Addressing the intersection of mental health concerns and gun ownership received a boost Monday after the Senate Judiciary Committee referred a bill outlining “red flag” laws to a floor vote.
Senate Bill 240 moved out of committee with a vote along party lines Monday and is set to put a system in place for temporarily taking guns out of the hands of individuals who may harm themselves or others.
Gun-rights groups and some Republicans have said red flag laws are unconstitutional and cut down individual’s due process rights but similar laws are popular. A Washington Post-Schar School poll conducted in September showed 91% of Virginians think gun policies are important and 82% supported red flag laws. National support is slightly higher, according to the poll, which reports 86% of respondents support red flag laws.
The Senate bill would make it illegal for any person who is subject to a substantial risk order to purchase, possess or transport a firearm.
According to the proposed bill, an attorney for the commonwealth or a law enforcement officer will be allowed to sit as a judge to issue a substantial risk order if they have evidence someone poses a danger to themselves or others. Officers must conduct an independent investigation and provide probable cause to the court that a risk order would help prevent danger.
Although red flag laws have broad support, the lack of representation leading up to issuing an order is a problem for some Republicans such as Del. Todd Gilbert, R-Mount Jackson. Gilbert said he did not participate in the Senate’s conversations because he is a member of the House but said he is familiar with the bill and its aims.
“Clearly the concern about the so-called red flag laws is that they focus on people who have committed no crime and deprive them of their rights and property without any meaningful due process of law,” Gilbert said.
Gilbert explained that the risk orders are issued after an ex parte hearing, meaning the person who is the subject of the order does not have a chance to defend himself before the order is executed.
Gun-rights groups such as the Virginia Citizens Defense League say that red flag laws are akin to gun-confiscation laws and infringe on not only Second Amendment rights but also represent unreasonable searches and seizures.
However, before any weapons would be removed under the proposed law, law enforcement officers are required to file a search warrant detailing the person, place and thing to be searched — similar to other search warrants law enforcement officers file.
The bill also includes strict timelines on when search warrants need to be executed — no later than the next business day — so warrants cannot be held as leverage and outline how long risk orders can remain in effect. Emergency risk orders expire after 14 days or after the subject of the risk order files a petition to lift the order.
Emergency risk orders can be extended for up to 180 days if the commonwealth’s attorney can prove by “clear and convincing evidence” the person is a risk to themself or others, according to the bill.
If the court does execute a substantial risk order, the person can petition to have the order lifted, once, but must wait at least 30 days.