Colorado’s Red Flag Law allows a family, or household member, or a law enforcement officer who believes that an individual presents a danger to themselves or others if he or she possesses a firearm to seek an extreme risk protection order from a court of law. The extreme risk protection order, if granted, removes a person’s ability to lawfully possess firearms.
Red Flag Laws, need to embrace due process. I would also argue that even when a law, like Colorado’s Red Flag Law, is designed to offer some measure of due process it is critical to have legal assistance to navigate the process and protect your constitutional rights. Colorado’s Red Flag Law does not provide an indigent respondent with a free lawyer to defend against the impairment of a constitutional right. And while Colorado’s Red Flag Law specifies that if a person responding to an extreme risk protection order is a Veteran, and there are any criminal charges that result from the service or enforcement of an extreme risk protection order, the Court is required to refer the case to a Veteran’s Court, if one is available, many people responding to a Red Flag Petition fall into the category of being elderly or in poor health – mentally or physically. Where a party defending a Red Flag has apparent financial need the appointment of counsel should be mandatory.
Here are a few other things to know about Colorado’s Red Flag Law:
Colorado’s Red Flag Law allows two groups to trigger a request for an extreme risk protection order for a situation involving a person meeting the risk criteria: family members, including blood relations, a shared child, current or past shared residency, domestic partners, step-family relationship – biological or legal, including grandparents and grandchildren and law enforcement. If the petitioning party is a law enforcement officer Colorado’s Red Flag Law also requires the officer or police agency to file a sworn affidavit for a search warrant to authorize a search for any firearms in the possession or control of the responding party. This means that a concerned third party has to go to law enforcement.
Colorado’s Red Flag Law rankles many because a temporary order can be obtained without any prior notice to the responding party and also causes the immediate revocation of a carry-conceal permit. Gun owners worry that Colorado’s Red Flag Law may result in rubber stamp orders by Judges who face unopposed requests to limit an individual’s constitutional right to bear arms. Colorado has sought to soften the blow by requiring that any party filing a Red Flag Petition execute an affidavit, signed under oath and under the penalty of perjury, setting forth the grounds for the Petition and providing for substantial notice provisions once action is ordered by the Court. This represents, in my view, an implicit recognition that a Red Flag Order constitutes a substantial interference with a respondent’s constitutional right to bear arms, but this is small comfort when you learn that Colorado’s Red Flag Law provides immunity from criminal and civil liability to any person or entity for acts made “in good faith” related to obtaining an extreme risk protection order or temporary extreme risk protection order, including but not limited to reporting, declining to report, investigating, declining to investigate, filing, or declining to file a Red Flag Petition. Persons who file a malicious or false petition for a temporary extreme risk protection order can, however, face prosecution, but prosecutions for perjury are quite rare in Colorado.
Providing a blanket grant of immunity takes away a respondent’s right to sue in civil court and completely ignores the potential for the use of Red Flag Orders by persons who are seeking revenge or an unfair advantage in situation like a divorce or child custody dispute. It is a fair certain bet that Colorado’s Red Flag Law will face a challenge in federal court someday to address the question of whether it violates the U.S. Constitution’s guarantee of due process and related Second Amendment protections.
Colorado’s Red Flag Law requires Courts to consider “all relevant evidence.” While all relevant evidence is described in the statute as the inclusion of facts that support the issuance of an extreme risk protection order, including recent acts or threats of violence and reckless or violent use of a firearm. I would argue that all relevant evidence would also includes the right of a respondent to present facts which demonstrate bias, prejudice, or financial motive on the part of a petitioning party seeking an extreme risk protection order.
The standard of proof for granting a temporary Red Flag Order is not the criminal justice standard of reasonable doubt, or even the clear and convincing standard which Colorado Courts routinely apply to matters such as the termination of parental rights, rather a judge assessing a request for a temporary extreme risk protection order only has to find by a preponderance of the evidence that the respondent poses a significant risk of causing personal injury to self or others in the near future by having in his or her custody or control a firearm, or by purchasing, possessing, or receiving a firearm. Proof by a Preponderance is often described as equaling a probability of fifty percent and a feather, in other words, more probably true than not.
Due process protections built into Colorado’s Red Flag Law include the requirement that a hearing be held no later than the next day, by telephone or in person, with prior written notice of the hearing served on the responding party.
Once a temporary extreme risk protection order is issued the Court must provide a formal hearing within fourteen days to determine if a 364-day extreme risk protection order should be issued, once again with written notice served upon the responding party. Colorado’s Red Flag Law provides that anyone responding to a Red Flag Petition cannot be required to post a bond and that certified copies, forms, and instructional brochures must be provided for free. One other piece of good due process news is that the standard of proof for continuing a Colorado Red Flag Order beyond the temporary order stage requires the Court make a finding that the proof rise to level of clear and convincing evidence. In Colorado clear and convincing evidence means that the Court, considering all of the evidence, finds something to be “highly probable” and has “no serious or substantial doubt.”
If a Red Flag protection order has been issued the responding party is permitted a single opportunity to request a hearing during the period of the order to seek termination of the order. To be granted an early termination a responding party must establish, by clear and convincing evidence, that he or she no longer poses a significant risk of causing personal injury to self or others by having in his or her custody or control a firearm, or by purchasing, possessing, or receiving a firearm. Any relevant evidence may be considered by the Court. A responding party’s single opportunity may be extended by the Court if it finds that it cannot enter a termination order at the time of the hearing but determines that “there is a strong possibility that the Court could enter a termination order at a future date before the expiration of the extreme risk protection order.” In a similar fashion, a Petitioner or law enforcement officer can petition the Court to extend the Red Flag Order. Notice and hearing requirements are similar to what is required for the original hearing for an extreme risk protection order. Extensions of Red Flag Protection Orders last for a year and must be reviewed by the Court within 35 days of the Order’s expiration.