Red Flag Law–What is this?

In Colorado, they are pushing forward with a Red Flag Law. This same “Red Flag” initiative is being pushed forward in many states. The sponsors are promoting it as an “Extreme Risk Protective Order” that is supposed to prevent a mentally ill person, or somebody suffering from extreme stress, from killing themselves, or others.

The idea is simple: The laws allow confiscation of firearms, once ordered by a judge, based on the person being considered a significant risk to themselves or others. Those that can petition the court include:

  • A relative, which is pretty loosely defined to include relation by blood, marriage, or adoption
  • Legal guardian, or previously a legal guardian
  • A dating partner
  • Person that has a child in common with them
  • Somebody living with the person such as a domestic partner or roommate or has resided with them within the last 6 months
  • Law enforcement

Of course, one of the main sponsors insists that it “is not a gun confiscation bill nor a gun control bill.” How taking away guns is not confiscation… Well, I do not believe he knows what that word means. Obviously, it means to take away a person’s guns. Maybe somebody should send him a dictionary.

Process

As written, as of today, the following steps are outlined:

  • Initial hearing – The petitioner would provide evidence to the court, and the judge would consider:
    • Recent credible threats of violence
    • Mental health issues
    • History of domestic violence
    • Abuse of alcohol or controlled substances
    • Recent acquisition of a gun or ammunition
  • Within 7 days – A second hearing would be scheduled to evaluate the evidence provided by the petitioner. The respondent has the opportunity to dispute any evidence. The term would be 182 days (6 months).
  • The respondent can appeal the ERPO once, and only once, in the first 6 months.
  • Beyond 6 months – The order can be extended beyond 6 months if requested by the petitioner and approved by the judge.

Punishment

Beyond the punishment of having guns seized by law enforcement without due process (being able to provide a defense of any kind), there is more.

  • Class 2 Misdemeanor – If the person violates the order, it would be punishable by 3-12 months in prison.
  • Felony – Multiple violations could result in a felony, punishable up to 18 months in prison.

While 6 months is a long time, the judge can extend the order if requested.

Issues

There are too many concerns with the current bill. Some issues include:

  • 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 missing.
  • “Significant Risk” – This is not defined and becomes incredibly subjective. Activist judges will be all over this one, and will most likely abuse it.
  • Firearm Security – Who will be responsible for storage and safekeeping? I am willing to bet large sums of money that the respondent will be charged an administrative charge and a storage charge for the firearms that will be excessive and punitive. While the bill will allow for storage at a Federal Firearm Licensee, there is no discussion around who is allowed to retrieve firearms from law enforcement and take them to an FFL. Hmm… I see more costs here. Of course, law enforcement can store them, and then the respondent will have to try, for who knows how long, to retrieve their personal property after the ERPO is lifted.
  • 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.

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