H. B. 3331
(By Delegate Reynolds)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §15-5-6 and §15-5-19a of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§61-6-1a of said code, all relating to prohibiting the taking
of lawfully possessed arms and ammunition during a declared
state of emergency or riot.
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; that §61-6-1a of said code be
amended and reenacted, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.
§15-5-6. Emergency powers of Governor.
(a) The provisions of this section shall be operative only
during the existence of a state of emergency.
(b) The existence of a state of emergency may be proclaimed by
the Governor, by proclamation, or by concurrent resolution of the
Legislature, by concurrent resolution, may proclaim the existence of a state of emergency if the Governor in
such his or her
proclamation, or the Legislature in
such its concurrent resolution,
finds that:
(1)(A) An attack upon the United States has occurred or is
anticipated in the immediate future; or that
(B) A natural or man-made disaster of major proportions has
actually occurred or is imminent within the state; and that
(2) The safety and welfare of the inhabitants of this state
require an invocation of the provisions of this section.
(c) Any such state of emergency, whether proclaimed by the
Governor or by the Legislature, shall terminate upon the
proclamation of the termination thereof of the state of emergency
by the Governor, or the passage by the Legislature of a concurrent
resolution terminating such the state of emergency.
(d) So long as such When a state of emergency exists as
provided in this section, the Governor shall have and may exercise
the following additional emergency powers:
(a) (1) To enforce all laws, 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) (2) 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
prescribed by the Governor, without regard to the limitations of
any existing law, and to account to the State Treasurer for any funds received for
such the property;
(c) (3) 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 under this subdivision shall be made in
the manner provided in chapter fifty-four of this code;
(d) (4) To obtain the services of necessary personnel,
required during the emergency, and to compensate them for their
services from his or her the Governor's contingent funds or such
other funds as may be available to him or her the Governor;
(e) (5) 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 steps for the receipt
and care of such evacuees;
(f) (6) To control ingress and egress to and from a disaster
area, the movement of persons within the area and the occupancy of
premises therein in a disaster area;
(g) (7) 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 with the applicable regulatory statute would
in any way prevent, hinder or delay necessary action in coping with
the emergency;
(h) (8) To utilize such available resources of the state and
of its political subdivisions as are reasonably necessary to cope
with the emergency;
(i) (9) To suspend or limit the sale, dispensing or
transportation of alcoholic beverages, firearms, explosives and
combustibles;
(j) (10) To make provision for the availability and use of
temporary emergency housing; and
(k) (11) 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.
(e) The Legislature finds and declares that an individual's
right to keep and bear arms is especially necessary for the
protection of lives and property of law-abiding citizens during
emergency situations when law-enforcement and other public safety
resources are especially limited. 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.
§15-5-19a. Possession of firearms during a declared state of
emergency.
(a) The Legislature finds and declares that an individual's
right to keep and bear arms is especially necessary for the
protection of lives and property of law-abiding citizens during
emergency situations when law-enforcement and other public safety resources are especially limited.
(b) Notwithstanding any provision of this article to the
contrary:
(1) 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;
and
(2) This article does not authorize:
(A) Any prohibition or impairment of the otherwise lawful
possession of privately owned firearms or ammunition; or
(B) Any prohibition of the otherwise lawful carrying of any
firearm or acquisition of any firearm or ammunition.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 6. CRIMES AGAINST THE PEACE.
§61-6-1a. Control of riots and unlawful assemblages.
(a) Members of the
department of public safety State Police,
sheriffs and mayors, and those acting under their order, may, when
engaged in suppressing a riot, rout or unlawful assemblage, cordon
off any area or areas threatened by such riot, rout or unlawful
assemblage, and may take all actions which are necessary and
reasonable under the emergency to restore law and order, and such
actions may be, but are not limited to, the following:
(a) (1) Prohibit the sale, offering for sale, dispensing,
furnishing or transportation of
firearms or other dangerous weapons, ammunition, dynamite or other dangerous explosives in, to
or from such areas.
(b) (2) Prohibit the sale, offering for sale, dispensing,
furnishing or consumption of alcoholic beverages or nonintoxicating
beer in a public place in such areas, and prohibit the
transportation of alcoholic beverages or nonintoxicating beer in,
to or from such areas.
(c) (3) Impose curfews, as required, to control movement of
persons in, to and from such areas.
(d) (4) Enter a private dwelling or other building or other
private place in such areas when in fresh pursuit of a rioter, when
in search of a sniper who has fired upon a person from such a
dwelling or other building or place or when in search of
firearms,
other dangerous weapons, ammunition, dynamite or other dangerous
explosives when there is reason to believe that such items are
stored in the said dwelling, building or place and that they will
be removed therefrom before a search warrant could be obtained.
(b) No person
shall wilfully may willfully fail to obey a
lawful order of any mayor, sheriff, deputy sheriff, municipal
police officer, member of the
department of public safety State
Police, or other officer, given pursuant to this section. Any
person who violates
an order given pursuant to the authority of
this section shall be this subsection is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than $500,
or
imprisoned confined in
the county jail
for not more than six
months, or both.
fined and imprisoned
(c) Notwithstanding any provision of this section to the
contrary, this section does not authorize:
(1) Any prohibition or impairment of the otherwise lawful
possession of privately owned firearms or ammunition; or
(2) Any prohibition of the otherwise lawful carrying of any
firearm or acquisition of any firearm or ammunition.
NOTE: The purpose of this bill is to prohibit the taking of
lawfully possessed arms and ammunition during a declared state of
emergency or riot.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.