Virginia Emergency Substantial Risk Orders
July 11, 2020 by Jean Humbrecht
Virginia courts can prohibit an individual from possessing firearms if a court thinks that a person is a danger to him or herself or others by possessing a firearm. This is done by entering an Emergency Substantial Risk Order (Va. Code §19.2-152.13) followed by a Substantial Risk Order (Va. Code §19.2-152.14). For information on Virginia Emergency Substantial Risk Orders, read the post below.
An Emergency Substantial Risk Order will be issued if a court or magistrate finds probable cause that possession of a firearm by a person will create a substantial risk of injury to him or herself or others in the near future.
First, a law-enforcement officer will conduct an investigation to determine whether possession of a firearm by that person will create a substantial risk of harm to him or herself or anyone else. The Commonwealth Attorney can then file a petition for an Emergency Substantial Risk Order.
Virginia Emergency Substantial Risk Orders 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, meaning that the person does not need to be informed about, or be present at, the hearing.
Virginia Emergency Substantial Risk Orders Prohibit a Person from Possessing a Firearm
In determining whether to enter Virginia Emergency Substantial Risk Orders, courts will examine any “relevant” evidence, which includes any recent acts of violence, force or threat to anyone (including to him or herself). An act of violence is “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
An Emergency Substantial Risk Order in Virginia will inform the person that he or she is prohibited from possessing, purchasing, or transporting a firearm while the order is in effect. 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 in Virginia. The person is required to surrender a concealed carry permit if he or she has one. The person must also surrender any firearms in his or her possession to the law-enforcement agency that served the Emergency Substantial Risk Order and that agency will keep the firearms for the duration of the order. A law-enforcement officer can even apply for a search warrant to search the person’s property if he or she “has reason to believe” that the person did not turn over all of his or her firearms.
Virginia Emergency Substantial Risk Orders are 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 Emergency Substantial Risk Order can petition the court to dissolve the order.
Possessing, purchasing or transporting firearms while an Emergency Substantial Risk Order in Virginia 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).
After an Emergency Substantial Risk Order is entered in Virginia, the Circuit Court is required to hold a hearing within 14 days to determine whether to issue a Substantial Risk Order (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. A Substantial Risk Order in Virginia can be issued for any period of time up to 180 days (but there is no limit on how many times it can be extended).
For more information on Virginia Substantial Risk Orders, click here.
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