Three dozen Virginians were temporarily or permanently barred from possessing firearms and/or had their guns confiscated during the first two months of the state's new "Red Flag" law, which prohibits residents from keeping or purchasing a gun if authorities can establish they would be a danger to themselves or others.
Since the law went into effect July 1 after being passed on a party-line vote by Virginia's Democratic-controlled General Assembly, 26 temporary and 10 permanent substantial risk orders were issued against individuals across the state in July and August, according to Virginia State Police, which operates the Virginia Firearm Transaction Center.
Virginia law prohibits state police from releasing any details about those 36 orders, and the statistics the department provided does not include the localities where the orders were granted or the dates they were issued.
A check of localities in the Richmond-Petersburg region turned up only two such orders being granted - both in Colonial Heights. The attorney representing one of those residents will ask a judge during a hearing next month that the order be dissolved because his client doesn't own or possess any firearms and already is prohibited from purchasing them.
The other case involves a resident who was shot and wounded by police in early March after he came to the front door of his home armed with a rifle and confronted officers during a standoff. That man, a veteran who suffers from combat-induced post-traumatic stress disorder, voluntarily consented to the substantial risk order and surrendered 13 firearms he owned, court documents show.
Police sought the risk order against him in mid-August, nearly five months after the incident with police. A city prosecutor wrote in the petition for the order that the man had attempted without success to manage his disorder with medication and is under a doctor's care. Two misdemeanor charges of brandishing a weapon and reckless handling of a firearm lodged against him for the standoff were withdrawn on Sept. 1.
In another case in Frederick County, a man whose guns were seized under a temporary substantial risk order had them returned last week after a judge denied a prosecutor's attempt to extend the order permanently. The man testified during a Sept. 11 hearing that his son and father, who obtained the order against him, lied to police that he pulled a pistol on his son in their home on Sept. 2, the Winchester Star reported.
"The red flag law is wrong because anybody who is spiteful can have someone's guns taken from them," the man told the presiding judge before two semi-automatic rifles, a hunting rifle and three pistols were returned to him, according to the newspaper's account.
To confiscate the man's weapons, the law requires authorities prove "by clear and convincing evidence" that he poses a substantial risk of personal injury to himself or other individuals in the near future. The judge found no such grounds, saying, "There are no witnesses that say a gun was pointed at them," the Star reported, who noted the man's accusers did not show up in court to testify.
The Richmond Times-Dispatch is not identifying any of the people subjected to substantial risk orders because their cases are handled as a civil, rather than a criminal, matter.
The law, supported by Democratic lawmakers and opposed by their Republican counterparts, is designed to reduce gun killings and suicides by confiscating firearms from people deemed a danger to themselves or others. It allows police or a commonwealth's attorney to petition a judge or magistrate to issue a 14-day “emergency substantial risk order” against a person deemed a threat.
Authorities must first conduct an investigation and submit an affidavit outlining their case.
If granted, authorities can seize a person's firearms and prohibit the purchase of new weapons while the order is in effect.
A hearing must be held within 14 days of the seizure to allow the gun owner the opportunity to have the order dissolved and his guns returned. A judge then rules whether to return the guns or have them held for up to 180 days under a permanent substantial risk order. The order can then be extended for additional 180-day periods with no limits on the number of extensions.
"Thus far, our office has found the 'Red Flag Laws' to be beneficial in cases where there is an indication of mental health issues on the part of the defendant and concerns by our office and the Police Department with regard to safety to the community," Colonial Heights Commonwealth's Attorney Gray Collins said in an email.
The Virginia Citizens Defense League and other state gun rights groups believe the law infringes on the Second Amendment, and allows firearms to be confiscated without due process and based solely on someone's word.
Authorities in Richmond, Petersburg, Hopewell and the counties of Henrico, Chesterfield, Hanover, Dinwiddie and Prince George said they have not yet sought substantial risk orders against any residents in their localities.
Richmond-area attorney David Smith is representing the Colonial Heights man who owns no firearms but is subject to an emergency substantial risk order based on threats that police said they heard him make to kill himself and family members. He also told police he suffers from depression and anxiety.
At one point during his encounter with the police, the man was asked if he had a plan to kill himself. The man replied that "he was going get his final check in the mail, then go buy a gun and blow his brains out because he was tired of the human race," the officer wrote in the petition for the substantial risk order.
The man was charged with domestic assault after a verbal and physical altercation with his brother on July 10. He was found guilty last week and sentenced to serve four months in jail.
"I don't think it's an appropriate intervention, specifically because he doesn't have firearms or access to firearms," Smith said. "And I think given his unique situation, he's not able to purchase firearms due to his current legal status, so I feel this is not a case that falls within the intended application of the red flag laws."
However, "I think generally speaking the red flag laws are very useful," Smith added. "I think they are addressing a gap in [the law], with protections that the [the substantial risk orders] have been able to provide."
But Smith foresees the law being struck down in individual cases where defendants who want legal representation can't afford to hire an attorney. Unlike a criminal case where an indigent defendant is guaranteed a lawyer, a person subjected to a substantial risk order - which is adjudicated as a civil matter - is not afforded such protection under the law.
"I think what you're going to see with a lot of these cases, is the law is going to be struck down on constitutional grounds - because the respondent is denied access to counsel and depriving them of a constitutional right," Smith said.
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