We don’t have any firm numbers on just how many times Virginia’s “red-flag” firearms seizure law has been used since it took effect on July 1st, but one recent case in the northwest part of the state provides ample evidence of the flaws in the new law and how it can be used to harass and cause problems for innocent parties.
A Frederick County man had his guns taken from him after both his father and son accused him of pulling a gun on the younger man back on September 2nd. The Winchester Star reports that the man recently had his firearms returned to him after a “substantial cause” hearing was held and the man’s father failed to appear in court.
“The red flag law is wrong because anybody who is spiteful can have someone’s guns taken from them,” the man told Judge Alexander R. Iden prior to having his guns returned. “ I go hunting every year in Romney, West Virginia, and there’s a chance I might miss hunting season.”
The man’s father had an emergency protective order issued against his son on Sept. 2 that expired on Tuesday and wasn’t renewed. The man said if his father was afraid of him he would have renewed the order. He said he’s returned home, and he and his father are back on good terms. But Deputy Samantha Garrison testified that the elderly father was shaking when he made the allegations to her at the Frederick County Public Safety Building on Sept. 2.
“ He told me he had no other option,” Garrison said. “ He was afraid when his grandson came home from work that something was going to happen.”
Garrison said she spoke by phone to the grandson. He said he made a sarcastic remark to his father on a stairway in their home and his father pointed a revolver at him. “[ He] said he didn’t initially report it because because his dad has done crazy things like that before and he is used to it,” Garrison said.
The subject of the “red-flag” order says that his son lied to officers, and claims that his son has held a grudge against him for a couple of years after he called police on his child when he found that the son had drugs delivered to his home. Neither the man’s father or son actually appeared in court for the substantial risk hearing, and an emergency protective order filed by the man’s father expired last week without the elder gentleman renewing it.
Without much evidence that the subject actually posed a danger to himself or others, the judge overseeing the case ordered the man’s guns returned to him, despite the objections of prosecutor Andrew Robbins.
“It’s discouraging for the commonwealth. All we can do is try and pray that this doesn’t go south,” he said. “ The gentleman is having his firearms returned to him, and we just hope that he uses them safely and doesn’t use them to injure himself or anyone else.”
Robbins said he understood the verdict given the lack of witness testimony. Iden said the seizure required “clear and convincing evidence” — a legal standard that is greater than a “ preponderance of evidence” and less than the “beyond a reasonable doubt” standard in a criminal case. “There are no witnesses that say a gun was pointed at them,” Iden said in denying the seizure motion.
To make it clear; the subject of the “red-flag” order was never charged with a crime, yet the filing of the order was enough for him to have his guns taken from him. Even though the man was accused of being a threat to himself and others, no mental health professional ever evaluated him, because that’s not a requirement of the state’s red-flag law. If his father and son had actually shown up in court for the hearing, it’s entirely possible that the “red-flag” order would have been finalized and the man’s guns would have been withheld from him for months on end.
Supporters of the “red-flag” law will likely claim that the resolution of the case shows that the law is working because the man had his guns returned to him. Opponents of the law, on the other hand, can rightfully point to the fact that the man was never charged with a crime, yet had his guns taken from him simply because of the accusations of two people who didn’t bother to show up for a court hearing.
I’m also curious to see what, if any, reaction this case generates locally. Frederick County is a Second Amendment Sanctuary, and more than 1,000 people showed up to the county supervisors meeting in December of 2019 in full support of the resolution. Will there be a backlash to the county sheriff and Commonwealth’s Attorney (both elected positions) attempting to enforce the red-flag order? Unless this case flies under the public’s radar, I suspect that many Second Amendment supporters will have quite a bit to say about the case in the coming days.