Liddick: Proposed Colorado gun laws define Kafkaesque (column)
May 8, 2018
They're at it again. Colorado's legislators are once more gearing up for a frenzy of appearing relevant and virtuous; prepare to be appalled.
In question is HB18-1436, entitled "Concerning Creation of an Extreme Risk Protection Order." Introduced by Alec Garnett, D-Denver, and Cole Wist, R-Arapahoe, it's a plain-and-simple gun grab. Which is frustrating, because it aims to address the recently all-too-obvious problem of firearms in the hands of those who have no business possessing them. But as written, this bill could be used to scoop up guns from pretty much anyone. As English teachers used to say in the days when self-esteem was something earned by doing things properly, "Needs work."
This bill proposes not only to deprive a citizen of his or her property, but of a Constitutional right. One would think that the bar for such a radical action would be high enough to guarantee that the action not be taken for — to borrow a phrase from Jefferson — "light and transitory reasons" or on the thinnest of proofs, but such seems not to be the case. The bill is fairly long — 30 pages — perhaps in an attempt to bolster its appearance of concern for the niceties of law. If that is the authors' intent, they fail miserably. Beginning with the laundry list of who can ask for such an order.
A "Temporary Extreme Risk Protective Order" can be requested by seven categories of people besides "law enforcement officials." It includes housemates of the respondent, past and present; anyone having a blood or legal relationship with him or her; "dating partners;" anyone who has a child in common with him or her; in short, just about anyone except neighbors' dogs.
This bill proposes not only to deprive a citizen of his or her property, but of a Constitutional right.
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There is a hearing to issue a seven-day "emergency" TERPO, but the person against whom it is being requested doesn't need to be notified about it, making the process ex parte: only one side does the talking, playing merry Hell with the centuries-old Anglo-American concept of contention being used to determine truth. Heretofore in our country, such proceedings have required strict proofs as a balk against the government using flimsy pretexts to do as it wishes. Lately however, such scrupulousness has eroded, at least at the federal level: our Foreign Intelligence Surveillance court recently approved evesdropping warrants on Americans citizens based on fairy tales. The trend continues in HR18-1436; the petitioner must only attest that there is "reason to believe" facts exist that would support a protection order. And the standard of evidence used in the issuing hearing is that of "preponderance," the lowest permissible; it usually translates to 50.1% or more probability that the statement is true.
If the petitioner is a "law enforcement officer or law enforcement agency," they may file a request for a search (and seizure) warrant simultaneously with the TERPO hearing. Remember, the process is ex parte, so the first notice the target may have is when the sheriff shows up to collect his or her firearms.
Within a week of the TERPO, a hearing is held to determine if an "Extreme Risk Protective Order" is justified. Such an order would last for 182 days if not renewed; the accused can petition the court once to have the order lifted within that period. While this is a more balanced hearing for which the respondent receives notice and can be represented by counsel, proofs for the need of an ERPO are telling. They include the usual aggressive, stupid and violent behavior, but also owning, or "intending to own," a firearm; evidence of alcohol or drug abuse; and "…recent acquisition of a firearm or ammunition." Which is more than a little problematic. "Intending to own?" Recently buying ammunition? Since when is exercise of a Constitutional right to be construed as evidence that right should be denied to the person who exercises it? Calling Franz Kafka…
The icing on the cake is Section 13-14.5 -114 on liability. Briefly, it says that the proposed law attaches "no criminal or civil penalty for acts or omissions…" committed in the process of issuing either a temporary or regular ERPO, provided all parties attest that they proceeded in good faith. "Honest, your honor. I really thought he was going to buy a gun…"
As a first draft of legislation to address what we all know to be a problem — firearms in the hands of people we all know shouldn't have them — HB 18-1436 isn't entirely worthless. But it needs far better processes with much higher standards of proof and it needs to partake less of stealth and more of even-handedness because it deals both with private property and with Constitutionally guaranteed rights.
We all remember what those are, right?
Morgan Liddick writes a weekly column for the Summit Daily.
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