Gun Control

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.

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  1. “My ex loves his guns and doesn’t trust the cops. Let’s send the cops over to his place to take away his guns! What fun!”

    1. Perhaps it will take bringing a few gun nuts to heel to educate clingers in this context.

      1. Or some recreations of Kent State and Ludlow.

  2. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    These Red Flags laws are unconstitutional and therefore illegal.

    1. Virginia State Constitution:
      Section 13. Militia; standing armies; military subordinate to civil power.
      That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

      1. Isn’t that cute! Someone who still believes that constitutions matter!
        “Honey, check this out! He thinks governments care about constitutions!”
        She says you’re sentiment is adorable.

        1. I thought your wife left you?

          1. I was talking with your mom.

            1. Youre visiting her grave now?

              Dont forget to replace the flowers.

      2. ” . . . composed of the body of the people, trained to arms . . . ”

        So the proper legislation would be to provide each member of “the body of the people” with arms, and enough ammunition for constant practice.
        (interesting that the STATE constitution deals with standing armies)

        But, of course, that was the OLD Virginia, before they learned that tyranny was peace, and freedom was violence.

  3. After you’ve spent the last month and a half histrionically screeching about how Trump should be removed from office without even the most cursory due process, please go ahead and shut the fuck up about the topic. You have no credibility.

    1. The only histrionics I’ve seen were from the Trump supporters in the comments who have kittens whenever Reason says anything remotely critical of Dear Leader.

      1. Hurrrrrrrrrrrrrrrrrrrrrrrr conservatives r teh real snowflakez amirite? durrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr

        You and Sullum should consider laying off the dope for a while. And maybe fuck each other up the ass a little less too.

        1. I don’t have any nerves left for you to strike, but it seems I struck one of yours.

          1. I don’t have any nerves left for you to strike

            Is that why you compulsively reply to every one of my posts defending the Reason staff like they’re your tranny gf? Because you’re so cool, calm and collected? LMAO.

            1. Your what hurts?

              1. LMAO! Good dog. Do it again.

                1. It’s hilarious to imagine someone developing an affection for a columnist on a poorly trafficked Marxist blog that he’d actually own goal himself this hard. HAHAHAHAHAHAHAHAHAHAHAHAHA

                  1. You have one heck of an imagination. Ever considered being a writer in Hollywood?

                    1. I wrote a porn movie your mom once starred in.

            2. If you have so much animosity towards the Reason staff, then why don’t you fuck the fuck off? Why do you subject yourself to what you consider to be nonsense? Go away. Everyone will be happier. Including you.

              1. LUB IT OR LEEB IT CONSERVARDS!!!!!!!!!


                Please tell me more about how I’m not living in your head rent-free


                1. So you’re gonna continue to subject yourself to things that make you angry. Whatever. I tried to help. Later.

      2. That’s a hell of a lot of kittens.

  4. 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.

    For example, people who have a history of wearing blackface?

    1. No, but owning a firearm qualifies.

      1. Now, *that* is “common sense”!

  5. I’ll believe these red flag laws mean what they say the day they start using the laws to take cops’ guns away.

    And speaking of cops who shouldn’t have guns, it didn’t take long for the duty weapon that struck that suspect in the front seat of the cruiser 7 times to be separated from his handler.

  6. Let’s see…if the judge lets the guy keep his guns and the guy later uses his gun to commit a crime, the judge gets the blame.

    If the judge orders the guy’s guns confiscated and the guy *doesn’t* commit a crime with a gun, that shows the system worked and the judge was right.

    If the judge orders the guys guns confiscated but he finds a gun anyway and commits a crime, that shows the laws have too many loopholes, but the judge did what he could.

    I wonder if judges have any perverse incentives under this law?

    1. I don’t think this problem will be solved with tweaking the statutory language. Whether you refer to “substantial risk,” “imminent risk,” “really bad risk,” or “riskity-risk-risk,” the judge will have the same incentives: side with the allegedly dangerous person and risk backlash if that person shoots someone, and play it safe and rule against the person, taking the credit if nothing bad happens afterward.

      As someone (Yogi Berra?) reportedly said, it’s hard to make predictions, especially about the future. If the judge is in the pre-crime business and has an incentive to find future crime, he’ll find future crime.

  7. Clearly red flag laws have triggered the national movement for 2nd Amendment Sanctuary counties. And we’re already witnessing a sea change in the sanctuary movement. I’ve always believed these partisan and unconstitutional laws could be defeated by simply denying assistance to federal or state law enforcement.

    The obvious reason is federal and state resources alone are woefully inadequate to enforce such things as red flag or bayonet lug violations and could not begin to undertake such efforts without local law enforcement assistance. If deputizing hundreds of thousands to actively resist federal and state efforts is representative of the whole movement, it’s a single issue rebellion which could rapidly expand.

    Hundreds of counties already have proclaimed sanctuary status and almost 70 percent of the counties nationwide are projected to declare allegiance to the Constitution and refusal to enforce laws that violate it. That would comprise 472 counties with only one murder per year plus 1,700 counties that have no murders at all. If that materializes, a desirable result would force federal and state enforcement to concentrate on the 63 counties (2% of the total) where half of America’s murders occur.

    Democrats see this movement as rational but the fact is, red flag laws were created to transfer powers from licensed psychiatrists to unqualified persons more obedient to democrats, e.g., local judges and crotchety old aunts. Due process requires reports from two psychiatrists, one from each side, legal representation, arraignment, indictment and trial by jury.

    Nobody wants criminals to have firearms but to be taken seriously, if the accused is a danger to himself (not against the law) or others, he should be legally arrested. In other words, take the man but leave the guns. The line of inheritance codified in state laws determines the legal custodian of any property. Politicians on both sides who support this notion will regret the day they ever heard of red flag laws.

    Their legacies will carry a Supreme Court scolding and perhaps be the landmark of their careers. Writers, politicians and demonstrators have been hoodwinked by Bloomberg’s rhetoric and haven’t read his 2018 data. It reveals gun homicides declined seven percent, firearm injuries declined 10 percent, fatal child shootings (under 18) declined 12 percent and unintentional shootings plummeted 21 percent.

    None of this hysteria is justified. Since 1991, the murder rate has fallen by 45 percent and the overall violent crime rate has fallen by 48 percent. It’s bizarre that Bloomberg wants to change all that. Since 1999, the statistical probability of a student being killed in school, on any given day by a gun has been one in 614 million. Your odds of winning the lottery are 1 in 300 million. The chances of your child being kidnapped are about one in 300,000. Bloomberg says the nation is in crisis, suffering an epidemic. Folks, there is no crisis, no epidemic.

    Shooting incidents involving students have been declining since the ’90s. Fact is all but three mass shooters in recent history passed background checks. Two stole their rifles. The other one bought from a guy who assembled it from parts and sold it from home. Murders committed by all types of rifles combined, in 2018, dropped by 23.9 percent. According to the FBI, out of 14,123 homicides in 2018, only 297 (2.1%) were committed by rifles, less than by knives (11%), hands, fists and feet (5%) and blunt objects (3%).

    During that time, citizens were buying a record number of firearms. In 2019, more than 28 million requests were submitted to the National Instant Background Check System, a general indicator of firearms purchased and an historic record. That number exceeds 27.5 million in 2016 when purchasers were mortified that Hillary might be elected. Democrats want US citizens to believe making the U.S. safer for criminals will make it safer for their victims. Ask yourself, do you believe being disarmed makes you safer? What kind of political leader would disarm his people while howling about the peril they face?

    The Supreme Court isn’t about to jeopardize its own reputation by reducing the ability of private citizens to defend themselves. It’s especially important because currently, half the nation’s murders occur in only 63 counties while the other half are spread across the other 3,081 counties. Said another way, 15 percent had one murder and 54 percent of the nation’s counties had no murders at all.

    As an analogy, if someone sips too much wine during dinner at home, a crotchety old aunt might be empowered to call the police and have them impound every motorized vehicle from the homeowner — just in case he or she might decide to drive somewhere.

    1. Thanks for the stats.

  8. Someone is dangerous to other people. I get it.

    So, take away their guns.

    And – of course – you will take away their drivers license, won’t you?

    No? Of course not. No one was ever killed with a car, were they?

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