provided, That for the purposes of section eleven-b, article seven, chapter sixty-one, this term excludes any portion of building one of the State Capitol Complex other than:

    (A) The third and fourth floors of the east wing of building one of the State Capitol Complex; or

    (B) Any court facility located in any part of building one of the State Capitol Complex not described in paragraph (A) of this subdivision.

    (20) “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.

    (21) “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.

    (22) “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.

    (23) “Motor vehicle” has the same meaning as in section one, article one, chapter seventeen-a.

    (24) “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.

    (25) “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 and control of any property owned 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.

    (26) “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.

    (27) “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 of this code;

    (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.

    (28) “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.

    (29) “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.

    (30) “School bus” has the same meaning as in section one, article one, chapter seventeen-a of this code.

    (31) “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.

    (32) “Spring stick” means a spring-loaded metal stick activated by pushing a button which rapidly and forcefully telescopes the weapon to several times its original length.

    (33) “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 that is used as a restroom.

    (34) “Unloaded,” with respect to a firearm, means the state of a firearm not being loaded, as that term is defined in subdivision (22) of this section.

§61-7-11a. Possessing deadly weapons on school property; reports by school principals; revocation of driver 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 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 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

    (E) (5) The official mascot of West Virginia University, commonly known as “The Mountaineer”, acting in his or her official capacity.

    (3) (c) Any person violating who violates subsection (a) of this subsection shall be 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) (d) 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 division of public safety State Police within seventy-two hours after such the violation occurs.

    (d) (e) 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) (f)(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: (A) A period of one year; or in the event (B) 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) (g) 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) (h) Any person violating this who violates subsection shall be (g) 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.

    (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 courthouse.

    (c) Except as otherwise provided by subsection (d) of this section, any person who violates 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.

    (d) 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 property owners to limit possession of deadly weapons on premises; exceptions; penalty.

    (a) Notwithstanding the provisions of this article, and except as otherwise provided in this section, any owner, lessee or other person charged with the care, custody and control of real property owner may prohibit or restrict the carrying, openly or concealed, of any firearm or deadly weapon on property under his or her domain. Provided, That for purposes of this section “person” means an individual or any entity which may acquire title to real property

    (b) Any person carrying or possessing a firearm or other deadly weapon on the property of another who refuses to temporarily relinquish possession of such firearm or other the deadly weapon, upon being lawfully requested to do so, or to leave such premises, while in possession of such firearm or other the deadly weapon, shall be 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

    (c) Any prohibition or restriction on possessing or carrying any weapon under this section shall not apply to those persons set forth in subsections (3) through (6), section six of this code article while such those 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

 

 

    NOTE: The purpose of this bill concerns crimes against the peace and possession of deadly weapons. The bill clarifies the prohibition against disrupting governmental processes. The bill permits the possession of weapons on the grounds of the State Capitol Complex. The bill expanding legislative findings concerning dangerous weapons. The bill also redefines the term “knife,” what is considered to be a deadly weapon and defines additional terms. The bill expands the school areas where the possession of deadly weapons are prohibited and prohibits the possession of deadly weapons in courtrooms and providing exemptions. Further, the bill permits loaded firearms in locked motor vehicles, other than school buses, on school property. The bill permits a property owner to prohibit deadly weapons on his or her property. Additionally, the bill imposes penalties.

 

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

 

    §61-7-11b is new; therefore, strike-throughs and underscoring have been omitted.

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