On December 20th, 2019 the military news site Task and Purpose reported that 3rd Battalion, 6th Marine Regiment – an active duty unit stationed at Camp Lejeune, North Carolina – had lost two weapons while conducting a training exercise.[1] More than a year later, 2nd Marine Division Maj. Gen. David J. Furness relieved the battalion’s CO, Lt. Col. Clinton Kappel and its Sergeant Major, Sgt. Maj. Elson L. Aviles, for “loss of trust and confidence,”[2] likely a result at least in part of the loss of the weapons.
Loss of accountability of a weapon is major issue in the military. That being the case, one might wonder what would happen if your local police department – a paramilitary organization – lost accountability of your firearms after temporarily taking custody of them pursuant to your state’s Red Flag law. If you live in Virginia, the answer to that question might be nothing.
Virginia’s Red Flag law consists of two statutes – Virginia Code § 19.2-152.13 governing Emergency substantial risk orders, and § 19.2-152.14 governing Substantial risk orders. These laws include requirements for the documentation of firearms seized in police and court records as well as making provision for the temporary transfer of the firearms to a third party selected by the gun owner provided certain conditions are met. A third statute, Virginia Code § 19.2-152.15, sets out the procedures for the return of the temporarily seized firearms upon dissolution of the substantial risk order. But, maddeningly, another Virginia statute outside the Red Flag law, buried under a different section number and a different name, has the potential to gut even those procedural protections that the Red Flag law itself does provide. Virginia Code § 19.2-152.17, Immunity of law-enforcement officers, immunizes Virginia police departments and police officers for the theft, loss or damage of firearms they seize pursuant to Substantial Risk Orders. Paragraph B of this statute provides that
“[a]ny law-enforcement agency or law-enforcement officer that takes into custody, stores, possesses, or transports a firearm pursuant to § 19.2-152.13 or 19.2-152.14, or by a search warrant for a person who has failed to voluntarily relinquish his firearm, shall be immune from civil or criminal liability for any damage to or deterioration, loss, or theft of such firearm” (emphasis added).
This opens a gaping loophole through which Virginia law enforcement can both evade liability for incompetence and corruptly violate the rights of their citizens. Consider a real-world example: In 1955 Colonel David Hackworth was a young Army captain commanding C Battery, 77th Air Defense Artillery Battalion in Manhattan Beach, California. As Hackworth relates in his memoir About Face: The Odyssey of an American Warrior, everything was going swimmingly
“[u]ntil a weapon disappeared. Not just any weapon, but an M-2 automatic carbine [the selective fire version of the semiautomatic M1 Carbine] … it had been missing for three full months, its absence undetected through ninety daily Duty Officer checks and two of my own monthly serial number inspections. It was little wonder the armorer was afraid to tell anyone (a missing carbine was FBI material), and now I couldn’t either. To report it would make C (the Best) Battery a laughing stock, and give [the Colonel] a damn good reason to relieve me.”[3]
Hackworth had to go to great lengths to avert the reputational and career damage loss of an automatic weapon could entail. He and his subordinates carried out an intricate deception involving forged Army supply documents and a beat up M1 Carbine acquired from a civilian source, mocked up to look like an M2, and then deliberately damaged beyond use to conceal the original loss and make the books balance in the company arms room, all to hide the loss from the very vigilant surveillance of the Army logistics system. Now consider a slightly different scenario, in which the weapon has gone missing, not from an Army arms room subject to rigorous outside oversight, but from the property room of a small Virginia police or sheriff department, and the firearm in question is not part of the department’s arsenal duly registered in its own property accountability system but a privately owned gun held temporarily by the department pursuant to a substantial risk order. What recourse would the owner of the gun have if the gun was stolen from the property room and the department was either determined to cover the loss up or just too apathetic to run it to ground? This is not just a theoretical concern – examples abound of both negligent and criminal loss of firearms by police and other government entities. One comes from our notoriously hoplophobic cousins in the government of Canada. Citing the work of noted Canadian gun rights researcher the late Dennis Young, Toronto Sun columnist Brian Lilley wrote in 2019 that
“[o]ne of the arguments gun control advocates will make for calling for an outright ban on handguns or certain rifles is that if regular citizens don’t have these firearms in their homes, they can’t be lost or stolen to be used in a crime. Newly-released documents from the RCMP and other federal departments and agencies show that if the risk of lost and stolen guns is an issue, then we better think of taking guns from the Mounties, [and] maybe even the military.”[4]
According to information provided to Young by the Royal Canadian Mounted Police, from 2005 to 2019, Canadian public entities lost 640 firearms and another 173 were stolen from them,[5] though just how they were able to ascertain that the “lost” firearms themselves were not stolen isn’t clear. Among the missing firearms were 13 “lost” and one stolen submachinegun (14 total) and one “lost” and one stolen machinegun (two total).[6] This sort of malfeasance is not limited to Canada, of course. According to CBS News, in 2011 “[t]he Mexican military … reported nearly 9,000 police weapons ‘missing.’”[7] In one 2006 case, an AR-15 “tracked by serial number [was] legally sold by a U.S. manufacturer to the Mexican military. Three years later [it was] found in a criminal stash in a region wracked by Mexican drug cartel violence.”[8]
Nor are US authorities immune from such scandals. In 2016 Philadelphia police Lieutenant Vincent Testa committed suicide rather than face arrest after being indicted in a police corruption scandal involving firearms.[9] Testa had previously been accused of fabricating documents to falsely show that all seized firearms had been processed, and of sending guns from his facility to another evidence room at City Hall when ordered to reduce a backlog of 1500 guns awaiting processing; he was also accused of covering up the theft of 51 guns by another officer.[10] Another Philadelphia officer assigned to the Firearms Identification Unit overseen by Testa was arrested for stealing full-auto components from guns in police custody,[11] “attempting to cover his tracks by allegedly stuffing semiautomatic weapons parts into the firearms he’d pilfered.”[12] In a more recent case, Archi Duenas, manager of the gun store operated by Los Angeles Police Academy, stole 44 guns; he had used his job as the store’s closing supervisor to fabricate inventories showing all firearms present, which he accomplished by keeping the boxes of the stolen guns in stock and counting those.[13] He was finally caught when ordered by his superiors to expend some of his excess accumulated vacation time and the person who took the inventory in his stead discovered the scheme.[14]
Hackworth noted an obvious concern about losses like these: “For a long time I worried where the carbine would surface – whether I’d open up the paper one morning to find a bank full of people had been gunned down on full automatic.”[15] Red flag laws are controversial. People of good will can disagree about the justification, necessity, and potential effectiveness of such laws. But one point is beyond reasonable dispute: A grant of immunity to law enforcement officers and agencies for the loss or theft of privately owned weapons entrusted to their care is an irresponsible and dangerous policy.
Dennis P. Chapman, a retired U.S. Army officer, practices law in Virginia. He is the author of The AR-15 Controversy: Semi-Automatic Rifles and the Second Amendment (Third Brigade Press, 2021), available online from Amazon and Barnes and Noble.
[1] Paul Szoldra. A Marine infantry battalion is searching for 2 missing rifles at Camp Lejeune. “Task and Purpose,” December 20th, 2019. https://taskandpurpose.com/news/marines-missing-rifle/. Retrieved March 12th, 2022.
[2] Philip Athey. Commander and sergeant major fired from Marine unit that lost 2 rifles. “Marine Times,” March 16th, 2020. https://www.marinecorpstimes.com/news/your-marine-corps/2020/03/16/commander-and-sergeant-major-fired-from-marine-unit-that-lost-2-rifles/. Retrieved March 12th, 2022.
[3] David Hackworth and Julie Sherman. About Face: The Odyssey of an American Warrior (Simon and Schuster, 1989), page 298.
[4] Brian Lilley. LILLEY: Hundreds of guns go missing from the Mounties, military and other departments. “Toronto Sun,” July 23, 2019. https://torontosun.com/opinion/columnists/lilley-hundreds-of-guns-go-missing-from-the-mounties-military-and-other-departments. Retrieved February 26th, 2022.
[5] Dennis R. Young. RCMP: 813 Guns Lost by and Stolen from Police and Public Agencies, 2005-2019. https://dennisryoung.ca/2019/07/04/rcmp-813-guns-lost-by-and-stolen-from-police-and-public-agencies-2005-2019/. Retrieved March 12th, 2022.
[6] Id.
[7] Sharyl Attkisson. Legal U.S. gun sales to Mexico arming cartels. CBS News, December 6th, 2011. https://www.cbsnews.com/news/legal-us-gun-sales-to-mexico-arming-cartels/. Retrieved March 12th, 2022.
[8] Id.
[9] David Gambacorta. Police Stunned By Investigation Into Cop Who Apparently Died by Suicide. “Philadelphia Magazine,” April 8th, 2016. https://www.phillymag.com/news/2016/04/08/vince-testa-suicide-police/. Retrieved March 12th, 2022.
[10] Michael Tanenbaum. Officials: Philly police officer in stolen weapons probe dies. “PhillyVoice,” April 6th, 2016. https://www.phillyvoice.com/officials-philly-police-officer-stolen-weapons-probe-dies/. Retrieved March 12th, 2022.
[11] Chris Palmer and Stephanie Farr. Former officer arrested in gun-theft scandal. “The Philadelphia Inquirer,” April 13th, 2016. https://www.inquirer.com/philly/news/20160414_Former_cop_arrested_in_gun-theft_scandal.html. Retrieved March 12th, 2022.
[12] Gambacorta.
[13] Kevin Rector and Richard Winton. How the theft of 44 firearms from an L.A. gun store exploded into an LAPD scandal. “Los Angeles Times,” November 29th, 2021. https://www.latimes.com/california/story/2021-11-29/allegations-lapd-gun-store-case-investigation-claims-corruption. Retrieved March 12th, 2022.
[14] Id.
[15] Hackworth, 300.
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