Why has the "red flag" gun law resulted in so few red flags?
Since Virginia's red flag gun law was passed in 2020, local police have only used it twice. Why is this law designed to prevent gun violence not being used?
In the aftermath of the shooting in the parking lot of the Harris Teeter in Crozet in February, which claimed the lives of three people, including the shooter, 28-year-old Justin Barbour, who was shot and killed by an off-duty federal officer exiting the store, we learned that police twice responding to calls concerning Barbour’s mental health within two months of the shooting.
While the community applauded the heroics of the off-duty officer, who likely saved lives that day, many also wondered why Virginia’s red flag law, which allows police to temporarily seize someone’s firearms if they’re suspected of being a threat to themselves or others, wasn’t used on Barbour.
In December 2024, knowing about the guns he owned and worried about his declining mental health, Barbour’s family asked authorities to issue an Emergency Custody Order (ECO), which allows police to temporarily detain someone they suspect might be a threat to himself or others for psychiatric evaluation at a local hospital. However, according to an ACPD investigation, there wasn’t enough evidence to issue an ECO, and the “responding officer advised family of the Emergency Custody Order (ECO) requirements and process.” Again, in January 2024, Albemarle County's Human Services Alternative Response Team (HART), which responds to emergency mental health and substance abuse calls, was called to Barbour’s home [according to Barbour’s sister, he’d stormed into the leasing office of his apartment complex, angry about the placement of some traffic cones] but determined there wasn’t enough evidence to issue an ECO. Again, ACPD said, the responding team “notified family of the ECO requirements and process.”
However, the ACPD investigation does not say the family was made aware of the “requirements and process” of Virginia’s red flag law, known technically as an Emergency Substantial Risk Order (ESRO), which allows police to temporarily seize someone’s firearms if they suspect they might be a danger to themselves or others. In fact, while family members recalled requesting an ECO, there’s no indication in early reporting, or in the ACPD’s investigation, that Barbour’s family members knew what an ESRO was. In a Facebook post after the shooting, Barbour’s sister, Tekaiya Barbour, recalled authorities telling her “you can’t keep his weapons away from him legally.”
Of course, under Virginia’s red flag law, you can keep someone’s weapons away from them, at least temporarily.
After the shooting, local retired forensic psychologist, Jeffrey Fracher, told the Daily Progress he thought it was a "clear case" in which the red flag law should have been used, “just to at least flag it and have a cooling-off period,” he said.
Local attorney Scott Goodman also wondered why an ESRO wasn’t obtained, given the family’s concerns, and speculated that a lack of familiarity with the law might have played a part. “They [police] don’t have a lot of experience with it," he told the Progress.
Indeed, according to ACPD records, the red flag law passed five years ago has only been used twice, once in 2024 and once so far in 2025. Likewise, the Charlottesville Police Department has only used the law twice, once in 2022 and again in 2024.
As you might recall, the red flag law (along with a host of other ambitious gun laws passed in 2020) had a rocky start, with rural communities across the state declaring themselves “Second Amendment sanctuaries,” borrowing [ironically, considering the current situation] the term progressive cities have used to declare their support for immigrants. While the legislation had no Republican support and angry gun rights advocates predicted a “red wave” in the state’s 2020 election as a result, that didn’t happen, and in the law’s first two years, 454 emergency risk orders were issued. In 2023, Republican Gov. Glenn Youngkin was even pushing for federal funding for Virginia’s red flag laws. And while there is certainly still opposition to the law, and a desire among Republican lawmakers to see it repealed, police and prosecutors across the state have now used emergency risk orders nearly 1,400 times.
As it turns out, the one gun law that actually does “take your guns away” turns out to be one of the most widely accepted and effective forms of gun violence prevention. Research has repeatedly suggested that this kind of intervention prevents suicides, and a 2022 study analyzing 6,800 cases from six states where red flag laws were used found that 10 percent involved the “threat of killing at least three people.” While it’s impossible to know what might have been prevented when a troubled person is separated from their firearms, there’s comfort in knowing you don’t have to find out.
So, given the increasing use of red flag laws across the state, why have they been used so infrequently in Albemarle County and Charlottesville?
"Few situations have met the legal standards required to pursue ESROs," said ACPD spokesperson Loan Bogart. "In some cases, we have begun the process only for circumstances to later change, ultimately negating the need for the ESRO. The ESRO process is an important option available to law enforcement, but it is only used when specific circumstances, supported by evidence, warrant its application under Virginia Law."
CPD officials were also asked about their use of the new red flag law, but they did not respond before this was published.
According to Albemarle County Commonwealth’s Attorney James Hingeley, while the legal standard is the same for ESROs and ECOs, there is a substantial difference in what facts need to be found to support either an ESRO or an ECO.
“I believe when ACPD says ‘Few situations have met the legal standards required to pursue one [ESRO],’ they are referring more to the absence of underlying facts than an inability to establish the facts according to the legal standard of probable cause,” says Hingeley. “To put it another way, I believe ACPD investigations rarely develop a factual predicate for issuance of an ESRO petition.”
According to the ACPD, there are pages of documentation for the two ESROs that were issued, which could shed light on how and why they were ordered, but they declined to release that information. DTM is waiting on the results of a Freedom of Information Act request from our local courts for information on ESROs.
Indeed, it’s not hard to understand why ESROs and ECOs are hard to obtain, given they allow police to detain and/or seize the firearms of someone who hasn’t done anything. No one wants to have their Constitutional rights trampled on.
However, when it comes to this kind of predictive/protective policing, temporarily denying people their freedom turns out to be disproportionately easier than separating people from their guns.
For example, while ACPD has issued only two ESROs since 2020, they have issued 413 ECOs during mental health calls for service. In 2024, 129 of the 891 mental health calls for service (14 percent) resulted in an ECO, compared to just 7 percent in 2020.
The Charlottesville Police Department, which has also seen a rise is mental health calls for service [ from 272 in 2020 to 311 in 2024], was also asked how many of those called resulted in an ECO, but that information was not immediately available, they said, and would require paying for 12 to 25 hours of work to pull the data. Last year, Charlottesville launched its counterpart to the County’s HART co-responder team, ANCHOR, which stands for Assisting with Navigation, Crisis Response, and Outreach Resources.
According to Laura Birnbaum, deputy chief of staff in the Fairfax County Commonwealth’s Attorney’s office, the reason many communities aren’t using red flag laws effectively isn’t necessarily because the legal standards for obtaining them are so high, but because they may be unfamiliar with them.
“This is a new tool and it takes time for all the people involved, and all the agencies involved, to learn how to use it,” says Birnbaum. “We’ve made that a priority, and the Fairfax County Police have also made it a priority. There has been a real focused effort on it here…and without that, I just really don’t think agencies would necessarily know how to use it.”
In 2023, the Fairfax County Police Department obtained 107 ESROs and seized 223 firearms. Of those cases, the department reported, 38 percent involved domestic violence and 41 percent involved individuals in a mental health crisis.
While Fairfax County may not be a fair comparison when it comes to the use of red flag laws in Charlottesville and Albemarle County, given that it’s a much larger community and has more resources, Birnbaum thinks there’s still something to learn.
“Generally, what we’ve seen, when it comes to the lack of use of red flag laws…it’s an education issue,” says Birnbaum. “That’s been the case in our community, and I’m sure that’s true everywhere in the state.”
Indeed, Richard Bonnie, the retired UVA law school professor whose research and advocacy helped shape red flag laws, said this in a 2022 interview:
"One of the problems that we have in these situations is the general disinclination that many of us usually have about interfering in other people’s lives. Even if we’re worried, we’re uncertain about the right thing to do. If the state enacts a red flag law, then it must also launch a public education campaign about why citizens should use it."
Had a chorus of people expressed concern about Barbour’s behavior, or had his family known more about red flag law, might an ESRO or ECO have been issued?What do you do when the fears and anxieties of ordinary people whose relationships with family members, spouses, intimate partners, friends, co-workers or neighbors have become unmanageable [due to mental illness, substance abuse, uncontrolled anger, etc.] and appear on the verge of spilling over into violence? Calling the police is often a last resort in such situations, a cry for help prompted by fear, helplessness, or frustration [when someone refuses to get help], but as Barbour’s family members learned, it’s a complex situation that can’t always be fixed by the police. And one that might be better addressed with more community involvement before tragedy strikes.
“We invest a lot in crisis response, and we probably ought to do that,” State Senator Creigh Deeds told the Daily Progress shortly after the Crozet shooting, “but we ought to focus more on keeping people out of crisis.”
In 2013, Deeds obtained an ECO/TDO for his son, Gus, who was diagnosed with bipolar disorder, during a mental health crisis. However, because a bed couldn’t be found at a nearby psychiatric hospital during the time police were allowed to hold him he was sent home. The next day, Gus ended up stabbing his father multiple times before shooting himself.
Since then, Deeds has been a prominent advocate for mental health reform in Virginia, which includes an emphasis on bolstering community services, public awareness, and making it easier for young people like Barbour to get help before it reaches a crisis point. And to get our priorities straight.
“He could get an assault weapon before he could get the help,” Deeds told the Progress, “and there’s tragedy in that.”
Echoing Bonnie, Birnbaum says that red flag laws are more effective when more people in the community understand how they work. That’s why Fairfax County recently launched a public outreach campaign asking people to “speak up” and request an ESRO if they’re concerned that someone might present a risk:
Birnbaum also points out that police and prosecutors must work together to make red flag laws effective. For example, while police are mainly responsible for providing evidence to obtain an ESRO, prosecutors play a larger role in training, outreach, and the process when ESROs lead into Substantial Risk Orders (SRO), petitioning the court for longer restrictions on a person’s right to possess a firearm when it’s believed they present an ongoing threat.
For example, Fairfax County Commonwealth’s Attorney, Stephen Descano, has been speaking to groups across the state about red flag laws in an effort to increase their use. In December last year, Descano spoke to a group of Moms Demand Action volunteers in Charlottesville about the use of red flag laws.
In contrast, Hingeley first responded by declining to answer questions about the use of ESROs, saying it was a question for the police, not his office, before finally weighing in on ACPD’s response.
However, it appears his office is beefing up its focus on gun violence prevention and the use of ESROs.
While Hingeley told the Daily Progress in March that the hiring of a new assistant Commonwealth’s Attorney, Jordan McKay, was “not at all a result of the Crozet situation,” he also said that McKay would be focusing on “gun violence and gun violence prevention in our community” and that he’d be the main contact for ESRO requests from local law enforcement.
Indeed, while it’s often said that “common sense” gun laws are needed to reduce gun violence, red flag laws may be one of the most sensible. A kind of community self-care.
“Not only does it give time for the person on the order to go ahead and seek the treatment and the help that they need," said Fairfax County Police Detective Amanda Paris, who is also the department’s ESRO supervisor, in a public service report, “ but it also allows the community to feel safer by having those weapons temporarily removed.”