UPDATE AS OF AUGUST 14, 2017: Please see this blog post for the most recent developments with photo IDs and Virginia CHPs.
I recently announced that the Court of Appeals ruled in favor of my client on a case that challenged whether the Norfolk Circuit Court could require a photo ID as part of a Concealed Handgun Permit (CHP) application. The Court of Appeals agreed with all of our arguments that the circuit court cannot require a photo ID. The Norfolk Circuit Court was ordered to process my client’s CHP application without a photo ID, as he had originally submitted it.
For those readers that want a little more information about the case, I thought it necessary to offer some more details, as well as a brief discussion of why this case is important.
The following discussion is broken up into these segments:
1) The law. Circuit courts are prohibited from requiring additional information from CHP applicants, other than what is required on the application itself.
2) The facts. My client declined to provide his photo ID. As a result, his CHP application was denied
3) The Court of Appeals’ opinion. The law means what it says. Circuit courts cannot require a photo ID as part of a CHP application.
4) Why is this case important? Virginia is a “shall issue” state. If the court can add additional requirements to the CHP application, then the process is no longer “shall issue.” At that point, it begins to look like “may issue.”
5) What happens from here? Hopefully the circuit courts will receive corrective guidance. Just in case, we are sharing the Court of Appeals’ opinion for anyone else that may need it.
6) Is there ever a situation where the court can require a photo ID with a CHP application? Yes. The clerk’s office can require a photo ID when they are acting as a Notary Public. If an applicant asks the clerk to notarize the CHP application, the clerk can and will (and should) require a photo ID to verify person’s identity.
Circuit courts cannot request or require additional information from a CHP applicant other than what is required on the application or by the code.
To get a CHP in Virginia, an individual must submit an application to the circuit court in the city or county where they live. Virginia law is very clear about what must be submitted when applying for a CHP (e.g., a completed and notarized application, the filing fee, proof of handgun competency for first-time applicants, etc.).
The law is also very clear about whether the court can require more information or documentation from the applicant. Specifically, Code §18.2-308.02 states that “no information or documentation other than that which is allowed on the application in accordance with this section may be requested or required by the clerk or the court.”
The CHP application requires certain information to be submitted, and in certain places, the CHP application may require additional documentation to be included (e.g., past addresses for 5 years, proof of handgun competency for first-time applicants, etc.). Additional documentation is also required in a variety of circumstances if the applicant had their firearm rights revoked and restored.
Importantly, the CHP application never mentions a photo ID. Therefore, because a photo ID is not required by the application, the court is prohibited from requiring that the applicant provide a photo ID.
Notwithstanding the language in §18.2-308.02, several circuit courts routinely require individuals to produce additional documentation, including photo IDs, when they apply for a CHP.
In this case, my client submitted his renewal application to the Norfolk Circuit Court. A few days later, the clerk’s office sent the client an email requesting that he provide a copy of his photo ID. According to the clerk’s office, a photo ID was necessary to conduct the background check. My client replied to the clerk’s office by correctly quoting §18.2-308.02 and declined to provide his ID.
The court denied the application on the basis that my client had “refused to submit to a background check by refusing to provide a government ID.”
When the court denied his application, we requested an ore tenus hearing in front of a judge. At that hearing, we explained why the client declined to provide his photo ID. We also argued that §18.2-308.02 prohibited the court from requiring a photo ID. Finally, we explained that the client had never refused to submit to a background check; he merely declined to provide his ID.
The circuit court judge was less-than-receptive to our arguments. The circuit court denied my client’s application again on the basis that he had “not provided the necessary information to complete the application satisfactory to the court.”
From there, my client made the difficult decision to appeal his case to the Court of Appeals of Virginia.
The opinion from the Court of Appeals of Virginia can be found here:
The Court of Appeals ruled in favor of my client on each and every point. The opinion is a fantastic, 100% win.
The Court of Appeals ruled in our favor on each of our arguments.
1. “The circuit court impermissibly required [my client] to produce his photo ID.”
2. “The circuit court, in conjunction with the appropriate sheriff or police department, is responsible for obtaining the background check, and the circuit court here incorrectly suggested [my client] would have to obtain the report himself.”
3. “In this case, the circuit court erroneously denied [my client’s] application for the reason that [he] refused to provide documentation not required by statute.”
And in summary: “In short, the reason given by the circuit court for denying the permit is simply wrong.”
After all, a photo ID is not that big of a deal, right? Why not just give the court a copy of the ID and be done with it?
The answers are this:
Virginia is a “shall issue” state. If a court can add to the application requirements, then it is no longer “shall issue.”
What might the court require next?
Virginia is a “shall issue” state. “Shall issue” means that if the individual meets the qualifications in the statute, the judge must issue the permit (i.e., “shall issue”). The judge does not have the option to add additional requirements to the application process. Nor does the judge have the option to ask whether an individual “needs” or “deserves” a concealed permit. If the person meets the qualifications, the judge “shall issue” the permit. Plain and simple.
There are, however, several states that are considered “may issue.” Generally speaking, “may issue” means that the judges in those states usually have the discretion to deny a permit based on their own personal judgment. “May issue” states often require the applicant to show a “good and sufficient reason” or a “specific need” why they “need” or “deserve” a permit. In those states, one’s status as a person is not a sufficient reason to exercise the God-given right of self-defense (which includes the right to have the most effective and readily available tools of self-defense at one’s disposal).
In this case, to be clear, there is absolutely no evidence or accusation that the circuit court denied my client’s CHP application on the basis of personal bias or any other improper motive. A simple error does not, at all, imply impropriety.
Nonetheless, the line must be drawn somewhere. This case was about a photo ID. What will happen next time if we, as citizens, do not draw the line here?
As of the writing of this article, there are several circuit courts that purport to require applicants to show additional “proof of residency,” even though this is not required by the application. Even today, there are still circuit courts that purport to require photo IDs.
These may seem like minor inconveniences, but if we do not draw the line here, then where? Do we draw the line when judges start asking applicants to come to the courthouse for personal interviews? (This has happened in the past.) Do we draw the line when judges deny CHPs to active duty military on the dubious basis that the applicants intend to move back to their home states after their enlistments? (This has also happened.) Do we draw the line when judges begin asking applicants whether they have a “specific need” to carry a concealed handgun? If it gets that far, I fear we may have waited too long.
No, we draw the line here because legal rights must be protected. We cannot allow the right to a CHP to be eroded through complacency over "minor inconveniences." The law means what it says. The law says that circuit courts are not allowed to request or require additional information. A photo ID is additional information. Therefore, the court is not allowed to require a photo ID. It is that simple.
Under most circumstances, when the Court of Appeals of Virginia (or the Virginia Supreme Court) decides a case, the court’s opinion is reported and published for anyone to read. That opinion is usually “binding” on the lower courts. That is, the lower courts are bound to follow the higher court’s opinion when they decide similar cases in the future. At the same time, lawyers can use the published opinion to argue why future cases should be decided the same way (or differently).
Unfortunately, CHP cases are different. Virginia law prohibits the courts from disclosing any information about permit holders. This privacy provision was originally enacted to prevent aggressive journalists from publicizing permit holders’ names and addresses. However, as a consequence of this privacy provision, the Court of Appeals of Virginia is also prohibited from reporting or publishing an opinion about a CHP application, because to do so would necessarily disclose information about the permit holder.
This means that the Court of Appeals will not release, report, or publish my client’s case. Other lawyers will not have access to the opinion to use for future cases. I am hopeful that the Court of Appeals might issue some guidance to the circuit courts on this issue, but there is no way to know whether that will occur.
Even though my client could have maintained his privacy at the end of this case, he has decided to share the opinion for anyone else that may need to use it.
Because this is not a reported or published opinion, it is not “binding” authority. Nonetheless, it should serve as strong persuasive authority for circuit courts to consider when deciding similar cases.
According to my client, “Hopefully, this will prevent someone else from having to go through the same thing.”
Click here access the full opinion from the Court of Appeals of Virginia.
There is one partial exception about requiring a CHP applicant to produce a photo ID: The clerk’s office can require a photo ID when they are functioning as a Notary Public.
The CHP application must be notarized. A Notary Public must verify the identity of the person who is signing and acknowledging the document. That is usually done with a photo ID.
A CHP applicant is free to have their application notarized by any Notary Public. For example, if an individual has their application notarized before submitting it to the circuit court (e.g., at their local bank), then the circuit court may not request or require a photo ID from the applicant.
If, however, the individual is asking the clerk’s office to notarize the CHP application, then the clerk will very likely require a photo ID in order to verify their identity.
In this very specific situation, a clerk’s office may require a photo ID, but it is doing so as a Notary Public, not in accepting the CHP application.
*There are separate rules for non-resident CHP applications, which involve the submission of photos and a fingerprint card, which usually require a photo ID to obtain. Those applications are submitted directly to the Virginia State Police and do not involve the circuit court.
If you were denied a CHP application, call the office for a free consultation. Do not delay. There are very specific deadlines that must be met in order to preserve your rights.
During the consultation, we will discuss the details of your specific situation and the best course of action to obtain your concealed handgun permit.
Remember that although the office is located in Virginia Beach, my practice extends across all of Virginia. I can handle your case whether you live in Accomack County, Roanoke, Alexandria, or Danville.
Feel free to call the office at (757) 333-7529. Alternatively, feel free to use the Contact Page to submit an inquiry through this website.
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