The latest with Va. concealed handgun permits and photo IDs.
August 14th, 2017
Beginning on July 1, 2017, Virginia residents are now required to present a photo ID when they apply for a concealed handgun permit (“CHP”). As explained below, this is a significant change in the CHP application process, but the “shall issue” framework is still very much intact.
The “shall issue” framework and the old law.
It is important to note that, in the context of concealed handgun permits, Virginia is a “shall issue” state. That is, the courts have very little discretion over whether to grant or deny a CHP. Unlike some other states, Virginia judges do not have the authority to grant or deny a CHP based on their own personal opinions. For example, judges are not permitted to ask whether an individual “deserves” a permit or whether they have a “sufficient need” to carry a concealed handgun.
In Virginia, the applicant is either qualified to receive the permit, or they are not. There is no “judgment call.” The eligibility requirements for the permit are set forth in the Code §18.2-308.02. The disqualifications are specifically listed as well in Code §18.2-308.09.
If an applicant meets the requirements, they must be issued a CHP. The court “shall issue” the permit. Conversely, if an applicant does not meet the requirements, or if they are disqualified for some reason, they will be denied a CHP. It is that simple.
An important part of the "shall issue" framework is that circuit courts are prohibited from requiring “extra” information or documentation from an applicant. For example, a court cannot require an applicant to submit proof of income, letters of reference, or employment history. The court is only allowed to request the “information or documentation…which is allowed on the application” and that is required by the statute. See §18.2-308.02(A).
Before July 1, 2017, this meant that circuit courts were NOT allowed to request or require a photo ID from an applicant. In December of 2016, I announced an important victory for a client who had been denied a CHP because he (properly) refused to provide a photo ID. The Virginia Court of Appeals ruled in favor of my client and held that the circuit court could NOT require a photo ID because — at that time — it was not required on the application or by the statute.
The new law.
In 2017, the Virginia General Assembly changed the application requirements in two ways:
The CHP application is no longer required to be notarized.
Applicants are required to provide a valid, government-issued photo ID.
These changes go hand-in-hand. The primary purpose of the notary requirement was to verify the identity of the applicant. Now that a photo ID is required, it is no longer necessary to bother with the notary.
It should be noted that the photo ID requirement is slightly different for first-time applicants and renewal applicants.
For first-time applicants, “the applicant shall present one valid form of photo identification issued by a governmental agency of the Commonwealth [or a military ID or a passport].” This is in keeping with a fairly standard practice that first-time applicants must submit their application to the circuit court clerk “in person.”
For renewal applicants, the applicant must include a “photocopy of the applicant’s valid photo identification…via the United States mail.”
Renewal applicants were allowed to submit their application by mail before July 1, but the application had to be notarized. For many applicants, this required tracking down a notary public to notarize the application. After July 1, however, an applicant can simply mail a photocopy of their photo ID rather than waste time tracking down a notary.
The new law in the context of the “shall issue” framework.
Even with the recent change, Virginia is still a "shall issue" state. The courts still have the same level discretion over the CHP application and approval process. The only difference is what is required to be submitted with the application.
Moreover, just like before, circuit courts are still prohibited from requesting or requiring additional information or documentation, other than what is required on the application and by the statute. The only difference is that now, after July 1, 2017, a photo ID is specifically required by the statute.
As for the Court of Appeals’ opinion from 2016, the General Assembly may have specifically changed the application requirements, but the Court’s overall reasoning is still sound. The General Assembly writes the laws that say what is or is not required on the application. The circuit courts must follow that law by not requiring “extra” information from an applicant.
If you have been wrongfully denied a Virginia concealed handgun permit, please contact the office as soon as possible. There is a 21-day deadline to file the necessary motion to ask for a hearing in front of a judge. You must contact an attorney immediately.
During the initial consultation, we will discuss all of the details of your situation and the best options to obtain your CHP.
Feel free to call the office at (757) 333-7529. Or you can send a message via the Contact Page.
Categories: Concealed Handgun Permit