Since 2020, Virginia has followed the path of other states in enacting Substantial Risk Order legislation, commonly known as Red Flag laws. While many people are familiar with Red Flag legislation by its popular name, most remain in the dark about the true nature of the law.
To begin, there are two functional parts of the code that are commonly referred to as Red Flag: Emergency Substantial Risk Order (ESRO) and Substantial Risk Order (SRO). ESROs are 14-day orders that bar firearm possession based on a petition from a law enforcement officer or Commonwealth’s Attorney. They proscribe voluntary relinquishment of firearms before a search warrant can be issued for forcible recovery. A Substantial Risk Order (SRO) is an order issued by a Circuit Court after evidence is presented by the local Commonwealth’s Attorney. The burden of proof is by clear and convincing evidence and the order may be issued for up to 180 days.
While 180 days is the maximum, an SRO may be issued for a shorter, specified length of time so long as it does not exceed 180 days. The Commonwealth’s Attorney in the appropriate jurisdiction may request to extend the SRO an unlimited number of times. Each extension must be based on clear and convincing evidence that the person continues to pose a substantial risk of personal injury to himself or others in the near future by such person’s possession or acquisition of a firearm at the time of the extension request.
While there are no limits to the number of extensions that may be requested or issued beyond the need for ongoing clear and convincing evidence, the individual who is subject to the order may file a motion to dissolve the order once during the duration of each 180-day period. The motion cannot be filed earlier than 30 days from date of issuance of the SRO.
The penultimate question is what happens to the firearms once an ESRO or SRO is granted. Initially, the subject is afforded the opportunity to voluntarily relinquish his or her firearms. However, law enforcement officers may obtain a search warrant for firearms if there is reason to believe the subject still has any in his or her possession. The subject of the SRO or ESRO may transfer the relinquished firearm to any person 21 years-old or older if the person is allowed to legally possess the firearm.
To the person who is facing an SRO, the process and potential forfeiture of his or her civil right can feel like a daunting proposition. Unlike criminal matters, most circuit courts take the position that the code does not allow the appointment of counsel for the respondent in the SRO hearing, unless the respondent is under a disability that allows for the appointment of a Guardian Ad Litem.
In February of this year, a Republican-led House panel vote approved a measure that would repeal Virginia’s red flag laws in order to restore constitutional rights. A month later, a Senate panel rejected this effort, allowing law enforcement to continue to employ the legislation.
Attorney Sean Breit-Rupe, formerly an Assistant Commonwealth’s Attorney for Henrico County, led the office’s threat assessment team.