After seven months of conducting no background checks for private firearm sales, followed by one week of checks, Virginia State Police have again halted the checks after a Lynchburg judge stepped in Wednesday.
Lynchburg Circuit Judge Patrick Yeatts on Wednesday denied a motion to dissolve the injunction that ceases background checks for private firearm sales, calling on state police to once again follow the order he issued in October. Last week, state police resumed background checks for the private sale of firearms to comply with a new state law.
Yeatts called on the parties to return to court later this month in the ongoing case.
The Virginia State Police updated its website Wednesday evening to say it is “in compliance with the injunction” and “currently cannot provide criminal history background checks for the private sale of firearms.”
Hours before, the website read: “The State Police background check for the purchase of a firearm includes the enforcement of both state and federal law. Private Sale background checks are now available.”
Yeatts said legal counsel for the plaintiff — the Virginia Citizens Defense League, a pro-gun organization — and the defendant — Col. Jeffrey Katz, superintendent of the Virginia State Police — have 10 days to file additional information before further arguments are scheduled sometime in June. In the meantime, Yeatts’ injunction from October remains in place and should be enforced, he said.
“The Commonwealth will carefully review the order once it is entered and provide additional information as directed by the court in our continued defense of Virginia’s life-saving background check laws,” Rae Pickett, spokesperson for the attorney general’s office, said in a statement Wednesday. The attorney general’s office is representing Katz.
Philip Van Cleave, head of the Virginia Citizens Defense League, said in a phone interview that he’s thankful that the separation of powers was upheld Wednesday so that the court could check recent moves made in the legislative and executive branches in Richmond.
“This is what we had hoped for and felt would happen. The governor and the General Assembly have violated the Constitution, and when you do that, you’re going to be struck down,” he said.
Wednesday’s update from the courtroom comes in an ongoing legal discussion of what the so-called “Lynchburg loophole” means for gun sales in Virginia.
The road to the ‘Lynchburg loophole’
The General Assembly passed a law in 2020 that required background checks for the sale of all firearms in the commonwealth. Previously, private sellers were not subject to the same identification or reporting requirements as licensed dealers.
Under the 2020 law, in order to obtain a background check, the purchaser needed to pass through the National Instant Criminal Background Check System. That system automatically rejects purchasers under 21 years old — the federal age requirement to purchase a handgun.
The legal age to purchase a handgun in Virginia was 18 at the time.
That difference in age requirements led to a number of legal challenges after the 2020 bill was enacted. To settle those challenges, the state created a mechanism that required state police to attend gun shows to conduct background checks for buyers under the age of 21. State police used a different system, bypassing the NICS, that allowed purchasers between 18 and 20 years old to legally buy handguns through private sales at gun shows.
But in October, a permanent injunction granted by Yeatts halted all background checks for the private sale of firearms in Virginia, including sales that take place at gun shows. In an action dubbed the “Lynchburg loophole,” the court issued its injunction based on its finding that 18- to 20-year-olds were being discriminated against on an equal protection theory, rather than a Second Amendment basis.
No background checks were conducted for the private sale of firearms in Virginia between October and May 27, when state police announced they would be resuming the process immediately to comply with a new state law.
In April, the General Assembly passed HB 1525, which increased the legal age to buy handguns and assault firearms in Virginia to 21 to align with the federal requirement — and effectively restore universal background checks in the commonwealth. It was signed by Gov. Abigail Spanberger with an emergency clause to immediately enact the legislation on April 22.
“Polls have repeatedly shown that more than 80 percent of Virginians support universal background checks — including a majority of gun owners and Virginians from every part of the political spectrum,” a spokesperson for Spanberger said in a statement. “Governor Spanberger signed this widely supported law to restore commonsense background checks and help law enforcement officers keep our communities safe. The Governor will continue to take commonsense steps to protect law enforcement officers, kids, and families across the Commonwealth from gun violence.”
Attorney General Jay Jones issued a request in early May to the Lynchburg court that sought to dissolve the injunction. Jones argued that the passage of HB 1525 had aligned the legal age to purchase certain firearms in Virginia with the federal standard and had effectively rendered the case moot.
What changed Wednesday
On Wednesday, Yeatts made three noteworthy calls.
First, he dismissed the motion from the attorney general’s office to dissolve the injunction.
Calvin Brown, the assistant attorney general representing Katz, said the injunction should be dissolved because it doesn’t apply to the current legal circumstances in the state. When the injunction was issued in October, 18- to 20-year-olds could buy guns. Since HB 1525 passed in April, they no longer can.
David Browne, legal counsel for the Virginia Citizens Defense League, said HB 1525 is separate from the 2020 statute that is enjoined, and thus has no effect on the need for the injunction to stay in place. He also raised arguments that HB 1525 was not properly enacted on the emergency timeline.
The injunction stems from a statute that, back in October, Yeatts ruled “cannot pass constitutional scrutiny.” He struck the statute in its entirety, and that ruling was not appealed by then-Attorney General Jason Miyares. The permanent injunction that resulted is still in place and must be enforced, Yeatts said.
Second, Yeatts dismissed Browne’s motion for a rule to show cause as it relates to Katz being in contempt of court for restarting background checks last week. Browne said it’s an “open and shut case of contempt” because state police started conducting background checks despite being ordered not to by the court. Yeatts said he expects the police to comply with his order moving forward and there’s no need to show cause now.
Third, Yeatts ordered the attorneys to file additional arguments this month and come back for more arguments at some time before July 1, when new state laws normally take effect. A central question moving forward, he said, is whether HB 1525 can create a “fix” for the statute that he found to be unconstitutional in October.
Del. Garrett McGuire, D-Fairfax County and the patron of HB 1525, said the ruling Wednesday was “disappointing.”
“I wish Republicans would come and join us in trying to prevent criminals from having firearms, and not try to throw our state police commissioner in jail,” he said in a phone interview.
Del. Wendell Walker, R-Lynchburg, said “criminals do not obey laws” and can find a way to access firearms regardless of state oversight.
“I think people feel more secure if they have a means by which to protect themselves individually,” and if there’s “more law enforcement on the streets,” Walker said in a phone interview. “Infringing upon the right to keep and bear arms is not the answer.”
Walker said he’s thankful to have a Lynchburg judge who stands his ground when upholding constitutional rights.
“I think today’s ruling is a good day for the rule of law, and it’s just another reminder that constitutional rights cannot be brushed aside by politicians in Richmond,” he said.
