SPEAKER_00 0:00

Welcome to Beat the Prosecution with your host, Jonathan Katz, a Fairfax criminal defense and DWI lawyer. This episode of our podcast is a re-recording of a video from our YouTube channel linked at beatheprosecution.com. For inf for more information, you may contact us at 703-383-1100 or send us an email at info at beatheprosecution.com. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_01 0:40

Everybody, I'm John Katz. I'm a criminal defense lawyer in Fairfax, Virginia.

SPEAKER_02 0:46

What comes as a concealed weapon?

SPEAKER_01 0:49

Well, that's first of all what a weapon is, okay? We're gonna have firearms. Those are items that discharge projectiles with gunpowder, and then we have other types of weapons. We have switch bits, switch blades, stilettos, gunshots, uh brass knuckles. So then we can talk about concealed weapons. Concealed weapons are when the weapon is mostly or completely hidden from public view. So first for the concealed weapon statute in Virginia, it has to be something that's defined as a weapon in the first place, for the concealed weapon statute. That would include concealing firearms, switchblades, nunchuks, blades themselves, not just a simple razor blade that's intended for shaving. Um that's a good start there. And brass knuckles. There was a recent court case that came out from the Virginia Court of Appeals about brass knuckles. That was an enjoyable one.

SPEAKER_02 1:50

Does the law criminalize concealed folding blades or and kitchen knives?

SPEAKER_01 1:56

No. And uh you can have the hugest folding blade that there is, like it can be wider than my uh arm span, as long as it folds in half, you can conceal that anywhere, and that's not a crime. Similarly, you can have the most ugly-looking kitchen knife. If that kitchen knife is ordinarily designed for cooking and cutting things in your kitchen, just because a person then brings it outside for offensive purposes and has it stuck in his trench coat, that's still not a crime. Because the question is, what was it designed for? And is the is this a weapon that's listed in the definitions of weapons for the concealed, uh, for the concealed weapons law versus what is the intent, okay? Uh so therefore, just because you have a mean-looking serrated kitchen knife and you're using it for offensive purposes, or you're going to and you have it in your pocket, that doesn't convert it to a weapon. It's still not a weapon.

SPEAKER_02 2:51

What are the differences in penalties for concealed and unconcealed weapons in no weapon zones?

SPEAKER_01 2:57

Okay. Well, I think it's easier to start with uh just anywhere versus no weapon zones like the park saying no weapons or the airport saying no weapons. So um violating concealed uh weapons law in Virginia, that's a class one misdemeanor. So that carries up to a year in jail and a fine of up to $2,500. Virginia is the most liberal state in the area about guns, the liberal uh in the capital Beltway area, and so you can easily get a concealed carry permit to carry a handgun concealed, and then you're fine there, unless you're going somewhere where weapons aren't allowed. So if you go into an airport and you put your carry-on baggage onto the luggage carousel, it doesn't matter whether it's nunchucks or switchblade or stiletto or handgun, it's all going to be treated the same, which is a class one misdemeanor up to a year in jail. So that means that your concealed carry permit means nothing in the airport.

SPEAKER_02 3:58

Okay. Are there any places besides an airport where a weapon would not be permitted?

SPEAKER_01 4:05

I think maybe you're talking about a handgun uh where you would otherwise be able to uh carry the handgun concealed or even unconcealed, because once again, Virginia law is so liberal compared to many other states that uh uh a person can carry a handgun in Virginia in many places just openly, but you have to watch out about signs that say you can't have it. Now, uh having a handgun in a bank can't really be criminalized just because the bank has a sign saying no handguns, that just means the bank can tell you get out or maybe try to get you charged with trespassing, that would be a stretch. But do look out for um public for government-owned property about whether you cannot bring a handgun there, such as I'm seeing that in parks in Fairfax saying no handguns in the park, and sometimes that's not a very big sign. So if you're gonna have your handgun with you, take a look at where you can and cannot bring it.

SPEAKER_02 4:59

Are there any pen penalties for the adult who allow their minors to use a firearm?

SPEAKER_01 5:07

Virginia is just so liberal that as long as the child is over 12 years old, the adult doesn't have to be around for the child to be using the firearm. Now, of course, that doesn't include reckless endangerment if they accidentally shoot somebody versus going hunting for deer. Uh now, if the person is under 12 years old, if the child is under 12 years old, Virginia law says there has to be adult supervision. So if that law is violated, that's a class one misdemeanor that carries up to a year in jail. So, I mean, this just gives you another idea of how much Virginia protects firearm rights. That means that uh a father can go ahead and bring his son out who's three years old and let the son shoot a firearm. And as long as that three-year-old is properly supervised, that's not a crime in Virginia.

SPEAKER_02 5:57

Are there penalties for lack of adult supervision for a unsecured gun?

SPEAKER_01 6:04

Okay, so watch out about leaving handguns sitting around or any firearms sitting around at your home that are loaded and that are unsecured, for instance, uh not in a locked cabinet. Uh, because if you have a child who's under 14 years old at home and you recklessly leave that firearm out, now that's a class one misdemeanor that carries up a year in jail. But then once again, this being Virginia, which is very pro-gun rights, pro-Second Amendment under the law, people are believed to have the right to have a fully loaded handgun and other firearms at home to protect against intruders, for instance. And so that means the idea is just not to have the handgun immediately available to or other firearm immediately available to a child, or at least to have the safety catch on there so that it can't be accidentally fired by a child who doesn't know how to use the safety catch.

SPEAKER_02 6:57

If I have a concealed weapon found in my vehicle, what are some of my defenses?

SPEAKER_01 7:03

Now we're talking about the defense in Virginia against possession of contraband, whether that's a weapon, concealed weapon here, drugs. So possession of contraband means knowledge, dominion, and control over that contraband. So just because I'm in a car that has contraband in there, such as a concealed weapon, doesn't mean I'm guilty of it. By definition, concealed weapon means I don't know what's there unless I put it there or saw someone put it there. We don't have x-ray vision like Superman, at least I don't know of any humans who do. So if you're a backseat passenger and there's a handgun found in the front or other weapon found in the front seat, you're further away from the action. And then there's a great one, which is that if you have a loaded handgun, even in a locked container, at least a glove compartment, that's not a crime anyway. See, okay, so get this. So it's not a crime in Virginia to have a handgun in the glove compartment, fully loaded, but it's a crime to have a stiletto in that same glove compartment. Now, the closer you are to the action, the more problems there could be about whether you might be found guilty of possessing that handgun in the car. Uh if you're the driver and you own the car, there can be an inference that you might know what's in the car, or let's say the handgun is right under your seat. Well, I like to say, unless it can be proven beyond a reasonable doubt, that the driver, owner, if they're the same person, or the only person who ever gets in the car, we don't know if someone else put it in there. Let's say the guy at the car wash was in there and the handgun fell out of his pocket. That's not far-fetched. Let's say he keeps it in the back uh in his in his uh back pocket. Some people do there, because that way if there's uh accidental discharge, then they uh shoot their butt rather than a more sensitive part of their body. Uh let's say you have a hitchhiker, watch out about hitchhikers. I I talked about in another video, I think, about watch out about giving a ride to Jim if he's hitchhiking, and if you know Jim is a drug user. So, you know, that gets back to the larger thing. Be careful about who who you let have access to your car. If you're going to be having people having access to your car who you don't even know, your mechanics, etc. So those are some of the defenses right there, which is that it has to be proven beyond a reasonable doubt that you had knowledge, dominion, and control over the alleged contraband. And that can't always be proven.

SPEAKER_02 9:46

Are there penalties for crossing state lines with a firearm? You mean if you have a permit?

SPEAKER_01 9:52

Big time in terms of those states. Uh a lot of the firearms people, I I went to an NRA meeting, uh, National Rifle Association conference in Pittsburgh a few years ago to get an idea of what kind of firearms are out there because that's important for my criminal defense practice. And uh a common theme there was to call uh neighboring Maryland and the District of Columbia socialist societies because they're so strict on weapons. You do not want to accidentally bring uh weapons, sorry, I should say firearms, most specifically handguns, into the District of Columbia or Maryland, even if you have a concealed carry permit. You're gonna be in for a rude awakening and surprise. Now, it doesn't mean that Maryland doesn't allow uh handguns for things like uh bring them to the shooting range or the uh or the gun store. You get the picture. If you just have it concealed on yourself, driving on the DC belt way into Maryland, watch out. You want to watch out about that.

SPEAKER_02 10:55

Are there any defenses for carrying a concealed weapon without a permit?

SPEAKER_01 11:01

Well, in addition to what I already said, I don't think we care so much about with or without a permit. I think we're talking about concealed the concealed weapon statue and what what would constitute a concealed weapon, and it's not a concealed weapon that's criminalized if you're uh have a have a concealed carry permit for a gun and it's gun involved. So the first question is well, how does the cop find the weapon or alleged weapon in the first place? If the cop searches you, he has to have probable cause to search you, or else your consent to be searched, or else he's gonna have reasonable suspicion that you're committing a crime to pat you down, and then if he feels what he then has probable cause to uh believe is an illegal weapon or a legally possessed weapon to pull it out. So that's the first question. The second question is is it a weapon in the first place? It's not a concealed weapon if it's not among those defined in the statute, just like the kitchen knife example that I just gave you. A baseball bat is not included in the definition for concealed weapons. Now, of course, it's kind of hard to fit a baseball bat in your front pocket, but you can be hiding under your trench coat, and a baseball bat is often used for uh weapons purposes. So we have defenses of the legality of the search that finds the weapon or the alleged weapon, and whether it's a weapon in the first place for starters.

SPEAKER_02 12:29

What are the penalties for possessing a firearm when selling or trafficking illegal drugs?

SPEAKER_01 12:36

You don't want that if it's a Schedule 1 and 2 drug like heroin, cocaine, LSD, oxycodone if it's not for prescription purposes. That's five years mandatory minimum in Virginia to use or possess a handgun or any other firearm in relation to trafficking or selling schedule one or two drugs. You don't want to be in that position.

SPEAKER_02 13:04

What are some of the penalties of possessing a firearm while also possessing illegal drugs?

SPEAKER_01 13:11

If you're in possession of a firearm while also in possession of a schedule one or two drug, remember Schedule 1 or 2 drug that includes heroin, cocaine, LSD, oxycodone, if it's uh if it's not possessed pursuant to a prescription, that's a class 6 felony. It carries up to five years in prison with a mandatory minimum of two years. You don't want that.

SPEAKER_02 13:40

What are the penalties for being intoxicated and carrying a concealed weapon with permit?

SPEAKER_01 13:46

You don't want that either, because being intoxicated while in possession of a handgun with your concealed carry permit, if it's concealed, is a class one misdemeanor. It carries up to a year in jail. And in Virginia, the definition of intoxicated isn't even that. It's watered down. Just like the same as the definition for intoxicated with drive while intoxicated or intoxicated in public, it's not intoxicated. It's consuming enough alcohol to noticeably affect your appearance andor behavior. That's not intoxicated. That's not buzzed. That's just happy.

SPEAKER_02 14:27

What are the penalties for unlawful shooting and for firearm possession by a convicted felon?

SPEAKER_01 14:35

Okay, those are two questions. We'll start with unlawful shooting inside. Don't discharge your firearm inside unless it's for lawful self-defense purposes. Otherwise, that's a class four felony. A class four felony carries to ten years in prison. I don't think you want that. Possession of a firearm by a convicted felon. I'm sorry to say, if you're a convicted felon, you cannot be in possession, generally in Virginia, of a firearm. And if you are, that is a class four felony. And when I say firearm, we're not just talking about handguns, we're talking about rifles too. And so that's not pretty. Are you gonna be asking me also about um false statement on a on a handgun application? Yes. Okay, so if you do a handgun application, if you're gonna buy a handgun, you have to fill out a uh a form for uh for getting a background check. And if you lie on that, uh if you lie on that application, that's a felony. So be careful about that, because the most frequent lie I see being put on there or untruth is not reporting that a person has an applicable previous conviction. So before you say I have no convictions, let's say you're 80 years old. Well, you've been an adult for that time for 59 years. No, is it 59? Yeah, that's right. So, you know, you're gonna have to reach back in your memory banks there. So don't, you know, I know you can be all excited and you found the handgun that you love at the gun show, and if you bring the application home, the gun show is gonna be finished. Take your time with that application. Before you go to that gun show, check yourself and your memory. Do I have any previous convictions that would disqualify me to buy that handgun that looks so beautiful in there and it's got all this classic artistic inlay? These handguns can be very attractive to people to buy. Don't let yourself be reeled in. Think clearly. And I was speaking of alcohol, go sober to these gun shows, okay? A lot of people are lulled into states of ecstasy to buy these handguns. Even me, who doesn't even want to buy a handgun. I fired rifles at summer camp, but I don't want to buy a handgun. Some of these things are beautiful. Use self-control.

SPEAKER_02 17:10

Why can't there be laws criminal criminalizing the use of firearms when the Second Amendment and the United States Constitution talks about the right to bear arms?

SPEAKER_01 17:19

I love that question. The U.S. Constitution's Second Amendment means nothing unless it has any teeth. So until the United States Supreme Court around 2008 in Heller versus District of Columbia said that the Second Amendment is not just about this general right to bear arms, bear arms, to have militias, and then to have it be a right for the government, because that's not any new right at all. I mean, the government has its own rights to uh create militias and to have uh arms-bearing uh protective forces. So what the U.S. Supreme Court said in 2008 is that it was unconstitutional to have this complete ban in the District of Columbia to even possess a handgun at home for defensive purposes. So, at the very minimum, the U.S. Supreme Court protects that right, at least to have a handgun at home for defensive purposes, even if you have to register it. But the Supreme Court and the other courts in the U.S. have not gone further than that. I don't think we're gonna find any court that's gonna say, for instance, there's a constitutional right to have a bazooka or some other uh kind of uh uh firearm or weapon of mass destruction that could kill a hundred people all at once, for instance. And we're certainly not gonna find a court saying that it's okay to possess nuclear weapons.

SPEAKER_02 18:37

How soon should you hire a lawyer?

SPEAKER_01 18:39

If you're charged with a crime, the sooner you obtain a qualified lawyer, the better. Sure, go ahead and uh check a few lawyers, talk to more than one, uh, but make that decision sooner rather than later, unless there are financial obstacles to that, because the police and the prosecutors are never waiting for the defendant to get a lawyer. The police and prosecutors are preparing their case. And the sooner you get your lawyer, the sooner that your lawyer can be defending you.

SPEAKER_00 19:09

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. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Catz only provides legal advice to current clients or to individuals who have paid for consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703-383-1100 or texting us at 571-406-7268.