Halloween will be a little bit different this year. COVID-19 is affecting plans and canceling large gatherings, but some spooky staples still remain. So, before you plan that elaborate Halloween costume and set out the carved pumpkin on your doorstep, let’s discuss the mischief and dangers that lurk around the Halloween season.
Can I Wear a Mask and Carry a Firearm?
Many have asked about wearing a mask this year either as part of their costume or as protection against COVID-19, while carrying a firearm. Virginia law contains a provision that generally makes it a felony to wear a mask. Va. Code § 18.2-422.
However, the law which prohibits wearing a mask only applies if the intent of the mask wearer is to conceal their identity and specifically excludes masks worn as part of a traditional holiday costume. When wearing a face mask pursuant to state and federal guidelines intended to minimize the spread of COVID-19, it is clear that your intent in wearing the mask is not to conceal your identity. Likewise, wearing a mask as part of a Halloween costume falls within the exception for wearing a mask as part of a “traditional holiday costume.”
Halloween Costumes and Weapons
When it comes to putting costumes together, we advise against incorporating real weapons. Virginia Code § 18.2-311 prohibits possession of the following weapons with the intent to give, sell, barter, or furnish: “blackjack, brass or metal knuckles, any disc of whatever configuration having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart, switchblade knife, ballistic knife, or similar weapons.”
Unfortunately, even if your intent is not to give, sell, barter, or furnish the weapons mentioned in § 18.2-311, possession of the prohibited weapons alone statutorily acts as evidence of your intent to do something unlawful with the prohibited weapons. Therefore, if you are found in the possession of something like throwing stars, even if they are part of a costume, you may be arrested and forced to prove in court that you had no intent to sell or furnish the throwing stars to anyone else. Furthermore, from a practical position, carrying a real weapon as part of a Halloween costume may confuse others and cause law enforcement to question your motives.
Protecting Yourself From Halloween Mischief
It is not uncommon for teenagers to engage in mischief around the Halloween season. But if people are coming onto your property uninvited, how are you to know whether they are a threat or not? Keep in mind that in Virginia, it is unlawful to defend property with deadly force, or even to commit an assault or brandish a weapon solely in defense of property. If people are coming onto your property and your only fear is that they will harm your property rather than harm you or other people on your property, then you cannot use or threaten to use deadly force against them.
The law allows you to use only “reasonable force” to defend against trespassers. Reasonable force is not clearly defined, but clearly cannot amount to a breach of the peace or an assault at the outset. This means that Virginia law requires you to ask trespassers to leave before you use, or even threaten to use physical force against them. Of course, should a trespasser attack you and put you in imminent fear of death or great bodily injury after you request that they leave, you may gain justification to use force or even deadly force. To stay out of trouble, our recommendation is to call the police and allow them to deal with unwanted trespassers.
If you are accompanying a group of trick-or-treaters and want to carry your firearm for the safety of the group, you need to consider where the group will go. So long as you are otherwise lawfully able to carry a firearm, you may carry a firearm either concealed (with a valid Concealed Handgun Permit), or openly without a permit. However, if your group heads to an area like a school, your weapon will be prohibited. Plan ahead and make sure your group has no intention to visit a prohibited area. Stay safe this Halloween season.
For any other questions regarding activities and home defense during the Halloween season, call U.S. LawShield and ask to speak with an Independent Program Attorney.
The preceding should not be construed as legal advice nor the creation of an attorney-client relationship. This is not an endorsement or solicitation for any service. Your situation may be different, so please contact your attorney regarding your specific circumstances. Because the laws, judges, juries, and prosecutors vary from location to location, similar or even identical facts and circumstances to those described in this presentation may result in significantly different legal outcomes. This presentation is by no means a guarantee or promise of any particular legal outcome, positive, negative, or otherwise.
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