Open Carry Arrest

This is a discussion on Open Carry Arrest within the Open Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Perhaps, but section B of the local code makes no mention of hunting. It simply says posses, transport and carry. The portion of state code ...

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Thread: Open Carry Arrest

  1. #31
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    Perhaps, but section B of the local code makes no mention of hunting. It simply says posses, transport and carry.

    The portion of state code I put in red is an exception to the firearms on school property that specifically says in a motor vehicle while using a vehicular egress. No mention is made of being on foot like in this case. That tells me our guy here is in violation of at least the local code as it is written.
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  3. #32
    Member Array celticredneck's Avatar
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    Open carry is and has always been legal in Virginia because it is not prohibited by law. Also, no license or permit is required to either own or open carry a gun in Virginia, only to carry a concealed handgun. As for "state preemption, from my understanding, there is a statute on the books that says that no locality may enact an ordinance which is stronger or goes against the state laws. This has been tested and upheld quite a few times in Virginia, often at the expense of a settlement. Usually, now localities in Virginia are quite cooperative in removing such ordinances without having to be forced to do so.

  4. #33
    VIP Member Array Sticks's Avatar
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    Quote Originally Posted by RockBottom View Post
    Well, he's 21 and appears to be from the middle east. He has a .45 strapped to his hip. Would you or your wife be alarmed if you saw him near a school?

    Gun scare causes Chesterfield school to go on lock down - Live5News.com | Charleston, SC | News, Weather, Sports


    Yep, I know it's profiling and shows prejudice, but do you worry about being politically correct and do nothing or question why if this is his workout "routine", he decided to open carry as part of it on this particular day.
    It definitely is profiling and prejudice. We are not involved in military actions with the entire middle east, lots of those countries are our allies.

    Quote Originally Posted by GM View Post
    --Excerpt--
    Nicole Bell: "Why did he have a weapon on him?"
    Tiffany Ball: "Because he's nervous -- for protection."

    --End of excerpt--

    I wonder what "Because he's nervous" implies in this case.
    Maybe because he is of middle eastern descent and has been threatened? That feeling of nervousness and lack of safety is usually what prompts people to start carrying.

    Depending on the situation, state and federal law, and actual physical position where he was spotted and detained will decide the outcome. This may have been an innocent, unintended, accidental violation of some distance rule measured from an undisclosed location. "Close enough" is a bit weak, and part of a fishing trip. I would think that proof of intent would need to come into play.

    And thanks to this arrest, he can just about kiss that CC permit approval goodbye.
    Sticks

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  5. #34
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    Quote Originally Posted by SIXTO View Post
    Perhaps, but section B of the local code makes no mention of hunting. It simply says posses, transport and carry.

    The portion of state code I put in red is an exception to the firearms on school property that specifically says in a motor vehicle while using a vehicular egress. No mention is made of being on foot like in this case. That tells me our guy here is in violation of at least the local code as it is written.
    We are both playing amateur lawyer and regarding a state where we don't reside on top of that.

    I was looking at this part of the local code: "Sec. 14-11. Same--Hunting or carrying a loaded firearm near public schools or parks.
    (a) No person shall shoot, hunt or attempt to hunt with a firearm within 100 yards of any property line of any county public school or county park."

    Was the arrested man shooting or hunting? If not, section "a" of the local code doesn't appear applicable.

    I don't know if the possession part in section "b" is a separate item totally, or if it really is referring back to this hunting code. It is especially unclear because the code specifies that hunting within that 100 yard distance is lawful if a couple of conditions are met in the next section.

    I'm sure the DA and defense attorney and judge will have a dandy time sorting it all out, except that there will more likely be some sort of plea and the exact meaning of the local code won't get determined. Of course there may already be existing case law on the matter and/or guidelines at the DA's office.

    I guess the VA folks will have to jump in to tell us more about this.

  6. #35
    Senior Member Array DaveJay's Avatar
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    I'm not a lawyer...I've read the same things everyone here has quoted...

    IMHO, the police over-reacted...the young man was legally OCing...and there will be a legal remedy in his favor...

    And once that takes place, he'll get is CHP...

    But, again, its just my opinion...I didn't stay at a Holiday Inn last night...
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  7. #36
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    Quote Originally Posted by Eagleks View Post
    you can't arrest someone for "almost " being on the property.
    Sure they can. Doesn't mean it will hold up, but it will cause the guy grief, and won't cause the LEO any money.
    Quote Originally Posted by RockBottom View Post
    Well, he's 21 and appears to be from the middle east. He has a .45 strapped to his hip. Would you or your wife be alarmed if you saw him near a school?
    Sure, being alarmed is good. I don't know if I'd call the cops.

  8. #37
    VIP Member Array mcp1810's Avatar
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    From the Code of Virginia:
    15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
    So I believe the local code is not enforceable. If that is what the arrest is based on the accused might be in for a pay day.
    However..... From 18 U.S.C. 922
    2)(A) It shall be unlawful for any individual knowingly to
    possess a firearm that has moved in or that otherwise affects
    interstate or foreign commerce at a place that the individual
    knows, or has reasonable cause to believe, is a school zone.

    (B) Subparagraph (A) does not apply to the possession of a
    firearm -
    (i) on private property not part of school grounds;
    (ii) if the individual possessing the firearm is licensed to do
    so by the State in which the school zone is located or a
    political subdivision of the State, and the law of the State or
    political subdivision requires that, before an individual obtains
    such a license, the law enforcement authorities of the State or
    political subdivision verify that the individual is qualified
    under law to receive the license;
    So based on what I have read so far I am betting they are going to prosecute under federal law. Since he is not yet licensed he is not exempt from the federal law. If he had received his license and had it in his posession he probably would have been F.I. 'ed and sent on his way.

    This version (1995) has been upheld as constitutional by the First Circuit (twice 2007 and 2008) the Third Circuit (2002 and 2007) the Sixth Circuit (2005) the Eighth Circuit (1999) the Ninth Circuit (2005) the Tenth Circuit (2007) and the Eleventh Circuit (2000).

    Depending on the geographical specifics (was he on public or private property at the time?) the future may be very bleak for the accused.
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  9. #38
    Member Array Oldfart60's Avatar
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    Quote Originally Posted by Chad Rogers View Post
    I have no doubt there would not be a single person presently advocating the police be bashed for this, who would not be the first in line at the courthouse to sue if something had happened at the school and their kid had been hurt.
    I hear you, man. I was thinking the same thing.

  10. #39
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    Quote Originally Posted by mcp1810 View Post
    From the Code of Virginia:

    So I believe the local code is not enforceable. If that is what the arrest is based on the accused might be in for a pay day.
    However..... From 18 U.S.C. 922

    So based on what I have read so far I am betting they are going to prosecute under federal law. Since he is not yet licensed he is not exempt from the federal law. If he had received his license and had it in his posession he probably would have been F.I. 'ed and sent on his way.

    This version (1995) has been upheld as constitutional by the First Circuit (twice 2007 and 2008) the Third Circuit (2002 and 2007) the Sixth Circuit (2005) the Eighth Circuit (1999) the Ninth Circuit (2005) the Tenth Circuit (2007) and the Eleventh Circuit (2000).

    Depending on the geographical specifics (was he on public or private property at the time?) the future may be very bleak for the accused.
    He's currently charged under 18.2-308.1, a Class 6 felony. For Class 6 felonies, the jury or court may choose imprisonment for one to five years or jail for up to 12 months and a fine of up to $2,500, either or both.

    His next scheduled court appearance is the 14th of April.

  11. #40
    VIP Member Array mcp1810's Avatar
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    So I guess they are now saying that he was in fact on the school's property. If that is the case, sucks to be him right now.
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  12. #41
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    He should of known better. Dont temp the gods on this one. Ignorance of the law is not a defense, people take there schools serious.....
    Don"t let stupid be your skill set....

  13. #42
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    Quote Originally Posted by redrick View Post

    " Police say Alkabily was not on the school campus but close enough to the school that the department could charge him with possessing a firearm while on school property."
    What the heck does that mean? Now the police there can enforce laws based on how close you are to breaking it? Can I be charged with speeding because I was close to the speed limit? That is ludicrous!
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  14. #43
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    Quote Originally Posted by TN_Mike View Post
    What the heck does that mean? Now the police there can enforce laws based on how close you are to breaking it? Can I be charged with speeding because I was close to the speed limit? That is ludicrous!
    Once again, it boils down to the definition of "campus". In some areas all the school property is considered part of the campus. In other areas, parking lots and athletic fields are not considered to be part of the campus but are still school property. In one community in my area, the high school football field is about twelve blocks from the main campus. While it is not considered to be part of the campus, it is still school property and it would be illegal to carry there.

    I don't know if something similar is happening in this particular incidence, but it does supply one possible explanation for the apparent inconsistency of statements in the story.

  15. #44
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    If he, in fact, was on school property...and having just taken the CHP class...all bets are off...he should have known the law and is hosed...

    But, if as the original reports indicate, he was not on school property, but "close enough"....
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  16. #45
    Member Array RockBottom's Avatar
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    Quote Originally Posted by DaveJay View Post
    If he, in fact, was on school property...and having just taken the CHP class...all bets are off...he should have known the law and is hosed...

    But, if as the original reports indicate, he was not on school property, but "close enough"....
    Here's a thought and it's pure speculation on my part. The address of the school is 1600 Learning Place Loop and it's a deadend road. What if they consider the road that the school is on to be a private road and therefore part of school property? If that were the case, you could be in violation of the law by simply being in the road. You wouldn't be on campus but "close enough".

    Hopefully, there will be some more news coverage. It could be an interesting case.

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