Senate Bill No. 353
(By Senators Unger, Kessler (Mr. President), Browning, Laird, Klempa and Snyder)
[Introduced January 20, 2012; referred to the Committee on the Judiciary.]
A BILL to amend and reenact §61-7-4 and §61-7-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-7A-5 of said code, all relating to licenses to carry deadly weapons; providing application requirements; requiring investigations of applications through the National Instant Criminal Background Check System; providing definitions; prohibiting certain persons from possessing or receiving firearms under federal law; providing exceptions; and providing process for petitioning to remove firearm-related disabilities.
Be it enacted by the Legislature of West Virginia:
That §61-7-4 and §61-7-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §61-7A-5 of said code be amended and reenacted, all to read as follows:
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any person desiring to obtain a state license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for the license, and shall pay to the sheriff, at the time of application, a fee of $75, of which $15 of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete application, as prepared by the Superintendent of the West Virginia State Police, in writing, duly verified, which sets forth only the following licensing requirements:
(1) The applicant's full name, date of birth, social security number, and a description of the applicant's physical features, the applicant’s place of birth, the applicant’s country of citizenship, and, if the applicant is not a United States citizen, any alien or admission number issued by the United States Bureau of Immigration and Customs enforcement, and any basis, if applicable, for an exception to the prohibitions of 18 U.S.C. §922(g)(5)(B);
(2) That, on the date the application is made, the applicant is a bona fide resident of this state and of the county in which the application is made and has a valid driver's license or other state-issued photo identification showing the residence;
(3) That the applicant is twenty-one years of age or older: Provided, That any individual who is less than twenty-one years of age and possesses a properly issued concealed weapons license as of the effective date of this article shall be licensed to maintain his or her concealed weapons license notwithstanding the provisions of this section requiring new applicants to be at least twenty-one years of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older that he or she is required to carry a concealed weapon as a condition for employment, and presents satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other conditions of this section. Upon discontinuance of employment that requires the concealed weapons license, if the individual issued the license is not yet twenty-one years of age, then the individual issued the license is no longer eligible and must return his or her license to the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an unlawful user thereof as evidenced by either of the following within the three years immediately prior to the application:
(A) Residential or court-ordered treatment for alcoholism or alcohol detoxification or drug treatment; or
(B) Two or more convictions for driving while under the influence or driving while impaired;
(5) That the applicant has not been convicted of a felony or of an act of a misdemeanor crime of violence involving the misuse of a deadly weapon within the five years immediately preceding the application: Provided, That if the offense is a misdemeanor crime of domestic violence as defined in 18 U.S.C. §921(a)(33), the provisions of subdivision six of this section shall control;
(6) That the applicant has not been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine, article two of this chapter in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense; or a misdemeanor offense with similar essential elements in a jurisdiction other than this state That the applicant is not prohibited from possessing or receiving a firearm by 18 U.S.C. §922(g) or (n) or by section seven, article seven of this chapter;
(7) That the applicant is not under indictment for a felony offense or is not currently serving a sentence of confinement, parole, probation or other court-ordered supervision imposed by a court of any jurisdiction or is the subject of an emergency or temporary domestic violence protective order or is the subject of a final domestic violence protective order entered by a court of any jurisdiction;
(8) That the applicant is physically and mentally competent to carry the weapon;
(9) (8) That the applicant has not been adjudicated to be mentally incompetent. If the applicant has been adjudicated mentally incompetent the applicant must provide a court order or other evidence that the applicant is no longer under such disability;
(10) (9) That the applicant has qualified under the minimum requirements set forth in subsection (d) of this section for handling and firing the weapon: Provided, That this requirement shall be waived in the case of a renewal applicant who has previously qualified; and
(11) (10) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation relative to the information contained in the application.
(b) For both initial and renewal applications, the sheriff shall conduct an investigation including a nationwide criminal background check an inquiry through the National Instant Criminal Background Check System, in order to verify that the information required in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section is true and correct.
(c) Sixty dollars of the application fee and any fees for replacement of lost or stolen licenses received by the sheriff shall be deposited by the sheriff into a Concealed Weapons License Administration Fund. The fund shall be administered by the sheriff and shall take the form of an interest bearing account with any interest earned to be compounded to the fund. Any funds deposited in this Concealed Weapon License Administration Fund are to be expended by the sheriff to pay for the costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end of each fiscal year may be expended for other law-enforcement purposes or operating needs of the sheriff’s office, as the sheriff may consider appropriate.
(d) All persons applying for a license must complete a training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training requirement:
(1) Any official National Rifle Association handgun safety or training course;
(2) Any handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school utilizing instructors duly certified by the institution;
(3) Any handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the National Rifle Association;
(4) Any handgun training or safety course or class conducted by any branch of the United States Military, Reserve or National Guard.
A photocopy of a certificate of completion of any of the courses or classes or an affidavit from the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which shows successful completion of the course or class shall constitute evidence of qualification under this section.
(e) All concealed weapons license applications must be notarized by a notary public duly licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the application constitutes false swearing and is punishable under the provisions of section two, article five, chapter sixty-one of this code.
(f) If the information in the application is found to be true and correct, The sheriff shall issue a license unless he or she determines that the application is incomplete, that it contains statements that are materially false or incorrect, or that applicant does not meet the requirements set forth in this section. The sheriff shall issue, reissue or deny the license within forty-five days after the application is filed if all required background checks authorized by this section are completed.
(g) Before any approved license shall be issued or become effective, the applicant shall pay to the sheriff a fee in the amount of $15 which the sheriff shall forward to the Superintendent of the West Virginia State Police within thirty days of receipt. The license shall be valid for five years throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons license as of December 16, 1995, shall continue to hold a valid concealed weapons license until his or her license expires or is revoked as provided in this article: Provided, That all reapplication fees shall be waived for applications received by January 1, 1997, for any person holding a current and valid concealed weapons license as of December 16, 1995, which contains use restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses reissued pursuant to this subsection will be issued for the time period of the original license.
(i) Each license shall contain the full name and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable for carrying in a wallet, and the license card is considered a license for the purposes of this section.
(j) The Superintendent of the West Virginia State Police shall prepare uniform applications for licenses and license cards showing that the license has been granted and shall do any other act required to be done to protect the state and see to the enforcement of this section.
(k) If an application is denied, the specific reasons for the denial shall be stated by the sheriff denying the application. Any person denied a license may file, in the circuit court of the county in which the application was made, a petition seeking review of the denial. The petition shall be filed within thirty days of the denial. The court shall then determine whether the applicant is entitled to the issuance of a license under the criteria set forth in this section. The applicant may be represented by counsel, but in no case may the court be required to appoint counsel for an applicant. The final order of the court shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an appeal in accordance with the Rules of Appellate Procedure of the Supreme Court of Appeals.
(l) If a license is lost or destroyed, the person to whom the license was issued may obtain a duplicate or substitute license for a fee of $5 by filing a notarized statement with the sheriff indicating that the license has been lost or destroyed.
(m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the Superintendent of the West Virginia State Police a certified copy of the approved application. The sheriff shall furnish to the Superintendent of the West Virginia State Police at any time so requested a certified list of all licenses issued in the county. The Superintendent of the West Virginia State Police shall maintain a registry of all persons who have been issued concealed weapons licenses.
(n) Except when subject to an exception under section six, article seven of this chapter, all licensees must carry with them a state-issued photo identification card with the concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who, in violation of this subsection, fails to have in his or her possession a state-issued photo identification card and a current concealed weapons license while carrying a concealed weapon is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 or more than $200 for each offense.
(o) The sheriff shall deny any application or revoke any existing license upon determination that any of the licensing application requirements established in this section have been violated by the licensee.
(p) A person who is engaged in the receipt, review or in the issuance or revocation of a concealed weapon license does not incur any civil liability as the result of the lawful performance of his or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this section, with respect to application by a former law-enforcement officer honorably retired from agencies governed by article fourteen, chapter seven of this code; article fourteen, chapter eight of this code; article two, chapter fifteen of this code; and article seven, chapter twenty of this code, an honorably retired officer is exempt from payment of fees and costs as otherwise required by this section. and the application of the honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements of this section and has the approval of the appropriate chief law-enforcement officer.
(r) Except as restricted or prohibited by the provisions of this article or as otherwise prohibited by law, the issuance of a concealed weapon permit issued in accordance with the provisions of this section authorizes the holder of the permit to carry a concealed pistol or revolver on the lands or waters of this state.
(s) For purposes of this subsection, “misdemeanor crime of violence” means any of the following offenses at the misdemeanor level, or a substantially similar offense committed in another jurisdiction:
(1) Involuntary manslaughter, in violation of section five, article two of this chapter;
(2) Assault or battery, in violation of section nine, article two of this chapter;
(3) Stalking or harassment, in violation of section nine-a, article two of this chapter;
(4) Assault or battery upon a governmental representative, health care provider, or emergency service personnel, in violation of section ten-b, article two of this chapter;
(5) Unlawfully shooting at another, in violation of section eleven, article two of this chapter;
(6) Attempted extortion by threats, in violation of section thirteen, article two of this chapter;
(7) Unlawful restraint, in violation of section fourteen-g, article two of this chapter;
(8) Assault or battery upon a school employee, in violation of section fifteen, article two of this chapter;
(9) Assault or battery upon an athletic official, in violation of section fifteen-a, article two of this chapter;
(10) Injury to passenger by person in charge of public conveyance or boat, in violation of section sixteen, article two of this chapter;
(11) Assault or battery upon a driver, conductor, motorman, captain, pilot or other person in charge of any vehicle used for public conveyance, in violation of section sixteen-a, article two of this chapter;
(12) Brandishing a deadly weapon, in violation of section, eleven, article seven of this chapter;
(13) Sexual abuse in the second degree, in violation of section eight, article eight-b of this chapter; and
(14) Sexual abuse in the third degree, in violation of section nine, article eight-b of this chapter.
§61-7-7. Persons prohibited from possessing or receiving firearms; classifications; reinstatement of rights to receive and possess; offenses; penalties.
(a) Except as provided in subsection (b) of this section, no person may possess a firearm in this state if the person is prohibited from possessing or receiving a firearm by 18 U.S.C. §922(g) or (n).
(b) The prohibitions of subsection (a) of this section, do not apply to a person who, in the jurisdiction in which the event occurred that led to the prohibition, has been relieved of the prohibition as follows:
(1) In the case of a conviction, the conviction has been expunged or set aside, or the person has received a pardon or has had the person’s civil rights restored, unless the expungement or pardon or restoration of rights expressly provides that the person may not ship, transport, possess or receive firearms; or
(2) In the case of the person having been adjudicated as a mental defective or committed to a mental institution, the person’s rights have been restored in accordance with the NICS Improvement Amendments Act of 2007, Pub. L. 110-180, or with a state restoration procedure that complies therewith.
(c) The provisions of this section shall be construed in harmony with the provisions and implementing regulations of, and the federal case law interpreting, the Gun Control Act of 1968, 18 U.S.C. §921 et seq., and the NICS Improvement Amendments Act of 2007, Pub. L. 110-180.
(d) In the event of a prohibition arising from a person being adjudicated as a mental defective or committed to a mental institution pursuant to the provisions of chapter twenty-seven of this code, the mental hygiene commissioner or circuit judge shall make a determination of an appropriate public or private individual or entity to act as conservator for any firearms in the person’s possession and shall enter an order under which the person shall relinquish and the conservator shall take possession of the property. In the event the person’s rights are restored in accordance with subdivision (2) of subsection (b) of this section, the court shall order that the property be returned to the person, unless the person has transferred title to the property in the interim.
(e) Except as provided in subsection (f) of this section, any person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one $100 nor more than $1,000 or confined in jail for not less than ninety days nor more than one year, or both fined and confined.
(f) Notwithstanding the provisions of subsection (e) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code, and who possesses a firearm as such is defined in section two of this article is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than $5,000, or both fined and confined. The provisions of subsection (g) of this section do not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.
(g) Except for those persons described under subsection (f) of this section, any person prohibited from possessing a firearm by the provisions of subsection (a) of this section, because of a conviction that occurred in this state may petition the circuit court of the county in which he or she resides to regain the ability to receive and possess a firearm. If the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the receipt and possession of a firearm, the court may enter an order allowing the person to receive and possess a firearm if the receipt and possession would not violate any federal law: Provided, That a person prohibited from receiving or possessing a firearm because the person has been adjudicated a mental defective or committed to a mental institution is not eligible to petition under this subsection but may petition for a restoration of firearms rights in accordance with the provisions of section five, article seven-a of this chapter.
ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS PROCEDURES.
§61-7A-5. Petition to remove firearm-related disabilities.
(a) A person who is subject to the disabilities of 18 U.S.C. §922(d)(4) and (g)(4) or of section seven, article seven of this chapter by virtue solely of having been adjudicated as a mental defective in a proceeding under the laws of this state or having been committed to a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the county of his or her residence to remove all such disabilities. A copy of the petition for relief shall be served upon the attorney for the state who appeared in the underlying case. The attorney may, as he or she deems appropriate, represent the interests of the state in the restoration proceedings.
(b) The court shall receive and consider evidence in a closed proceeding, including evidence offered by the petitioner, concerning:
(1) The circumstances regarding the firearm disabilities from which relief is sought;
(2) The petitioner’s mental health and criminal history records, if any;
(3) The petitioner’s reputation, developed at a minimum through character witness statements, testimony or other character evidence; and
(4) Changes in the petitioner’s condition or circumstances since the original adjudication or commitment relevant to the relief sought.
The court shall grant the petition for relief if it finds by a preponderance of the evidence or clear and convincing evidence that the petitioner will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. A record shall be kept of the proceedings, but it shall remain confidential and be disclosed only to a court in the event of an appeal. The petitioner may appeal a denial of the requested relief, and review on appeal shall be de novo.
(c) The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police or his or her designee with a certified copy of any order entered pursuant to the provisions of this section. If the order removes the petitioner’s firearm-related disabilities, petitioner’s name shall within five business days of when the order was received be removed from the Central State Mental Health Registry. The superintendent shall within ten business days of receiving the order inform the Federal Bureau of Investigation or other federal entity operating the National Instant Criminal Background Check System that the basis for the record being made available no longer applies.
(d) A person may petition for relief under this section not more than once every two years and, in the case of a person who was committed to a mental institution, not before the person has been discharged from the commitment.
NOTE: The purpose of this bill is to allow individuals with a valid Concealed Carry Permit to be exempt from the National Instant Criminal Background Check System (NICS) when purchasing a firearm. It would further conform state law to federal law.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§61-7-7 and §61-7A-5 have been completely rewritten, therefore strike-throughs and underscoring have been omitted.