Background

HB19-1177 Extreme Risk Protection Orders ERPO was introduced into the Colorado State Legislature on Feb 14, 2019. It was sponsored by Rep Tom Sullivan and Rep Alec Garnett in the state house. It passed the house on March 4, 2019 with every Republican and two Democrats voting against it. It was sponsored by Sen Lois Court and Sen Brittany Pettersen in the state senate, where it passed on March 28, 2019 with every Republican and one Democrat voting against it. This legislation had bi-partisan OPPOSITION. It was signed by Governor Jared Polis on April 12, 2019. It will become law on January 1, 2020.

Red Flag laws, also known as Extreme Risk Protection Orders or Gun Violence Restraining Orders, have been around since 1999, when Connecticut adopted theirs. This was followed by Indiana in 2005, California in 2014, Washington in 2016, and Oregon in 2017. In 2018 nine other states passed Red Flag ERPO laws, and in 2019 three states passed them, including Colorado.

What the public is being told about Colorado’s law

A family member or law enforcement officer would petition a court to request the ability to immediately seize a person’s guns. If a judge signs the order, the weapons can be taken away and the court must hold a hearing within 14 days to determine whether to extend the seizure and bar the person from purchasing more firearms. The longest a judge could order the seizure of firearms is 364 days. The entire process is a civil, not criminal, proceeding.

Who can petition the courts?

According to the bill summary and media reports, only family or household members, and law enforcement can petition the courts. But what is the definition of “family member” and “household member”?

According to the bill language, “family or household member” means:

Person related by blood, marriage, or adoption;

Person who has a child in common with the respondent, regardless of whether such person has been married to the respondent or has lived together with the respondent at any time;

Person who regularly resides or regularly resided with the respondent within the last six months;

Domestic partner of the respondent;

Person who has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren;

Person who is acting or has acted as the respondent’s legal guardian;

A person in any other relationship described in section 18-6-800.3 (2) with the respondent. [So, what does 18-6-800.3 (2) say? “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.]

What is needed to file the ERPO petition?

The filing of the ERPO petition can be done either in person or over the phone. The petition must be filed in the county court of where the accused lives – but since the petitioner can do it over the phone, they don’t even need to be in the same state. There is NO filing fee. The petitioner even has the option to not provide their address, and in certain cases, it can be done anonymously.

Questions that will be asked on the petition include how many firearms the person being accused has, what types, and where they are located. This doesn’t only include ownership – it also includes possession, custody, or control.

Petitioners are also asked to disclose if there are any other legal actions pending between parties, such as: current restraining orders, lawsuits, civil suits, custody cases, etc, but the existence of such cases shall not delay or prevent an ERPO from being granted.

What happens after the ERPO petition is filed?

Once an ERPO petition is filed, a hearing will be set either the same day or the next day. Once again, the petitioner (accuser) does not need to be present. They can attend this hearing over the phone. At this hearing, the petitioner will be asked to provide a “preponderance” of evidence. Preponderance is the lowest evidentiary threshold used in the court system. It is based on the more convincing evidence. But these hearings are ex-parte with only the accuser present, so there is no counterevidence presented.

What kind of evidence are they looking for? A recent act or credible threat of violence, even if such act does not involve use of a firearm. Self harm or threats of self harm within the past year. A prior violation of a protection order. A previous ERPO. Prior domestic violence convictions. Prior ARREST, even if not convicted, of a whole host of other crimes. Ownership, access to, or intent to purchase a firearm. Drug or alcohol abuse. Recent acquisition of a firearm or ammunition.

At this hearing the court will either approve or deny the ERPO. If it is denied, they must document reasoning for denial.

How will the ERPO be enacted?

Once the ERPO and warrant are in hand, it’s up to law enforcement how they take action, but these are judicial orders coming down from the courts. Law enforcement is required to carry out the orders. During the act of serving the ERPO on the accused, law enforcement must also determine if the individual should be put into a 72 hour involuntary commitment hold.

Once the firearms have been confiscated, the accused will be asked if they’d like to sell them, store them with law enforcement, or store them with a FFL. The accused’s information will also be added to the CBI and NICS database prohibiting them from purchasing guns.

The order will include a future court date for the permanent hearing. This will be the first opportunity the accused will have to speak on their own behalf.

The creation of a civil search warrant

Buried deep inside the bill language is one of the most unconstitutional pieces. They are creating a new type of search warrant in the state that would be specific to gun owners only: a civil search warrant. This civil search warrant would be issued along with the initial temporary ERPO.

Currently, with very few exceptions, search warrants are only issued for criminal reasons. According to mountains of existing case law, search warrants are granted by convincing a neutral and detached magistrate that they have probable cause to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there.

Very few civil search warrants have ever been issued, and the ones that have were in cases of intellectual property such as seizing computer files, and even those required clear and convincing evidence.

What happens at the 14 day ERPO hearing?

First, it’s important to understand this hearing is WITHIN 14 days. It could be in 3 days, or 6 days, or 14 days.

Prior to the hearing, the court will appoint an attorney or the accused can obtain their own or they can proceed self represented. Because no one has been charged with a crime, these are civil cases, not criminal. This means public defenders are not used, but instead the state would appoint one from a pool of attorneys who have agreed to work these cases.

During this hearing the petitioner and the accused will have the ability to provide evidence, call witnesses, cross examine witnesses, etc. Once again, the petitioner does not need to be present, and can provide sworn affidavits.

The judge will make their decision based on clear and convincing evidence.

At the end of the hearing, the judge will either dismiss the ERPO, and the firearm rights of the accused will be restored and their guns returned. Or the temporary ERPO will become a permanent ERPO. This would mean it will remain in effect for 364 days. The judge has the discretion to schedule hearings sooner than the 364 days if he or she believes the order should be lifted sooner. The accused also has ONE opportunity during that 364 day period to request a hearing. If they do request a hearing, the petitioner is alerted and that person can request it be denied.

What happens when the 364 days is up?

The petitioner will be alerted that the ERPO is going to expire, and they can request it be extended. If this happens, another hearing similar to the one at 14 days will take place. And it begins again.

What are the penalties?

Any person who has in his or her custody or control a firearm or purchases, possesses, or receives a firearm with knowledge that he or she is prohibited from doing so by an ERPO or temporary ERPO is guilty of a class 2 misdemeanor.

There are no penalties for false reports/false accusers.

Have ERPO’s worked in other states?

It’s difficult to say because the majority of the laws are so new.

States like California and Connecticut have still seen horrific mass shootings. Sandy Hook happened in Connecticut while they had a Red Flag law in place. California has seen a public mass shooting each year since theirs went into effect in 2014.

States like Indiana pointed to stats showing suicide by firearm was decreasing, but turns out it wasn’t. It was still increasing but not at the projected rate, so they consider that a win. In addition, suicide by other methods has skyrocketed and Indiana has dropped from 19th in the country for mental health in 2011, to 45th in 2015, and in both 2016 and 2017 suicide was the tenth leading cause of death for all residents over all demographics, and the leading cause for certain demographics. Their Red Flag law was enacted in 2005.

They are also used differently in various states, and this is largely because the laws from state to state vary so drastically.

Florida has seen ERPO’s used 5 times a day since the law went into effect mid-2018, with over 2000 firearms taken. In contrast, Oregon has received 132 extreme risk protection order petitions total through August 2019 and granted 107. Their law went into effect in 2017. These varying numbers are due to the process in which they are granted, as well as who is able to request them. Colorado’s law is one of the worst based on the broad range of people who can petition the courts as well as the low evidentiary threshold needed to grant one.

There is no mental health component

The claims that Colorado’s “Red Flag” ERPO law will help those in a suicidal crisis is disingenuous at best and dangerous at worst. Colorado’s law has no mental health component to it. The legislation asks law enforcement to enter the home of a suicidal individual who own firearms (forcibly if necessary), confiscate those firearms, and leave both the person in crisis and many other tools to follow through with the act of taking their own life.

This is not compassion. This is not empathetic. This is cruel.

If you are a firearm owner and are suicidal – or someone else in your home is suicidal – there are options. Hold My Guns is a private group who is working to partner with FFL’s and police departments to offer a place people can store firearms during a crisis (www.holdmyguns.org). In addition, Walk The Talk America offers non-crisis support to gun owners (www.WTTA.org).

And then there are the crisis lines:

National Suicide Prevention Lifeline: Call 1-800-273-8255, or chat online

Veterans Crisis Line: Call 1-800-273-8255 and press 1, text 838255, or chat online

There is deep concern within the firearms community that the existence of an ERPO law will make gun owners no longer reach out for help when they need it.

What about Second Amendment Sanctuary Counties?

Since the debate over the ERPO legislation began in spring of 2019, over 50 county sheriffs have come out publicly in opposition to the law as written in Colorado. Many of them still support the Red Flag concept, but after reading through the legislation that was passed in Colorado, they cannot support it. Their reasons vary from unconstitutionality, to worry of putting their officers and citizens in harms way, to worry about the abuse that will likely be rampant with the poorly written law.

37 counties have declared Second Amendment Sanctuary status. What this means varies from county to county.

In addition, the Denver Police Union and Aurora Police Union also opposed the law as written, citing constitutionality.

Constitutional Concerns

2nd Amendment aside, Colorado’s Red Flag law has many constitutional concerns.

The creation of a civil search warrant is a 4th Amendment violation.

The taking of property without due process is a 5th and 16th Amendment violation.

The inability to face your accuser or be heard by an impartial jury is a 6th Amendment violation.

Not to mention the chilling effect it will have on the 1st Amendment.

A constitutional lawsuit cannot be brought forth until someone is “harmed” by the law, meaning until someone is ERPO’d, there is no plaintiff for the case. Expect to see challenges to this law once it goes into effect January 1, 2020.

The Right to Keep and Bear Arms must always be defended!

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