Debriefing the 2021 WV Legislative Session – Law-Enforcement
By Brian Skinner, Esq.
Of the subjects that you can count on the legislature addressing each regular session, are matters related to crime and law-enforcement. The first session of the 85th West Virginia Legislature was no exception.
Crimes
While no new crimes were created, the legislature did address issues related to punishment. Senate Bill 392 added the potential for jail time for the crime of impersonating a law-enforcement officer. Senate Bill 496 cleaned up an omission in a statute related to sentencing for a second or third offense of a felony.
In somewhat of a rarity, one crime was decreased from a felony to a misdemeanor; the crimes related to lottery tickets in H.B. 2253.
In what some suggested was an omission to the state’s extended supervision statute, S. B. 361 added the crimes of distribution and display to minor of obscene matter (§61-8A-2), using of obscene matter with intent to seduce minor (§61-8A-4) and soliciting a minor via computer (§61-3C-14b) to crimes eligible for extended supervision.
Two other bills that involved crimes did not make it to the finish line when one of the two chambers failed to withdraw its amendments. S.B. 485 would have added “possession” to the current statute that authorizes a separate and distinct felony offense for the use or presentation of a firearm while engaged in the commission of a felony. The House amended the Senate bill, however, the Senate refused to concur with the House amendments and the House did not withdraw its amendment before the legislature adjourned sine die.
The opposite situation occurred with H.B. 2379 which would have made the offense of criminal invasion of privacy by visual portrayal from a misdemeanor to a felony, with a corresponding increase in the penalties. The Senate amended the House bill, however, the House refused to accept the Senate amendments and the bill died at the conclusion of the 60-day session.
Juveniles
Four bills were enacted that involved juveniles. In an effort to strengthen state law on sex trafficking, H.B. 2830 authorizes child victims of sex trafficking to access juvenile adjudication records without a waiting period and provides for immunity from prosecution for child victims of sex trafficking. Child victims of sex trafficking will now be eligible for comprehensive and specialized trauma-informed child welfare services, and a child victim of sex trafficking is authorized to expunge records of a juvenile delinquency adjudication. Finally, the bill also addresses the criminal liability of a person who aids, assists, or abets the trafficking of an adult or child by making a conviction of the offense punishable for 5 to 20 years in prison.
S.B. 562 updated the procedures for establishing juvenile competency to stand trial and to establish disposition alternative for incompetent juveniles and H.B. 2094 authorizes restorative justice programs.
Restorative justice programs are voluntary, community based program that utilize evidence-based practices to provide juveniles with an opportunity to accept responsibility for and participate in setting consequences to repair harm caused by the juvenile against the victim and the community by means of facilitated communication including, but not limited to, mediation, dialogues, or family group conferencing, attended voluntarily by the victim, the juvenile, a facilitator, a victim advocate, community members, or supporters of the victim or the juvenile.
A bill that increasing training requirements saw strong support from the Sheriff’s Association. S.B. 658 requires sheriff’s departments to participate and utilize Handle with Care Program for trauma-inflicted children. The program was piloted at Mary C. Snow West Side Elementary School in Charleston, WV in 2013, and has been lauded by education officials, social service agencies and law-enforcement as a positive way to promote safe and supportive homes, schools and communities that protect children, and help traumatized children heal and thrive.
Pre and Post Trial Procedure
House Bill 3106 extends the time a person charged with a misdemeanor who failed to meet the requirements of a secured bond at his or her initial appearance, is entitled to a second hearing to revisit the issue from 72 hours to five days after the initial appearance.
In a bill intended to address advances in scientific knowledge, specifically situations where a person convicted of a crime later obtains new evidence that was not available at the time of their trial, H. B. 2888 allows a defendant a second opportunity to overturn their conviction when new forensic evidence become available despite having brought a previous habeas corpus action.
Enforcement of federal firearm laws
A bill intended to protect West Virginia law enforcement officers, from being directed, through federal executive orders, agency orders, statutes, laws, rules, or regulations, to enforce federal firearm laws contrary to either the Second Amendment to the U.S. Constitution or Article 3, Section 22 of the WV Constitution, resulted in a great deal of push back by state law-enforcement agencies.
After passing the House, H. B. 2694 was heavily amended by the Senate at the prompting of the Senate Judiciary Chairman, Charlie Trump, in response to the significant concerns voiced by members of law enforcement that the House version would essentially halt collaboration between federal and state law enforcement agencies while also imperiling federal funding.
Senator Trump’s amendment focused the bill on what he argued were the real concerns articulated by House supporters of the bill, specifically that state and local law-enforcement personnel would be commandeered by the federal government to enforce federal firearms laws.
The amended bill prohibits state and local law enforcement from being commandeered by federal law enforcement, and also prohibits state and local law enforcement from —
- participating in the execution of a federal search warrant when the only property sought to be taken and seized under the warrant is firearms, firearms accessories, or ammunition which is lawful for the person, whose premises are to be searched, to possess under the laws of this state;
- participating in the execution of a federal arrest warrant of a citizen of this state or a person subject to the protections of the state constitution and the laws of West Virginia when the federal arrest warrant charges no crime other than the crime of the possession of firearms, firearm accessories, or ammunition which is lawful for the person who is to be arrested under the warrant to possess under the laws of this state;
- enforcing an order under a red flag law against a citizen of this state or a person subject ot [sic] the protections of the laws of this state when the person against whom the order is directed has the lawful right under the laws of this state to possess firearms; or
- arresting or detaining a person who is subject to the protection of the Constitution and laws of this state for the violation of a new inconsistent federal firearms law or inconsistent presidential executive order or action when engaging in a traffic stop or in response to a noise complaint.
In addition to the prohibitions on state and local law enforcement acting to enforce federal firearm laws, the bill deprives West Virginia courts from issuing an order depriving a citizen of this state of his or her right to possess firearms, firearms accessories, or ammunition under any red flag law.
Extreme risk protection orders (ERPO) or “Red flag laws” allow family members or law enforcement to file a petition for a court order to immediately restrict a person’s access to guns for a temporary period of time, because they believe the respondent poses a serious danger of hurting someone with a gun. The tragic rise of mass shootings in the United States has resulted in numerous states adopting such measures to prevent potential threats from access to firearms and ammunition.
Because West Virginia does not have a red flag law, this provision appears to be intended to preempt federal legislation that might be enacted in the future.
While the focus of the bill is prohibiting state and local law enforcement from enforcing gun laws perceived to be inconsistent with state law, the bill also explicitly lists permitted activities that state and local law-enforcement may engage in with its federal counterparts.
The state attorney general is authorized to “commence and prosecute” legal challenges whenever any federal statute, presidential executive order, agency order, federal law, rule, or regulation is determined by the attorney general to infringe upon the right to keep and bear arms affirmed under the Second Amendment to the Constitution of the United States.
The attorney general is also required to publish policies for police departments and agencies providing guidance on resistance to federal commandeering and lawful measures which can be taken by the law-enforcement agencies to protect citizens from the consequences of any attempts or efforts at federal commandeering.
The legislation provides both civil and criminal immunity and employment protections to law-enforcement for refusing to enforce a federal statute, executive order, agency order, rule, or regulation determined by the Attorney General of West Virginia to infringe upon the right to keep and bear arms under the Second Amendment to the Constitution of the United States.
Law-Enforcement Standards
The legislature addressed law-enforcement standards in H.B. 2891 creates minimum standards for hiring of pre-certified law-enforcement officers, reasons for the disqualification of a candidate for entry into basic law-enforcement academy or from certification and the direct supervision of uncertified officers. A bill to include home confinement officers in definition of law-enforcement officers, H.B. 2770, died on the final night of the session when the Senate refused to concur with House amendments to the bill.
Retirement System
Senate Bill 460 makes several changes to the Deputy Sheriff Retirement System Act. The bill adds a definition for “beneficiary”, clarifies preretirement death benefits, addresses conflicting statutory provisions, and adds a severability clause. The House Finance committee amended the bill to provide that member of the retirement system who was appointed sheriff of a county in which retirement contributions were not made to the Deputy Sheriff Retirement System or the Public Employees Retirement System may purchase service credit for the period he or she served as appointed sheriff by remitting the required employee contribution and any interest, and the participating public employer remitting the required employer contribution and any interest thereon. Interest shall accumulate at a rate of 7.5% per annum. Payments for the purchase of service credit authorized by this section must be made in full on or before September 30, 2021.
Firearms generally
The legislature addressed an inconsistency in way firearms are defined at the federal and state levels in S.B. 419 by amending the definition of “firearm” contained in the state criminal code to synchronize it with the definition of “firearm” contained in the federal criminal code (18 U.S. Code § 921). Under federal law, antique firearms are not considered to be “firearms.” The bill adds this exemption to the state law definition of “firearm.”
After almost a year of being under a state of emergency because of the COVID-19 pandemic, the legislature acted to broaden the current law prohibiting state or local government from restricting the lawful possession and use of firearms and ammunition during a state of emergency. S.B. 458 adds to and clarifies the current prohibitions by making them applicable to firearm or ammunition components or accessories, ammunition reloading equipment and supplies, and personal weapons other than firearms.
Despite that fact that a concealed carry permit is no longer necessary in West Virginia, even for non-residents, H.B. 2793 allows residents of other states to obtain a nonresident state license to carry a concealed deadly weapon. The nonresident state license may be issued by a county sheriff for a fee of $100. Concealed weapons licenses may only be issued for pistols and revolvers.
Motor Vehicles
Finally, a bill related to reports of motor vehicle crashes, H.B. 2195 requires the investigating law-enforcement officer to provide the owner, operator, and insurance information, upon request, to the other involved parties, and to each party’s respective insurance agents within 24 hours of a motor vehicle crash. This information shall be made available, at no cost, whether or not the accident report has been completed.
Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.
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