Concealed Carry Law

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February 2020

George L. Lyon, Jr. Arsenal Attorneys Fairfax Virginia About the Presenter and My Biases • People have strong views on firearms issues, I am no different. • I am a firearms enthusiast and strong supporter of Second Amendment Rights. • Firearm rights attorney and concealed carry instructor, holding instructor licenses from the Maryland State Police, District of Columbia Metropolitan Police and various NRA instructor certifications. • I was a plaintiff in federal court cases that legalized handguns in DC and forced DC to begin issuing concealed carry licenses. • I forced DC and Baltimore, MD to allow ownership and carriage of Tasers and stun guns. Definitions • Open Carry – carrying a firearm so that it is readily observable to an onlooker either on the person or in close proximity. • Concealed Carry – carrying a firearm on ones person or in close proximity so that it is not readily observable to an onlooker. • May issue – a permitting scheme whereby the issuing authority has the discretion to grant or deny a carry license or permit to an applicant based on that applicant’s showing of a need to carry a firearm. • Shall issue – a permitting scheme whereby the issuing authority’s discretion is limited to ensuring that the applicant has met objective criteria for the issuance of a carry license not related to a showing of need. • Permitless carry – sometimes called Constitutional carry. A scheme whereby persons are allowed to carry concealed firearms without grant of a permit or license. Gun Carry Provisions Vary Widely • Whether a permit or license is required to open and/or conceal carry. • Requirements to issue a permit or license. • Where guns may be carried. • What guns can be carried. • Training required to obtain a permit or license. • Whether the applicant must shoot a qualification test. • For how long the permit or license is good. • Requirements for informing law enforcement during an interaction. • The extent states recognize each other’s permits. Concealed Carry Regimes • Overwhelming majority of states and the District of Columbia are shall issue jurisdictions. • 17 states have adopted permitless carry: , , Arkansas, Idaho, , Kentucky, , Mississippi, Missouri, Montana (with exceptions for urban areas), New Hampshire, North Dakota, Oklahoma, South Dakota, , West Virginia and Wyoming. Some of those states limit the right of permitless carry to residents. All except for Vermont will also issue a carry permit or license for reciprocity purposes. • Handful of states are may issue: California (some counties effectively are shall issue and some counties effectively are no issue), Connecticut and Delaware (both effectively shall issue), Hawaii (effectively no issue), Maryland. Massachusetts, New Jersey, New York and the Virgin Islands. • Guam and are shall issue, but Northern Mariana Islands and American Samoa are no issue. Concealed Carry History • At adoption of the Second Amendment, there were few if any restrictions on peaceful carrying of arms • Early 1800s some states enacted laws prohibiting the carrying of concealed handguns, prompting challenges under state Second Amendment analogues. Concealed carry was thought ungentlemanly. • State v. Reid, 1 Ala. 612 (1840) (concealed carry may be prohibited where open carry is still allowed. But see Bliss v. Commonwealth, 12 Ky. 90 (1822) (invalidated concealed carry ban). • Nunn v. State, 1 Ga. 243 (1846) (struck down ban on openly carried pistols). • State v. Chandler, 5 La. Ann. 489 (1850) (citizens have right to open carry arms). • By the 20th Century most states prohibited the concealed carry of handguns without a permit but did not restrict open carry. Concealed Carry History • 1903 Vermont Supreme Court declared its state’s concealed carry law unconstitutional. Vermont has been permitless carry ever since. • Prior to Florida adopting shall issue concealed carry in 1987 most states were either may issue or no issue with respect to concealed carry. • Since 1987, states has gradually relaxed their laws in favor of shall issue concealed carry or permitless carry. • DC was the last jurisdiction in the continental US to adopt a permitting scheme (may issue) in 2014 as a result of a federal court decision and became shall issue in 2017 as a result of the Wrenn decision, discussed later. • Currently there are more than 18 million carry permits or licenses issued in the . Some persons hold licenses from more than one state. Racist Origins of Gun Carry Restrictions • Prior to the 20th Century, there were few limitations on the open carry of firearms by Whites. It was a different story for Blacks. • Antebellum laws (Slave Codes) generally prohibited African American slaves from keeping and bearing arms and imposed discretionary licensing on free blacks and mulattos or limited their firearm rights to their lands. • Post civil war, the Slave Codes were reenacted as the Black Codes, including prohibitions on the keeping and bearing of arms by freedmen or requiring permits from state officials. • Following passage of the 14th Amendment southern states enacted various laws to limit the rights of Blacks to carry firearms. See, e.g., Watson v. Stone, 148 Fla. 516, 524, 4 So. 2d 700 (1941) (licensing and bonding “statute was never intended to be applied to the white population.”) • Widely thought that New York’s 1911 , which adopted New York’s discretionary licensing scheme, was intended to disarm Italian and Eastern European immigrants. Second Amendment Issues Today • Heller and McDonald decisions holding there is a right to possess a handgun in the home for self-defense imply a right to carry a firearm outside the home for self-defense as well. • Heller cites presumptively valid laws prohibiting the carry of concealed weapons, the carrying of guns in sensitive places, or the carrying of dangerous and unusual weapons. If the Second Amendment’s right to keep and bear arms only extended to bearing arms in the home, presumably Heller would have so stated. • Heller extensively cited state cases relating to carrying weapons in expounding on the Second Amendment right to keep and bear arms. See District of Columbia v. Heller, 554 U.S. 570, 585 n. 9, 610-614 (2008). Circuit Split on Right to Carry • Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (upholding may issue scheme). • Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (upholding may issue). • Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (upholding may issue). • Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (invalidating Illinois’s no issue policy). • Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc) (holding no right to conceal carry). • Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) (invalidating D.C.’s may issue scheme). • Young v. Hawaii, Case No. 1:12-cv-00336 (July 24, 2018) (en banc review pending, but stayed) (holding a Second Amendment right to open carry). Typical Permitting Requirements • Laws vary considerably across the country. • Applicants generally must supply fingerprints to facilitate a background check. Prints are run through FBI criminal database and some state databases. • Most jurisdictions will accept fingerprint cards done by any law enforcement agency or by instructors licensed by the jurisdiction, e.g., Utah, Florida, Virginia. • Some jurisdictions do their own fingerprinting, e.g., , DC, or limit fingerprints to authorized agencies, e.g., Maryland requires fingerprints to be done through a Livescan vendor. • Most jurisdictions issue the permit with a photograph of the permit holder and require submission of passport size photographs. Typical Permitting Requirements

• Most but not all jurisdictions require evidence of firearm safety training. • Requirements vary widely among the states from no training to fairly extensive training. • California, Illinois, Maryland and DC require two days of firearms training. • Most jurisdictions require a day or less of firearms training. • Pennsylvania has no training requirement; Permitless carry jurisdictions plainly have no training requirement. • Proof of proficiency with a firearm through a shooting qualification of 25 to 50 rounds is not an unusual requirement. Qualifications are generally easy to pass even for a novice shooter. E.g., 70 percent score on a fairly large (B-27) silhouette target ranging from 3 to 15 yards. • Some jurisdictions require qualification with the gun(s) the applicant will carry. • Some jurisdiction will waive training requirements for former military or law enforcement personnel, e.g., Maryland. Typical Permitting Requirements • Issuing authority varies from state to state: state police (Maryland and Utah), local sheriff’s or police department (New York, Nevada, and California), or local court (Virginia and New Jersey). In Florida, the Commissioner of Agriculture issues carry licenses. • Some jurisdictions require applications be submitted in person or that the applicant be interviewed, e.g., California, Maryland, DC, and New York. Interviews typically are required in may issue jurisdictions as part of the process of establishing good cause. • Carry permit application fee vary by state. Typically the fee will be $100 or less. New York City handgun license fee is $340. • Most, but not all jurisdictions issue permits to non-residents. Permitting Restrictions • Applicants must not be prohibited under state and federal law from possessing, receiving and shipping firearms and ammunition. • All federal prohibitions apply: felons, persons involuntarily committed, domestic abusers, non-resident aliens, persons dishonorably discharged from military, persons under a domestic abuse restraining order, fugitives from justice, drug users, etc. cannot receive a permit. • States may have their own prohibitions: e.g., multiple misdemeanor convictions, misdemeanor assault or stalking convictions, alcohol or drug offenses, voluntary residential commitments, and prior firearms related offenses are some typical disqualifying offenses at the state level. • Even in shall issue jurisdictions, evidence of potential dangerousness or instability not resulting in conviction may lead to a denial. Areas Restricting Firearms Carry • Restrictions on carry vary by jurisdiction. • Federal law prohibits carry in federal buildings; post office regulations prohibit carry on USPS property. • Carriage in national parks and national forests is determined by state law. • State courthouses and elementary and secondary schools are almost universally prohibited. • State and local government buildings are often off limits. • Other areas that may be prohibited under state or local law include medical facilities, college campuses, houses of worship, public transportation, night clubs, or places posting no gun signs. Alcohol and Firearm Carry • In most jurisdictions it is permissible to carry into an establishment serving alcohol as long as the permit holder does not drink. This rule may not apply to permitless open carry (for example one may open carry in Virginia while consuming alcohol in a licensed establishment, but not while conceal carrying). • Whether no gun signs have the force of law will vary by state. In some jurisdictions carrying into an establishment with a no gun sign is a crime while in others the establishment must order you to leave and if you do not leave you can then be prosecuted for trespassing. • Generally, carrying while intoxicated is prohibited and is certainly a bad idea. Suspension, Revocation and Appeal • Carry permits are generally subject to suspension or revocation for violation of carry rules or arrest or conviction of serious crimes. • Permit holders have a right to appeal suspension or revocation either to an appeals board (e.g., DC and Maryland), or to through the court system. • Carry permit holders have a record of compliance with the law. In states with large numbers of permits like Florida and Texas, very few permits are revoked for criminal violations. • Permit holders tend to be six to ten times more law abiding than police. See https://crimeresearch.org/2015/02/comparing- conviction-rates-between-police-and-concealed-carry-permit- holders/. Reciprocity • Efforts to enact nationwide carry permit reciprocity in Congress have been unsuccessful. • Reciprocity varies greatly from state to state. • May issue jurisdictions refuse to recognize permits from other jurisdictions, even other may issue jurisdictions. • Utah and Florida permits are recognized by a large number of other states. • Virginia recognizes the permits of all other jurisdictions. • Some jurisdictions will not recognize non-resident permits, e.g., Colorado and South Carolina. Concealed v. Open Carry • Concealed v. open carry is hotly debated in the firearms community. • Open carry advocates claim that a right not exercised is a right lost. • Open carry advocates claim that the sight of a law-abiding person carrying a gun will deter crime. • Concealed carry advocates claim that an openly carried gun is less secure and an invitation for a criminal to attempt to take the gun away from the carrier. • Concealed carry advocates claim an openly carried gun makes the carrier a target for an active shooter or criminal, i.e., shoot me first. • Concealed carry advocates claim a concealed firearm is tactically superior as it allows the carrier to take a violent criminal by surprise. Concealed Carry Tactical Considerations • Need to keep the gun concealed. • Avoid printing or inadvertent exposure. • Risk of being SWATed by a frightened citizen seeing the gun or the outline of the gun under clothing. • Employers or associates may not be as gun friendly as you would wish. • Carry options: Tradeoff between concealment and accessibility. Can you get to the gun if a life-threatening situation develops. • Need to assure retention of the firearm even under physical exertion. • Dancing FBI Agent loses gun. • Risk of losing gun if attacked. • Need to assure that the firearm cannot be unintentionally discharged. • Firearm should be in a secure holster that covers the trigger guard or in a pocket or compartment with nothing that could get into the trigger guard and cause a negligent discharge. Interactions with Law Enforcement • States vary on the duty to disclose to law enforcement that a person is lawfulling carrying a concealed weapon. • Some states require disclosure in the course of an investigatory stop, e.g., D.C., Ohio & Utah. • Other states do not impose a duty to disclose, e.g., Florida, Maryland & Virginia. Carrier should consider whether disclosing will improve the odds for a favorable resolution of the stop. • In some states, police will be informed by dispatch when calling in a driver’s license. • Concealed carriers should be cautious in terms of making sudden movements which could be construed as reaching for a weapon. A good practice is to repeat back the officer’s directions to insure mutual understanding. • Generally the officer will have the right to temporarily disarm the carrier for the officer’s safety. Interaction with Police Following Use of Force • If carrier is forced to fire in self-defense or even displays a gun or threatens to use a gun in self-defense, it is imperative to call police. • Being the first to call police can be the difference between being treated as a victim or as a suspect. • Bad guys have phones just like good guys and can call 911. • When police arrive, don’t appear to be a threat. • Expect to disarmed, handcuffed and put into a police car. • Eventually you will be asked to explain what happened. • What should you say to the police following a use of force? Talking to the Police • Three approaches to talking to police after a use of force: Say nothing, say everything, say little. Which is best? • Some attorneys will suggest you should stand on your right to remain silent. • If you say nothing, you need to invoke your right to remain silent. In certain circumstances silence can be used against you. Texas v. Salinas, 133 U.S. 2174 (2013). • Is that the best approach? • Say everything approach, giving a full explanation of the circumstances. • Can be a problem due to adrenaline spike which inhibits higher brain functions. Videos of police shootings have shown officers often have faulty memories of violent encounters in the immediate aftermath of the event. Avoid being labeled a liar. • Definitely bad approach if you screwed up. Say Little Approach • Designed to alert officers that you acted in self-defense while avoiding potential misstatements that could brand you as a liar or inadvertent statements that could be incriminating. • As urged by Massad Ayoob, noted police and civilian firearms instructor and use of force expert witness: • Officer, this man attacked me; • I will sign the complaint; • The evidence is here; • The witnesses are there; • Officer you know how serious this is, I’ll give you a full statement in 24 hours after I’ve had a chance to consult with counsel. Another Take on Say Little Approach

• As suggested by Andrew F. Branca, Esquire, author of The Law of Self Defense: • I was attached. • I was in fear for my life (my family, etc.). • I had to defend myself. • Identify exculpatory evidence and witnesses. • Request medical attention. • Beyond that assert the right to silence and the right to counsel and do not speak to investigators without counsel being present. Traveling with a Firearm Through States Without Reciprocity: 18 U.S. Code § 926A - Interstate Transportation of Firearms • Ensure you know the law of states you drive through. • If there is no reciprocity make your weapon safe (unloaded) and secure it out of your reach: trunk of your car, ammunition stored separately. If not in the trunk then in a locked container other than the glove box or console as far from the passenger compartment as possible. • Most States will have the provisions for traveling through the state with a firearm posted but police officers do not always have that knowledge. • Recommend printing the information from the State Police website. • Example: https://www.njsp.org/firearms/transport-firearm.shtml. Common Mistakes and their Consequences • Failure to call police after a use of force incident. • Road rage examples. • Michael Dunn case. • Losing the gun. • Non-secure holster/no holster. • Bathroom issues. • Disproportionate force. • Threatening or using deadly force when not justified, such as to protect property or in the face of a simple assault or verbal threat. • Using excessive force. Handicapped space shooting in Florida. • Lack of innocence: Cannot be the aggressor or willing combatant. • Reckless handling of a firearm. • Going through airport other screening location having forgotten about a gun in the backpack or briefcase. • Printing or inadvertent exposure of the firearm. Really Bad Actions that Can Result in Prison • Lying to the police. • Can be crime in and of itself, e.g., obstruction of justice. • Can bring into doubt everything the subject says. Ayoob: “tell one lie you’re a liar.” Basis to impeach if defendant takes the stand. • Alteration of the scene: inconsistent with innocence. • Flight: Inconsistent with innocence. Michael Dunn case. • Other things could prejudice the finder of fact against a defendant. • Incendiary statements: “Keep honking, I’m reloading,” “We call Smith & Wesson not 911,” “Trespassers will be shot, survivors will be shot again.” Social media posts. • Alterations to carry gun: trigger jobs, Punisher or other symbols on the gun. • Arizona officer charged with murder had words “you’re fucked” inscribed on the dust cover of his duty AR-15. • Hand loading carry ammunition. Common Charge Encountered; Brandishing a Firearm • Holding or pointing to a firearm in a manner as to reasonably induce in the mind of another the fear of being shot or injured. • Your firearm should only be pulled if you intend to use it. • If you are not willing to use it then it could be used against you. • Do not attempt to stop an altercation of any kind by pulling your firearm. You are not the police. • Intervening in a third party interaction or domestic situation is fraught with danger. Study laws in your state; Virginia do not drink and carry • Prohibited Conduct and Where Unlawful to Carry - Section 18.2- 308.012 Any person permitted to carry a concealed handgun who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place is guilty of a Class 1 misdemeanor. Conviction of any of the following offenses shall be prima facie evidence, subject to rebuttal, that the person is "under the influence" for purposes of this section: manslaughter in violation of Section 18.2-36.1, maiming in violation of Section 18.2-51.4, driving while intoxicated in violation of Section 18.2-266, public intoxication in violation of Section 18.2-388, or driving while intoxicated in violation of Section 46.2-341.24. Ethical Considerations of Advising Concealed Carriers • Attorney’s individual views on firearms is irrelevant to advice to concealed carrier or applicant. • Gun laws are numerous and complex. The attorney should ensure his competence in this area of the law. • Attorney should ensure that the client is schooled in the law. A lot of what is taken for fact in the gun community is simply wrong. • Other typical ethical responsibilities apply, e.g., • Zealous representation. • Duty of candor to tribunal.