Does a center console count as a ‘secured container’ for purposes of the Virginia concealed carry law?

Last year I received a call from a prospective client who had been charged with carrying a concealed firearm without a permit.  For purposes of this article, we will call him ‘Bob’.

Bob had been initially appointed counsel and was being advised by said counsel to consider accepting a plea agreement.  He was concerned by this because he felt, based upon his layman’s reading of the statutory language, that he had not been violating the law at all.

Facts Matter

With the law, the devil is always in the details, so let’s review the specifics of the matter.  The incontrovertible facts, supported by the police report, were as follows:

  • Bob DID have a firearm
  • It WAS loaded
  • It WAS in the center console of his vehicle
  • The center console was closed and latched
  • The officer only discovered it because Bob voluntarily notified the officer during the traffic stop when asked
  • The officer retrieved the firearm by opening the center console

Having set the stage, let’s look at the statutory framework.  § 18.2-308 governs the general prohibition on carrying a concealed weapon in the Commonwealth of Virginia.  However, there are a number of exceptions, including the one that Bob had been relying upon when transporting his firearm in a closed and latched center console.

That exception is currently codified at § 18.2-308(C)(8) and reads in relevant part:

C. Except as provided in subsection A of § 18.2-308.012, this section shall not apply to:

8. Any person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel;

This exception was added in 2010 via H 885 and I remember its addition quite well since at the time, just as now, I was actively involved with advocating for improvements to Virginia’s gun laws in favor of law-abiding citizens.

The original introduced version (full version history can be viewed here) used the term ‘secured‘ but the version that ultimately passed the House and Senate had changed this word to ‘locked‘.  Governor McDonnel sent it back, specifically asking that the word be changed back to ‘secured‘.  The General Assembly acquiesced and the version signed into law had the word as ‘secured‘.  This is vital because it clearly demonstrates that the word is intended to mean something other than ‘locked‘.

But is There Case Law?

I am glad you asked … because there is.  In 2015, the Court of Appeals of Virginia ruled on this very matter in Hodges v. Commonwealth, 771 S.E.2d 693 (Va. Ct. App. 2015). Without addressing the extraneous details of the Hodges case, he was charged with a concealed carry violation for a firearm in a center console and one of the questions before the Court was whether the exception noted above applied to the center console of a vehicle which was closed but not locked.

Here is what the Court had to say:

Prior to 2010, unless a limited exception applied, this restriction precluded the transportation of a handgun in a concealed manner in a vehicle, including instances where the firearm was stored in a glove compartment or center console.

In 2010, however, the General Assembly enacted … an additional exception to the general prohibition of Code § 18.2–308(A). That exception … provides that Code § 18.2–308(A)’s prohibition on carrying a concealed weapon “shall not apply to … [a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel….” Thus, it is not a violation of Code § 18.2–308(A) to carry a handgun in a car’s glove compartment or console so long as the gun is “secured.”

We addressed the new exception in Doulgerakis v. Commonwealth, 61 Va.App. 417, 737 S.E.2d 40 (2013).  Reviewing the legislative history that led to the enactment of the exception, the Court determined that “locked” and “secured” were not synonymous, and therefore, a weapon did not have to be in a locked container within the vehicle to fit within the exception. … The Court then defined “secured” as “in safekeeping or custody” or “well-fastened.”

Consistent with Doulgerakis, we [find] that “secured” is not synonymous with “closed.” To fall within the exception, the container within the vehicle must not only be closed, but also must be latched or otherwise fastened.

As we noted in Doulgerakis, “the legislature, by adopting the exception relevant here, determined that a weapon ‘secured in a container or compartment in the vehicle’ was not ‘readily accessible for use or surprise if desired.’ ”

In addition, the Court ruled that this exception is not a statutory defense which the defendant must prove but rather an element which the Commonwealth must prove in order to secure a conviction.  In their words:

[T]he Commonwealth ultimately bears the burden to establish that the allegedly concealed weapon was not secured in a container within the vehicle …

[Applying the test from Foley v. Commonwealth, 63 Va.App. 186, 755 S.E.2d 473 (2014)], the evidence required to establish whether a gun is secured within a console is not “peculiarly within the knowledge of the defendant.”  … In general, when officers discover a weapon in the center console of a vehicle, they will have knowledge at least equal to that of the defendant as to whether the console was locked, latched or otherwise secured. In this case, the officers had superior knowledge because the officers actually opened the console. Accordingly, despite an officer not being able to recall at trial whether or not the console was latched, the officers possessed that information at the time that the console was opened.

The Court then summarized their logic by stating that:

As noted above, the 2010 enactment of this exception represented a significant change in the law of the Commonwealth. Aware of our decisions in Leith and other similar cases, the General Assembly chose to effectively reverse those holdings, making the policy choice that, going forward, a weapon, secured in a container (such as a center console) within a vehicle, would not be considered a concealed weapon for the purposes of Code § 18.2–308. It would be anomalous for the General Assembly to have made such a sweeping change in the law of the Commonwealth only to implicitly place on a citizen the burden of asserting that very change.

“[W]e assume legislative familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law.” Washington v. Commonwealth, 46 Va.App. 276, 281, 616 S.E.2d 774, 777 (2005). Given the legislative language selected, it is clear that, in this instance, the assumption is more than a convenient legal fiction.

While this is a great deal to digest for those who do not regularly read case law, the highlighted section above does a good job of summarizing the Court’s finding.

So where does this leave Bob?

The short answer is that Bob needed counsel who was familiar with firearms law.  He did not retain me so I do not know what outcome he received in his case but I hope his counsel was able to properly defend him.

If you have a firearms issue, I strongly advise you to contact me, or another attorney who is intimately familiar with firearms law, to give you the best chance of a positive outcome in your case.

Posted in Concealed Handgun Permit, Criminal Law, Virginia Concealed Handgun Permit, Virginia Courts, Virginia Law | Comments Off on Does a center console count as a ‘secured container’ for purposes of the Virginia concealed carry law?

In Virginia a successful appeal of an involuntary commitment does not restore gun rights

Yes … you read that correctly.  If you are involuntarily committed for mental health treatment, appeal that commitment, and win said appeal, it does NOT remove the prohibition the initial commitment placed upon your right to purchase, possess, and transport firearms.

How Did We Get Here?

In 2013, in the case of Paugh v. Henrico Area Mental Health 286 Va. 85 (Va. 2013), the Virginia Supreme Court ruled that the statutory framework requires a circuit court handling an appeal of an involuntary commitment to determine whether the appellant meets the commitment criteria on the date of the appeals hearing rather than reevaluating the evidence of the appellant’s mental status at the time of the commitment.

What this effectively meant was that almost all involuntary commitments could conceivably be overturned on appeal (and therefore gun rights would be restored) if the appellant had recovered sufficiently from the mental health crisis that lead to the initial commitment by the time the appeals hearing was held.

So What Happened Next?

In 2020, the Democrat-controlled General Assembly passed S684 to address the issue.  However, they did not correct the errors in the statutory framework regarding the appeals process that required the ruling in the Paugh case.  Instead, they modified § 18.2-308.1:3(A), which governs the prohibition that attaches when a person is involuntarily committed to make the results of any appeal immaterial.

They changed the relevant section from:

A. It shall be unlawful for any person (i) involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to § 19.2-169.2, (ii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as the result of a commitment hearing pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, (iii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as a minor 14 years of age or older as the result of a commitment hearing pursuant to Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1

To:

A. It shall be unlawful for any person (i) involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to § 19.2-169.2, (ii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as the result of a commitment hearing pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, notwithstanding the outcome of any appeal taken pursuant to § 37.2-821, (iii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as a minor 14 years of age or older as the result of a commitment hearing pursuant to Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, notwithstanding the outcome of any appeal taken pursuant to § 16.1-345.6,

In other words, anyone who is involuntarily committed and wishes to have their firearms rights restored, regardless of the status of any subsequent appeal, must petition the court pursuant to § 18.2-308.1:3(B) to remove the prohibition.

One final note … the modification of the statute was silent as to how to handle those persons who had won appeals prior to the modification going into effect and who had therefore been removed from the mental health database maintained by the Virginia State Police.   I do not believe that there will be any effort to re-add those persons to the prohibited list but anyone in such a position should be aware of the possibility.

Posted in Gun Rights Restoration, Mental Health, Virginia Courts, Virginia Law, Virginia State Police, Virginia Supreme Court | Comments Off on In Virginia a successful appeal of an involuntary commitment does not restore gun rights

Moving Individually Owned NFA Items to Your Trust

This guide will walk you through every step of the process to move individually owned NFA items to your NFA Trust and make it as easy as possible.  The fields referenced are based upon the September 2019 revision of the Form 4.  As new revisions of the form are released, I will update this guide.

Getting Started

The Form 4 is available for download from the ATF website.  You should save it to your computer and open it with Adobe Reader (rather than editing it in your browser) then it will auto-copy the data you type into the ‘ATF Copy’ to the ‘ATF Copy 2’ and the ‘CLEO Copy’.

Form 4 – Page 1

  • Box 1 will usually be checked for $200.  The one exception is when the item you are transferring is an Any Other Weapon (AOW).  In that case, the amount checked will be $5.
  • Box 2a should contain the name of your trust (exactly as it appears on the header of the trust document) and the mailing address for the location where the item will initially be stored.
  • In Box 2a you should also check the box for TRUST.
  • Box 2b should contain the name of the county in which the physical address from 2a is located.  Note: Virginia is one of the few states where there are independent cities that are not part of the surrounding counties. If you live in an independent city (like Alexandria for example) then put your city in 2b (e.g.  “Alexandria City”).
  • Box 3a should contain your name (exactly as it appears on the current (individual) tax stamp) and your current mailing address.
  • Box 3b should contain your email address.
  • Box 3c should contain your telephone number.
  • Box 3d and 3e should usually be left blank.
  • Boxes 4a through 4h should be copied directly from the current individual tax stamp.
  • Unless you own the item as a C&R FFL holder, then boxes 5, 6, 7, and 8 should be left blank.
  • Sign your name in Box 9.  Important:  The ATF requires all signatures to be in either blue or black ink.
  • Box 10 should contain your name (as it appears on the current tax stamp) followed by “- SELF”.
  • Box 11 should contain the current date.

Form 4 – Page 2

  • Box 12 should contain the information about your CLEO.
  • Box 13 should have the name of the trust in the first blank and ‘all lawful purposes‘ in the second blank.
  • Box 14, 15, 16, and 17 should be left blank.  For trust applicants, these background questions and photos will be part of a separate form for each ‘responsible person’ (Form 23) for which I will provide instructions further down in this guide.

Form 4 – Page 3

  • On the top of Page 3 sign your name and add “as trustee” at the end then enter the date in the accompanying field.  Important:  The ATF requires all signatures to be in either blue or black ink.
  • Box 21 should contain the number of responsible persons on the trust.  I have a detailed article here laying out which persons on your trust are considered ‘responsible persons’ but the short answer is that you are a responsible person and so are those people listed on Schedule B of your trust.  If you want to remove joint trustees from your Schedule B before submitting your application I have a guide to doing so here.
  • Box 22 should contain your full legal name and the full legal names of all those on Schedule B of your trust.
  • Box 23 should contain your method of payment and, if you are paying with a credit card, the information about the credit card and the amount being paid.  You only need to sign in Box 20 if you are paying with a credit card.  Important:  The ATF requires all signatures to be in either blue or black ink.

A Completed Sample of Form 4

The following sample form illustrates what a completed Form 4 transferring an individually owned item into a trust should look like.

Download (PDF, 1.74MB)

Turning to the Form 23

A copy of the new ‘responsible person’ form 5320.23 (Form 23) will need to be completed by each ‘responsible person’ of the trust listed in Box 22 of the Form 4.

Important Note:  Your fellow ‘responsible persons’ will find it much easier to complete this form if they have a copy of the completed Form 4 in front of them.  

The Form 23 may be downloaded from the ATF website. It is well designed with fillable fields which auto-transfer the data to additional copies (this only works if you use Adobe Acrobat Reader instead of your browser).  I will instruct you where to send each copy later in this guide.

You, and any Joint Trustees listed on Schedule B of your trust, should download the form and each one complete it according to the following instructions:

Form 23 – Page 1

  • In Box 1 you should check the box for Form 4.
  • In Box 2 you should copy the trust name and address from Box 2a on the Form 4.
  • In Box 3a you should put your full legal name and your home address.
  • In Box 3b you should put your telephone number.
  • In Box 3c you should put your email address.
  • If you have changed your name at any time during your life, including being married, then Box 3d should contain all other names you have ever used.
  • In Box 3e you will affix a 2×2 passport-quality photo taken within the last year (on the ATF copy of the form only).  As I noted here, many NFA dealers offer in-store photography options so you should check with your local gun store.  Failing that, Walgreens is a common provider of this service in many towns.
  • In Box 4a, you should copy the type-of-firearm from Box 4b of the Form 4.
  • In Box 4b you should copy the name and location from Box 4a of the Form 4.
  • In Box 4c you should copy the model from Box 4d of the Form 4.
  • In Box 4d you should copy the caliber and UOM from Box 4c of the Form 4.
  • In Box 4e you should copy the serial number from Box Box 4g of the Form 4.
  • Box 5 should contain your Social Security Number.  This is an optional field but including it should dramatically decrease your processing time.
  • Box 5 should also contain your date of birth.
  • Box 6a should contain your ethnicity
  • Box 6b should contain your race
  • Box 7 should contain the information regarding the CLEO whose jurisdiction includes the home address in Box 3a of this form.

Form 23 – Page 2

  • You will need to answer the questions in Boxes 8, 9, 10, and 11 as they apply to you, the person completing the form.  In the example below, I am completing them as I personally would answer them but you will need to answer them truthfully as they apply to you!
  • Note: If you have been convicted of a felony but have since had your gun rights restored then the instructions state you should answer question 8b as ‘No’.  However, I strongly advise you to attach a copy of your restoration paperwork to the Form 23 when submitting it to the ATF.
  • You will sign the certification following Box 11.  (More about this in the signing section below)
  • You should enter the date in the field to the right of the signature block.

A Completed Sample of Form 23

The following sample form illustrates what a completed form should look like.

Download (PDF, 744KB)

Printing The Completed Form 23

Once you have completed the Form 23, you will need to print it.  It will print 2 copies.  You should now affix your photo to the ATF copy of the Form 23 only. (DO NOT USE STAPLES)

Signing the Completed Form 23

The only place you will need to sign the Form 23 is following the certification statement below Box 11.  You do NOT add “as trustee” to your signature on this form.

Do not forget to sign both copies of the Form 23.

Important:  The ATF requires all signatures to be in either blue or black ink.

Notifying Your CLEO

The Settlor of the trust will need to mail his or her CLEO (From Box 7 of the Form 23) the CLEO copy of the Form 4 and the CLEO copy of their Form 23.

All other responsible persons will only need to mail his or her CLEO (From Box 7 of their Form 23) the CLEO copy of their Form 23.

Important Note:  The CLEO copy of the Form 23 does not have a photo affixed.  You should also not send fingerprint cards to the CLEO.

Fingerprint Cards

Each Form 23 to be sent to the ATF will need to be accompanied by fingerprints of the responsible person taken on 2 FBI (FD-258) fingerprint cards.  As I noted here, many NFA dealers offer in-store fingerprinting so you should check with your local gun store.  Failing that, you should be able to get fingerprinted at your local law enforcement agency.  No matter who does the fingerprinting, you should make sure that they use the correct FD-258 cards.

Mailing the Completed Form 4 Packet to the ATF

Now we need to prepare the packet to mail to the ATF.  Note that If you are building more than one NFA item, you will need a separate packet for each item.

This packet should include:

  • The first 2 copies of the completed Form 4 with original signatures in blue or black ink on both copies.  (These are marked ATF Copy and ATF Copy 2 on the bottom of the forms)
  • The ATF Copy of the Form 23 for each responsible person of the trust with photos affixed and fingerprint cards included. (DO NOT STAPLE)
  • A single copy of your notarized trust instrument (including all schedules and amendments)
  • Payment for the amount of the tax ($200) payable to BATFE (unless you entered credit card info on the Form 4)

The entire packet should be mailed to:

National Firearms Act Division
Bureau of ATF
PO Box 5015
Portland, OR 97208-5015

If this guide leaves any questions unanswered, please feel free to contact me.

Posted in 41F, ATF, BATFE, CLEO Notification, FAQ, Form 4, NFA Transfers, NFA Trusts, Tax Stamp | Comments Off on Moving Individually Owned NFA Items to Your Trust