What is an Emergency Substantial Risk Order in Virginia?
July 6, 2020 by Jean Humbrecht
Virginia now has the ability to ban a person from possessing firearms if a court thinks the person is a danger to him or herself or others. This is done by entering an Emergency Substantial Risk Order, and then a Substantial Risk Order. After a court enters a Substantial Risk Order against a person in Virginia, he or she is prohibited from possessing firearms while the order is in place (Va. Code §19.2-152.14). If you are wondering, what is an Emergency Substantial Risk Order in Virginia, read the post below.
What is an Emergency Substantial Risk Order in Virginia?
A Substantial Risk Order is an order entered by a court that prevents a person from possessing, purchasing or transferring any 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 a Substantial Risk Order is entered, law-enforcement must 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 can issue an Emergency Substantial Risk Order based on the information presented by law-enforcement. This emergency order is 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 that can be effect for up to 180 days (and can be extended limitlessly).
Emergency Substantial Risk Order in Virginia
An Emergency Substantial Risk Order in Virginia Prohibits a Person from Possessing a Firearm
After law-enforcement conducts an investigation to determine that a person will be a danger to him or herself or others by possessing a firearm, the Commonwealth can file a petition for an Emergency Substantial Risk Order.
An Emergency Substantial Risk Order will be issued if a court or magistrate finds that there is probable cause that possession of a firearm by a person will pose a substantial risk of personal injury to him or herself or others in the near future. 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 order will be issued ex parte, meaning that a person does not have to be present at (or even be informed about) the hearing that determines whether an Emergency Substantial Risk Order should be issued.
In determining whether to issue an Emergency Substantial Risk Order based on probable cause that the person poses a substantial risk of harm, the court will 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.”
If the Emergency Substantial Risk Order is issued, the order will inform the person that he or she is prohibited from possessing, purchasing, or transferring any firearms while the order is in place. The order will also inform the person of the penalties for possession of a firearm after an Emergency Substantial Risk Order has been issued. These penalties include up to 12 months in jail and a fine up to $2,500 (Va. Code §18.2-308.1:6).
Additionally, the order will inform the person that he or she must surrender any concealed carry permit. Most importantly, the person must “voluntarily” give up his or her firearms to the law-enforcement agency that serves the order. That agency will keep the firearms while the order is in place. They will also take an inventory of the firearms turned over and provide the person a receipt. Law-enforcement can also apply for 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 those 14 days, the person who is the subject of the order can petition the Circuit Court to dissolve the Emergency Substantial Risk 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).
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 by possessing a firearm. This is a higher burden of proof than the burden required to issue an Emergency Substantial Risk Order, but not as high as the burden of beyond a reasonable doubt in criminal court.
If the court finds 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.
What Happens After A Substantial Risk Order is Granted?
After a Court Enters a Substantial Risk Order, the Person Must Relinquish All Firearms
A Substantial Risk Order prevents a person 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. It must also inform the person that he or she is required to surrender any concealed carry permit, 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 will keep 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 turned over all of his or her firearms. The firearms that were previously turned over will continue to be held by law enforcement until the order has expired.
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 so long as that person does not live with the person who is subject to the Substantial Risk Order and is not prohibited from possessing firearms. 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 inform the court that law-enforcement has determined that the person receiving the firearm is not prohibited from possessing or transferring firearms. The court also will inform 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 also can place restrictions on the transfer that the court deems necessary. If the transfer is granted, the law-enforcement agency maintaining custody of the firearm will deliver the firearm 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 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 order for an additional 180 days. They must petition the court for this extension before the order expires. The court can extend a Substantial Risk Order if the judge finds by clear and convincing evidence that, at the time the petition for the extension is filed, the person continues to pose a substantial risk of injury to others (or him or herself) in the near future by that person’s possession of a firearm. There is no limit on how many times the Commonwealth or law-enforcement can obtain 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. However, he or she must wait at least 30 days from when the order was entered.
Possession of Firearm by Someone Subject to Substantial Risk Order in Virginia
Any person who possess, purchases or transports a firearm while prohibited from doing so by a Substantial Risk Order can be charged with a Class 1 misdemeanor. This offense 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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