The Supreme Court of Virginia announced today that they were extending the judicial emergency yet again.
Judicial Emergency Timeline
First Order – The Supreme Court of Virginia first declared a judicial emergency on March 16th at the request of the Governor. The declaration was for a period of 21 days which was slated to end on April 6th.
Second Order – On March 27, the Supreme Court of Virginia extended the judicial emergency for a second 21-day period which would have ended next Sunday, April 26th.
Third Order – Today (April 22nd), the Supreme Court of Virginia extended the judicial emergency for a third 21-day period, extending the termination date to May 17th.
For those clients who are anxiously awaiting the ability to schedule (or reschedule) their matters, I would not put any confidence in May 17th being the actual end of the judicial emergency. I think there is a very real chance that it will be extended yet again.
I base this belief on the fact that, in today’s order extending the emergency (see below), the Supreme Court of Virginia specifically noted that the Governor has issued a ‘stay at home‘ order that does not end until June 10th. I do not think that the mention of June 10th in today’s order was mere happenstance. A fourth 21-day period would effectively end with court restarting on Monday June 8th and that would roughly coincide with the end of the governor’s ‘stay at home‘ order.
I hope that I am wrong and the Commonwealth is able to safely resume the operation of our courts before June, but until we know more, we should prepare for that eventuality. I will keep all my clients informed as the situation changes.
“Is it legal to carry an expandable baton in Virginia?” I was asked this question today and thought it would make a good article.
As is often the case with seemingly simple questions like this one, there are nuances that must be addressed. Let’s unpack all the hidden details of this question.
Defining Our Terms
First, we need to define what is meant by an ‘expandable baton’. In addition, and perhaps more importantly, we need to define what it is not.
An ‘expandable baton’, is a nested series of metal or composite rods that can be extended with manual effort, usually the flick of a wrist. They have no mechanical assistance in expanding.
There is a similar device which expands with a spring that the user can actuate. For purposes of this analysis, this is not an ‘expandable baton’ but rather a ‘spring stick’.
The legal definition of a ‘spring stick’ is found in § 18.2-307.1, which defines it as “a spring-loaded metal stick activated by pushing a button that rapidly and forcefully telescopes the weapon to several times its original length.”
Now that we have our definitions in order, we can continue unpacking the other issues involved in answering the question.
Sale / Purchase
In order to ‘carry’ an item, you must be able to purchase and possess it. This additionally implies that it must be legal for the item to be sold to you in the first place. So we will first look to see if there is any legal prohibition on the sale, purchase, or possession of expandable batons in Virginia.
The only law which might apply is § 18.2-311 which states:
If any person sells or barters, or exhibits for sale or for barter, or gives or furnishes, or causes to be sold, bartered, given or furnished, or has in his possession, or under his control, with the intent of selling, bartering, giving or furnishing, any blackjack, brass or metal knucks, any disc of whatever configuration having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart, switchblade knife, ballistic knife as defined in § 18.2-307.1, or like weapons, such person is guilty of a Class 4 misdemeanor. The having in one’s possession of any such weapon shall be prima facie evidence, except in the case of a conservator of the peace, of his intent to sell, barter, give or furnish the same.
Given that an expandable baton is not in any way a blackjack, which is a flexible, leather-covered hand weapon that has a handle on one end and is weighted on the other, there is nothing in this statute which could be read to prohibit the sale, barter, or transfer of an expandable baton.
So now we are back to the heart of our question … “Is it legal to carry an expandable baton in Virginia?”
When we talk about carry of a self-defense item, we often distinguish between open and concealed carry. We do this for the simple reason that there are many items that are legal to carry when they are not concealed but are illegal to carry concealed … even with a permit.
And that bring us to one of the common misconceptions I encounter. Many people still believe that Virginia issues a ‘Concealed Weapons Permit’. While that used to be the case, it is now a ‘Concealed Handgun Permit’ and no longer allows other enumerated weapons to be carried concealed upon the person.
Having set the stage for our analysis, we have two questions we need to ask. “Is there a law making it illegal to possess or carry an expandable baton openly, and, if not, are they among the enumerated list of items that cannot be carried concealed upon the person?”
The answer to the first question is “no”. There is no law in Virginia making it illegal to openly carry an ‘expandable baton’.
The answer to the second question is “no” as well but this answer comes with something of a caveat. The concealed carry statute, located at § 18.2-308, prohibits the concealed carry of:
(i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material;
(ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack;
(iii) any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain;
(iv) any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart; or
(v) any weapon of like kind as those enumerated in this subsection
Since we have already discussed the definitional differences between an ‘expandable baton’ and a ‘blackjack’ or ‘spring stick’, the only possible provision which might be used to prosecute the concealed carry of an expandable baton is subsection (v) which broadly sweeps in weapons “of like kind.”
The question then becomes whether an officer or Commonwealth’s Attorney could possibly consider an expandable baton which extends manually via a flick of the wrist to be “of like kind” with a spring-loaded stick that actuates by the push of a button.
I believe any such attempt would strain credulity but I would be remiss in my duty if I didn’t note that it is not impossible that such an attempt could be made. I have done a cursory search of case law and have found no such cases but it was not an exhaustive search.
So … “Is it legal to carry an expandable baton in Virginia?” I believe the answer is “yes” with the qualifications noted in the previous section.
Disclaimer: This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states. If you have further questions about this topic, please feel free to contact me for a free consultation.
Earlier today (November 12, 2019), the VSCC released their report.
It had been my hope that the report would contain technical details to counteract the significant amount of misinformation regarding items such as suppressors and so-called ‘assault firearms’. However, that is not what we received.
On the other hand, the report also does not provide any support for the governor’s recommendations, rather noting that “inconclusive evidence exists to develop recommendations.”
Further commentary will follow. In the meantime, the complete report is embedded below:
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