Prohibition on Possessing Firearm by Someone Subject to Substantial Risk Order in Virginia
January 24, 2021 by Jean Humbrecht
Virginia can now prohibit a person from possessing a firearm if the court thinks the person is a danger to him or herself or others. This is done by entering a Substantial Risk Order. If the court enters a Substantial Risk Order in Virginia, that person is prohibited from possessing firearms while the order is in effect (Va. Code §19.2-152.14). It is even possible that the order remains in place forever. For information on the prohibition on possessing firearm by someone subject to Substantial Risk Order in Virginia, read the post below.
What is a Substantial Risk Order in Virginia?
A Substantial Risk Order is an order entered by the court preventing a person from possessing, purchasing or transferring firearms 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 remains in effect for 14 days (Va. Code §19.2-152.13). An Emergency Substantial Risk Order can be entered by a Juvenile and Domestic Relations District Court, General 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 possession of a firearm by the person will create a substantial risk of injury to him or herself or others in the near future.
A Substantial Risk Order Prevents a Person from Possessing Firearms
A Substantial Risk Order can be issued for any 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, but they must petition the court for this extension before the order expires. The court can extend the Substantial Risk Order if it finds that the person continues to pose a substantial risk of injury to him or herself or others in the near future by that person’s possession of a firearm. There is no limit on how many times a Substantial Risk Order in Virginia can be extended.
The person subject to a Substantial Risk Order will be prohibited from possessing, purchasing or transferring a firearm for the entire time the order is in effect.
The person against whom a Substantial Risk Order is issued can file a petition to dissolve the order one time while the order is in effect, but he or she must wait at least 30 days after the order was originally entered.
Click here for more information on an Emergency Substantial Risk Order in Virginia,
Click here for more information on a Substantial Risk Order in Virginia.
How Does the Court Determine Whether to Enter a Substantial Risk Order?
In determining whether to enter a Substantial Risk Order, Virginia courts consider all “relevant evidence,” including recent acts of violence, force or threat by the person directed toward another person or toward him or herself or others. 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.”
Prohibition on Possessing Firearm by Someone Subject to Substantial Risk Order in Virginia
After a Substantial Risk Order is entered in Virginia, the person must surrender a concealed carry permit and any firearms in his or her possession that have not already been taken by law-enforcement after the Emergency Substantial Risk Order was served. Whichever agency took the firearms will keep the firearms for the entire time the Substantial Risk Order is in effect. Additionally, a law-enforcement officer can obtain a search warrant to look for more firearms if the officer has reason to believe that the person has not turned over all of his or her firearms.
A person who is the subject of a Substantial Risk Order can transfer his or her firearms to another person over the age of 21. The person receiving the firearms must not live with the person who is subject to the Substantial Risk Order and must not be prohibited from possessing firearms for any reason. Both the person subject to the order and the person who will be receiving the firearms must appear at a hearing. At that hearing, the Commonwealth Attorney must advise the court that the person receiving the firearm is not prohibited from possessing or transferring firearms. The court must also inform the transferee of the penalties for transferring a firearm to a person prohibited from possessing a firearm. The court may approve the transfer and can also place restrictions on the transfer that the court thinks are necessary.
Penalty for Possessing a Firearm After a Substantial Risk Order Has Been Issued
Purchasing, possessing or transporting a firearm in violation of an Emergency Substantial Risk Order or Substantial Risk Order in Virginia 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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