Weapons defense addressed by Fairfax criminal lawyer

Weapons defense in criminal court calls for scouring the applicable statute to argue that the defendant’s alleged and actual behavior does not qualify as a crime. As a Fairfax criminal lawyer, I know that the Virginia law barring concealed carrying of designated armaments requires careful review not only of the statute but of the relevant caselaw. See Virginia Code § 18.2-308.

Weapons defense of brass knuckles

People might assume that brass knuckles are considered to be weapons by the Virginia criminal law. However, Virginia law does not mention “brass knuckles” but does criminalize the concealed carrying of “metal knucks.” Virginia Code § 18.2-308(A). In a recent weapons defense appeal, the Virginia Court of Appeals issued an unpublished opinion that brass knuckles are metal knucks, and are therefore unlawful to carry in concealed fashion: “The statute does not define ‘metal knucks,’ but this Court has previously equated brass knuckles with metal knucks. Commonwealth v. Rice, 28 Va. App. 374, 376 (1998). Brass knuckles are defined as ‘a piece of metal designed to fit over the fingers as a weapon for use in a fistfight’. Brass Knuckles, Black’s Law Dictionary (11th ed. 2019). By definition, brass knuckles are a weapon because they are designed for fist-fighting purposes.” Williams v. Commonwealth of Virginia, Record No. 0224-20-4 (Va. App., Dec. 29, 2020) (unpublished).

For Virginia weapons defense, the key to determining whether a non-listed weapon is prohibited for concealment is whether the item is a “weapon of like kind as those enumerated” in the concealed carry statute. In that regard, the Virginia Supreme Court says: “The interpretative history of the phrase ‘weapon of like kind’ in Code § 18.2–308(A) has proven to be problematic to trial and appellate courts of the Commonwealth… Because we must strictly construe a penal statute, we hold that in order to be a ‘weapon’ within the definition of ‘weapon of like kind,’ the item must be designed for fighting purposes or commonly understood to be a ‘weapon.'” Farrakhan v. Virginia, 273 Va. 177, 182 (2007). Consequently, concealing a kitchen knife, even if for offensive purposes, is not a crime. Id. at 183.

May brass knuckles lawfully be carried openly in Virginia?

Beyond concealed carrying in the weapons defense law, bizarrely, the mere open possession of brass knuckles and numerous other armaments is “prima facie evidence…of [the possessor’s] intent to sell, barter, give or furnish the same,” which sales is a Class 4 misdemeanor. This same law also applies to a “blackjack, … throwing star or oriental dart, switchblade knife, ballistic knife as defined in § 18.2-307.1, or like weapons.” Virginia  Code § 18.2-311.

What is the penalty for concealed armaments carrying in Virginia?

Violating Virginia’s concealed weapon-carrying law is a Class 1 misdemeanor (up to one year in jail) for a first offense, a Class 6 felony (up to five years in prison) for a second offense, and a Class 5 felony (up to ten  years in prison) for a third offense. For the purpose of Virginia’s concealed weapons carrying law, “a weapon shall be deemed to be [concealed or] hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon’s true nature.” Virginia  Code § 18.2-311. With such a harsh progression of incarceration penalties, aggressive defense is all the more merited.

Fairfax criminal lawyer Jonathan L. Katz devotes virtually his entire practice to criminal defense, and pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Call 703-383-1100 to schedule a free in-person consultation with Jon Katz about your court-pending case.