Virginia Court Dismisses Red Flag Laws' Challenge

A Charlottesville court dismissed the lawsuit against Virginia's Red Flag laws for "lack of standing." Red flag laws allow law enforcement to obtain emergency court orders and confiscate firearms without due process from individuals accused of being dangerous to themselves or others. The laws were passed by the 2020 General Assembly and became effective on July 1, 2020.


A day after the laws took effect, Joseph Draego filed the lawsuit against the Charlottesville Police Department and the city's Commonwealth's Attorney's Office challenging the constitutionality of the law. Draego argued that the laws violated the First, Second, Sixth, Seventh, and 14th Amendment rights.


Joe Platania, Charlottesville’s commonwealth’s attorney, and RaShall Brackney, the city’s police chief, argued that such orders have not been sought since the laws came into effect. Brackney added that the case had no grounds because no orders were sought against Draego and that the lawsuit was based on an anticipated violation and subsequent judgment.


“Draego’s First Amendment claims are based upon speculative future activities which are contingent upon the commencement of a future legal proceeding, the conclusion of a future judicial determination, as well as Draego’s future alleged ‘plans to refrain from engaging in lawful expressive activity to avoid losing his ability to possess firearms’ on some unidentified future date,” Brackney wrote.

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Attorney General Mark Herring said he reached an agreement with the court to dismiss the lawsuit. He celebrated the decision, saying that Virginians had voted overwhelmingly for gun control.


"In Virginia, we have already seen how this 'red flag' law has been used to save lives by keeping firearms out of the hands of someone who could use it to harm themselves or others," Herring said.


Red flag laws violate the accused person's 2A rights by denying them the right to bear arms. During the period, the individual's life remains in danger for lack of self-defense means. The laws also violate the individual's Fifth Amendment rights for their lack of due process during the initial confiscation.

Although the accused person could request for the lifting of the orders within 30 days, the court process is lengthy and expensive, while the chances of success are minimal. Additionally, the judge could extend them by another 180 days, leaving the accused person more vulnerable.

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