Pro-gun localities accounted for nearly half of Virginia’s red flag orders in law’s first months

By: - October 6, 2020 12:04 am

A pro-gun demonstrator at a rally on the Capitol grounds in 2020, held in opposition to proposed new gun control laws, holds a makeshift Gadsen flag. (Ryan M. Kelly/ For the Virginia Mercury)

In early July, Virginia Beach police officers responded to a call about a man threatening to shoot himself in the head in his ex-girlfriend’s driveway after she broke up with him. According to court documents, they found a loaded gun in his car.

Less than a week later, they received a call about a man who allegedly pointed a handgun at his neighbor’s forehead, said “I want to know why this place is creeping on me” and threatened to shoot if he didn’t get an answer. When officers went to the man’s home, they found him driving slowly across his front yard with an assault-style rifle across his chest and a handgun wedged by the passenger seat. At one point he reportedly said: “I could have taken all of you.”

In mid-August, a Virginia Beach officer learned a woman who had previously been diagnosed with PTSD and bipolar disorder had said she had planned to shoot herself at Mount Trashmore Park but didn’t go through with it, explaining that “families started showing up and that it wasn’t her time.” She said she would wait until she officially lost her job, then do it.

All three people had substantial risk orders filed against them under the state’s new red flag law, which lets local authorities temporarily ban people from possessing or buying guns if they’re found to be a safety risk. The orders were filed despite Virginia Beach’s self-professed status as a “Second Amendment Constitutional City,” a moniker approved by its city council via a resolution passed in January under pressure from the Virginia Citizens Defense League, a gun rights group. The vote drew wide attention, coming about seven months after a mass shooting at a Virginia Beach municipal building that killed 12 people. 

Though local politicians in many conservative-leaning Virginia communities voted last year to symbolically declare their opposition to Democratic-supported gun control measures, court records show that law enforcement agencies in some of those localities are already using the red flag law to try to prevent people from hurting themselves or others.

“Clearly the law is working when law enforcement are taking advantage of this tool in so many situations,” said Lori Haas, Virginia director of the Coalition to Stop Gun Violence, which has advocated for the red flag law and numerous other gun restrictions.

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 July and August, at least five red flag cases were filed in Virginia Beach, the state’s largest independent city. That matched the number filed in Fairfax County, the state’s most populous locality, where officials did not take a stance against new gun restrictions.

The Virginia Beach Police Department said it has confiscated a total of three firearms under the new process, which spokeswoman Linda Kuehn called “a law that we are obligated to enforce.”

The council’s resolution did not give us any hesitation as the Police Department is guided by the statutory mandate of the General Assembly legislation,” Kuehn said. “Our endeavor will always be to ensure the safety of our community.”

Guns are not seized in every red flag case, and some people subjected to the orders told authorities they didn’t have any firearms to take.

To take someone’s guns under the law, police have to conduct an initial investigation then have a magistrate or judge sign off on an emergency order suspending the subject’s gun rights for up to 14 days. At a court hearing, that person can make a case to restore the guns. If the judge deems the person a threat, the order can be extended for up to 180 days, but additional hearings can be scheduled to extend the order further..

The red flag law — which gained nationwide traction as a way to prevent mass shootings after the 2018 high school shooting in Parkland, Fla. — was one of the most contentious gun proposals passed by the General Assembly earlier this year. Democrats presented it as a common-sense procedure to get guns away from troubled people and reduce gun suicides. Republicans denounced it as constitutionally suspect, saying it allows authorities to effectively strip people of their gun rights without being accused or convicted of a crime.

Opposition to the new, pro-gun control legislature spread throughout the state last year, with local officials in over 100 counties, cities and towns passing resolutions affirming their support of gun rights. Some gun advocates pushed for stronger resistance, suggesting local governments also insist that no local resources be used to enforce new gun laws.

Amherst County residents raise their hands to show support for their county’s “Second Amendment Sanctuary” resolution. November 19, 2019. (Graham Moomaw/ Virginia Mercury)

But those resolutions don’t appear to be an impediment for law enforcement agencies that have to handle troubled people with access to guns.

The Virginia Mercury obtained a list of cases and where they occurred through a Freedom of Information Act request filed with the Supreme Court of Virginia’s Office of the Executive Secretary, which administers and supports the statewide court system.

The accounts of what led up to each red flag order are based on documents obtained from local courthouses. The Mercury is not naming the people who had orders filed against them because it is a civil process, not a criminal charge, and many of the cases appear to involve mental health issues.

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.

The other Colonial Heights case involved a man who was arrested in connection with a drunken family fight and said he was “tired of the human race,” threatening to kill himself and/or his brother when he got out of jail. He told authorities he didn’t have any guns.

Some red flag orders haven’t progressed past the initial, 14-day emergency phase.

In Frederick County, an emergency order was issued in an apparent family dispute, but a man’s guns were returned to him after he showed up in court and accused his relatives of lying about him.

The red flag law is wrong because anybody who is spiteful can have someone’s guns taken from them,” the man told the judge, according to The Winchester Star.

Conservatives opposed to the law had argued it could give rise to mischief by being weaponized in disputes between relatives and neighbors. Van Cleave said he was aware of one case where police had investigated someone for a possible red flag order but didn’t issue one once they realized there was no basis for it. He declined to offer details, saying it could lead to litigation.

The new law isn’t just being used in cities and suburbs.

In Floyd County, a man who allegedly had a history of making threats to officers called the local sheriff’s office to ask for a welfare check on a family member. When he was told someone would have to call him back, he allegedly told the dispatcher deputies should “bring their f—cking guns” when they come. He was charged with making a threat over the airways and numerous other offenses the next day. Though a local law-enforcement officer filed for an emergency order, prosecutors chose not to pursue a long-term order and the case was dismissed.

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.”

In early August, deputies in Isle of Wight County were asked to locate a young man for a welfare check requested by Hampton police. They found him passed out behind the wheel in a parking lot, with an open liquor bottle in the center console and an ammunition box in the passenger seat. A loaded handgun — which the man said he bought the day before after a co-worker accused him of unspecified wrongdoing — was under the driver’s seat, but had jammed. 

The man reportedly told deputies “he got drunk and didn’t remember what happened afterward” adding “he could not do it to himself.” An emergency substantial risk order was filed against him, after he was taken to a hospital for immediate treatment.

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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville.