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Virginia Legislature To Reconsider ‘Red Flag’ Law

Virginia’s special session on gun violence starts Tuesday. State Democratic lawmakers will try again to implement an extreme risk protection order (ERPO) law, often known as a “red flag” law.

The protection order would allow police and family members to seek a court order to have someone’s firearms temporarily removed if the person in question poses a safety threat to themselves or others. Current Virginia law already provides for an order when someone is experiencing a mental health crisis, but not beyond that.

Back in January, a Senate committee failed to advance its red flag bill on a tied 7-7 vote following a 45-minute discussion. Democratic Senator George Barker introduced the bill and explained why Indiana implemented their red flag law.

"What you have was an individual who directly went to the police and said that he was very upset at police and that he was going to kill police officers,” Barker said in a January 16th Senate Courts of Justice committee meeting. “The police officers went to their superiors who went to judicial officials to determine: what can we do in this situation to try to prevent this from happening? The response that was given was there is nothing on the books that allow us to do anything to prevent this. And that situation, he did follow through with this threat and killed a police officer.”

Republican Senator Richard Stuart expressed concerns about the constitutionality of the law.

“If I read this correctly, this actually allows the police or someone to enter a person's home, and potentially seize their property without actually affording them any due process whatsoever,” Stuart said.

Special Counsel to Virginia’s Senate Courts of Justice Steven Benjamin offered up a fix, suggesting removal of language about a warrant prior to ordering the individual in question to surrender their firearms. Only then, Benjamin suggested, could a search warrant be issued.

“If the order is issued and a law enforcement officer has reason to believe that the person is possessing a firearm in violation of that order, they can go to a magistrate and get a regular search,” Benjamin said.

Senator Glen Sturtevant suggested further modifications to the bill, requesting that only a circuit court - not a magistrate - be allowed to issue the protection order. He also thought allowing 14 days for a hearing was too long.

“I would think that for an important issue like this, we would want to have that hearing within 48 hours,” Sturtevant said.

He was the lone Republican to vote to advance the bill after amendments were made limiting the scope of it. That vote followed another tied 7-7 vote to “gently PBI” the bill, which means pass by indefinitely, effectively killing the legislation.

“This is a really important bill that we're discussing here,” said Republican Senator Ben Chafin. “I believe that something like this needs to be looked at more in-depth than us sitting here, changing the nature of the bill.”

Chafin suggested the Crime Commission study the issue, and Democratic Senator Janet Howell suggested the Deeds Commission might also be able to look into it.

13 people spoke in support of the bill prior to the votes.

“I've been involved in two cases that could have benefited from this particular statute,” said Shannon Taylor, Commonwealth Attorney for Henrico County.

Only three people spoke in opposition to the legislation.

“It’s a confiscation bill,” said Philip Van Cleave, President of the Virginia Citizen’s Defense League.

The House bill died in subcommittee on a party-line vote.

At least 15 other states have red flag laws on their books, including Florida, following the deadly Parkland shooting there.

“In that case [Florida’s], the police visited the home of the individual who ultimately committed the tragedy at the school approximately 32 times, but it never elevated to a criminal case where they could either arrest or enter the home,” said Virginia Secretary of Homeland Security Brian Moran. “That’s why Florida responded in this way.”