Alexandria, VA Shooting – Legal Background

Background on the incident: Around 7:15 am Wednesday morning, a gunman opened fire at a congressional baseball practice field in Alexandria, VA.  House Majority Whip Steve Scalise (R-LA) was wounded along with several others, including David Bailey and Crystal Griner, U.S. Capitol Police officers, Matt Mika, a former congressional staffer, and Zach Barth, a staffer for Rep. Roger Williams, (R-TX). The shooting took place at a practice for the GOP congressional baseball team where several Congress members and Congressional staff were present. The shooter was identified by law enforcement as James T. Hodgkinson, 66, of Belleville, Illinois. He subsequently died from injuries sustained in the attack.

Firearm possession laws. A 2006 arrest for domestic battery and reckless discharge of a firearm would not have prohibited the shooter from gun possession under state or federal law.

Background check laws. It is not clear yet where and how the shooter obtained his firearm. However, according to a police report, the shooter was a holder of an Illinois Firearm Owners Identification (FOID) card as recently as March 2017—meaning that he passed a criminal background check and was legally entitled to have a gun. According to news reports, law enforcement sources say he legally purchased the firearms recovered at the scene.

  • Federal law requires criminal background checks for guns sold by licensed gun dealers, but allows people to buy guns from unlicensed sellers—including online and at gun shows—without a background check.
  • Illinois is one of 19 statesCalifornia, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Washington that goes beyond federal law to require background checks on all sales, including guns sold by unlicensed sellers. In order to obtain a gun in Illinois, a person must first obtain a FOID card, which is issued only after the person passes a background check.
  • Federal law requires that dealers keep records of all firearm sales, and Illinois law requires unlicensed sellers to keep records of all firearm sales and transfers for a 10-year period.430 ILCS 65/3(b)
  • If the shooter had been convicted of domestic battery pursuant to his 2006 arrest, he likely would not have been able to pass a background check required to get a FOID card.

Public carry laws.The shooter’s 2006 arrest could have prevented him from obtaining a carry permit in Virginia. Under Virginia law, the shooter would have been required to have a carry permit to carry an “assault weapon” in public in Alexandria. Though Virginia has strong standards for who may obtain a carry permit, a law passed by the state legislature last year now requires that law enforcement recognize carry permits from all states—even those with permitting standards far lower than Virginia. One report specified that the shooter had an Illinois carry permit.

  • Virginia law requires a permit to carry a concealed handgun in public, but generally allows open carry without a permit—with the exception of certain densely populated cities and towns, like Alexandria, where a concealed carry permit is required to openly carry an “assault weapon.”This prohibition applies to a loaded firearm if it is either (1) a semi-automatic center-fire rifle or pistol with a magazine holding more than 20 rounds of ammunition or else designed to accommodate a silencer or equipped with a folding stock, or else (2) a shotgun with a magazine holding more than seven rounds of “the longest ammunition for which it is chambered.” Code of Virginia 18.2-287.4.
  • Virginia has strong standards for who may obtain a carry permit. Circuit court judges issue concealed carry permits and have the authority to deny permits to people who pose a danger to public safety. The judges look for red flags in an applicant’s history—for example domestic disturbances, assault arrests, or dangerous mental health issues.Va Code Ann. 18.2-308.09. For the multiple misdemeanor disqualifier, one misdemeanor must be a Class 1 misdemeanor.
  • A new state law passed in 2016 requires law enforcement to recognize carry permits from every state—even from states with permitting standards far lower than Virginia’s—so long as the holder is at least 21 years old.

Firearm and accessories. Though authorities have not yet confirmed what firearm the shooter used, news outlets have reported he used an SKS rifle or a similar high-powered rifle. Reports do not specify the size of the magazine that the shooter used, but SKS rifles are typically equipped with high capacity magazines. The firearm was apparently not equipped with a silencer.

  • According to news reports, Congress members and staff heard the gunshots and ran for cover —suggesting that the firearm was not equipped with a silencer, which would have muffled or disguised the loud sound of gunfire. Silencers are covered by the federal National Firearms Act (NFA)—meaning that purchases must be approved by ATF after a background check. Eight statesCalifornia, Hawaii, Illinois, Massachusetts, New Jersey, New York, and Rhode Island prohibit civilian use of silencers entirely; Illinois is among them, 720 ILCS 5/24-1(a)(6). but Virginia is not.
  • Semiautomatic SKS rifles are not covered by the NFA; federal law does not treat them any differently than handguns or shotguns.Like silencers, automatic weapons are regulated under the NFA—meaning that all purchases must be approved by ATF after a background check. 26 USC 5801 et seq. Under state law, automatic and select-fire weapons may only be possessed in Virginia by a person who has applied directly to the State Police and has registered the firearm. Va Code Ann. 18.2-288 et seq. These weapons are generally illegal under Illinois law. 720 ILCS 5/24-1(a)(7)(i). However, it is illegal to purchase “assault weapons” in six states and the District of Columbia,California, Connecticut, Maryland, Massachusetts, New Jersey, and New York and was illegal to do so under the federal assault weapons prohibition, which expired in 2004 due to a ten-year sunset provision. Neither Virginia nor Illinois have an “assault weapon” prohibition in place.
  • Magazines capable of accepting over ten rounds of ammunition are prohibited in six states and the District of Columbia and were illegal to purchase under the expired federal assault weapons prohibition.California, Connecticut, Hawaii, Maryland, Massachusetts, and New York Two additional states prohibit magazines capable of accepting over fifteen rounds of ammunition.Colorado and New Jersey Neither Virginia nor Illinois have laws limiting magazine capacity.