RICHMOND – A Republican-led House panel on Thursday by a 6-4 party-line vote approved a measure that would repeal Virginia’s so-called red flag law which allows authorities to take guns away from people deemed dangerous to themselves or others.
Del. Marie March, R-Floyd County, the sponsor of House Bill 509, told members of a House Public Safety subcommittee that she had received hundreds of calls and emails in support of her proposal that would “rig down this red flag of tyranny” and restore the constitutionally protected rights of all Virginians. “It is the duty of us, as state representatives, to defend the rights of those who we have been elected to represent. There is no higher calling,” March said, reading from a written statement.
Red flag laws gained traction across the country after the high school shooting in Parkland, Fla., in 2018. As a means to prevent mass shootings, the Virginia General Assembly – over strong opposition from gun rights advocates – passed its own version of the legislation in 2020 after Democrats gained the majority in both chambers.
The law, which went into effect on July 1 that year, gives law enforcement or prosecutors the authority to petition a judge or magistrate to issue an emergency substantial risk order, valid for 14 days, against someone deemed a threat. However, authorities are first required to conduct an investigation, supported by an affidavit, before they can petition. If granted, the order allows authorities to seize a person’s weapons and prohibit the purchase of new firearms.
But the law also guarantees anyone subjected to such seizure a hearing within 14 days, allowing them the opportunity to plead their case and have their guns returned to them – if a judge so decides – or have them held up to 180 days under a permanent substantial risk order, which can be extended by an additional 180 days. There is no limit on the number of extensions.
Currently 19 states and the District of Columbia have some form of red flag laws in the books, including Florida and Nevada.
March told the committee on Thursday that her legislation would restore the civil rights of all Virginians. “You must face your accuser before your property is taken from you by force, when a SWAT team kicks in your door on the morning of an anonymous complaint,” she said. “You have the right to an attorney and to argue your case in front of a jury of your peers. Innocent civilians without their day in court have been killed in execution of these unconstitutional orders.”
The war for independence was fought over this very issue, March said. “Where without an opportunity to face their accuser or even have their day in court, the colonists suffered a seizure of their property, including their firearms. This is exactly why the framers of the Constitution and the Bill of Rights not only protected civilian-owned firearms in the 2nd Amendment, but even more so they protected your right to face your accuser before your liberty or your property was taken.”
Philip Van Cleave, president of the gun-rights group Virginia Citizens Defense League, said that the law as it is currently on the books is in violation of the Americans with Disabilities Act. He also argued that threatening harm to oneself in itself isn’t a crime.
“You shouldn’t have your rights taken away,” Van Cleave said. “It’s not like we don’t have a system in place that really works … the problem with red flag is that it doesn’t give help for a person when they are in crisis. They merely take their guns away and leave them in crisis.”
Speaking against March’s proposal, Lori Haas of the Coalition to Stop Gun Violence said that Virginia’s red flag law has been “vetted through the courts multiple times in jurisdictions across the country” and that it is not in contradiction with the Constitution.
“In the commonwealth of Virginia, it’s being used proportionately, it’s not being overused and it’s not being underused. In year one, Virginia State Police reported that 148 emergency orders were issued and 88 final orders were issued,” Haas said.
The law gives law enforcement officers a legal tool when facing someone at risk of harm to themselves or others, she said. “This law is focused, it is narrowly drafted, and it does have proper judicial proceedings associated with it.”
House Bill 506 is now headed to the full committee.
In other action . . .
Also on Thursday, a proposal that would have allowed parents or guardians to object to their children being vaccinated because it conflicts with their religious tenets failed by a 8-7 vote in the Senate Education and Health committee.
The legislation, which was sponsored by state Sen. Mark Peake, R-Lynchburg, would have allowed for this exemption even if an emergency or epidemic has been declared by the State Board of Health. Current law does not provide for the latter.
The same committee by a 9-6 vote also defeated a measure by Sen. David Suetterlein, R-Roanoke County, that would have allowed for the State Board of Education to receive, review, and rule upon applications for public charter schools and enter into agreements for the establishment of such. Under current law, the power to grant or deny public charter school applications rests solely with local school boards.
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