Concealed Weapons For Retired Officers

Clarification of Code by the Attorney General

By Sheriff Gary W. Waters
Portsmouth Sheriff's Office

     In February of 1998, I was approached by a fellow member of Virginia State Crime Clinic Chapter 1 to write for an opinion from the attorney general in regard to the then-recent changes in the concealed-weapon laws -- changes which had a substantial impact on retired law enforcement officers.
     See below a copy of the letter I wrote to Attorney General Mark Early, as well as his response to me. As a result of his answers, I now issue identification cards containing the concealed-weapon statute to all of my lawfully retired deputies. Additionally, the Portsmouth and Chesapeake police departments are also using this system for their retired identification cards.
     Hopefully, this information will provide other departments a clear guideline for their retired officers.

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Legislative Proposals

The Honorable Mark Earley
Attorney General
900 East Main Street
Richmond, Virginia 23219

Dear General Earley:
     Section 18.2-308(B)(8) states, "Any State Police officer retired from the Department of State Police and any local law-enforcement officer retired from a police department or sheriff's office within the Commonwealth (i) with a service-related disability or (ii) following at least fifteen years of ser- vice, other than a person terminated for cause, provided such officer carries with him written proof of consultation with and favorable review of the need to carry a concealed weapon issued by the chief law-enforcement officer of the agency from which the officer retired." My question is: Does a valid retired identification card issued and signed by the agency head, i.e. chief or sheriff, meet the requirements of this section to carry a concealed weapon?
     Section l8.2-308(J3) states, "No person shall carry a concealed handgun onto the premises of any restaurant or club as defined in 4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board under Title 4.1 of the Code of Virginia; however, nothing herein shall prohibit any owner or event sponsor or his employees from carrying a concealed handgun while on duty at such restaurant or club if such person has a concealed handgun permit."
My question is: Are those persons authorized under l8.2-308(B)(8) ex- empted from Section l8.l-308(J3)?
     Your assistance is greatly appreciated and will serve to clarify this code section for many retired police officers and sheriff's deputies.

Sincerely,
Gary W. Waters
Sheriff

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The Honorable Gary W. Waters
Sheriff for the City of Portsmouth
701 Crawford Street
Portsmouth, Virginia 23704-3888

My Dear Sheriff Waters:
     You inquire regarding § 18.2-308 of the Code of Virginia, which regulates the carrying of concealed weapons in the Commonwealth.
     You ask first whether a valid retired identification card issued and signed by the head of a retired officer's law enforcement agency meets the requirements of § 18.2-308(B)(8).
Section 18.2-308(A) generally makes the carrying of a concealed weapon a Class I misdemeanor.1 Section 18.2-308(B) excludes from the prohibition those persons or situations fitting within one of eight enumerated categories. Section 18.2-308(B)(8) covers "[a]ny State Police officer retired from the Department of State Police, [and] any local law enforcement officer retired from a police department or sheriff's office within the Commonwealth" if such officer meets the specified requirements.2 The first requirement is that the officer must have retired "(i) with a service-related disability or (ii) following at least fifteen years of service."3 The second requirement is that the officer must carry with him "written proof of consultation with and favorable review of the need to carry a concealed handgun issued by the chief law-enforcement officer of the last such agency from which the officer retired."4
     A rule of statutory construction requires that, where there is no ambiguity in a statute, the statute is not to be construed but is to be given effect in accordance with its plain meaning and intent.5 Section 18.2-308(B)(8) clearly and unambiguously provides the requirements that must be satisfied for a retired law-enforcement officer to be exempt from the prohibitions contained in § 18.2-308. In addition to a service requirement, the officer must carry "written proof of consultation with and favorable review of the need to carry a concealed handgun issued by the chief law-enforcement officer of the last such agency from which the officer retired."6 It is my opinion that if a retired-officer identification card contains this information, the card satisfies the written-proof requirement of § 18.2-308(B)(8). If the card identifies the holder as a retired law enforcement officer but does not contain the additional required information, it does not satisfy the requirement.
     You also ask whether persons who satisfy the requirements in § 18.2- 308(B)(8) also are excluded from the prohibition in § 18.2-308(J3) against carrying a concealed handgun into a club or restaurant licensed by the Virginia Alcoholic Beverage Control Board "to sell and serve alcoholic beverages for on-premises consumption."7 Section 18.2-308(B) provides that "[t]his section shall not apply to" the listed classes. (Emphasis added.) The "section" to which § 18.2-308(B) refers is clearly § 18.2-308, the statute within which subsection B is contained. Consequently, the language "[t]his section" clearly indicates a legislative intent to exclude from all of § 18.2- 308 the persons who are within the classes enumerated in § 18.2-308(B). Accordingly, it is my opinion that a retired law enforcement officer who meets the criteria outlined in § 18.2-308(B)(8) is not prohibited from carrying a concealed handgun into a club or restaurant licensed to sell and serve alcoholic beverages.

     With kindest regards, I am
Very truly yours,

Mark L. Earley
Attorney General

1. A second violation of § 18.2-308 constitutes a Class 6 felony, and a third violation constitutes a Class 5 felony.
2. Section 18.2-308(B) provides: "This section shall not apply to:
"8. Any State Police officer retired from the Department of State Police, any local law enforcement officer retired from a police department or sheriffs office within the Commonwealth and any special agent retired from the Alcoholic Beverage Control Board (i) with a service-related disability or (ii) following at least fifteen years of service with any such law enforcement agency, board or any combination thereof, other than a person terminated for cause, provided such officer carries with him written proof of consultation with and favorable review of the need to carry a concealed handgun issued by the chief law-enforcement officer of the last such agency from which the officer retired or, in the case of special agents, issued by the Alcoholic Beverage Control Board. A copy of the proof of consultation and favorable review shall be forwarded by the chief or the Board to the Department of State Police for entry into the Virginia Criminal Information Network.
"For purposes of applying the reciprocity provisions of subsection P, any person granted the privilege to carry a concealed handgun pursuant to this subdivision, while carrying the proof of consultation and favorable review required, shall be deemed to have been issued a concealed hand- gun permit."
3. Section l8.2-308(B)(8). The officer also must not have been terminated from service for cause. Id.
4. The Alcoholic Beverage Control Board is- sues the proof of consultation and favorable ser- vice for special agents retired from the Board. Id. 5. See Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982); 1996 Op. Va. Att'y Gen. 152, 153.
6. Section 18.2-308(B)(8). 7. Section 18.2-308(J3) provides: "No person shall carry a concealed handgun onto the premises of any restaurant or club as defined in § 4.1- 100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board under Title 4. 1 of the Code of Virginia; however, nothing herein shall prohibit any sworn law-enforcement officer from carrying a concealed handgun on the premises of such restaurant or club or any owner or event sponsor or his employees from carrying a concealed handgun while on duty at such restaurant or club if such person has a concealed handgun permit."