H. B. 4325
(By Delegate D. Walker)
[Introduced February 3, 2010; referred to the
Committee on Natural Resources then the Judiciary.]
A BILL to repeal §20-2-19a of the Code of West Virginia, 1931, as
amended; to repeal §61-7-3, §61-7-5, §61-7-6 and §61-7-6a of
said code; to repeal §61-7A-1 and §61-7A-5 of said code; to
amend and reenact §8-12-5 and §8-12-5a of said code; to amend
and reenact §20-1-2 of said code; to amend and reenact §20-2-
5, §20-2-5c, §20-2-6, §20-2-6a, §20-2-37, §20-2-42l, §20-2-42p
and §20-2-46e of said code; to amend and reenact §20-7-9 and
§20-7-11 of said code; to amend said code by adding thereto a
new section, designated §27-5-6; to amend and reenact §44A-2-6
of said code; and to amend and reenact §61-7-2, §61-7-4, §61-
7-7 and §61-7-14 of said code, all relating to
the regulation
of firearms and other deadly weapons; repealing authority of
municipalities to prohibit the carrying of certain weapons;
clarifying that hunting statutes generally do not prohibit the
otherwise lawful carrying of handguns for self-defense
purposes; exempting persons who are licensed or otherwise authorized to lawfully carry concealed weapons from certain
limitations on how firearms may be carried or transported;
providing additional lawful means for the transportation of
regulated firearms in or on vehicles and vessels;
consolidating and clarifying certain penalty provisions;
requiring inclusion of notice of potential firearm disability
in notices of guardianship hearings; repealing requirement of
license to carry a concealed weapon; modifying eligibility
criteria for license to carry concealed weapons and scope of
license; conforming classes of persons prohibited from
possessing firearms to federal law; prohibiting certain
individuals from carrying concealed weapons; increasing
penalty for possession of firearms and carrying concealed
weapons by prohibited persons; providing additional procedures
for relief from disabilities; and defining terms.
Be it enacted by the Legislature of West Virginia:
That §20-2-19a of the Code of West Virginia, 1931, as amended,
be repealed; that §61-7-3, §61-7-5, §61-7-6 and §61-7-6a of said
code be repealed; that §61-7A-1 and §61-7A-5 of said code be
repealed; that §8-12-5 and §8-12-5a of said code be amended and
reenacted; that §20-1-2 of said code be amended and reenacted; that
§20-2-5, §20-2-5c, §20-2-6, §20-2-6a, §20-2-37, §20-2-42l, §20-2-
42p and §20-2-46e of said code be amended and reenacted; that §20-
7-9 and §20-7-11 of said code be amended and reenacted; that said
code be amended by adding thereto a new section, designated §27-5-6; that §44A-2-6 of said code be amended and reenacted; and that
§61-7-2, §61-7-4, §61-7-7 and §61-7-14 of said code be amended and
reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND
MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST
MUNICIPALITIES.
§8-12-5. General powers of every municipality and the governing
body thereof.
In addition to the powers and authority granted by: (i) The
Constitution of this state; (ii) other provisions of this chapter;
(iii) other general law; and (iv) any charter, and to the extent
not inconsistent or in conflict with any of the foregoing except
special legislative charters, every municipality and the governing
body thereof shall have plenary power and authority therein by
ordinance or resolution, as the case may require, and by
appropriate action based thereon:
(1) To lay off, establish, construct, open, alter, curb,
recurb, pave or repave and keep in good repair, or vacate,
discontinue and close, streets, avenues, roads, alleys, ways,
sidewalks, drains and gutters, for the use of the public, and to
improve and light the same, and have them kept free from
obstructions on or over them which have not been authorized pursuant to the succeeding provisions of this subdivision; and,
subject to such terms and conditions as the governing body shall
prescribe, to permit, without in any way limiting the power and
authority granted by the provisions of article sixteen of this
chapter, any person to construct and maintain a passageway,
building or other structure overhanging or crossing the airspace
above a public street, avenue, road, alley, way, sidewalk or
crosswalk, but before any permission for any person to construct
and maintain a passageway, building or other structure overhanging
or crossing any airspace is granted, a public hearing thereon shall
be held by the governing body after publication of a notice of the
date, time, place and purpose of the public hearing has been
published as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area for the publication shall be the municipality:
Provided, That any permit so granted shall automatically cease and
terminate in the event of abandonment and nonuse thereof for the
purposes intended for a period of ninety days, and all rights
therein or thereto shall revert to the municipality for its use and
benefit;
(2) To provide for the opening and excavation of streets,
avenues, roads, alleys, ways, sidewalks, crosswalks and public
places belonging to the municipality and regulate the conditions
under which any such opening may be made;
(3) To prevent by proper penalties the throwing, depositing or permitting to remain on any street, avenue, road, alley, way,
sidewalk, square or other public place any glass, scrap iron,
nails, tacks, wire, other litter or any offensive matter or
anything likely to injure the feet of individuals or animals or the
tires of vehicles;
(4) To regulate the use of streets, avenues, roads, alleys,
ways, sidewalks, crosswalks and public places belonging to the
municipality, including the naming or renaming thereof, and to
consult with local postal authorities, the Division of Highways and
the directors of county emergency communications centers to assure
uniform, nonduplicative addressing on a permanent basis;
(5) To regulate the width of streets, avenues and roads, and,
subject to the provisions of article eighteen of this chapter, to
order the sidewalks, footways and crosswalks to be paved, repaved,
curbed or recurbed and kept in good order, free and clean, by the
owners or occupants thereof or of the real property next adjacent
thereto;
(6) To establish, construct, alter, operate and maintain, or
discontinue, bridges, tunnels and ferries and approaches thereto;
(7) To provide for the construction and maintenance of water
drains, the drainage of swamps or marshlands and drainage systems;
(8) To provide for the construction, maintenance and covering
over of watercourses;
(9) To control and administer the waterfront and waterways of
the municipality and to acquire, establish, construct, operate and maintain and regulate flood control works, wharves and public
landings, warehouses and all adjuncts and facilities for navigation
and commerce and the utilization of the waterfront and waterways
and adjacent property;
(10) To prohibit the accumulation and require the disposal of
garbage, refuse, debris, wastes, ashes, trash and other similar
accumulations whether on private or public property:
Provided,
That, in the event the municipality annexes an area which has been
receiving solid waste collection services from a certificated solid
waste motor carrier, the municipality and the solid waste motor
carrier may negotiate an agreement for continuation of the private
solid waste motor carrier services for a period of time, not to
exceed three years, during which time the certificated solid waste
motor carrier may continue to provide exclusive solid waste
collection services in the annexed territory;
(11) To construct, establish, acquire, equip, maintain and
operate incinerator plants and equipment and all other facilities
for the efficient removal and destruction of garbage, refuse,
wastes, ashes, trash and other similar matters;
(12) To regulate or prohibit the purchase or sale of articles
intended for human use or consumption which are unfit for use or
consumption, or which may be contaminated or otherwise unsanitary;
(13) To prevent injury or annoyance to the public or
individuals from anything dangerous, offensive or unwholesome;
(14) To regulate the keeping of gunpowder and other combustibles;
(15)
To prohibit the otherwise lawful ownership, possession,
control or storage of gunpowder or ammunition for firearms
by
directly or indirectly regulating the keeping of gunpowder and
other combustibles is prohibited;
(15) (16) To make regulations guarding against danger or
damage by fire;
(16) To arrest, convict and punish any individual for carrying
about his or her person any revolver or other pistol, dirk, bowie
knife, razor, slingshot, billy, metallic or other false knuckles or
any other dangerous or other deadly weapon of like kind or
character;
(17) To arrest, convict and punish any person for importing,
printing, publishing, selling or distributing any pornographic
publications;
(18) To arrest, convict and punish any person for keeping a
house of ill fame, or for letting to another person any house or
other building for the purpose of being used or kept as a house of
ill fame, or for knowingly permitting any house owned by him or her
or under his or her control to be kept or used as a house of ill
fame, or for loafing, boarding or loitering in a house of ill fame,
or frequenting same;
(19) To prevent and suppress conduct and practices which are
immoral, disorderly, lewd, obscene and indecent;
(20) To prevent the illegal sale of intoxicating liquors, drinks, mixtures and preparations;
(21) To arrest, convict and punish any individual for driving
or operating a motor vehicle while intoxicated or under the
influence of liquor, drugs or narcotics;
(22) To arrest, convict and punish any person for gambling or
keeping any gaming tables, commonly called "A, B, C," or "E, O,"
table or faro bank or keno table, or table of like kind, under any
denomination, whether the gaming table be played with cards, dice
or otherwise, or any person who shall be a partner or concerned in
interest, in keeping or exhibiting the table or bank, or keeping or
maintaining any gaming house or place, or betting or gambling for
money or anything of value;
(23) To provide for the elimination of hazards to public
health and safety and to abate or cause to be abated anything which
in the opinion of a majority of the governing body is a public
nuisance;
(24) To license, or for good cause to refuse to license in a
particular case, or in its discretion to prohibit in all cases, the
operation of pool and billiard rooms and the maintaining for hire
of pool and billiard tables notwithstanding the general law as to
state licenses for any such business and the provisions of section
four, article thirteen of this chapter; and when the municipality,
in the exercise of its discretion, refuses to grant a license to
operate a pool or billiard room, mandamus may not lie to compel the
municipality to grant the license unless it shall clearly appear that the refusal of the municipality to grant a license is
discriminatory or arbitrary; and in the event that the municipality
determines to license any business, the municipality has plenary
power and authority and it shall be the duty of its governing body
to make and enforce reasonable ordinances regulating the licensing
and operation of the businesses;
(25) To protect places of divine worship and to preserve peace
and order in and about the premises where held;
(26) To regulate or prohibit the keeping of animals or fowls
and to provide for the impounding, sale or destruction of animals
or fowls kept contrary to law or found running at large;
(27) To arrest, convict and punish any person for cruelly,
unnecessarily or needlessly beating, torturing, mutilating,
killing, or overloading or overdriving or willfully depriving of
necessary sustenance any domestic animal;
(28) To provide for the regular building of houses or other
structures, for the making of division fences by the owners of
adjacent premises and for the drainage of lots by proper drains and
ditches;
(29) To provide for the protection and conservation of shade
or ornamental trees, whether on public or private property, and for
the removal of trees or limbs of trees in a dangerous condition;
(30) To prohibit with or without zoning the location of
occupied house trailers or mobile homes in certain residential
areas;
(31) To regulate the location and placing of signs,
billboards, posters and similar advertising;
(32) To erect, establish, construct, acquire, improve,
maintain and operate a gas system, a waterworks system, an electric
system or sewer system and sewage treatment and disposal system, or
any combination of the foregoing (subject to all of the pertinent
provisions of articles nineteen and twenty of this chapter and
particularly to the limitations or qualifications on the right of
eminent domain set forth in articles nineteen and twenty of this
chapter), within or without the corporate limits of the
municipality, except that the municipality may not erect any system
partly without the corporate limits of the municipality to serve
persons already obtaining service from an existing system of the
character proposed and where the system is by the municipality
erected, or has heretofore been so erected, partly within and
partly without the corporate limits of the municipality, the
municipality has the right to lay and collect charges for service
rendered to those served within and those served without the
corporate limits of the municipality and to prevent injury to the
system or the pollution of the water thereof and its maintenance in
a healthful condition for public use within the corporate limits of
the municipality;
(33) To acquire watersheds, water and riparian rights, plant
sites, rights-of-way and any and all other property and
appurtenances necessary, appropriate, useful, convenient or incidental to any system, waterworks or sewage treatment and
disposal works, as aforesaid, subject to all of the pertinent
provisions of articles nineteen and twenty of this chapter;
(34) To establish, construct, acquire, maintain and operate
and regulate markets and prescribe the time of holding the same;
(35) To regulate and provide for the weighing of articles sold
or for sale;
(36) To establish, construct, acquire, maintain and operate
public buildings, municipal buildings or city halls, Auditoriums,
arenas, jails, juvenile detention centers or homes, motor vehicle
parking lots or any other public works;
(37) To establish, construct, acquire, provide, equip,
maintain and operate recreational parks, playgrounds and other
recreational facilities for public use and in this connection also
to proceed in accordance with the provisions of article two,
chapter ten of this code;
(38) To establish, construct, acquire, maintain and operate a
public library or museum or both for public use;
(39) To provide for the appointment and financial support of
a library board in accordance with the provisions of article one,
chapter ten of this code;
(40) To establish and maintain a public health unit in
accordance with the provisions of section two, article two, chapter
sixteen of this code, which unit shall exercise its powers and
perform its duties subject to the supervision and control of the West Virginia Board of Health and State Bureau for Public Health;
(41) To establish, construct, acquire, maintain and operate
hospitals, sanitarians and dispensaries;
(42) To acquire, by purchase, condemnation or otherwise, land
within or near the corporate limits of the municipality for
providing and maintaining proper places for the burial of the dead
and to maintain and operate the same and regulate interments
therein upon terms and conditions as to price and otherwise as may
be determined by the governing body and, in order to carry into
effect the authority, the governing body may acquire any cemetery
or cemeteries already established;
(43) To exercise general police jurisdiction over any
territory without the corporate limits owned by the municipality or
over which it has a right-of-way;
(44) To protect and promote the public morals, safety, health,
welfare and good order;
(45) To adopt rules for the transaction of business and the
government and regulation of its governing body;
(46) Except as otherwise provided, to require and take bonds
from any officers, when considered necessary, payable to the
municipality, in its corporate name, with such sureties and in a
penalty as the governing body may see fit, conditioned upon the
faithful discharge of their duties;
(47) To require and take from the employees and contractors
such bonds in a penalty, with such sureties and with such conditions, as the governing body may see fit;
(48) To investigate and inquire into all matters of concern to
the municipality or its inhabitants;
(49) To establish, construct, require, maintain and operate
such instrumentalities, other than free public schools, for the
instruction, enlightenment, improvement, entertainment, recreation
and welfare of the municipality's inhabitants as the governing body
may consider necessary or appropriate for the public interest;
(50) To create, maintain and operate a system for the
enumeration, identification and registration, or either, of the
inhabitants of the municipality and visitors thereto, or the
classes thereof as may be considered advisable;
(51) To require owners, residents or occupants of factory-
built homes situated in a factory-built rental home community with
at least ten factory-built homes, to visibly post the specific
numeric portion of the address of each factory-built home on the
immediate premises of the factory-built home of sufficient size to
be visible from the adjoining street: Provided, That in the event
if no numeric or other specific designation of an address exists
for a factory-built home subject to the authorization granted by
this subdivision, the municipality has the authority may to provide
a numeric or other specific designation of an address for the
factory-built home and require that it be posted in accordance with
the authority otherwise granted by this section.
(52) To appropriate and expend not exceeding twenty-five cents per capita per annum for advertising the municipality and the
entertainment of visitors;
(53) To conduct programs to improve community relations and
public relations generally and to expend municipal revenue for such
purposes;
(54) To reimburse applicants for employment by the
municipality for travel and other reasonable and necessary expenses
actually incurred by the applicants in traveling to and from the
municipality to be interviewed;
(55) To provide revenue for the municipality and appropriate
the same to its expenses;
(56) To create and maintain an Employee Benefits Fund which
may not exceed one tenth of one percent of the annual payroll
budget for general employee benefits and which is set up for the
purpose of stimulating and encouraging employees to develop and
implement cost-saving ideas and programs and to expend moneys from
the fund for these purposes;
(57) To enter into reciprocal agreements with governmental
subdivisions or agencies of any state sharing a common border for
the protection of people and property from fire and for emergency
medical services and for the reciprocal use of equipment and
personnel for these purposes;
(58) To provide penalties for the offenses and violations of
law mentioned in this section, subject to the provisions of section
one, article eleven of this chapter, and such penalties may not exceed any penalties provided in this chapter and chapter sixty-one
of this code for like offenses and violations; and
(59) To participate in a purchasing card program for local
governments authorized and administered by the State Auditor as an
alternative payment method.
§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) The provisions of section five of this article Except as
otherwise provided in subsection (b) of this section,
notwithstanding any provision of this chapter to the contrary,
neither a municipality nor the governing body of any municipality
may limit the right of any person to purchase, possess, transfer,
own, carry, transport, sell or store any revolver, pistol, rifle or
shotgun firearm or any parts, components or ammunition or
ammunition components to be used therewith for any firearm nor to
so regulate the keeping of gunpowder so as to directly or
indirectly prohibit the ownership of the ammunition. Nothing
herein shall in any way 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 subdivision (16), section five of this
article or from enforcing any such ordinance or resolution: Provided, That any municipal ordinance in place as of the effective
date of this section shall be excepted from the provisions of this
section: Provided, however, That no provision in this section may
be construed to limit the authority of a municipality to restrict
the commercial use of real estate in designated areas through
planning or zoning ordinances.
(b) Subsection (a) of this section does not apply to any
planning or zoning ordinances that restrict the commercial use of
real estate in designated areas.
(c) In this section, "firearm" means any firearm or antique
firearm, as those terms are defined in section two, article seven,
chapter sixty-one of this code.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-2. Definitions.
As used in this chapter, unless the context clearly requires
a different meaning:
"Agency" means any branch, department or unit of the state
government, however designated or constituted.
"Aircraft" has the same meaning as in section one, article
two-a, chapter twenty-nine of this code.
"Alien" means any person not a citizen of the United States.
"Ammunition" means ammunition or cartridge cases, primers,
bullets or propellant powder designed for use in any firearm.
"Bag limit" or "creel limit" means the maximum number of
wildlife which may be taken, caught, killed or possessed by any
person.
"Big game" means elk, deer, black bears, wild boars and wild
turkeys.
"Bona fide resident, tenant or lessee" means a person who
permanently resides on the land.
"Citizen" means any native-born citizen of the United States
and foreign-born persons who have procured their final
naturalization papers.
"Closed season" means the time or period during which it
shall
be is unlawful to take any wildlife as specified and limited by the
provisions of this chapter.
"Commission" means the Natural Resources Commission.
"Commissioner" means a member of the advisory commission of
the Natural Resources Commission.
"Director" means the Director of the Division of Natural
Resources.
"Firearm" has the same meaning as in section two, article
seven, chapter sixty-one of this code.
"Fishing" or "to fish" means the taking, by any means, of
fish, minnows, frogs or other amphibians, aquatic turtles and other
forms of aquatic life used as fish bait.
"Fur-bearing animals" include: (a) The mink; (b) the weasel;
(c) the muskrat; (d) the beaver; (e) the opossum; (f) the skunk and civet cat, commonly called polecat; (g) the otter; (h) the red fox;
(i) the gray fox; (j) the wildcat, bobcat or bay lynx; (k) the
raccoon; and (l) the fisher.
"Game" means game animals, game birds and game fish.
as herein
defined
"Game animals" include: (a) The elk; (b) the deer; (c) the
cottontail rabbits and hares; (d) the fox squirrels, commonly
called red squirrels, and gray squirrels and all their color phases
- red, gray, black or albino; (e) the raccoon; (f) the black bear;
and (g) the wild boar.
"Game birds" include: (a) The anatidae, commonly known as
swan, geese, brants and river and sea ducks; (b) the rallidae,
commonly known as rails, sora, coots, mudhens and gallinule; (c)
the limicolae, commonly known as shorebirds, plover, snipe,
woodcock, sandpipers, yellow legs and curlews; (d) the galliformes,
commonly known as wild turkey, grouse, pheasants, quails and
partridges (both native and foreign species); (e) the columbidae,
commonly known as doves; (f) the icteridae, commonly known as
blackbirds, redwings and grackle; and (g) the corvidae, commonly
known as crows.
"Game fish" include: (a) Brook trout; (b) brown trout; (c)
rainbow trout; (d) golden rainbow trout; (e) largemouth bass; (f)
smallmouth bass; (g) spotted bass; (h) striped bass; (i) chain
pickerel; (j) muskellunge; (k) walleye; (l) northern pike; (m) rock
bass; (n) white bass; (o) white crappie; (p) black crappie; (q) all sunfish species; (r) channel catfish; (s) flathead catfish; (t)
blue catfish, (u) sauger; and (v) all game fish hybrids.
"Handgun" has the same meaning as in section two, article
seven, chapter sixty-one of this code.
"Hunt" means to pursue, chase
, catch or take any wild birds or
wild animals
Provided, That the definition of "hunt" does not
include an except in any officially sanctioned and properly
licensed field trial, water race or wild hunt
as long as that field
trial is not other than a shoot-to-retrieve field trial.
"Lands" means land, waters and all other appurtenances
connected therewith.
"Loaded", with respect to a firearm, has the same meaning as
in section two, article seven, chapter sixty-one of this code.
"Migratory birds" means any migratory game or nongame birds
included in the terms of conventions between the United States and
Great Britain and between the United States and United Mexican
States, known as the Migratory Bird Treaty Act, for the protection
of migratory birds and game mammals concluded, respectively, August
16, 1916, and February 7, 1936.
"Motor vehicle" has the same meaning as in section one,
article one, chapter seventeen-a of this code.
"Motorboat" means any vessel propelled by an electrical,
steam, gasoline, diesel or other fuel-propelled or fuel-driven
motor, regardless of whether the motor is the principal source of
propulsion, but, for the purposes of section eleven, article seven of this chapter and all succeeding sections of that article, does
not include any vessel for which the United States Bureau of
Customs, or its federal agency successor, has issued a valid marine
document as provided by federal law.
"Nonresident" means any person who is
a citizen of the United
States and who has not been a domiciled resident of the State of
West Virginia for a period of thirty consecutive days immediately
prior to the date of his or her application for a license or permit
except any full-time student of any college or university of this
state, even though he or she is paying a nonresident tuition not a
resident.
"Open season" means the time during which the various species
of wildlife may be legally caught, taken, killed or chased in a
specified manner,
and shall include both the first and the last day
of the season or period as designated by the Director.
"Person", except
as otherwise defined where specifically
provided otherwise elsewhere in this chapter,
means the plural
"persons" and shall include individuals, includes natural persons,
partnerships,
limited liability companies, corporations or other
legal entities.
"Personal watercraft" means:
(1) A small vessel of less than 16 feet in length that:
(A) Uses an inboard motor powering a water jet pump as its
primary source of motive power; and
(B) Is designed to be operated by a person sitting, standing or kneeling on the vessel, rather than the conventional manner of
sitting or standing inside the vessel; or
(2) "Specialty prop-crafts," which are vessels similar in
appearance and operation to a vessel described in part (a) of this
definition, but which are powered by an outboard motor or
propeller-driven motor.
"Preserve" means all duly licensed private game farmlands, or
private plants, ponds or areas, where hunting or fishing is
permitted under special licenses or seasons other than the regular
public hunting or fishing seasons.
"Protected birds" means all wild birds
not included within the
definition of other than "game birds" and "unprotected birds".
"Regulated firearm" means any firearm other than a handgun.
"Resident" means any person who is a citizen of the United
States
or an alien who has been lawfully admitted for permanent
residence, as that term is defined in 8 U.S.C. §1101, and:
who has
been
(1) Is a domiciled resident of
the State of West Virginia this
state and, except for temporary absences, has resided in this state
for
a period of not less than thirty consecutive days
or more
immediately
prior to preceding the date
of his or her application
on which the person applies for
any license or permit
Provided,
That a under this chapter;
(2) Is an active duty member of the Armed Forces of the United
States
who is stationed beyond the territorial limits of whose permanent duty station is located outside this state, but who was
a resident of this state at the time of his or her entry into
such
service and any the Armed Forces of the United States; or
(3) Is a full-time student of any
college or university of
higher education institution, as defined in section two, article
one, chapter eighteen-b of this code, located within this state,
even though he or she is paying including any full-time student of
a state institution of higher education, as defined in section two,
article one, chapter eighteen-b of this code, who pays a
nonresident tuition.
shall be considered a resident under the
provisions of this chapter
"Roadside menagerie" means any place of business, other than
a commercial game farm, commercial fish preserve, place or pond,
where any wild bird, game bird, unprotected bird, game animal or
fur-bearing animal is kept in confinement for the attraction and
amusement of the people for commercial purposes.
"Small game" includes all game animals,
furbearing fur-bearing
animals and game birds except
elk, deer, black bears, wild boars
and wild turkeys big game.
"Take" means to
hunt, shoot,
pursue, lure, kill, destroy,
catch, capture, keep in captivity, gig, spear, trap, ensnare, wound
or injure any wildlife, or attempt to do so
Provided, That the
definition of "take" does not include an except in any officially
sanctioned and properly licensed field trial, water race or wild
hunt
as long as that field trial is not other than a shoot-to-retrieve field trial.
"Unprotected birds"
shall include: (a) The English sparrow;
(b) the European starling; and (c) the cowbird.
"Vehicle" has the same meaning as in section one, article one,
chapter seventeen-a of this code.
"Vessel" means every description of watercraft, other than a
seaplane on the water, used or capable of being used as a means of
transportation on water;
"Wild animals" means all mammals native to the State of West
Virginia occurring either in a natural state or in captivity,
except house mice or rats.
"Wild birds"
shall include all birds other than: (a) Domestic
poultry - chickens, ducks, geese, guinea fowl, peafowls and
turkeys; (b) psittacidae, commonly called parrots and parakeets;
and (c) other foreign cage birds such as the common canary, exotic
finches and ring dove. All wild birds, either: (i) Those occurring
in a natural state in West Virginia; or (ii) those imported foreign
game birds, such as waterfowl, pheasants, partridges, quail and
grouse, regardless of how long raised or held in captivity, shall
remain wild birds under the meaning of this chapter.
"Wildlife" means wild birds, wild animals, game
and animals,
fur-bearing animals, fish (including minnows), reptiles,
amphibians, mollusks, crustaceans and all forms of aquatic life
used as fish bait, whether dead or alive.
"Wildlife refuge" means any land set aside by action of the Director as an inviolate refuge or sanctuary for the protection of
designated forms of wildlife.
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-5. Unlawful methods of hunting and fishing and other unlawful
acts.
(a) Except as authorized by the Director
or otherwise provided
by the Legislature in another provision of this chapter, it is
unlawful at any time for any person to:
(1) Shoot
at or
attempt to shoot any wild bird or animal
unless it is
plainly visible to him or her in plain sight;
(2) Dig out, cut out or smoke out, or in any manner take or
attempt to take, any live wild animal or wild bird out of its den
or place of refuge;
except as may be authorized by rules
promulgated by the Director or by law
(3) Make use of, or take advantage of, any artificial light in
hunting, locating
or attracting
taking, trapping or killing any
wild bird or wild animal, or to attempt to do so, while having in
his or her
immediate physical possession or subject to his or her
actual physical control, or
for while any person accompanying him
or her
to have has in his or her
immediate physical possession or
subject to his or her
actual physical control, any
regulated
firearm, whether cased or uncased, bow, arrow, or both, or other
implement or device
, other than handguns, suitable for taking
killing or trapping a wild bird or animal,
Provided, That it is lawful to hunt or take except when the person:
(A) Hunts raccoon, opossum or skunk by the use of artificial
light;
subject to the restrictions set forth in this subdivision:
Provided, however, That it is lawful to hunt or take
(B) Hunts coyotes by the use of amber- or red-colored
artificial light;
subject to the restrictions set forth in this
subdivision. No person is guilty of a violation of this subdivision
merely because he or she or
(C) Looks for, looks at, attracts or makes motionless a wild
bird or wild animal with or by the use of an artificial light
without taking the wild bird or wild animal, unless
at the time he
or she has in his or her possession the person:
(i) Possesses:
(I) A
regulated firearm, whether cased or uncased
, unless the
person is a person described in subsection (c) of this section;
(II) A bow, arrow, or both; or
(III) Any other implement or device
, other than firearms,
suitable for taking, killing or trapping a wild bird or wild
animal
; or
unless the
(ii) Uses an artificial light (other than the
head lamps
headlights of
an automobile or other land conveyance a vehicle that
is attached to, a part of, or used from within or upon
any vehicle
an automobile or other land conveyance.
Any person violating the provisions of this subdivision shall be
guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than one hundred dollars nor more than
five hundred dollars and shall be imprisoned in the county jail for
not less than ten days nor more than one hundred days;
(4) Hunt
for, take, kill, wound or shoot at wild animals or
wild birds from
an airplane or other airborne conveyance, an
automobile, or other land conveyance, or from a motor-driven water
conveyance, except as authorized by rules promulgated by the
Director any aircraft, vehicle or motorboat, except when the person
possesses a Class Q permit issued pursuant to section forty-six-e
of this article and hunts from a motor vehicle in accordance with
the terms of that permit;
(5) Take any beaver or muskrat by any means other than by trap;
(6)
Catch, capture, take or kill by Use any seine, net, bait,
trap or snare or like device of any kind
to take or facilitate the
taking of any wild turkey, ruffed grouse, pheasant or quail;
(7) Destroy or attempt to destroy needlessly or willfully the
nest or eggs of any wild bird or
have in his or her possession
possess the nest or eggs
of any wild bird unless
authorized to do
so under rules promulgated by or under the person possesses a permit
issued by the Director;
(8)
Except as provided in section six of this article, Carry
an uncased or loaded gun about his or her person any regulated
firearm in any of the woods of this state, except
during the open
firearms hunting season for wild animals and nonmigratory wild birds
within any county of the state, unless he or she has in his or her possession a permit, in writing, issued to him or her by the
Director: Provided, That this section may not prohibit when:
(A) The regulated firearm is not loaded and:
(i) Is broken down in a nonfunctioning state;
(ii) Is in a closed case, bag, box or other container that has
a lid, a cover or a closing mechanism with a zipper, snap or buckle,
which lid, cover or closing mechanism must be opened for a person
to gain access to the regulated firearm; or
(iii) Ammunition capable of being discharged from that
regulated firearm is not readily accessible for immediate use; or
(B) The person:
(i) Is otherwise lawfully hunting during an open firearms
hunting season;
(ii) Is otherwise lawfully hunting
or taking of an unprotected
species of wild animals,
and wild birds
and or migratory
wild birds;
during the open season in the open fields, open water and open
marshes of the state
(iii) Possesses a permit issued by the Director;
(iv) Carries the regulated firearm in accordance with the
provisions of section six of this article;
(v) Possesses or transports the regulated firearm in a vehicle
or vessel in accordance with the provisions of subdivision (10) of
this subsection; or
(vi) Is a person described in subsection (c) of this section;
(9)
Have in his or her possession a Knowingly possess or transport any crossbow with a nocked bolt
a loaded firearm or a
firearm from the magazine of which all shells and cartridges have
not been removed, in or on any vehicle or
conveyance, or its
attachments, within the state, except as may otherwise be provided
by law or regulation. Except as hereinafter provided, between five
o'clock postmeridian of one day and seven o'clock antemeridian,
eastern standard time of the day following, any unloaded firearm or
crossbow, being lawfully carried in accordance with the foregoing
provisions, shall be so carried only when in a case or taken apart
and securely wrapped. During the period from the first day of July
to the thirtieth day of September, inclusive, of each year, the
foregoing requirements relative to carrying certain unloaded
firearms shall be permissible only from eight-thirty o'clock
postmeridian to five o'clock antemeridian, eastern standard time:
Provided, That the time periods for carrying unloaded and uncased
firearms are extended for one hour after the postmeridian times and
one hour before the antemeridian times established above if a hunter
is preparing to or in the process of transporting or transferring
the firearms to or from a hunting site, campsite, home or other
place of abode vessel except when the person possesses a Class Q
permit issued pursuant to section forty-six-e of this article and
a Class Y permit issued pursuant to section forty-two-w of this
article and is hunting from a motor vehicle in accordance with the
terms of those permits;
(10) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement by which wildlife may be taken after the
hour of five o'clock antemeridian on Sunday on private land without
the written consent of the landowner any wild animals or wild birds
except when a big game season opens on a Monday, the Sunday prior
to that opening day will be closed for any taking of wild animals
or birds after five o'clock antemeridian on that Sunday: Provided,
That traps previously and legally set may be tended after the hour
of five o'clock antemeridian on Sunday and the person so doing may
carry only a twenty-two caliber firearm for the purpose of humanely
dispatching trapped animals. Any person violating the provisions of
this subdivision is guilty of a misdemeanor and, upon conviction
thereof, in addition to any fines that may be imposed by this or
other sections of this code, shall be subject to a one hundred
dollar fine;
(11) Hunt with firearms or long bow while under the influence
of intoxicating liquor;
(10) Knowingly possess or transport any regulated firearm in
or on any vehicle or vessel, unless:
(A) The person is a person described in subsection (c) of this
section;
(B) The regulated firearm is not loaded and is possessed or
transported:
(i) During the months of July, August or September:
(I) Between the hours of four o'clock antemeridian and nine-
thirty o'clock postmeridian, if the person is preparing to or in the process of transporting or transferring the regulated firearm to or
from a hunting site, campsite, home or other place of abode; or
(II) Between the hours of five o'clock antemeridian and eight-
thirty o'clock postmeridian, if the person is not engaged in an
activity described in clause (I) of this subparagraph;
(ii) During any month other than July, August or September:
(I) Between the hours of six o'clock antemeridian and six
o'clock postmeridian, if the person is preparing to or in the
process of transporting or transferring the regulated firearm to or
from a hunting site, campsite, home or other place of abode; or
(II) Between the hours of seven o'clock antemeridian and five
o'clock postmeridian, if the person is not engaged in an activity
described in clause (I) of this subparagraph;
(iii) When ammunition capable of being discharged from that
regulated firearm is not readily accessible for immediate use;
(iv) In a closed case, bag, box or other container that has a
lid, a cover or a closing mechanism with a zipper, snap or buckle,
which lid, cover or closing mechanism must be opened for a person
to gain access to the regulated firearm;
(v) In a compartment that can be reached only by leaving the
vehicle or vessel;
(vi) In plain sight and secured in a rack or holder made for
the purpose of holding and securing a firearm; or
(vii) In plain sight with the action open or the weapon
stripped or, if the regulated firearm is of a type on which the action will not stay open or which cannot easily be stripped, in
plain sight; or
(C) The person possesses a Class Q permit issued pursuant to
section forty-six-e of this article and is hunting from a motor
vehicle in accordance with the terms of that permit;
(12) (11) Hunt
catch, take, kill, injure or pursue a wild
animal or bird with
the use of a ferret;
(13) (12) Buy raw furs, pelts or skins of fur-bearing animals
unless licensed to do so without a license issued by the Director
pursuant to section forty-nine of this article or, if licensed under
a resident county license or an agent's permit issued to an employee
of a resident county licensee, buy raw furs, pelts or skins of fur-
bearing animals outside the county or counties specified in the
resident county license;
(14) Catch, (13) Take
kill or attempt to
catch, take
or kill
any fish
at any time by any means other than by rod, line and hooks
with natural or artificial lures
unless otherwise authorized by law
or rules issued by the Director: Provided, That except when snaring
of any species of suckers, carp, fallfish
and or creek chubs;
shall
at all times be lawful
(15) (14) Employ or hire, or induce or persuade, by the use of
money or other things of value, or by any means, any person to hunt
take, catch or kill any wild animal or wild bird except those
species on which there is no closed season, or to fish for
catch,
take or kill any fish, amphibian or aquatic life
which that is protected by the provisions of this chapter or rules of the Director
or the sale of which is prohibited;
(16) (15) Hunt,
catch, take, kill, capture, pursue, transport,
possess or use any migratory
game or nongame birds
included in the
terms of conventions between the United States and Great Britain and
between the United States and United Mexican States for the
protection of migratory birds and wild mammals concluded,
respectively, the sixteenth day of August, one thousand nine hundred
sixteen, and the seventh day of February, one thousand nine hundred
thirty-six, except during the time and in the manner and numbers
prescribed by the Federal Migratory Bird Treaty Act
, and regulations
made thereunder;
(17) Kill, (16) Take
catch or
have in his or her possession,
living or dead, possess any
wild bird other than a game protected
bird,
or expose for sale or transport within or without the state
any
protected bird
except as aforesaid no part of the plumage, skin
or body of any protected bird shall be sold or sell or
had in
possession for possess for the purpose of sale
any protected bird,
except mounted or stuffed plumage, skin, bodies or heads of
the
protected birds legally taken and stuffed or mounted,
irrespective
regardless of whether the
protected bird
is alive or was captured
within
or without this state;
except the English or European sparrow
(passer domesticus), starling (sturnus vulgaris) and cowbird
(molothrus ater), which may not be protected and the killing thereof
at any time is lawful
(18) (17) Use dynamite or any like explosive or poisonous
mixture placed in any waters of the state
for the purpose of killing
or taking to fish;
Any person violating the provisions of this
subdivision is guilty of a felony and, upon conviction thereof,
shall be fined not more than five hundred dollars, or imprisoned for
not less than six months nor more than three years, or both fined
and imprisoned
(19) have a bow and gun, or have a gun and any arrow or arrows,
(18) Unless the person is a person described in subsection (c)
of this section, simultaneously possess in the fields or woods:
at
the same time
(A) A bow or any arrow or arrows; and
(B) A regulated firearm;
(20) Have (19) Carry about his or her person a crossbow in the
woods or fields or use a crossbow to hunt
for, take or attempt to
take any wildlife, unless the person possesses a Class Y permit
issued pursuant to section forty-two-w of this article;
(21) (20) Take or attempt to take turkey, bear, elk or deer
with any arrow unless the arrow is equipped with a point having at
least two sharp cutting edges measuring in excess of three fourths
of an inch wide;
(22) (21) Take or attempt to take any wildlife with an arrow
having an explosive head or shaft, a poisoned arrow or an arrow
which would affect wildlife by any chemical action;
(23) (22) Shoot an arrow across any public highway or from
any aircraft,
motor-driven watercraft motorboat,
motor vehicle or other
land conveyance;
(24) (23) Permit any dog owned by him or her or under his or
her control to chase, pursue or follow upon the track of any wild
animal or wild bird, either day or night, between May 1 and August
15 next following
: Provided, That
a person may train dogs
may be
trained on wild animals and wild birds, except deer and wild
turkeys, and
hold or conduct field trials
may be held or conducted
on the grounds or lands of the owner or by his or her bona fide
tenant or tenants or upon the grounds or lands of another person
with his or her written permission or on public lands, at any time
:
Provided, however, That nonresidents may not train dogs in this
state at any time except during the legal small game hunting season
:
Provided further, That the person training
said dogs
does may not
have firearms or other implements in his or her possession carry
about his or her person during the closed season on wild animals and
wild birds:
(i) Any regulated firearm unless the person is a person
described in subsection (c) of this section; or (ii) any implement
of hunting, other than a firearm, whereby wild animals or wild birds
could be taken
or killed;
(25) (24) Conduct or participate in a field trial, shoot-to-
retrieve field trial, water race or wild hunt hereafter referred to
as trial
: Provided, That any person, group of persons, club or
organization may hold
such the trial at any time of the year upon
obtaining a permit
as is provided for in pursuant to section fifty-six of this article. The person responsible for obtaining the permit
shall prepare and keep an accurate record of the names and addresses
of all persons participating in
said the trial, and make
same the
record readily available for inspection by any
conservation officer
authorized to enforce the provisions of this chapter upon request;
(26) Except as provided in section four of this article,
(25) Hunt
catch, take, kill or attempt to hunt, catch, take or
kill any wild animal, wild bird or wild fowl except during the open
season
for that species established by
rule of the Director;
as
authorized by subdivision (6), section seven, article one of this
chapter
(27) (26) Hunt
any wild animal or wild bird on public lands on
Sunday after five o'clock antemeridian,
is prohibited; and except
to tend traps previously and legally set;
(27) Hunt any wild animal or wild bird after the hour of five
o'clock antemeridian on Sunday if the following Monday is the
opening day of a big game hunting season in that county or other
geographical zone designated by the Director for the applicable big
game hunting season, except to tend traps previously and legally
set;
(28)
Hunt any wild animal or wild bird after the hour of five
o'clock antemeridian on Sunday on private land without the written
consent of the landowner, except to tend traps previously and
legally set;
(29)(A) Hunt
catch, take, kill, trap, injure or pursue with firearms or other implement which wildlife can be taken, any wild
animal or wild bird on private lands on Sunday after the hour of
five o'clock antemeridian
, except to tend traps previously and
legally set. Provided, That the provisions
(B)(i) Paragraph (A) of this subdivision
do does not apply in
any county until the county commission of the county holds an
election on the question of whether the provisions of
paragraph (A)
of this subdivision prohibiting hunting on Sunday shall apply within
the county and the voters approve the allowance of hunting on Sunday
in the county. The election shall be determined by a vote of the
resident voters of the county in which the hunting on Sunday is
proposed to be authorized. The county commission of the county in
which Sunday hunting is proposed shall give notice to the public of
the election by publication of the notice as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for the
publication shall be the county in which the election is to be held.
The date of the last publication of the notice shall fall on a date
within the period of the fourteen consecutive days next preceding
the election.
(ii) On the local option election ballot shall be printed the
following:
Shall hunting on Sunday be authorized in _________ County?
[ ] Yes [ ] No
(Place a cross mark in the square opposite your choice.)
(iii) Any local option election to approve or disapprove of the
proposed authorization of Sunday hunting within a county shall be
in accordance with procedures adopted by the commission. The local
option election may be held in conjunction with a primary or general
election, or at a special election. Approval shall be by a majority
of the voters casting votes on the question of approval or
disapproval of Sunday hunting at the election.
(iv) If a majority votes against allowing Sunday hunting, no
election on the issue may be held for a period of 104 weeks. If a
majority votes "yes" no election reconsidering the action may be
held for a period of five years. A local option election may
thereafter be held if a written petition of qualified voters
residing within the county equal to at least five percent of the
number of persons who were registered to vote in the next preceding
general election is received by the county commission of the county
in which Sunday hunting is authorized. The petition may be in any
number of counterparts. The election shall take place at the next
primary or general election scheduled more than ninety days
following receipt by the county commission of the petition required
by this subsection
: Provided, That the issue may not be placed on
the ballot until all statutory notice requirements have been met;
No local law or regulation providing any penalty, disability,
restriction, regulation or prohibition of Sunday hunting may be
enacted, and the provisions of this article preempt all regulations,
rules, ordinances and laws of any county or municipality in conflict with this subdivision
(30) While tending traps after the hour of five o'clock
antemeridian on Sundays as authorized by subdivisions (26) through
(28) of this subsection or paragraph (A), subdivision (29) of this
subsection, carry about his or her person any regulated firearm
other than a twenty-two caliber firearm that is carried for the
purpose of humanely dispatching trapped animals, unless the person
is a person described in subsection (c) of this section; or
(29) (31) Hunt or conduct hunts for a fee where the hunter is
not physically present in the same location as the wildlife being
hunted within
West Virginia this state.
(b) The Legislature fully occupies and preempts the field of
regulation of Sunday hunting and the possession and transportation
of firearms in vehicles and vessels. Any rule of the director or
county or municipal ordinance, rule, resolution, policy,
administrative action or other official act regulating Sunday
hunting or the possession or transportation of firearms in vehicles
and vessels, except as provided in subdivisions (10), (26), (27),
(28), (29) and (30), subsection (a) of this section, is void.
(c) The persons described in this subsection are:
(1) Any officer, agent or employee of the United States, this
state, any political subdivision of this state or any other state
or political subdivision thereof, who is authorized by law to carry
firearms in the course of performance of his or her official duties;
(2) Any qualified law-enforcement officer as defined in 18 U.S.C. § 926B;
(3) Any qualified retired law-enforcement officer as defined
in 18 U.S.C. § 926C;
(4) Any person who is a licensed to carry concealed weapons
pursuant to section four, article seven, chapter sixty-one of this
code;
(5) Any person who is not a resident of this state, is at least
twenty years of age, and possesses a current, valid, statewide
license to carry a firearm or concealed weapon issued by any other
state or political subdivision thereof.
§20-2-5c. Protection of bald eagles and golden eagles; unlawful
acts; criminal penalties; forfeitures; license
revocation.
(a)
It is unlawful at any time for any Except as otherwise
provided by subsection (d) of this section, no person
to take, may
hunt, possess, transport, import, export or process, sell or offer
for sale, buy, barter or trade or offer to buy, barter or trade at
any time or in any manner, any bald eagle, also commonly known as
the American eagle, or any golden eagle, alive or dead, or any part,
nest or egg
thereof of
the foregoing eagles any bald eagle or golden
eagle, or
to attempt to do any of these acts.
(b)
Anyone Except as otherwise provided in subsection (c) of
this section, any person who violates
the provisions subsection (a)
of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $500 nor more than $5,000,
or imprisoned confined in
the county jail
for not less than sixty days
nor more than one year, or both.
fined and imprisoned One half of
any fine imposed shall be paid to any person or persons providing
information that leads to the arrest and conviction of
anyone any
person for a first offense of violating
the provisions subsection
(a) of this section.
(c) For a second or subsequent conviction for a violation of
subsection (a) of this section, a person is guilty of a felony and
,
upon conviction thereof, shall be fined not less than $5,000 nor
more than $10,000 and imprisoned in
the penitentiary a state
correctional facility for not less than one year nor more than two
years. An amount equal to one half of the fine imposed, not
exceeding $2,500, shall be paid to the person or persons providing
information that leads to the arrest and conviction of
anyone any
person for a second or subsequent violation of
the provisions
subsection (a) of this section.
(d) "Take" is defined as including any means to pursue, hunt,
wound, kill, capture, collect, poison, or molest any bald eagle or
golden eagle, or any part, nest or egg thereof, or to knowingly and
willfully destroy the nest or eggs of any such eagles.
(e) Nothing in (d) This section
may be construed to prohibit
does not apply to the
taking hunting, possession or transportation
of bald
eagles or golden eagles
legally under as authorized by the
current federal Eagle Protection Act
, as amended, 16
USC §668a
U.S.C. §§668 through 668d,
and or the current federal regulations
promulgated pursuant to the Eagle Protection Act, as amended, 50
CFR
22.1 et seq. C.F.R. Part 22.
(f) (e) All wildlife, merchandise,
guns firearms, traps, nets
and other equipment, vessels, vehicles, aircraft and other means of
transportation used in taking, possessing, transporting, importing,
exporting, selling or offering for sale, purchasing or bartering or
offering to purchase or barter any bald
eagle or golden eagle or
part, nest, or egg
thereof of any bald eagle or golden eagle, or in
attempting to do any of these acts in violation of this section,
shall be forfeited, at the time of conviction, to the state.
(g) (f) Upon conviction of taking, possessing, transporting,
importing, exporting or processing, selling or offering for sale,
buying, bartering or trading or offering to buy, barter or trade any
bald or golden eagle, alive or dead, or any part, nest or egg
thereof of
the foregoing bald eagles or golden eagles, or of
attempting to do any of these acts,
the Director shall revoke the
person's hunting licenses
of such person or persons may be revoked
and
such person or persons shall not
be issued any issue the person
a new hunting
licenses for a period of license until ten years
from
after the date of conviction.
§20-2-6. Carrying gun firearm on landowner's land not prohibited.
Notwithstanding any
other provisions provision of this chapter
to the contrary,
it shall be lawful for a bona fide resident,
landowner of this state, any member of said landowner's family and
any bona fide tenant
of said landowner, to or lessee may carry
an uncased gun a firearm at any time,
regardless of whether
the bona
fide resident, tenant or lessee is accompanied by or without a dog
or whether the firearm is loaded or encased, in
their the bona fide
resident, tenant or lessee's regular pursuits in caring for and
looking after
such landowner's livestock or poultry on his
or her
land and on any
other lands
leased or rented by him the bona fide
resident, tenant or lessee rents or leases for livestock or poultry
husbandry purposes
, if the bona fide resident, tenant or lessee is
not prohibited by federal law or section seven, article seven,
chapter sixty-one of this code from possessing firearms and is not
carrying the firearm in violation of any provision of article seven,
chapter sixty-one of this code.
§20-2-6a. Carrying a concealed handgun handguns not prohibited.
(a) Notwithstanding any provision of this
code chapter, rules
established by the Director or any county or municipal ordinance,
rule, policy, administrative action or other official act to the
contrary,
a except as otherwise provided by federal law or chapter
sixty-one of this code, any person
licensed to carry a concealed
weapon pursuant to the provisions of section four, article seven,
chapter sixty-one of this code who is not prohibited at the time
from possessing a firearm pursuant to the provisions of section
seven, article seven, chapter sixty-one of this code or by any
applicable federal law, may
, for self-defense, the defense of others
and other lawful purposes, own, possess, carry,
a handgun in a
concealed manner for self defense purposes transfer, transport, store and keep handguns and parts, components and ammunition for
handguns:
(1) In any state, county, municipal or other public park,
forest, wildlife management area or wildlife refuge;
(2) On any state, county, municipal or other publicly-owned
trail;
(3) While afield hunting,
fishing, hiking
or camping;
or
(4) While in or on
a motor any vehicle
, vessel or other means
of transportation or conveyance on land or water; or
(5) While engaging in any other activity regulated by this
chapter or rules promulgated by the director.
(b)
When a person owns, possesses, carries, transfers,
transports, stores or keeps a handgun or parts, components or
ammunition for a handgun as provided by subsection (a) of this
section:
(1) The person shall be presumed to be owning, possessing,
carrying, transferring, transporting, storing or keeping the handgun
and parts, components and ammunition for the handgun for self-
defense or another lawful purpose other than hunting; and
(2) The handgun and parts, components and ammunition for the
handgun shall be presumed to not be an implement of hunting, unless
the person uses the handgun to take wildlife and the taking was not
in justifiable self-defense or the defense of another person or
property. The provisions of
(c) This section
shall does not
exempt authorize any person
from obtaining any hunting or fishing to hunt or fish without any
license or stamp required by
the Division of Natural Resources this
chapter.
(d) Notwithstanding any existing or future provision of this
chapter to the contrary:
(1) This section supersedes and preempts any prohibition or
restriction contained in or authorized by any other provision of
this chapter, rules of the Director or county or municipal
ordinance, pertaining to the ownership, possession, carrying,
transfer, transportation, storage or keeping of handguns and parts,
components and ammunition for handguns;
(2) No future act of the Legislature may be construed to amend
or supersede this section unless the act specifically and expressly
amends or repeals this section;
(3) This section is supplemental and additional to existing
rights to bear arms, and nothing in this section shall impair or
diminish such rights; and
(4) This section shall be liberally construed to effectuate its
purpose.
§20-2-37. Display of license, etc., by persons in possession of
hunting, fishing, etc., paraphernalia.
(a) Any person
having in his or her possession who possesses
in or near the fields or woods, or about the streams of this state,
any dog,
gun regulated firearm, fishing rod or other hunting,
fishing or trapping paraphernalia, shall, upon demand of any officer authorized to enforce the provisions of this chapter
:
(1) State his or her correct name and address; and
shall
(2) Exhibit for inspection:
(a) (A) All
applicable licenses and documents
set forth
specified in
subsection (a), section thirty-six of this article; and
(b) (B) All
firearms and wildlife
which and regulated firearms
he or she
may have in his or her possession possesses.
Nothing in
(b) This section
may be construed as authorizing does not
authorize searches
or seizures that violate article three, section
six of the West Virginia Constitution or the Fourth Amendment to the
Constitution of the United States
nor and may
anything in this
section not be construed as effecting a waiver of these
Constitutional provisions.
§20-2-42l. Class A-l small arms handgun hunting stamp.
Notwithstanding the provisions of section two, article seven,
chapter sixty-one of this code,
(a) A Class A-l stamp is a
small arms handgun hunting stamp.
To be eligible to get a Class A-l stamp, a person must be legally
able to possess a firearm. If a person is otherwise qualified, The
Director may issue a Class A-l stamp
may be issued to
a any person
who is at least twenty-one years of age,
or older who holds a valid
resident or nonresident hunting license or
to a person who is
a
resident sixty-five years of age or older exempt from the
requirement of obtaining a hunting license,
but a Class A-l stamp
shall never be issued to a person who and who has
not been convicted of a misdemeanor associated with the
use misuse of firearms or
dangerous weapons,
or who has
not been convicted of a
felony or is
not prohibited by federal law or section seven, article seven,
chapter sixty-one of this code from possessing or transporting
handguns.
The director may issue a lifetime Class A-1 stamp to any
person qualified to obtain a Class A-1 stamp who holds a valid Class
A-L or AB-L license or is a resident sixty years of age or older
exempt from the requirement of obtaining a hunting license.
(b) A holder of a Class A-1 stamp shall purchase the
appropriate base license before participating in the activities
specified in this section, except as noted. A Class A-l stamp
entitles the
licensee to hunt, as otherwise permitted by the
provisions of this chapter, but only during small game and big game
seasons as established annually by the Director, holder of the stamp
to hunt as otherwise permitted by this chapter during the small game
and big game hunting seasons established by the director with
either
a
revolver or pistol which handgun that has a barrel at least four
inches in length.
Unless otherwise permitted by the Code of West
Virginia, a Class A-1 stamp entitles the licensee to carry or have
in his or her possession only one revolver or pistol when going to
and from his or her home or residence and a place of hunting and
while hunting: Provided, That the Class A-l stamp may not be valid
unless the licensee has in his or her possession a valid resident
or nonresident hunting license or is a resident sixty-five years of
age or older. Provided, however, That at all times, when not actually hunting, the revolver or pistol shall be unloaded. While
hunting, the licensee shall carry the revolver or pistol in an
unconcealed and easily visible place. The fee for the stamp is eight
dollars. A lifetime Class A-1 stamp may be issued to anyone
otherwise qualified and holding a valid Class A-L or AB-L license
or to a resident sixty-five years of age or older The lifetime Class
A-1 stamp will be issued in a form prescribed by the director.
(c) The fee for a Class A-1 stamp is $8. The fee for a lifetime
Class A-I stamp is $75.
All fees collected for the issuance of the
Class A-l and lifetime Class A-l stamps shall be deposited in the
state Treasury and credited to the law-enforcement section of the
Division of Natural Resources. The fees collected shall be paid out
of the State Treasury on order of the director and used solely for
law-enforcement purposes.
(d) The director shall revoke any
Class A-1 stamp or lifetime
Class A-1 stamp issued to a person
who is convicted of a misdemeanor
associated with the
use misuse of firearms or dangerous weapons or
convicted of a felony, or any person who becomes
legally unable to
possess a firearm prohibited by federal law or section seven,
article seven, chapter sixty-one of this code from possessing or
transporting handguns. A holder of a Class A-1 stamp or lifetime
Class A-1 stamp who becomes ineligible to continue holding the stamp
shall immediately surrender the stamp to the Division of Natural
Resources.
A holder of a Class A-l or lifetime Class A-l stamp is
required to purchase the appropriate base license before participating in the activities specified in this section, except
as noted.
§20-2-42p. Class RG resident and Class RRG nonresident gun firearm
deer hunting stamp for an additional deer.
(a) The director
has the authority to may issue
a Class RG
resident and
a Class RRG nonresident
gun firearm deer hunting
stamp
stamps when
deemed the director considers the taking of additional
deer essential for the proper management of
the wildlife resources.
These The director shall not issue a Class RG or Class RRG stamp to
any person who is prohibited by federal law or section seven,
article seven, chapter sixty-one of this code from possessing or
transporting firearms.
(b) Class RG and Class RRG stamps
allow authorize the
licensee
holders of those stamps to hunt and take an additional deer as
designated by the director.
A holder of a Class RG or Class RRG
stamp shall purchase the appropriate base license before
participating in the activities specified in this section, except
as noted.
(c) The fee for a Class RG stamp is $20.
and The fee for a
Class RRG stamp is $40.
(d) The director shall revoke any Class RG or Class RRG stamp
issued to a person who becomes prohibited by federal law or section
seven, article seven, chapter sixty-one of this code from possessing
or transporting firearms. A holder of a Class RG or Class RRG stamp
who becomes prohibited by federal law or section seven, article seven, chapter sixty-one of this code from possessing or
transporting firearms, shall immediately surrender the stamp to the
Division of Natural Resources.
(e) The director may
promulgate propose legislative rules in
accordance with article three, chapter twenty-nine-a of this code
governing the issuance,
and use
and revocation of
these Class RG and
a Class RRG stamps.
These stamps require that the licensee purchase
the appropriate base license before participating in the activities
specified in this section, except as noted.
§20-2-46e. Class Q special hunting permit for disabled persons.
(a) A Class Q permit is a special statewide hunting permit
entitling authorizing the permittee to hunt
all legal species of
game during the designated hunting seasons from a motor vehicle in
accordance with the provisions of
subsection (d) of this section.
(b)
A permit form shall be furnished by The director
shall
furnish a permit form to an applicant who:
meets the following
requirements
(1)
He or she Is permanently disabled in the lower extremities;
and
(2)
He or she Holds a valid resident or nonresident statewide
hunting license
a senior citizens license or is
otherwise exempt
from the license requirement.
(c)
Before the director may issue a Class Q permit, a licensed
physician
must shall certify the applicant's permanent disability
by completing the permit form. When completed, the permit form constitutes a Class Q permit. The Class Q permit and a completed
license application shall be submitted to the division, which
will
shall issue
a wallet sized card to the permittee
a permit card not
larger than a driver's license and in a form suitable for carrying
in a wallet, similar to a driver's license.
The card and all other
documents and identification required to be carried by this article
shall be in the permittee's possession when hunting.
(d) A Class Q
permit entitles the holder to permittee may hunt
from a motor vehicle and
notwithstanding the provisions of
subdivision (9), section five of this article to possess a loaded
regulated firearm
or, if the Class Q permittee possesses a Class Y
permit, a crossbow with a nocked bolt, in
and discharge it from a
motor vehicle
but only under the following circumstances if:
(1) The motor vehicle is stationary;
(2) The engine of the motor vehicle is not operating;
(3) The permittee and one individual, who is at least sixteen
years of age, to assist the permittee, are the only occupants of the
motor vehicle;
(4) The individual assisting the permittee
may does not hunt
with a firearm, bow or
cross-bow crossbow while assisting the
permittee;
(5) The
motor vehicle is not parked on the right-of-way of any
public road or highway; and
(6) The permittee
observes complies with all other
pertinent
applicable laws and
regulations rules.
(e) The director may propose
legislative rules
for legislative
approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code
setting forth specifying the
qualifications of applicants and the permitting process.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-9. Violations of chapter generally; penalties.
(a) Any person
violating who violates any
of the provisions
provision of this chapter or rules promulgated under the provisions
of this chapter,
the punishment for which
another punishment is not
prescribed
in this chapter,
shall be is guilty of a misdemeanor and,
upon conviction thereof, shall for each offense be fined not less
than $20 nor more than $300,
or confined in jail
for not less than
ten
or days nor more than one hundred days, or
be both,
fined and
imprisoned within the limitations aforesaid and, in the case of a
violation by a corporation, every officer or agent
thereof directing
of the corporation who directs or
engaging engages in
such the
violation
shall be is guilty of a misdemeanor and, upon conviction
thereof, shall be subject to the same penalties
and punishment as
herein provided
Provided, That in this subsection for a violation
committed by a natural person.
(b) Any person
violating who violates subdivision (3),
subsection (a), section five, article two of this chapter
shall be
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $100 nor more than $500 and shall be
imprisoned
confined in jail for not less than ten days nor more than one hundred days.
Provided, however, That
(c) Any person who unlawfully hunts any wild animal or wild
bird after the hour of five o'clock antemeridian on Sunday, in
violation of subdivision (26), (27), (28) or (29), subsection (a),
section five, article two of this chapter, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $20 nor more than $400, confined in jail for not less than ten
days nor more than one hundred days, or both.
(d) Any person who uses dynamite or any like explosive or
poisonous mixture placed in any waters of the state to fish, in
violation of subdivision (17), subsection (a), section five, article
two of this chapter, is guilty of a felony and, upon conviction
thereof, shall be fined not more than $500, imprisoned for not less
than six months nor more than three years, or both.
(e) Any person who
is in violation of violates section twenty-
seven, article two of this chapter
as a result of their failure by
failing to have a valid Class E nonresident hunting and trapping
license, as defined by section forty-two-d, article two of this
chapter, or a valid Class EE nonresident bear hunting license, as
defined by section forty-two-e, article two of this chapter,
shall
be is guilty of a misdemeanor and, upon conviction thereof, shall
be fined not less than $250 nor more than $500,
or confined in jail
for not less than ten
days nor more than one hundred days, or both.
fined and imprisoned: Provided further, That
(f) Any person who
is in violation of violates section twenty-seven, article two of this chapter
as a result of their failure by
failing to have a Class F nonresident fishing license, as defined
by section forty-two-f, article two of this chapter,
shall be is
guilty of a misdemeanor and, upon conviction thereof,
shall be fined
not less than $100 nor more than $300,
or confined in jail
for not
less than ten
days nor more than one hundred days, or both.
fined
and imprisoned: And provided further, That
(g) Any person
violating who violates any parking or speeding
regulations as promulgated by the director on any state parks, state
forests, public hunting and fishing areas and all other lands and
waters owned, leased or under the control of the Division of Natural
Resources
shall be is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $2 nor more than $100,
or
imprisoned confined in jail
for not more than ten days, or both.
fined and imprisoned
§20-7-11. Motorboats and other terms defined Definitions.
As used In this section and
subsequent the succeeding sections
of this article:
unless the context clearly requires a different
meaning
(1)
"Vessel" means every description of watercraft, other than
a seaplane on the water, used or capable of being used as a means
of transportation on water; "Commissioner" has the same meaning as
in section one, article one, chapter seventeen-a of this code.
(2)
"Motorboat" means any vessel propelled by an electrical,
steam, gas, diesel or other fuel propelled or driven motor, whether or not the motor is the principal source of propulsion, but does not
include a vessel which has a valid marine document issued by the
bureau of customs of the United States government or any federal
agency successor thereto;
(3) "Owner" means
a any person, other than a lienholder, having
the property in or title to a motorboat
The term and includes a
person entitled to the use or possession of a motorboat subject to
an interest in another person, reserved or created by agreement and
securing payment or performance of an obligation, but
the term
excludes a lessee under a lease not intended as security.
(4) "Commissioner" means the commissioner of the Division of
Motor Vehicles;
(5) "Director" means the director of the Division of Natural
Resources; and
(6) "Personal watercraft" means a small vessel of less than
sixteen feet in length which uses an inboard motor powering a water
jet pump as its primary source of motive power and which is designed
to be operated by a person sitting, standing, or kneeling on the
vessel, rather than the conventional manner of sitting or standing
inside the vessel. For purposes of this article, the term "personal
watercraft" also includes "specialty prop-crafts" which are vessels
similar in appearance and operation to a personal watercraft but
which are powered by an outboard motor or propeller driven motor.
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-6. Disposition of firearms and ammunition owned or possessed
by committed persons.
(a) The court or mental hygiene commissioner shall, upon a
person becoming prohibited from possessing firearms or ammunition
by 18 U.S.C. § 922(g)(4) or subdivision (4), subsection (a), section
seven, article seven, chapter sixty-one of this code, by reason of
the entry of a final commitment order by a circuit court pursuant
to section four of this article, the entry of a final order of
incompetence to stand trial pursuant to section three, article six-a
of this chapter, acquittal in a criminal case by reason of mental
illness as provided in section four, article six-a of this chapter,
becoming a mentally incompetent ward subject to article fifteen,
chapter forty-four of this code, or the entry of a final order of
guardianship entered by a circuit court pursuant to section
thirteen, article two, chapter forty-four-a of this code:
(1) Notify the person that, as a result of the adjudication or
commitment, the person is prohibited from possessing firearms and
ammunition by 18 U.S.C. § 922(g)(4), subdivision (4), subsection
(a), section seven, article seven, chapter sixty-one of this code
or a combination thereof;
(2) Notify the person that if he or she has a concealed weapons
license, the onset of firearm disabilities under federal or state
law requires the person to immediately surrender the license to the
issuing sheriff;
(3) Query the State Police concealed weapons license registry maintained pursuant to section four, article seven, chapter sixty-
one of this code to determine whether the person is licensed in this
state to carry concealed weapons and, if so, notify the sheriff of
the licensee's adjudication or commitment and probable
disqualification from continued licensure immediately in electronic
form and within ten days on a form prescribed by the Attorney
General;
(4) Order the person to immediately surrender to the
conservator designated pursuant to subdivision (5) of this
subsection or, if no conservator has been designated, the court or
mental hygiene commissioner until a conservator is designated, any
firearms and ammunition the person owns or possesses; and
(5) Determine the appropriate public or private individual or
entity to act as conservator for firearms and ammunition surrendered
pursuant to subdivision (2) of this subsection.
(b) In this section, the terms "firearm" and "ammunition" have
the same meanings as in section two, article seven, chapter sixty-
one of this code.
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND CONSERVATORSHIP ACT.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-6. Notice of hearing.
(a) Upon the filing of the petition and evaluation report, the
court shall promptly issue a notice fixing the date, hour and
location for a hearing to take place within sixty days.
(b) The alleged protected person shall be personally served with the notice, a copy of the petition and the evaluation report
not less than fourteen days before the hearing. The person may not
waive notice and a failure to properly notify the person shall be
jurisdictional.
(c) A copy of the notice, together with a copy of the petition,
shall be mailed by certified mail, return receipt requested, by the
petitioner, at least fourteen days before the hearing to all
individuals seven years of age or older and to all entities whose
names and post office addresses appear in the petition. In the case
of a missing person, a copy of the petition for the appointment of
a conservator shall be mailed by certified mail, return receipt
requested, by the petitioner, at least fourteen days before the
hearing to the last known address of the missing person. A copy of
certified mail return receipts shall be filed in the office of the
circuit clerk on or before the date of hearing. It is the
responsibility of the petitioner to obtain proper service and file
the appropriate documentation with the circuit clerk before the
hearing.
(d) The notice shall include a brief statement in large print
of the purpose of the proceedings and shall inform the alleged
protected person of the right to appear at the hearing, the right
to an attorney and the right to object to the proposed appointment.
Additionally, the notice shall include the following statement in
large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING
THAT YOU ARE INCAPACITATED
At the hearing you may lose many of your rights. A guardian
may be appointed to make personal decisions for you. A conservator
may be appointed to make decisions concerning your property and
finances. The appointment may affect control of how you spend your
money, how your property is managed and controlled, who makes your
medical decisions, where you live, whether you are allowed to vote
and other important rights.
If the court enters a final order
appointing a guardian or conservator for you, you may become
prohibited by federal law and/or state law from possessing firearms
and ammunition and/or carrying concealed weapons.
(e) No person may be appointed a guardian or conservator
without first receiving proper notice and having the opportunity to
be present at a hearing.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
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
offensive knife or 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
in
this subdivision and shall not be considered a deadly weapon or
concealable weapon
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 regard 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 include,
includes but is not be limited to, the instruments defined in
subdivisions (1) through (8), inclusive, of this section or other
deadly weapons of like kind or character which may be easily concealed on or about the person firearms and concealable weapons.
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, of
this article the term "deadly weapon" includes explosive, chemical,
biological and radiological materials. Notwithstanding any other
provision of this section However, for the purposes of section one-
a, article five, chapter eighteen-a of this code and section eleven-
a of this article, 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 any weapon, including a starting pistol,
which will or is designed to expel a projectile by action of an
explosion: Provided, That for the purposes of section seven of this article, the term "firearm" does not include an antique firearm
unless the antique firearm is used in the commission of a crime.
(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) "Aggravated felony" means any felony crime of violence,
felony drug offense or felony sexual offense.
(15) "Ammunition" means ammunition or cartridge cases, primers,
bullets, or propellant powder designed for use in any firearm other
than an antique firearm.
(16) "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 1898; or
(B) Any replica of any firearm described in paragraph (A) of
this subdivision if such 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;
or
(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.
(17) "Ballistic knife" means any knife that has a blade which
is forcefully expelled from the handle by means of a spring-loaded
device or a compressed gas that generates a propelling force.
(18) "Club" means an instrument that is specially designed,
made, or adapted for the purpose of inflicting serious bodily injury
or death by striking a person with the instrument, and includes but
is not limited to a blackjack, mace, metallic or false knuckles,
nightstick, nunchuka or tomahawk.
(19) "Concealable weapon" means any club, offensive knife,
handgun or other deadly weapons of like kind or character that may
be easily concealed on the person.
(20) "Conviction" or "convicted," for the purposes of
determining whether a person is disqualified from licensure to carry
concealed weapons or prohibited from possessing firearms or
concealed weapons, shall be determined in accordance with the law
of the jurisdiction in which the proceedings were held, but does not include any conviction which has been expunged, set aside, vacated
or for which a person has been pardoned, unless the expungement or
pardon expressly provides that the person may not be licensed to
carry concealed weapons or possess firearms.
(21) "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;
(B) Any state offense classified by the applicable laws of the
state in which the offense was committed as a misdemeanor and,
punishable by a term of imprisonment of two years or less.
(C) Any conviction whose effect is disregarded pursuant to
subdivision (20) of this section;
(D) Any offense other than an aggravated felony for which the
person has had civil rights restored, unless the restoration of
civil rights expressly provides that the person may not ship,
transport, possess or receive firearms or carry concealed weapons,
or unless less than five years have elapsed since the completion of
any sentence, probation, parole, other supervision and payment in
full of all fines, court costs and restitution; or
(E) Any aggravated felony for which the person has had civil
rights restored pursuant to a discretionary process in the
jurisdiction in which the offense was committed under which the
person was not entitled to restoration of civil rights as a matter of right and the person received restoration of civil rights based
upon an individualized determination and review of the person by the
officer, agency, board, commission, court or other tribunal granting
restoration of civil rights in which the person was granted
restoration of civil rights as an expressly, individually-named
person and not as a member of any group or class of persons, unless
the restoration of civil rights provides that the person may not
ship, transport, possess, carry or receive firearms or concealed
weapons or, under the laws of the jurisdiction in which the offense
was committed and civil rights were restored, the restoration of
civil rights failed to remove all legal disabilities under the laws
of that jurisdiction relating to shipping, transporting, possessing,
carrying or receiving firearms or concealed weapons, or unless less
than ten years have elapsed since the completion of any sentence,
probation, parole, other supervision and payment in full of all
fines, court costs and restitution.
(22) "Felony crime of violence":
(A) Means any felony that:
(i) Has as an element the use, attempted use, or threatened use
of physical force, against the person or property of another or the
presentment or use of a firearm or other deadly weapon, or
(ii) By its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense; and
(B) Includes without limitation, but is not limited to, the following offenses:
(i) Treason under section one, article one of this chapter;
(ii) Murder under sections one, two or three, article two of
this chapter;
(iii) Attempt to kill or injure by poison under section seven,
article two of this chapter;
(iv) Malicious wounding under subsection (a), section nine,
article two of this chapter;
(v) Assault during the commission of or attempt to commit a
felony under section ten, article two of this chapter;
(vi) Malicious assault or unlawful assault under section ten-b,
article two of this chapter;
(vii) Robbery or attempted robbery under section twelve,
article two of this chapter;
(viii) Kidnapping or holding a person hostage under section
fourteen-a, article two of this chapter;
(ix) First or second degree arson under sections one or two,
article three of this chapter;
(x) Causing injuries during an arson-related crime under
section seven, article three of this chapter, regardless of the
degree of the underlying arson offense involved;
(xi) Retaliating against a juror or witness for performing his
or her official duties in an official proceeding, in violation of
section twenty-seven, article five of this chapter, if such offense
involved actual violence or threats of violence;
(xii) Any sexually violent offense;
(xiii) Any attempt or conspiracy to commit any of the offenses
described in subparagraphs (i) through (xii) of this paragraph.
(23) "Felony drug offense" means:
(A) Any felony under article four, chapter sixty-a of this
code; or
(B) Any unlawful act committed in violation of federal law or
the law of any other state that:
(i) Is a felony or crime punishable by imprisonment for a term
exceeding one year in the jurisdiction in which the offense was
committed; and
(ii) Would, if committed in this state, based upon the facts
determined by the trier of fact beyond a reasonable doubt in the
proceedings in which the conviction was had, constitute an offense
described in paragraph (A) of this subdivision.
(24) "Felony sexual offense":
(A) Means any felony upon conviction of which a person is
required to register for any period of time as a sex offender under
article twelve, chapter fifteen of this code; and
(B) Includes, but is not limited to:
(i) Any offense under the following provisions of this chapter
that, at the time the offense was committed, was punishable as a
felony:
(I) Section fourteen, article two;
(II) Sections six, seven or twelve, article eight of this chapter; or
(III) Article eight-b, including the provisions of former
section six of said article, relating to the offense of sexual
assault of a spouse, which was repealed;
(IV) Article eight-c;
(V) Sections five or six, article eight-d;
(VI) Section fourteen-b, article three-c, as it relates to
violations of those provisions of this chapter that are listed in
clauses (I) through (IV) of this paragraph; or
(ii) Any unlawful act committed in violation of federal law or
the law of any other state that:
(I) Is a felony or crime punishable by imprisonment for a term
exceeding one year in the jurisdiction in which the offense was
committed; and
(II) Would, if committed in this state, based upon the facts
determined by the trier of fact beyond a reasonable doubt in the
proceedings in which the conviction was had, constitute an offense
described in subparagraph (i) of this paragraph.
(25) "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; or
(26) "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.
(27) "Indictment" includes an indictment or information in any court under which a crime punishable by imprisonment for a term
exceeding one year may be prosecuted.
(28) "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.
(29) "Law-enforcement officer" means any law-enforcement
officer or law-enforcement official, as those terms are defined in
section one, article twenty-nine, chapter thirty of this code.
(30) "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 magazine that is
locked in place in the firearm;
(C) Has live, unexpended ammunition anywhere 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.
(31)(A) Except as provided in paragraph (B) of this
subdivision, "misdemeanor crime of domestic violence" means an
offense that:
(i) Under the laws of the jurisdiction in which the offense was
committed, is a misdemeanor and, not a crime punishable by imprisonment for a term exceeding one year; 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)(i) A person shall not be considered to have been convicted
of such 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:
(aa) The case was tried by a jury; or
(bb) The person knowingly and intelligently waived the right
to have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted
of such an offense for purposes of this article if the conviction
has been expunged or set aside, or is an offense for which the
person has been pardoned or has had civil rights restored (if the
law of the applicable jurisdiction provides for the loss of civil
rights under such an offense) unless the pardon, expungement or restoration of civil rights expressly provides that the person may
not ship, transport, possess or receive firearms.
(32) "Offensive knife" means a:
(A) Knife with a blade over three and one-half inches;
(B) Hand instrument designed to cut or stab another by being
thrown, including but not limited to any throwing star or oriental
dart;
(C) Ballistic knife;
(D) Dagger, including but not limited to a dirk, stiletto, and
poniard;
(E) Bowie knife;
(F) Gravity knife;
(G) Switchblade knife;
(H) Sword; or
(I) Spear,
but does not include any 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.
(33) "Private property owner" means any property owner other
than:
(A) A public agency; or
(B) A lessee or other person charged with the care, custody or
control of any property owned, leased or controlled by a public
agency, except where the person is a lessee of a residential premises or is exercising temporary control over other premises the
person exclusively occupies as a temporary place of lodging.
(31) "Property owner" means an owner, lessee or other person
charged with the care, custody and control of real property. For
the purposes of this definition, "person" means an individual or any
entity which may acquire title to real property.
(32) "Public agency" means:
(A) This state or any political subdivision of this state;
(B) Any department, agency, authority, board, commission,
council, state institution of higher education as defined in section
two, article one, chapter eighteen-b of this code, airport operator
as defined in section two, article twenty-nine-b, chapter eight of
this code, government corporation or other entity or instrumentality
of this state or any political subdivision of this state;
(C) Any public agency within the meaning of section two,
article nine-a, chapter six of this code; or
(D) Any public body within the meaning of section two, article
one, chapter twenty-nine-b of this code;
(E) Any other entity or instrumentality:
(i) That receives a majority of its annual operating revenue
from funds appropriated by the Legislature, the governing body of
any political subdivision of this state, any entity described in
paragraph (B), (C) or (D) of this subdivision or a combination of
these sources; or
(ii) Whose chief executive or administrative officer or a majority of whose board of directors or substantially similar
governing body is elected, appointed or subject to the confirmation
of or removal by any entity otherwise described in this subdivision;
or
(F) Any officer, director, employee or other agent of any
entity described in paragraphs (A) through (E) of this subdivision.
(33) "Unloaded," with respect to a firearm, means the state of
a firearm not being loaded, as that term is defined in subdivision
(27) of this section.
§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 weapons shall apply to the sheriff of his or her the
county for the license, and in which he or she resides. Each
applicant 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 $90 unless the
applicant is exempt from payment of the fee under subsection-o of
this section. 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;
(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 at least 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 prohibited by section seven of
this article from possessing firearms or carrying concealed weapons;
(4) (5) That the applicant is not addicted to alcohol, a
controlled substance or a drug and is not an unlawful user thereof an inebriate as defined in section four, article one, chapter
twenty-seven of this code;
(5) (6) That the applicant has not been convicted of a felony
or of an act of violence involving the misuse of a deadly weapon;
(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;
(7) That the applicant is not under indictment for a felony;
offense or
(8) That the applicant 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) (9) That the applicant is physically and mentally competent
to carry the concealed weapon;
(9) That the applicant has not been adjudicated to be mentally
incompetent;
(10) That the applicant has qualified under the minimum
requirements set forth in subsection (d) of this section for
demonstrating competence in handling and firing the weapon:
Provided, That this requirement shall be waived in the case of a
renewal applicant who has previously qualified a handgun; and
(11) That the applicant authorizes the sheriff of the county,
or his or her designee, to whom the application is made to conduct
an investigation relative to the information contained in the
application.
(b) The sheriff to whom an application is made under this
section shall conduct an investigation including a nationwide
criminal background check, 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 statements made
by the applicant in the application relative to the criteria
specified in subsection (a) of this section are, in all material
respects, true and correct, and whether the applicant is qualified
for licensure under this section.
(c) Sixty dollars of the application fee and any fees for
replacement of lost or stolen licenses The sheriff shall forward
one-sixth of the application fee to the superintendent of the State
Police not later than the tenth day of the month following the month
in which the sheriff collected the fee. The sheriff shall forward one-sixth of the application fee to the courthouse facilities
improvement fund created by section six, article twenty-six, chapter
twenty-nine of this code, not later than the tenth day of the month
following the month in which the sheriff collected the fee. The
sheriff shall deposit the remaining two-thirds of each application
fee and the whole amount of all other fees received by the sheriff
shall be deposited by the sheriff under this section 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 concealed weapons license must
complete a training course demonstrate competence in handling and
firing a handgun by any one of the following, but no applicant shall
be required to submit to any additional demonstration of competence,
nor shall any proof of demonstrated competence expire: The
successful completion of any of the following courses fulfills this
training requirement
(1) Any Completion of any official National Rifle Association
handgun safety or training course;
(2) Any Completion of 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 Completion of any handgun training or safety course or
class conducted by a handgun instructor certified as such a handgun
instructor by the state in which the course or class was conducted
or by the National Rifle Association;
(4) Any Completion of any handgun training or safety course or
class conducted by any branch of the United States Military, Reserve
or National Guard;
(5) Evidence the person is licensed or has been previously
licensed in this state or a political subdivision thereof to carry
firearms or concealed weapons, unless the most recent license has
been revoked for cause and the revocation has not been vacated, set
aside, reversed or otherwise overruled; or
(6) Evidence the person is an honorably retired law-enforcement
officer exempt from payment of licensing fees pursuant to subsection
(o) of this section.
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 subsection.
(e) All concealed weapons license applications must be
notarized by a notary public duly licensed under article four,
chapter twenty-nine of this code of this state. 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 chapter.
(f) If the information in the application is found to be true
and correct, the sheriff shall issue a license. The sheriff shall
issue, reissue or deny the license within forty-five days after the
application is filed if all required background checks authorized
required 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 All licenses issued under this section shall be valid for
five years throughout the state for a period expiring on the
licensee's first birthday occurring more than four years but not
more than five years from the date of issue or, if the licensee is
a renewal applicant and the renewal license is issued prior to the
current license's expiration date, the licensee's first birthday
occurring more than four years but not more than five years from the
current license's expiration date, unless sooner revoked or voluntarily surrendered.
(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; and the telephone number of the
concealed weapons license verification service operated by the
superintendent of the State Police pursuant to subsection(1) of this
section. 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) (i) 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) (j) 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) (k) If a license is lost or destroyed, the person to whom
the license was issued licensee 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) (l) 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 and provide
instantaneous verification of the validity of any license issued
under this section to any criminal justice agency within the United
States twenty-four hours a day, seven days a week, electronically
or by telephone. The superintendent shall maintain and operate a
concealed weapons license verification service, which shall be
operational twenty-four hours a day, seven days a week, through a
dedicated telephone number, for the purpose of responding to law-
enforcement inquiries from any law-enforcement agency within the
United States concerning the validity of a license issued under this
section..
(n) 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 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) (m) 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. The sheriff shall revoke any license issued under this section if the licensee becomes unable to meet the
criteria for initial licensure specified in this section. Any
licensee under this section who becomes ineligible for continued
licensure shall immediately surrender the license to the issuing
sheriff.
(p) (n) 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) (o) Notwithstanding the provisions of subsection (a) of
this section, with respect to application by a former law-
enforcement officer honorably retired from agencies any agency
governed by article fourteen, chapter seven of this code; article
fourteen, chapter eight of this code; article two, chapter fifteen
of this code; and or 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) (p) Except as restricted or prohibited by the provisions
of this article or as otherwise prohibited by law, the issuance of
a concealed weapon permit license issued in accordance with the provisions of this section authorizes the holder of the permit
licensee to carry a concealed pistol or revolver weapons anywhere
on the lands or waters of this state.
(q)(1) The Attorney General shall, not later than June 30 and
December 31 of each year, notify the Governor, Attorney General and
concealed weapons licensing authority of each state in writing of
the provisions of this article and make written inquiry of whether
the other state will extend full faith and credit to licenses issued
under this section. The Attorney General shall negotiate and execute
reciprocity agreements on behalf of this state with other states
that require a reciprocity agreement to accord full faith and credit
to licenses issued pursuant to this section. The Attorney General
shall seek to establish, by reciprocity agreement or otherwise, the
extension of full faith and credit to West Virginia licenses by all
other states whose laws permit the same without a requirement for
any additional license, qualification or payment of any fee by a
West Virginia licensee. The Attorney General shall maintain efforts
to obtain a reciprocity agreement from any state that may generally
honor licenses issued by this state but affords greater recognition,
including exemptions from obtaining an additional license if
regularly employed, attending a higher education institution or
conducting a business in that state, to licenses issued by states
that have executed reciprocity agreements with that state. If a
reciprocity agreement is reached or full reciprocity otherwise
exists, the requirement to recontact the other state semiannually shall cease while the agreement is in force or full reciprocity is
otherwise in effect.
(2) For the purposes of participation in reciprocity with other
states, the official government-issued law-enforcement
identification card issued to a law-enforcement officer in this
state and a letter of authorization for a retired or medically
discharged member of the State Police to carry handguns issued by
the Superintendent of the State Police pursuant to §15-2-25 shall
be considered a concealed weapons license issued by this state.
(3) On the first day of each regular session of the
Legislature, the Attorney General shall publish and deliver to each
house of the Legislature a report enumerating:
(A) The states honoring West Virginia concealed weapons
licenses;
(B) The states that issue licenses similar to the license
described in this section that have declined to enter into
reciprocity agreements with this state and do not otherwise honor
licenses issued by this state, the reasons stated therefor and
whether each such state has a reciprocity agreement with any other
state or otherwise recognizes licenses issued by any other state;
(C) Specific recommendations for amending this section that
would result in additional states honoring concealed weapons
licenses issued under this section; and
(D) Recommendations on the feasibility and expedience of the
amendments proposed pursuant to paragraph (C) of this subdivision. The Legislature does not intend to enact any changes to this section
that would require existing licensees to complete new training or
otherwise substantially burden or inconvenience existing licensees.
§61-7-7. Persons prohibited from possessing firearms;
classifications; reinstatement of rights to possess;
offenses; penalties.
(a) Except as otherwise provided in this section, no person
shall may possess a firearm or, as such is defined in section two
of this article, who except in his or her residence or fixed place
of business, carry on his or her person any concealed weapon other
than a firearm or antique firearm, if that person:
(1) Has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year;
(2) Is habitually addicted to alcohol a fugitive from justice;
(3) Is an unlawful user of or habitually addicted to any
controlled substance;
(4) Has been adjudicated as a mental defective or who has been
involuntarily committed to a mental health facility institution
pursuant to the provisions of chapter twenty-seven of this code:
Provided, That once an individual has been adjudicated as a mental
defective or involuntarily committed to a mental institution, he or
she shall be duly notified that they are to immediately surrender
any firearms in their ownership or possession: Provided, however,
That the mental hygiene commissioner or circuit judge shall first make a determination of the appropriate public or private individual
or entity to act as conservator for the surrendered property;
(5) Is an alien illegally or unlawfully in the United States;
(6) Has been discharged from the Armed Forces under
dishonorable conditions;
(7) Having been a citizen of the United States, has renounced
his or her citizenship;
(8) Is subject to a domestic violence protective court order
that:
(A) Was issued after a hearing of which such person the
respondent received actual notice and at which such person the
respondent had an opportunity to participate;
(B) Restrains such person the respondent from harassing,
stalking or threatening an intimate partner of such person the
respondent or child of such the intimate partner or person
respondent, or engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury to the partner
or child; and
(C)(i) Includes a finding that such person the respondent
represents a credible threat to the physical safety of such the
intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use
or threatened use of physical force against such intimate partner
or child that would reasonably be expected to cause bodily injury;
or
(8) (9) Has 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 of said article 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 has been convicted in any
court of any jurisdiction of a comparable misdemeanor crime of
domestic violence.
(b) Subsection (a) of this section does not apply to:
(1) Any person who has been granted relief from disabilities
pursuant to the procedures specified in subsection (d) of this
section;
(2) Any person whom the Attorney General of the United States
has granted relief from disabilities pursuant to 18 U.S.C. § 925(b),
if the relief granted pertains to all causes for which the person
would otherwise be under disability under subsection (a) of this
section;
(3) With respect to any event causing a disability that
occurred in another state, any person who has received relief from
disabilities under the laws of the state in which the disabling
event occurred, if the relief granted effected the removal of
federal firearm disabilities otherwise applicable pursuant to 18 U.S.C. § 922(g) and the laws of the state in which relief was
granted;
(4) With respect to a disability under subdivision (4),
subsection (a) of this section, any person who has received any
relief from disability under any program or procedure that, under
the NICS Improvement Amendments Act of 2007, removes federal firearm
disabilities otherwise applicable pursuant to 18 U.S.C. § 922(g)(4);
or
(5) The person has received any combination of the forms of
relief described in subdivisions (1) through (4) of this subsection
if, as a combined result of all applicable grants of relief the
person has received, the person is not subject to any federal
firearms disability otherwise applicable pursuant to 18 U.S.C. §
922(g).
(c) Any person who violates the provisions of this subsection
(a) this section is shall be guilty of a misdemeanor felony and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than one thousand dollars or confined in the county
jail for not less than ninety days nor more than one year, or both
imprisoned for not less than one year nor more than ten years, fined
not more than $10,000, or both.
(b) Notwithstanding the provisions of subsection (a) 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 shall be
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 five thousand dollars, or both. The provisions
of subsection (c) of this section shall not apply to persons
convicted of offenses referred to in this subsection or to persons
convicted of a violation of this subsection.
(c) (d) Any person prohibited from possessing a firearm or
carrying a concealed weapon by the provisions of subsection (a) of
this section may petition the circuit court of the county in which
he or she resides to regain the ability to possess a firearm and or
the circuit court of any county in which any disabling event under
subsection (a) of this section occurred for relief from firearm
disabilities. The petitioner shall serve a copy of the petition on
the prosecuting attorney of the county in which the petition is
filed and the prosecuting attorney of any county in which the
petitioner was convicted of a criminal offense creating a disability
under subsection (a) of this section or the equivalent official of the United States or any other state in which any such conviction
occurred. The petitioner shall appear before the sheriff of the
county in which the petition is to be filed and submit to
fingerprinting for the purpose of a state and national criminal and
mental health background check and pay the costs of fingerprinting
and the background check. The sheriff shall provide the results of
the background check to the court, the petitioner and each party the
petitioner was required to serve a copy of the petition. The court
shall, upon request of the petitioner or any party the petitioner
is required to serve a copy of the petition, or may, upon its own
motion, conduct a hearing on the petition and receive remonstrances
and hear evidence and arguments for and against the petition before
granting or denying relief. Each party entitled to request a hearing
shall have at least fourteen days following the receipt of the
petitioner's criminal and mental health background check results to
request a hearing. The court may grant relief if the court finds by
clear and convincing evidence that the person is competent and
capable of exercising the responsibility concomitant with the
possession of a firearm, the court may enter an order allowing the
person to possess a firearm if such possession would not violate any
federal law: Provided, That a person prohibited from possessing a
firearm by the provisions of subdivision (4), subsection (a) of this
section may petition to regain the ability to possess a firearm in
accordance with the provisions of section five, article seven-a of
this chapter circumstances regarding the disability and the petitioner's record and reputation are such that the petitioner will
not be likely to act in a manner dangerous to public safety, that
the granting of the relief would not be contrary to the public
interest and that the possession of firearms by the petitioner
following the granting of relief would not violate any federal law.
§61-7-14. Right of certain persons private property owners to limit
possession of firearms deadly weapons on premises
private property.
Notwithstanding the provisions of this article, any owner,
lessee or other person charged with the care, custody and control
of real
(a) Except as otherwise provided in this section, a private
property owner may restrict or prohibit the carrying, openly or
concealed, of any firearm or deadly weapon on private property under
his or her the domain Provided, That for purposes of this section
"person" means an individual or any entity which may acquire title
to real property of the private property owner notwithstanding any
license or other authorization any person subject to the restriction
or prohibition has to carry the weapon.
(b) Any person carrying or possessing a firearm or other deadly
weapon on the property of another who refuses to either leave the
premises or temporarily relinquish possession of such firearm or
other any deadly weapon the person possesses or carries on private
property in violation of a restriction or prohibition on the carrying of that weapon established by the private property owner
pursuant to subsection (a) of this section, upon being lawfully
requested to do so by the private property owner, or to leave such
premises, while in possession of such firearm or other deadly
weapon, shall be is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than $1,000, or confined in the
county jail for not more than six months, or both. Provided, That
the provisions of
(c) Any restriction or prohibition on possessing or carrying
any weapon under this section shall not apply to those persons set
forth in subsections (3) through (6) of section six of this code any
officer, agent or employee of the United States, this state or any
political subdivision of this state, while such persons are that
person is acting in an official capacity. Provided, however, That
under no circumstances may any person possess or carry or cause the
possession or carrying of any firearm or other deadly weapon on the
premises of any primary or secondary educational facility in this
state unless such person is a law-enforcement officer or he or she
has the express written permission of the county school
superintendent.
NOTE: The purpose of this bill is to repeal the requirement of
obtaining a license to carry a concealed weapon. This bill prohibits
individuals who are prohibited by state law from possessing firearms
from carrying any concealed weapon other than a firearm outside the
person's residence or fixed place of business, increases the penalty
for possession of a firearm or carrying a concealed weapon by a prohibited possessor from a misdemeanor to a felony and, provides
additional means of obtaining relief from disabilities. This bill
continues the issuance of concealed weapons licenses to permit
qualifying West Virginia residents to obtain a license for
reciprocity purposes when traveling in states that require a license
and which will recognize a West Virginia license.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added