Removal of Firearm from Person who Poses Substantial Risk of Injury to Himself or Others in Virginia
September 24, 2020 by Jean Humbrecht
Virginia now has the ability to prohibit a person from possessing firearms if the court thinks the person poses a danger to him or herself or others. This is done by entering a Substantial Risk Order. If a court in Virginia enters a Substantial Risk Order against a person, that person is banned from possessing any firearms for the entire time the order is in place (Va. Code §19.2-152.14). Additionally, it is possible that the order remains in place indefinitely. For information on the removal of firearm from person who poses substantial risk of injury to himself or others in Virginia, read the post below.
What is a Substantial Risk Order in Virginia?
A Substantial Risk Order in Virginia Prohibits a Person from Possessing Firearms
A Substantial Risk Order is an order entered by a Circuit Court that prevents a person from possessing, transferring or purchasing firearms.
The court first must enter 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, Juvenile and Domestic Relations District Court, Circuit Court, or a magistrate. The Circuit Court must hold a hearing no later than 14 days after the Emergency Substantial Risk Order was issued to determine whether to enter a Substantial Risk Order. The Commonwealth must prove that the person poses a substantial risk of injury to him or herself or others if that person possesses a firearm.
A Substantial Risk Order can be issued for any specified period of time up to 180 days. However, a law-enforcement officer or an attorney for the Commonwealth can petition the court to extend the Substantial Risk Order for an additional 180 days. The petition must be filed before the current order expires. The court can then extend the order if the court finds 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 how many times the Commonwealth or law-enforcement can seek an extension of a Substantial Risk Order. This means the person can be permanently banned from possessing firearms.
After 30 days from the date on which the order was entered, the person subject to the Substantial Risk Order can petition the court to dissolve the order. However, the person can only petition the court to dissolve the order one time while the order is in effect.
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 Decide to Enter a Substantial Risk Order?
In determining whether to enter a Substantial Risk Order in Virginia, the court considers all “relevant evidence,” including any recent acts of violence, force or threat by the person directed toward him or herself or to someone else. 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 to Himself or Others in Virginia
The Penalties for Possessing a Firearm by a Prohibited Person in Virginia are Severe
After a Substantial Risk Order has been entered in Virginia, the person must turn in 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 when the Emergency Substantial Risk Order was served. Whichever agency took the firearms shall keep the firearms while the Substantial Risk Order is in place. Additionally, a law-enforcement officer can obtain a search warrant to look for more firearms if he or she thinks that the person has more firearms that were not turned over.
A person who is the subject of a Substantial Risk Order can transfer firearms in his or her possession to another person. The person receiving the firearms must be over the age of 21 and must not live with the individual who is subject to the Substantial Risk Order. Additionally, the person must not be prohibited from possessing firearms for any reason. Both the person subject to the order and the person to whom he or she is transferring the firearms must appear at a hearing in court. At that hearing, the Commonwealth Attorney must advise the court that the person receiving the firearms is not prohibited from possessing or transferring 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 can approve the transfer and can also place restrictions on the transfer that the court finds necessary.
Penalty for Possessing a Firearm While a Substantial Risk Order is in Place
Possessing, purchasing or transporting a firearm while an Emergency Substantial Risk Order or Substantial Risk Order is in place is a Class 1 misdemeanor. It is punished with up to 12 months in jail and a fine up to $2,500 (Va. Code §18.2-308.1:6).
***DISCLAIMER: THE MATERIAL AND INFORMATION CONTAINED IN THIS POST, ON ANY PAGES ON THIS WEBSITE, AND ON ANY PAGES LINKED FROM THESE PAGES, ARE FOR GENERAL INFORMATION ONLY AND NOT LEGAL ADVICE. YOU SHOULD CONSULT A LICENSED ATTORNEY IN YOUR JURISDICTION BEFORE RELYING ON ANY OF THE INFORMATION CONTAINED ON THESE PAGES. SENDING EMAIL TO OR VIEWING INFORMATION FROM THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP***