WEST virginia legislature
2020 regular session
Senate Bill 96
By Senators Trump, Cline, Rucker, Azinger, Maynard, Roberts, Sypolt, Smith, and Hamilton
[Introduced January 8, 2020; referred
to the Committee on Government Organization; and then to the Committee on the Judiciary]
A BILL to amend and reenact §8-12-5a of the Code of West Virginia, 1931, as amended, relating to prohibiting municipalities from limiting the rights of persons to purchase, possess, transfer, own, carry, transport, sell, or store deadly weapons or pepper spray in any manner inconsistent with or in conflict with state law; and restricting the award of reasonable attorney’s fees and costs to petitioners seeking redress under this law to only those that prevail.
Be it enacted by the Legislature of West Virginia:
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.
§8-12-5a. Limitations upon municipalities’ power to restrict the purchase, possession, transfer, ownership, carrying, transport, sale and storage of certain weapons and ammunition.
(a) Except as provided by
the provisions of this section and the provisions of §8-12-5 of this code,
neither a municipality nor the governing body of any municipality may, by
ordinance or otherwise, limit the right of any person to purchase, possess,
transfer, own, carry, transport, sell or store any
revolver, pistol, rifle
or shotgun deadly weapon or pepper spray, 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 in any manner inconsistent with or in conflict with state law.
(b) For the purposes of this section:
“Deadly weapon” means an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to that use. The term “deadly weapon” includes, but is not limited to:
(A) A blackjack, gravity knife, knife, switchblade knife, nunchuka, metallic or false knuckles, pistol, revolver and firearm, as defined in §61-7-2 of this code, or other deadly weapons of like kind or character which may be easily concealed on or about the person; and
(B) A rifle and a shotgun.
“Deadly weapon” does not include explosive, chemical, biological and radiological materials, or any item or material owned by a school or county board of education intended for curricular use, and used by a student solely for curricular purposes.
(1) “Municipally owned or operated building” means any
building that is used for the business of the municipality, such as a
courthouse, city hall, convention center, administrative building or other
similar municipal building used for a municipal purpose permitted by state law:
Provided, That “municipally owned or operated building” does not include
a building owned by a municipality that is leased to a private entity where the
municipality primarily serves as a property owner receiving rental payments. (2) “Municipally owned recreation facility” means any
municipal swimming pool, recreation center, sports facility, facility housing
an after-school program or other similar facility where children are regularly
“Pepper spray” means a temporarily disabling aerosol that is composed partly of capsicum oleoresin and causes irritation and blinding of the eyes and inflammation of the nose, throat, and skin, intended for self-defense use.
(c)(1) A municipality may
enact and enforce an ordinance or ordinances that prohibit or regulate the
carrying or possessing of a
firearm deadly weapon or pepper spray
in municipally owned or operated buildings.
(2) A municipality may
enact and enforce an ordinance or ordinances that prohibit a person from
carrying or possessing a
firearm deadly weapon or pepper spray openly
or that is not lawfully concealed in a municipally owned recreation facility: Provided,
That a municipality may not prohibit a person with a valid concealed handgun
permit from carrying an otherwise lawfully possessed firearm into a municipally
owned recreation facility and securely storing the firearm out of view and
access to others during their time at the municipally owned recreation
(3) A person may keep an
otherwise lawfully possessed
firearm deadly weapon or pepper spray
in a motor vehicle in municipal public parking facilities if the vehicle is
locked and the firearm deadly weapon or pepper spray is out of
(4) A municipality may not
prohibit or regulate the carrying or possessing of a
weapon or pepper spray on municipally owned or operated property other than
municipally owned or operated buildings and municipally owned recreation
facilities pursuant to subdivisions (1) and (2) of this section: Provided,
That a municipality may prohibit persons who do not have a valid concealed
handgun license from carrying or possessing a firearm on municipally owned or
(d) It shall be an absolute
defense to an action for an alleged violation of an ordinance authorized by
this section prohibiting or regulating the possession of a
weapon or pepper spray that the person: (1) Upon being requested to do so,
left the premises with the firearm deadly weapon or pepper spray or
temporarily relinquished the firearm deadly weapon or pepper spray
in response to being informed that his or her possession of the firearm deadly
weapon or pepper spray was contrary to municipal ordinance; and (2) but for
the municipal ordinance the person was lawfully in possession of the firearm
deadly weapon or pepper spray.
(e) Any municipality that
enacts an ordinance regulating or prohibiting the carrying or possessing of a
deadly weapon or pepper spray pursuant to subsection (c) of this section
shall prominently post a clear statement at each entrance to all applicable
municipally owned or operated buildings or municipally owned recreation
facilities setting forth the terms of the regulation or prohibition.
(f) Redress for an alleged violation of this section may be sought through the provisions of chapter 53 of this code, which may include the awarding of reasonable attorneys fees and costs, if the petitioner prevails.
(g) Upon the effective date of this section, §61-7-14 of this code is inapplicable to municipalities. For the purposes of that section, municipalities may not be considered a person charged with the care, custody and control of real property.
(h) This section does not:
(1) Impair the authority of any municipality, or the governing body thereof, to enact any ordinance or resolution respecting the power to arrest, convict and punish any individual under the provisions of §8-12-5(16) of this code or from enforcing any such ordinance or resolution;
municipalities to restrict the carrying or possessing of
weapons or pepper spray, which are otherwise lawfully possessed, on public
streets and sidewalks of the municipality; Provided , That
whenever pedestrian or vehicular traffic is prohibited in an area of a
municipality for the purpose of a temporary event of limited duration, not to
exceed fourteen days, which is authorized by a municipality, a municipality may
prohibit persons who do not have a valid concealed handgun license from
possessing a firearm in the area where the event is held or
(3) Limit the authority of a municipality to restrict the commercial use of real estate in designated areas through planning or zoning ordinances.
NOTE: The purpose of this bill is to prohibit municipalities from limiting the rights of persons to purchase, possess, transfer, own, carry, transport, sell or store deadly weapons or pepper spray in any manner inconsistent with or in conflict with state law. The bill would also restrict the award of reasonable attorneys fees and costs to petitioners seeking redress under this law, to only those who prevail.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.