|Introduced in House||Passed House||Introduced in Senate||Passed Senate||Became Law|
Firearms; appellant to seek restoration of rights, etc.
Responds to the holding in Paugh v. Henrico Area Mental Health and Developmental Services, Record No. 121562 (2013), in which the Supreme Court of Virginia held that on appeal by trial de novo in circuit court of an order of involuntary commitment by a district court, upon the circuit court's finding that the appellant no longer meets the criteria for involuntary commitment, the proper remedy is dismissal of the Commonwealth's petition for involuntary commitment, thereby rendering the original commitment order a nullity. As such, because the original petition would in effect never have existed, forfeiture of the right to possess a firearm as required by � 18.2-308.1:3 upon involuntary commitment would no longer be in effect. Section 18.2-308.1:3 requires that a person who has been involuntarily committed and seeks to have his firearm rights restored petition a district court for restoration of his firearm rights. The ruling in Paugh, by requiring dismissal of the original petition for commitment, removes that requirement even though on the date of the original commitment hearing the person did meet the criteria for commitment and was, in fact, involuntarily committed. The bill provides that notwithstanding the outcome of any appeal (trial de novo on the petition for commitment) taken pursuant to � 37.2-821, the appellant shall be required to seek restoration of his firearm rights. The bill also provides that upon a finding by the circuit court that the appellant no longer meets the criteria for involuntary commitment or mandatory outpatient treatment, the court shall reverse the order of the district court but shall not dismiss the Commonwealth's petition. As a consequence of these changes, a person who is involuntarily committed would be required to petition for restoration of his firearm rights notwithstanding the reversal of the commitment order by a circuit court.
Be it enacted by the General Assembly of Virginia:
� 18.2-308.1:3. Purchase, possession, or transportation of firearm by persons involuntarily admitted or ordered to outpatient treatment; penalty.
A. It shall be unlawful for any person (i) involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to � 19.2-169.2, (ii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as the result of a commitment hearing pursuant to Article 5 (� 37.2-814 et seq.) of Chapter 8 of Title 37.2, notwithstanding the outcome of any appeal taken pursuant to � 37.2-821, (iii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as a minor 14 years of age or older as the result of a commitment hearing pursuant to Article 16 (� 16.1-335 et seq.) of Chapter 11 of Title 16.1, notwithstanding the outcome of any appeal taken pursuant to � 16.1-345.6, (iv) who was the subject of a temporary detention order pursuant to � 37.2-809 and subsequently agreed to voluntary admission pursuant to � 37.2-805, or (v) who, as a minor 14 years of age or older, was the subject of a temporary detention order pursuant to � 16.1-340.1 and subsequently agreed to voluntary admission pursuant to � 16.1-338 to purchase, possess, or transport a firearm. A violation of this subsection shall be punishable as a Class 1 misdemeanor.
B. Any person prohibited from purchasing, possessing or transporting firearms under this section may, at any time following his release from involuntary admission to a facility, his release from an order of mandatory outpatient treatment, or his release from voluntary admission pursuant to � 37.2-805 following the issuance of a temporary detention order, petition the general district court in the city or county in which he resides or, if the person is not a resident of the Commonwealth, the general district court of the city or county in which the most recent of the proceedings described in subsection A occurred to restore his right to purchase, possess or transport a firearm. A copy of the petition shall be mailed or delivered to the attorney for the Commonwealth for the jurisdiction where the petition was filed who shall be entitled to respond and represent the interests of the Commonwealth. The court shall conduct a hearing if requested by either party. If the court determines, after receiving and considering evidence concerning the circumstances regarding the disabilities referred to in subsection A and the persons criminal history, treatment record, and reputation as developed through character witness statements, testimony, or other character evidence, that the person will not likely act in a manner dangerous to public safety and that granting the relief would not be contrary to the public interest, the court shall grant the petition. Any person denied relief by the general district court may petition the circuit court for a de novo review of the denial. Upon a grant of relief in any court, the court shall enter a written order granting the petition, in which event the provisions of subsection A do not apply. The clerk of court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of any such order.
C. As used in this section, "treatment record" shall include copies of health records detailing the petitioners psychiatric history, which shall include the records pertaining to the commitment or adjudication that is the subject of the request for relief pursuant to this section.
� 37.2-821. Appeal of involuntary admission or certification order.
A. Any person involuntarily admitted to an inpatient facility or ordered to mandatory outpatient treatment pursuant to �� 37.2-814 through 37.2-819 or certified as eligible for admission pursuant to � 37.2-806 shall have the right to appeal the order to the circuit court in the jurisdiction where he was involuntarily admitted or ordered to mandatory outpatient treatment or certified or where the facility to which he was admitted is located. Choice of venue shall rest with such person. The court may transfer the case upon a finding that the other forum is more convenient. An appeal shall be filed within 10 days from the date of the order and shall be given priority over all other pending matters before the court and heard as soon as possible, notwithstanding � 19.2-241 regarding the time within which the court shall set criminal cases for trial. A petition for or the pendency of an appeal shall not suspend any order unless so ordered by a judge or special justice; however, a person may be released after a petition for or during the pendency of an appeal pursuant to � 37.2-837 or 37.2-838. The clerk of the court from which an appeal is taken shall immediately transmit the record to the clerk of the appellate court. The clerk of the circuit court shall provide written notification of the appeal to the petitioner in the case in accordance with procedures set forth in � 16.1-112. No appeal bond or writ tax shall be required, and the appeal shall proceed without the payment of costs or other fees. Costs may be recovered as provided for in � 37.2-804.
B. The appeal shall be heard de novo in accordance with the provisions set forth in �� 37.2-802, 37.2-804, 37.2-804.1, 37.2-804.2, and 37.2-805, and (i) � 37.2-806 or (ii) �� 37.2-814 through 37.2-819, except that the court in its discretion may rely upon the evaluation report in the commitment hearing from which the appeal is taken instead of requiring a new evaluation pursuant to � 37.2-815. Any order of the circuit court shall not extend the period of involuntary admission or mandatory outpatient treatment set forth in the order appealed from. An order continuing the involuntary admission shall be entered only if the criteria in � 37.2-817 are met at the time the appeal is heard. Upon a finding by the court that the appellant no longer meets the criteria for involuntary admission or mandatory outpatient treatment, the court shall not dismiss the Commonwealths petition but shall reverse the order of the district court. The person so admitted or certified shall be entitled to trial by jury. Seven persons from a panel of 13 shall constitute a jury.
C. If the person is not represented by counsel, the judge shall appoint an attorney to represent him. Counsel so appointed shall be paid a fee of $75 and his necessary expenses. The order of the court from which the appeal is taken shall be defended by the attorney for the Commonwealth.
|03/02/2020||Senate||Senate: House substitute agreed to by Senate (38-Y 2-N)|
|02/27/2020||House||House: VOTE: Passage (95-Y 3-N)|
|02/24/2020||House||House: Reported from Courts of Justice with substitute (22-Y 0-N)|
|02/19/2020||House||House: Subcommittee recommends reporting with substitute (7-Y 0-N)|
|02/18/2020||House||House: Assigned Courts sub: Criminal|
|02/12/2020||House||House: Referred to Committee for Courts of Justice|
|02/06/2020||Senate||Senate: Read third time and passed Senate (39-Y 1-N)|
|02/04/2020||Senate||Senate: Constitutional reading dispensed (40-Y 0-N)|
|02/03/2020||Senate||Senate: Reported from Judiciary (13-Y 0-N 1-A)|
|01/07/2020||Senate||Senate: Prefiled and ordered printed; offered 01/08/20 20104751D|
|01/07/2020||Senate||Senate: Referred to Committee on the Judiciary|