Edited to add info.
Over last weekend and earlier this week I carved out some time to read the 30 page bill and make some notes on it. Some of my concerns with it were also noted by David Kopel and George Brauchler, but I've also noted a few concerns that I haven't seen mentioned.
A quick note on the bill for purposes of clarity. The term Petitioner is used to identify the person(s) requesting that a judge grant an ERPO, and the Petitioner can be either a non-LEO family, friend, or household member...or the petitioner can be LE. The term Respondent is used to identify the person that the ERPO is targeting for gun and rights removal.
In an attempt to be fair to the bill I'll mention a couple improvements to the bill from last year's version...namely the fact that if the respondent is an active duty military or former active duty member that an ERPO will be filed in a Veteran's court (if one has jurisdiction) and also that the court will appoint an attorney for the respondent. However, I'm somewhat confused on whether all respondents will receive a court appointed attorney or only indigent ones. David Kopel indicated the court appointed attorney would only be for indigent respondents, however George Brauchler indicated that all respondents would receive one. My reading of the bill indicates that an attorney will be appointed for all respondents however only indigent respondents will have their attorney's fees paid for by the court and I would assume that respondent's not indigent would be responsible for any attorney's fees.
This isn't a complete list but several concerns I have with the bill. Note that a few of the concerns are the same ones I had with last year's bill:
- Last year's bill placed the burden of proof on the petitioner. The current bill has shifted the burden of proof for recovering guns and rights on the respondent.
- Any petitioner requesting an ERPO has only to meet the lesser standard of Preponderance of Evidence, rather than the higher standard of Clear and Convincing Evidence. The standard of "significant risk" is not defined and leaves it open to interpretation by a judge.
- Last year's bill provided for a 7 day Temporary ERPO and a 182 day ERPO before the court revisited the case...however HB19-1177 provides for up to 14 days for the Temporary ERPO and 364 days for the ERPO before it either expires or is renewed. The increased times seem excessively long to me and deprives a respondent of property and rights for a much longer period of time.
- After an ERPO is ordered a respondent is allowed only one request to terminate the order in a 364 day period.
- If the petitioner chooses not to request an ERPO renewal the court has the option of simply allowing it to expire, which indicates that the respondent is no longer considered a risk a deprives him/ her of their property and rights longer than is necessary.
- The bill states:
A LAW ENFORCEMENT OFFICER SHALL SERVE A TEMPORARY EXTREME RISK PROTECTION ORDER CONCURRENTLY WITH THE NOTICE OF HEARING AND PETITION IN THE SAME MANNER AS PROVIDED FOR IN SECTION 13-14.5-105 FOR SERVICE OF THE NOTICE OF HEARING WHERE THE RESPONDENT RESIDES OR WHERE THE FIREARMS OF CONCERN ARE LOCATED
It seems to me that the word "or" opens the possibility of confusion. What would happen if the respondent is a Colorado resident but stores some or all of his/ her guns in another state? Will the police in the out of state jurisdiction be requested to confiscate the guns at the out-of-state home or business address?
What if the respondent lives in Ft. Collins but his retired 77 year old father lives in Pagosa Springs and as the respondent visits his father a couple times a year and hunts in the area he stores some of his hunting rifles in his father's safe. Will the Pagosa Springs PD or SD show up at 7 AM and demand to seize the guns? How will the police serving the ERPO be able to distinguish the respondent's guns from his father's guns? Will the police seize his father's guns at the same time?
- I won't list them all, but here is the wording in the bill that provides grounds for granting an ERPO.
IN DETERMINING WHETHER GROUNDS FOR AN EXTREME RISK PROTECTION ORDER EXIST, THE COURT MAY CONSIDER ANY RELEVANT EVIDENCE, INCLUDING BUT NOT LIMITED TO ANY OF THE FOLLOWING
Page 12 line 15 section (f)
THE RESPONDENT'S OWNERSHIP, ACCESS TO, OR INTENT TO POSSESS A FIREARM
The mere act of owning, having access to, or intent to possess a firearm can be grounds to grant the ERPO.
Page 12 line 25 section (j)
CORROBORATED EVIDENCE OF THE ABUSE OF CONTROLLED SUBSTANCES OR ALCOHOL BY THE RESPONDENT
If you drank too much at last year's Super Bowl party or your brother's bachelor party 4 years ago and there were witnesses or pictures taken this could be grounds for the ERPO being granted. Also, as marijuana has been legalized in CO will they use the state or federal definition of controlled substances in deciding whether to grant the ERPO?
Page 12 line 27 section (k)
WHETHER THE RESPONDENT IS REQUIRED TO POSSESS, CARRY, OR USE A FIREARM AS A CONDITION OF THE RESPONDENT'S CURRENT EMPLOYMENT
If you carry a gun for your job this can be grounds for an ERPO being granted.
Page 13 line 3 section (l)
EVIDENCE OF RECENT ACQUISITION OF A FIREARM OR AMMUNITION BY THE RESPONDENT.
So if you recently acquired a gun or ammo that can be grounds for granting an ERPO. Also, how is "recent" defined? If you bought a gun 2 year's ago and ammo 8 months ago is that considered "recent" enough to grant an ERPO?
- The bill stipulates that once the TERPO is granted LE serve both it and a search warrant. So, out of the blue, a loud knock on your door with loud voices presumably ID'ing themselves as local LE in the early morning hours. The LEO's immediately demand to see and seize all the guns and only after all the guns are confiscated do they ask whether you want to sell or store them with an FFL or have the LEA store them. That is a pretty important and possibly stressful decision for a gun owner to have to immediately make...and I would think all the more stressful and anger-inducing for someone who was deemed a "significant risk".
- THE PEACE OFFICERS STANDARDS AND TRAINING BOARD SHALL DEVELOP MODEL POLICIES AND PROCEDURES BY DECEMBER 1, 2019, REGARDING THE ACCEPTANCE, STORAGE, AND RETURN OF FIREARMS HB19-1177 REQUIRED TO BE SURRENDERED PURSUANT TO THIS ARTICLE 14.5 OR TAKEN CUSTODY OF PURSUANT TO SECTION 16-3-301.5 AND SHALL PROVIDE THOSE MODEL POLICIES AND PROCEDURES TO ALL LAW ENFORCEMENT AGENCIES. EACH LAW ENFORCEMENT AGENCY SHALL ADOPT THE MODEL POLICIES AND PROCEDURES OR ADOPT THEIR OWN 6 POLICIES AND PROCEDURES BY JANUARY 1, 2020
In a previous section of the bill it stipulates that at the time the TERPO and search warrant are served and the guns and CHP are confiscated that a receipt be issued to the respondent. I'm glad to see the addition of receipt and that the LEA adopt standards for the acceptance, storage, and return of guns...but there is no mention of noting the condition of the guns at the time they are confiscated or in returning them in the same condition.
- Wording in the bill stipulates that a respondent's firearms must be returned only after an ERPO has been terminated or expires and only after the LEA conducts a criminal background check on the respondent.
However, there is no mention of when the guns will be returned. Given that the legislators crafted the bill with language listing specific time frames for TERPOS/ ERPOS there should be language stipulating that all guns be returned within a specific time frame. 72 hours, 5 business days etc...
Any government law that acts so quickly to remove rights should act just as quickly to restore them.
- Wording of the bill is very specific as to the time frame for ERPOs to be entered into the various LE computer databases and NICS. However, after a TERPO/ ERPO is terminated or expires, while the bill mentions that the orders be expunged it doesn't list any time frame for doing so. There needs to be specific language added that stipulates that any terminated or expired orders be expunged within 72 hours, 5 business days etc...
- A PERSON WHO FILES A MALICIOUS OR FALSE PETITION FOR TEMPORARY EXTREME RISK PROTECTION ORDER OR AN EXTREME RISK PROTECTION ORDER MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR THOSE ACTS.
The penalty for a respondent in violation of a TERPO/ ERPO is clearly defined as a Class 2 misdemeanor...however a petitioner who files a malicious or false petition MAY be subject to criminal prosecution???
In one of the interviews I linked to in a previous post David Kopel pointed out that CO DA's are busy and are unlikely to prosecute perjury charges. Kopel estimated that there are less than a dozen perjury charges filed annually in Colorado.
There needs to be a provision added to the bill that allows for respondent's to have a civil remedy by providing for lawsuits to recover any damages from petitioner's that file malicious or false petitions.
- The bill also stipulates that if the respondent possesses a CHP that not only must they surrender it at the same time as the guns are confiscated but that the CHP will be revoked within 3 days. So, even if 14 days later in the hearing if a judge determines that the ERPO was inappropriately granted and terminates it the respondent is now without a CHP and must not only reapply but is responsible for any additional costs involved. Also, I have concerns that once a CHP is revoked the revocation will appear in records and may be grounds for denial of any future permits. Also, note that the statute governing issuance of CO CHP will be amended to include the ERPO restrictions.
- Lastly, I'll add one further objection. Given that an ERPO Red Flag bill involves the seizure of property and the surrender of rights...and given the onerous and malicious bias towards gun owning respondents and how poorly conceived and worded the bill has devolved from last year's bill, it absolutely must have a sunset provision added to it. I refuse to support any such bill that doesn't include one.
Keep in mind that these are just my own complaints about the bill and that David Kopel and George Brauchler have noted some other serious deficiencies in the bill. In particular, I'm disturbed by the defamation of the respondent's personal and professional reputation prior to even stepping into a court room due to the LE notification of 3rd parties wording.
There is no missing the fact that this bill was crafted with the presumption that most, if not all respondents meet the significant risk standard and the confiscation of their guns and CHP are warranted in virtually all cases. There is no presumption of innocence extended to respondents in this ERPO bill.
As I mentioned during the debate of last year's bill I'm not flatly opposed to the concept of what it is trying to accomplish. But, as with anything concerning governmental laws, the seizure of property, and Constitutional rights, the devil is in the details...and the details (or lack thereof) of the current bill make it a bad bill ripe for abuse.
I urge you to side with the NRA and contact your reps, as well as other legislators who support this bill, and urge them to oppose it. Also, please consider making suggestions to them to improve the bill.
Storm, thanks for posting that article!
Years ago, long before he got into politics, I debated George Brauchler on-air on the subject of Constitutional Incorporation as it pertains to the 2nd Amendment. Thinking back on our conversation now I feel foolish for, as a non-legal expert, debating an accomplished attorney, but he was gracious, pleasant, and respectful of my views. Brauchler is a gun owner and 2nd amendment supporter, is an Army officer (I believe he is still in the Reserves), an excellent attorney, and a good man.
It's interesting that Brauchler noted that this bill is more focused on removing gun rights than in dealing with mental illness and behavioral problems as this was the same conclusion that I had reached after reading the bill as introduced.
I'm personally familiar with one instance in which an enthusiastic and accomplished shooter and advanced gun owner and collector that was a father, gainfully employed, and basically just an all-around good guy, who went through a difficult personal relationship situation that was complicated by a stressful professional situation...and ultimately he found himself in crisis and he drove himself to the hospital and voluntarily checked himself into to get the help he needed, while he had guns in the trunk of his car.
After reading last year's bill and this bill and giving the concept of ERPO Red Flag laws some thought, I'd like to see a more comprehensive approach to addressing the problem of mentally ill and violent behavior.
I'd like to see a "carrot and stick" approach.
Yes, in a relatively small number of instances it may be necessary to either temporarily or permanently remove a mentally ill person's weapons and address their violent impulses after allowing them Due Process. But, I'd also like to see a Red Flag bill that included provisions for a gun owner who knew they were experiencing depression, stress, or anger a way for them (or family or friends) to voluntarily temporarily relinquish their weapons to a Police Department or Sheriffs Department...or maybe even any FFL who voluntarily participates in a program without repercussion or loss of rights or costs for a short specified period of time...
Say a gun owner is going through a divorce, a relationship break-up, a child custody hearing, or maybe a job loss and they are feeling uncontrollable anger or depression...let them drop their weapons off at the local PD or a participating gun store for 72 hours or 5 business days etc... maybe in conjunction with some sort of encouragement or requirement that they seek some counselling...but with no loss of rights or gun ownership, no or little costs incurred, and no legal bias or consequences.
There is a provision in CO law for parents feeling stress or anger or that they might hurt their children to drop their kids off at a local Fire House or Rescue Squad for a period of time...why couldn't we include a similar program in any Red Flag bill?This message has been edited. Last edited by: Modern Day Savage,
This is just a quick reply to one small topic (food for thought). I have a problem with the mandate/idea that the guns must be turned over to an FFL, Police, etc. This is due to the 2013 laws mandating Universal Background Checks, and a Background Check Fee payed to the state. I would also imagine the FFL would charge you storage and transfer fees. I think the financial liability even for a few guns would be onerous. If you have a large collections, like I'm sure many here do (20-100 guns), it could easily become unaffordable.
Just something to think about.
Thanks for posting the Kopel article. I actually read it yesterday, but didn't think to post it here.
I think Brauchler has a good point on the guns vs. mental health issue. Taking the guns may not stop the subject from using another method of committing (mass) murder, nor of acquiring a gun by some other means and executing a homicidal plan.
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We recently learned that we will be moving back to Colorado after a 12 year hiatus. Looks like we will be relocating to the eastern suburbs of Denver (Aurora,Brighton) possibly. Where is the best place to read up about the changes to the laws over the last 12 years (besides here)?
Ohio has been surprisingly good for gun rights and it’s sad to see what has been happening to Colorado.
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Liberals are like pussycats and Twitter is Trump's laser pointer to keep them busy while he takes care of business - Rey HRH.
The only real changes I can think of are:
Universal Background Checks - You are supposed to go to an FFL when transferring a firearm (sell, lend, give).
15 Round Magazine Capacity Limit - IIRC, if you owned it before the law was enacted (July 1, 2013), they are ok. The reality is the law's not really enforced, because there's no way to tell. Many gun stores sell "Magazine Repair Kits" which contain all the parts for a magazine. The only place where the law does mess things up is buying a new gun that comes with 15+ round mags (Ex: Glock 17). In short, don't worry about it.
State Fee for Background Checks - When having a background check performed (at an FFL) a $10 fee is charged that goes to the state for running the check. If you are doing a private transfer, the FFL will likely tack a transfer fee (for themselves) on top of this.
The Carry Laws and conditions are pretty much all the same as they were before. You can also carry (w/ a CCW) on public college campuses.
I googled this site, it's more comprehensive than the NRA-ILA's page on Colorado laws. The newer laws I mentioned are about halfway down the page (in a Q&A format).
Loyalty Above All Else, Except Honor
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We will never know world peace, until three people can simultaneously look each other straight in the eye
Liberals are like pussycats and Twitter is Trump's laser pointer to keep them busy while he takes care of business - Rey HRH.
Storm, I apologize for the delay in my reply...only so many hours in a day and I've had my hands full tracking this bill and catching as many articles and interviews on it that I can while reading through the actual bill wording.
I appreciate your comments and your concerns are valid..and ones that I had considered myself but I couldn't keep my eyes open long enough to fully expand on my idea.
I'll readily admit that I'm just spit-balling the idea of including a provision encouraging gun owners in mental or emotional crisis to voluntarily temporarily relinquish control of their guns and seek counseling as part of any larger Red Flag bill...and my idea, if doable, certainly needs some tweaking.
I'm starting from the premise that being served with court orders and search warrants out of the blue, surrendering rights some hold dear, personal property that holds some financial value and may hold some emotional value...I can only imagine that this would add to the depression, stress, anxiety, and anger of a gun owner that may already be a danger to themselves or others before that knock at the door.
As part of a larger Red Flag bill, if we could include a provision in which gun owners were encouraged and motivated to voluntarily temporarily relinquish their guns while avoiding stressful court hearings and the embarrassment of having family, friends, employers etc.. made aware of the problem maybe the gun owner could seek counseling and the situation could be de-escalated.
I don't support UBCs ...but like it or not, they are the law in CO at this time. As part of a larger Red Flag bill, my idea would be to include a modification to the current UBC to carve out an exemption in cases where a gun owner voluntarily temporarily drops off their guns.
I'm thinking along the lines of a provision that allowed gun owners in crisis to voluntarily temporarily relinquish their guns to a local LEA or any FFLs who elect to participate. I realize that most FFLs wouldn't have the safe or vault space to store these guns...but I'd bet that a few do and would be willing to do so. In cases where an FFL only has space to temporarily store a limited number of guns it might be necessary for the gun owner to drop them off at several different locations. Hell, maybe some National Guard armories might be willing to participate and be a drop-off point.
Just to start the ball rolling and as part of a larger Red Flag bill that was more balanced and narrowly written with more safeguards for the respondent...one provision, for now let's call it the Tuff Day provision, would allow a gun owner in crisis to voluntarily temporarily drop his/ her guns off at the local LEA, FFL, or any other designated by law secure drop-off site. A website could be established to provide info on the Tuff Day provision and list the sites and contact info available for drop off.
The gun owner would be required to provide ID and fill out paperwork documenting their contact info and designated next-of-kin and alternate contact info, an accurate description of all the guns (unloaded), make/ model/ condition etc.. and the paperwork (per the provision) would stipulate that the gun owner has 7 days, 10 days, 14 days etc... to return and pick up the guns. In cases where the gun owner dies or is incapacitated perhaps provisions could be made for a family member to retrieve the guns after any fees incurred were paid.
In the case of FFLs storing the guns I'd let them set a small storage fee that would be capped by the law...I don't know...what, maybe $5 or $10 per gun over the storage period??? Any guns not picked up after the prescribed 7/ 10/ 14 day period would be stored at a higher fee capped by law. What, maybe $10 per week per gun stored?? If the guns haven't been picked up in 90/ 120/ 180 days (as prescribed by the provision) ownership of the guns transfers to the FFL and they sell them to recoup their costs.
Once the guns are dropped off the gun owner wouldn't be allowed to retrieve them until the prescribed time period had elapsed and any fees incurred be paid. Perhaps there would be a Tuff Day provision that requires that the gun owner wouldn't be allowed to retrieve their guns unless they showed proof that they had sought counseling.
I'm certain that there are details that I haven't addressed but this is just a rough overview of my idea in taking the carrot and stick approach to the problem of those going through mental illness or emotional distress and might be prone to violence against themselves or others. I don't believe my idea is a perfect one or a comprehensive one...simply a starting point that might accomplish some of what a Red Flag bill is intended to do without the poorly conceived poorly written heavy-handed biased approach as in the current bill.
MDS, I'll re-read your post and comment on it soon.
In Other News:
There's recall talk going around already (over the Red Flag Bill). Rally For Our Rights the NORCO 2A groups has a support petition up. I think this is basically a straw poll and email gathering effort, seeing how much support there is for a recall. Pueblo Freedom And Rights (The group that organized the Giron Recall in Pueblo, in 2013) is disseminating the petition, as well.
Pueblo Freedom And Rights Post.
Rally For Our Rights Post
Link to Online Petition to support a recall.
Loyalty Above All Else, Except Honor
I wanted to follow up on the Judiciary Committee hearing. There was 8 hours of testimony by both opponents and supporters of HB19-1177 ERPO Red Flag bill. I wasn't able to attend but did listen online to over 3 hours of the hearings.
As we've seen in previous hearings there was a mix of both rational thought provoking testimony as well as emotional testimony from both supporters and opponents of the bill.
I won't try to recap the entire hearing, or even all of the testimony that I listened to, but I will mention several points that stand out.
DA George Brauchler testified in opposition to the bill. I'm not sure how or why, but somehow he testified on a panel that he was not scheduled to be on and Rep. Garnett made some sort of apology about this.
Brauchler's testimony was low key and yet powerful and statesman like...and, I believe, persuasive...or at the very least seemed to command a little more attention from the committee. He was called upon to speak several times while the panel he was on was testifying.
Brauchler made several points, including the fact that he was not categorically opposed to Red Flag bills and what they were trying to accomplish, and that he supported last year's bill but the current version is "too far left of the right thing". He made the point that the bill was too widely written and allowed the lesser standard during the ex parte portion of the petition process. He also pointed out that the bill focused too much on the gun and not the mental health side of the problem of violence. He talked about the fact that most state's Red Flag bills are too new and there simply hasn't been enough time to gather any meaningful data on how effective they have been, and that, during a conversation with House Majority Leader Alec Garnett in which Brauchler pushed for a one year sunset provision in last year's bill Garnett replied that one year wasn't enough time to gather any meaningful data on the effectiveness of a bill and so Brauchler agrees and is now requesting a 3 year sunset provision to be added.
In addressing the committee Brauchler told them that this wasn't a question of trying to stop the Red Flag bill...he said you control the General Assembly and the Governorship, so this bill is going to be voted into law...but he effectively tossed the matter into their laps by pointing out that they can either ram the bill through, as is, along a party line vote...or, if they want to pass a controversial bill that tries to do the right thing for Colorado they can make some changes and pass it with bipartisan support.
Although the "tone" of the committee was steadfast in defending the bill in its current form throughout the hours of testimony, I think I picked up on a whiff of the committee being open to making some changes to the bill, and Garnett even briefly mentioned the fact that some changes were proposed, but not what those changes are.
The head of the Colorado Chiefs of Police Association and Douglas County Sheriff Spurlock (Deputy Parrish for whom the bill is named served in Douglas County) were among the Law Enforcement representatives that testified in support of the bill.
Several of the rural county Sheriffs testified in opposition to the bill. One of the reps. opposed to the bill asked one of the Sheriffs (I missed his name and the county he served), about what they would do if they arrived at location with a court ordered ERPO and the respondent kept his firearms in a safe and refused to open it for them. The Sheriff replied that he would need to hire a locksmith to open the safe at tax payer expense.
Several times during the hearing the subject of the M1 mental health holds came up. A few of those testifying in support of the bill, including a doctor who dealt with mentally ill patients and a mother testifying about the multiple suicide attempts by her adult son in which he has been repeatedly detained for M1 evaluations and of the several detainments only once was he detained for 2 days and only once for over the 72 hour allowed period, suggested that the M1 temporary mental health hold law is ineffective at holding those who are either suicidal or prone to violence against others.
It seems to me that if a law is ineffective it either needs to be improved or removed.
It's interesting to see that one of the most accessed publications currently on the CO legislative website is one on Emergency Mental Health Holds.
In one of the Kopel interviews I linked to previously he mentioned that, at the request of Rep. Garnett, he met with him in December 2018 to discuss the Red Flag bill. Kopel said they had a respectful thoughtful conversation and that Garnett understood and acknowledged the concerns over crafting a bill which included a balanced due process approach. Kopel said he could only account for the bill's lack of due process due to the fact that so much money from outside the state was flowing in to support Democrats and that these outside influences held more sway when the bill was written.
In the Kopel interview with Ross Kaminsky that I linked to, at one point Kaminsky mentions the fact that he has "seen with my own eyes" some of the lobbyists that Bloomberg uses when pushing for anti-2A laws in the CO state capitol recently.
This morning on the Jeff Crank show, Crank stated that Bloomberg's anti-2A Any Town USA group has spent over $700,000 to push the current Red Flag bill into law.
Add all this up, and it sure looks like state Democrats are either fully onboard and acting in cahoots with these outside money influences...or at the very least, acquiescing to the influences of their deep-pocket benefactors.
Also, I should mention that Governor Polis has already stated that he will sign any Red Flag bill that lands on his desk.
I'd love to be able to stop this bill dead in its tracks, and we should certainly keep trying to do so...but, given the make up of the current state government, I also think we should be pushing to improve what is currently a really bad bill. I'd like to see a more narrowly written bill that included a more balanced due process approach for the respondent. I'd also like to see the bill focus less on firearms and more on the mental and emotional health side of the equation.
HB19-1177 passed the Judiciary committee hearing on a party line vote and has been referred to the House Appropriations Committee for a hearing scheduled for February 28, 2019 at 08:00
I posted this in the Lounge as I thought members outside the state might know some school or church staff that might be interested in this training...but as the training is conducted in Colorado I thought that I would mention here as well.
FASTER school and church Active Shooter First Responder training
The Red Flag bill had been scheduled to be heard by the Senate today but it was held over in the House due to amendments that were added.
There are two versions of the current amended bill:
I haven't had time to go through the amended bills with a fine-tooth comb yet, but in skimming the bills the changes are almost identical with the exception that in addition to the other changes PA2 also includes a budget of @ $119 K to for court costs, jury costs, and attorney's fees to implement the bill.
Along with some administrative and procedural changes there are a few proposed substantive improvements to the bill...
- The amended bill now includes language that limits service of any ERPO/TERPO/Search Warrant to only the respondent's residence.
- It now includes language that should an ERPO or TERPO either be terminated or expire that the LEA or FFL that is storing the guns return them within 3 days.
- Wording now specifies that, should an ERPO/ TERPO be terminated or expire that the records be "promptly" expunged and the CBI "promptly" remove the order from their checks.
Personally I'd like to see the word "promptly" replaced with an actual time frame.
- If an ERPO is ordered, but at the TERPO hearing is terminated Sheriffs are ordered to re-issue the respondent's CHP within 3 days.
I'm glad to see these improvements to the bill...but on balance it is still a bad bill and I would urge everyone to oppose it in its current form.
The entire House body is scheduled to hear the bill today during floor work.
Please keep those letters, emails, and phone calls coming to the reps and let's try to either kill this bill or at least chew on their ears enough to get them to improve it.
Not only do many of Colorado's sheriffs oppose the Red Flag bill, it now appears that Fremont and Montezuma counties have become "sanctuary cities" for the second amendment, following the same mindset set as some of the New Mexico counties doing the same. I'm hearing that Custer county has as well but haven't found confirmation yet, and there is a rumor that Weld county will oppose the Red Flag bill as well.
It's good to see some push back on the Red Flag bill by our sheriffs and county commissioners and I get a chuckle out of the fact that they are adopting similar language as those cities declaring themselves "sanctuary cities" for illegal aliens as they are effectively adopting language that basically says they will expend no county money or resources to enforce these unconstitutional laws.
Our friends at Rally for our Rights have some good info on the Red Flag bill, including the fact that even though the bill is being touted largely as a suicide prevention method, the predicted estimated suicide numbers used to show the effectiveness of current Red Flag laws in preventing suicides were inflated using bad methodology so that actual suicide numbers appear to be less than the predicted numbers.
Also, there are some videos worth checking out at their website.
Rally for Our Rights- Red Flag Bill
These links are a couple days old, but they pertain to the Red Flag bill, and Fremont and Weld Counties resistance to it.
Canon City News - Fremont becomes Second Amendment sanctuary county
Complete Colorado - Weld may join Fremont as “Second Amendment Sanctuary” county
Colorado Sun - The “red flag” gun bill is expected to pass in Colorado. But there are important things to watch along the way
On Jon Caldara's TV show, "The Devil's Advocate" they had George Brauchler discussing the current Red Flag law. I'll post it here once it's released on YouTube (probably Weds or Thurs).
Loyalty Above All Else, Except Honor
Storm thanks for posting the links to the recall petition list and those articles on the 2A Sanctuary counties.
I'm still glad to see some CO counties push back on the bill, at least as it is currently written...but I should mention that this type of resistance may be a bit more problematic. Over the weekend I caught a call by El Paso county Sheriff Bill Elder who called into a radio show to comment on the Red Flag bill. He says that he is flatly opposed to the bill as written and has been working behind the scenes in talking with other Sheriffs and legislators to defeat or modify it.
When the last round of anti-2A bills were passed in 2013 the majority of CO sheriffs openly opposed the laws, many signed on as plaintiffs to the lawsuit fighting them, and several of the sheriffs openly stated that not only were the laws difficult to impossible to enforce but they openly refused to do so.
Sheriff Elder mentioned that, even though this Red Flag law would be enacted at the state legislative level, it would be a tool used at the local county or city level by local judges...and he posed his concern as to whether citizens want to pit their sheriffs against local judges by possibly defying a court order and opening themselves up to the possibility of the sheriffs or police chiefs being arrested in these 2A sanctuary counties...food for thought.
One other point I'd like to mention is that, in reading through various articles on the Red Flag bill, I've come across several inaccurate descriptions of what the bill does...essentially a sugar-coated "balanced" reading that just isn't supported when reading the actual wording of the bill...BE VERY CAREFUL WHEN READING DESCRIPTIONS OF THIS BILL BY THE VARIOUS NEWS SOURCES...whether reporters and news editors simply aren't reading the bill themselves and relying on the descriptions by those biased in favor of it, or outright lying about the bill, some of their statements are just flat out wrong.
The House passed the Red Flag bill today along a party line vote and it is now headed to the CO Senate.
The bill passed by the House is 33 pages...3 pages longer than the original introduced version. Normally I'd like to re-read every version to verify what is actually in it, but it's very time consuming and given that the bill has gone through a couple amended versions and is likely to do so in the Senate, I'm going to just skim the revised versions and hope that I can trust the publicly released versions to reflect accurate amendments in the shaded portions.
In addition to the amendments I mentioned previously apparently the House added further amendments later in the day during the March 1 session. I'm going to forego commenting on some of the procedural, administrative, and title amendments and just mention a few of the more substantive amendments.
Final amendments of the House version of the Red Flag bill:
- section 13-14.5-103. Temporary extreme risk protection orders Page 5 lines 20-27
THE COURT MAY SCHEDULE A HEARING BY TELEPHONE PURSUANT TO LOCAL COURT RULE TO REASONABLY ACCOMMODATE A DISABILITY OR, IN EXCEPTIONAL CIRCUMSTANCES, TO PROTECT A PETITIONER FROM POTENTIAL HARM. THE COURT SHALL REQUIRE ASSURANCES OF THE PETITIONER'S IDENTITY BEFORE CONDUCTING A TELEPHONIC HEARING. A HEARING BY TELEPHONE MUST BE RECORDED AND PROVIDED TO THE RESPONDENT PRIOR TO THE ISSUE OF AN EXTREME RISK PROTECTION ORDER
- section SECTION 13-14.5-108 Page 7 line 12-15
AN ATTORNEY WILL BE APPOINTED TO REPRESENT YOU, OR YOU MAY SEEK THE ADVICE OF YOUR OWN ATTORNEY AT YOUR OWN EXPENSE AS TO ANY MATTER CONNECTED WITH THIS ORDER
- section SECTION 13-14.5-108 Page 7 lines 16-20
A LAW ENFORCEMENT OFFICER SHALL SERVE A TEMPORARY EXTREME RISK PROTECTION ORDER CONCURRENTLY WITH THE NOTICE OF HEARING AND PETITION IN THE SAME MANNER AS PROVIDED FOR IN SECTION 13-14.5-105 FOR SERVICE OF THE NOTICE OF HEARING WHERE THE RESPONDENT RESIDES
- section 13-14.5-104. Petition for extreme risk protection order page 8 lines 12-20
UPON THE FILING OF A PETITION, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE RESPONDENT, AND THE COURT SHALL INCLUDE THE APPOINTMENT IN THE NOTICE OF HEARING PROVIDED TO THE RESPONDENT PURSUANT TO SECTION 13-14.5-105 (1)(a).THE RESPONDENT MAY REPLACE THE ATTORNEY WITH AN ATTORNEY OF THE RESPONDENT'S OWN SELECTION AT ANY TIME AT THE RESPONDENT'S OWN EXPENSE. ATTORNEY FEES FOR THE ATTORNEY APPOINTED FOR THE RESPONDENT SHALL BE PAID BY THE COURT. A PETITION FOR AN EXTREME RISK PROTECTION ORDER MUST BE FILED IN THE COUNTY WHERE THE RESPONDENT RESIDES.
- section 13-14.5-104. Petition for extreme risk protection order Page 10 lines 11-15
A PERSON IS NOT REQUIRED TO POST A BOND TO OBTAIN RELIEF IN ANY PROCEEDING PURSUANT TO THIS SECTION. THE DISTRICT AND COUNTY COURTS OF THE STATE OF COLORADO HAVE JURISDICTION OVER PROCEEDINGS PURSUANT TO THIS ARTICLE 14.5.
- section 13-14.5-105. Hearings on petition - grounds for order issuance Page 11 lines 24-27
IN DETERMINING WHETHER GROUNDS FOR AN EXTREME RISK PROTECTION ORDER EXIST, THE COURT MAY CONSIDER ANY RELEVANT CORROBORATED EVIDENCE, INCLUDING BUT NOT LIMITED TO ANY OF THE FOLLOWING:
- page 12 lines 26-27
EVIDENCE OF THE ABUSE OF CONTROLLED SUBSTANCES OR ALCOHOL BY THE RESPONDENT;
- section 13-14.5-105. Hearings on petition - grounds for order issuance page 15 line 21 through page 13 line 2
IF THE COURT DENIES THE ISSUANCE OF AN EXTREME RISK PROTECTION ORDER BUT ORDERED A TEMPORARY EXTREME RISK PROTECTION ORDER AND A LAW ENFORCEMENT AGENCY TOOK CUSTODY OF THE RESPONDENT'S CONCEALED CARRY PERMIT OR THE RESPONDENT SURRENDERED HIS OR HER CONCEALED CARRY PERMIT AS A RESULT OF THE TEMPORARY EXTREME RISK PROTECTION ORDER,THE SHERIFF WHO ISSUED THE CONCEALED CARRY PERMIT SHALL REISSUE THE CONCEALED CARRY PERMIT TO THE RESPONDENT WITHIN THREE DAYS, AT NO CHARGE TO THE RESPONDENT.
- section 13-14.5-105. Hearings on petition - grounds for order issuance. page 16 line 3-10
IF COURT ISSUES AN EXTREME RISK PROTECTION ORDER AND THE PETITIONER IS A LAW ENFORCEMENT OFFICER OR AGENCY, THE PETITIONER SHALL MAKE A GOOD-FAITH EFFORT TO PROVIDE NOTICE OF THE ORDER TO A FAMILY OR HOUSEHOLD MEMBER OF THE RESPONDENT AND TO ANY KNOWN THIRD PARTY WHO MAY BE AT DIRECT RISK OF VIOLENCE. THE NOTICE MUST INCLUDE REFERRALS TO APPROPRIATE RESOURCES, INCLUDING DOMESTIC VIOLENCE,BEHAVIORAL HEALTH, AND COUNSELING RESOURCES.
- section 13-14.5-107. Termination or renewal of protection orders page 17 lines 22-27 and page 18 lines 1-2
UPON RECEIPT OF THE REQUEST FOR A HEARING TO TERMINATE AN EXTREME RISK PROTECTION ORDER, THE COURT SHALL SET A DATE FOR A HEARING. NOTICE OF THE REQUEST AND DATE OF HEARING MUST BE SERVED ON THE PETITIONER IN ACCORDANCE WITH THE COLORADO RULES OF CIVIL PROCEDURE OR COLORADO RULES OF COUNTY COURT CIVIL PROCEDURE.THE COURT SHALL SET THE HEARING FOURTEEN DAYS AFTER THE FILING OF THE REQUEST FOR A HEARING TO TERMINATE AN EXTREME RISK PROTECTION ORDER
- section 13-14.5-107. Termination or renewal of protection orders page 18 lines 14-17
IF THE COURT CONTINUES THE HEARING, THE COURT SHALL SET THE DATE FOR THE NEXT HEARING PRIOR TO THE DATE FOR THE EXPIRATION OF THE EXTREME RISK PROTECTION ORDER.
- section 13-14.5-107. Termination or renewal of protection orders page 19 line 27 through page 20 lines 1-4
IF AN EXTREME RISK PROTECTION ORDER IS TERMINATED OR NOT RENEWED FOR ANY REASON, THE LAW ENFORCEMENT AGENCY STORING THE RESPONDENT'S FIREARMS SHALL PROVIDE NOTICE TO THE RESPONDENT REGARDING THE PROCESS FOR THE RETURN OF THE FIREARMS.
- Section 13-14.5-108. Surrender of a firearm. page 20 lines 15-26
THE LAW ENFORCEMENT AGENCY SHALL PRESERVE THE FIREARM IN A SUBSTANTIALLY SIMILAR CONDITION THAT THE FIREARM WAS IN WHEN IT WAS SURRENDERED. IF THE RESPONDENT DOES NOT CHOOSE THE OPTION IN SUBSECTION (1)(a)(I) OF THIS SECTION, A LOCAL LAW ENFORCEMENT AGENCY SHALL STORE THE FIREARM; OR ONLY FOR EITHER AN ANTIQUE FIREARM, AS DEFINED IN 18 U.S.C. SEC. 921 (a)(16), AS AMENDED, OR A CURIO OR RELIC, AS DEFINED IN 27 CFR 478.11, AS AMENDED, TRANSFERRING POSSESSION OF THE ANTIQUE FIREARM OR CURIO OR RELIC TO A RELATIVE WHO DOES NOT LIVE WITH THE RESPONDENT AFTER CONFIRMING, THROUGH A CRIMINAL HISTORY RECORD CHECK, THE RELATIVE IS CURRENTLY ELIGIBLE TO OWN OR POSSESS A FIREARM UNDER FEDERAL AND STATE LAW.
- section 13-14.5-109. Firearms - return - disposal. page 25 Lines 14-27 through page 26 lines 1-2
IF AN EXTREME RISK PROTECTION ORDER OR TEMPORARY EXTREME RISK PROTECTION ORDER IS TERMINATED OR EXPIRES WITHOUT RENEWAL, A LAW ENFORCEMENT AGENCY HOLDING ANY FIREARM THAT HAS BEEN SURRENDERED PURSUANT TO SECTION 13-14.5-108 OR TAKEN CUSTODY OF PURSUANT TO SECTION 16-3-301.5, OR A FEDERALLY LICENSED FIREARMS DEALER DESCRIBED IN 18 U.S.C. SEC. 923, AS AMENDED, WITH CUSTODY OF A FIREARM, OR A RELATIVE WITH CUSTODY OF AN ANTIQUE FIREARM OR CURIO OR RELIC PURSUANT TO SECTION 13-14.5-108 (1)(a)(III), MUST RETURN THE FIREARM REQUESTED BY A RESPONDENT WITHIN THREE DAYS ONLY AFTER CONFIRMING, THROUGH A CRIMINAL HISTORY RECORD CHECK PERFORMED PURSUANT TO SECTION 24-33.5-424, THAT THE RESPONDENT IS CURRENTLY ELIGIBLE TO OWN OR POSSESS A FIREARM UNDER FEDERAL AND STATE LAW AND AFTER CONFIRMING WITH THE COURT THAT THE EXTREME RISK PROTECTION ORDER HAS TERMINATED OR HAS EXPIRED WITHOUT RENEWAL
- section 13-14.5-110. Reporting of extreme risk protection orders. page 28 lines 3-11
UPON THE EXPIRATION OF A TEMPORARY EXTREME RISK PROTECTION ORDER OR EXTREME RISK PROTECTION ORDER, THE COLORADO BUREAU OF INVESTIGATION AND THE LAW ENFORCEMENT AGENCY SPECIFIED IN THE ORDER SHALL PROMPTLY REMOVE THE ORDER FROM ANY COMPUTER-BASED SYSTEM IN WHICH IT WAS ENTERED PURSUANT TO SUBSECTION (2) OF THIS SECTION. AN EXTREME RISK PROTECTION ORDER DOES NOT CONSTITUTE A FINDING THAT A RESPONDENT IS A PROHIBITED PERSON PURSUANT TO 18 U.S.C. SEC. 922.
- section 13-14.5-113. Liability. page 29 lines 8-13
IN ADDITION TO ANY OTHER REMEDIES, A RESPONDENT WHO HAD A MALICIOUS OR FALSE PETITION FOR A TEMPORARY EXTREME RISK PROTECTION ORDER OR EXTREME RISK PROTECTION ORDER FILED AGAINST HIM OR HER HAS A PRIVATE CAUSE OF ACTION AGAINST THE PETITIONER. IN THE ACTION, THE PLAINTIFF IS ENTITLED TO ACTUAL DAMAGES, ATTORNEY FEES, AND COSTS
- section 13-3-101. State court administrator. page 31 lines 5-14
THE STATE COURT ADMINISTRATOR OR HIS OR HER DESIGNEE SHALL ALSO REPORT STATE COURT DATA RELATED TO ALL PERSONS WHO ARE SUBJECT TO ANY TEMPORARY EMERGENCY RISK PROTECTION ORDER OR EMERGENCY RISK PROTECTION ORDER AND WHO, WITHIN THIRTY DAYS AFTER THE ISSUANCE OR EXECUTION THE PROTECTION ORDER, ARE CHARGED WITH A CRIMINAL OFFENSE. THE REPORT MUST INCLUDE THE NATURE OF THE CRIMINAL OFFENSE, INCLUDING BUT NOT LIMITED TO ANY OFFENSE FOR VIOLATION OF THE EMERGENCY RISK PROTECTION ORDER AND THE DISPOSITION OR STATUS OF THAT CRIMINAL OFFENSE.
On balance I'd say that these amendments are improvements, but they still leave much open to interpretation and some of the fundamental due process concerns remain. Please contact your elected reps and urge their opposition to the bill as is.
I've mentioned previously that I am not an attorney and far from a legal scholar and have zero experience in crafting any legislation...and yet, in reading through the various gun control bills, it struck me just how poorly conceived and poorly written not just this Red Flag bill is but previous ones as well.
The fact that so many obvious and pertinent details and concerns have been omitted and that it has taken several amended versions to even address some of these deficiencies suggests to me that whoever crafted the framework of these bills is less concerned about crafting a bill about mental health and addressing concerns about violence and suicide and more concerned about simply limiting access to guns. I mean they have had almost a year to craft a bill and they come up with this.
The 2013 gun control laws were just as poorly conceived and written. The legislators who craft these bills really deserve to be slapped upside the head and it really doesn't speak well to citizens who elect these incompetent reps.
One other thought that I'll mention...as poorly conceived and poorly written as this Red Flag bill is if you go back and review some of the House amendments that failed to make it into the final version you will see some truly ugly proposals that really start to paint a picture of the true intent of those pushing for this bill. Apparently there were amendments proposed that were to include provisions that would extend Red Flag ERPO provisions into schools and prevent districts currently arming their staff to continue to do so.
In all fairness several really good amendments were proposed to the bill and were shot down as well. Among them, a Sunset provision amendment was proposed.
I still haven't made the time to read all the failed amendments yet but for those interested in seeing what could have been added to the House bill: (click on the link and then click on the amendments tab)
Rob Natelson is a Constitutional scholar with the Independence Institute. It appears he wrote this article the same day the House passed their version and he may not have had time to read some of the amendments added that addressed some of his concerns...but his larger points are still worth considering.
[Comments and article hyperlinks can be found at the linked article]
Natelson: Red Flag bills latest assault on Bill of Rights
March 4, 2019 By Rob Natelson
“Progressives” are using Red Flag bills as weapons in their war on the Bill of Rights.
Red Flag bills are measures authorizing confiscation of firearms, often without notice or opportunity to be heard. Confiscation is triggered by police or individuals (“petitioners”) who claim the owner might be a risk to self or others.
Unless these bills are very narrowly drafted, they obviously threaten the Second Amendment right to keep and bear arms. But they also can be employed to attack the Fourth Amendment right of privacy, the Fifth Amendment right against uncompensated takings of property, the Sixth Amendment right to jury trial and to confront opposing witnesses, and the Fourteenth Amendment’s guarantee of due process of law.
House Bill 19-1177 just passed the Democrat-controlled Colorado House of Representatives. In some ways it is more extreme than a comparable measure recently passed in New York.
In our system of justice, it is unusual for a court to issue an order affecting a person’s rights without giving that person an opportunity to be heard. Such orders generally are issued only to protect the petitioner against imminent danger by preserving the status quo for the short time before an early hearing. To obtain such an order, the petitioner usually must meet a high burden of proof and post bond to protect the other party from potential damage due to false accusation.
HB 19-1177 authorizes orders without notice or opportunity to be heard, and the standards applied are very different. First, these orders do not merely preserve the status quo. They authorize officials to confiscate a victim’s firearms and concealed-carry permit for 14 days.
Secondly, the risk need not be particularly high: Despite the measure’s references to “extreme risk,” the measure requires only “significant risk”—a term that in legal usage can fall well short of probable.
Third, the risk need not be imminent; it can be hypothesized for any future time.
Fourth, the standard of proof is low (a fair preponderance of the evidence). Since the victim is unaware of the proceedings and can’t defend himself, in most cases the petitioner’s allegations and exhibits will suffice.
Finally, the measure requires no bond, even if the petitioner is wealthy enough to afford one.
As a result, innocent people can be stripped arbitrarily of their property and their means of self-defense. The mostly likely victims will be women, the elderly, and the poor. Some petitioners may be evil-doers seeking vengeance or seeking to disarm future prey.
Once the 14 day period expires, if the petitioner decides not to proceed further (perhaps because the victim is now dead), the order expires. But the bill’s sponsors provided no guarantee the victim’s property would be restored in a timely manner, if at all; and it sought to force the victim to reapply for his concealed carry permit.
Only last-minute amendments provided for return of the victim’s property and any concealed-carry permit.
If the petitioner wants the order to last more than 14 days, then the measure requires what it calls a “hearing.” But perhaps on the pretext that this is not a criminal prosecution, the hearing violates normal Bill of Rights standards. There is no jury. The judge may rely on affidavits instead of personal testimony, thereby rendering cross-examination impossible. Some hearings may be held by telephone rather than in person, rendering it more difficult to assess witness credibility.
An order issued after this so-called “hearing” may last nearly a year. Even after it expires, there is no restoration of any concealed-carry permit.
Liberals of a prior generation crusaded to end property seizures without prior notice. Capping their efforts was the celebrated Supreme Court decision of Sniadach v. Family Finance Corp. (1969), which held that even temporary seizure without a hearing violates the 14th Amendment Due Process Clause. Just last month, the Supreme Court’s four old-style liberals joined the other justices in ruling that states could not impose excessive forfeitures of property, even on those found guilty of a crime.
But today’s “progressives” are not the liberals of your daddy’s generation. They have a strong totalitarian streak. They should be kept well away from positions of power. We have given them the fair hearing they would deny others—and they have confessed.
Rob Natelson is senior fellow in Constitutional Jurisprudence at the Independence Institute, a free market think tank in Denver. He has published extensively on the Constitution and is the author of The Original Constitution: What It Actually Said and Meant. A version of this article originally appeared in Town Hall.
|Still finding my way|
Many counties (mine included ) are delaring themselves as "2nd Amendment Sanctuary Counties".
As discussed previously, there may be some potential problems with that approach...but I gotta say I love the sentiment behind it and a little disobedience based on civic outrage in seeing fundamental constitutional rights violated by elected reps isn't necessarily a bad thing. Give 'em hell.
The videos from Jon Caldara's show, "The Devils Advocate" on the National Popular Vote and the Red Flag Bill.
Rob Natelson on the National Popular Vote:
George Brauchler on the Colorado Red Flag Bill:
Loyalty Above All Else, Except Honor
Apparently the list has gotten longer and there are more counties considering this. Surprisingly, Jefferson and Douglas counties may consider this.
Loyalty Above All Else, Except Honor
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