Virginia Red Flag Law: Petitions, Penalties, and Challenges

Virginia’s red flag law lets a court temporarily prohibit a person from buying, possessing, or transporting firearms when there is evidence they pose a substantial risk of harming themselves or someone else. Formally called a “substantial risk order,” it took effect on July 1, 2020, and works in two stages: a short emergency order issued without the subject present, followed by a hearing on a longer order that can last up to 180 days. A 2026 expansion, set to take effect July 1, 2026, significantly broadens who can ask a court for one.

Who Can Petition for an Order

From 2020 through mid-2026, only an attorney for the Commonwealth or a law enforcement officer could file a petition. Family members, clinicians, and others who saw warning signs had no direct path to court. They had to report their concerns to police, who then decided whether to investigate and whether the statutory threshold was met.¹

HB 901, passed during the 2026 legislative session, changes that. Starting July 1, 2026, the list of eligible petitioners expands to include licensed clinicians, immediate family or household members, intimate partners, school administrators, and representatives of school threat assessment teams, in addition to law enforcement and prosecutors.²

The Emergency Order

A petition for an emergency substantial risk order is filed under oath, supported by an affidavit, in a circuit court, general district court, or juvenile and domestic relations district court in the jurisdiction where the subject lives or acted. Before filing, law enforcement must conduct an independent investigation and determine that grounds exist.³

Emergency orders are ex parte. A judge or magistrate decides whether to issue one without the subject being present or notified in advance. The standard is probable cause to believe the person “poses a substantial risk of personal injury to himself or others in the near future” through the possession or acquisition of a firearm. Recent acts of violence, force, or threats are among the evidence a court will consider.³

The order takes effect once it is personally served on the subject. At service, the subject is given the chance to voluntarily turn over all firearms to law enforcement, which provides a written receipt. If officers have reason to believe weapons were held back, they may seek a search warrant. The emergency order expires at 11:59 p.m. on the fourteenth day after it is issued.³

The Full Order Hearing

Before the emergency order runs out, a circuit court must hold a hearing on whether a longer substantial risk order is justified. The Commonwealth now faces a higher burden: clear and convincing evidence that the person continues to pose a substantial risk. If the court finds that standard met, it can issue an order lasting up to 180 days.⁴

Before that period expires, a prosecutor or law enforcement officer can seek another 180-day extension, again under the clear and convincing evidence standard. The statute places no cap on how many extensions may be sought. The subject has one chance to file a motion to dissolve the order during its term, but not until at least 30 days after it was issued.⁴

Penalties for Violating an Order

Purchasing, possessing, or transporting a firearm while subject to a substantial risk order is a Class 1 misdemeanor.⁵ Transferring a firearm to someone the transferor knows is subject to such an order is a Class 4 felony.⁶

Getting Firearms Back

When an order expires, is dissolved, or the court finds the person no longer poses a risk, the subject can request the return of relinquished firearms. The request must be in writing and include the receipt issued when the weapons were turned over. The law enforcement agency then has five days to return them, after confirming the person is not under any order and is not otherwise prohibited from possessing firearms. If no request is made within 120 days after the order ends, the agency may dispose of the weapons.⁷

There is also a way to move the firearms during an active order. The subject or their legal representative can petition the court to transfer the weapons to an eligible third party who is at least 21 years old, is not prohibited from possessing firearms, and does not live with the subject. The Commonwealth’s attorney must verify the transferee’s eligibility before the court approves the transfer.⁴

How Often the Law Is Used

Use has grown steadily. In the law’s first two years, from July 2020 through June 2022, Virginia courts issued 281 emergency substantial risk orders and 173 full orders, roughly 12 emergency orders and seven full orders per month.⁸ By September 2, 2025, authorities statewide had obtained 1,994 emergency orders since the law took effect.⁹

Use is heavily concentrated. In the first two years, the ten localities issuing the most orders accounted for 73 percent of all emergency orders. Fairfax County led all jurisdictions with 362 orders through July 2025. Portsmouth, a city of roughly 97,000, sought only one order in the law’s first five years, and most Virginia localities did not use the law at all in 2024.⁹

The gap between what the law allows and what it was used for drew sharp attention after a February 2025 shooting at a Harris Teeter in Crozet. Justin M. Barbour, 28, killed two people with an AR-15 before an off-duty federal officer stopped him. Albemarle County Police had four prior contacts with Barbour. In December 2024, his family sought an Emergency Custody Order over mental health concerns, but a magistrate denied it for lack of a credible threat, and a mental health response team visited him in January 2025. Police Chief Sean Reeves said Barbour “presented a calm demeanor” in all four interactions, with “no indication or evidence of violence, threats, or self-harm,” so the threshold for an emergency substantial risk order was not met.¹⁰ The case underscored why the 2026 expansion matters: under the old rules, family members who were alarmed had no independent path to a court.

Legal Challenges

HB 901 was part of a package of 25 gun-reform measures passed in the 2026 session.¹¹ Governor Abigail Spanberger proposed amendments to several bills in the package on April 13, 2026, and signed others outright.¹² The Virginia Citizens Defense League has said it is preparing legal challenges to the 2026 reforms. Gun Owners of America, the Gun Owners Foundation, and VCDL have already obtained a preliminary injunction in Crump v. Katz blocking enforcement of the assault weapons and magazine bans; that ruling does not directly address the red flag expansion but is part of the broader litigation surrounding the session.¹³

Red flag laws nationally have been challenged on both Second Amendment and due process grounds, with scholars generally treating due process as the more serious question. The main due process concern is the ex parte stage: a person’s firearms can be seized based on a probable-cause finding without prior notice or a hearing. Second Amendment arguments draw on District of Columbia v. Heller (2008) to argue against disarming someone who has not been convicted of a crime.¹⁴ Courts in other states have consistently upheld their own red flag statutes. Indiana’s Court of Appeals upheld the state’s law in 2013, Connecticut’s Appellate Court called its statute a “presumptively lawful regulatory measure” in 2016, and a Florida appeals court in 2019 found that state’s law narrowly tailored to address the “urgent and compelling state interest” of preventing mass shootings.¹⁵

1
City of Alexandria. Virginia Red Flag Law
2
Giffords Law Center. Extreme Risk Protection Orders in Virginia
3
Virginia Code Commission. Code of Virginia § 19.2-152.13
4
Virginia Code Commission. Code of Virginia § 19.2-152.14
5
Virginia Code Commission. Code of Virginia § 18.2-308.1:6
6
Virginia Legislative Information System. SB 240 Summary
7
FindLaw. Virginia Code § 19.2-152.15
8
ResearchGate. The First Two Years of Virginia’s Substantial Risk Order
9
Virginia Mercury. Localities Are Too Timid About Using Virginia Red Flag Law That Can Save Lives
10
29News. Red Flag Law Did Not Apply to Crozet Shooting Suspect, Police Say
11
The Trace. Virginia 25 Gun Reforms Spanberger
12
Virginia Mercury. Spanberger Amends, Signs Sweeping Gun Legislation Reshaping Virginia’s Firearm Laws
13
Gun Owners of America. Crump v. Katz Update
14
Virginia Law Review. Firearms, Extreme Risk, and Legal Design: Red Flag Laws and Due Process
15
News from the States. Would Virginia’s Red Flag Law Withstand Constitutional Scrutiny