Substantial Risk Orders in Virginia
November 24, 2021 by Jean Humbrecht
Virginia now has the ability to 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. After the court enters a Substantial Risk Order against a person in Virginia, that person is prohibited from possessing, purchasing or transporting firearms at all while the order is in place (Va. Code §19.2-152.14). Additionally, there is no limit on how many times the Commonwealth can petition to renew a Substantial Risk Order. For information on Substantial Risk Orders in Virginia and firearm restrictions, read the post below.
Substantial Risk Orders in Virginia
Substantial Risk Orders in Virginia Prohibit a Person from Possessing Firearms
A Substantial Risk Order in Virginia is an order entered by a court preventing a person from possessing, purchasing or transporting firearms if possession of a firearm by that person would pose a “substantial risk of harm” to that person or others (Va. Code §19.2-152.14).
Before entering a Substantial Risk Order, the court first enters an Emergency Substantial Risk Order. An Emergency Substantial Risk Order remains in place for 14 days (Va. Code §19.2-152.13). An Emergency Substantial Risk Order can be entered by a General District Court, Juvenile and Domestic Relations District Court, Circuit Court, or a magistrate. The Circuit Court then must hold a hearing not later than 14 days after the Emergency Substantial Risk Order was issued to determine whether to enter a Substantial Risk Order. In order to enter a Substantial Risk Order in Virginia, the Commonwealth must prove that the person poses a substantial risk of injury to him or herself or others in the near future by possessing a firearm.
A Substantial Risk Order can be issued for 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, and there is no limit on how many times they can petition to extend a Substantial Risk Order. They must petition the court for this extension before the order expires. The court can then extend the order if it finds that the person continues to pose a substantial risk of injury to him or herself or others by possessing a firearm at the time the petition for the extension is filed.
The person subject to a Substantial Risk Order will be prohibited from possessing, purchasing or transporting a firearm for the entire time the order is in effect.
The person against whom a Substantial Risk Order is issued can petition the court to dissolve the order one time while the order is in effect, but the person has to wait at least 30 days from the date the order was entered.
Click here for more information on Emergency Substantial Risk Orders in Virginia
Click here for more information on Substantial Risk Orders in Virginia,
How Does the Court Determine Whether to Enter a Substantial Risk Order in Virginia?
In determining whether to enter Substantial Risk Orders in Virginia, the court considers all “relevant evidence,” including any 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 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),
Substantial Risk Orders in Virginia and Firearm Restrictions
Firearms Can Be Transferred to Another Person After a Hearing in Circuit Court
After a Substantial Risk Order has been entered in Virginia, 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. Additionally, the person must surrender a concealed carry permit if he or she has one.
The law-enforcement agency that took the firearms will keep them for the duration of the Substantial Risk Order. Additionally, a law-enforcement officer can obtain a search warrant to look for more firearms if he or she thinks that the person has not turned over all firearms in that person’s possession.
A person who is the subject of a Substantial Risk Order can transfer any firearms in his or her possession to another person. However, that person must be over the age of 21, cannot 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 the person subject to the order and the person receiving the firearms must appear at a hearing. At the hearing, the Commonwealth Attorney must advise the court that law-enforcement has confirmed 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 firearms. The court then can approve the transfer but can also place restrictions on the transfer that the court thinks are necessary.
Penalty for Possessing a Firearm While a Substantial Risk Order is in Place
Purchasing, possessing 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).
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