Virginia's Pending 'Red Flag' Law Includes Improvements but Still Falls Short of Due Process

The bill's requirements for "emergency" orders are loose, and it does not give respondents a right to a court-appointed lawyer.

The Virginia legislature is on the verge of approving a bill that would authorize court orders prohibiting people from possessing firearms when they are deemed a threat to themselves or others. The bill, which the state Senate narrowly approved by a party-line vote last week and Gov. Ralph Northam (D) has promised to sign once it clears the House of Delegates, is better in some respects than most existing "red flag" laws. But it still lacks several important safeguards that are needed to protect the Second Amendment rights of innocent people.

Under the bill, S.B. 240, orders can be obtained only by a prosecutor or two police officers, following "an independent investigation." Of the 18 jurisdictions with red flag laws (17 states and the District of Columbia), 13 allow petitions by "family or household members," broadly defined categories that include many people whose opinions may be colored by personal animus. In several states, potential petitioners also include medical or mental health professionals, co-workers, and/or school personnel, magnifying the risk that orders will be issued based on malicious or mistaken reports.

The Virginia bill says an "emergency," ex parte order, which lasts up to 14 days, must be based on an affidavit establishing "probable cause" to believe that the respondent "poses a substantial risk of personal injury to himself or others in the near future." That is similar to the standard used by most states with red flag laws. But several states require proof by "a preponderance of the evidence," a stricter test that better protects respondents' rights. In any case involving a genuine emergency, police should be able to show it is more likely than not that the respondent poses a substantial risk.

A final order, which requires a hearing, lasts up to six months, although it can be repeatedly extended for six months at a time. In other states, by contrast, final orders typically last a year; in California, the maximum term will be five years as of September, and there is no time limit in Indiana or New Jersey.

Under S.B. 240, a final order is supposed to be based on "clear and convincing evidence" that the respondent "poses a substantial risk of personal injury to himself or to other individuals in the near future." While most states use a "clear and convincing" standard at this stage, the Virginia bill is unusual in requiring a "substantial risk." Under existing red flag laws, a "significant" risk (or less) is generally enough for a final order. Another unusual feature of S.B. 240 is the requirement that the respondent pose a danger "in the near future."

While both of those changes are improvements, the requirements for a final order could be further strengthened without barring orders in cases where someone's behavior indicates that he poses a real threat. Rep. Steve Chabot (R–Ohio), for example, has proposed model language requiring clear and convincing evidence that the respondent "poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury" to himself or others.

Under the Virginia bill, the risk addressed by ex parte orders, which are based on a much weaker standard of proof and are issued without giving the respondent a chance to rebut the allegations against him, is no more imminent than the risk addressed by final orders. That does not make much sense, since those initial orders are supposed to be based on an "emergency." Given the loose requirements for ex parte orders and the fear of a preventable homicide or suicide, judges are likely to rubber-stamp them, which is what has happened in other states.

Once a respondent gets a hearing, legal representation is crucial. But S.B. 240, like all of the existing red flag laws except for Colorado's, does not give respondents a right to an attorney if they cannot afford one. And like those other laws, the Virginia bill allows judges to consider "any relevant evidence," which may include misreported or misconstrued conversations, controversial media posts, unverified allegations by police or relatives, and criminal cases in which the respondent was acquitted.

Under S.B. 240, anyone who "knowingly and willfully makes any materially false statement or representation" to a prosecutor or police officer conducting a red flag investigation would be guilty of a Class 1 misdemeanor, punishable by a maximum fine of $2,500 and/or up to a year in jail. But like the existing red flag laws, the bill does not create a civil cause of action for victims of false complaints, which is an important deterrent given the difficulty of making a criminal case stick.

The National Rifle Association complains that S.B. 240 gives police "the authority to seize a person's firearms [because of] baseless accusations without a hearing or other opportunity for a person to be heard in court." That is certainly true of the "emergency" orders, which do not actually require an emergency (or at least not one that is different from the justification for a final order). Notwithstanding the requirement for an "independent investigation," excluding the respondent's side of the story at this stage obviously tilts the process against him, a bias that is apt to have a lingering impact when it's time for a judge to decide whether a final order is appropriate, especially if the respondent does not have a lawyer.

The NRA argues that "a person subject to a suspension of a Constitutional right should be entitled to high evidentiary standards, an opportunity to be heard, and the right to face his or her accusers." Again, it is hard to disagree with that. If states make "emergency" exceptions to that general rule, the temporary orders should not last any longer than necessary (the Independence Institute's David Kopel recommends one week rather than two), and they should not be issued routinely. Given the rights at stake and the potential for violence when police arrive without warning to seize someone's guns, ex parte orders should be limited to situations involving a specific and imminent threat that makes it dangerous to wait for a final order.

The sponsors of S.B. 240 deserve credit for calling the legal tool they want to create a "substantial risk order," which reflects the standard the bill would establish. The more fashionable term, "extreme risk protection order," is highly misleading, since red flag laws generally do not require even as much evidence as the Virginia bill does. Such propagandistic language conceals the serious due process issues that Virginia legislators have at least tried to address, even if they have not done so adequately.