Virginia Substantial Risk Orders
October 24, 2020 by Jean Humbrecht
Virginia courts can prohibit a person from possessing, purchasing or transporting a firearm if the court thinks the person is a danger to him or herself or others by possessing a firearm. This is done by entering a Substantial Risk Order. Virginia Substantial Risk Orders prohibit a person from possessing, purchasing or transporting firearms while the order is in place and these orders can be extended indefinitely (Va. Code §19.2-152.14).
Virginia Substantial Risk Orders
Virginia Substantial Risk Orders Prohibit a Person from Possessing a Firearm
Virginia Substantial Risk Orders are entered by a Circuit Court and they prevent 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 a Substantial Risk Order is entered in Virginia, a law-enforcement officer must first conduct an investigation into whether possession of a firearm by the individual would create a substantial risk of harm to him or herself or others. Then, a magistrate or judge can issue an ex parte Emergency Substantial Risk Order based on the information presented by law-enforcement. This Emergency Substantial Risk Order will remain in place for 14 days. The Circuit Court then must hold a hearing within 14 days to determine whether to issue a Substantial Risk Order. A Substantial Risk Order can be effect for up to 180 days-and can be limitlessly extended
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 if that person possesses a firearm. An Emergency Substantial Risk Order can be entered by a magistrate, Circuit Court, General District Court, or Juvenile and Domestic Relations District Court. The order will be issued ex parte, meaning that a person is not required to be present at the hearing that determines whether an Emergency Substantial Risk Order should be issued.
The court or magistrate will review any “relevant” evidence when determining whether to issue an Emergency Substantial Risk Order, including recent acts of violence, force or threat by the person directed toward him or herself or toward another person. 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.”
An Emergency Substantial Risk Order will inform the person that he or she is prohibited from possessing, purchasing, or transporting a firearm while the order is in place, as well as the penalties for possessing a firearm after a Substantial Risk Order has been issued. The law-enforcement agency who serves the Emergency Substantial Risk Order 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.
An Emergency Substantial Risk Order will also inform the person that he or she must surrender any concealed carry permit.
A Emergency Substantial Risk Order in Virginia is valid for 14 days. The person who is the subject of the order can petition the court to dissolve the order any time during the 14 days the order is in effect (Va. Code §19.2-152.13).
Virginia Substantial Risk Order
After an Emergency Substantial Risk Order is issued in Virginia, 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).
The Commonwealth must prove to the court 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 case.
In determining whether clear and convincing evidence exists that the person poses a substantial risk of harm to him or herself or others by possessing a firearm, the court will examine any “relevant” evidence, including any recent acts of violence, force or threats.
What Happens After A Substantial Risk Order is Entered in Virginia?
The person subject to a Substantial Risk Order in Virginia will be prohibited from possessing, purchasing or transporting a firearm for the entire time the order is in effect. The order will inform the person of the penalties for possessing, purchasing or transporting a firearm by someone who is prohibited from doing so. It will also inform the person that he or she is required to surrender a concealed carry permit and must voluntarily surrender any firearms that were not surrendered to law-enforcement when the Emergency Protective Order was served.
The law-enforcement agency that took the firearms will keep them for the entire time the Substantial Risk Order is in place.
Additionally, a law-enforcement officer can obtain a search warrant to look for more firearms if he or she has reason to believe the person has not surrendered all of the firearms in his or her possession.
A person who is the subject of a Substantial Risk Order can transfer any 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 parties 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. The court will inform the transferee of the requirements and penalties for transferring a firearm to a person prohibited from possessing a firearm. The court can approve the transfer and can also place restrictions on the transfer. If the transfer is granted, the law-enforcement agency holding the firearms will deliver them to the person within 5 days of receiving a copy of the court’s approval of the firearm transfer.
How Long is a Virginia Substantial Risk Order in Place?
Virginia Substantial Risk Orders Can Be Limitlessly Extended
Virginia Substantial Risk Orders can be in effect for up to 180 days. However, an attorney for the Commonwealth or 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 first order expires. The court can extend the order if they find that the person continues to pose a substantial risk of injury to him or herself or others by possessing a firearm. There is no limit on how many times the Commonwealth or law-enforcement can petition the court 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.
Penalties for Possessing a Firearm After Virginia Substantial Risk Orders are Issued
Possessing, purchasing, or transporting a firearm while an Emergency Substantial Risk Order or 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).
For more information on the penalties for possessing a firearm while a Virginia Substantial Risk Order is in place, click here.
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