Thomas H. Roberts & Associates, P.C.
Virginia's Civil Rights & Personal Injury Law Firm

(804) 783-2000


Civil Rights Victory - The Right To Personal Protection - Concealed Weapon Permit - Va. Code § 18.2-308

See District of Columbia v. Heller

April 30, 2008 - Another Victory for Civil Rights

Civil Rights Victory – The Right To Personal Protection


On April 30, 2008, the law firm announced that another victory in civil liberties was achieved when the firm’s client whom we will call “John Doe” was re-issued a new five-year permit to carry a concealed weapon, after his application for renewal of the permit had been originally declined.  After an evidentiary hearing, which John Doe demanded under Virginia Code § 18.2-308(I)[1], the Circuit Court found that John Doe “is well trained in the use of firearms and conscientious with regards to the safe use of firearms, and that his specific acts including but not limited to shooting on October 23, 2007 away from his neighborhood into the ground and toward a dense backstop do not make it likely that [John Doe] would use a weapon unlawfully or negligently to endanger others, and that there is no good cause shown for refusing to reissue a new five-year concealed handgun permit….”


The strange and sordid saga began on October 23, 2007, in rural Virginia , when the client, leaned out of his 2nd story window and shot three times at a rodent that had entered a rodent trap, safely shooting into the ground and in the direction of the arrow indicated in the plat below away from any houses.


Completely unrelated, it seems that a neighbor was feeling a little nervous due to strained relations with his daughter’s x-boyfriend who had just been released from jail or prison.  The neighbor had allegedly had words with the boy and may have obtained a protective order against the x-boyfriend.  So, while the neighbor was sipping coffee on his deck, he heard gun fire, and immediately and mistakenly concluded that the x-boyfriend must be hiding in the green space gulley shooting at him, so he ran inside his house.  Once inside the shooting stopped, so he jumped to the erroneously conclusion that the x-boyfriend couldn’t see him and stopped shooting.  The neighbor called 911 to report that he was being shot at and the local sheriff’s deputies responded.


            While the sheriff’s deputies was scurrying about looking for the x-boyfriend, John Doe, a 60 something, rather large bald headed man with a white beard put on a pair of short pants and a t-shirt, walked out the back of his house on the other side of the green space and moseyed over to the trap to see that the rodent was still alive.  Standing over the trap he fired a pistol down into the trap killing the rodent.


The deputies, jumped to erroneous conclusions and ran down the green space gulley and up the other side to the surprise of John Doe who was standing in his back yard with the wind blowing in his ears.  Although John Doe was obviously not a young buck, but looking more like an Amish Elder, the deputies were yelling all the while pointing rifles at his chest, described by the young officer as “tactical weapon’s systems.”  John Doe could not tell what they were yelling due to the wind and distance, and did not notice any insignia’s indicating that they were law enforcement, but when some of them moved towards the woods, he concluded that there must be some danger in the woods and that the boys must have been directing him to move away from the woods.  He slowly moved away from the woods a few steps when he heard the young men yelling for him to put his pistol down, which had remained pointed at the ground the entire time.  He promptly followed their instructions, removed the clip and placed the pistol on the ground and then followed further instructions to lay down on the ground as well.


            Instead of accurately assessing the situation in the manner one might expect from trained officers of the law, the officer arrested John Doe without a warrant for alleged misdemeanors not committed in their presence and charged him with reckless use of a firearm in violation of § 18.2-56.1 and obstruction in violation of § 18.2-460(A).  He was taken in handcuffs to the Sheriff’s office and booked, fingerprinted and eventually released.


Code § 18.2-56.1(A) states “It shall be unlawful for any person to handle recklessly any firearm so as to endanger the life, limb or property of any person.”  For conduct to be “reckless” it must be such as to evince disregard of, or indifference to, consequences, under circumstances involving danger to life or safety of others, although no harm was intended.  Black’s Law Dictionary 1142 (5th ed. 1979) quoted approvingly in Darnell v. Commonwealth, 6 Va. App. 485, 491 (1988)


Code § 18.2-460(A) requires "actual hindrance or obstruction of the officer," "opposition or resistance by direct action." Polk v. Commonwealth, 4 Va. App. 590, 594, 358 S.E.2d 770, 772-73 (1987). "Obstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person's conduct merely renders the officer's task more difficult" or "frustrates [his or her] investigation." Ruckman v. Commonwealth, 28 Va. App. 428, 429-430, 505 S.E.2d 388, 389-390 (1998).


            John Doe clearly violated neither.


            An arrest for such misdemeanors violated Virginia law.  First, there was no probable cause, required by the Fourth Amendment to the United States to arrest Doe on the misdemeanor charges.  Second the arrest was without a warrant.  Third, the officer was not authorized to arrest John Doe under Virginia law.   In pertinent part, under Virginia law, the officer would have been only authorized to issue John Doe a summons if a violation of law had been committed in the officer’s presence, which did not happen, and if the alleged offense was punishable as a Class 1 or Class 2 misdemeanor.  Only if the person is believed by the officer likely to disregard the summons issued or if reasonably believed by the arresting officer to be likely to cause harm to himself or to others could the officer arrest him.


In pertinent part the Virginia law reads:


Code § 19.2-74.  Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special policemen and conservators of the peace


   A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or § 18.2-266, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.


            One would have expected the assistant commonwealth attorney to quickly move to dismiss the charges as improvidently charged, however, shockingly, he refused to do so and further insisted that John Doe relinquish his firearm to the State.  John Doe refused and the criminal charges were tried before the court and ultimately dismissed.


            Several Thousand Dollars later, the criminal charges were dismissed and John Doe was re-issued a new five year concealed weapon permit.

[1] Pursuant to Virginia Code § 18.2-308(I),


Persons who previously have held a concealed handgun permit shall be issued, upon application as provided in subsection D, a new five-year permit unless there is good cause shown for refusing to reissue a permit. If the circuit court denies the permit, the specific reasons for the denial shall be stated in the order of the court denying the permit. Upon denial of the application, the clerk shall provide the person with notice, in writing, of his right to an ore tenus hearing. Upon request of the applicant made within 21 days, the court shall place the matter on the docket for an ore tenus hearing. The applicant may be represented by counsel, but counsel shall not be appointed, and the rules of evidence shall apply. The final order of the court shall include the court's findings of fact and conclusions of law.


§ 18.2-308(I) of the Code of Virginia .

For more extensive reading regarding the 2nd Amendment, see District of Columbia v. Heller, (June 26, 2008)


Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000

The facts and circumstances of each case are unique and therefore the fact that a law firm has obtained significant verdicts and results in other cases in no way guarantees that other cases will have similar results.