Can a judge sign an order allowing police to seize your guns without you even breaking a single law? In recent years, there has been a nationwide push for “extreme risk protective orders” or “red flag” laws specifically designed to remove firearms from people accused of engaging in conduct or making statements that others may deem “dangerous.” You’ve probably heard about them in the news recently; but what are they? What do you need to know about them, and how could they be used to take away your Second Amendment rights? Let’s look at the history of these laws and how Virginia uniquely falls on this hotly debated area.
The History of Red Flag Laws
Red flag laws entered prominent national discourse in 1999 when Connecticut passed the first one of its kind because of a mass shooting at the Connecticut Lottery headquarters. Lawmakers in Connecticut intended this law to target individuals with specific mental health conditions and prevent them from accessing firearms.
More recently, on February 14, 2018, a 19-year-old former student opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, horrifically killing 17 people and injuring 17 others. There was an immediate national outcry to “do something” to stop what the media has frequently dubbed “gun violence.” When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws to take away guns from individuals whose behavior raised a “red flag” that they could be a threat to themselves or others.
In theory, the purpose of these laws is to identify an individual who exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming them. However, there’s an obvious irony: with red flag legal proceedings, the person’s firearms are seized, but the individual may be quickly released back into society, free to pursue whatever misdeeds they might choose to do.
Many of the states with red flag laws currently on the books allow for an enforceable court order that prevents the person from owning, purchasing, possessing, or transporting firearms and ammunition for a specified period of time. Several jurisdictions also allow the extension of these orders if the affected individual is still “deemed a threat.”
For example, under California’s red flag law (called a “gun violence restraining order”), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammunition initially for between one and five years, with the potential for the order to be renewed and extended indefinitely. California Penal Code §§ 18170-18197 lays out the process by which any qualifying person may ask to extend the red flag order within three months of its expiration. The order will be extended if the court finds that the person still poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine, and all other conditions for renewal are satisfied.
A Californian subject to a red flag order may petition the court only once per year and ask for it to be lifted; which could entail another costly and time-consuming legal proceeding.
As of the publish date of this article, 19 states and the District of Columbia have enacted versions of red flag laws. How do things stand for Virginia?
Red Flag Laws in Virginia
Virginia currently has a red flag law on the books. The Emergency Substantial Risk Order (“ESRO”) can be found at Va. Ann. Code § 19.2-152.13. The law allows a law enforcement officer or Commonwealth Attorney to petition a judge or magistrate for an ESRO if there is probable cause to believe that a person is a substantial risk to themselves or others in the near future. While the ESRO process can begin with a complaint from any source, the law requires that law enforcement officers complete an independent investigation before requesting a judge or magistrate issue the ESRO. The ESRO is typically issued during an ex parte process, meaning without the subject of the ESRO present. When an ESRO is issued, it prevents the subject from possessing, purchasing, or transporting a firearm for an initial period of up to 14 days, or until a judge dissolves the order pursuant to a successful petition filed by the subject of the ERSO. During a hearing, with the individual subject to the order present, a judge can extend the firearms prohibition for up to 180 days.
How does the ESRO law impact a law-abiding gun owner’s day-to-day life in Virginia? The law presents a clear risk of misuse, where firearms could be seized based on an initial complaint from a neighbor, family member, or even random acquaintance with only a cursory “independent investigation” from law enforcement, followed by the issuance of the ESRO. During proceedings to dissolve an ESRO, the State is typically represented by the Commonwealth Attorney. However, because this is a civil proceeding, there is no constitutional requirement for the State to provide counsel for the person subject to the ESRO. This means that those subject to an ESRO who can’t afford a lawyer on their own are required to attend the court hearing, where the return of their firearms is deliberated, potentially without counsel present on their behalf. While this law is fairly new in Virginia, having gone into effect in July of 2020, it has already been used multiple times across the Commonwealth to temporarily seize firearms from those who had not committed crimes and were not otherwise subject to firearms prohibitions.
The Future of Red Flag Laws in Virginia
While Virginia does not have any current modifications to the existing ESRO law pending in the legislature, there is a lot of room left to determine how ESRO laws will be interpreted by the courts. One issue that has delayed the challenge to ESRO laws in some situations is that the Commonwealth has taken firearms pursuant to an ESRO under the guise that it is the lesser of two evils. This occurs when the allegations against a person could potentially support criminal charges. In these situations, the subject of the ESRO is presented with a difficult choice: voluntarily relinquish the firearms pursuant to the ESRO for 14 days or fight the ESRO and run the risk that the Commonwealth will add criminal charges for something like brandishing. Unfortunately, this situation often leaves a subject unwilling to challenge the ESRO and requires them to wait out the prohibition.
If you have questions about red flag laws or any other gun-related legislation, call U.S. LawShield and ask to speak to your Independent Program Attorney.
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