Summit officials prep for launch of ‘Red Flag’ law
FRISCO — On January 1, Colorado’s new “Red Flag” law will officially go into effect, giving law enforcement officers and courts a new means to try and combat gun violence throughout the state.
While it is a potentially useful new tool, officials in Summit County say it’s unlikely the law will get much usage here, at least on the police side of things. The county’s law enforcement and judicial leaders say they’re hard at work to assure the law is administered justly as petitions for the new protection orders begin to pop up at the justice center next year.
“I don’t really have any concerns, especially if it’s executed judiciously and cautiously,” said Sheriff Jaime FitzSimons. “We’ve assembled a work group to talk about how to best safeguard the rights of the citizens of Summit County, and at the same time work to protect them.”
Once the law goes into effect, Colorado will join 16 other states and the District of Columbia which have similar measures on the books. In Colorado, the law is inspired in part by Douglass County Sheriff’s Deputy Zackari Parrish III, who was killed on New Years Eve in 2017 by a man in the midst of a mental health crisis. The bill narrowly passed in the state senate in March, and Governor Jared Polis signed the measure into law in April.
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Beginning in January, anyone with legal standing will be able to petition the courts to issue an extreme risk protection order (ERPO), which would require individuals who pose “a significant risk of causing personal injury to self or others in the near future” to temporarily surrender their firearms to law enforcement.
In order to petition the courts for an protection order, the petitioner must fill out documents detailing recent and credible acts or threats of violence the gun owner has made against themselves or others, along with noting patterns of threats, violations of civil protection orders or any other factors that may come into play in the court’s decision. Once a petition is made, the court has one day to hold a temporary hearing on the matter. The gun owner won’t be given any notice of the initial hearing.
If the order is granted, law enforcement agencies will be responsible for assuring that the gun owner surrenders their firearms. While police do have some experience collecting firearms in criminal cases — such as from individuals convicted of a domestic violence incident — seizing firearms from a potentially unsuspecting individual comes with risks.
“I would say most of our concerns are around ensuring the safety of the subject of the temporary ERPO, but also the safety of the officers serving these orders,” FitzSimons said. “Other states and jurisdictions have done this successfully. But everyone in Colorado is trying to figure this out. We’re going to proceed slowly and cautiously with everybody’s best interests in mind.”
After a temporary order is issued, the courts have two weeks to hold a “permanent” hearing, in which the gun owner will have a chance to face the judge in person. Brown noted he expects second hearings will often be postponed by the gun owner’s request while they prepare a professional mental health evaluation, either on their own or through the courts.
If issued, the order can last up to 364 days and can potentially be extended for another year if a judge accepts another request from the original petitioner. The gun owner would also get one more chance to appeal the decision any time during the term of the order.
While protection order hearings are explicitly not criminal proceedings, meaning the standard of proof doesn’t have to rise to the level of “beyond a reasonable doubt,” the courts will consider a substantial number of factors before a decision is made, including if the subject is required to carry a firearm for their job, or if firearms are a major part of their lifestyle, like a hunter. In addition to a mental health professional, the gun owner will also get a chance to call whatever witnesses they feel might help their case.
“At the permanent hearing, the gun owner is going to appear in court,” said Brown. “That will be an opportunity for the judge to engage that person in dialogue and just have the person explain things in their own words. … The person can also call witnesses at the hearing. It could be a co-worker, neighbor or someone who impugns the reliability of the person asserting they shouldn’t possess a firearm.”
The law also restricts who is allowed to petition the courts to individuals who have a child in common with the person, a roommate within the past 6 months, a domestic partner, parent or child. Law enforcement officers can also petition the courts, though any officers that do have a special responsibility to contemporaneously apply for a search warrant of the gun owner’s residence.
While a number of Colorado counties have already declared their intentions to be Second Amendment “sanctuary counties,” Brown said the search warrants necessary for law enforcement to petition for an extreme risk protection order may actually present the bigger constitutional issue.
“The second constitutional question that comes into play here is the Fourth Amendment, the right against unreasonable search and seizure,” said Brown. “This is where I think the law is vulnerable to legal attack. … The constitution requires specificity, and a likelihood that the thing sought under the warrant is going to be found. But this statute doesn’t by its own terms require it. …
“But all of this is going to be legally reviewed by the courts… People who believe the law is unconstitutional, in part or whole, can expect that Colorado courts are going to be reviewing the constitutionality of this statute in the near future.”
Generally, community leaders have voiced that the law could serve as a valuable tool to curb gun violence.
“I will enforce Colorado’s new red flag law,” said Frisco Police Chief Tom Wickman, in a statement. “Even though I have problems with some of the law’s subsections, I believe in the spirit of the law, which is to give law enforcement, courts and family members a tool to protect lives when someone is suicidal and/or homicidal.”
“If I look in the rearview mirror over the last year, I can think of maybe one case where I would have sought an ERPO,” said FitzSimons, referring to a standoff between police and an inebriated man north of Breckenridge in late 2018. “That says a lot.”
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