What is the Red Flag law in Virginia? How is it going to affect gun owners and people who want to buy guns from here on out?
Red Flag Law in Virginia: Good or Bad?
On July 1, Virginia Governor Ralph Northam’s unconstitutional “Red Flag” law went into effect, after passing on a party-line vote by Virginia’s Democratic-controlled General Assembly.
In July and August, 26 temporary and 10 permanent substantial risk orders were issued against individuals across the state.
The “red flag” law prohibits residents from keeping or purchasing a gun.
This happens if authorities can establish they would be a danger to themselves or others.
Virginians can and are having their Constitutional right to bear arms removed, and even having their guns confiscated from them.
A Case of False Accusation
In a case in Frederick County, a man was wrongfully accused.
A man whose guns were seized under a temporary substantial risk order had them returned last week.
This is after a judge denied a prosecutor’s attempt to extend the order permanently.
The man testified during a September 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 September 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 pointed out to 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 to prove “by clear and convincing evidence.” It should be proven 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 that “there are no witnesses that say a gun was pointed at them,” reported the Star. Additionally, the man’s accusers did not show up in court to testify.
How Is The Red Flag Law Enforced?
The red flag law was supported by Democratic lawmakers and opposed by Republicans.
It is designed to reduce gun killings and suicides by confiscating firearms from people deemed a danger to themselves or others.
The law 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 who has been deemed a threat.
Authorities must first conduct an investigation and submit an affidavit outlining their case.
If granted, authorities have free reign to seize a person’s firearms and prohibit the purchase of any 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, effectively removing the individual’s right to bear arms.
Those who do have their guns returned face legal fees in the process, as well as up to 14 days of firearm confiscation without due process.
Issues Surrounding the Law
The red flag law was passed under the guise of being beneficial in cases of mental health issues. But there are additional concerns about the law and its implications.
The Virginia Citizens Defense League and other 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.
One man who lives in Colonial Heights 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.
His lawyer does not believe the order is applicable because he is already unable to purchase firearms due to his current legal status.
But another issue stems from the fact that these cases are handled as a civil matter, rather than a criminal one.
Unlike a criminal case where an indigent defendant is guaranteed a lawyer, a person subjected to a substantial risk order is not afforded such protection under the law.
The law could be struck down in individual cases where defendants who want legal representation can’t afford to hire an attorney.
“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,” Richmond-area attorney David Smith said.
Do you think that the Red Flag law is unconstitutional and deprives people of owning a gun? Let us know your take on this in the comments section!
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