Red Flag Law–What is this?

Updated January 19, 2020 to include actual law and recent events – Original post May 3, 2018

In Colorado, they passed the following laws:

  • 13-14.5-103, Temporary Extreme Risk Protection Orders
  • 13-14.5-104. Petition for Extreme Risk Protection Order
  • 13-14.5-107. Termination or Renewal of Protection Orders

The laws went into affect on January 1, 2020. It took less than three weeks for the laws to be abused. While many of us predicted that they would be abused, I don’t think very many saw it happening so quickly, and so overtly, without any punishment for the person that abused the laws by lying to the court.

Summary of the Law

Who can file?

  • Family member
  • Household member
  • Law enforcement officer or agency

What is filed?

  • Petition with affidavit signed by petitioner sworn under oath and under penalty of perjury
  • Must be filed in county where respondent lives

When is it heard by the court?

  • The day the petition is filed or the day after the petition is filed.

Who is present during the hearing?

  • Judge to rule on petition
  • Petitioner and any witnesses

What is presented?

  • Oral testimony
  • Written testimony
  • Supporting documentation

What are the potential results of the hearing?

  • A temporary EPRO is issued is sufficient evidence is provided
  • If the temporary ERPO is issued, a hearing date is set to be no later than 14 days after approval, if approved
  • If the temporary ERPO is denied, the reason for the denial is provided by the court
  • If the respondent fails to appear, an ERPO may be issued for up to 364 days.

What happens if the temporary ERPO is issued?

  • The respondent is served with notice of the temporary ERPO being issued
  • The respondent is served with a search warrant and all firearms are seized
  • The hearing date is provided, within 14 days of the issued temporary ERPO

What happens at the hearing?

  • Petitioner and respondent present evidence
  • Court rules
  • If the court rules in favor of petitioner, an ERPO is issued for up to 364 days.

What is next for the respondent if they have an ERPO issued against them?

  • Respondent can petition the court, once, in writing, to terminate the ERPO, and the court must schedule a hearing within 14 days.
  • The court could rule to terminate or extend the hearing to a date that they would consider terminating the ERPO.

What happens when the ERPO is set to expire?

  • Notice is provided to the respondent 63 days before expiration.
  • Petitioner can request a renewal.
  • If a renewal is requested, the respondent can request a hearing within 14 days of the requested renewal.

Issues with the Laws

Definition of Family  – The definitions are pretty loose and allow too many people, without proper standing and valid knowledge, to file petitions as weapons in other legal matters such as divorce or child support requests.

  • Person related by blood, marriage, or adoption to the respondent
  • 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

Abuse – There are several examples of abuse of these laws around the country. I guarantee that there are many out there, and will be many more, but there are clear motivations for people to abuse the laws, and, in most cases, they will never be charged with perjury.

  • Legal conflicts – There is a case where a doctor didn’t like how a patient that was suffering from chronic pain gave him a bad review and became upset at his care.
  • Attempts to get revenge – A woman in Colorado tried to use the law to get revenge against a law enforcement officer that killed her son.
  • Misunderstandings – There is a case where an elderly veteran was Red Flagged because of something that somebody thought they heard.

Rights Violation – The respondent’s rights are not protected and are clearly violated. The respondent has no recourse and no opportunity to defend themselves in the initial hearing. Unlike a Temporary Restraining Order (TRO), the ERPO results in a visit from law enforcement, which might involve them crashing through a locked door, and taking physical property.

Right to Self Defense – One of the bigger issues to me is that firearms are great tools for those that are smaller, weaker, and slower to defend themselves against those with ill-intent. The ERPO would remove the person’s ability to defend themselves, and they are a more likely victim when others see the seizure and the seizure becomes public record. An ERPO takes away the natural right to self defense.

Risk to Law Enforcement – The bill is supposed to reduce law enforcement, as well as others, from exposure to violence, but when law enforcement comes crashing into a home where guns exist, they are put at great risk. Logic is lacking.

Significant Risk” – This is not defined and becomes incredibly subjective. Activist judges will be all over this one, and will most likely abuse it.

Health Record Privacy – If health records are used by the petitioner, it will likely be a violation of existing privacy laws. I can already see family members violating those rights when seeking an ERPO. Of course, it is very unlikely that the petitioners that violate those privacy laws will ever be prosecuted.

Punishment – There are no clear punishments outlined for those that abuse the law and use it to act out against others. For example, when somebody sues for divorce, and the other person goes to court and gets an TRO without real reason, it is granted and the petitioner is never punished for the false filing. The ERPO, can also be abused, and I expect it would be used as a significant weapon is divorce proceedings and child custody fights. Not only will the ERPO cost the respondent, directly, it will most likely impact the divorce and child custody cases. Not only is there that impact, but it could then be used in all future issues between divorcing couples and domestic partners with children.

Summary

These Red Flag laws can be easily abused, and too many of the concerns are not addressed in the legislation.

https://www.westernjournal.com/woman-abuses-red-flag-law-lies-innocent-man-guns-confiscated/

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