Removal of a Firearm from a Person Subject to a Substantial Risk Order in Virginia
December 1, 2021 by Jean Humbrecht
Virginia courts can prohibit a person from possessing a firearm if the court thinks the person poses a danger to him or herself or others. This is done by entering a Substantial Risk Order (Va. Code §19.2-152.14). For information on the removal of a firearm from a person subject to a Substantial Risk Order in Virginia, read the post below.
What is a Substantial Risk Order in Virginia?
A Substantial Risk Order Prohibits a Person from Possessing a Firearm
A Substantial Risk Order in Virginia is an order entered by a Circuit Court that prevents a person from possessing, transporting 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 magistrate, General District Court, Juvenile and Domestic Relations District Court, or Circuit Court.
The Circuit Court then must hold a hearing within 14 days 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 by possessing a firearm. The court will consider any “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.”
A Substantial Risk Order can be issued for up to 180 days. However, a law-enforcement officer or an attorney for the Commonwealth can file a petition to extend the Substantial Risk Order for an additional 180 days and 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 a firearm.
After 30 days, the person subject to the Substantial Risk Order can petition the court to dissolve the order. However, the person can only petition the court one time to dissolve the order while it is in effect.
For more information on a Virginia Emergency Substantial Risk Order, click here.
For more information on a Virginia Substantial Risk Order, click here.
Removal of a Firearm from a Person Subject to a Substantial Risk Order in Virginia
After a Substantial Risk Order is entered in Virginia, 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. That agency will 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. The person must also turn in a concealed carry permit if he or she has one.
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, 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 firearms must appear 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 prohibited person. The court then can approve the transfer and can also place restrictions on the transfer that the court thinks are necessary.
Penalty for Possessing a Firearm While Subject to a Substantial Risk Order
Possessing, purchasing or transporting a firearm while an Emergency Substantial Risk Order or Substantial Risk Order is in place is a Class 1 misdemeanor 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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