Emergency Substantial Risk Orders in Virginia
September 11, 2021 by Jean Humbrecht
Virginia courts can prohibit a person from possessing firearms if they think that possession of a firearm by that person will create a substantial risk of harm to anyone. This is done by entering an Emergency Substantial Risk Order and then a Substantial Risk Order. After a court enters a Substantial Risk Order in Virginia, that person is prohibited from possessing, purchasing or transporting any firearms while the order is in place (Va. Code §19.2-152.14). If you are wondering, what are Emergency Substantial Risk Orders in Virginia, read the post below.
What are Emergency Substantial Risk Orders in Virginia?
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 pose a “substantial risk of injury” to him or herself or others (Va. Code §19.2-152.14). Law-enforcement must first conduct an investigation to determine whether possession of a firearm by this person will create a substantial risk of harm. After this investigation, a judge or magistrate can issue an Emergency Substantial Risk Order based on the information obtained as a result of this investigation. The Emergency Substantial Risk Order will remain in place for 14 days. The Circuit Court is then required to hold a hearing within 14 days to determine whether to issue a Substantial Risk Order. The Substantial Risk Order that can be effect for up to 180 days. However, there is no limit on how many times if can be extended.
Emergency Substantial Risk Orders in Virginia
Emergency Substantial Risk Orders in Virginia Prohibit a Person From Possessing Firearms
After law-enforcement conducts an investigation into whether possession of a firearm by a person could pose a risk of danger to that person or others, the Commonwealth can file a petition for an Emergency Substantial Risk Order.
Emergency Substantial Risk Orders in Virginia will be issued if a court or magistrate finds that there is probable cause that possession of a firearm by a person will pose a substantial risk of personal injury to him or herself or others. Emergency Substantial Risk Orders 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.
In determining probable cause to issue an Emergency Substantial risk order, the court will examine any “relevant” evidence, including recent acts of violence, force or threat. An act of violence is defined 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” (Va. Code §19.2-152.7:1).
If the Emergency Substantial Risk Order is issued, the order will inform the person that he or she is prohibited from possessing, purchasing, or transporting firearms while the order is in place. The order will also list the penalties for possession of a firearm after a Substantial Risk Order has been issued in Virginia. Additionally, the order will inform the person that he or she must surrender a concealed carry permit if he or she has one. Most importantly, the person must “voluntarily” surrender any firearms to the law-enforcement agency that serves the order. That agency will keep the person’s firearms while the order is in place. The law-enforcement agency will also take an inventory of all firearms turned over and provide the person a receipt. A law-enforcement officer can also apply for a search warrant to search the person’s property if the officer has reason to believe that the person has not turned over all firearms in his or her possession.
Emergency Substantial Risk Orders in Virginia are valid for 14 days (Va. Code §19.2-152.13). At any time during those 14 days, the person who is the subject of the order can file a petition with the Circuit Court to dissolve the Emergency Substantial Risk Order.
Substantial Risk Orders in Virginia
After an Emergency Substantial Risk Order is issued in Virginia, the Circuit Court must then hold a hearing no later than 14 days after the issuance of the Emergency Substantial Risk Order to determine whether to enter a Substantial Risk Order (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 if that person possesses a firearm. This is a higher burden of proof than the burden required to issue an Emergency Substantial Risk Order, but not as high as the burden of beyond a reasonable doubt in criminal court. In determining whether clear and convincing evidence exists that the person poses a substantial risk of harm, the court will again examine any “relevant” evidence, including any recent acts of violence, force or threat to him or herself or others.
If the Circuit Court finds that possession of a firearm by the person against whom an Emergency Substantial Risk Order was issued will create a substantial risk of harm to him or herself or others, the court will enter a Substantial Risk Order.
What Happens After A Substantial Risk Order is Issued?
Substantial Risk Orders in Virginia Can Be Extended Indefinitely
After a Substantial Risk Order has been 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. Whichever agency took the firearms shall maintain custody of those firearms for the duration of the Substantial Risk Order. Additionally, law-enforcement can obtain a search warrant to look for more firearms if they think that the person has more firearms that he or she has not turned over.
Additionally, the person can transfer any firearms in his or her possession to another person over the age of 21. The person receiving the firearms must not live with the individual who is subject to the Substantial Risk Order and must not be prohibited from possessing firearms. Both the person subject to the order and the person to whom he or she is transferring the 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 firearms 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 can approve the transfer and can also place restrictions on the transfer that the court finds necessary.
Possessing Firearm After Entry of Substantial Risk Order
Possessing, purchasing or transporting a firearm while a Substantial Risk Order or Emergency 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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