Substantial Risk Order and Firearm Restrictions in Virginia
March 24, 2021 by Jean Humbrecht
One of the new firearm restrictions enacted in Virginia is the ability to ban a person from possessing firearms if the court thinks the person is a danger to himself or others. This is done through entering a Substantial Risk Order. If the court enters a Substantial Risk Order against a person in Virginia, that person is prohibited from possessing firearms while the order is in place (Va. Code §19.2-152.14). And, it is possible that the order remains in place forever. For information on the entry of a Substantial Risk Order and Firearm Restrictions in Virginia, read the post below.
What is a Substantial Risk Order?
A Substantial Risk Order Prevents a Person from Possessing a Firearm
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 lasts for 14 days (Va. Code §19.2-152.13). An Emergency Substantial Risk Order can be entered by a Circuit Court, General District Court, Juvenile and Domestic Relations District Court, or a magistrate. The Circuit Court must hold a hearing not later than 14 days after the issuance of the Emergency Substantial Risk Order to determine whether to enter a Substantial Risk Order. The Commonwealth must prove that the person poses a substantial risk of injury to himself or others in the near future if that person possesses or acquires a firearm.
A Substantial Risk Order can be issued for any specified 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. They must petition the court for this extension prior to the order’s expiration. The court can extend the order if they find 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 or acquisition 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 extensions of a Substantial Risk Order.
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. Possessing, purchasing or transporting a firearm while a Substantial Risk Order or Emergency Substantial Risk Order 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).
The person against whom the Substantial Risk Order is issued can file a petition to dissolve the order one time while the order is in effect, but must wait at least 30 days from when the order was entered.
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 Determine Whether to Enter a Substantial Risk Order?
In determining whether to enter a Substantial Risk Order in Virginia, the court considers all “relevant evidence,” including recent acts of violence, force or threat by the person directed toward another person or toward him or herself. 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.”
Substantial Risk Order and Firearm Restrictions in Virginia
After the entry of a Substantial Risk Order 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 after serving the Emergency Substantial Risk Order. 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.
A person who is the subject of a Substantial Risk Order can transfer any firearms in his or her possession to another person over the age of 21 so long as that person does not live with the individual who is subject to the Substantial Risk Order and is not 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. At that hearing, the Commonwealth Attorney must advise the court that law-enforcement has determined that the person receiving the firearm 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 deems necessary.
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