Virginia Gun Rights Restoration After Mental Health Commitment
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.
The Virginia Law on Gun Rights After Involuntary Commitment
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:
- Involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to §19.2-169.2 (this is when someone is found incompetent to stand trial and ordered to treatment to restore their competency);
- Involuntarily admitted to a facility or ordered to mandatory outpatient treatment after a commitment hearing; or
- Subject to a temporary detention order who subsequently agreed to a voluntary admission.
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.
The Petition Process for Gun Rights Restoration After Commitment
Here are some quick comments about the petition process:
Where the petition is filed:
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 “opposing party” of the petition:
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.
Factors the court will consider:
The statute requires the court to consider the following factors:
- The circumstances of the individual’s involuntary commitment.
- The person’s criminal history.
- The person’s treatment record.
- The person’s reputation (as developed through character evidence).
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 standard for granting the petition:
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.
Timing for filing the petition:
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.
Speak with an Experienced Gun Rights Attorney
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.