Virginia Substantial Risk Order
May 24, 2021 by Jean Humbrecht
Virginia now can prohibit a person from possessing a firearm if the court thinks the person is a danger to him or herself or others by entering a Substantial Risk Order. If the court enters a Substantial Risk Order against a person in Virginia, that person is prohibited from possessing, purchasing or transporting firearms while the order is in place (Va. Code §19.2-152.14).
What is a Substantial Risk Order in Virginia?
A Virginia Substantial Risk Order Prohibits a Person from Possessing a Firearm
A Virginia Substantial Risk Order is an order entered by a Circuit Court that prevents a person from possessing, purchasing or transporting firearms if possession of a firearm by that person would create a “substantial risk of personal injury” to him or herself or others (Va. Code §19.2-152.14). Before such an order is entered, law-enforcement must first conduct an investigation to determine whether possession of a firearm by this person would create a substantial risk of harm. Then, a judge or magistrate can issue an ex parte Emergency Substantial Risk Order based on the information presented by law-enforcement. This emergency order will remain in place for 14 days. The Circuit Court then will hold a hearing within 14 days to determine whether to issue a Substantial Risk Order that can be effect for up to 180 days-and can be extended limitlessly.
Virginia Emergency Substantial Risk Order
An Emergency Substantial Risk Order in Virginia will be issued if the court or magistrate finds that there is probable cause that a person poses a substantial risk of personal injury to him or herself or others in the near future if he or she possesses a firearm. It can be entered by a Circuit Court, General District Court, Juvenile and Domestic Relations District Court, or a magistrate. The order will be issued ex parte. This means that a person does not even have to be present at the hearing that determines whether an Emergency Substantial Risk Order should be issued against him or her.
The court or magistrate will review any “relevant” evidence when determining whether to issue an Emergency Substantial Risk Order. “Relevant” evidence can include recent acts of violence, force or threat by the person directed toward him or herself or toward another person).
An Emergency Substantial Risk Order will inform the person that he or she is prohibited from possessing, purchasing, or transporting a firearm for the duration of the order, as well as the penalties for possession of a firearm after a Substantial Risk Order has been issued. Additionally, the order will inform the person he or she must surrender any concealed carry permit. The person must “voluntarily” give up any firearms in his or her possession to the law-enforcement agency that served the order. The law-enforcement agency will keep the firearms for the duration of the order, and will take an inventory of the firearms and provide the person a receipt. Law-enforcement can also get a search warrant to search the person’s property if they think that the person has not turned over all of their firearms.
A Virginia Emergency Substantial Risk Order is valid for 14 days (Va. Code §19.2-152.13). At any time during the 14 days, the person who is the subject of the order can petition the court to dissolve the order.
Virginia Substantial Risk Order
After an Emergency Substantial Risk Order is issued, the Circuit Court will hold a hearing within 14 days to determine whether to enter a Substantial Risk Order (Va. Code §19.2-152.14).
How Does the Court Determine Whether to Enter a Substantial Risk Order?
In order to enter a Substantial Risk Order against a person in Virginia, the Commonwealth must prove by clear and convincing evidence that the person poses a substantial risk of injury to him or herself or others in the near future if that person possesses a firearm. This burden of proof is higher than the burden required to issue the Emergency Substantial Risk Order, but not as high as the burden of beyond a reasonable doubt in a criminal court.
In determining whether clear and convincing evidence exists that the person poses a substantial risk of harm, the court will examine “relevant” evidence, including any recent acts of violence, force or threat to him or herself or others. 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.”
What Happens After A Virginia Substantial Risk Order is Issued?
Possessing a Firearm After a Substantial Risk Order was Issued in Virginia is a Crime
The person subject to a Virginia Substantial Risk Order will be prohibited from possessing, purchasing or transferring a firearm for the duration of the order. The order must inform the person of the penalties for possessing, purchasing or transferring a firearm by someone who is prohibited from doing so because of a Substantial Risk Order, that the person is required to surrender any concealed carry permit, and that the person must voluntarily surrender any firearms that were not surrendered to law-enforcement when the Emergency Protective Order was served.
The agency that took the firearms will keep them for the entire time the Substantial Risk Order is in place.
Additionally, law-enforcement can get 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.
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 must not live with the individual and must not be prohibited from possessing firearms. Both the person subject to the order and the person to whom he or she is transferring any firearms must appear at a hearing in court. At that hearing, the Commonwealth Attorney must advise the court that law-enforcement determined that the person receiving the firearm 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 can approve the transfer and can also place restrictions on the transfer that the court thinks are necessary. If the transfer is granted, the law-enforcement agency holding any firearm will deliver them to the person within 5 days of receiving a copy of the court’s approval of the forearm transfer.
How Long is a Substantial Risk Order in Place?
A Virginia Substantial Risk Order can be issued for any period of time up to 180 days. However, an attorney for the Commonwealth or even a law-enforcement officer can file a petition to extend the Substantial Risk Order for an additional 180 days. The petition to extend a Substantial Risk Order must be filed before the order expires. The court can extend the order if they find by clear and convincing evidence 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. There is no limit on how many times the Commonwealth or law-enforcement can petition to extend a Substantial Risk Order.
The person against whom a Virginia Substantial Risk Order is issued can file a petition with the court to dissolve the order one time while the order is in place, but must wait at least 30 days from when the order was entered.
What Happens If I Possess a Firearm While a Virginia Substantial Risk Order is in Place?
Possessing, purchasing, or transporting a firearm while an Emergency Substantial Risk Order or Substantial Risk Order is in place is a Class 1 misdemeanor. It 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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