Removal of Firearm from Person Who Poses Substantial Risk of Injury in Virginia
July 1, 2020 by Jean Humbrecht
One of the new firearm restrictions in Virginia is the ability to remove firearms from a person if the court thinks the person is a danger to him or herself or others. This is done through entering a Substantial Risk Order against the person. If the court enters a Substantial Risk Order against a person in Virginia, that person is banned from possessing firearms while the order is in place (Va. Code §19.2-152.14). Additionally, it is even possible that the order remains in place forever. For information on the removal of firearm from person who poses substantial risk of Injury in Virginia, read the post below.
What is a Substantial Risk Order?
Entry of a Substantial Risk Order in Virginia Will Result in Removal of Firearms
A Substantial Risk Order is an order entered by the court preventing a person from possessing, purchasing or transferring a firearm if possession of a firearm by that person would pose a “substantial risk of harm” to him or herself or others (Va. Code §19.2-152.14).
The court first enters an Emergency Substantial Risk Order that lasts for 14 days (Va. Code §19.2-152.13). An Emergency Substantial Risk Order can be entered by a General District Court, Circuit Court, Juvenile and Domestic Relations District Court, or a magistrate. The Circuit Court must hold a hearing no later than 14 days after the Emergency Substantial Risk Order is issued to determine whether to enter a Substantial Risk Order. The Commonwealth must prove that the person poses a substantial risk of injury to himself, herself or others in the near future if that person possesses a firearm.
A Substantial Risk Order can be issued for a specified period of time up to 180 days. However, an attorney for the Commonwealth or a law-enforcement officer can petition the court to extend the Substantial Risk Order for an additional 180 days. They must petition the court for this extension before the order expires. The court can extend the order if they find that the person continues to pose a substantial risk of injury to him or herself or others by that person’s possession of a firearm at the time the petition for the extension is filed. There is no limit on the number of times the Commonwealth or law-enforcement can seek extensions of a Substantial Risk Order.
The person subject to an Emergency Substantial Risk Order or Substantial Risk Order will be prohibited from possessing, purchasing or transferring a firearm when the order is in effect. Possessing, purchasing, or transporting a firearm while an Emergency Substantial Risk Order os Substantial Risk Order is in effect is a crime and is punished with up to 12 months in jail and a fine up to $2,500 (Va. Code §18.2-308.1:6).
The person against whom the Substantial Risk Order is issued can petition the court to dissolve the order one time while the order is in effect, but must wait at least 30 days after the order is entered.
For more information on an Emergency Substantial Risk Order in Virginia, click here.
For more information on a Substantial Risk Order in Virginia, click here.
How Does the Court Determine Whether to Enter a Substantial Risk Order?
In determining whether to enter a Substantial Risk Order in Virginia, the court considers all “relevant evidence,” including recent acts of violence, force or threat by the person directed toward another person or toward him or herself. An “act of violence, force or threat” is defined in Va. Code §19.2-152.7:1 as “any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault…or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.”
Removal of Firearm from Person who Poses Substantial Risk of Injury in Virginia
The Court Can Consider Any “Relevant” Evidence when Determining Whether to Issue a Substantial Risk Order
After a Substantial Risk Order is entered in Virginia, the person must surrender a concealed carry permit if he or she has one. Additionally, the person must surrender any firearms in his or her possession that have not already been taken by law-enforcement after they served the Emergency Substantial Risk Order. Whichever agency took the firearms shall keep the firearms for the duration of the Substantial Risk Order. Law-enforcement can obtain a search warrant to look for more firearms if they think the person has more firearms that he or she has not turned over to law-enforcement.
A person who is the subject of a Substantial Risk Order can transfer any firearms in his or her possession to another person over the age of 21 if that person does not live with the individual who is subject to the substantial risk order and is not prohibited from possessing firearms. Both the person subject to the order and the person to whom he or she is transferring firearms must appear at a hearing. At that hearing, the Commonwealth Attorney must advise the court that law-enforcement has determined that the person receiving the firearm is not prohibited from possessing firearms and the court informs the transferee of the requirements and penalties for transferring a firearm to a person prohibited from possessing a firearm. The court then may approve the transfer and can also place restrictions on the transfer that the court thinks are necessary.
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