How Do I Get Rights Restored in Virginia?
Full Question:
Answer:
It is possible for a person to petition the general district court in the city or county in which he resides to restore his right to purchase, possess or transport a firearm. For further information, please contact:
Micah Womack, Restoration of Rights Director
Office of the Secretary of the Commonwealth
Post Office Box 2454
Richmond, Virginia 23218-2454
(804) 692-2531
Please see the following VA statutes:
§ 18.2-308.1:3. Purchase, possession or transportation of
firearm by persons involuntarily admitted or ordered to
outpatient treatment; penalty.
A. It shall be unlawful for any person involuntarily
admitted to a facility or ordered to mandatory outpatient
treatment pursuant to § 19.2-169.2, involuntarily admitted
to a facility or ordered to mandatory outpatient treatment
as the result of a commitment hearing pursuant to Article 5
(§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, or who was
the subject of a temporary detention order pursuant to
§ 37.2-809 and subsequently agreed to voluntary admission
pursuant to § 37.2-805 to purchase, possess or transport a
firearm. A violation of this subsection shall be punishable
as a Class 1 misdemeanor.
B. Any person prohibited from purchasing, possessing or
transporting firearms under this section may, at any time
following his release from involuntary admission to a
facility, his release from an order of mandatory outpatient
treatment, or his release from voluntary admission pursuant
to § 37.2-805 following the issuance of a temporary
detention order, petition the general district court in the
city or county in which he resides to restore his right to
purchase, possess or transport a firearm. If the court
determines that the circumstances regarding the disabilities
referred to in subsection A and the person's criminal
history, treatment record, and reputation are such that the
person will not likely act in a manner dangerous to public
safety and that granting the relief would not be contrary to
the public interest, the court shall grant the petition. Any
person denied relief by the general district court may
petition the circuit court for a de novo review of the
denial. Upon a grant of relief in any court, the court shall
enter a written order granting the petition, in which event
the provisions of subsection A shall no longer apply. The
clerk of court shall certify and forward forthwith to the
Central Criminal Records Exchange, on a form provided by the
Exchange, a copy of any such order.
Section 18.2-308.2:2. Criminal history record information check required
for the transfer of certain firearms.
A. Any person purchasing from a dealer a firearm as herein defined shall
consent in writing, on a form to be provided by the Department of State
Police, to have the dealer obtain criminal history record information. Such
form shall include only the written consent; the name, birth date, gender,
race, citizenship, and social security number and/or any other identification
number; the number of firearms by category intended to be sold, rented,
traded, or transferred; and answers by the applicant to the following
questions: (i) has the applicant been convicted of a felony offense or found
guilty or adjudicated delinquent as a juvenile 14 years of age or older at
the time of the offense of a delinquent act that would be a felony if
committed by an adult; (ii) is the applicant subject to a court order
restraining the applicant from harassing, stalking, or threatening the
applicant's child or intimate partner, or a child of such partner, or is the
applicant subject to a protective order; and (iii) has the applicant ever
been acquitted by reason of insanity and prohibited from purchasing,
possessing or transporting a firearm pursuant to Section 18.2-308.1:1 or any
substantially similar law of any other jurisdiction, been adjudicated legally
incompetent, mentally incapacitated or adjudicated an incapacitated person
and prohibited from purchasing a firearm pursuant to Section 18.2-308.1:2 or
any substantially similar law of any other jurisdiction, or been
involuntarily admitted to an inpatient facility or involuntarily ordered to
outpatient mental health treatment and prohibited from purchasing a firearm
pursuant to Section 18.2-308.1:3 or any substantially similar law of any
other jurisdiction.
B. 1. No dealer shall sell, rent, trade or transfer from his inventory any
such firearm to any other person who is a resident of Virginia until he has
(i) obtained written consent and the other information on the consent form
specified in subsection A, and provided the Department of State Police with
the name, birth date, gender, race, citizenship, and social security and/or
any other identification number and the number of firearms by category
intended to be sold, rented, traded or transferred and (ii) requested
criminal history record information by a telephone call to or other
communication authorized by the State Police and is authorized by
subdivision 2 of this subsection to complete the sale or other such transfer. To
establish personal identification and residence in Virginia for purposes of
this section, a dealer must require any prospective purchaser to present one
photo-identification form issued by a governmental agency of the Commonwealth
or by the United States Department of Defense, and other documentation of
residence. Except where the photo-identification was issued by the
United States Department of Defense, the other documentation of residence shall show
an address identical to that shown on the photo-identification form, such as
evidence of currently paid personal property tax or real estate tax, or a
current (a) lease, (b) utility or telephone bill, (c) voter registration
card, (d) bank check, (e) passport, (f) automobile registration, or (g)
hunting or fishing license; other current identification allowed as evidence
of residency by Part 178.124 of Title 27 of the Code of Federal Regulations
and ATF Ruling 2001-5; or other documentation of residence determined to be
acceptable by the Department of Criminal Justice Services, that corroborates
that the prospective purchaser currently resides in Virginia. Where the
photo-identification was issued by the Department of Defense, permanent
orders assigning the purchaser to a duty post in Virginia shall be the only
other required documentation of residence. For the purposes of this
section and establishment of residency for firearm purchase, residency shall be
deemed to be the permanent duty post of a member of the armed forces. When
the photo-identification presented to a dealer by the prospective purchaser
is a driver's license or other photo-identification issued by the Department
of Motor Vehicles, and such identification form contains a date of issue, the
dealer shall not, except for a renewed driver's license or other
photo-identification issued by the Department of Motor Vehicles, sell or
otherwise transfer a firearm to the prospective purchaser until 30 days after
the date of issue of an original or duplicate driver's license unless the
prospective purchaser also presents a copy of his Virginia Department of
Motor Vehicles driver's record showing that the original date of issue of the
driver's license was more than 30 days prior to the attempted purchase.
In addition, no dealer shall sell, rent, trade or transfer from his
inventory any assault firearm to any person who is not a citizen of the
United States or who is not a person lawfully admitted for permanent
residence. To establish citizenship or lawful admission for a permanent
residence for purposes of purchasing an assault firearm, a dealer shall
require a prospective purchaser to present a certified birth certificate or a
certificate of birth abroad issued by the United States State Department, a
certificate of citizenship or a certificate of naturalization issued by the
United States Citizenship and Immigration Services, an unexpired U.S.
passport, a United States citizen identification card, a current voter
registration card, a current selective service registration card, or an
immigrant visa or other documentation of status as a person lawfully admitted
for permanent residence issued by the United States Citizenship and
Immigration Services.
Upon receipt of the request for a criminal history record information
check, the State Police shall (1) review its criminal history record
information to determine if the buyer or transferee is prohibited from
possessing or transporting a firearm by state or federal law, (2) inform the
dealer if its record indicates that the buyer or transferee is so prohibited,
and (3) provide the dealer with a unique reference number for that inquiry.
2. The State Police shall provide its response to the requesting dealer
during the dealer's request, or by return call without delay. If the criminal
history record information check indicates the prospective purchaser or
transferee has a disqualifying criminal record or has been acquitted by
reason of insanity and committed to the custody of the Commissioner of
Behavioral Health and Developmental Services, the State Police shall have until the
end of the dealer's next business day to advise the dealer if its records
indicate the buyer or transferee is prohibited from possessing or
transporting a firearm by state or federal law. If not so advised by the end
of the dealer's next business day, a dealer who has fulfilled the
requirements of subdivision 1 of this subsection may immediately complete the
sale or transfer and shall not be deemed in violation of this section with
respect to such sale or transfer. In case of electronic failure or other
circumstances beyond the control of the State Police, the dealer shall be
advised immediately of the reason for such delay and be given an estimate of
the length of such delay. After such notification, the State Police shall, as
soon as possible but in no event later than the end of the dealer's next
business day, inform the requesting dealer if its records indicate the buyer
or transferee is prohibited from possessing or transporting a firearm by
state or federal law. A dealer who fulfills the requirements of subdivision 1
of this subsection and is told by the State Police that a response will not
be available by the end of the dealer's next business day may immediately
complete the sale or transfer and shall not be deemed in violation of this
section with respect to such sale or transfer.
3. Except as required by subsection D of Section 9.1-132, the State Police
shall not maintain records longer than 30 days, except for multiple handgun
transactions for which records shall be maintained for 12 months, from any
dealer's request for a criminal history record information check pertaining
to a buyer or transferee who is not found to be prohibited from possessing
and transporting a firearm under state or federal law. However, the log on
requests made may be maintained for a period of 12 months, and such log shall
consist of the name of the purchaser, the dealer identification number, the
unique approval number and the transaction date.
4. On the last day of the week following the sale or transfer of any
firearm, the dealer shall mail or deliver the written consent form required
by subsection A to the Department of State Police. The State Police shall
immediately initiate a search of all available criminal history record
information to determine if the purchaser is prohibited from possessing or
transporting a firearm under state or federal law. If the search discloses
information indicating that the buyer or transferee is so prohibited from
possessing or transporting a firearm, the State Police shall inform the chief
law-enforcement officer in the jurisdiction where the sale or transfer
occurred and the dealer without delay.
5. Notwithstanding any other provisions of this section, rifles and
shotguns may be purchased by persons who are citizens of the United States or
persons lawfully admitted for permanent residence but residents of other
states under the terms of subsections A and B upon furnishing the dealer with
proof of citizenship or status as a person lawfully admitted for permanent
residence and one photo-identification form issued by a governmental agency
of the person's state of residence and one other form of identification
determined to be acceptable by the Department of Criminal Justice Services.
6. For the purposes of this subsection, the phrase "dealer's next business
day" shall not include December 25.
C. No dealer shall sell, rent, trade or transfer from his inventory any
firearm, except when the transaction involves a rifle or a shotgun and can be
accomplished pursuant to the provisions of subdivision B 5 to any person who
is not a resident of Virginia unless he has first obtained from the
Department of State Police a report indicating that a search of all available
criminal history record information has not disclosed that the person is
prohibited from possessing or transporting a firearm under state or federal
law. The dealer shall obtain the required report by mailing or delivering the
written consent form required under subsection A to the State Police within
24 hours of its execution. If the dealer has complied with the provisions of
this subsection and has not received the required report from the State
Police within 10 days from the date the written consent form was mailed to
the Department of State Police, he shall not be deemed in violation of this
section for thereafter completing the sale or transfer.
D. Nothing herein shall prevent a resident of the Commonwealth, at his
option, from buying, renting or receiving a firearm from a dealer in Virginia
by obtaining a criminal history record information check through the dealer
as provided in subsection C.
E. If any buyer or transferee is denied the right to purchase a firearm
under this section, he may exercise his right of access to and review and
correction of criminal history record information under Section 9.1-132 or
institute a civil action as provided in Section 9.1-135, provided any such
action is initiated within 30 days of such denial.
F. Any dealer who willfully and intentionally requests, obtains, or seeks
to obtain criminal history record information under false pretenses, or who
willfully and intentionally disseminates or seeks to disseminate criminal
history record information except as authorized in this section shall be
guilty of a Class 2 misdemeanor.
G. For purposes of this section:
"Actual buyer" means a person who executes the consent form required in
subsection B or C, or other such firearm transaction records as may be
required by federal law.
"Antique firearm" means:
1. Any firearm (including any firearm with a matchlock, flintlock,
percussion cap, or similar type of ignition system) manufactured in or before
1898;
2. Any replica of any firearm described in subdivision 1 of this
definition if such replica (i) is not designed or redesigned for using
rimfire or conventional centerfire fixed ammunition or (ii) uses rimfire or
conventional centerfire fixed ammunition that is no longer manufactured in
the United States and that is not readily available in the ordinary channels
of commercial trade;
3. Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading
pistol that is designed to use black powder, or a black powder substitute,
and that cannot use fixed ammunition. For purposes of this subdivision, the
term "antique firearm" shall not include any weapon that incorporates a
firearm frame or receiver, any firearm that is converted into a
muzzle-loading weapon, or any muzzle-loading weapon that can be readily
converted to fire fixed ammunition by replacing the barrel, bolt,
breech-block, or any combination thereof; or
4. Any curio or relic as defined in this subsection.
"Assault firearm" means any semi-automatic center-fire rifle or pistol
which expels single or multiple projectiles by action of an explosion of a
combustible material and is equipped at the time of the offense with a
magazine which will hold more than 20 rounds of ammunition or designed by the
manufacturer to accommodate a silencer or equipped with a folding stock.
"Curios or relics" means firearms that are of special interest to
collectors by reason of some quality other than is associated with firearms
intended for sporting use or as offensive or defensive weapons. To be
recognized as curios or relics, firearms must fall within one of the
following categories:
1. Firearms that were manufactured at least 50 years prior to the current
date, which use rimfire or conventional centerfire fixed ammunition that is
no longer manufactured in the United States and that is not readily available
in the ordinary channels of commercial trade, but not including replicas
thereof;
2. Firearms that are certified by the curator of a municipal, state, or
federal museum that exhibits firearms to be curios or relics of museum
interest; and
3. Any other firearms that derive a substantial part of their monetary
value from the fact that they are novel, rare, bizarre, or because of their
association with some historical figure, period, or event. Proof of
qualification of a particular firearm under this category may be established
by evidence of present value and evidence that like firearms are not
available except as collectors' items, or that the value of like firearms
available in ordinary commercial channels is substantially less.
"Dealer" means any person licensed as a dealer pursuant to
18 U.S.C. Section 921 et seq.
"Firearm" means any handgun, shotgun, or rifle that will or is designed to
or may readily be converted to expel single or multiple projectiles by action
of an explosion of a combustible material.
"Handgun" means any pistol or revolver or other firearm originally
designed, made and intended to fire single or multiple projectiles by means
of an explosion of a combustible material from one or more barrels when held
in one hand.
"Lawfully admitted for permanent residence" means the status of having
been lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the immigration laws, such status
not having changed.
H. The Department of Criminal Justice Services shall promulgate
regulations to ensure the identity, confidentiality and security of all
records and data provided by the Department of State Police pursuant to this
section.
I. The provisions of this section shall not apply to (i) transactions
between persons who are licensed as firearms importers or collectors,
manufacturers or dealers pursuant to 18 U.S.C. Section 921 et seq.; (ii)
purchases by or sales to any law-enforcement officer or agent of the
United States, the Commonwealth or any local government; or (iii) antique firearms,
curios or relics.
J. The provisions of this section shall not apply to restrict purchase,
trade or transfer of firearms by a resident of Virginia when the resident of
Virginia makes such purchase, trade or transfer in another state, in which
case the laws and regulations of that state and the United States governing
the purchase, trade or transfer of firearms shall apply. A National Instant
Criminal Background Check System (NICS) check shall be performed prior to
such purchase, trade or transfer of firearms.
J1. All licensed firearms dealers shall collect a fee of $2 for every
transaction for which a criminal history record information check is required
pursuant to this section, except that a fee of $5 shall be collected for
every transaction involving an out-of-state resident. Such fee shall be
transmitted to the Department of State Police by the last day of the month
following the sale for deposit in a special fund for use by the State Police
to offset the cost of conducting criminal history record information checks
under the provisions of this section.
K. Any person willfully and intentionally making a materially false
statement on the consent form required in subsection B or C or on such
firearm transaction records as may be required by federal law, shall be
guilty of a Class 5 felony.
L. Except as provided in Section 18.2-308.2:1, any dealer who willfully
and intentionally sells, rents, trades or transfers a firearm in violation of
this section shall be guilty of a Class 6 felony.
L1. Any person who attempts to solicit, persuade, encourage, or entice any
dealer to transfer or otherwise convey a firearm other than to the actual
buyer, as well as any other person who willfully and intentionally aids or
abets such person, shall be guilty of a Class 6 felony. This subsection shall
not apply to a federal law-enforcement officer or a law-enforcement officer
as defined in Section 9.1-101, in the performance of his official duties, or
other person under his direct supervision.
M. Any person who purchases a firearm with the intent to (i) resell or
otherwise provide such firearm to any person who he knows or has reason to
believe is ineligible to purchase or otherwise receive from a dealer a
firearm for whatever reason or (ii) transport such firearm out of the
Commonwealth to be resold or otherwise provided to another person who the
transferor knows is ineligible to purchase or otherwise receive a firearm,
shall be guilty of a Class 5 felony. However, if the violation of this
subsection involves such a transfer of more than one firearm, the person
shall be sentenced to a mandatory minimum term of imprisonment of five years.
N. Any person who is ineligible to purchase or otherwise receive or
possess a firearm in the Commonwealth who solicits, employs or assists any
person in violating subsection M shall be guilty of a Class 5 felony and
shall be sentenced to a mandatory minimum term of imprisonment of five years.
O. All driver's licenses issued on or after July 1, 1994, shall carry a
letter designation indicating whether the driver's license is an original,
duplicate or renewed driver's license.
P. Except as provided in subdivisions 1, 2, and 3 of this subsection, it
shall be unlawful for any person who is not a licensed firearms dealer to
purchase more than one handgun within any 30-day period. A violation of this
subsection shall be punishable as a Class 1 misdemeanor.
1. Purchases in excess of one handgun within a 30-day period may be made
upon completion of an enhanced background check, as described herein, by
special application to the Department of State Police listing the number and
type of handguns to be purchased and transferred for lawful business or
personal use, in a collector series, for collections, as a bulk purchase from
estate sales and for similar purposes. Such applications shall be signed
under oath by the applicant on forms provided by the Department of State
Police, shall state the purpose for the purchase above the limit, and shall
require satisfactory proof of residency and identity. Such application shall
be in addition to the firearms sales report required by the Bureau of
Alcohol, Tobacco and Firearms (ATF). The Superintendent of State Police shall
promulgate regulations, pursuant to the Administrative Process Act (Section
2.2-4000 et seq.), for the implementation of an application process for
purchases of handguns above the limit.
Upon being satisfied that these requirements have been met, the Department
of State Police shall forthwith issue to the applicant a nontransferable
certificate, which shall be valid for seven days from the date of issue. The
certificate shall be surrendered to the dealer by the prospective purchaser
prior to the consummation of such sale and shall be kept on file at the
dealer's place of business for inspection as provided in Section 54.1-4201
for a period of not less than two years. Upon request of any local
law-enforcement agency, and pursuant to its regulations, the Department of
State Police may certify such local law-enforcement agency to serve as its
agent to receive applications and, upon authorization by the Department of
State Police, issue certificates forthwith pursuant to this
subsection. Applications and certificates issued under this subsection shall be
maintained as records as provided in subdivision B 3. The Department of State
Police shall make available to local law-enforcement agencies all records
concerning certificates issued pursuant to this subsection and all records
provided for in subdivision B 3.
2. The provisions of this subsection shall not apply to:
a. A law-enforcement agency;
b. An agency duly authorized to perform law-enforcement duties;
c. State and local correctional facilities;
d. A private security company licensed to do business within the
Commonwealth;
e. The purchase of antique firearms as herein defined;
f. A person whose handgun is stolen or irretrievably lost who deems it
essential that such handgun be replaced immediately. Such person may purchase
another handgun, even if the person has previously purchased a handgun within
a 30-day period, provided (i) the person provides the firearms dealer with a
copy of the official police report or a summary thereof, on forms provided by
the Department of State Police, from the law-enforcement agency that took the
report of the lost or stolen handgun; (ii) the official police report or
summary thereof contains the name and address of the handgun owner, the
description of the handgun, the location of the loss or theft, the date of
the loss or theft, and the date the loss or theft was reported to the
law-enforcement agency; and (iii) the date of the loss or theft as reflected
on the official police report or summary thereof occurred within 30 days of
the person's attempt to replace the handgun. The firearms dealer shall attach
a copy of the official police report or summary thereof to the original copy
of the Virginia firearms transaction report completed for the transaction and
retain it for the period prescribed by the Department of State Police;
g. A person who trades in a handgun at the same time he makes a handgun
purchase and as a part of the same transaction, provided that no more than
one transaction of this nature is completed per day;
h. A person who holds a valid Virginia permit to carry a concealed
handgun;
i. A person who purchases a handgun in a private sale. For purposes of
this subdivision, a private sale means purchase from a person who makes
occasional sales, exchanges or purchases of firearms for the enhancement of a
personal collection of curios or relics as herein defined, or who sells all
or part of such collection of curios and relics; or
j. A law-enforcement officer. For purposes of this subdivision, a
law-enforcement officer means any employee of a police department or
sheriff's office that is part of or administered by the Commonwealth or any
political subdivision thereof, and who is responsible for the prevention and
detection of crime and the enforcement of the penal, traffic or highway laws
of the Commonwealth.
3. For the purposes of this subsection, "purchase" shall not include the
exchange or replacement of a handgun by a seller for a handgun purchased from
such seller by the same person seeking the exchange or replacement within the
30-day period immediately preceding the date of exchange or replacement.
