Some Of Virginia's 2A Sanctuaries Quietly Using New Red Flag Law

In the wake of the Democratic takeover of the Virginia state legislature last November, more than 100 counties, towns, and cities across the state adopted Second Amendment Sanctuary resolutions vowing opposition to unconstitutional gun control laws. As the Virginia Mercury reports, however, law enforcement in some of those same localities are now using the new red flag firearm seizure law approved by Democrats earlier this year to take firearms from those deemed by a judge to pose a “substantial risk” to themselves or others.

Of at least 21 red flag cases filed in July and August, the first two months of the law’s existence, roughly half occurred in counties and cities that passed pro-gun resolutions after the Democratic takeover of the General Assembly in elections last November, court records show.

“I am surprised, quite honestly, that so many have done this,” said Philip Van Cleave, president of Virginia Citizens Defense League, who has argued the state could already take guns from people suffering mental health crises through temporary detention orders. “It just doesn’t make any sense why they’re using it the way they are.”

In some cases, it appears as if the Substantial Risk Protection Orders are being used in lieu of prosecuting individuals for actual crimes as well or to avoid the state’s civil commitment laws, which require actual medical professionals evaluating the subject’s mental health.

Two red flag cases were filed in Colonial Heights, where the city council had passed a resolution stating that city funds should not be used to “unconstitutionally restrict Colonial Heights citizens from bearing arms.”

One of those orders was filed as part of ongoing legal proceedings in the case of a man who called 911 in March, said he was thinking of killing his wife and barricaded himself in his home. He was shot by an officer after he came to the door holding a rifle. As a result of the incident, the man faced misdemeanor charges of brandishing a firearm and reckless handling of a firearm. He and his lawyer consented to the red flag order, which was requested jointly with the local prosecutor.

Ashley Henderson, a deputy commonwealth’s attorney in Colonial Heights, said the two sides negotiated a six-month red flag order as a way to “put safeguards in place” to protect the man and the community by “restricting his access to firearms.”

“Both sides found that this was the most effective way to achieve that,” Henderson said.

Court documents indicate that man is a military veteran struggling with PTSD. Police retrieved 13 firearms from his home. As part of the deal, prosecutors agreed not to pursue the charges.

This case highlights what I consider to be some of the biggest flaws in the red flag law. The issue here isn’t that the guy owned guns that were taken away, but that he said he was thinking of killing his wife. Not only were criminal charges dropped against the man in this case, but because the Substantial Risk Protection Orders don’t come with any mental health component, the subject wasn’t required to get any sort of psychological or psychiatric help. In fact, after the guns were seized he was left in the home with knives, matches, gasoline, and any number of blunt objects that he could use to harm himself or others.

In far Southwest Virginia, Scott County authorities issued a substantial risk order for an “ex-military person” who appeared disoriented and seemed to be struggling with mental health issues, according Sheriff Jeff Edds. The sheriff said he didn’t see the new process as a significant shift for his office since the state law already banned gun possession for people ordered to undergo involuntary mental health treatment.

“It’s just extra paperwork as far as we look at it,” Edds said. “Just a form.”

It’s not just a form if the subject of the red flag petition hasn’t been ordered to undergo involuntary mental health treatment, and it sounds like that’s the case in many of the red flag orders that have been filed. In fact, I believe one of the biggest practical problems with the red flag law (besides the obvious due process and constitutional concerns) is the fact that it allows lawmakers to say they’re “doing something” to address those in crisis while ignoring the crisis in Virginia’s mental health system. As Lauren Cunningham, the Director of Communications with the Department of Behavioral Health and Developmental Services, recently told Richmond TV station WTVR,

State hospitals across Virginia, including Eastern State Hospital (ESH), are regularly operating at 100% of their bed census.

When all of the state hospitals are full, there may be delays in admissions to state hospitals.

As always, we are not denying admissions except in cases related to COVID-19, but are delaying admissions if state hospital staff need to work to make a bed available.

We understand that this makes it incredibly difficult on local law enforcement, especially smaller departments, who may have to stay with a patient for several hours before a bed becomes available. However, it is absolutely unsafe to leave an individual without police presence while being assessed in the emergency room, or drop an individual off before a bed has been found.

There simply aren’t enough in-patient beds for those individuals in the midst of a mental health crisis, which can make a red flag petition an attractive option and a workaround for law enforcement, who might otherwise be tied up for hours waiting to transport a person to a mental health facility when there’s no room for them. Why go through the cumbersome process of trying to obtain a Temporary Detention Order for someone based on their mental health when it’s easier and faster to just take their guns through a red flag order? Sure, the person in crisis won’t get treatment, but at least the authorities can say they did “something” to address the situation.

I’ll be interested to see how much pushback there is to the use of red flag laws in these Second Amendment sanctuaries now that the word is getting out, but what we really need is for lawmakers in Richmond to get serious about addressing mental health in the state, rather than relying on the red flag law to mask their failure to ensure that those in crisis get the help that they need.

Jul 31, 2021 8:30 AM ET