In First Year of Colorado Red Flag Law, AG’s Office Reveals Misuse was Rare

Gun being handed over
While the red flag law caused concern across Colorado, a recent report from the Colorado Attorney General’s Office reveals that in the first year of the law’s existence there were only four instances of attempted misuse. In over 100 instances where the law was used, the situations included mental health struggles, threats of suicide or harming partners. / Photo from Unsplash.com

When Colorado passed the so-called red flag law back in 2019, an outcry arose against the law which allows law enforcement, or family, in certain instances to remove an individual’s right to own a gun for up to a year. While there were debates between gun advocates and those attempting to curb gun violence, a recent report from the Colorado Attorney General’s Office has revealed that in over 100 instances of the law’s use there were only four instances where people tried to use the law incorrectly.

“Data from its first year of implementation suggests that this new type of protective order, when used as intended, is an appropriately narrow intervention and an effective mechanism for public and individual safety,” the report states.

The report from the AG’s office reviewed publicly available information from 2020. The data collected from the first year of the law’s existence revealed that while there were less than 125 ERPO petitions filed in 2020, and law enforcement filed most red flag petitions, with roughly 85% of those law enforcement petitions resulting in 364-day orders.

Passed in 2019, HB19-1177 created the ability for a family or household member, or a law enforcement officer, to petition the court for a temporary extreme risk protection order after Jan. 1, 2020, according to the Colorado General Assembly’s website. If an ERPO is granted by the courts, the order prohibits the respondent from possessing, controlling, purchasing or receiving a firearm for 364 days. This ERPO can be extended.

For an ERPO to be granted, the petitioner must provide evidence that the “person poses a significant risk” to themselves or others by having a firearm in their control or custody, according to the assembly webpage on the law. The petition must also submit an affidavit signed under oath and penalty of perjury that sets out the facts supporting the issuance of an ERPO.

Once a petition is entered, the court must hold an ERPO hearing in person or by phone the day the petition is filed or the court day immediately following. A second hearing, after the issuing of an ERPO, must be scheduled no later than two weeks after issuance to determine if the ERPO should continue. If the ERPO is continued, the respondent can motion the court once during the 364-day ERPO period for a hearing to terminate the ERPO.

Once the ERPO is issued, the respondent must surrender all their firearms and concealed carry permits, according to the webpage. The respondent has the option to surrender the firearms to law enforcement or federally licensed firearm dealer, or if it’s an antique or relic, the firearm can be surrendered to a family member.

As previously reported by Law Week, Colorado is one of over 16 states that have instituted a court process for entering orders for relinquishing firearms or ammunition. And the legal community in Colorado has shown some concern over the new law.

In the first year of the red flag law’s existence, a total 111 petitions were filed, according to the report and data from the Colorado Judicial Branch. Researchers from the Colorado School of Public Health identified 12 duplicate petitions with the same petitioner, respondent and factual allegations. As such, the report states that roughly 100 unique petitions were filed last year.

However, despite concerns raised during the 2019 legislative session, abuse of the red flag procedure was noted in the report as being low in number last year. In analyzing more than 100 red flag petitions, CSPH researchers identified only four instances of “clearly inappropriate” attempts to use the red flag process. In all four instances, the report states that the petitioner falsely characterized their relationship to the respondent.

“In all four cases, courts denied the red flag petition,” the report states. In one case, the petitioner was left with perjury charges. In one instance the petitioner was incarcerated and filed a petition against prison guards, another appeared to have “misunderstood law requirements and filed against a neighbor” and in another, the petition was filed against an entire police department by a petitioner with evidence of mental illness “in the petition.”

Further, the Colorado Department of Law took action to protect against efforts to abuse the red flag procedures, according to the report. In 2020, Susan Holmes, whose son Jeremy Holmes was fatally shot by a college police officer in 2017, filed a red flag petition against the officer. Holmes falsely alleged she and the officer “shared a child together and, therefore, that she was [the officer’s] family member.”

“The red flag law remains novel in Colorado,” the report states. “Many Coloradans are unaware that the red flag law exists, while others, especially individuals who are not members of law enforcement, know of the red flag law, but may struggle to understand and navigate the legal process required to obtain an Order.”

Of those 111 total initial petitions filed, 115 temporary and 364-day ERPOs were issued, according to the report. The courts issued a total of 66 temporary orders and 49 full 364-day orders. While that many were enacted, a total of 46 temporary and 364-day orders were denied, according to the report. By Jan. 16, 2021, 71 ERPOs of both types were terminated or expired.

It’s worth noting that a case coming from a single petition may have both a temporary order and a 364-day order issued or denied at separate times, according to the report.

“A third of the 364-day Orders were issued after the respondent made suicidal threats, and another third of the Orders were issued to respondents who threatened to harm others with their firearms,” the report states, adding that the remaining third of 364-day orders involved individuals threatening both suicide and harm to others.

When looking into the data of red flag law usage last year, the report revealed that courts granted ERPOs at a much higher rate for law enforcement petitions than for family or household members. Regardless of the petitioner, the reasons cited for granting ERPOs ranged from threats of suicide to partner violence and mass shootings.

In total, 96% of law enforcement red flag petitions resulted in a temporary order, and 85% resulted in a 364-day order, according to the report. However, of those filed by household or family members, only 32% of petitions resulted in a temporary order, and only 15% resulted in a 364-day order.

“Of the more than 30 petitions filed by family or household members, courts granted 364-day Orders in only six instances,” the report states. More than 75% of petitions filed by law enforcement resulted in temporary and 364-day orders, according to the report.

“Judges declined to issue Orders in cases where the petition lacked evidence of credible threats or included only vague allegations,” according to the report. The courts also denied petitions for procedural errors, such as filing in the wrong county, the order was unnecessary where other law or court orders already prohibited the respondent from having firearms and where the petition “lacked any firearm-specific allegations.”

As an example, the report points to an Arapahoe County woman filing a red flag petition after her husband threatened suicide three times, and the woman credited the red flag law with saving her husband’s life. In another instance, Denver police sought an order to prevent a man from obtaining firearms while he was the subject of a credible domestic violence investigation.

However, the report also contains suggestions on future action — mainly on public education on the red flag process.

“This initial data points to at least one area worthy of further exploration by policymakers, public health researchers, and violence prevention practitioners, namely, education and outreach to increase the public’s awareness and understanding of the red flag process,” the report states.

The report suggests involving law enforcement in discussions and education with the public on the red flag process, while suggesting law enforcement also share information on the process between jurisdictions. In addition, the report notes that the recently established Office of Gun Violence Prevention was tasked with educating the public about ERPO options.

A myriad of different groups is suggested to be involved with talks, including health care providers, domestic violence prevention organizations, educational and community groups, firearms dealers and firearm safety instructors “who should be brought into the conversation at this early stage.”

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