Emergency Substantial Risk Order in Virginia
March 11, 2021 by Jean Humbrecht
Virginia can ban a person from possessing firearms if the court thinks that possession of a firearm by that person will create a substantial risk of harm to him or herself or others. This is done by entering an Emergency Substantial Risk Order in Virginia and then a Substantial Risk Order in Virginia. After a Substantial Risk Order is entered against a person in Virginia, he or she is prohibited from possessing, purchasing or transporting firearms while the order is in place-and it could be indefinitely extended (Va. Code §19.2-152.14).
Emergency Substantial Risk Order in Virginia
An Emergency Substantial Risk Order in Virginia Prohibits a Person from Possessing Firearms
Before an Emergency Substantial Risk Order is entered in Virginia, law-enforcement first conducts an investigation to determine whether possession of a firearm by the person will create a substantial risk of harm. A judge or magistrate can then issue an Emergency Substantial Risk Order based on the information obtained from the investigation (Va. Code §19.2-152.13).
An Emergency Substantial Risk Order in Virginia will be issued if a court or magistrate finds that there is probable cause that if the person possess a firearm that will pose a substantial risk of injury to him or herself or others. An Emergency Substantial Risk Order in Virginia can be entered by a General District Court, Juvenile and Domestic Relations District Court, Circuit Court, or a magistrate. The order will be issued ex parte, meaning that a person does not have to be present at, or even be informed about, the hearing (Va. Code §19.2-152.13).
In determining probable cause to issue an Emergency Substantial Risk Order in Virginia, the court will look at “relevant” evidence, including any recent acts of violence, force or threat committed by the person that are directed at him or herself or others (Va. Code §19.2-152.13). An act of violence is “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” (Va. Code §19.2-152.7:1).
If an Emergency Substantial Risk Order is entered in Virginia, the order will inform the person that he or she is prohibited from possessing, purchasing, or transporting any firearms while the order is in place. The order will list the penalties for possession of a firearm after a Virginia Emergency Substantial Risk Order has been issued. It will also inform the person that he or she must surrender any concealed carry permit. Most importantly, the person must surrender any firearms to the law-enforcement agency that serves the order. The law-enforcement agency will take an inventory of all firearms, provide the person a receipt, and keep the firearms for the duration of the order. Law-enforcement can also apply for a search warrant to search the person’s property if they have reason to believe that the person has not turned over all of his or her firearms.
An Emergency Substantial Risk Order in Virginia is valid for 14 days. At any time during those 14 days, the person who is the subject of the order can file a petition to dissolve the order (Va. Code §19.2-152.13).
Possessing, purchasing or transporting firearms while an Emergency Substantial Risk Order in Virginia is in place is punished with up to 12 months in jail and a fine up to $2,500 (Va. Code §18.2-308.1:6).
Substantial Risk Order in Virginia
A Circuit Court Will Hold a Hearing within 14 days of an Emergency Substantial Risk Order Being Issued to Determine whether to Issue a Substantial Risk Order Valid for 180 Days
After an Emergency Substantial Risk Order has been entered in Virginia, the Circuit Court is required to hold a hearing within 14 days to determine whether to issue a Substantial Risk Order that can be effect for up to 180 days. There is no limit on how many times a Virginia Substantial Risk Order can be extended (Va. Code §19.2-152.14).
A Substantial Risk Order in Virginia is a court order that prevents a person from possessing, purchasing or transporting firearms if possession of a firearm by that person would create a “substantial risk of injury” to him or herself or others (Va. Code §19.2-152.14).
The Commonwealth must prove by clear and convincing evidence that the person poses a substantial risk of injury to him or herself or others in the near future by possessing a firearm. This is a higher burden of proof than the burden required for an Emergency Substantial Risk Order, but not as high as the burden of beyond a reasonable doubt in a criminal case. In determining whether clear and convincing evidence exists that possession of a firearm by the person would pose a substantial risk of harm, the court will again examine “relevant” evidence, including any recent acts of violence, force or threats (Va. Code §19.2-152.14).
What Happens After A Virginia Substantial Risk Order is Issued?
After a Substantial Risk Order in Virginia has been entered, the person must surrender all firearms that have not already been turned over to law-enforcement, as well as a concealed carry permit. Whichever agency took the firearms will keep them for the duration of the Substantial Risk Order. Additionally, the agency can obtain a search warrant to look for more firearms if they think that the person has more firearms that were not surrendered (Va. Code §19.2-152.14).
The person who is the subject of a Substantial Risk Order in Virginia can transfer his or her firearms to another person over the age of 21. That person must not live with the individual who is subject to the Substantial Risk Order and must not be prohibited from possessing a firearm for any reason. Both individuals must then appear at a hearing at which the Commonwealth Attorney must advise the court that law-enforcement has determined that the person receiving the firearms is not prohibited from possessing firearms. The court then will inform the transferee of the requirements and penalties for transferring a firearm to a person who is prohibited from possessing a firearm. The court then can approve the transfer and place any restrictions on the transfer that the court thinks are necessary (Va. Code §19.2-152.14).
Possessing, purchasing or transporting a firearm while a 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).
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