SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense Lawyer and DUI lawyer Jonathan Katz. We are here to regularly present you information and ideas for beating your prosecution as best as possible. Now for your host, John Katz.

SPEAKER_00 0:17

Hello, everybody. This is John Katz. I'm a criminal defense lawyer and DWI defense lawyer in Fairfax, Virginia. This is our ninth episode of Beat the Prosecution. Welcome, Abby, to be on to be on every one of our episodes.

SPEAKER_01 0:32

Hello there.

SPEAKER_00 0:34

What is our topic today?

SPEAKER_01 0:36

We're discussing weapons.

SPEAKER_00 0:38

And um specifically with handguns. How are handguns viewed in Virginia?

SPEAKER_01 0:44

Well, I'm haven't been here too long, so I feel like they have a different view than Arizona.

SPEAKER_00 0:51

Well, I think there's probably some overlap if Arizona is what I think it is. Isn't Arizona kind of like the wild, wild west when it comes to weapons?

SPEAKER_01 0:59

That it is.

SPEAKER_00 1:00

Well, you know, until the Democrats swept the legislature here over in um uh Virginia a few years ago, Virginia was one of the most uh Second Amendment protecting uh states in the Union, and especially before the U.S. Supreme Court weighed in with the New York State pistol case, which said, hold on, uh states can't just be doing a blanket ban on concealed carry permits. So I used to say uh jokingly that one of the reasons why so many people are uh um so polite in Virginia is two things. You don't know who's carrying a concealed weapon, and the other one is that when you're on the phone in Virginia, since just one party to the phone call can record it, you want to be polite on the phone call uh lest you have something be recorded uh that you really don't want to be recorded. What do you think that our listeners would like to know about uh handgun and weapons uh law defense and about uh safety relating to them as it deals with criminal law?

SPEAKER_01 2:03

Well, I think if you have why you pick this type of defense and if you have any experience with handguns, or do you need that as a lawyer? Do you need to have experience with handguns to be able to successfully defend charges?

SPEAKER_00 2:15

Well, yes, nothing beats having fired them I have, and I I love firing them. You have to do it safely, and I'm not gonna deny uh that when I finally graduated from um just shooting 22 single-shot rifles at summer camp in the prone position, it was a real wake-up call about how uh people who are nut jobs can really cause havoc. But the Second Amendment is the Second Amendment. It talks about the right to keep and bear arms, and despite the efforts of so many people to twist up the uh the words in that amendment, uh the U.S. Supreme Court set that straight in that New York State pistol case I told you about recently. And guess which justices were against that uh Supreme Court decision that expanded uh Second Amendment rights?

SPEAKER_01 3:02

Um I would assume maybe you're intimating that it's the Republicans?

SPEAKER_00 3:05

The so-called Liberals are the ones who tend to be tight more tight-fisted on Second Amendment rights. But of course, when it comes to criminal defense, I love doing all criminal defense. And my view is if we don't give teeth to the Second Amendment, that defangs the other amendments. And uh our assistant Rachel one day said that uh everything just came great. Uh essentially, my son, who's in high school and I, we went for a play date over at her mom's home, and uh and over there, her mom raises chameleons. So we're grooving on the chameleons. Have you ever seen a chameleon?

SPEAKER_01 3:40

Yeah, they're pretty cool.

SPEAKER_00 3:41

So cool. First time we did that. And then her uh father-in-law uh took the two of us and Rachel to this uh firing range over in Frederick County, Maryland, where they even rent out uh submachine guns. And I was thinking, uh, that would be cool to fire an Uzi, but uh then again we went with his guns, and this way we were sure there wouldn't be backfiring of anything. He's really being on gun safety. What I noticed instantly, though, was the smell of gunpowder. And I don't know about you, it's not the most pleasant smell. I was able to deal with it. And then there was the idea that we had to wear these the ear, the ear guards, what do you call them?

SPEAKER_01 4:18

Oh, like ear protection?

SPEAKER_00 4:19

Yeah, ear protection. It was loud. And the second one was uh, this wasn't just when I was in prone, much different than when I was in the prone position with a 22-shot rifle. We uh fired AR-15s, you know, an AR-15, a Tavor rifle, and uh what's it called? An M1911 uh pistol, another pistol, and a real fun one was a revolver. But with all those uh firearms we had, uh, I'm not gonna say it was a kickback that would send you flying onto your butt, but that was a big kickback, and uh it's it's just very sobering. So there's no replacement uh to knowing about these guns. So then if uh a cop or prosecutor wants to paint one of my clients as a monster firing them, I'll say, Well, am I a monster? You know, it's fun. And uh, we were firing these targets, you know, some people might be put off by it that that it that had a uh a symbol of a person, but of course, I mean, you know, for gun safety, you have to know how to fire back. And uh once we got to the revolver, which was our last firearm, I got uh I mean the target wasn't that far away. I guess it was about 25 feet away. I got the heart four times and the lungs two times. My son suggests that some people might think I'm too much of a nut if I hung the target up uh that that up in my office. So I've got the picture to show them instead.

SPEAKER_01 5:44

Well, that's still impressive.

SPEAKER_00 5:46

I don't know. You probably could do better.

SPEAKER_01 5:48

Probably not. I'm not too versed. I've shot a few times, but not very good at with my aiming.

SPEAKER_00 5:54

All right, before we get to the criminal defense here, where can people reach us, Abigail?

SPEAKER_01 5:59

So you can give our office number a call at 703-383-1100. Our texting number is 571-406-7268. You can visit our website at beatheprosecution.com or give us an email at info at beatheprosecution.com.

SPEAKER_00 6:19

Okay, so one of the biggest things in Virginia Abbey, I was talking about concealed carry permits before, is if you want to carry around a handgun in Virginia, the smartest thing to do is to get a concealed carry permit. They're available to almost anyone who has a pulse who's an adult who does not have relevant criminal convictions and has not been committed voluntarily or involuntarily for mental health treatment. Um Did you know that, Abby?

SPEAKER_01 6:51

Yes, I I knew that some of those were the you know, on the application that you couldn't have had those histories.

SPEAKER_00 6:59

I think that in Virginia it's probably easier to obtain a concealed carry permit for a handgun than to get a permit to do an addition to your house. Uh so it's there there's really no excuse not to go ahead and get a concealed carry permit if you want to carry around a handgun. Uh it is uh bizarre that in Virginia, uh, since we're talking about a concealed carry permit, that might still make it okay to walk down the street with a gun showing in a holster that's outside your clothes. But then people might freak out and the cops may try to find try to find a way to harass you that has nothing. They'll try to give an excuse that has nothing to do with you wearing a gun uh openly and try to say something else. So go ahead and apply for that concealed carry permit. The courts are open, usually 9 a.m. to 4 p.m. or 8 a.m. to 4 p.m. You go to the circuit court where you where you live and you fill out that um and you fill out that permit application, it's pretty quick for you to get that concealed carry permit. Now, of course, it's important to know gun safety. You you really shouldn't have uh a handgun without knowing gun safety. So uh find out where you need to go to get uh good safety classes, regardless of the uh controversy that might surround the National Rifle Association, the NRA with lawsuits against them. They are have a very good safety component. And I know that when one of my clients is charged with uh having a handgun without a concealed carry permit, or for uh allegedly lying on their uh firearm application, saying they don't have a prior felony conviction or have not been uh committed voluntarily or involuntarily for mental health treatment, uh that the NRA, for instance, has a good online program for gun safety and gun operation, and you can find that at our website at CatsJustice.com slash programs. So uh it is just so enticing if a person finds that uh handgun or other or rifle that they've just been dying for because of the price or the model or whatever. You go to the gun shows, or there's all this hype, and what happens is the gun seller wants to sell it to you. So they want you to sign off on that uh application form right away to apply for it with the instant background check. But Abby, there's so many people who are so excited they don't read the form quickly, they forget that they had a felony conviction uh ten years before, or that it was a conviction they didn't know it was a felony, maybe they knew it was a shoplifting, they didn't know it was for felony shoplifting. Um maybe when they were committed uh for mental health uh treatment for a day or two overnight uh five years ago, maybe they were so out of sorts or drugged up uh at the mental health facility, they don't know about it, but read that application carefully, and better yet is just get the application online or elsewhere before going to that gun shop, before going to the gun show. Uh, because I've had too many clients who say it was just so enticing and quick, I was given a tablet form to fill out these answers. I go boom, boom, boom. Uh yeah, those tablets can really lull you to sleep. So be careful because in Virginia uh you're going to be expecting to be prosecuted for uh Leggy Telling Untruth on that form. And on that form about the mental health um uh commitment, it's like only two or three sentences down in this long paragraph. You can miss it. So, you know, just be very careful for every aspect that you deal with with uh handguns and other firearms because you want it to be safe, you want it to be fun, and for people who are using these uh firearms for self-defense also, just be careful. Uh there is no airtight defense for uh shooting a person just because they intrude in your home. Uh you might have to uh testify in court, you might find yourself being prosecuted first, you might find yourself uh hiring a lawyer first. I intentionally do not own a firearm. I believe in freedom of choice. If I own a firearm, I know that I'm going to have to uh uh keep it properly secured. Uh I need to know that uh any visitors I have to the home aren't gonna have an access to it. I just don't have it. Uh Abby, did I tell you about the time that I went to the Heinz Convention Center over in Pittsburgh, and uh it was the most number of firearms that I've ever seen in my entire life.

SPEAKER_01 11:29

No, I don't think I've heard that one yet.

SPEAKER_00 11:31

Wall to wall. It's just so important that I know about firearms as a criminal defense lawyer, and this was just an amazing array of firearms, and outside the convention center, this man excitedly, after he found out this was my first NRA meeting, uh he asked me what kind of uh pistols I had or other handguns, and I said, I don't. And um he said, Well, I got a great one for you. It's in your price range, it costs under $1,000, maybe under $500, great for protecting your family. And I said, Well, thanks for that advice. He says, When are you gonna buy it? I said, I'm not. He said, Why not? I said, I believe in freedom of choice. I lean pacifist, and if I'm gonna be firing firearms, let me just do it at the range and not have it at home. And he started lecturing me. You're not taking care of your family! You're dishonoring your family. You know, this is a freedom of choice thing. Um now, let's talk about some uh defenses if you are charged with having a concealed dangerous weapon, not just a high-end gun, uh, but any weapon. Well, Virginia being Virginia, there are more uh protections in Virginia for having a concealed firearm with you than having another kind of concealed weapon. Did you know that, Abby?

SPEAKER_01 12:50

I didn't know that. Why is that?

SPEAKER_00 12:52

Because this is Virginia, which is kind of a non-sequitur answer. So let's say uh you're stopped by a cop uh for a DWI charge and um you're arrested. So if the cop wants to have a freebie to go ahead and uh search your your car, there's no such thing as search incident to arrest any more of other than your uh person and clothing that you're wearing. That's under the case of Gantt versus Arizona, just like the Gantt shirt, G-A-N-T, versus Arizona, your state Abbey, where at least you lived for a while. And uh uh but they can try to do these inventory searches saying, well, if your car is not going to end up being uh parked lawfully by leaving it overnight, or if it's not parked lawfully anyway, then the police get to try to do a free search under U.S. Supreme Court case law so that in case uh the defendant claims that um the tow company or the uh car parking company, uh car storage company took anything out of there, that it was inventory to see what was in there. But we know what the police are doing these inventories for in reality, right?

SPEAKER_01 13:59

They're looking for more stuff to pin on your own.

SPEAKER_00 14:02

So if the police find a handgun in the glove comp in your glove compartment that's closed, or even in a knapsack that's closed, even in the uh passenger driver or rear seat compartment, rear passenger compartment, or in the uh console that's closed, what do you think the defenses are for that, Abby, if uh that handgun is in there and the uh person driving in or owning the car does not have a concealed carry permit for the weapon?

SPEAKER_01 14:32

There's probably not that many.

SPEAKER_00 14:34

As long as it's closed or covered. Oh now the cops often don't understand that. Now the key is closed because what if there's not body cam picking up what's closed or open if the cop says the the the uh glove compartment or uh console is open, but of course who might have opened it? The cop. The cop's partner, for instance, sure. Uh now there's another um there's a crazy law in Virginia that applies to concealed carry permits and um having a uh handgun with a concealed carry permit while you're intoxicated. Now in Virginia, the the Virginia Supreme Court has approved a watered-down definition of intoxication, which is having consumed enough alcohol to noticeably affect your appearance andor behavior. We probably discussed this on our DWI show that we had. Um so the Virginia law says whether you're driving or else just walking down the street, you're intoxicated, and you have a handgun on your person, that that is a class one misdemeanor, jailable up to a year.

SPEAKER_01 15:40

Most people might not know that, and they think, well, I'm not driving home and not gonna get a DDUI.

SPEAKER_00 15:44

There you go. But I'm gonna give you a great defense for that, and this has been blessed by the Virginia Supreme Court itself, which is if I'm driving down the street and the cop stops my car and my handgun is in a knapsack right next to me, or my handgun is in the um is in the console, even if the console's open, or in the glove compartment, even if the glove compartment's open, that's not a crime to have the handgun there. The handgun would have to be in my pocket on the holster on me. These are very important defenses to know. And sometimes these defenses only come up once the Virginia Supreme Court, once the Virginia Court of Appeals gets a chance to review it, because these trial judges are generalists, and these trial judges they don't only deal with criminal defense, uh, criminal cases. They deal with civil cases, divorces, trusts and estates, collections actions, injury actions. And they have to make split-second decisions versus the rarefied uh environment of these appellate judges and the Virginia Court of Appeals, the Virginia Supreme Court, who get to be thinking over these issues in their chambers before they even get to see the uh lawyer arguing in the courtroom. And do you know that um in federal court uh the lawyer doesn't even always get to talk to the uh judges right uh right off the bat in the uh circuit courts, the uh courts of appeals federally, at least in uh Virginia, sometimes the judges will just rule on those cases on paper itself. But we're talking about this rarefied atmosphere that sometimes it's taking some time to get some justice there. That means, Abigail, should a person always appeal if they get convicted by jury in s in the circuit court?

SPEAKER_01 17:23

Yes.

SPEAKER_00 17:23

Yes, indeed, because the uh other than having to pay for a lawyer to do the appeal, you usually have nothing to lose because the U.S. Supreme Court says that generally, if you win a retrial, for instance, on appeal, and you lose on retrial, the judge can't give you a higher sentence at retrial than you got originally, otherwise it would look vindictive unless there was new information that came up that justified otherwise. Uh okay, so let's talk a little more about weapons that are not handguns or firearms. So I had a client who uh wanted to make sure that he looked good when he landed on the plane, uh, which included shaving. So he figured, okay, well, uh, you know, in case I forget to bring my razor blade, why don't why don't I just tape a razor blade to my uh cell phone holder? Do you think that's a good idea?

SPEAKER_01 18:16

Um, it's a it's a choice. Probably not one I'd make, but it's a choice.

SPEAKER_00 18:21

Well, but then if the cell phone is in his pocket or is in um is in his uh carry-on luggage, that is now a concealed dangerous weapon, and it is hard to uh it is hard to argue against it. It's it's one thing if I have a kitchen knife in my uh knapsack because that's something that's ordinarily used uh uh for for non-weapons purposes more often than a razor blade, but a person can, you know, this was a single-edged razor. I mean, a person can argue till the cows can home, come home, that uh this is ordinarily used for shaving too. But how many people do you know who use a single-edged razor blade uh to uh to shave themselves on an airplane?

SPEAKER_01 19:00

Uh I I think that would be a zero.

SPEAKER_00 19:04

What else do you think that our listeners might want to know about?

SPEAKER_01 19:08

Would what about weapons like brass knuckles?

SPEAKER_00 19:12

Brass knuckles. Okay, so the key thing is is is that the weapon not be concealed. The idea of the concealment, I guess, is that as long as people in the public know that you have a weapon with you, the person can make the informed decision whether to go anywhere uh near you. Uh brass knuckles, those are some powerful things. So I I know that if I saw someone with brass knuckles, I'd stay away from them. Now the interesting thing about Nunshocks, you know about Nunshocks, right? Well, you know, so with Nunshocks, there was um a practitioner who was so um so skilled with them, but I think it was a little silly in high school, I let him do it right in front of me. If those if those things left his hands, those things can really can really pack a wallop. I do want to talk to you about if you do get charged with a weapons violation, about things you can do to improve your chances with negotiations and any uh sentencing. But before we do that, uh Abby, if you can remind everyone how to reach us.

SPEAKER_01 20:15

Yes, our office number is 703-383-1100. Our texting number is 571-406-7268. Our email is info at beatheprosecution.com. And you can visit our website at beatheprosecution.com.

SPEAKER_00 20:33

Okay, so Abigail, if you are charged with a weapons offense, uh ask your lawyer what kind of self-improvement steps you can take to improve your prospects in negotiating a resolution. And the best negotiator resolution is what?

SPEAKER_01 20:47

To dismiss it.

SPEAKER_00 20:49

And uh and also to help you with any sentencing and also to help out with negotiated resolutions. A judge does not have to accept the agreed sentence or cap sentence uh by the parties in Virginia, so it's good also that you do self-improvement to help convince the judge of that. So I talked about the NRA before, the uh NRA's uh uh gun gun operation, uh pistol operation class is a good one because that includes a safety component. You can do that online. And uh if you're able to find a professional to take you out on the gun range and to certify that they taught you some gun safety, uh all the better. I I know that uh I mean I'm kind of wondering why um why the man who took my son, my son and me out to a gun range didn't do some more practicing, but he's so good about safety. I'm I'm sure if we're doing something wrong, he would have grabbed onto us, we'd have reminded he reminded us some of the obvious things like make sure that your your uh your weapon is pointing forward before you uh before you get the um uh the the bullet into the chamber. I'm gonna go I'm gonna go back on that thing about how sobering it is. I mean, this was an indoor gun range. I guess if we're in an outdoor gun range, it wouldn't have been as uh Uh is striking to us to see what was going on and hear what was going on. So the other thing there was with this AR-15, which can use many different calibers of ammunition, even with we didn't have a silencer on it, but uh the man who was doing the safety class with us he had some sort of license to reduce the sound, and it was still really loud. So uh, you know, really definitely have that uh have that ear protection gear. There are people who who permanently get uh get hearing loss otherwise. Did you know that?

SPEAKER_01 22:32

Yeah, they're very powerful machine or things.

SPEAKER_00 22:36

So we have the uh the NRA safety class uh and community service, voluntary relevant voluntary community service is a real big deal. You can see community service items that I think I've mentioned before, uh options for community service on our website, catzjustice.com slash community, catzjustice.com slash community. And some of the more relevant types of community service here could include um helping out at a hospital emergency room because at least in some urban areas you're gonna have a lot of gunshot uh victims there, and and then you'll be able to uh show that you got a little sobered uh about uh underlining what you should already know, which is using handguns and other weapons uh safely. Also, uh if you have especially with health insurance, uh sometimes I tell my clients go ahead and get, for instance, two, three, four at least psychological or mental health visits uh with a mental health professional. It's not to be an indication that you're crazy or nuts, but it's just to deal once again with dealing with uh self-control awareness and focus. When we're using handguns uh and other firearms, hopefully we're not listening to our music devices at the time. Hopefully we're not uh looking back and forth with our uh with our cell phones. Let's just uh focus, focus, focus on uh on what we're doing with the firearms. Also, uh, depending on what the allegation is against you, uh you might want to see if a mental health professional will give you a prognosis about the likelihood that you will follow firearms laws in the future. I do have a psychologist that I work with who is very good with that, with giving a uh full evaluation and his prognosis on that. I didn't talk about uh shooting indoors. Now that that takes the it being just a misdemeanor, jailable up to one year in Virginia for just uh possessing a handgun uh concealed without a concealed carry permit to it being able to be a felony if you're shooting inside. Well, don't shoot inside and you know have your handgun holstered. Uh well, I don't know. Some some people I never figure this out. People like some people like carrying their handgun in their dip in their waist pocket. And I don't like to think about what's gonna happen if that handgun goes off accidentally because it might hit something more sensitive than the person's thigh.

SPEAKER_01 25:03

Right, it's not true.

SPEAKER_00 25:04

I'm not gonna name that part of the anatomy, but you know what I'm talking about.

SPEAKER_01 25:07

Yeah, it just seems cumbersome and uncomfortable to have to walk around like that.

SPEAKER_00 25:12

And also, you know, if you have the handgun properly holstered, it's less likely to fire inside. You really don't want that. Abigail, is there anything else that you think everyone would want to hear about?

SPEAKER_01 25:23

I think that covers a lot of the questions that people probably have about, you know, concealed weapons and the law in Virginia.

SPEAKER_00 25:34

So, but what I do want to say is that uh for these so-called liberals and progressives who just respond to uh mass murders and uh and less serious but still severe uh crimes caused uh with handguns. I am not uh minimizing that. And you know, there was that what was that recently, what what state was that where the woman got found guilty of involuntary manslaughter because uh for for not making the the handgun or firearms uh unavailable to her son who committed a mass murder?

SPEAKER_01 26:05

Right, it wasn't her pulling the trigger but her son, but she's now in trouble for that.

SPEAKER_00 26:10

So I'm not gonna say that that that that was okay to convict her, but what I what I will say is I believe strongly in a Second Amendment with teeth. I believe strongly with law-abiding people having access to handguns and firearms. And uh unfortunately, too many people do get charged with weapons offenses, both including involving firearms and other weapons. So I'm here to help you on that. And once again, before we sign off, Abby, where do people reach us?

SPEAKER_01 26:36

Beatheprosecution.com or give our office a call at 703-383-1100. Texting number is 571-406-7268. And our email is info at beatheprosecution.com.

SPEAKER_00 26:52

Thank you again, Abby, for running our podcast. This is episode nine of beatheprosecution.com. Thanks everyone for listening. This is John Katz, a criminal defense lawyer and DUI defense lawyer in Fairfax, Northern Virginia.

SPEAKER_01 27:07

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. We welcome you contacting us at info at beat the prosecution.com by calling seven zero three three eight three one one zero zero or texting us at five seven one four zero six seven two six eight