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Senate approves 'red flag' gun law. Northam's agenda moves forward after gun rights rally.

Virginia Democrats continue to move forward with their package of gun control bills after a gun rights rally on Monday drew an estimated 22,000 people to Richmond.

The state Senate on Wednesday approved a “red flag” law that would allow for the removal of guns through a legal warrant from a person deemed “a substantial risk of injury to himself or others” through what is called an “extreme risk protective order.” The Senate backed the measure in a 21-19 party-line vote.

Senate Bill 240 from Sen. George Barker, D-Fairfax, heads to the House of Delegates, which is considering its own version of the measure.

“We are headed in a positive direction with this legislation that will protect lives and reduce gun deaths in Virginia,” Barker said before the vote.

Republicans criticized the bill as an infringement on people’s rights.

The bill, which would allow the person subject to the order to voluntarily turn over guns, was tweaked Tuesday from its initial version to create an intervening step in which law enforcement must obtain a warrant before returning to search a person’s home for firearms. The first version allowed police to look for guns immediately when serving the order.

Under the approved bill, a judge or magistrate could issue a 14-day emergency order if the person is deemed a danger to themselves or others. The person would then be given the choice to voluntarily turn over their guns or law enforcement could pursue a search warrant.

After the 14-day order, according to the bill, a hearing would determine if the order should be extended, up to 180 days. If a longer order isn’t needed, the person could get their guns back.

“If the government has reason to believe that somebody might go out and kill dozens of people, we believe the government ought to be able to go and get that gun to eliminate that possibility,” said Sen. Scott Surovell, D-Fairfax.

Wednesday’s approval came less than a week after the Senate backed the first three parts of the Northam-backed gun control package, including a one-handgun-a-month limit, universal background checks, and giving municipal officials more local authority on guns. Opposition to the package drew an estimated 22,000 protesters to Richmond on Monday, some of whom specifically cited the red flag law as a reason for their disgruntlement.

The red flag measure sparked heated debate on the Senate floor.

“The Second Amendment is non-negotiable,” said Sen. Amanda Chase, R-Chesterfield, who asserted that anyone who voted for the bill is a “traitor” against the state.

Sen. Janet Howell, D-Fairfax, responded: “I would like [Chase] to know that I am deeply offended that she has accused anyone on this floor of treason,” and suggested that Chase’s comments violated the Senate’s rules about “speaking offense” to other members of the chamber.

Sen. Bryce Reeves, R-Spotsylvania, a former police officer, also took issue with the bill, noting that it does not include mental health help for people subject to the orders.

“We’ve got to find a better way,” he said. “Without that aspect, we’re just going to take firearms.”

Sen. Bill Stanley, R-Franklin County, also cited mental health concerns.

“We’re fundamentally not addressing the issue you want to address,” he said.

National Rifle Association spokeswoman Catherine Mortensen said in a statement that the bill “falls short” on due process.

Seventeen states have a version of a red flag law. Connecticut had the first such law, enacting it in 1999. California, Indiana, Oregon and Washington were the only other states to have a red flag law in place before the 2018 Parkland school shooting in Florida, when a former student, who police had been warned might carry out a school shooting, killed 17 people.

“Virginia is one step closer to reducing gun deaths across our great commonwealth,” said Coalition to Stop Gun Violence Virginia State Director Lori Haas, whose daughter was wounded in the 2007 Virginia Tech shooting. Haas said in a statement: “The life-saving Extreme Risk Protection Order policy has been proven to prevent firearm suicide and has shown great promise at preventing potential mass shootings — including school shootings.”

The red flag law wasn’t the only part of Northam’s gun control package taken up Wednesday.

The Senate Judiciary Committee advanced Senate Bill 479 from Howell, which would bar people subject to a permanent protective order from possessing a firearm. The panel was initially scheduled to hear bills related to lost and stolen guns and penalizing adults for allowing children access to guns, but will debate those next week.

As was the case Tuesday in a House of Delegates subcommittee, Democrats killed a handful of Republican gun bills, including several from Sen. Bill DeSteph, R-Virginia Beach, that would have raised mandatory minimum sentences for different gun-related offenses.

“The best way to stop criminals from continuing on a rampage is to put them in jail and keep them there,” DeSteph said.

The panel also killed a bill from Sen. Steve Newman, R-Lynchburg, that would have essentially grandfathered in gun laws in localities that declared themselves “Second Amendment sanctuaries” after Democrats took control of the Senate and House following the November elections.

A vote on Howell’s bill on disarming people subject to protection orders could come as soon as Monday.

Proposed Va. budget amendments include GOP bid to redirect discretionary funds to school buildings

The new Republican minority in the House of Delegates wants to turn Gov. Ralph Northam’s spending priorities upside down.

Instead of giving the new Democratic majorities in the House and Senate $200 million in discretionary funds for their priorities, House Republicans want to use the money to help localities repair dilapidated schools or give pay raises to state employees.

“It’s the play money they got from the governor,” House Minority Leader Todd Gilbert, R-Shenandoah, said of proposals that he and Del. Charles Poindexter, R-Franklin County, pitched to the House Appropriations Committee on Wednesday to make a political point, even if they don’t have the votes to do anything about it.

Gilbert, Poindexter and other Republicans joined a long line of delegates from both parties who made quick pleas in support of hundreds of amendments they proposed to the budget Northam introduced in December.

The budget committee heard from 52 delegates on almost 200 budget amendments on Wednesday afternoon. It is considering a record 912 requests for changes and additions to the proposed $135 billion two-year budget, as well as the current fiscal year spending plan.

“We are very much on track and doing what needs to be done,” Appropriations Chairman Luke Torian, D-Prince William, said after the marathon hearing.

Torian, who became chairman this year after Democrats took control of the House in the November elections, held his tongue as Gilbert, the former Republican majority leader, outlined his priorities for changes to the Democratic governor’s proposed budget.

In addition to diverting $100 million a year in discretionary funds to school repairs and replacements, Gilbert’s priorities included using money that Northam proposed for land conservation and environmental regulation to pay for school classroom supplies and reviving a tuition freeze that Republicans pushed through the budget in this school year for public colleges and universities, also a priority for some Democrats.

Torian, a minister and the committee’s first African American chairman, was less restrained on Friday, when he made a fiery speech on the House floor to rebuke Gilbert for publicly questioning the ability of the Appropriations Committee to complete work on the budget by Feb. 16.

“So make no mistake, the work is being done. ... Please don’t single us out as though we’re lazy and we’re not doing our work,” he said. “We are doing our job for the commonwealth of Virginia.”

In an interview on Wednesday, Torian said he welcomed the recommendations of delegates from both parties about how to spend about $47.5 billion in state general fund revenues to pay for core services in the two-year budget. It will begin on July 1 and run through June 30, 2022.

“We are there to listen to them and receive their thoughts,” he said.

The committee heard plenty of spending ideas from both sides of the aisle, but Republicans used the opportunity to target Northam’s spending priorities, as well as their priorities he left out of his budget.

Poindexter, who lost his seat on Appropriations this year, called for a 3% pay raise for state employees at a cost of almost $261 million over two years — paid, in part, from the $200 million the governor proposed to set aside for the new Democratic leadership’s spending priorities.

He also proposed $3 million — to be matched by federal funding — to restart negotiations with President Donald Trump’s administration to let Virginia impose a work requirement, with a variety of employment support services, for Medicaid beneficiaries. Northam ordered a pause in the negotiations after the federal government refused to help pay for the cost.

Delegates from both parties asked for major spending commitments in K-12 education, including the elimination or narrowing of a cap on state funding for support services imposed in 2009, late in Gov. Tim Kaine’s tenure, during the recession.

Loosening the cap on state funding for those support positions — including school psychologists, social workers and nurses — is a priority for local governments, as is state financial support of cities, counties and towns with police departments, including Richmond and Henrico and Chesterfield counties.

Democrats and Republicans also asked for pay increases or new positions for a variety of state and local government employees, such as correctional officers, state police and sheriff’s deputies, and general registrars. They urged more spending for people with intellectual and developmental disabilities, as well as overtime pay for people who deliver home care to the disabled.

Del. Roxann Robinson, R-Chesterfield, who lost her seat on Appropriations this year, wants to raise Medicaid reimbursements for providers of “early intervention services” to young children with disabilities.

Newly elected Del. Rodney Willett, D-Henrico, proposed more money for free clinics to help provide essential medications to people with no insurance or other means to pay for them, as well as to help clinics navigate their consumers through health insurance options available to them.

Others asked for money to support major legislative proposals. Del. Schuyler VanValkenburg, D-Henrico, asked for money to hire two lawyers for the attorney general’s office to carry out his proposal for a state-level voting rights initiative for scrutiny of localities with histories of racial discrimination.

Freshman Del. Dan Helmer, D-Fairfax, sought more than $1.3 million a year to pay for his proposal to expand the State Corporation Commission from three to five members.

In four hours of testimony on Wednesday, the committee had heard the top priorities of almost all of the nonmembers who asked for amendments, although some delegates weren’t able to attend because of conflicting meetings.

“We are pretty much done,” Torian said.

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Defense challenges use of Google location data from everyone in vicinity of Hull Street Road bank robbery

A groundbreaking Fourth Amendment challenge with national implications is brewing in federal court in Richmond over a search warrant for Google data in a $195,000 bank robbery case.

Authorities used a “geofence” warrant to obtain Google location history data that led to the identification of Okello T. Chatrie, 24, as a suspect in the takeover-style armed robbery of the Call Federal Credit Union in Midlothian in May.

Such warrants are increasingly being used by law enforcement across the country. In Chatrie’s case, the warrant sought location histories kept by Google of cellphones and other devices used within 150 meters (500 feet) of the bank during a period of one to two hours surrounding the time of the crime.

In a pending motion to suppress the evidence, Chatrie’s lawyers argue that “this is no ordinary warrant. It is a general warrant purporting to authorize a classic dragnet search of every Google user who happened to be near a bank in suburban Richmond during rush hour on a Monday evening.”

They assert that the search area potentially includes a Ruby Tuesday restaurant, a Hampton Inn hotel, a ministorage facility, apartment complexes and Journey Christian Church — in addition to a major road, U.S. 360.

The warrant “required Google to identify a large cache of deeply private data ... and then allowed police the discretion to obtain private information from devices of interest.”

Prosecutors argue that Chatrie “voluntarily disclosed his location information to Google and Google’s disclosure of that information to the government did not infringe upon his reasonable expectation of privacy.”

Prosecutors cited Google’s own description of how the location data is used: “From driving directions, to making sure your search results include things near you, to showing you when a restaurant is typically busy, location can make your experiences across Google more relevant and helpful.”

“Investigators knew that Google stored location information that could help them apprehend and convict the robber,” said the U.S. attorney’s office.

In a brief filed in the case, Google took no position on the constitutionality question but said its location history data can be more accurate than cell tower location data that has been subjected to search and seizure challenges in other cases. Google location history is not a business record, but a journal of a user’s location and travels that is created, edited and stored by Google users who have opted into the service and for their benefit, according to the company.

The law requires the government to obtain a warrant compelling the production of such information. Typically in the past, authorities have sought data on a particular person of interest in an investigation.

“This case, in contrast, concerns a novel but rapidly growing technique in which law enforcement seeks to require to search across [location history] data, using legal requests sometimes called ‘geofence’ requests,” wrote Google lawyers.

They said the company saw a 1,500% increase in the number of such requests from 2017 to 2018 and a 500% increase from 2018 until last month.

Geofences are virtual perimeters for actual geographic areas.

At the conclusion of a hearing on a discovery motion in Chatrie’s case on Tuesday, U.S. District Judge M. Hannah Lauck said, “What we have here before us is a case of first impression.”

She noted that the case involves technology that both sides concede is not fully understood and said that the warrant potentially could have netted data from a million or more people.

“We have to be really careful about what we’re doing,” Lauck said.

Lauck asked for more information from both sides and will reschedule a two-day suppression hearing that had been set to begin Feb. 20.

Chatrie’s lawyers with the federal public defender office and the National Association of Criminal Defense Lawyers argue in their suppression motion that Lauck “should treat the geofence warrant here as any other general warrant: repugnant to the Constitution. Geofence warrants represent an unprecedented expansion of the government’s surveillance capabilities.”

In its brief opposing the motion, the U.S. attorney’s office countered that “the geofence warrant did not remotely resemble a general warrant.”

“The GeoFence warrant authorized the government to obtain from Google limited and specified information directly tied to a particular robbery at a particular place and time,” said the government.

“In response to a ‘geofence’ warrant, Google could produce location and identity information from accounts associated with electronic devices present in a specified area at a specified time,” prosecutors wrote.

The credit union robbery occurred at 4:50 p.m. May 20.

Authorities said that when the robber reached a teller’s station, he presented a handwritten note that read, in part, “I got your family as hostage and I know where you live, If you or your coworker alert the cops or anyone your family and you are going to be hurt ... I need at least 100k.”

After the teller said she did not have access to that much cash, the robber pulled out a handgun, waved it around and ordered credit union employees and customers to move to the center of the lobby and get on the floor.

He then ordered employees to move behind the teller counter into a back room, told them to get on their knees at gunpoint, and demanded that the bank manager open a safe. The manager opened the safe and handed over $195,000.

Surveillance video from the credit union showed that the armed robber approached from an area behind a nearby church, held a cellphone to his ear when entering the credit union, and ran back toward the church after the robbery. A church employee told law enforcement that he saw a suspicious person in a newer-model, blue Buick sedan before the robbery.

The warrant authorized disclosure of data in a three-step process.

In the first step, Google was to disclose location information for devices present in the robbery area during the hour of the robbery — from 4:20 to 5:20 p.m. — but not turn over identifying information associated with the devices.

In the second step, law enforcement reviewed the “anonymized” location information from Google looking for accounts of interest where location data might be consistent with what was known or suspected about the robber’s movement before, during and after the robbery.

In the third step, Google turned over identifying information for accounts that law enforcement officials determined were of interest.

Chatrie’s lawyers said step one concerned 19 Google users; step two, nine users; and in step three, law enforcement officials were given identifying information for three users, including Chatrie, that was used to pursue the investigation.

Kenneth R. Simon Jr., an assistant U.S. attorney, conceded at Tuesday’s hearing that everything in the case flowed from the search warrant.

At Tuesday’s hearing, a defense expert witness testified that cellphone users are not necessarily aware of what they are agreeing to when they opt to use Google services.

Simon told Lauck that “we’ve produced everything that Google has provided us” to the defense.

Chatrie’s lawyers, Michael W. Price, with the National Association of Criminal Defense Lawyers, and Laura Koenig, with the public defender office, argued that more information was needed about how Google came up with the data that was turned over to the government.

In its brief, Google wrote that “given the capacity of geofence searches to intrude on personal privacy, their use should be supervised by a neutral magistrate and restricted to cases in which the government can establish probable cause.”

Chatrie was charged in a Sept. 17 indictment with using a firearm during a crime of violence and “forced accompaniment during armed credit union robbery.”

$2.7 million suit filed against Riverside Jail in inmate death that was investigated by state panel

A. Tripp

The wife of a former inmate at Riverside Regional Jail who died while in custody in 2017 has filed a $2.7 million wrongful death suit against the facility in a case that the Virginia Board of Corrections concluded involved policy violations that may have contributed to the man’s death.

Vittoria Tripp is the widow of former inmate Alex Wesley Tripp, 32, who had a history of mental illness and hanged himself in his cell on Oct. 31, 2017. In the complaint, she has named as defendants the Riverside Regional Jail Authority, which oversees the facility, in addition to corrections officer Shawn Marshall and an unknown officer identified as John Doe.

Tripp’s death was one of two at the facility investigated by a state panel that in 2018 began reviewing all local and regional jail deaths in Virginia dating to July 2017.

Last summer, Riverside was placed on “probationary certification” for three years after the Board of Corrections’ jail review committee found shortcomings at the Prince George County facility that may have directly or indirectly contributed to the deaths of Tripp and an inmate identified as Benjamin Scott Wash.

The committee also concluded there was evidence that the jail was not complying with some of the board’s regulations.

Jeffrey Gore, an attorney representing Riverside’s governing board, said the jail authority does not comment on pending litigation.

According to a summary of the state’s investigative report into Tripp’s death, the Chesterfield County man was found hanging in his cell less than a day after he was booked on charges of petit larceny, obtaining money under false pretenses and two drug violations.

The jail review committee found that Riverside staff violated regulations concerning medical screening of inmates upon admission and regulations on the supervision of inmates.

Written policy requires that a medical screening be performed on all inmates after admission, which includes questions about past and present drug use, depression and suicidal tendencies.

But in Tripp’s case, “the information provided during past incarcerations was not considered by medical staff during” his admission process, the chairman of the jail review committee wrote.

Regulations also require that inmates be checked at least twice per hour at random intervals, but the report found that the last observation of the area where Tripp was held was almost four hours before his body was discovered.

It was also determined that a corrections officer falsified entries in a logbook to reflect that the rounds were completed properly.

The corrections officer who falsified the entries resigned after an internal investigation, an attorney who represented Riverside said last year. That officer’s name has not been publicly released.

The lawsuit alleges that Tripp had a history of mental illness that was documented during past incarcerations, and Riverside staff had access to Tripp’s medical records “and other documentation indicating he had a history of mental illness.”

“Because of the staff’s access to Mr. Tripp’s correctional records, [the Riverside Regional Jail Authority] and its staff knew or should have known that failing to monitor Mr. Tripp while he was within custody presented particular danger to Mr. Tripp’s health and safety,” the complaint says.

The suit alleges that Riverside staff members “breached their duty when they failed to provide proper supervision of Mr. Tripp, especially in light of his history of mental illness. Specifically, [they] failed to adhere to their own policy concerning regular supervision of inmates.”

The lawsuit noted that as of last summer, Tripp was one of six inmates to die at Riverside in the past two years and at least 15 since 2013.

“Riverside Regional Jail has a rich history of inmates dying while in custody at the jail, disproportionate to its population and other jails in the state,” the complaint says.

The greatest number of deaths occurred in 2017, when five inmates died, including two who died by suicide and whose deaths were investigated by the state jail review committee.

More recently, the jail’s record has improved significantly with regards to inmate deaths. The facility went 15 months without a death between April 14, 2018, and July 24, 2019, when an inmate being examined by medical personnel went into medical distress and died. The state medical examiner determined the inmate suffered from heart disease and died a natural death.

The lawsuit seeks $2 million in compensatory damages and $700,000 in punitive damages.