Substantial Risk Orders Flashcards
(18 cards)
What is the standard for issuing an initial Substantial Risk order regarding firearms?
Probable cause to believe the person poses a substantial risk of harm to themselves or others in the near future by possessing or acquiring a firearm.
How is “near future” interpreted for substantial risk orders?
It’s based on circumstances. Two days could qualify, while a year likely wouldn’t. The time frame between these extremes depends on the specific facts.
Who is authorized to file a complaint for a substantial risk order?
Only a Law Enforcement Officer (LEO) or a Commonwealth’s Attorney (CA). Cannot issue one on their own motion, and a private citizen cannot file the complaint.
What does a substantial risk order prohibit the subject from doing?
It prohibits the person from purchasing, possessing, or transporting a firearm.
What kind of evidence is considered for a substantial risk order?
Any relevant evidence, specifically including any recent act or threat of violence, force, or threat as defined under VA Code § 19.2-152.7:1 (acts causing/threatening bodily injury, death, sexual assault, stalking, etc.).
What specific directives must be included in the statement of a substantial risk order regarding firearms?
The order must state that the person must surrender their concealed weapon license (if any) and turn over all firearms in their possession. They may be asked to relinquish them voluntarily first.
How must a substantial risk order be served before it becomes effective?
It must be personally served on the individual subject to the order.
What is required when firearms are turned over pursuant to a substantial risk order?
An inventory of the firearms turned over must be submitted. This submission must be made under oath and supported by an affidavit.
How long does an initial substantial risk order last?
It expires at 11:59 PM on the 14th day after issuance. If the Circuit Court is closed on the 14th day (weekend, holiday), it expires on the next day court is in session.
Can the subject of a substantial risk order challenge it before it expires?
Yes, the person subject to the order may file a motion to dissolve the order at any time
Where is the proper venue for a substantial risk order case?
Venue is proper in the jurisdiction where the person has their principal residence OR where the conduct forming the basis of the order occurred.
What must happen in the Circuit Court? What standard of proof is used?
The Circuit Court MUST hold a hearing within 14 days (NO exceptions for court closures) to determine if the order should be extended. The standard of proof at this hearing is clear and convincing evidence.
Can the Circuit Court extend the substantial risk order after the hearing? For how long?
Yes, if clear and convincing evidence is found, the court can extend the prohibitions for up to 180 days at a time.
Who is explicitly NOT responsible for scheduling the Circuit Court hearing dates for these substantial risk orders?
Magistrates do NOT schedule the Circuit Court hearing dates. This is handled by the Circuit Court.
Is the type of weapon used in the underlying incident important (e.g., knife vs. gun)?
The specific means (weapon type) is less important than the person’s willingness to commit a violent act. An incident involving a knife can be just as relevant as one involving a gun for showing substantial risk.
How does the person’s bond status affect the substantial risk analysis?
Bond status (or lack thereof) should not significantly affect the analysis, as it can change after the initial determination.
If the person is incarcerated, what information becomes relevant to the substantial risk analysis?
The length of incarceration and the anticipated date of release are important factors to consider.
Investigation Requirement for Substantial Risk Order?
Requires independent law enforcement investigation; we do not evaluate their investigation other than that probable cause exists for the order.
