What is a Substantial Risk Order in Virginia?
July 3, 2020 by Jean Humbrecht
One of the new Virginia firearm restrictions 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 the court enters a Substantial Risk Order against a person in Virginia, that person is prohibited from possessing firearms while the order is in place (Va. Code §19.2-152.14). If you are wondering, what is a Substantial Risk Order in Virginia, read the post below.
What is a Substantial Risk Order in Virginia?
A Substantial Risk Order in Virginia Prohibits a Person from Possessing a Firearm
A Substantial Risk Order is an order entered by the court preventing a person from possessing, purchasing or transferring firearms 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). Before such an order is entered, law-enforcement must first conduct an independent investigation to determine whether possession of a firearm by this person will create a substantial risk of harm. Then, a judge or magistrate issues an ex parte Emergency Substantial Risk Order based on the information presented by law-enforcement. This emergency order is in place for 14 days. Then the Circuit Court must 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 limitlessly extended).
Emergency Substantial Risk Order
As noted above, law-enforcement must conduct an independent investigation and determine that grounds for the petition for an Emergency Substantial Risk Order exist.
An Emergency Substantial Risk Order will be issued if the court or magistrate finds that there is probable cause that the person poses a substantial risk of personal injury to him or herself or others in the near future if he or she possesses or acquires a firearm. An Emergency Substantial Risk Order 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 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 must consider any “relevant” evidence in finding probable cause that possession of a firearm by that person will constitute a substantial risk of harm to him or herself or others. “Relevant” evidence would include recent acts of violence, force or threat by the person (directed toward another person or toward him or herself).
If the Emergency Substantial Risk Order is issued, the person is prohibited from possessing, purchasing, or transferring a firearm while the order is in place. The order will inform the person of this, 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 that if he or she has a concealed carry permit it must be surrendered. Additionally, the person must “voluntarily” give up his or her firearms to the law-enforcement agency that serves the order. The law-enforcement agency will keep the firearms for the entire time the order is in place, and will take an inventory of the firearms turned over and provide the person a receipt. Law-enforcement can also apply for and obtain a search warrant to search the person’s property if they have reason to believe that the person has not turned over all of the firearms in his or her possession.
An 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 Circuit Court to dissolve the order.
Substantial Risk Order
The Circuit Court must hold a hearing not later than 14 days after the issuance of the Emergency Substantial Risk Order 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?
The Court Will Examine Any Recent Acts of Violence When Determining Whether to Issue a Substantial Risk Order
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 or acquires a firearm. This is a higher burden of proof than the burden required to issue the Emergency Substantial Risk Order, but not as high as the burden of beyond a reasonable doubt in criminal court.
If the court finds by clear and convincing evidence 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. 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 Substantial Risk Order is Granted?
The person subject to a Substantial Risk Order will be prohibited from possessing, purchasing or transferring a firearm for the entire time the order is in effect. If the order is granted, it 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 a concealed carry permit if he or she has one, and also 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 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 law-enforcement has reason to believe the person has not relinquished 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 any firearms in his or her possession to another person over the age of 21 so long as that person does not live with the individual who is subject to the Substantial Risk Order and is not 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 firearm is not prohibited from possessing or transferring 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 deems necessary. If the transfer is granted, the law-enforcement agency holding the firearm will deliver the firearm to the person within 5 days of receiving a copy of the court’s approval of the transfer.
How Long is a Substantial Risk Order in Place?
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. They must petition the court for this extension prior to the order’s expiration. 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 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.
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 effect, but must wait at least 30 days from when the order was entered.
What Happens If I Possess a Firearm While a 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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