Colorado Red Flag Bill A Treacherous Mine Field
BY Herschel Smith
5 years, 10 months ago
This is a bit wordy.
DENVER–The “Red Flag” bill moving through the Colorado Legislature has been the subject of plenty of debate, but as it stands now, for persons against whom even a temporary Extreme Risk Protection Order (ERPO) has been issued, there is a risk they could be trapped into inadvertently violating federal gun control laws.
House Bill 19-1177 requires that at the initial ex parte hearing (where the subject is excluded), and based on a judge finding by a preponderance of the evidence that the person meets the “danger to self or others” standard, a ruling issuing a temporary ERPO and search and seizure warrant to confiscate guns is required.
According to federal regulations provided to Complete Colorado by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) someone is “adjudicated as a mental defective” if found by a “court, board, commission or other lawful authority” to be, among other things, “a risk to himself or others.”
A strict reading of the federal law suggests that a person under any ERPO has been “adjudicated as a mental defective” by a judge and is barred from all gun ownership from the federal perspective.
The potential threat to gun owners is that even if the judge declines to issue the year-long order, there is still an adjudication and a temporary ERPO on record that arguably prohibits people from getting their guns back until another court proceeding required by federal law to relieve that disability is held.
As well, an ERPO that expires without further court action at the end of the statutory time period of 364 days doesn’t meet the standard for relief from the federal gun-ownership disability.
Prior to 2008, a judicial finding that a person was a danger to himself or others permanently revoked a person’s right to keep and bear arms. This disqualified many people suffering from temporary mental health issues from gun ownership for life.
The federal NICS Improvement Amendments Act of 2007 provides, among other things, a pathway for people who were barred from gun ownership due to temporary mental illness to regain their rights once they are no longer in crisis.
The 2007 federal law says that a state can provide relief from the federal ban by creating a program for granting relief in state law. The law must provide that a “state court, board, commission or other lawful authority” grant the relief.
Colorado passed just such a statute in 2013 that is found at C.R.S. 13-5-142.5
When petitioned, the court may grant relief if it finds the person is “not likely to act in a manner that is dangerous to the public safety” and that the relief is not “contrary to the public interest.”
The catch is that only persons who have been “found to be incapacitated,” “committed by order of the court” to the custody of the state, or for whom the court has entered an order for short term treatment or for long-term care of a mental health disorder are eligible to petition for relief.
The bill does not address this situation, meaning that the subject of either a temporary or year-long ERPO might not be eligible to petition for relief under existing Colorado law.
Both federal and Colorado statutes say that persons taken in for observation on a 72-hour mental health hold or those who voluntarily admit themselves to a psychiatric facility do not qualify as being “committed to a mental institution,” which is another event that disqualifies gun ownership. But the Colorado ERPO bill doesn’t require a person adjudicated as dangerous to get any mental health treatment at all.
This potentially puts people who are issued temporary ERPOs pending a full hearing, those who are not issued an ERPO at the full hearing and those for whom an ERPO expired without further court action in the position of having to go back to court to relieve the federal prohibition, if they even know they must do so, only to find that they are not eligible to petition for relief under state law.
As I said, it was a bit wordy but I think I’ve got it. The Colorado law may put people in “no-man’s” land where he can’t even use what little federal relief there is to get his property back or ever purchase firearms again.
But take note of the comment, which pointed me to this startling passage of the bill.
If a family or household member or a law enforcement officer establishes by clear and convincing evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm, the court may issue a continuing ERPO
Taken without any other context – which it would appear the way this passage is posed – it seems to say that mere possession of a firearm, if deemed unsafe by just about anyone connected to the person, can be a justifiable reason to disarm him.
Oh Colorado. What have you done by letting so many Californians into your home?
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On February 26, 2019 at 2:14 am, Dan said:
The ENTIRE PURPOSE of “red flag laws” is to disarm people by having a black robed pirate sign off on the action. Such laws are BLATANTLY Unconstitutonal ( as if the left cared about that old rag) and are an egregious form of prior restraint. They violate fundamental civil rights and
put citizens at VERY REAL RISK of being killed in the service of the court orders arising from these laws. This practice MUST STOP…..and if we need to start visiting extrajudicial justice on the people who create, vote for and enforce these laws then that is what must happen. I’d say we sue to have these laws declared unconstitutional but the legal system in America has become so overwhelmingly corrupt and communistic that such an act would almost certainly be a waste of time and money. No….
the Tree of Liberty is dying of thirst and it is time we started watering it copiously.
On February 26, 2019 at 7:59 am, Fred said:
This is what the Nazis did.
South Dakota just passed a Red Flag law.
Tennessee is passing a law, with the ‘help’ of the NRA that prohibits you from defending yourself against police even if police are knowingly and purposefully committing a crime against you. The NRA has chosen what master they serve.
On February 26, 2019 at 8:24 am, Mark Matis said:
So have “Law Enforcement” and the “Legal” system in this country, Fred.
On February 26, 2019 at 12:15 pm, Towser said:
This trend is not going to stop. It is going to grow. The controllers have finally found a sure, “socially acceptable” way to disarm citizens. Of course it is “constitutional” as the black-robed thugs will soon verify. Move along folks, nothing to see here. Obviously, anyone who wants to own a firearm must be mentally unbalanced.
On February 26, 2019 at 1:20 pm, WoodBurner said:
Your post is “Wordy” KISS
What’s wrong with the law “Sucks”
On February 26, 2019 at 2:57 pm, Herschel Smith said:
@Woodburner,
But I like my readers to be thinkers and educated on the details. The law “sucks” is correct, but it doesn’t help you know the details.
On February 26, 2019 at 3:30 pm, scott s. said:
Thanks for the update. We have a red flag bill currently in play (SB1466 SD1) and I didn’t think about implications a one-year ex parte GVPO has on future ability to possess after expiration of the order.
On February 26, 2019 at 3:38 pm, Donk said:
A few questions/reflections;
– Does Leviathan have the color of law authority to confiscate your firearms if they are in another’s physical possession?
– Would a NFA Gun Trust offer any protection from “Red Flag” confiscation?
– If you offsite cache your firearms and use the “boating accident” et al explanation, what happens then? Do they have the color of law authority to incarcerate you if you do not tell them the location of your firearms so they can confiscate them?
– If yes, can they keep you incarcerated until you tell them?
On February 26, 2019 at 3:42 pm, Donk said:
@WoodBurner. The reason I assume most people frequent this blog is to gain a deeper understanding of the relevant issues, learn from and educate each other. As your main complaint seems to be pertaining to time efficiency – why post your comment at all?
On February 26, 2019 at 6:59 pm, George said:
Soon the Red Flag laws will include unauthorized political opinions. Those who believe in too much freedom will be considered a danger to the community.
On February 27, 2019 at 8:25 pm, TheOtherGeorge said:
“Oh Colorado. What have you done by letting so many Californians into your home?”
I fear the same will happen in PA (which has historically been very conservative with regard to 2nd Amendment and firearms matters in general) due to a large influx of fools from nearby blue states bringing their mindset with them whilst trying to escape the consequences of their political stupidity in their home states. This influx at least partially accounts for a housing boom in Eastern PA that has to be seen to be believed. Apartment buildings that look like modern factories with prices like $2230 a month for a 2 bedroom apartment.
I see license plates from New Jersey, Ohio, New York, and the New England states all the time, every day of the week. Increasingly, there will be no place left to move to to get away from them as they, along with the illegal and legal “immigrants” make the entire country a communist hell hole.
On February 28, 2019 at 8:18 pm, Gryphon said:
These ‘Catch-22’ things about the “law” are a Feature, Not a Bug.
On March 2, 2019 at 1:47 pm, soapweed said:
Sir: So sad,…… coming to a theater near you, they are everywhere. I am digging as fast as this ol’ Case hoe can and muy, muy tired of refueling.