Red Flag of Doom

In a completely expected move, Colorado Democrats introduced their new and extremely radical “Extreme Risk Protection Order” (ERPO) legislation on February 14, 2019, the one year anniversary of the Parkland school shooting.

Four Democrat lawmakers are sponsoring House bill HB 19-1177: Representatives Alec Garnett (who co-sponsored last year’s bill), Tom Sullivan (whose son Alex was killed in the Aurora Theater shooting, and who replaced last year’s sponsor Cole Wist (R-Centennial)), along with Senators Lois Court (a veteran gun-grabber of 2013 infamy) and newly elected Brittany Pettersen, (whose husband runs the radical progressive group ProgressNow Colorado).

A critical reading of HB 19-1177 is enough to make any civil libertarian’s stomach churn. Rife with gray areas and opportunities for abuse, this bill, should it become law, will provide the legal precedent for gun confiscation in a state that until recently was known for its rugged frontier individualism.

Firstly, the pool of potential petitioners (those who initiate the ERPO with the court) is huge. It includes any person related to the respondent (the target of the order) by blood, marriage or adoption; a person who has a child in common, a person who has lived with the respondent within the last 6 months, a domestic partner, a parental relationship, a legal guardian, and any person who has been in an “intimate relationship.”

Most troublingly, the petitioner could be a law enforcement officer or law enforcement agency. Imagine, if you will, a land where a county sheriff or one of his deputies could go to court and file a petition to deprive a citizen, without a crime having been committed and with no prior notice, of his legally owned property. There have been times and places in this country where police chiefs and county sheriffs have been corrupt, criminal and even members of the KKK. When a corrupt law enforcement officer – who as a government agent has the legal monopoly on the use of force – has the capacity to disarm citizens under his jurisdiction without the due process of law, the state of Colorado has taken a giant step toward fascism and tyranny.

How would an ERPO work?

First, any of the persons named above would go to a court and initiate a petition to “request a temporary extreme risk protection order without notice to the respondent.” This petition would be signed under oath and the penalty of perjury, and if it’s filed by a law enforcement agency, would also include a sworn affidavit for a search warrant. In essence, you could open a knock on your door (or be subject to a no-knock raid) with no prior warning and have law enforcement enter your home to take away any and all guns and ammunition you own. You would not have any chance to defend yourself against the allegations in the petitioner’s affidavit before being forcibly deprived of your property.

The standard that the court would use in determining whether or not to issue a temporary ERPO is a “preponderance of evidence,” which is a lower standard of evidence than a respondent would have to have in order to get the order revoked (more on that later).

After the initial “temporary” ERPO is issued, the court would have up to 14 days to schedule another hearing to determine if a 364 day “permanent” ERPO should be issued.

Some news stories reported that respondents would be provided with attorneys paid for by the court. This is incorrect. The bill calls for the court to appoint an attorney, but only “indigent persons” get the attorney fees paid by the court.

In a scary “destroy your life” requirement, if the petitioner is a law enforcement agency it is required to notify “third parties who may be at risk” of the ERPO issued against you. In other words, even if the ERPO is subsequently lifted, you will still have the stigma of this order being issued against you following you for the rest of your life without the due process of law having taken place.

If you are the holder of a concealed carry permit, that permit would be immediately revoked and confiscated.

Unlike the filing fee for a temporary restraining order, which is $97, it would not cost anything for a petitioner to file an affidavit for an ERPO. Nothing. Zero dollars.

What are the criteria for issuing these orders? A petitioner must allege that the respondent has:

  • A recent act of violence or threat of violence against self or others, regardless of whether or not such threat involves firearms
  • A pattern of acts or credible threats of violence
  • Violation of a civil protection order
  • A conviction for domestic violence
  • The history of use, attempted use or threatened use of physical force by the respondent against another person, or a history of stalking
  • Prior arrests for certain crimes
  • Corroborated use of abuse of controlled substances or alcohol (who defines abuse)?
  • Evidence of recent acquisition of a firearm or ammunition by the respondent (this could apply to any gun owner).

The court will determine if the respondent should be evaluated for a mental health hold.

This bill would require the ERPO to be served personally on the respondent, and if initiated by a law enforcement agency would also include a search warrant.

This bill singles out special treatment for veterans, in stipulating that the case should be referred to a veterans court if one is available.

Termination of Extreme Risk Protection Orders

Now for the really scary part. An initial ERPO lasts for a mandatory 364 day period. During this period, the respondent will have exactly ONE chance to request a hearing to restore his or her constitutional and natural rights. Notice of the request of the hearing must be served on the petitioner between 14 and 28 days from the date the request is filed with the court.

At this hearing, the petitioner must establish by CLEAR AND CONVINCING EVIDENCE that “he or she no longer poses a significant risk to self or others by having in his or her custody or control a firearm or by purchasing, possessing or receiving a firearm.” What is “clear and convincing evidence?” It is the highest standard of proof in civil law – a higher legal standard than the one of “preponderance of evidence” standard that the petitioner had to have in order to get the order in the first place. Put simply, this law is stacked against the respondent and it could be extremely difficult to get one of these ERPOs rescinded.

But wait, it gets worse. When it comes time for the ERPO to expire, the court is required to notify the petitioner so they can request an extension of the order. If the court determines that the order should be extended, it may do so for a period of up to one year. There is no language fixing a number of extensions or terms. So, theoretically, a court could order a series of 6-month extensions indefinitely. What’s more disturbing is that the respondent, under the language in the bill, does not get subsequent chances to request the order to be lifted. There is nothing in the bill that allows for further requests after the initial one.

Surrendering Firearms under an ERPO

Under this bill, a respondent would be required (or forced by armed law enforcement agents) to give up his or her firearms and ammunition. Said firearms would have to be surrendered to a licensed Federal Firearms dealer (FFL) for safekeeping. Of course, if a FFL provides such a service, it would not be for free and the respondent would incur the cost of this storage, in addition to all the legal fees already incurred.

If the firearms are not surrendered to a FFL, they are required to be surrendered to the law enforcement agency where the respondent lives. The bill is silent as to who would defray the costs of this (if any) and there is no assurance that the agency would return them upon the expiration of the ERPO.

After the ERPO expires

After the expiration of the ERPO, the respondent would have to go through another background check process to recover his or her property. If the respondent fails to reclaim firearms held by a law enforcement agency within one year, the agency will dispose of the firearms.

The respondent would also have to re-apply and pay the fees for a new concealed carry permit.

Illegal and Unconstitutional

This bill, as written, is both illegal and unconstitutional. It violates the 2nd, 4th, and 5th amendments to the United States Constitution and the Colorado Constitution. Any elected official who supports or votes for this bill is in violation of their oath of office.

Another unfortunate side effect (though I’m sure it’s intentional) is that it could drive a wedge between law enforcement – most of whom are staunch Second Amendment supporters – and the rest of us. It is my sincere belief and hope that should this bill become law that most law enforcement officers would choose to follow the constitution, not this law. “We were only following orders” is a clear path to tyranny.

Call to Action

This illegal bill is being heard before the Colorado House Judiciary Committee at 1:30 pm on Thursday, February 21 in the Old State Library room. Because the notice was less than a week, I know many gun rights advocates will not be able to take off time from work to travel to the capitol and sit around for hours waiting to testify for three minutes. However, you can and should let the legislators on the Judiciary Committee know of your strong opposition. Their email addresses are provided below. Talk to your friends and let your thoughts be known on social media – Twitter in the #copolitics and #coleg hashtags, on Facebook and via letters to editors and journalists.

In 2013, Democrats overreached on gun control with the magazine ban and universal background checks. They clearly feel that they can violate the constitution with impunity now. It’s up to us to demand recalls or resignations of any legislator that votes for this bill.

This is our time to stand firm and demand our lawmakers vote this bill down to the ignominy it so richly deserves.

By Richard D. Turnquist

February 20, 2019

Email addresses for Judiciary Committee:

mike.weissman.house@state.co.us,
rod.bockenfeld.house@state.co.us,
serena.gonzales.guiterrez.house@state.co.us,
matt.soper.house@state.co.us,
leslie.herod.house@state.co.us,
terri.carver.house@state.co.us,
hugh.mckean.house@state.co.us,
kerry.tipper.house@state.co.us,
adrienne.benavidez.house@state.co.us,
rochelle.galindo@state.co.us,
dylan.roberts.house@state.co.us

Further reading:

Experts David Kopel and Joseph Greenlee on the many “red flags” in this terrible bill:

https://pagetwo.completecolorado.com/2019/02/19/kopel-and-greenlee-plenty-of-red-flags-in-colorados-extreme-risk-protection-order-bill/

District Attorney and last year’s supporter of HG 18-1436 comes out against this year’s version:

https://pagetwo.completecolorado.com/2019/02/20/former-state-attorney-general-candidate-george-brauchler-weighs-in-on-red-flag-bill/

Rally for Our Rights Lesley Hollywood’s breakdown of the bill:

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