Federal funding could help Virginia enforce red flag laws
Advocates for the law passed in 2020 say it is a valuable tool, but argue it is being underutilized in the commonwealth.
Editor's note: This story references domestic violence and suicide.
Lisette Johnson of Chesterfield is a mother of two, a domestic violence survivor and an advocate for stronger gun control laws in Virginia.
Before surviving being shot multiple times by her husband, Johnson did not “identify as someone who was abused or experiencing domestic violence.”
“I owned a business. I had a big network of friends, very active in my church,” Johnson said. “So, I didn’t fit what I thought was the profile of a ‘battered woman.’”
After 21 years of marriage, Johnson told her husband she wanted a divorce. She says he verbally abused her and threatened her life.
Johnson had just returned home from church in 2009 when her husband, whom she did not want to identify, attacked her.
“He said, ‘I love you too much to live without you.’” Johnson recalled, “And then aimed the gun at my head and started shooting.”
Afterward, he shot and killed himself.
Today, Johnson works with survivors of domestic abuse. She says Virginia’s substantial risk order, commonly known as a red flag law, could have helped her back then — and may have saved her husband’s life.
Enacted in 2020, Virginia’s red flag law allows law enforcement or a Commonwealth’s Attorney to petition for firearm removal from a person believed to be a danger to themselves or others. This is enforced by an emergency substantial risk (sometimes called an extreme risk protection order). That person can either have their firearm(s) returned within two weeks — if a judge deems they are no longer a threat — or the risk order can be extended up to 180 days. New firearm purchase or possession is prohibited while under a risk order, too.
Similar laws exist in 19 other states and Washington, D.C. Advocates for Virginia’s red flag law say it is a valuable tool, but argue it is being underutilized in the state.
According to data provided by the Virginia State Police, from July 2020 to the end of 2022 emergency substantial risk orders, or a 14-day removal period, have been utilized 393 times. A judge has extended those risk orders to a six-month removal period 280 times.
This month, the federal government awarded Virginia nearly $5.1 million to assist in training and implementation of the state’s red flag law.
The funding comes from the Bipartisan Safer Communities Act passed by Congress in 2022. Virginia’s Department of Criminal Justice Services sought the funding for three purposes:
- to help reduce gun violence through continued implementation of substantial risk orders,
- increase funding for behavioral health care access
- support law enforcement in storing, tracking and returning firearms to owners.
Mass shootings, domestic violence and suicides
Florida’s Legislature passed its version of a red flag law in 2018 after the Parkland mass shooting at Marjory Stoneman Douglas High School that killed 17 people. Since then, according to The Pew Charitable Trusts, Florida law enforcement has issued over 9,000 risk orders.
But while mass shootings may be the impetus for passing this type of gun control legislation, the law is often used to prevent domestic violence and suicides. Research conducted by Duke University School of Law researcher Jeff Swanson found Connecticut’s red flag law — adopted in 1999, the first one in the U.S. — prevented one suicide for every 10 to 20 risk orders enacted.
In Fairfax County, police spokesperson Sgt. Tara Gerhard said of the 118 emergency substantial risk orders obtained, nearly 61% of them are related to mental health concerns and around 25% are related to domestic violence threats. Fairfax County accounts for nearly 33% of the state’s substantial risk orders.
The county’s police department has provided extensive training for its police officers, rolled out a public awareness campaign called “Prevent a Gun Tragedy - Speak Up!” and named a coordinator to handle questions related to the law.
“We get called to a mental health crisis where someone is wanting to kill themselves by utilizing a firearm,” said Det. Sgt. Amanda Paris, Fairfax County Police Department’s emergency substantial risk order coordinator. “Our officers are obtaining an emergency substantial risk order to be able to take that firearm away from that person at the time until they can get the treatment that they might need to get their firearms back.”
While the law doesn’t require gun owners to seek mental health treatment, proponents argue it may present an opportunity to get help.
“I have seen people where the officers have obtained a substantial risk order out on them, gone through the court process and be able to successfully receive their firearms back,” Paris said.
Second Amendment rights and due process
Critics of the law argue it infringes on a person’s Second Amendment rights and impedes due process. Attorney Gilbert Ambler of Winchester, who specializes in firearms law and has defended Virginians who have had their guns removed through risk orders, argues that it doesn’t reduce the danger.
“With the red flag laws, we leave the person in place, the person who’s harassing another person, who’s threatening another person, who’s potentially threatening themselves, that person is still there,” said Ambler. “All we do is we remove the firearms from them.”
Then there are the due process critiques. Risk orders are a civil charge, so they don’t appear on a person’s criminal record, but because the charges aren’t criminal the evidentiary standard is lower — and a gun owner does not have the right to a court-appointed lawyer in civil proceedings.
“So, if you don’t have the means to obtain an attorney, it means you wind up handling these things without counsel,” Ambler said. “I think everyone is better served when there’s counsel present.”
While Ambler is critical of the law overall, its requirement for an independent investigation by police makes Virginia’s law an improvement over other states’ red flag laws.
“At least we’re not just taking maybe an angry neighbor or an angry acquaintance’s word against yours,” said Ambler. “There’s at least somebody else looking into this.”
Failed efforts to overturn and continued enforcement
Republican Del. Marie March of Floyd County introduced a bill during Virginia’s 2023 General Assembly that would have eliminated the state’s red flag law. The proposal didn’t make it out of the GOP-led House Rules Committee.
While many gun rights advocates and Republicans are concerned the current law presents potential for government overreach, Virginia State Police data show that law enforcement is increasing its overall usage of the law. Supporters hope that improved awareness among law enforcement, attorneys and domestic violence advocates could lead to increased usage and a decrease in gun violence and deaths. The nearly $5.1 million in federal funding awarded to the state could lead to additional training.
The commonwealth has until March 15 to decide whether it will accept the funds.
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Mental health and suicide prevention resources
In emergency situations, call 988 or 911.
National Suicide Prevention Lifeline: 1-800-273-8255
- Deaf or Hard of Hearing? 1-800-799-4889
- En Español: 1-888-628-9454
Mental Health America of Virginia Warm Line: 1-866-400-6428 (MHAV)
- Monday to Friday, 9 a.m. to 9 p.m.
- Saturday, Sunday and Holidays, 5 p.m. to 9 p.m.
- Spanish Services (Friday and Saturday), 5 p.m. to 9 p.m.
- Text/Chat Support (Wednesday, Friday, Saturday), 5 p.m. to 9 p.m.
Veterans Crisis Line & Military Crisis Line: 1-800-273-8255, Press 1Crisis Text Line: 741-741
Sexual and domestic violence resources
National Domestic Violence Hotline: 1-800-799-7233 (SAFE)
Virginia Sexual and Domestic Violence Action Alliance
- Toll-free: 1-800-838-8238
- Text: 804-793-9999