West Virginia: legal saga involving campus carry

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Thread: West Virginia: legal saga involving campus carry

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    Member Array Ishmael's Avatar
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    West Virginia: legal saga involving campus carry

    Summary: In which a community college student asserts his right to carry on campus and a county prosecutor can imagine "nothing worse" than allowing same, never mind that the law actually, um, does.


    First, some back story:

    In West Virginia, there is (1) state pre-emption and (2) no state law against carrying on college campuses.

    The section of the WV Code covering weapons is here.

    The controlling language regarding educational institutions seems to be in W.Va. Code 61-7-11:


    "It shall be unlawful for any person to possess any firearm or any other deadly weapon on any school bus as defined in section one, article one, chapter seventeen-a of this code, or in or on any public or private primary or secondary education building, structure, facility or grounds thereof, including any vocational education building, structure, facility or grounds thereof where secondary vocational education programs are conducted or at any school-sponsored function."


    Now, the matter at hand:

    On Thursday, Oct. 13, (as reported* by the Martinsburg Journal-News), police arrested a student named Josh Beck for "bringing a concealed weapon onto the BRCTC [Blue Ridge Community and Technical College] satellite campus." That same report contained the following item:


    "Under state code, bringing a firearm onto college grounds is a felony, [Berkeley County Sheriff Kenneth] LeMaster explained."


    Beck retained Jim Mullins, Jr., a WV lawyer who walks the RKBA beat hard (e.g., he's run ads offering to help people restore their gun ownership rights after misdemeanor domestic violence convictions) and is legal counsel for the West Virginia Citizens Defense League, a state-level second-amendment organization.

    According to newsletter mailings by Mullins, he was all set to file a motion requesting dismissal of Beck's charges when Pamela Games-Neely, the Berkeley County prosecuting attorney, conceded the point and dropped the charges on her own last Tuesday.

    All's well that ends well?

    Well, actually, it's not over yet.

    According to Mullins, Games-Neely promptly sent an email to state legislators requesting that they correct the "statutory error" that prevented her from pursuing charges in this case. Her reasoning for why this must be an error (other than what Mullins characterizes as generalized "hopolophobia") has to do with the section of WV law that enumerates the various exceptions to the ban on carrying on "premises of educational facilities" (for definition of which, see above). In addition to the usual exceptions for LEOs and other authorized persons, there is also an exception for "The official mascot of West Virginia University, commonly known as "The Mountaineer", acting in his or her official capacity." (FYI, the costume of the mascot for the WVU Mountaineers includes a musket.)

    Quoth Games-Neely:


    "I believe [forbidding firearms on campus] was the intent of the Legislature because of the exception for a college mascot."


    But according to an anonymous email (!) described as "Legal & Legislative Rebuttal on Proposed Gun Law" and published on the blog of Larry Kump, a member of the West Virginia House of Delegates, the exception for the mascot was specifically to allow the Mountaineer to make appearances in full regalia on K-12 school campuses:


    "The mountaineer exception that the prosecutor identifies is not meant to imply some covert intent to apply safe schools to higher ed. It is meant to allow the WVU mountaineer to visit public ed schools around the state and bring the musket. Without the exception, the mountaineer would commit a felony just for showing up with the musket-even if the flint and black powder were left at home."


    Then, there is the small matter that, yesterday, Games-Neely charged Beck with two misdemeanor violations of what the Journal-News calls "a statute regarding the right of certain persons to limit possession of firearms on premises."

    To wit, under W.Va. Code 61-7-14:


    "Notwithstanding the provisions of this article, any owner, lessee or other person charged with the care, custody and control of real property may prohibit the carrying openly or concealed of any firearm or deadly weapon on property under his or her domain: Provided, That for purposes of this section "person" means an individual or any entity which may acquire title to real property.

    Any person carrying or possessing a firearm or other deadly weapon on the property of another who refuses to temporarily relinquish possession of such firearm or other deadly weapon, upon being requested to do so, or to leave such premises, while in possession of such firearm or other deadly weapon, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in the county jail not more than six months, or both …"


    The common interpretation of this (well, on internet forums, anyway--I'm no lawyer and have no direct legal experience with any of this) is that this is one of those "sign? what sign?" and then "beat it if you get made" statutes. So, if this interpretation is correct, and if Beck were just made the one time, it would seem to depend on exactly how that interaction went. But there seem to be a few additional details that will need to get worked out in court.

    For one thing, the various news reports suggest that these charges do not arise out of just one incident. According to the Journal-News, Beck was arrested not once but twice, first on the aforementioned Thursday, then on the following Monday (Oct. 17). Apparently, on that Monday, a school administrator grew concerned by a Facebook posting by Beck. According the Journal News, the police report quoted the administrator as being worried by the fact that the posting included the phrase "gun nut."

    The paper reprinted the following passage from that posting:


    "Some anti gun nut at the college is trying to paint me as a criminal because of what I do for a living. Never knew being an outstanding member of Berk Co, a gun dealer, a NRA firearm instructor, a Army Vet, and a past law and government security officer makes me a bad evil man! So Im getting as many experienced military, government, or any high standing citizen to stand for who I am. Some people just don't respect the people who sacrifice their self for others safeties and freedoms (sic)!"


    Then, after reviewing security videos that showed "a bulge on Beck's right hip, which was covered by his shirt," the officer re-arrested Beck.

    Further complicating Beck's effort to make the "sign? what sign?" argument, the Journal-News also reports the following:


    "The police report states that Beck had brought a handgun on campus before and had been told not to because it was against school policy.

    ...

    The police report states that in a voicemail to See, "Beck admits to carrying his gun into the school on several different occasions."


    On the other hand, the Journal News reports Beck's claim that he did not in fact have a firearm on him that Monday, and, also according to Beck, "No one notified me nor spoke to me about the issue before (Oct. 11)." This claim is confusing, given that—as I read the news reports—he was arrested for having a firearm on campus on Oct. 13, so either Beck is shooting himself in the foot (ah ha ha ha) by admitting he was told before returning with a gun a few days later, or he was not in fact in possession when he was arrested and the arrest stemmed from an earlier incident. Perhaps a lawyer/cop can tell us if that's even possible. (I'll admit I find the dates VERY confusing among all of the news reports on this story.)

    But if Beck's statement can be documented as true, another angle prosecutors could try would be arguing that, by enrolling in classes, Beck had tacitly acknowledged (or perhaps even signed/checked a box on something acknowledging) a prohibition on firearms contained in school rules. Then the school could say he'd been "told," so any visit to campus while armed would constitute a misdemeanor violation.

    The problem with that argument? The student handbook contains only the following prohibition concerning weapons: "Storage or use of firearms, firecrackers, explosives, blank pistols, air rifles, air pistols, archery equipment, swords, knives with blades in excess of four inches in length, or any other item that may constitute a weapon on campus, except as required for an academic class" (PDF).

    For those of you who don't know West Virginia, Martinsburg is the extreme eastern part of the state and has a lot more in common, culturally, with Maryland, etc., than it does with the mountains and hollers out west. It's worth noting that, despite state preemption, Martinsburg has on the books and claims it will enforce its own, special additional statutes about not carrying on city property. (There is a little of this in Charleston, too.) But Berkeley and Kanawha counties (where Charleston is located) are, again, pretty distinct from the rest of the state.

    It will be interesting to see how this one plays out.

    * Disclaimer: This is all based on news reports. I encourage readers to check out the originals as it is certainly possible that I have made some mistakes in the above. There is a good compendium in this thread at USACarry One possible area of errors is in the dates of the two different arrests, which I honestly can't reconcile between this article (dated October 15 and seeming to report the initial arrest "on Wednesday") and this one (dated October 18 and stating "A Martinsburg man arrested last week for allegedly carrying a concealed firearm onto the campus of Blue Ridge Community and Technical College was arrested again Monday"), and then Beck's claim of not having been told not to carry until Oct. 11. If you find any mistakes, let me know and I'll correct them.
    Last edited by Ishmael; October 27th, 2011 at 09:41 AM. Reason: Weird formatting problems.
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    VIP Member Array Majorlk's Avatar
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    Martinsburg (and indeed just about all of Berkeley County) has been a bedroom community for DC for years. It is the absolutely LAST place I would ever live if I moved back to West Virginia (my home state).
    An armed society is a polite society. Manners are good when one may have to back up his acts with his life. - Robert A. Heinlein

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    Just listened to WEPM radio this morning they interviewed Jim Mullins (Joshua Beck"s lawyer and Art Thomm a representative of West Virginia Citizen Defense League. Seems like Beck was going to turn himself in the the Berkeley County Sheriff today.
    You never know until you hear BOTH sides of the story. There are claims that the building was not posted NO FIREARMS until after the arrest BUT if it was posted prior to the incident he should not have carried into the building. I have my WVCCW permit and I would have locked it in the truck.
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    Quote Originally Posted by Majorlk View Post
    Martinsburg (and indeed just about all of Berkeley County) has been a bedroom community for DC for years. It is the absolutely LAST place I would ever live if I moved back to West Virginia (my home state).
    I for one would be happy to "cede" the whole eastern panhandle of WV to Washington, DC. Then we wouldn't have to deal with it.
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    Quote Originally Posted by JoJoGunn View Post
    I for one would be happy to "cede" the whole eastern panhandle of WV to Washington, DC. Then we wouldn't have to deal with it.
    No great loss, but they already consider themselves (and Charlestown) part of DC.
    An armed society is a polite society. Manners are good when one may have to back up his acts with his life. - Robert A. Heinlein

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    Quote Originally Posted by Majorlk View Post
    No great loss, but they already consider themselves (and Charlestown) part of DC.
    Actually Berkeley County after the American Civil War wanted to go back to Virginia from West Virginia. They felt that West Virginia was an illegal state so Berkely petititoned Congress but were denied. They have been irritated ever since I do believe.

    Maybe it's time to grant their request.
    "A Smith & Wesson always beats 4 aces!"

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    Some more details in yesterday's Herald Mail:


    "Blue Ridge CTC officials told police that Beck was told in August about the campus ban on firearms outlined in the school’s handbook, but continued to violate the school’s policy, according to court documents.

    "A Blue Ridge CTC student told police that a security guard at the college had forced Beck to remove a weapon in his possession from campus, but indicated the defendant returned with the firearm the following day when they had class together, according to court documents.

    "The student said Beck continued to carry a weapon and “even gave a class presentation on concealed weapons while having the weapon in class,” Berkeley County Sheriff’s Lt. R.L. Gardner said in the complaint filed against Beck."


    If what is reported here is true/can be proved in court (i.e., that a campus official told Beck in August that he couldn't carry on campus, and he then continued to carry through part of October), Beck's attorney has a tough row to hoe. One angle suggests itself here: "Beck was told in August about the campus ban on firearms outlined in the school’s handbook." The 2011-2012 handbook available online here actually only makes the following prohibition concerning firearms:


    "Storage or use of firearms, firecrackers, explosives, blank pistols, air rifles, air pistols, archery equipment, swords, knives with blades in excess of four inches in length, or any other item that may constitute a weapon on campus, except as required for an academic class."


    Depending on the wording of the "officials'" advisory to Beck (and given the strong possibility that those officials can't prove exactly what they said), perhaps Beck's lawyer could argue that Beck was engaging in neither the "storage" nor the "use" of firearms?

    At any rate, I will be extremely interested to learn more details, such as how much effort Beck made not to get "made" and how in fact his weapon was noticed. If it is true that Beck "gave a class presentation on concealed weapons," it seems possible to discern an agenda here that goes beyond simply wanting to be armed for self-defense purposes. One reason that I enjoy the outlet of this forum is that, in my personal life, I prefer to avoid any and all discussion of CCW, as I do not want the subject associated with me in anyone's mind. (I prefer to keep my self-defense planning as private as possible.) Based on the facts in this article, it seems it might be difficult to say the same of Beck.

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    Discretion is better than litigation...

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    Quote Originally Posted by Ishmael View Post
    Summary: In which a community college student asserts his right to carry on campus and a county prosecutor can imagine "nothing worse" than allowing same, never mind that the law actually, um, does.


    First, some back story:

    In West Virginia, there is (1) state pre-emption and (2) no state law against carrying on college campuses. The section of the WV Code covering weapons is here.

    "It shall be unlawful for any person to possess any firearm or any other deadly weapon on any school bus as defined in section one, article one, chapter seventeen-a of this code, or in or on any public or private primary or secondary education building, structure, facility or grounds thereof, including any vocational education building, structure, facility or grounds thereof where secondary vocational education programs are conducted or at any school-sponsored function."


    I guess I am confused, from the sections I bolded above it sounds to me like it IS illegal to carry on a college campus. Explain how the bolded sections do not make it clear that eh was wrong?

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    Member Array Ishmael's Avatar
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    Colleges are "post-secondary."

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    It seems pretty clear to me that he knew it was against policy to carry there and yet he chose to do so anyway. This looks like a clear case of property rights to me. It sounds to me like he will get hit with the misdemeanor.
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    Quote Originally Posted by atctimmy View Post
    It seems pretty clear to me that he knew it was against policy to carry there and yet he chose to do so anyway. This looks like a clear case of property rights to me. It sounds to me like he will get hit with the misdemeanor.
    That's my read on the most likely outcome. It will be interesting to see what is actually provable, though (if they do decide to fight it and gamble on a Berkeley County jury). I'd say he would be in a lot more definite trouble if the handbook had specifically forbidden "carrying" a firearm. Because I'm sure it will be considered open and shut that he knew or was notified of the handbook--surely you sign something to that affect when you enroll or something. But the wording is ambiguous. Maybe I'm just fixating on that because I sometimes edit documents like this one.

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    Go to facebook.com/west virginia citizen defense league for continuing updates. WVCDL is planning a protest against the Berkeley County prosecutor for trying to influence the WV legislator with her anti-gun e-mails. Protest is in Martinsburg on Nov. 18th.
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    Sorry for the bad link above. Try https://www.facebook.com/groups/WVCDL/
    Member:USCCA, NRA, GOA, WVCDL
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    Quote Originally Posted by JoJoGunn View Post
    Actually Berkeley County after the American Civil War wanted to go back to Virginia from West Virginia. They felt that West Virginia was an illegal state so Berkely petititoned Congress but were denied. They have been irritated ever since I do believe.

    Maybe it's time to grant their request.
    Gee thanks. We don't want them. It is bad enough having so many fools in Northern VA already. Virginia does not need any more liberals. Too many here already.

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