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Virginia's Red Flag Law: The Basics of a Substantial Risk Order

Posted by George L. Freeman | Jun 29, 2020

The Second Amendment guarantees individuals the right to keep and bear arms.  It has been the law in our country, however, that a person may forfeit that right upon conviction of a felony or similarly treated offense under both state and federal law.  Effective July 1, 2020, Virginia has added another scenario in which a person may have their Second Amendment right to possess and use a firearm taken away for a non-criminal "offense" with an evidentiary threshold less than beyond a reasonable doubt.  Here is how the law works:

An Emergency Substantial Risk Order may be issued upon the petition of the Attorney for the Commonwealth (local prosecutor) or law enforcement officer.  This petition may be sought only after an investigation has been completed by law enforcement.  Based on that investigation, and a supporting affidavit, if any judge or magistrate finds probable cause "to believe that a person poses a substantial risk of personal injury to himself or others in the near future by such person's possession or acquisition of a firearm" the order will be issued barring them from possessing, purchasing, or transporting a firearm.  Any firearms previously lawfully possessed would be turned over to law enforcement.  An Emergency Substantial Risk Order is valid for 14 days, unless good cause exists to continue the duration of the order.

Within the duration of the Emergency Substantia Risk Order, the respondent has the right to a full hearing on the merits.  A circuit court judge will hear the case and determine whether the order should be entered as a Substantial Risk Order.  If the petition is ultimately granted, a Substantial Risk Order is effective in 180 day increments.  It can be dissolved, extended, or run its duration.  The standard of proof is clear and convincing evidence.  A person whose firearms are forfeited by virtue of the order may arrange for a third party to take possession of them.  Also, the person subject to the order may petition once during the duration of each order for the order to be dissolved.

There are criminal penalties for violating an emergency substantial risk order or a substantial risk order, including for assisting another who is subject to such an order in possessing or otherwise acquiring a firearm.  Some of those penalties are felonies and carry mandatory minimum jail or prison terms.  It is also a misdemeanor to make a materially false statement to law enforcement investigating a case regarding the potential petition for a substantial risk order.  

It is understandable that the Commonwealth wants to prevent tragedy by removing from those persons who are dangerous their right to possess firearms.  But the Second Amendment is a fundamental right and cannot just be tossed aside.  Virginia now seems ready to take your right to possess a firearm with proof less than that necessary to be convicted of a traffic infraction - proof beyond a reasonable doubt.  Instead, if the court finds the evidence to be clear and convincing, a lesser standard, you will lose, at least for increments of up to six months, your rights under the Second Amendment.  What's more, you may never have been charged with a crime.  The loss of fundamental rights historically has not been predicated on a civil finding that you may be dangerous.  Now it is.  

If you are the respondent to a Substantial Risk Order petition, contact a Fairfax Criminal Defense Attorney today.  George Freeman will gladly discuss your case with you.

About the Author

George L. Freeman

I was born and raised in Fairfax County.  I graduated from Fairfax High School and then from Virginia Tech.  After spending a few years as a bail bondsman and court clerk, I attended the University of Baltimore, School of Law.  I graduated in 2010 with a Juris Doctor, manga cum laude. I spent 9 ...

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