Until someone is ERPO’d and has their rights violated, a lawsuit cannot be brought forward. This is why it’s critical you speak up if you are ERPO’d. Plaintiffs will be needed.
According to the bill summary and media reports, only family or household members, and law enforcement can petition the courts. But what is the definition of “family member” and “household member”?
According to the bill language, “family or household member” means:
- Person related by blood, marriage, or adoption;
- Person who has a child in common with the respondent, regardless of whether such person has been married to the respondent or has lived together with the respondent at any time;
- Person who regularly resides or regularly resided with the respondent within the last six months;
- Domestic partner of the respondent;
- Person who has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren;
- Person who is acting or has acted as the respondent’s legal guardian;
- A person in any other relationship described in section 18-6-800.3 (2) with the respondent. [So, what does 18-6-800.3 (2) say? “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.]
If the person wishing to Red Flag is not on the list above, they can request law enforcement do it for them.
All the information about the law including a complete list of who can petition the courts can be found on the “About The Law” page on our website. CLICK HERE to be taken directly to that page.
At the first hearing, the hearing the person being accused is not even aware of, the petitioner will be asked to provide a “preponderance” of evidence. Preponderance is the lowest evidentiary threshold used in the court system. It is based on the more convincing evidence. If there is a 51% chance the accusations are true, the order will be granted.
But these hearings are ex-parte with only the accuser present, and there is no counterevidence presented. They are also conducted over the phone, so they will be granted or denied based on the accusations on the initial petition. You can see that petition here.
According to the ERPO order, the respondent has 24 hours to surrender all firearm(s) listed in the court order, or in their control or possession. The order will require surrender of the firearm(s) to law enforcement, or a federal firearms dealer for transfer, storage, or sale. They may also be transferred to a family member, but only if firearm is classified as an antique, or relic.
If you surrender your firearms to law enforcement, they must provide you with a property receipt accounting for every firearm surrendered. Law enforcement also must file that receipt with the court within 72 hours.
There is nothing in the law that states ammunition or magazines must be seized.
All forms in regards to ERPO’s are filed with the court under penalty of perjury. This is the only false reporting tool built into this law. Unfortunately courts very, very rarely hear perjury cases. That said, if you are falsely reported we will help with filing a perjury case against the accuser.
Buried deep inside the bill language is one of the most unconstitutional pieces. They are creating a new type of search warrant in the state that would be specific to gun owners only: a civil search warrant. This civil search warrant would be issued along with the initial temporary ERPO.
Currently, with very few exceptions, search warrants are only issued for criminal reasons. According to mountains of existing case law, search warrants are granted by convincing a neutral and detached magistrate that they have probable cause to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there.
Very few civil search warrants have ever been issued, and the ones that have were in cases of intellectual property such as seizing computer files, and even those required clear and convincing evidence.
37 counties along with multiple municipalities have passed resolutions declaring Second Amendment Sanctuary. What that means varies from county to county or city to city. If you live in one of these locations, you will more than likely still be served an order. This is because if the order is not served to you, you will never be aware you were Red Flagged, but the ERPO will continue to move through the court without you there. This could lead to permanently losing your firearm rights simply because you were not informed of the proceedings. These locations also may or may not allow you to surrender your firearms to them.
For a comprehensive list of Second Amendment Sanctuary counties and cities, CLICK HERE.
The claims that Colorado’s Red Flag ERPO law will help those in crisis is disingenuous at best and dangerous at worst. Colorado’s law has no mental health component to it. The legislation asks law enforcement to enter the home of a suicidal individual who owns firearms (forcibly if necessary), confiscate those firearms, and leave both the person in crisis and many other tools to follow through with the act of taking their own life.
This is not compassion. This is not empathetic. This is cruel.
There are other options:
Hold My Guns is a private group who is working to partner with FFL’s and police departments to offer a place people can store firearms during a crisis (www.holdmyguns.org). In addition, Walk The Talk America offers non-crisis support to gun owners (www.WTTA.org).
And then there are the crisis lines:
Colorado Attorney General Phil Weiser put out a list of “best practices” for law enforcement to use. Those can be found here. Individual departments also have the authority to develop their own best practices.
Yes, everything is open to the public and the records are not concealed.
If the person being Red Flagged ERPO’d has no guns, it doesn’t matter. The home can still be searched, the order will still be served. The person must still also file an Affidavit of Compliance with the court.
Your name and contact information will stay anonymous unless you give us permission otherwise. We will be tracking information about which judges are issuing the orders, how many come with search warrants, who the petitioners are, what the accusations were, etc. This information will be critical to eventually repealing the law using the legislative process as well as building a constitutional legal case.
It’s difficult to say because the majority of the laws are so new.
States like California and Connecticut have still seen horrific mass shootings. Sandy Hook happened in Connecticut while they had a Red Flag law in place. There’s has been place since 1999. California has seen a public mass shooting each year since theirs went into effect in 2014.
States like Indiana pointed to stats showing suicide by firearm was decreasing, but turns out it wasn’t. It was still increasing but not at the projected rate, so they consider that a win. In addition, suicide by other methods has skyrocketed and Indiana has dropped from 19th in the country for mental health in 2011, to 45th in 2015, and in both 2016 and 2017 suicide was the tenth leading cause of death for all residents over all demographics, and the leading cause for certain demographics. Their Red Flag law was enacted in 2005.
They are also used differently in various states, and this is largely because the laws from state to state vary so drastically.
Florida has seen ERPO’s used 5 times a day since the law went into effect mid-2018, with over 2000 firearms taken. In contrast, Oregon has received 132 extreme risk protection order petitions total through August 2019 and granted 107. Their law went into effect in 2017. These varying numbers are due to the process in which they are granted, as well as who is able to request them. Colorado’s law is one of the worst based on the broad range of people who can petition the courts as well as the low evidentiary threshold needed to grant one.
2nd Amendment aside, Colorado’s Red Flag law has many constitutional concerns.
The creation of a civil search warrant is a 4th Amendment violation.
The taking of property without due process is a 5th and 16th Amendment violation.
The inability to face your accuser or be heard by an impartial jury is a 6th Amendment violation.
Not to mention the chilling effect it will have on the 1st Amendment.
A constitutional lawsuit cannot be brought forth until someone is “harmed” by the law, meaning until someone is ERPO’d, there is no plaintiff for the case.
HB19-1177 Extreme Risk Protection Orders ERPO was introduced into the Colorado State Legislature on Feb 14, 2019. It was sponsored by Rep Tom Sullivan and Rep Alec Garnett in the state house. It passed the house on March 4, 2019 with every Republican and two Democrats voting against it. It was sponsored by Sen Lois Court and Sen Brittany Pettersen in the state senate, where it passed on March 28, 2019 with every Republican and one Democrat voting against it. This legislation had bi-partisan OPPOSITION and pass by one single vote. It was signed by Governor Jared Polis on April 12, 2019. It became law on January 1, 2020.
Red Flag laws, also known as Extreme Risk Protection Orders or Gun Violence Restraining Orders, have been around since 1999, when Connecticut adopted theirs. This was followed by Indiana in 2005, California in 2014, Washington in 2016, and Oregon in 2017. In 2018 nine other states passed Red Flag ERPO laws, and in 2019 three states passed them, including Colorado.