Virginia Emergency Substantial Risk Order
August 11, 2021 by Jean Humbrecht
Virginia can now prohibit a person from possessing a firearms if a court thinks that a person is a danger to him or herself or others. This is done by entering an Emergency Substantial Risk Order (Va. Code §19.2-152.13), and then a Substantial Risk Order (Va. Code §19.2-152.14). If you are wondering, what is a Virginia Emergency Substantial Risk Order, read the post below.
Virginia Emergency Substantial Risk Order
A Virginia Emergency Substantial Risk Order Prohibits a Person from Possessing a Firearm
Before a Substantial Risk Order is entered, law-enforcement must conduct an independent investigation to determine whether possession of a firearm by a person will create a substantial risk of harm to anyone. After this investigation, the Commonwealth can file a petition for an Emergency Substantial Risk Order.
An Emergency Substantial Risk Order will be issued if a court or magistrate finds that there is probable cause that possession of a firearm by the person will pose a substantial risk of personal injury to him or herself or others in the near future. A Virginia Emergency Substantial Risk Order 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, which means that a person does not have to be present at (or even be informed about) the hearing that determines whether an Emergency Substantial Risk Order will be issued.
In determining whether to issue an Emergency Substantial Risk Order against a person, Virginia courts will examine any “relevant” evidence, including any recent acts of violence, force or threat to anyone (including to him or herself). An act of violence 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.”
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 a firearm while the order is in place. The order will also inform the person of the penalties for possession of a firearm by someone who is subject to an Emergency Substantial Risk Order or a Substantial Risk Order. It will also inform the person that he or she must surrender any concealed carry permit. Most importantly, the person must surrender his or her firearms to the law-enforcement agency that serves the order. That agency will keep the firearms while the order is in place. They will also take an inventory of the firearms turned over and provide the person a receipt. Law-enforcement can also apply for a search warrant to search the person’s property if they have reason to believe that he or she has not turned over all of the firearms in his or her possession.
A Virginia Emergency Substantial Risk Order is 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 petition the Circuit Court to dissolve the Emergency Substantial Risk Order.
Virginia Substantial Risk Order
After an Emergency Substantial Risk Order is issued in Virginia, the Circuit Court must hold a hearing within 14 days to determine whether to issue a Substantial Risk Order (Va. Code §19.2-152.14). A Virginia Substantial Risk Order can be effect for up to 180 days-and can be limitlessly extended.
A Virginia Substantial Risk Order is a court order that prevents a person from possessing, purchasing or transporting a firearm if possession of a firearm by that person would pose a “substantial risk of personal injury” to him or herself or others (Va. Code §19.2-152.14).
At this hearing, the Commonwealth must prove by clear and convincing evidence that the person poses a substantial risk of personal injury to him or herself or others in the near future by possessing 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.
If the court finds that possession of a firearm by the person in question will create a substantial risk of harm to him or herself or others in the near future, the court will enter a Substantial Risk Order. 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.
There is No Limit on How Many Times A Substantial Risk Order in Virginia Can Be Extended
If the order is granted, it must inform the person of the penalties for possessing, purchasing or transporting a firearm by someone who is prohibited from doing so because of a Substantial Risk Order. It must also inform the person that he or she is required to surrender any concealed carry permit, and that the person must voluntarily surrender any firearms still in his or her possession that were not surrendered to law-enforcement when the Emergency Protective Order was served. Whichever agency took the firearms will keep custody of those firearms for the duration of the Substantial Risk Order.
Additionally, law-enforcement can apply for and obtain a search warrant to look for more firearms if they have reason to believe the person has not surrendered all of his or her firearms. The firearms that were previously turned over will continue to be held by law enforcement until the order is no longer in place.
A person who is the subject of a Substantial Risk Order can transfer firearms in his or her possession to another person over the age of 21 so long as that person does not live with the person who is subject to the Substantial Risk Order and is not prohibited from possessing firearms and must inform the person of the penalties for transferring a firearm to a prohibited person. The Circuit Court must approve the transfer and can place any restrictions on the transfer that the court deems necessary.
How Long is a Virginia Substantial Risk Order in Place?
A Substantial Risk Order can be issued for any period of time up to 180 days. However, at any time while the order is still in place, an attorney for the Commonwealth or a law-enforcement officer can petition the court to extend the order for an additional 180 days. The court can extend a Substantial Risk Order if the judge finds by clear and convincing evidence that the person continues to pose a substantial risk of injury to others or him or herself in the near future by possessing a firearm. There is no limit on how many times the Commonwealth can obtain extensions of a Substantial Risk Order in Virginia.
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 place. However, he or she must wait at least 30 days after the order went into effect to file this petition.
Possessing a Firearm While a Substantial Risk Order is in Place
Possessing, purchasing or transporting a firearm while an Emergency Substantial Risk Order or a 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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