WEST virginia legislature
2020 regular session
Senate Bill 96
Senators Trump, Cline, Rucker, Azinger, Maynard, Roberts, Sypolt, Smith, Romano, and Facemire, original sponsors
[Originating in the Committee on the Judiciary; reported on February 5, 2020]
A BILL to amend and reenact §8-12-5a of the Code of West Virginia, 1931, as amended, relating to prohibiting municipalities from limiting in any manner inconsistent with or in conflict with state law, the rights of persons to purchase, possess, transfer, own, carry, transport, sell, or store deadly weapons, firearms, or pepper spray; defining terms; extending restrictions on municipal regulation of firearms to pepper spray and deadly weapons; removing authority of municipalities to prohibit possession of deadly weapons or pepper spray in areas where temporary events are held; and limiting award of attorney’s fees and costs to petitioners prevailing in certain actions.
Be it enacted by the Legislature of West Virginia:
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES, AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES, AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.
§8-12-5a. Limitations upon municipalities’ power to restrict the purchase, possession, transfer, ownership, carrying, transport, sale, and storage of certain weapons and ammunition.
Except as provided
by the provisions of this section and the provisions of §8-12-5 of this code,
neither Neither a municipality nor the governing body of any
municipality may, by ordinance or otherwise, limit the right of any person to
purchase, possess, transfer, own, carry, transport, sell, or store any revolver,
pistol, rifle or shotgun deadly weapon, firearm, or pepper spray, or
any ammunition or ammunition components to be used therewith nor to so regulate
the keeping of gunpowder so as to directly or indirectly prohibit the ownership
of the ammunition in any manner inconsistent with or in conflict with state
(b) For the purposes of this section:
(1) “Deadly weapon” has the meaning provided in §61-7-2 of this code.
(2) “Firearm” has the meaning provided in §61-7-2 of this code.
(1) (3) “Municipally owned or operated building”
means any building that is used for the business of the municipality, such as a
courthouse, city hall, convention center, administrative building, or
other similar municipal building used for a municipal purpose permitted by
state law: Provided, That “municipally owned or operated building” does
not include a building owned by a municipality that is leased to a private
entity where the municipality primarily serves as a property owner receiving
rental payments. (2) (4) “Municipally owned recreation facility”
means any municipal swimming pool, recreation center, sports facility, facility
housing an after-school program, or other similar facility where children are
(5) “Pepper spray” means a temporarily disabling aerosol that is composed partly of capsicum oleoresin and causes irritation, blinding of the eyes, and inflammation of the nose, throat, and skin that is intended for self-defense use.
(c)(1) A municipality may
enact and enforce an ordinance or ordinances that prohibit or regulate the
carrying or possessing of a
firearm deadly weapon, firearm, or pepper
spray in municipally owned or operated buildings.
(2) A municipality may
enact and enforce an ordinance or ordinances that prohibit a person from
carrying or possessing a
firearm deadly weapon, firearm, or pepper
spray openly or that is not lawfully concealed in a municipally owned
recreation facility: Provided, That a municipality may not prohibit a
person with a valid concealed handgun permit license from
carrying an otherwise lawfully possessed firearm into a municipally owned
recreation facility and securely storing the firearm out of view and access to
others during their time at the municipally owned recreation facility.
(3) A person may keep an
otherwise lawfully possessed
firearm deadly weapon, firearm, or pepper spray in a motor vehicle in
municipal public parking facilities if the vehicle is locked and the firearm
deadly weapon, firearm, or pepper spray is out of view.
(4) A municipality may not
prohibit or regulate the carrying or possessing of a
weapon, firearm, or pepper spray on municipally owned or operated property
other than municipally owned or operated buildings and municipally owned
recreation facilities pursuant to subdivisions (1) and (2) of this section:
Provided, That a municipality may prohibit persons who do not have a valid
concealed handgun license from carrying or possessing a firearm on municipally
owned or operated property.
(d) It shall be an absolute
defense to an action for an alleged violation of an ordinance authorized by
this section prohibiting or regulating the possession of a
weapon, firearm, or pepper spray that the person: (1) Upon being requested
to do so, left the premises with the firearm deadly weapon, firearm, or
pepper spray or temporarily relinquished the firearm deadly weapon,
firearm, or pepper spray in response to being informed that his or her
possession of the firearm deadly weapon, firearm, or pepper spray
was contrary to municipal ordinance; and (2) but for the municipal ordinance
the person was lawfully in possession of the firearm deadly weapon,
firearm, or pepper spray.
(e) Any municipality that
enacts an ordinance regulating or prohibiting the carrying or possessing of a
deadly weapon, firearm, or pepper spray pursuant to subsection (c) of
this section shall prominently post a clear statement at each entrance to all
applicable municipally owned or operated buildings or municipally owned recreation
facilities setting forth the terms of the regulation or prohibition.
(f) Redress for an alleged violation of this section may be sought through the provisions of §53-1-1 et seq. of this code, which may include the awarding of reasonable attorney’s fees and costs, if the petitioner prevails.
Upon the effective
date of this section, §61-7-14 of this code is inapplicable to municipalities.
For the purposes of §61-7-14 of this code, municipalities may not be
considered a person charged with the care, custody, and control of real
(h) This section does not:
(1) Impair the authority
of any municipality, or the governing body thereof, to enact any ordinance or
resolution respecting the power to arrest, convict and punish any individual
under the provisions of §8-12-5(16) of this code or from enforcing any such
ordinance or resolution; (2) (1) Authorize municipalities to restrict the
carrying or possessing of firearms deadly weapons, firearm, or pepper
spray, which are otherwise lawfully possessed, on public streets and
sidewalks of the municipality; Provided , That whenever
pedestrian or vehicular traffic is prohibited in an area of a municipality for
the purpose of a temporary event of limited duration, not to exceed fourteen
days, which is authorized by a municipality, a municipality may prohibit
persons who do not have a valid concealed handgun license from possessing a
firearm in the area where the event is held or (3) (2) Limit the authority of a municipality to
restrict the commercial use of real estate in designated areas through planning
or zoning ordinances.