Monday, January 6, 2020 GOP, 2A Groups Reject Virginia “Red Flag” Proposal

In Friday's eBullet, VSSA shared the article about SB 240 - Senator Barker's "Substantial Risk" or "red flag" bill, from  A follow-up article was posted on Saturday that shared comments from Delegate Todd Gilbert and from VSSA.   From Delegate Gilbert:
“Our concern with this bill and others like it is that these bills go too far, and open the door for abuse that would not only endanger citizens but also law enforcement. There is room to tweak our existing, proven system of dealing with those who may be a threat to themselves or others while preserving due process, but this bill comes up short.”
And comment from VSSA:
“As with other laws of this type, it does nothing for those ruled to be a risk to no longer be a risk other than taking the firearms. It takes guns prior to a hearing to determine if the individual is a risk, and it gives immunity to law enforcement if someone’s firearms are damaged or stolen while in law enforcement custody. It has none of the constitutional protections that for instance, Dave Kopel, recommends for the law to be constitutional.”

I did not go into detail in my comment on those protections but I will list them here. In testimony before congress last spring, Independence Institute Research Director Dave Kopel listed the following constitutional protections that should be part of any "Extreme Risk Protection" or red flag laws:
  • Petitions initiated by law enforcement, not by spurned dating partners or relationships from long ago.
  • Ex parte hearings only when there is proof of necessity.
  • Proof by clear and convincing evidence, which has been corroborated.
  • Guarantees of all due process rights, including cross-examination and right to counsel.
  • Court-appointed counsel if the respondent so wishes.
  • A civil remedy for victims of false and malicious petitions.
  • Safe and orderly procedures for relinquishment of firearms.
  • Strict controls on no-knock raids.
  • Storage of relinquished firearms by responsible third parties.
  • Prompt restoration of concealed carry permits for the falsely accused.
  • Prompt return of firearms upon the termination of an order.
  • Renewal of orders based on presentation of clear and convincing proof.
  • Not allowing time-limited orders to be bootstrapped into lifetime federal prohibition.
When you read SB 240, it does include allowing firearms to be stored by third parties.  Also, only law enforcement can go to a judge to request such an order as Kopel mentions in his list, but the bill only requires that a judge determine there is “probable cause” that someone poses a “substantial risk” to themselves or others, not the "clear and convincing evidence" that Kopel listed.  Probable cause is a very low legal bar.  SB 240 is more about confiscating firearms that providing assistance to those in crisis or public safety.

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