4110 Chain Bridge Road, Suite 114 Fairfax, VA 22030
Steve T. Descano Fairfax Commonwealth's Attorney
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WHAT IS A RED FLAG ORDER?
In 2020, Virginia passed a Red Flag Law that enables law enforcement to temporarily remove weapons from someone who may pose a danger to themselves or others. Commonly known as Red Flag Orders, in Virginia they are known as Emergency Substantial Risk Orders (ESROs). An ESRO lasts for 14 days, after which the order may be extended at a court hearing. The subsequent Substantial Risk Order (SRO) can be granted for up to 180 days and can be extended beyond that through the court process.
Concerned community or family members can initiate an ESRO by notifying the police department or the commonwealth’s attorney. Police then conduct an independent investigation and, if there is enough evidence, obtain an ESRO from a magistrate or judge.
ESROs are obtained ex parte (meaning the respondents are not present, since time is of the essence) and then served to respondents, who must turn over any firearms at that time to police. The respondent is informed of their upcoming court date (as of May 2023, the latest possible Thursday that still falls within the 14-day window) and that they are not allowed to possess, purchase, or transport firearms until the order expires.
On the day of the court hearing, which happens in the Fairfax County Circuit Court, a judge will determine whether to grant an SRO after the ESRO expires, thereby extending the order for up to 180 days. The Commonwealth’s Attorney must present clear and convincing evidence that the respondent still presents a substantial risk of personal injury to themselves or others; the respondent can have an attorney and put on a defense. Evidence presented during the hearing may include calling witnesses, including the detectives who investigated and served the original ESRO or family members.
As the SRO expires, the Commonwealth will determine if evidence shows the respondent still presents a danger and whether it is in the safety interests of the community to extend the SRO. If the Commonwealth requests an extension, there is another court hearing and evidence provided, at which the judge can grant an extension for up to 180 days.
FREQUENTLY ASKED QUESTIONS
Who can seek an ESRO?
Family members, roommates, guardians, partners, and dates can all report a potential gun tragedy. Police officers and mental health professionals are also qualified to make reports.
Are there criminal penalties for having an ESRO taken out against you?
An ESRO is a civil order, not criminal. However, criminal charges can be brought if a respondent possesses or buys firearms while expressly prohibited under the order.
Why would an SRO not be granted/extended?
There are many reasons that an SRO may not be granted at a court hearing.
It may be that the immediate danger has passed and there is no longer a need.
There may be other protective mechanisms in place so that an SRO is unnecessary. For example, some protective orders prohibit possessing firearms and last for up to two years, longer than the 180 days of an SRO.
Because of ESROs’ short turnaround, witnesses cannot always make it to court on the required day. That usually results in an extension of the ESRO and another court date set.
What happens if the respondent doesn’t turn over their firearms voluntarily?
If the respondent does not turn over their firearms when they are served with the ESRO, police will obtain a search warrant from a magistrate and return to seize the firearms temporarily. The Virginia Red Flag Law requires that these be separate steps.
Can an SRO be extended indefinitely?
There is no limit to how many times an SRO can be extended. However, there must be clear and convincing evidence that the respondent continues to be a danger into the future; an SRO cannot be extended based on just the same facts of the case.