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Introduced Version Senate Bill 252 History

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Key: Green = existing Code. Red = new code to be enacted
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Senate Bill No. 252

(By Senators Barnes, Yoder, Bailey, Love, Fanning and Sypolt)

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[Introduced January 18, 2008; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §61-7-2 and §61-7-10 of the Code of West Virginia, 1931, as amended, all relating to prohibiting the purchase or attempt to purchase a firearm from a firearm dealer by a person other than the actual purchaser; prohibiting and punishing a person other than a law-enforcement officer acting within the scope of duty from soliciting a firearm dealer to convey a firearm other than to an actual buyer; prohibiting and punishing the purchase or other acquisition of a firearm with the intent of certain dispositions of the same; prohibiting and punishing an attempt by a person prohibited from possessing firearms to purchase a firearm through a third-party purchaser; defining terms; and conforming certain definitions to federal law.

Be it enacted by the Legislature of West Virginia:
That §61-7-2 and §61-7-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7. DANGEROUS WEAPONS.
§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 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 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 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 includes, but is not limited to, the instruments defined in subdivisions (1) through (8), inclusive, of this section a firearm, antique firearm, blackjack, nunchucka, metallic or false knuckles, knife or other deadly weapons of like kind or character which may be easily concealed on or about the person. 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, 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:
(A) Any weapon, including a starter pistol, which will expel a projectile by action of an explosion;
(B) The frame or receiver of any such weapon; or
(C) Any firearm silencer.

(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) "Actual buyer" means a person who purchases or otherwise acquires a firearm from a licensed firearm dealer for himself or herself or as a legitimate gift for a third party.
(15) "Alien" means any person not a citizen or national of the United States.
(16) "Ammunition" means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.
(17) "Antique firearm" means:
(A) Any firearm, including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system, manufactured in or before one thousand eight hundred ninety-eight; or
(B) Any replica of any firearm described in paragraph (A) if a replica:
(i) Is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade.
(C) Any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this paragraph, the term "antique firearm" does not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.
(18) "Conviction" or "convicted," for the purposes of determining whether a person is disqualified under this article from shipping, transporting, possessing or receiving any firearm or other deadly weapon or obtaining a concealed weapon license, does not include any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored, unless such pardon, expungement or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms. What constitutes a conviction of a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.
(19) "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.
(20) "Family or household member" has the same meaning as in section two hundred four, article twenty-seven, chapter forty-eight.
(21) "Firearm silencer" means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer, and any part intended only for use in such assembly or fabrication.
(22) "Fugitive from justice" means any person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.
(23) "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.
(24) "Intimate partner" means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
(25) "Law-enforcement officer" has the same meaning as in section one, article twenty-nine, chapter thirty.
(26) "Law-enforcement official" has the same meaning as in section one, article twenty-nine, chapter thirty for the purposes of section ten, article seven, chapter sixty-one, this term includes any federal law-enforcement officer or federal agent acting within the scope of his or her official duties.
(27) "Licensed firearm dealer" means any person licensed as a dealer under Title 18, United States Code, Chapter 44 (18 U.S.C. §§921 et seq.).
(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 clip or magazine that is locked in place in the firearm;
(C) Has live, unexpended ammunition in the cylinder, if the firearm is a revolver; or
(D) Is capped or primed and has a powder charge and ball or shot in the barrel or cylinders, if the firearm is a muzzle-loader.
A firearm is not loaded solely because a loaded clip, magazine or speed-loader is readily accessible for immediate use or loading of an otherwise unloaded firearm.
(29)(A) Except as otherwise provided in this subdivision, "misdemeanor crime of domestic violence" means an offense that:
(i) Is a misdemeanor under federal or state law; and
(ii) Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
(B) A person is not considered to have been convicted of an offense for purposes of this article, unless:
(i) The person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(ii) In the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either:
(I) The case was tried by a jury, or
(II) The person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(30) "Readily accessible for immediate use" means that a firearm, ammunition or other deadly weapon is carried on the person or within close proximity and in a manner that it can be retrieved and used as easily and quickly as if carried on the person.
(31) "School bus" has the same meaning as in section one, article one, chapter seventeen-a.
(32) "Unloaded" :
(A) With respect to a firearm, means the state of a firearm not being loaded; and
(B) With respect to a firearm employing a percussion cap, flintlock, or other obsolete ignition system, in addition to the circumstances described in paragraph (A) of this subdivision, the firearm is "unloaded" when the weapon is uncapped or when the priming charge is removed from the pan.

§61-7-10. Display of deadly weapons for sale or hire; sale to prohibited persons; penalties.

(a) (1) It shall be is unlawful for any A person to may not publicly display and offer for rent or sale, or, where the person is other than a natural person, to knowingly permit an employee thereof to publicly display and offer for rent or sale, to any passers by on any street, road or alley, any deadly weapon. machine gun, submachine gun or other fully automatic weapon, any rifle, shotgun or ammunition for same.
(2) Any person violating the provisions of this subsection shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five thousand dollars or shall be confined in the county jail for not more than one year, or both fined and confined, except that where the person violating the provisions of this subsection is other than a natural person, such person shall be fined not more than ten thousand dollars.
(b) (1) It shall be unlawful for any A person to may not knowingly sell, rent, give or lend, or, where the person is other than a natural person, to knowingly permit an employee thereof to knowingly sell, rent, give or lend, any deadly weapon firearm or ammunition to a person prohibited from possessing same firearm or ammunition by any provision of this article by 18 U.S.C. §922(g) or (n) or other applicable federal law.
(c) A person, except a law-enforcement officer who is acting in the performance of official duties within his or her jurisdiction, may not solicit, persuade, encourage or entice or attempt or conspire to solicit, persuade, encourage or entice any licensed firearm dealer to sell, rent, give, lend or otherwise convey a firearm other than to an actual buyer or willfully and intentionally aid or abet the commission of any act prohibited by this subsection.
(d) A person, except a law-enforcement officer who is acting in the performance of official duties within his or her jurisdiction, may not purchase, rent, borrow or otherwise receive, or attempt or conspire to purchase, rent, borrow or otherwise receive, a firearm, whether from a licensed firearm dealer or otherwise, with the intent to:
(1) Sell, rent, give, lend or otherwise provide the firearm to any person who he or she knows or has reason to believe is ineligible under federal law, the laws of this state or the laws of the state in which the resale or other transfer is intended to occur to purchase or otherwise receive from a licensed firearm dealer a firearm for whatever reason;
(2) Transport the firearm out of this state to be sold, rented, given, lent or otherwise provided to another person who the transferor knows is ineligible under federal law, the laws of this state or the laws of the state in which the resale or other transfer is intended to occur, to purchase, receive or possess a firearm; or
(3) If the firearm is a handgun, transport the handgun out of this state to be resold or otherwise provided to any person who is not a resident of this state, unless the transfer is for temporary use for lawful sporting purposes or the transfer would not violate either federal law or the laws of the state in which the transfer is intended to occur.
Whenever a violation of this subsection involves more than one firearm, each firearm involved shall constitute a separate and distinct offense.
(e) A person who is ineligible to purchase or otherwise receive or possess a firearm in this state may not solicit, employ, assist or conspire with any person in violating subsection (d) of this section.
(2)(f) Any person violating the provisions of who violates any of the provisions of subsections (b) through (e) of this subsection shall be section is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty-five one hundred thousand dollars, or shall be imprisoned in the penitentiary of this state in a state correctional facility for a definite term of years of not less than three years nor more than ten years, or both fined and imprisoned, except that where the person violating the provisions of committing an offense punishable under this subsection is other than a natural person, such person shall be fined not more than two hundred fifty thousand dollars. When a violation of subsection (d) of this section involves more than one firearm, or when a person violates subsection (e) of this section, the sentence of imprisonment under this subsection is mandatory and not subject to suspension, probation, work release, home confinement, parole or any alternative to actual imprisonment until at least three years have been served. The sentences for each separate offense under subsections (d) or (e) of this section shall be imposed consecutively.
(g) Except as otherwise provided in subsection (f) of this section, any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than ten thousand dollars, confined in jail for not more than one year, or both, except where the person committing the violation is other than a natural person, the person shall be fined not more than twenty-five thousand dollars.



NOTE: The purpose of this bill is to
prohibit "straw purchases" of firearms in which a person ineligible under federal law to purchase or possess a firearm attempts to purchase a firearm from a firearm dealer through a third party who is not ineligible. This bill also conforms certain definitions to federal law.

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

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