Virginia Red Flag Laws: The troubling aspects of SB 240. Three parts of the bill put burdensome and second amendment violating obstacles on the person subject to the these laws. One, although the application for the seizure has to be done via an affidavit, the police are tasked with independently investigating the facts--what Department is not going to find in favor of the applicant and deal with that liability?
Two, after seizure, there is supposed to be a hearing on the matter within 14 days and the Commonwealth has the burden of proof by presenting evidence or testimony that is "clear and convincing." Besides the fact that these judges will always side with confiscation, the fact that the subject of the seizure is not automatically given access to a public defender is outrageous. How many of these people can afford a good attorney to argue for them? Not many.
Lastly, the law is written expressly with the intent to make the subject of the confiscation "jump through hoops" and burden them with more paperwork to get their firearms back at the end of the confiscation period. The subject has to give written notice to the police department and the department has five days to respond. The department is then tasked with running a NCIC or background check on the individual. If the subject of the confiscation doesn't retrieve their firearms within four months, the confiscating department can destroy them. So, your ten thousand dollars worth or firearms and accessories can be melted down without compensation. The departments should be made to transfer the firearms to the Commonwealth or store the property until all attempts to return the property are exhausted. They do it for all other valuables like coins, returned checks, jewelry, bonds and other unclaimed property. The fact they aren't doing that for firearms proves their bias against guns and is a backhanded way of confiscating guns and destroying the second amendment rights.
Here are the sections:
An emergency substantial risk order issued pursuant to this section is effective upon personal service on the person who is subject to the order. The order shall be served and the search warrant shall be executed forthwith after issuance. A copy of the order and the search warrant, if any, shall be given to the person who is subject to the order together with a notice informing the person that he has a right to a hearing under § 19.2-152.14 and may be represented by counsel at the hearing. NO INCLUSION OF PUBLIC DEFENDER.
§ 19.2-152.14. Substantial risk order. Not later than 14 days after the issuance of an emergency substantial risk order pursuant to §19.2-152.13, the circuit court for the jurisdiction where the order was issued shall hold a hearing to determine whether a substantial risk order should be entered. The attorney for the Commonwealth for the jurisdiction that issued the emergency substantial risk order shall represent the interests of the Commonwealth. Notice of the hearing shall be given to the person subject to the emergency substantial risk order and the attorney for the Commonwealth. The Commonwealth shall have the burden of proving all material facts by clear and convincing evidence. If the court finds by clear and convincing evidence that the person poses a substantial risk of personal injury to himself or to other individuals in the near future by such person's possession or acquisition of a firearm, the court shall issue a substantial risk order. NO PUBLIC DEFENDER
§ 19.2-152.15. Return or disposal of firearms. Any firearm taken into custody pursuant to a search warrant issued pursuant to § 19.2-152.13 and held by a law-enforcement agency shall be returned by such agency to the person from whom the firearm was taken upon a court order for the return of the firearm issued pursuant to § 19.2-152.14 or the expiration or dissolution of an order issued pursuant to § 19.2-152.13 or 19.2-152.14. Such agency shall return the firearm within five days of receiving a written request for the return of the firearm by the person from whom the firearm was taken and a copy of the receipt provided to such person pursuant to § 19.2-152.13. Prior to returning the firearm to such person, the law-enforcement agency holding the firearm shall confirm that such person is no longer subject to an order issued pursuant to § 19.2-152.13 or 19.2-152.14 and is not otherwise prohibited by law from possessing a firearm.
A firearm taken into custody pursuant to a search warrant issued pursuant to § 19.2-152.13 and held by a law-enforcement agency may be disposed of in accordance with the provisions of § 15.2-1721 if (i) the person from whom the firearm was seized provides written authorization for such disposal to the agency or (ii) the firearm remains in the possession of the agency more than 120 days after such person is no longer subject to an order issued pursuant to § 19.2-152.13 or 19.2-152.14 and such person has not submitted a request in writing for the return of the firearm.
WHY ARE FIREARMS NOT CONSIDERED VALUABLES OR UNCLAIMED PROPERTY?