Virginia Substantial Risk Order and Firearm Restrictions
August 24, 2021 by Jean Humbrecht
One of the new firearm restrictions in Virginia is the ability to ban a person from possessing firearms if the court thinks the person is a danger to him or herself or others. This is done through entering a Substantial Risk Order. If a Virginia court enters a Substantial Risk Order against a person, that person is prohibited from possessing firearms the entire time the order is in place (Va. Code §19.2-152.14). Additionally, it is possible that the order remains in place forever. For information on the entry of a Virginia Substantial Risk Order and firearm restrictions, read the post below.
What is a Substantial Risk Order in Virginia?
A Substantial Risk Order in Virginia Prevents a Person from Possessing a Firearm
A Substantial Risk Order in Virginia is an order entered by the court that prevents a person from possessing, transferring or purchasing a firearm 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 General District Court, Juvenile and Domestic Relations District Court, Circuit Court, or a magistrate. The Circuit Court must hold a hearing no later than 14 days after the Emergency Substantial Risk Order is issued 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 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. The petition must be filed before the current order expires. The court can extend the order if the court finds 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. This means the person can be permanently banned from possessing a firearm.
The person against whom the Substantial Risk Order is issued can petition the court to dissolve the order one time while the order is in effect. However, the person must wait at least 30 days from the date the order was entered.
Click here for more information on an Emergency Substantial Risk Order in Virginia,
Click here for more information on a Substantial Risk Order in Virginia,
How Does the Court Decide Whether to Enter a Substantial Risk Order?
In determining whether to enter a Substantial Risk Order in Virginia, the court considers all “relevant evidence.” This includes any recent acts of violence, force or threat by the person directed toward him or herself or to another person. 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.”
Virginia Substantial Risk Order and Firearm Restrictions
The Court Examines Any Relevant Evidence in Determining Whether to Issue a Substantial Risk Order
After a Substantial Risk Order has been entered 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. 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.
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).
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. The person receiving the firearms must not live with the individual who is subject to the Substantial Risk Order and must not be 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 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 a firearm. The court then can approve the transfer and can also place restrictions on the transfer that the court finds necessary.
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