RICHMOND, Virginia — Concerns about a lack of due process and mental health treatment weren’t enough to stop the Virginia Senate from passing a bill Wednesday that would allow police to temporarily take people’s guns away if a judge deems them a threat to themselves or others.
The bill, an extreme risk protection order commonly known as a red flag law, passed on a party-line vote after a nearly hourlong debate and now heads to the House of Delegates for consideration. A lawmaker there, Delegate Rip Sullivan, has his own version.
Democrats, who have the majority in both chambers, say the bill — versions of which have passed in 17 other states and Washington, D.C. — would save lives and prevent people from harming themselves.
Republicans call it an unconstitutional gun grab.
The Senate bill has gone through several iterations both in committee and on the Senate floor. In the process, misinformation about what it does has spread. Here’s what the legislation actually says:
THE ORDER
After an investigation and at the request of a commonwealth’s attorney or two police officers who submit an affidavit, a judge or magistrate can issue a 14-day “emergency substantial risk order” if they find probable cause to believe someone is a danger to themselves or others if they have a gun.
A police officer delivers the order, and the person is told to give up any concealed carry permit and voluntarily give up any guns. If they don’t, a search warrant can be acquired to take any guns.
The person can also give their guns to someone other than law enforcement who is at least 21 and is allowed to have a gun.
THE HEARING
After 14 days, there’s a hearing to determine if the order needs to be in place for longer. The subject of the order can ask for more time to prepare for the hearing, get a lawyer and go over any discovery while the emergency order remains in place.
At the hearing, the judge can issue a longer order — up to 180 days — if they find “clear and convincing evidence” the person is still dangerous with a gun.
A commonwealth’s attorney or a police officer can also ask for the order to be extended for up to another 180 days, but that would require another hearing.
If a judge says a longer risk order isn’t needed, the person gets their guns back.
REPUBLICAN OPPOSITION
Republicans say the red flag law unfairly takes guns away from people without proper due process, and even though the person hasn’t committed a crime. They say it’s wrong that guns can be taken during the 14-day emergency portion of the risk order without the person getting a hearing to defend themselves.
“Let them have their day in court,” Republican state Sen. Richard Stuart of King George said Tuesday. “Let them confront their accusers. Let them present witnesses.”
They also say taking away guns won’t necessarily stop people from harming themselves or others. Republicans raised concerns about the bill not providing any treatment for mental health issues.
“Where’s the knife? Where’s the hammer? Where is it in a bill that it says when a person poses a risk of harm to themselves or others, that they should take out all the medications that could possibly hurt him?” Republican state Sen. Bill Stanley of Franklin said Tuesday. “Where is it? It’s not in there. You know why? Because then this bill would look as ridiculous to all as it is to some on this floor.”
DEMOCRATIC SUPPORT
Democrats say such red flag laws have worked in other states to prevent violence, especially suicides. They pointed to studies that showed reductions in firearm suicide rates in Connecticut and Indiana, where red flag laws are on the books.
“What we are really doing is removing some of the risk of dozens of people being murdered en masse in advance,” said Democratic state Sen. Scott Surovell of Fairfax, who substantially changed the original red flag bill in a way he said gives more due process.
A December poll from the Christopher Newport University Wason Center showed 73% of respondents supported some form of a red flag law.
OTHER GUN BILLS
A slew of other bills pitched by Democrats and supported by Democratic Gov. Ralph Northam were scheduled to be voted on at a Senate committee meeting Wednesday afternoon.
One bill would require people to report a lost or stolen firearm to police within 24 hours of realizing it has gone missing. Another would ban people under permanent protective orders from having a gun.
Democratic state Sen. Louise Lucas of Portsmouth has a bill that would ban guns at preschools and daycare centers, and Democratic state Sen. Adam Ebbin of Alexandria has one that would create a permanent gun ban on Capitol Square.
The seven bills pitched by Republican state Sen. Bill DeSteph of Virginia Beach, which would increase time in prison for certain gun-related felonies, died in an about an hour in committee Wednesday.
Northam and the new Democratic majority have said mandatory minimum sentences unfairly target people of color and contribute to mass incarceration. They say sentencing should be left up to the judges.
DeSteph and other Republicans argue it’s a way to stop people from committing more crimes.
“The best way to stop criminals from continuing on a rampage is to put them in jail and keep them there,” DeSteph said.
His bill to exempt families of Virginia Beach mass shooting victims from paying taxes on any probates of wills passed unanimously in the Senate.
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