WVCDL-ALERT Update 10/26/11

Dear Members of the Legislature and the Senate:

It is has come to the attention of my office that there is a statute which has created some unintended consequences. Almost every educational facility in this state has a written preclusion against the carrying of firearms on their property either by handbook or posting. Often both methods are used. We recently had an incident in Berkeley County, which caused a serious concern about West Virginia Code 61-7-11a. Under West Virginia Code 61-7-11a, it appears to be a crime to carry a firearm onto educational property, but only if it is a "primary" or "secondary"educational facility. It does include "vocational" but only as it related to secondary education. There is no exception for a person with a concealed weapon permit, but law enforcement officers are excepted. The statute excepts the Mountaineer. The higher education statutes have an exception for campus police to carry firearms. Not all schools however have police or a police presence. [JM: Which is exactly why we should not be deprived of our right to carry on college campuses.]

The problem we encountered is that a student was carrying a weapon, with a concealed weapon permit, onto a college/technical school campus. He frightened several students and faculty who saw the weapon. [JM: Hopolophobia is not a reason to call the police, have a person arrested for lawfully carrying a handgun, and then ask the Legislature to pass a carry ban after you realize the person was falsely arrested.] Because the statutory language for educational facility does not include language for "post-secondary" "post-secondary vocational or technical" "community or junior college" or "other institutions of higher learning" as is defined under the educational definitions in West Virginia we could not charge that felony. (There may also need to be an exception for a gunsmithing school, a hunter education class, or concealed weapon class, and even perhaps an ROTC class or a military school-some of which do not currently exist in this state). This is very troubling especially in light of the incident at Virginia Tech. [JM: How many lives might have been saved if one student or professor at Virginia Tech had been carrying? Like West Virginia, Virginia state law does not prohibit carrying on college campuses.]

I am a very strong supporter of the second amendment, but there must be some common sense applied here. [JM: WARNING! WARNING! WARNING! It all goes downhill from here.] I can think of nothing worse than people attending an athletic event, living in a dorm, or sitting beside someone in a science class with a firearm strapped to their side or worse, concealed on their person. What happens if that student, parent or other person suddenly becomes angry at the score, the roommate, the party, or even the call on the field? [JM: How many shootouts have there been at colleges & universities in Colorado, Oregon, and Utah--where carrying on a college campus by a CHL holder is not only legal, but state appellate courts have ruled that state institutions of higher education may not administratively prohibit campus carry by CHL holders? How many people did Colorado CHL holders shoot on September 17 at the Colorado-Colorado State football game? How many people have Colorado CHL holders shot at past CU-CSU games? How many people are Oregon CHL holders going to shoot on November 26, 2011, at the Oregon-Oregon State football game, a rivalry known in Oregon as the "Civil War"? How many people have Oregon CHL holders shot at past "Civil War" games? ] While the use of a firearm may be criminal, so should the presence at this type of facility. I believe this was the intent of the Legislature because of the exception for a college mascot, but the language says otherwise. [As Delegate Patrick Lane noted last night, the "Mountaineer" exception was to permit The Mountaineer to visit schools around the state in his full uniform, including musket.] Let us not have a tragedy on our hands. [JM: Agreed. Let this bill die alongside Delegate John Doyle's perennial one-handgun-per-month gun rationing bill and instead pass the 2012 edition of WVCDL's West Virginia Gun Owner Protection Act of 2011 and fully protect our right to self-defense.] As a parent of college students, I do not think I should have to worry about making sure they have their books, clothes, laptop and now a 45 caliber weapon in an educational setting. [JM: If the prospect of a law-abiding citizen carrying at your child's college scares you, there is a land not too far away where you need not worry. Just 15 minutes from downtown Martinsburg is a land where only the cops and criminals carry guns. Just get on I-81 north and in a matter of minutes you will be in that magical land--the land of Maryland.] This statutory error puts higher education students, faculty and administration at risk. Most people have enough sense not to do this, but obviously we have those who do not.

Please address this error as soon as possible and add the words: " post secondary" "post-secondary vocational or technical" "or other institutions of higher learning" to West Virginia Code 61-7-11a. Make an exception for a gunsmithing school, a hunter education or concealed weapon class, a military school only as it related to official firearms training or classes and ROTC only as to an official firearms training class (actual firing should be on a license or approved range).

I would be more than happy to help write the changes, if one or all of you would push it.

Thank you.

Sincerely

Pamela Jean Games-Neely

Prosecuting Attorney Berkeley County

(end)

I would like to thank Delegate Larry Kump for immediately forwarding this information to me and posting it on his blog, which I encourage you to read. Delegate Kump was a cosponsor of WVCDL's West Virginia Gun Owner Protection Act of 2011, House Bill 3125 of the 2011 Regular Session, and remains fully committed to supporting the rights of West Virginia gun owners. Delegate Eric Householder, the lead sponsor of HB 3125, also e-mailed me last night and indicated he is also standing by our bill.

Without one single solid fact to support her views, Ms. Neely believes we suddenly become a danger to society and deserve the 2-10 years in prison prescribed by W.Va. Code § 61-7-11a(b)(3) and the lifetime loss of gun rights that follows a felony conviction simply by driving onto a college campus while carrying. I would expect better from a career prosecutor. Instead of carefully researching the issue and building a solid case based on evidence and reason, Ms. Neely wants the Legislature to pass a law that, had it been in effect 5 years ago, would have resulted in me becoming a felon every time (hundreds, if not thousands of separate occasions over the 3-year period) I went on campus during my time at the WVU College of Law (not to mention post-graduation visits), where she also received her legal education.

In addition to the above commentary, here is a personal e-mail I sent Delegate Kump yesterday afternoon, which he has published on his blog:

As both the attorney for Joshua Beck, who was falsely charged (Ms. Neely's office dropped the charges today, to her credit) with carrying a gun on school property for 2 alleged incidents of carrying a gun on the Blue Ridge Community and Technical College Campus, and the legislative director and general counsel for the West Virginia Citizens Defense League, notwithstanding her correct call on the law as it presently exists, I highly resent this anti-gun hypocrite's expenditure of taxpayer time and resources to push for a further erosion of our liberties. She needs to be driven out of office in next year's election based solely on her view that those of us who choose to exercise our constitutional rights suddenly become a grave danger to society by setting foot on a college campus-and a double danger if we're lawfully concealing the gun. Sarah Brady couldn't have been more shrill. Any legislator who introduces this absurd bill similarly deserves to see the premature termination of his or her political career-which will be greatly aided if the NRA assigns said legislator(s) an unforgivable F rating, as should be the case given the NRA's expressed support for the right to carry on campus.

On the contrary, House Bill 3125 of the 2011 Regular Session, which Delegate Kump cosponsored, would have driven a wooden stake through the heart of all these useless, feel-good campus gun ban policies to which Ms. Neely refers. Moreover, I believe these policies can be overturned under existing law. Specifically, W.Va. Code § 61-7-4(r), which was added to the statute in 2008, provides: "Except as restricted or prohibited by the provisions of this article or as otherwise prohibited by law, the issuance of a concealed weapon permit issued in accordance with the provisions of this section authorizes the holder of the permit to carry a concealed pistol or revolver on the lands or waters of this state." Because no provision of West Virginia state law restricts or prohibits the possession or carrying of a firearm on a college campus, W.Va. Code § 61-7-4(r) preempts any policy of any state institution of higher education that prohibits a licensed individual from carrying a concealed handgun on campus. State courts in Colorado, Oregon, and Utah and the Attorney General of Virginia have reached similar conclusions with respect to similar language in their states' respective concealed handgun licensing laws.

HB 3125, like Colorado's law, would permit campus carry restrictions only in secure buildings that have mandatory metal detector screenings, armed guards, and free, self-service gun storage lockers at each entrance of a secure restricted access area. We as individuals have no legal right to personal protection from the police, even if we're in some public building where we're prohibited from carrying. So-called gun-free zones amount to little more than criminal protection zones that provide a false sense of security to the unsuspecting public.

Larry, stand your ground.

(end)

The story we posted above from WHAG shows that Blue Ridge Community and Technical College admitted that Joshua Beck never threatened anyone. Berkeley County Sheriff Kenneth LeMaster admitted the same thing to the Martinsburg Journal. Yet, Ms. Neely now wants the Legislature to change the law based on a case where no crime was committed (excluding violations of Mr. Beck's civil rights) based on the fears of a few hopolophobes who reside and work on the wrong side of the Potomac.

If you live in Berkeley County and wish to express your displeasure with Ms. Neely, you will have an opportunity to do so at the polls next year, when Ms. Neely faces reelection. If you feel the need to express your views sooner, put your views in writing and keep it civil. I highly advise against verbal comments, which are much easier to misconstrue and more difficult to defend than the written word.

Finally, I would like to use this incident to highlight WVCDL's nonpartisan approach to defending your right to keep and bear arms. There are individuals--especially among legislative leadership--who have disputed this fact. WVCDL supports those who truly support your individual right to keep and bear arms and attempts to persuade first and then defeat if necessary those who do not. Well, in this case, I have learned that Ms. Neely is a Republican (just like Danny Jones and Sarah Brady). Is it still my personal opinion that "[s]he needs to be driven out of office in next year's election"? Yes. Is this an awkward position for me to take given how well she handled her professional responsibilities regarding Joshua Beck's case? You betcha, but I have little choice in the face of her absurd proposition.