In 2021, Virginia joined other states by adopting a law that is popularly known as a “red flag” law. While red flag laws only recently came into effect in Virginia, the first examples of these laws were adopted in other states as early as 1999. The red flag law intends to prevent individuals who show signs of being a threat to themselves or others from possessing or purchasing a firearm so that the individual can have time to seek treatment for potentially concerning behavior. In most cases, law enforcement or prosecutor’s offices are notified by a family member, friend, partner, or mental health professional that an individual may pose a risk with a firearm.
Although proponents of Virginia’s red flag law argue that it helps save lives, opponents contend that the law deprives people of their rights without sufficient due process. Governor Glenn Youngkin indicated during his 2021 campaign that he supported repealing Virginia’s red flag law, but proposed legislation to overturn the law has recently stalled in the Virginia Senate.
How Does the Red Flag Law Work?
Under Virginia’s red flag law, certain individuals may contact local law enforcement to notify them that they believe that another individual possessing a firearm may pose a danger to themselves or others.
However, only a police officer or commonwealth attorney can act upon a citizen report. After conducting an investigation, law enforcement agencies or prosecutors can apply to a magistrate or judge to obtain an emergency substantial risk order. The court will issue a temporary order to remove firearms from the subject person’s possession. The court will then hold a hearing within 14 days to decide whether to make the order final or return firearms to the individual. If the judge decides to make the order final, police can seize any firearms owned or possessed by the subject of the order for up to 180 days. Judges can extend the period of seizure even longer upon a showing of good cause. The subject of an order must also turn over their firearms permits and is prohibited from purchasing new firearms.
A person subject to an ESRO may file an appeal after at least 30 days following the order’s issuance to dissolve the order.
Recent Legislation Seeks to Overturn the Red Flag Law
During the legislative session in 2022, delegates introduced a bill to repeal Virginia’s red flag law. Proponents of the repeal argued that the red flag law deprived individuals of their rights and property for “accused thought crime.” Opponents of the repeal defended the red flag law as a tool to save lives, with some delegates noting personal stories of family members and loved ones who had lost their lives due to firearms. While the repeal bill passed the Virginia House, it failed to make it out of a Senate panel.
How Can a Lawyer Help?
If you have been subject to an emergency substantial risk order, an attorney can help you by:
- Explaining your legal options, including when you can seek to overturn the order or your right to transfer your firearms to another individual rather than having them seized by the police
- Assisting you with complying with the terms of an ESRO, including handling communications with the court and law enforcement agencies
- Filing an appeal to vacate the order when you become eligible to do so
Contact Bain Sheldon If You’ve Been Subjected to a Red Flag Order
If you have had your firearms seized according to an emergency substantial risk order, it’s important to understand the rights and options available to you. Reach out to Bain Sheldon today for a free, confidential consultation. A Richmond, VA criminal defense attorney from our firm could advocate on your behalf and fight to restore your rights as soon as possible.