quote:

Originally posted by Modern Day Savage:
But Colorado gun law expert and federally licensed dealer Robert Wareham disagreed.

"It'd be pretty onerous if we told every federal firearms licensee in the nation that they were responsible to know the gun laws of every other state", Wareham said. "I don't think the address he puts down would be definitive, but that's up to a judge to make that call."

Unfortunately Mr. Wareham is wrong, and if he really has a FFL he should know that.

https://www.atf.gov/firearms/q...sident-another-state
May a licensee sell a firearm to a nonlicensee who is a resident of another State?

Generally, a firearm may not lawfully be sold by a licensee to a nonlicensee who resides in a State other than the State in which the seller’s licensed premises is located. However, the sale may be made if the firearm is shipped to a licensee whose business is in the purchaser’s State of residence and the purchaser takes delivery of the firearm from the licensee in his or her State of residence. In addition, a licensee may sell a rifle or shotgun to a person who is not a resident of the State where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with State law in the State where the licensee is located and in the State where the purchaser resides.

[18 U.S.C. 922(b)(3); 27 CFR 478.99(a)]
(emphasis added)

https://www.law.cornell.edu/uscode/text/18/922
18USC922(b)(3)
. . .It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver— . . .

. . . any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes; . . .
(emphasis added)

Every FFL is made aware of this when going through the inspection process to get their license, and during any follow up inspections.

However, that federal statute only applies to firearms, as defined in the US Code.

Is there anything that makes it illegal for a CO resident to own a Ruger AR-556? Because the information regarding Kelley's firearms disability was not in NICS, if the Ruger AR-556 is legal for a CO resident to purchase and possess, under CO law, then I don't see how the a Texas FFL would be in violation of 18USC922(b)(3). However, maybe I'm missing something with regard to the transaction, or CO state law, with regard to the Ruger AR-556.

quote:

Originally posted by DMF:
https://www.atf.gov/firearms/q...sident-another-state
May a licensee sell a firearm to a nonlicensee who is a resident of another State?

Generally, a firearm may not lawfully be sold by a licensee to a nonlicensee who resides in a State other than the State in which the seller’s licensed premises is located. However, the sale may be made if the firearm is shipped to a licensee whose business is in the purchaser’s State of residence and the purchaser takes delivery of the firearm from the licensee in his or her State of residence. In addition, a licensee may sell a rifle or shotgun to a person who is not a resident of the State where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with State law in the State where the licensee is located and in the State where the purchaser resides.

[18 U.S.C. 922(b)(3); 27 CFR 478.99(a)]
(emphasis added)

https://www.law.cornell.edu/uscode/text/18/922
18USC922(b)(3)
. . .It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver— . . .

. . . any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes; . . .
(emphasis added)

Every FFL is made aware of this when going through the inspection process to get their license, and during any follow up inspections.

However, that federal statute only applies to firearms, as defined in the US Code.

Is there anything that makes it illegal for a CO resident to own a Ruger AR-556? Because the information regarding Kelley's firearms disability was not in NICS, if the Ruger AR-556 is legal for a CO resident to purchase and possess, under CO law, then I don't see how the a Texas FFL would be in violation of 18USC922(b)(3). However, maybe I'm missing something with regard to the transaction, or CO state law, with regard to the Ruger AR-556.

Quite honestly, having never purchased a long gun in person while out of state, I had forgotten about this provision in the law and hadn't considered it in my analysis of this story, so thanks for pointing it out!

There are some pertinent questions remaining regarding the facts not in evidence, at least not in the article I linked to.

I am particularly interested to know how the killer's state of residence was determined. Did the killer lie on the 4473? Did the killer recently move to Texas but failed to change his legal state of residence? Did the Academy Sports clerk who sold the gun check the killer's valid ID?

Regarding your question, NO, there is nothing in CO law that would prohibit any resident legally permitted to own any gun from buying/selling/owning/possessing a Ruger AR-556, or any such similar gun.

Five years ago, a CO law was passed that prohibited the manufacturing/sale/ or transfer of possession (temporary or permanent) of magazines > 15 rnd capacity for semi-auto center-fire guns. (a couple cities have passed local laws limiting mag capacity to 10 rnds.) Magazines > 15 rnds owned prior to enactment of the law were "grandfathered".

As with many gun laws, this law is so poorly conceived and so poorly worded that it fails to address practical considerations or even practical enforcement. One example, since the law grandfathers > 15 rnd mags owned at the time the law went into effect, what if an out-of-state resident visits CO or perhaps comes to participate in training or a competition and has mags that were owned prior to law enactment. Or, what if an out-of-state resident owned banned mags prior to law enactment and wants to move to CO.

In my very-not-a-legal-expert opinion the plaintiffs in this case have adopted the strategy of tossing several arguments out and seeing if any stick. IF the killer's domestic abuse and Bad Conduct discharge had been submitted and entered into the background check system then that would have prevented him from buying a gun. However, as you rightly point out, Academy can hardly be faulted for this failure.

So, I think they are trying to hang their hat on the argument that the clerk couldn't legally sell the standard capacity mag to the killer.

Well....damn.

Next stop, CO Supreme Court.

[Not that it has any bearing on the article, but the actual article link has a picture of Magpul workers packaging standard capacity mags.]

https://gazette.com/news/color...85-2fbc4289cf3a.html


Colorado Court of Appeals upholds state’s ban on large-capacity magazines

By: Marianne Goodland
Chief legislative reporter

Oct 18, 2018

The Colorado Court of Appeals, in a unanimous opinion issued Thursday, upheld the state’s ban on large-capacity ammunition magazines of 15 rounds or more.

The lawsuit dates back to the contentious 2013 legislative session in which Democrats, who controlled both the House and Senate, passed a trio of gun-control laws, including one that banned ownership of an ammunition magazine with 15 rounds or more.

The case was brought by Rocky Mountain Gun Owners. Several other groups also signed on with the plaintiffs, including the Colorado Law Enforcement Firearms Instructors Association; Sheriffs Chad Day of Yuma County, Shannon K. Byerly of Custer County, Steve Reams of Weld County and Sam Zordel of Prowers County; and the Independence Institute.

The appeals court concluded that the logic for passing a ban on large-capacity magazines was based on a “legitimate governmental interest in public health and safety.” In their opinion, the justices pointed out that there have been 27 mass shootings in Colorado that used large-capacity magazines between 1999 and 2016. That contrasts with 11 mass shootings involving large-capacity magazines in the period between 1967 and 1968, the opinion noted.

Colorado’s ability to regulate guns centers around a 1994 case, Robertson v. City of Denver. In that case, the Colorado Supreme Court decided “the state may regulate the exercise of [the right to bear arms] under its inherent police power so long as the exercise of that power is reasonable.”

The legislature’s intent in passing the 2013 law was a “legitimate governmental purposes of reducing deaths from mass shootings,” the opinion stated. And while the plaintiffs argued that the 2013 law hasn’t made a dent in overall gun violence or deaths from guns, the appeals court said that “legislation need not solve all gun problems to be constitutional. … We conclude that the statutes burden only a person’s opportunity to use [a large-capacity magazine], not a person’s right to bear arms in self-defense.”

RMGO’s appeal came after the Denver District Court ruled against the original case. The lower court found that the plaintiffs’ claim that the statutes make “almost all magazines and semiautomatic weapons illegal” turned on an unreasonable reading of the statutory definition of a large-capacity magazine.

The RMGO appeal of the District Court’s ruling centered on two arguments: that magazine ban should “be subject to a heightened standard of review” and that the statute was unconstitutional because it would ban “an overwhelming majority of magazines.”

The appeals court disagreed with both assertions, stating even if they considered the statutory law “ambiguous, the legislative purpose is to reduce the number of people who are killed or shot in mass shootings, not to ban all gun magazines,” the opinion stated. Further, the statute does not prevent Coloradans from exercising their constitutional right of self-defense, the opinion indicated.

Curiously, the plaintiffs didn’t assert that the 2013 law violated their 2nd Amendment rights under the U.S. Constitution, only their rights under the state constitution. According to attorney Christopher Jackson, there’s a big difference. Colorado’s version of the 2nd Amendment includes language not found in the U.S. Constitution. It states that a person has a right to “keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned.”

The case can’t be appealed to the U.S. Supreme Court, according to Jackson. But the plaintiffs can, and he believes will, appeal to the state Supreme Court, and seek for a standard of review different than the one created by the Robertson case.

And he’s right on that. Dudley Brown, executive director of RMGO, told Colorado Politics the group will appeal Thursday’s ruling, which he said was not unexpected. “From day one we knew this was a long haul through the courts, made more difficult by a Republican Attorney General who clearly wants to keep this magazine ban on Colorado’s books,” Brown said.

quote:

Colorado’s ability to regulate guns centers around a 1994 case, Robertson v. City of Denver. In that case, the Colorado Supreme Court decided “the state may regulate the exercise of [the right to bear arms] under its inherent police power so long as the exercise of that power is reasonable.”

This alone is reason to take this to the REAL Supreme court.

I thought you all might find this interesting. As you all know in 2013, the Democrat controlled Colorado legislature and governor imposed a host of gun-control laws on Colorado, with the goal of saving lives and reducing crime. With 5 years of post-law data out, we can now see what the long term effect the 2013 laws had on crime, and violence in Colorado.

In 2011, after hitting an over-50 year low in 2010, the murder rate in Colorado started to rise at about the same rate it had been declining for the past 30 years. The gun-control laws implemented in 2013 have done nothing to change or abate that rise.

All the violent crime rates in Colorado (murder, assault, forcible rape, and robbery) have been rising since or before 2013. The 2013 gun-control laws have done nothing to slow or reverse any of them. In short, the laws are ineffectual and aren't working.

Data Sources:
http://www.disastercenter.com/crime/cocrime.htm

https://ucr.fbi.gov/crime-in-t...pages/tables/table-4

I’m. So. Shocked.

Not that this should come as a surprise ...

[there are public comments in the linked article for those interested]

Rep-Elect Tom Sullivan, Whose Son Died In Aurora, Will Co-Sponsor Red Flag Gun Bill

BY MICHELLE P. FULCHER | MICHELLE.FULCHER@CPR.ORG
DEC 5, 2018

Freshman lawmaker Tom Sullivan, whose son died in the Aurora theater shooting, will be the lead house sponsor of a red flag gun bill in the upcoming legislative session.

Red flag measures allow judges to issue temporary orders to confiscate guns owned by people who are deemed to be a risk to themselves or others. Family, friends or members of law enforcement could make a request to a judge.

"It saves lives. And that’s what this is all about, saving lives," Sullivan said.

Sullivan's election to the state House was part of a blue wave in Colorado. Now he's leading a renewed effort for the legislation.

A previous red flag bill died in the Republican-controlled state senate last session.

Democrats reclaimed control of the governor's office and both legislative houses in the November election. They've since said a new red flag bill is near the top of their agenda. Sullivan, who lives in Centennial, represents several of Denver's southern suburbs.

A top Democratic lawmaker, House Majority leader Alec Garnett of Denver, will co-sponsor the new bill. Garnett spearheaded the 2018 legislation.

Sullivan said he doesn't believe a red flag law would have stopped the shooting that killed his son and 11 others, although some people were aware of the shooter's mental problems. Mass shootings are rare, he said, so the bill is more likely to prevent suicides.

Firearms were involved in half of all suicides in Colorado in 2o17, according to the Colorado Health Institute. And in 2016, the majority of all firearm deaths were suicides, according to the Centers for Disease Control.

"That’s what is happening. The extreme things like what happened to us ... those are the extraordinary type things," Sullivan said. "What happens is people’s easy access to a firearm when they’re in the throes of a mental problem."

The last red flag gun bill in Colorado lived a short, contentious life. Opponents argued the legislation could be misused by people with an ax to grind against a gun owner, or violate Second Amendment rights.

Sullivan wants to talk through differences across the aisle with the help of experts. But he isn't backing down from the bill, nor is he worried about claims from Republicans that Democrats may overreach with the power of a political trifecta.

"This is what we’re going to do, and this is not an overreach," Sullivan said. "We were elected to go in there and govern, and that’s what we’re going to do."

Sullivan's commitment to the red flag bill stems in part from his belief that enacting the legislation will serve as a thank you to the community that supported his family after his son's death.

"It’s not about me. It’s about the community that I live in," he said.

Alex's funeral drew an overflow crowd, he said. When he stepped up to give his son's eulogy, he took a moment and looked at those in the sanctuary. He saw the governor, the mayor, the chief of police, shooting survivors, Alex’s friends, and first responders who were at the theater.

"I thought to myself, ‘I don’t know how, and I don’t know when, but I will find a way to thank each and everyone of these people who are here this day, who have been supportive of my family, who have shown us the empathy and compassion for us to be able to get through this,' " Sullivan said.

"And I think this is how I can do it."

The Boulder so-called "assault weapons" ban is in place and requires that those with grand-fathered firearms go through the "certification" process with a deadline of 12-27-18.

[There are public comments in the linked article for those interested]

Massive Noncompliance to Boulder, Colorado, Assault Weapons Ban

Thursday, 06 December 2018
Written by Bob Adelmann

In May, in a fit of righteous do-goodism, the Boulder, Colorado, city council unanimously banned the sale or possession of so-called assault weapons along with high-capacity magazines and “bump stocks.” As a sop to those among the city’s 100,000 residents who already owned firearms, current possession of such items was grandfathered in. All that was needed was that, by December 27, a firearm owned prior to passage of the law would need to be “certified” by the local police department. A fee would be charged per weapon, and a background check run on the owner.

If the owner cleared the background check, and his check cleared the bank, he would then be issued two “certificates of ownership” showing the particulars of the firearm and the date it was issued: one to be kept with the firearm, the other to be kept somewhere safe, just in case the first one was lost or misplaced.

The city council promised that there would be no records kept, and no registration as a precursor to future confiscation. Compliance, for all practical purposes, would be left up to the gun-owning citizens themselves.

Boulder City Attorney Tom Carr said that anyone found with a “non-certified” firearm in his possession after December 27 would be subject to a fine of up to $1,000 and (not or) 90 days in jail. The now-illegal firearm would be confiscated and destroyed.

Carr questioned just how many citizens in the enclave known as “the Peoples’ Republic of Boulder” would comply with the demand that their grandfathered firearms be certified: “This is a very divisive issue where people have strong feelings. The folks who oppose these kinds of bans … some of them suggest they’re not going to cooperate. I can’t predict what people are going to do, but I respect their feelings.”

One of those who “suggested” he wouldn’t be complying is Jon Caldera, a resident of Boulder, president of the free-market think-tank the Independence Institute, and a well-known activist in the freedom fight in Denver and Boulder. His letter of defiance was published by the Denver Post in May: “My home town of Boulder is about to define me as a criminal if I do not disarm or move. Let this column serve as a public notice: I will not comply.”

After writing of his history as a citizen of the once “red” but now “blue” Colorado, and his disappointment with the typical liberal response to gun violence by criminalizing the innocent, he reiterated his defiance: “Let it be known, like those who refused to go to the back of the bus, I will not surrender or destroy my guns, nor will I place my name on a government watch list.”

If national averages of gun ownership are applied to the citizens of Boulder, then there are one or more firearms per citizen, most of them owned before the ban. Roughly speaking, that means there are approximately 150,000 firearms that need to be “certified” by December 27.

As of December 1, the Boulder Police Department had certified 85 of them.

An Ivy League graduate and former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at LightFromTheRight.com, primarily on economics and politics. He can be reached at badelmann@thenewamerican.com.

Happy New Year! I hope everyone enjoyed their holiday season and got plenty of R&R.

With the incoming new governor the constitution provides for the legislature to convene earlier than usual and they are back at it today. The only good news is that the legislative season closes a week earlier this year.

Update your respective legislator contact lists and please join me in the fray.

Over the next 120 days contact is imminent.

This is an addendum to my post above, dated Oct 20, 2018 (6 posts up).

Doing a little more analysis, it turns out that not only has the murder rate in Colorado been rising unabated since before 2013 - the year the gun control laws went into effect - but after 2014, it started rising at an even faster rate. Between 2010 and 2013, the murder rate was rising at a rate of 0.20 murders per 100K population per year, since 2014, it's rate has accelerated, rising at 0.35 murders per 100K population per year. That's an increase of 75%.

So gun-control advocates can't even make the dubious claim that the murder rate would have been worse without the gun-control laws, since the murder rate is now rising even faster than before the law was implemented.



Data Sources:
http://www.disastercenter.com/crime/cocrime.htm

https://ucr.fbi.gov/crime-in-t...pages/tables/table-4

This message has been edited. Last edited by: Storm,

quote:

Originally posted by Storm:
This is an addendum to my post above, dated Oct 20, 2018 (6 posts up).

Doing a little more analysis, it turns out that not only has the murder rate in Colorado been rising unabated since before 2013 - the year the gun control laws went into effect - but after 2014, it started rising at an even faster rate. Between 2010 and 2013, the murder rate was rising at a rate of 0.20 murders per 100K population per year, since 2014, it's rate has accelerated, rising at 0.35 murders per 100K population per year. That's an increase of 75%.

So gun-control advocates can't even make the dubious claim that the murder rate would have been worse without the gun-control laws, since the murder rate is now rising even faster than before the law was implemented.

Storm, I'm going through some difficulties and haven't been able to participate on the forum lately, but I wanted to thank you for the time you put into your analysis. I think most of us who stay informed on the 2A in Colorado institutionally knew that the 2013 gun laws were nothing more than "feel good" laws that give the appearance to the ignorant gun control crowd in support of "doing something" but the laws they support are nothing but ineffective.

Former FEMA director, DHS Under Secretary, and current KOA radio talk show host Michael Brown made the same point as you several weeks ago...only without the benefit of your graphic data.

Thanks for that!

An update on the Boulder so-called Assault Weapons Ban. Jon Caldara shares some ugly emails to him from those who support the ban and tells the story of his daughter being bullied in school because of his opposition to the ban.

In the video Caldara explains that he is trying to crowd source a small legal defense fund for himself to prepare for his arrest, legal defense, and possible day care for his children should he be arrested and detained in court proceedings for his open violation to the ban.

I'm not sure why but I'm unable to use the Karmanator to post the website embedded YouTube video but I would strongly encourage all to watch the 3:47 minute video.

VIDEO: Boulder gun ban update, crowdfunding campaign launched

January 25, 2019 By Complete Colorado Staff

BOULDER–Jon Caldara, president of the free market think tank Independence Institute*, and a Boulder, Colorado resident, gives an update on how things are going with the ongoing resistance to a Boulder ordinance that, among other things, bans many commonly-owned semi-automatic rifles. In the video below, Caldara shares some of the “tolerant” feedback he’s gotten from the first video, where he explained why he’s going public and will not comply with the Boulder gun ban. To help with his defense, he has established a crowdfunding campaign here.

As expected, the 2019 version of the ERPO Red Flag bill was introduced into the House today. I haven't had time to read through the House Bill yet, but just based on this article's reading of the changes I think there are things to be concerned about.

There are pictures and data included in the online version of the article.

Colorado’s “red flag” gun bill makes its debut. Here’s how it compares to other states.

Colorado’s “red flag” gun bill makes its debut. Here’s how it compares to other states.

Also known as an “extreme risk protection order” bill, the legislation is expected to draw significant opposition from Republicans. More than a dozen states have already passed similar laws.

The Colorado Sun
FEB 14, 2019 9:30AM MST Jesse Paul
@jesseapaul

Democratic state lawmakers are introducing a “red flag” gun bill on Thursday, legislation that would allow a Colorado judge to order the firearms of a person deemed a risk to themselves or others to be temporarily seized. The measure is expected to be among the most hotly debated at the Capitol this year, piggybacking off a similar effort in 2018 that was rejected by Republicans. Polls indicate a majority of Coloradans support the concept, but members of the GOP still are likely to mount a significant offensive against the measure. If House Bill 1177 passes the legislature, now controlled by Democrats, and is signed into law by Gov. Jared Polis, Colorado would join a growing number of states that have enacted similar laws since the shooting at Marjory Stoneman Douglas High School in Parkland, Florida. That massacre, which left 17 people dead, prompted calls nationwide for red flag laws, in large part because of the gunman’s documented history of troubles. The one-year anniversary of the attack is Thursday. “It’s a saving-lives bill,” said state Rep. Tom Sullivan, a Centennial Democrat whose son, Alex, was murdered in the 2012 Aurora theater shooting. He’s among the prime backers of the legislation, which creates “extreme risk protection orders” for those deemed too dangerous to have weapons. If passed, the red flag legislation would be the most significant gun-control policy to become law in Colorado since 2013. The Colorado Sun analyzed how the red flag bill being offered in the legislature this year compares to the 2018 effort and what other states have placed into law. The study revealed that Colorado would mostly fit into national models despite a few key exceptions.

Which other states have red flag laws? Do Coloradans support them? If Colorado passes a red flag bill this year, it would join 13 states that have passed similar laws. More than a dozen other states, including New Mexico and Nebraska, also are debating similar measures this year, according the pro-gun-control group Giffords, named after former Arizona Congresswoman Gabby Giffords, who was shot in a 2011 attack.

The laws allow judges to issue so-called extreme risk protection orders to temporarily seize firearms. The Associated Press reports that judges across the country issued more than 1,700 gun-seizure orders in 2018 under red flag laws. The real tally is likely higher, though, because the data is incomplete and doesn’t include California’s numbers. Red flag laws have been linked to reduced gun violence, especially suicides. According to the AP analysis, one study found that the Connecticut law reduced gun suicides by more than 10 percent in recent years and that a similar law in Indiana led to a 7.5 percent drop. There are strong signs Coloradans favor the policy. For instance, a new poll of registered Republican voters in Colorado released Thursday by GOP pollster Magellan Strategies shows that 60 percent support “allowing a judge to temporarily take a gun from someone who is determined to be a significant risk to themselves or others, based on evidence presented to a judge.” Another 33 percent said they oppose the concept while 7 percent said they were unsure or refused to answer the question. The poll’s margin of error is plus-or-minus 3.9 percentage points. Additionally, the Giffords organization released a poll from Colorado’s Keating Research in December showing nearly 80 percent of active voters surveyed were supportive of a red flag law. “I anticipate a little bit more organized opposition, but overall I think — from the campaign trail to everything that we’ve heard — that it’s overwhelmingly supported by the vast majority of Coloradans,” said House Majority Leader Alec Garnett, a Denver Democrat who is bringing this year’s bill with Sullivan.

How does Colorado’s effort compare nationally? In most ways, the red flag bill being introduced in Colorado is similar to those that other states have approved. But there are some key differences in how law enforcement would carry out seizing a weapon and how the due-process rights would be handled for someone whose weapons are taken. Here is how the policy is designed to work: 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. For the initial seizure order to be granted a judge must find there is a preponderance of the evidence showing that the person in question is a significant risk to either themselves or other. For the longer seizure, there has to be clear and convincing evidence. “The timeline is very similar to the majority of the states,” said Garnett.

California and Delaware allow longer temporary seizure periods before a court hearing for 21 and 15 days, respectively. Maryland and New York have a shorter temporary seizure period, with seven- and six-day maximums, respectively. Almost every state follows the year-long total seizure span. Illinois and Vermont, however, mandate 6 months and Indiana 180 days. Colorado’s bill would allow family members or law enforcement to petition for a gun seizure. Seven other states — California, Illinois, Massachusetts, Maryland, New Jersey, Oregon and Washington — also adhere to that standard, according to an analysis of red flag laws by the Giffords organization. Three states limit petitions to law enforcement. Maryland also allows mental health professionals to petition for a temporary seizure. Colorado’s bill this year would not, with the expectation that others could contact law enforcement to warn them of a person who is dangerous and, in turn, have authorities investigate. (Something to note: In Colorado, a red flag order would be separate from a mental health hold, meaning that people whose guns are seized wouldn’t necessarily be ordered into mental health treatment.) “By preponderance, it’s going to be law enforcement,” Sullivan said. “They’re the ones who are familiar with these people. These are people that are in the system, who they have become aware of. By adding a family member into it, that gives the family the opportunity (to intervene).”

One key element of Colorado’s proposed law is language eliminating a two-step system for how firearms are seized. Some states require law enforcement to make contact with someone in distress to take their firearms, but they would need a second warrant to access someone’s home if that person does not comply. Colorado’s bill this year would allow judges to issue a gun-seizure order and a search warrant at the same time. Garnett said that’s something the state’s law enforcement community wanted in the bill to prevent a violent confrontation with someone unwilling to hand over their guns. “At that point, the two-step system has elevated the level of danger for everybody involved,” he said, “including law enforcement.” Four states — Delaware, Illinois, New Jersey and Rhode Island — similarly require a warrant to be issued concurrently with a gun-seizure order, according to Giffords. The most notable difference between Colorado’s proposed law and what other states have implemented: The measure mandates that a lawyer be provided to the gun owner at the first hearing on whether a seizure order should be extended. The sponsors also want to provide the gun owner a longer period to be able to petition the court to re-examine their case, as other states have done. Garnett and Sullivan hope that those two elements serve as ample due process protections — a major concern for Republican lawmakers pushing back against the red flag concept. A false or malicious effort to have someone’s guns seized, under the bill, would be subject to criminal prosecution. “There are some nuances to the (bill) that I think are very unique — that I think states will begin to use as a model,” Garnett said.

What’s different about this year’s bill? The 2018 bill brought by Garnett differed in a few ways. Among the most significant was a provision that mandated the temporary seizure time period be no longer than seven days and the permanent seizure period be no longer than six months. That’s half as long as the periods outlined in this year’s bill, changes that were made at the recommendation of law enforcement, Garnett said. Also, if a person whose guns have been seized wants to ask the court to reconsider once a long-term protection order is issued, they must show proof that they are no longer a significant risk. In 2018, the burden of proof for every hearing was on whomever was petitioning for the guns to be temporarily taken away. Garnett says that, too, was changed on the recommendation of law enforcement. However, it should be noted, a person can ask multiple times for the court to reconsider its long-term gun-seizure order as part of this year’s bill. The 2018 version only gave them one opportunity to do so. The legislation this year also lacks a Republican prime sponsor. In 2018, then-Assistant House Minority Leader Cole Wist, a Centennial Republican, signed onto the bill with Garnett, and faced immense backlash from within his party and the fiercely pro-gun group Rocky Mountain Gun Owners. (Rocky Mountain Gun Owners is again opposed to the bill.)

Wist lost in the 2018 election to Sullivan. On Thursday Wist said he wouldn’t be supporting this year’s version of the bill because of the changes that had been made.

The biggest difference between last year’s bill and the effort this year is the political makeup of the legislature. Republicans controlled the state Senate and were able to quickly defeat the bill in 2018 once it arrived in their chamber. Democrats are in control of the House, Senate and governor’s office now. One key similarity: This year’s bill will also be named in the honor of slain Douglas County Sheriff’s Deputy Zackari Parrish, who was fatally shot by a man who had long been on law enforcement’s radar as someone in distress. What are the bill’s chances? While it’s impossible to predict, it’s fair to say the legislation has a wide lane toward passage. The bill will be introduced in the House, where Democrats have a significant majority. The Senate is where things could get a bit more complicated. Democrats hold a 19-16 majority, but at least two of those lawmakers have voted against gun-control legislation in the past. Senate President Leroy Garcia of Pueblo and Sen. Kerry Donovan of Vail have voted to repeal Colorado’s controversial law that limits gun magazines to 15 rounds. Donovan says she is supportive of the red flag bill concept, but Garcia has declined to make a decision until he sees the measure’s final language. “I recognize this conversation is difficult, but it is one we need to have and an issue we need to address,” Garcia said in a statement Thursday. “We must protect the most vulnerable while respecting law-abiding citizens.”

Garnett said he has been speaking with Garcia about the bill and that the conversations have been “really thoughtful and positive.” As for potential Republican votes for the bill, that’s even harder to predict. The two lawmakers in the House last year who voted for the measure — Wist and Dan Thurlow of Grand Junction — are no longer in the legislature. GOP leadership in the House was quick to blast the bill on Thursday. “I am extremely concerned about the lack of due process in this bill,” House Minority Leader Patrick Neville, R-Castle Rock, said in a written statement. “This is an even more draconian version of legislation than what we saw last year.” Gov. Polis has vowed to sign a red flag bill if it makes it to his desk. The legislation’s backers are set to formally announce their bill at a 1:30 p.m. news conference at the Colorado Capitol on Thursday. Douglas County Sheriff Tony Spurlock, a Republican who last year pushed for a red flag bill, and Boulder County Sheriff Joe Pelle, a Democrat, are slated to be in attendance. Pelle’s son was critically wounded in the shooting that left Parrish dead.

This link to HB19-1177 Extreme Risk Protection Order contains a PDF link to the House bill as introduced.

https://leg.colorado.gov/bills/hb19-1177

quote:

Originally posted by Modern Day Savage:
An update on the Boulder so-called Assault Weapons Ban. Jon Caldara shares some ugly emails to him from those who support the ban and tells the story of his daughter being bullied in school because of his opposition to the ban.

In the video Caldara explains that he is trying to crowd source a small legal defense fund for himself to prepare for his arrest, legal defense, and possible day care for his children should he be arrested and detained in court proceedings for his open violation to the ban.

I'm not sure why but I'm unable to use the Karmanator to post the website embedded YouTube video but I would strongly encourage all to watch the 3:47 minute video.

VIDEO: Boulder gun ban update, crowdfunding campaign launched

January 25, 2019 By Complete Colorado Staff

BOULDER–Jon Caldara, president of the free market think tank Independence Institute*, and a Boulder, Colorado resident, gives an update on how things are going with the ongoing resistance to a Boulder ordinance that, among other things, bans many commonly-owned semi-automatic rifles. In the video below, Caldara shares some of the “tolerant” feedback he’s gotten from the first video, where he explained why he’s going public and will not comply with the Boulder gun ban. To help with his defense, he has established a crowdfunding campaign here.

Here's the video.

quote:

Originally posted by Modern Day Savage:
Storm, I'm going through some difficulties and haven't been able to participate on the forum lately, but I wanted to thank you for the time you put into your analysis. I think most of us who stay informed on the 2A in Colorado institutionally knew that the 2013 gun laws were nothing more than "feel good" laws that give the appearance to the ignorant gun control crowd in support of "doing something" but the laws they support are nothing but ineffective.

Former FEMA director, DHS Under Secretary, and current KOA radio talk show host Michael Brown made the same point as you several weeks ago...only without the benefit of your graphic data.

Thanks for that!

You are very welcome. Glad I can contribute. I'm sorry to hear about your difficulties. I hope they are resolved soon. Thank you for your contributions.

I think putting graphs, analysis, and numbers behind our argument gives it weight.

Like Colorado, Washington state's murder rate has risen since they passed their UBC law in 2014.

I just learned this afternoon that the House hearing for this bill will be held tomorrow (Thursday 2-21-19) I'll be adding or editing posts on the hearing and this bill over the next day or two.

I want to go to the hearing and testify against the bill but at this point it doesn't look like I'm going to make it. If anyone can possibly attend please do so and report back on it here.

I'm getting some intel that the Democrats ramming this bill through are using the same dirty tactics that they used in 2013 when they rammed the last set of anti-2A laws into effect. Supposedly they are scheduling the hearing in a larger room...but at the last minute they are rescheduling the hearing room to a smaller one in order to limit the number of those protesting the bill to actually testify and to possibly confuse some who want to testify against it to go to the wrong hearing room and miss their opportunity. If anyone plans on attending stay sharp and be prepared for last minute changes.

Even if you can't attend the hearing please take the time to contact your reps and oppose the bill in its current form, and if you have any suggestions for improving the bill please let them know. Hell, contact the reps that don't represent your district too. Even if the reps are inclined to disregard your opposition to the bill I want them to know that we are engaged and that they are kicking over a hornet's nest by ramming this bill through in it's current form.

I've already contacted my reps and later today I'll be "shakin' the tree" and letting a few reps who are pushing this bill about my opposition and my suggestions for improving it.

Colorado: Urge Committee Members to Oppose "Red Flag" Legislation, House Bill 1177

House Bill 19- 1177: Extreme risk protection order or "red flag" legislation sponsored by Majority Leader Alec Garnett (D-Denver) and Representative Tom Sullivan (D-Centennial), would authorize the seizure of firearms and ammunition from individuals without due process. Unchallenged statements made by a petitioner before a judge, alleging that someone is a danger to themselves or others in an ex parte proceeding -- prior to any formal court hearing at which the respondent can be represented by counsel and present counter evidence -- would be sufficient for law enforcement to enter that person's home and confiscate their private property.

This message has been edited. Last edited by: Modern Day Savage,

NOTE: I've edited this post to add info.

Constitutional Law and Second Amendment expert David Kopel recently wrote a piece on his objections to the Red Flag bill as it was introduced. It is not the most well-written article but I suspect the authors were in a bit of a hurry to get it published before the bill was heard and the underlying points they make are still worth considering when evaluating the Red Flag bill.

Kopel has also been interviewed about this Red Flag bill and I think he does a slightly better job of explaining his objections in these interviews so I'm going to include links to the interviews which can be streamed online or downloaded.

2-19-19 KHOW 25 minute Kopel interview w KHOW's Krista Kafer:
https://khow.iheart.com/featur...te-on-red-flag-bill/

2-20-19 KHOW 17:45 minute Kopel interview w KHOW's Dan Caplis:
https://khow.iheart.com/conten...te-on-red-flag-bill/

2-21-19 KHOW 15:00 minute Kopel interview w KHOW's Ross Kaminsky:
https://khow.iheart.com/conten...orado-red-flag-bill/

NOTE: There are hyperlinks to some of the facts listed in the actual website article.
Kopel and Greenlee: Plenty of red flags in Colorado’s ‘extreme risk’ protection order bill

February 19, 2019 By David Kopel and Joseph Greenlee

Editor’s note: The following is an analysis of House Bill 19-1177, which would create in Colorado an “Extreme Risk Protection Order” process for the confiscation of firearms, more commonly known as a red flag law. The authors are David Kopel, research director at the Independence Institute, and Joseph Greenlee, an attorney in Steamboat Springs. The bill sponsors are Rep. Tom Sullivan, D-Centennial, Rep. Alec Garnett, D-Boulder, Sen. Lois Court, D-Denver, and Sen. Brittany Pettersen, D-Jefferson County.

Defective title

The bill violates the Colorado Constitution’s Clear Title rule. The title is about “extreme risk protection orders.” But the statute requires the finding of only a “significant risk.”

According to the Colorado Constitution, “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title;…” Colo. Const., art. V, § 21. Unlike similar sections in other state constitutions, Section 21 requires that the subject be “clearly” expressed in the title. In re Breene, 14 Colo. 401, 406, 24 P. 3 (1890).

The purpose of the Clear Title rule is so that the public is not misled in the legislative process. A “significant risk” is not the same as an “extreme risk.” The title defect of HB19-1177 is unusual. This is the rare bill in which the title is actually deceptive because it is directly contrary to the text.

Weak standard of proof, and no requirement of imminence

The Petitioner must establish “FACTS THAT GIVE RISE TO A REASONABLE FEAR OF FUTURE DANGEROUS ACTS BY THE RESPONDENT.” In contrast, a temporary civil protection order requires the finding that an “imminent danger exists.” C.R.S. §13-14-104.5(7)(a). In other words, the court must find that there actually is an imminent danger.

For a continuing order, HB19-1177 requires a somewhat higher standard of proof: “clear and convincing evidence.” The same standard should be required at the ex parte hearing. After all, the petitioner at the ex parte hearing enjoys the unusual luxury of being able to present one-sided evidence to the court, with no opportunity for the court to consider contrary evidence. A petitioner with a solid case, and facing no contradiction, ought to be able to meet the clear and convincing standard.

Mandatory government defamation of the innocent

Suppose a petition is filed against a person, and the court denies the petition for lack of evidence. Or suppose a confiscation order is issued on day 1 (ex parte) and overturned on day 14 (after the court hears evidence from both sides). Based on consideration of all the evidence, the court concludes that the Respondent was unfairly and inaccurately accused. The Respondent gets her firearms back. If she was lucky enough not to be criminally attacked when she was defenseless on day 12, perhaps no permanent harm is done to the innocent Respondent.

However, HB19-1177 ensures that the Respondent’s reputation in the community will be destroyed—even for petitions that are rejected on day one. Under §13-14.5-104(5), law enforcement must make a good faith effort to give notice to a Respondent’s family and any third parties that may be at risk prior to filing a petition for an extreme risk protection order. At risk third parties may include local schools, the Respondent’s neighbors, boss, coworkers, friends, church members, and so on. This happens before the Respondent has ever stepped into court to defend herself and before a court has ruled on the merits of the petition.

The scope of the defamation problem would be reduced if the bill applied only to “extreme” and “imminent” risks.

Duration

The Order in the 2019 bill is valid for 364 days. In the 2018 bill, it was 182. The former period is more than enough time for authorities to take steps to address the Respondent’s underlying problems, such as by mandatory psychiatric evaluations, or other means.

Firearms custody

HB19-1177 requires the Respondent to transfer the firearm(s) to a Federal Firearms Licensee (a gun store) or law enforcement agency. Yet restraining orders that involve firearms allow a transfer to a private party. C.R.S. §13-14-105.5.

No timeline for the law enforcement agency to return the firearm

The bill says the firearm must be returned “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.”

In other words, there is no timeline for law enforcement to return firearms to their lawful owners. Law enforcement agencies do sometimes refuse to return firearms to lawful owners, and courts sometimes allow it—typically under the theory that the person’s rights are not violated if he can legally acquire new firearms. See City of San Jose v. Rodriguez, no. H040317, 2015 WL 1541988 (Cal. Ct. App. Apr. 2, 2015) (no constitutional violation); Walters v. Wolf, 660 F.3d 307 (8th Cir. 2011) (due process violation but no Second Amendment violation); Houston v. City of New Orleans, 675 F.3d 441 (5th Cir. 2012) (no Second Amendment violation) (opinion later vacated).

A strict deadline is preferable—e.g., the firearm(s) must be returned within 3 days.

Similarly, if a confiscated firearm actually belongs to someone else, HB19-1177 says the firearm “shall be returned” to that person. But again, there is no time limit.

Concealed carry permit restoration for the falsely accused

The Respondent’s concealed carry permit is revoked immediately when a temporary order is entered. Even if the temporary order is terminated two weeks later, once the court hears the Respondent’s side of the story, the Respondent must reapply for a carry permit. Carry permits are expensive and time-consuming. The HB19-1177 process deprives innocent Respondents of their right to bear arms for months.

No notice of right to counsel

The notice provided fails to inform the Respondent that an attorney will be appointed for her. It just says that she “may seek the advice of an attorney.”

No right to cross-examine hostile witnesses

At the hearing for the 364-day order, the court may “EXAMINE UNDER OATH THE PETITIONER, THE RESPONDENT, AND ANY WITNESSES THEY MAY PRODUCE, OR, IN LIEU OF EXAMINATION, CONSIDER SWORN AFFIDAVITS OF THE PETITIONER, THE RESPONDENT, AND ANY WITNESSES THEY MAY PRODUCE.” This deprives the Respondent of the right to cross-examine witnesses against her.

Time frames skewed against respondent

The hearing on a motion to renew the 364-day order must be held within 14 days, but the hearing on the Respondent’s motion to terminate the order must be held between 14-28 days. Why make the Respondent wait longer on her motion?

No effective protection against false accusations

The bill provides that “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 number of perjury prosecutions across the state each year is very low.

It is well-known that laws about child abuse, sexual assault, and domestic violence are sometimes used as tools by spurned lovers—and by people seeking revenge for other motives. There is no reason to believe that the type of people who pervert the law by making false reports will somehow be more scrupulous regarding this new tool.

The bill fails to provide a civil remedy for persons who are victimized by false accusations. There should be a stronger deterrent to prevent people from using this law to harass gun owners.

One of the authors, Joseph Greenlee, had a client who was an enthusiastic hunter. He wrote a negative review about his former employer online. To retaliate, the employer attempted to get a protection order against him so he wouldn’t be able to hunt anymore. The temporary protection order was granted but the permanent order was defeated.

Without a strong civil remedy, there is no practical deterrent to malicious reports.

No requirement that terminated orders be expunged

Regarding the reporting to background check systems, the bill says, “THE ORDER MUST REMAIN IN EACH SYSTEM FOR THE PERIOD STATED IN THE ORDER, AND THE LAW ENFORCEMENT AGENCY SHALL ONLY EXPUNGE ORDERS FROM THE SYSTEMS THAT HAVE EXPIRED OR TERMINATED.” This language provides the conditions under which the record may be removed but does not actually require removal.

Later, the bill expressly does require records removal for orders that are terminated before their expiration, but does not require records removal for orders that simply expire:

IF AN EXTREME RISK PROTECTION ORDER IS TERMINATED BEFORE ITS EXPIRATION DATE, THE COURT CLERK SHALL FORWARD, ON THE SAME DAY AS THE TERMINATION ORDER, A COPY OF THE TERMINATION ORDER TO THE COLORADO BUREAU OF INVESTIGATION AND THE APPROPRIATE LAW ENFORCEMENT AGENCY SPECIFIED IN THE TERMINATION ORDER. UPON RECEIPT OF THE ORDER, THE COLORADO BUREAU OF INVESTIGATION AND THE LAW ENFORCEMENT AGENCY SHALL PROMPTLY REMOVE THE ORDER FROM ANY COMPUTER-BASED SYSTEM IN WHICH IT WAS ENTERED PURSUANT TO SUBSECTION (2) OF THIS SECTION.

Problems with county venue

“A PETITION FOR AN EXTREME RISK PROTECTION ORDER MUST BE FILED IN THE COUNTY WHERE THE RESPONDENT RESIDES OR WHERE THE FIREARMS ARE LOCATED.”

But the notice served on the Respondent requires him to “IMMEDIATELY SURRENDER TO THE (INSERT NAME OF LAW ENFORCEMENT AGENCY IN THE JURISDICTION WHERE THE RESPONDENT RESIDES) ALL FIREARMS IN YOUR CUSTODY, CONTROL, OR POSSESSION, AND ANY CONCEALED CARRY PERMIT ISSUED TO YOU.”

A fairer process would take place in the county where the Respondent resides. For example, consider a Respondent who lives in Denver County, stores a gun there, and also stores hunting rifles at a friend’s hunting cabin near Craig, in Moffat County. The Petition is filed in Moffat County. Based on an ex parte ruling in Moffat, the Respondent must retrieve his guns from Craig, drive across state with them, and surrender them to Denver law enforcement.

But when the Respondent finally gets his day in court, the hearing will be in Moffat County. Even though most witnesses would presumably be in the Denver area.

The cause of the poor drafting

In 2018, the Conference of Chief Justices asked the Uniform Law Commission (ULC) to draft a model red flag law. The ULC convened a study committee composed of diverse stakeholders, such as the National Sheriffs Association, International Association of Chiefs of Police, psychiatric experts, the state courts, pro-gun and anti-advocates, pro-gun and anti-gun state legislators, and others. One of the authors, David Kopel, was among the members of the committee. The committee overwhelmingly voted to recommend that the ULC move forward with drafting a model law. Support for a model law came from across the political spectrum, including all the state legislators, law enforcement, and the courts. Opposition to the model law was expressed by the Giffords Law Center, which preferred that legislators have available only Giffords’ own model, and not the more balanced model that would be produced by the ULC.

Perhaps as a result of lobbying from Giffords, the Uniform Law Commissioners voted not to draft a model law.

HB19-1177 comes much closer to the one-sided approach of an advocacy group that is hostile to constitutional rights (including due process) than to the more even-handed approach that is typical of the Uniform Law Commission.

Social science research

Gun confiscation laws like HB19-1177 are new, and only a few states have more than a few months of experience: California (2016), Connecticut (1999), Indiana (2005), and Washington (2016). Social science research on the topic is therefore sparse. No research has found any statistically significant reduction in crime, including mass shooting fatalities, from red flag laws. Studies about suicide reduction have mixed results.

One study looked at suicide in Connecticut and Indiana. “Whereas Indiana demonstrated an aggregate decrease in suicides, Connecticut’s estimated reduction in firearm suicides was offset by increased nonfirearm suicides.” Aaron J. Kivisto & Peter Lee Phalen, Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015, 69 Psychiatric Services (June 1, 2018). Available here (abstract only; article is paywalled).

A different study of Connecticut examined 762 recipients of gun confiscation orders. Of this group, 21 later committed suicide—6 by firearms, and 15 by other means. Jeffrey W. Swanson, et al. Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does It Prevent Suicides? 80 Law & Contemporary Problems 179 (2017), available here.

Some methods of self-inflicted injury—such as hanging or strangulation—are nearly as likely as firearms to result in death. Other methods of self-inflicted injury—such as cutting or drug overdoses—are much less likely to do so, depending on the individual’s intent. For example, cutting one’s arm is a sign of mental distress; stabbing and ripping one’s intestines is a suicide attempt. If the fatal level of a particular prescription drug is 20 pills, taking 8 sleeping pills may be a cry for help; taking 80 is a serious attempt at suicide.

Unfortunately, the article failed to make this distinction. It treated all of the above methods of self-harm as serious suicide attempts, even though some were real suicide attempts (e.g., hanging), and some are not (e.g., low-level overdoses). Based on this error, the article then made various extrapolations, to create the factoid that 1 in 20 gun confiscation orders prevents a suicide.

Another study looked at both crime and suicide in all four states. John R. Lott and Carlisle E. Moody, Do Red Flag Laws Save Lives or Reduce Crime? (Dec. 28, 2018), available here (free public access). The study found no statistically significant changes in “murder, suicide, the number of people killed in mass public shootings, robbery, aggravated assault, or burglary.” One of the study’s authors, John Lott, is a controversial person. The other author, Carlisle Moody, is an econometrician of the highest expertise and reliability. (A decade ago, Kopel co-authored a study with Moody: David B. Kopel, Carlisle E. Moody & Howard Nemerov, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations, 13 Texas Review of Law & Politics 1 (2008), available here.

Sunset

Creating a system for the specific purpose of ex parte deprivations of constitutional rights is perilous.

Members of the current General Assembly may have no intention of extending the precedent to allow deprivation of other constitutional rights. But future General Assemblies may have very different philosophies. However high a majority party is riding one day, history shows that there will be a different majority another day. The federal Marihuana Tax Act of 1938 (the foundation of improper federal intrusion into a matter of state law) was made possible by the model of the National Firearms Act of 1934 (using the tax power as a pretext for regulation of state issues).

Legislators should also consider that the vast majority of law enforcement officers are ethical, but a minority are not. In the event of a terrorist attack on the magnitude of 9/11, HB19-1177 provides a police chief or sheriff who wants to broadly crack down on an unpopular minority group with a very potent weapon. It is unrealistic to imagine that in the aftermath of a terrorist attack, every judge would have the fortitude to deny the urgent petitions of law enforcement.

Considering the novelty of red flag laws in most states, the absence of data indicating that such laws reduce crime, the conflicting and sparse research on suicide reduction, and the extreme risks of turning the Minority Report movie into the law of the land, a sunset provision for the gun confiscation law would be prudent. On the sunset date, the General Assembly can consider experience, including, perhaps, abuses of the law. A re-enacted law can then include reasonable modifications. If business licensing systems are appropriate for sunset review, then surely a law that authorizes ex parte gun confiscation and the prohibition of exercise of constitutional rights also merits sunset review.

David B. Kopel is Research Director at the Independence Institute, a free market think tank in Denver. Joseph G.S. Greenlee is an attorney in Steamboat Springs.I've edited this post to add info.

This message has been edited. Last edited by: Modern Day Savage,

An article on George Brauchler's opinion of the Red Flag Law.

George Brauchler was the Republican candidate for Colorado Attorney General, last year, and is the Arapahoe County District Attorney.

https://pagetwo.completecolora...in-on-red-flag-bill/

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Former state Attorney General candidate George Brauchler weighs in on Red Flag bill

February 20, 2019 By Scott Weiser


ARAPAHOE COUNTY–Complete Colorado interviewed District Attorney of the 18th Judicial District George Brauchler Tuesday about HB19-1177, the “Red Flag” bill working its way through the statehouse that would allow police to seize firearms from people thought to be dangerous.

Brauchler ran for state Attorney General on the Republican ticket in the last election, losing to Boulder Democrat Phil Weiser. He was elected as DA first in 2013 and is in his second 4-year term.

Brauchler took considerable heat from his fellow Republicans last year for supporting a similar bill that was introduced in the final days of the legislative session. That effort died in the Senate.
George Brauchler

This year Brauchler still supports the need for a way to deal with people who may pose an extreme risk to the public, but disagrees with the focus on taking away guns rather than getting them into mental health treatment.

“This is a bill that is about guns, and not about mental health,” said Brauchler. “They could have attacked the mental health side and the problems with it. And they didn’t.”

Interviewed last year by Complete Colorado, Brauchler said that he experienced a person brought into an emergency room on a 72-hour mental health hold walking back out the door before Brauchler had even completed his own report.

“I still think the 72-hour mental health hold is broken. It doesn’t work,” said Brauchler. “If it we were able to fix that piece, it seems to me that would take care of almost every situation where something like this red flag bill might come up.”

Referring to one improvement over last year’s proposal, Brauchler said, “The appointment of private counsel at state expense for a person who becomes subject to one of these orders, that makes sense.”

Under the bill, if the subject of an order wants her rights restored after the order has been lifted, it’s on them to prove that they should have them restored rather than the burden being on the state to prove they should not. Brauchler says this is simply unacceptable.

“They have to prove it at the highest level of standard of proof in all of civil law: clear and convincing evidence,” said Brauchler.

That is the civil equivalent of the standard to convict in criminal law: beyond all reasonable doubt. Guns can be initially seized based only on a preponderance of the evidence, which is the lowest standard in civil law, generally referred to as the 51 percent rule. But, Brauchler says, to have gun rights restored the highest level of civil proof is required.

“That is not how we treat people who want to get their rights restored. We just don’t do that. And that’s what this bill does,” said Brauchler.

Brauchler also objects to the preponderance of the evidence standard for a petition to be filed and a warrant to search and seize guns to be issued. “I think that the due process protections that were there last year had been significantly watered down, to the point where I just can’t support it,” he said.

Another area of concern is the bill’s requirement that if the person petitioning for an order is a police officer, that officer has to make a “good faith effort” to notify “any known third party who may be at risk of violence” of the impending petition. What concerns Brauchler is the ambiguity of who a “third party” might be.

“If I thought their goal or the outcome was to start notifying employers, and schools, and stuff. That would make me really, really skeptical about that language because that should not be the way this goes,” said Brauchler. “Even with our domestic violence restraining order we don’t have law enforcement start advertising to everyone in someone’s life that they’re the subject of this thing.”

Brauchler expressed significant concerns about the lack of a clear definition of the standard a judge is to use in deciding whether to issue an order. “Nowhere in these 30 pages do they even try to define extreme risk, or even require that a court find the extreme risk. In fact, it’s only a significant risk,” said Brauchler. “There is a qualitative difference between significant and extreme, so I think it’s misleading.”

“Once the court determines someone’s a significant risk, they label them through the protection order as an extreme risk. This is geared towards firearms,” Brauchler continued.

Brauchler is skeptical of the bill’s motives because nothing in it mandates treatment.

“There’s no requirement that the person get any sort of court ordered treatment,” said Brauchler. “And that’s what makes the bill feel more and more like it’s about firearms, and not about mental illness.”

“If the approach taken was to fix the 72-hour mental health hold rule then you could say this is 100 percent about mental health. All it does is put this guy in a position to get mental health treatment,” said Brauchler. “It doesn’t try to touch his property. It doesn’t try to do anything with his rights, it just puts him in a position, even on a temporary basis, to get some sort of mental health treatment.”

“This particular version of the red flag bill is something that I am going to oppose this Thursday,” Brauchler said.

The bill is scheduled to be heard for the first time on Feb. 21 in the House Judiciary Committee at 1:30 p.m. in the Old State Library. Those who cannot attend interested in listening to the hearing can do so by going online to www.leg.colorado.gov/ clicking on Watch & Listen, scrolling to House Committees of Reference and selecting Judiciary. Follow the instructions to log on to the audio-only webcast.