West Virginia Knife Laws

At a Glance:

The West Virginia statutory law regarding the possession and carry of knives is found in Chapter 61, Article 7 of the code, captioned “Dangerous Weapons.”  A person’s age is a significant factor as to what knives may be carried concealed.

There are no restrictions regarding the possession or carry of knives for individuals who have reached the age of 21.

Persons at least 18, but not yet 21, commit a misdemeanor by carrying a concealed knife that meets the definition of a “deadly weapon.” There are various exceptions discussed below. People in this age group may carry knives in the deadly weapons class openly and/or apply for a “provisional license,” which, if granted, allows concealed carry.

Minors – people under the age of 18 unless emancipated –  may not possess knives in the deadly weapon class.

Relevant Statutes:

61-7-2. Definitions
61-7-3.Carrying a deadly weapon without provisional license or other authorization by persons under twenty-one years of age; penalties
61–7–7. Persons prohibited from possessing firearms; classifications; right of nonprohibited persons over twenty-one years of age to carry concealed deadly weapons; offenses and penalties; reinstatement of rights to possess; offenses; penalties
61-7-8. Possession of deadly weapons by minors; prohibitions
61-7-10. Display of deadly weapons for sale or hire; sale to prohibited persons; penalties
61-7-11. Brandishing deadly weapons; threatening or causing breach of the peace; criminal penalties
61-7-11a. Possessing deadly weapons on premises of educational facilities; reports by school principals; suspension of driver’s license; possessing deadly weapons on premises housing courts of law and family law courts

Prohibited Knives:

There are no prohibited knives.

Concealed Carry:

Knives within the class of ‘deadly weapons’ may not be carried in a concealed manner by persons under the age of 21 who do not possess a provisional license.

Restrictions on Sale or Transfer:

It is unlawful per § 61-7-10 for anyone to knowingly sell, lend, or transfer a deadly weapon to a person prohibited from possessing a deadly weapon. It is also unlawful to display and offer to sell to passersby on any street, road, or alley, any deadly weapon.

Restrictions on Carry in Specific Locations/Circumstances:

All knives are ‘deadly weapons’ under § 61-7-11a which provides restrictions applicable to schools and court facilities. See the discussion on this topic below.

Statewide Preemption:

Yes.  Effective May 31, 2020

Discussion:

Defined Terms § 61-7-2.

61-7-2. Definitions provide definitions for use within Article 7, captioned Dangerous Weapons. Defined terms pertaining to knives include:

(2) Gravity knife,

(3) Knife,

(4) Switchblade knife, and

(9) Deadly weapon,

The definitions for gravity knife and switchblade knife are conventional.  Bias towards closure is not an element of the gravity knife definition and the adverb “automatically” is an element of the switchblade definition.

Definition of “Knife”

Not all knives fit within the definition of “Knife” for purposes of Chapter 61, Article 7 of the West Virginia code. This is significant because only a “Knife” as defined, along with a “Gravity knife” and “Switchblade knife,” is incorporated into the deadly weapon restrictions.

“Knife” is defined as follows:

‘Knife’ means an instrument, intended to be used or readily adaptable to be used as a weapon, consisting of a sharp-edged or sharp-pointed blade, usually made of steel, attached to a handle which is capable of inflicting cutting, stabbing or tearing wounds. The term ‘knife’ shall include, but not be limited to, any dagger, dirk, poniard or stiletto, with a blade over three and one-half inches in length, any switchblade knife or gravity knife and any other instrument capable of inflicting cutting, stabbing or tearing wounds. A pocket knife with a blade three and one-half inches or less in length, a hunting or fishing knife carried for hunting, fishing, sports or other recreational uses or a knife designed for use as a tool or household implement shall not be included within the term ‘knife’ as defined herein unless such knife is knowingly used or intended to be used to produce serious bodily injury or death.

This three-sentence definition may be difficult to follow. The first sentence probably eliminates most butter knives and other such items of tableware by the capability for inflicting cutting, stabbing, or tearing wounds requirement.

The second sentence repeats the cutting, stabbing, and tearing requirement and further states that “Knife” includes:

1. any dagger, dirk, poniard, or stiletto, with a blade longer than 3 and ½ inches in length,
2. ‘ay switchblade knife or gravity knife, and
3. ‘any other instrument capable of inflicting cutting, stabbing, or tearing wounds.

The “any other instrument. . .” aspect of the definition is statutorily limited by the third sentence of the definition, which specifically provides that “Knife” does not include:

1. A pocket-knife with a blade of 3 and ½ inches or less,
2. a hunting or fishing knife carried for hunting, fishing, sports, or other recreational uses, or
3. a knife designed for use as a tool or household implement.

There is a “circumstances of possession” element as to a hunting or fishing knife exclusion written as an affirmative defense. Accordingly, a defendant would have the burden of proof as to the knife in question being carried for hunting, fishing, or other “recreational uses.”

Definition of Deadly Weapon’

The pertinent portion of the “Deadly weapon” definition includes “Knife,” “Gravity knife,” and “Switchblade knife” along with the non-cutting instrument novelties listed in § 61-7-2 Definitions:

‘Deadly weapon’ means an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use. The term ‘deadly weapon’ shall include, but not be limited to, the instruments defined in subdivisions (1) through (8), inclusive, of this section or other deadly weapons of like kind or character which may be easily concealed on or about the person. For the purposes of [§ 61-7-11a],  in addition to the definition of ‘knife’ set forth in subdivision (3) of this section, the term ‘deadly weapon’ also includes any instrument included within the definition of ‘knife’ with a blade of three and one-half inches or less in length. . .

In other words, for purposes of schools and court of law facilities, any knife is a deadly weapon.

Definition of Concealed

Concealment is not an issue for individuals who have reached the age of 21. People under 21 who do not have a provisional license must avoid concealed carry of any “deadly weapon.” The portion of the statutory definition pertinent to knives reads as follows:

‘Concealed’ means hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried. . .

There is essentially no case law that would inform us as to how this definition applies to knives.

Pocket Clip Carry

Whether a folding knife clipped to the hem of a trouser or jeans pocket is concealed is a difficult issue wherever a restriction on concealment of knives obtains. The problem for people in West Virginia is slight compared to their neighbors in Ohio, where any concealed pocket knife is potentially a deadly weapon. In West Virginia, only people under the age of 21 carrying a knife with a blade longer than 3 and ½ inches, a switchblade, or a gravity knife are required to openly carry.

We suggest a strong argument may be urged that the use of a pocket clip – as opposed to a knife resting entirely within a pocket – is inconsistent with a desire, or the intent, “to prevent disclosure or recognition.” The addition of a pocket clip to a pocket knife was an innovation of the 1980s. It is now quite common.

During the development of the writing pen, which featured a reservoir of ink, there may have been a time that people may not have appreciated that what they were seeing extending above the hem of a shirt pocket was a writing instrument. Nowadays, in the ordinary course of events, it is likely that someone may ask to borrow your pen, but unlikely that they would wonder what novelty is clipped to your shirt pocket. The same recognition should now apply to the pocket clip carry of a knife.

Unfortunately, we cannot state with confidence that the pocket clip carry of an automatic knife, for example, will not be considered concealment in West Virginia. Moreover, it will almost always be an issue of fact to be decided by the jury based on the evidence presented at trial. Factors involved in the decision will include, among other things, the knife, the garment, the pocket, layers of clothing, the circumstances, and the weather.

Location-Based Restrictions

The West Virginia location-based restrictions on knives are typical.  All knives are treated as ‘deadly weapons for the purpose of § 61-7-11a.

The school restrictions apply to all primary and secondary schools (K – 12). Private schools may opt out in writing. The restrictions include school buses, school premises, and school-sponsored activities. Knives locked in a parked vehicle are excluded. There is also an allowance for “areas of vehicular ingress and egress.” meaning a parent with a knife can pick up/drop-off’ a student provided he or she remains in the vehicle, and the knife is not obvious.

There are exceptions for state and federal law enforcement and the official mascots of the West Virginia Mountaineers and the Parkersburg South High School Patriots while acting in their official capacity.

The court facility restriction applies to the premises of any court of law. Certain exceptions for law enforcement are included.

Consequences

Violations of the school and court facility weapon restrictions are classified as a felony:

A person violating this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of years of not less than two years nor more than 10 years, or fined not more than $5,000, or both fined and imprisoned.

Violations of § 61-7-3, the possession of deadly weapons section, are treated as misdemeanors. Those convicted are subject to a fine of at least $100, but not more than $1,000, and the possibility of confinement in jail for not more than 12 months.

Comments

One enjoys considerable flexibility in selecting a knife to be carried in West Virginia. Individuals 21 and older face no limitation with the exception of typical location-based restrictions. Individuals between 18 and 21 who limit themselves to manual folding knives and fixed blade knives not more than three and one-half inches blade length are objectively compliant even if carrying concealed. Such knives with blades longer than three and one-half inches may be carried openly and possibly concealed if the hunting, fishing, or designed as a tool provisions as discussed above, and pertaining to the definition of “Knife,” apply.

Updated November 20, 2019, by Daniel C. Lawson