***UPDATE - JUNE 2020: I am not accepting new mental health restoration cases until at least October.***
The COVID-19 pandemic caused Virginia courts to more-or-less shut down for over three months. As of June/July 2020, courts are only barely starting to get back to "normal" operations. The COVID-19 shutdown caused an unexpected backlog of cases for courts and for many attorneys. This unexpected backlog is a significant drain on time and resources.
For my office in particular, I have had to evaluate the best way to approach the increased workload as the backlog of cases slowly begin to work through the courts. When I accept a new client, I do so with the intention of providing the necessary time and effort which the case requires. For many types of cases, I regularly decline to accept new clients if I do not have the capacity or resources to properly handle their case.
Mental health restoration cases require an extraordinary amount of time and effort. Thus, as a result of the COVID-19 backlog of cases, I am not accepting any new mental health restoration cases until at least October of 2020. In October of 2020, I will reevaluate whether to begin accepting new mental health restoration cases. If you are still seeking an attorney for a mental health restoration, please check back in October.
I am still accepting new cases for felony restorations, CHP denials, criminal defense, and other practice areas. I am only suspending new mental health restoration cases. I apologize for any inconvenience. Thank you for understanding.
One of the lesser known areas of firearms rights involves the intersection of firearms rights and mental health. Whereas nearly everyone is aware that a felony conviction will operate to revoke firearms rights, very few are familiar with the disability that stems from an involuntary admission / commitment for mental health.
This intersection between firearms rights and mental health is particularly important for the many people who may have a temporary struggle with mental illness but then successfully manage and treat their condition with no lingering effects. For example, an individual may experience a devastating loss of a family member which triggers an onset of severe depression. Similarly, an individual may experience an extremely traumatic event which develops into an anxiety disorder. There are an unknown number ways that a person may find themselves dealing with an unforeseen mental illness.
If the struggle with mental illness becomes overwhelming and destructive, it is very easy for a person to find themselves as the subject of a commitment hearing. The commitment process might be triggered by a concerned spouse or by an attentive medical professional. Regardless of how the process starts, it is quite easy for the individual to be involuntarily admitted to a treatment facility.
It is important to note that the involuntary commitment process is not necessarily a “bad” thing. It is not intended to be a punishment. Quite the opposite. Through the process, the individual is safely restored to the point that they can begin the process of treating and managing their illness outside of the facility.
It is also important to remember that the individual did nothing “wrong.” Mental illness is not the result of a flaw in an individual’s character. It is the result of a flaw in brain chemistry. Mental illness has the same moral connotation as Type I diabetes. Neither patient asked for it. Neither patient could have prevented it.
Even though the commitment process is not intended to be a punishment, it is similar to a punishment as it pertains to the individual’s firearms rights.
Under Virginia Code §18.2-308.1:3, an individual is prohibited from purchasing, possessing, or transporting a firearm after an involuntary mental health commitment.
Specifically, the prohibition applies to anyone:
If any of these events occurs, the individual is prohibited from purchasing, possessing, or transporting a firearm.
Importantly, if an individual violates §18.2-308.1:3, it is punishable as a Class 1 misdemeanor. That means up to 12 months in jail and up to a $2,500 fine.
This prohibition is indefinite unless the individual’s firearms rights are restored. It does not matter whether the individual successfully completes a treatment program. It does not matter whether the original admission and subsequent commitment were a complete mistake. It does not matter whether the individual has successfully managed their mental health for several decades after the commitment.
Fortunately, Virginia law provides a mechanism for the individual to have their firearms rights restored. Under subsection (B) of §18.2-308.1:3, an individual may petition the local general district court to restore their firearms rights.
Here are some quick comments about the petition process:
The petition is filed in the Virginia general district court where the individual resides.
Fortunately, there is no minimum residency requirement. For example, if you recently moved to Virginia Beach, you are not required to wait an arbitrary amount of time before filing the petition in the Virginia Beach General District Court. You can file the petition as soon as you consider yourself “residing” in Virginia Beach.
Up until recently, this created a very difficult problem for out-of-state residents. The statute did not specify where an out-of-state resident should file a petition, and some judges concluded that an out-of-state resident could not file a petition at all!
Fortunately, the General Assembly fixed this problem in 2017. Now, out-of-state residents are required to file the petition in the Virginia general district court for the city or county where the most recent commitment or admission occurred. For example, if you were committed in Henrico County but you then moved to North Carolina, your petition must be filed in Henrico County.
And to be clear, if you were committed in Virginia, you must be restored by Virginia! It does not matter if you currently live in another state.
The petitioner is required to mail a copy of the petition to the local Commonwealth’s Attorney. In this situation, the Commonwealth’s Attorney may not always be in complete opposition to the petition. Then again, they may indeed be completely opposed to the petition.
At a minimum, it is safe to assume that the Commonwealth’s Attorney will not sit idly on the sidelines throughout the entire process. They will almost certainly take an active role in the process and the hearing.
The statute requires the court to consider the following factors:
The presentation of evidence is a highly technical exercise. You should discuss with your attorney the best options to present favorable evidence to the court.
Should you bring in friends, family, and co-workers? Will the judge be satisfied with only documentation evidence that explains your treatment? Is it necessary to bring in a psychiatrist as an expert witness? How much should you focus on the original commitment as opposed to your experiences AFTER the commitment?
All of these are questions that should be discussed with your attorney as you prepare the petition and prepare for the hearing.
The statute states that the court shall grant the petition if it determines that the individual “will not likely act in a manner dangerous to public safety” and granting the petition “would not be contrary to the public interest.”
While that standard may sound straightforward, it gives a great deal of discretion to the judge.
When combined with the factors listed above, this underscores the need for an experienced attorney to properly present your evidence and arguments to the court. It is not a matter of merely presenting the evidence. Nor can you simply rely on the judge to reach your desired conclusion. You should rely on an attorney to present your evidence to the court in a clear and concise fashion and make the appropriate arguments that explain how the evidence supports your petition.
Your attorney should be skilled in the presentation of evidence and arguments, and they should be experienced in navigating the twists and turns that will undoubtedly occur as your case progresses.
The statute provides that the petition may be filed “at any time following [the individual’s] release.” Technically, this means that an individual can be released from the facility and file the petition on the very same day.
On the one hand, it is beneficial that the individual is not required to wait an arbitrary amount of time before filing the petition. On the other hand, it may not be advisable to file the petition at the earliest moment possible.
It is unlikely that I would advise someone to file their petition as soon as possible after their release from a mental health commitment. From the court’s perspective, the best predictor of future behavior is past behavior. As an attorney, I would prefer my client to have an appropriate amount of time after the commitment that demonstrates stability — both in their personal life and with their mental health.
Does it need to be a period of ten years after the commitment? Almost certainly not! Can it be as soon as six months after the commitment? That is very quick, but depending on the circumstances, perhaps.
If you have would like to file a petition to restore your firearms rights under §18.2-308.1:3, contact my office for a free consultation. We can discuss your situation and go over all of your options.
You can schedule the consultation for when it is convenient for you. Feel free to call the office at (757) 333-7529 or you can use the contact page on this website.