Committee Substitute
House Bill 2471 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 2471
(By Mr. Speaker (Mr. Thompson) and Delegates Boggs, Swartzmiller,
Miley, Young, Sponaugle and Barrett)
(Originating in the Committee on the Judiciary)
(February 19, 2013)
A BILL to amend and reenact §15-5-6 and §15-5-19a of the Code of
West Virginia, 1931, as amended, all relating to exercise of
restricted state and local authority during a declared state
of emergency; possession of firearms during a declared state
of emergency; prohibiting the restriction or otherwise
lawful possession, use, carrying, transfer, transportation,
storage or display of a firearm or ammunition during a
declared state of emergency; clarifying scope of right to
seize or confiscate otherwise lawfully-possessed firearm
during a declared state of emergency; providing exceptions
thereto; providing a remedy at law and equity for a violations
of this article for the improper seizure of firearms or
ammunition during a declared state of emergency; providing a
cause of action for the return of the ammunition and firearms
seized in violation of these proscriptions; establishing a
venue for actions; and providing for the award of costs and
attorney fees to a prevailing plaintiff.
Be it enacted by the Legislature of West Virginia:
That §15-5-6 and §15-5-19a of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.
§15-5-6. Emergency powers of Governor.
The provisions of this section shall be operative only during
the existence of a state of emergency. The existence of a state of
emergency may be proclaimed by the Governor or by concurrent
resolution of the Legislature if the Governor in such proclamation,
or the Legislature in such resolution, finds that an attack upon
the United States has occurred or is anticipated in the immediate
future, or that a natural or man-made disaster of major proportions
has actually occurred or is imminent within the state, and that the
safety and welfare of the inhabitants of this state require an
invocation of the provisions of this section. Any such emergency,
whether proclaimed by the Governor or by the Legislature, shall
terminate upon the proclamation of the termination thereof by the
Governor, or the passage by the Legislature of a concurrent
resolution terminating such emergency.
So long as such state of emergency exists, the Governor shall
have and may exercise the following additional emergency powers:
(a) To enforce all laws and rules and regulations relating to
the provision of emergency services and to assume direct
operational control of any or all emergency service forces and
helpers in the state;
(b) To sell, lend, lease, give, transfer or deliver materials or perform functions relating to emergency services on such terms
and conditions as he or she shall prescribe and without regard to
the limitations of any existing law and to account to the State
Treasurer for any funds received for such property;
(c) To procure materials and facilities for emergency services
by purchase, condemnation under the provisions of chapter fifty-
four of this code or seizure pending institution of condemnation
proceedings within thirty days from the seizing thereof and to
construct, lease, transport, store, maintain, renovate or
distribute such materials and facilities. Compensation for
property so procured shall be made in the manner provided in
chapter fifty-four of this code;
(d) To obtain the services of necessary personnel, required
during the emergency, and to compensate them for their services
from his or her contingent funds or such other funds as may be
available to him or her;
(e) To provide and compel the evacuation of all or part of the
population from any stricken or threatened area within the state
and to take such steps as are necessary for the receipt and care of
such evacuees;
(f) To control ingress and egress to and from a disaster area,
the movement of persons within the area and the occupancy of
premises therein;
(g) To suspend the provisions of any regulatory statute
prescribing the procedures for conduct of state business or the
orders, rules or regulations of any state agency, if strict compliance therewith would in any way prevent, hinder or delay
necessary action in coping with the emergency;
(h) To utilize such available resources of the state and of
its political subdivisions as are reasonably necessary to cope with
the emergency;
(i) To suspend or limit the sale, dispensing or transportation
of alcoholic beverages, firearms, explosives and combustibles;
(j) To make provision for the availability and use of
temporary emergency housing; and
(k) To perform and exercise such other functions, powers and
duties as are necessary to promote and secure the safety and
protection of the civilian population.
No powers granted under this section may be interpreted to
authorize. the seizure or confiscation of a firearm from a person
unless that firearm is unlawfully possessed or unlawfully carried
by the person, or the person is otherwise engaged in a criminal act
any action that would violate the prohibitions of section nineteen-
a of this article.
§15-5-19a. Possession of firearms during a declared state of
emergency.
No powers granted under this article to state or local
authorities may be interpreted to authorize the seizure or
confiscation of a firearm from a person during a declared state of
emergency unless that firearm is unlawfully possessed or unlawfully
carried by the person, or the person is otherwise engaged in a
criminal act.
(a) No person acting on behalf or under the authority of the
state or a political subdivision of the state may do any of the
following during any federal or state declared state of emergency:
_____(1) Prohibit or restrict the otherwise lawful possession,
use, carrying, transfer, transportation, storage or display of a
firearm or ammunition;
_____(2) Seize, confiscate, or authorize the seizure or
confiscation of any otherwise lawfully-possessed firearm or
ammunition unless:
_____(A) The person acting on behalf of or under the authority of
the state or political subdivision is:
_____(i) Defending himself or another from an assault; or,
_____(ii) Arresting a person in actual possession of a firearm or
ammunition for a violation of law; or,
_____(B) The firearm or ammunition is being seized or confiscated
as evidence of a crime; or,
_____(3) Require registration of any firearm or ammunition.
_____(b) The prohibitions of subsection (a)(1) do not prohibit the
state or an authorized state or local authority from ordering and
enforcing an evacuation or general closure of businesses in the
affected area during a declared state of emergency.
_____(c) Any individual aggrieved by a violation of this section
may seek relief in an action at law or in equity for redress
against any person who subjects such individual, or causes such
individual to be subjected, to an action prohibited by this
section.
_____(d) In addition to any other remedy at law or in equity, an
individual aggrieved by the seizure or confiscation of a firearm or
ammunition in violation of this section may bring an action for the
return of such firearm or ammunition in the circuit court of the
county in which that individual resides or in which such firearm or
ammunition is located.
_____(e) In any action or proceeding to enforce this section, the
court shall award a prevailing plaintiff costs and reasonable
attorney fees.