According to an article by reporter Brandon Morse posted to the website RedState.com, Weld County Sheriff Steve Reams is not happy about Colorado’s new “Red Flag” gun law, and claims that it’s not only unconstitutional but also may put officers at unnecessary risk — perhaps both physically and legally.
“…If this ex parte hearing happens, and a judge rules that a person can’t control their weapons, at that same hearing, the judge can also issue a search warrant based on the information of the affiant, or the person asking for the order…
“That’s where this bill sorely goes awry because it asks law enforcement, or actually it demands law enforcement to go conduct a search warrant on the word of a third party and seize someone’s firearms…
“That’s asking for a host of issues, and quite frankly, it’s putting my officers in a position where I don’t think it’s safe for them either… In my mind, that’s a clear violation of the Constitution on the Fourth and Fifth amendments.”
Sheriff Reams is here talking about House Bill 19-1177, the Colorado law recently approved by the General Assembly and now awaiting Governor Polis’ signature. The law would allow a petitioner to request a court hearing concerning a third party, when that third party allegedly “poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm.” The hearing is conducted ex parte — without the participation of the accused party or their attorney.
From the RedState article:
Should the search and seizure be ordered by the judge, a second hearing then occurs where the gun owner is tasked with proving that they deserve to have their Second Amendment right reinstated…
More than half of Colorado’s 64 counties officially oppose the bill, and many — including Archuleta County — have declared themselves “Second Amendment sanctuary” counties in protest. But failure to enforce a “Red Flag” court order could result in a County Sheriff being found in contempt. A judge could fine them indefinitely, or even send them to jail. Weld County Sheriff Reams claims he would make that sacrifice, rather than enforce an unconstitutional and potentially dangerous law.
As I hinted at the conclusion of Part One, the state of Colorado and the US government have been denying men and women the right to possess firearms for many years now, when that person is convicted of committing a “misdemeanor crime of domestic violence” — that is, misdemeanor that has, as an element, the use or attempted use of physical force or the use of a deadly weapon against an intimate partner. But that fact has not, to my knowledge, been part of the debate surrounding HB19-1177.
A couple of definitions.
“Domestic violence” is an act or attempted act of violence upon a person with whom you have been involved in an “intimate relationship” — past or present. It also includes crimes against a partner’s property — a beer bottle thrown through a window? — when “used as a method of coercion, control, punishment, intimidation, or revenge.” But in order to lose your right to possess firearms, the violence or threatened violence must be against the partner’s person.
You can go ahead and throw the beer bottle, and still retain your right to own a gun.
An “intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both parents of the same child.
Colorado law, in this situation, incorporates federal law. It is a federal crime to possess a firearm — forever — following a conviction of a state misdemeanor crime of domestic violence. Push your boyfriend or girlfriend, and you can be barred from possessing firearms for the rest of your life. The way I read the law, even threatening to push your boyfriend or girlfriend can result in losing your “Second Amendment right.”
The law does not require that a weapon was involved in, or mentioned during, the incident, or even that the convicted person has ever owned a firearm. It merely requires some act or threatened act of violence against an “intimate partner.”
From the Giffords Law Center website:
Notably, Colorado requires a [temporary] protective order to be issued whenever a criminal case is pending to prohibit the defendant from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged. In domestic violence cases, this protective order may trigger the federal law, meaning that the person is prohibited from possessing firearms and ammunition while the case is pending. The court may prohibit the defendant from possessing firearms during this time, even in some cases when the federal law is not triggered.
Such temporary protection orders may, in certain circumstances, be issued ex parte.
The law generally requires the person to surrender firearms and ammunition not more than 24 hours of being served with a qualifying order. If the person is held in the custody of a law enforcement agency, the surrender must occur within 24 hours of release.
Colorado does not explicitly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.
From the DisarmDV.org website:
Over 1.2 million Colorado residents experience intimate partner violence in their lifetimes. Fortunately, many victims survive these traumatic events; however, Colorado reported 252 domestic violence homicides from 2007 to 2016, over half of whom died by firearms. An abuser’s access to firearms can determine a victim’s chances of survival; domestic violence firearm prohibitions and removal laws save lives.
Unfortunately, we must presume that Colorado’s numerous domestic homicide victims who died by firearms, obviously died before the abuser’s access to firearms was effectively removed. Whether we’ve ever saved anyone’s life by removing a person’s lifetime right to possess firearms, after someone was pushed or threatened or injured in a non-fatal manner, is much harder to prove.
If Governor Polis signs HB19-1177, an angry or concerned intimate partner will be able to ask a judge to send law enforcement into a potentially dangerous (or totally harmless) situation, to confiscate someone’s firearms, without a fair hearing and without any clear definition of what is meant by “significant risk of causing personal injury to themselves or others.” Essentially a “He Said, She Said” situation, perhaps — except without the “He Said.”
An Extreme Risk Protection Order, if fully supported by court decisions, could require removal of a person’s firearms for up to 364 days.
The Colorado Legislative Council estimates that about 170 petitions would be filed annually, and about 160 would be granted — based on data from other US states that have “Red Flag” laws now on the books. From the Legislative Council report:
The estimated cost to the taxpayers, for the additional court and law enforcement services, would be maybe $250,000 per year. That’s a government estimate, of course.