Colorado’s red flag law will go into effect Jan. 1, 2020 -- it’s the one that allows a judge to temporarily remove somebody’s firearms if they’re a danger to themselves or others.
The law has raised a lot of questions for Coloradans about how it’ll be implemented, who will enforce it and how it’s different from other states with similar laws.
CPR News spoke with two experts on gun rights and gun laws to address some concerns. Dave Kopel teaches law at the University of Denver and is with the Independence Institute, a Libertarian think tank. Shannon Frattaroli works in the Center for Gun Policy and Research at the Johns Hopkins School For Public Health, where researchers are looking at ways to reduce gun violence.
These are some of the points of the law and its implementation that they’re watching.
How is Colorado’s Red Flag Law different from other states with similar laws?
Colorado is just one of 17 states and the District of Columbia who have some version of a red flag law. Frattaroli said Colorado’s law is similar to other states, for the most part.
“What has been different about Colorado is the response amongst some within the state and the level of concern about due process in Colorado is certainly something that we haven't seen in other places around the country,” she said.
Kopel said that from his perspective, Colorado’s law is better than other states’ in one way but worse in a number of other ways.
“The way it's better is Colorado has a provision that says if somebody is accused under this law when they finally get into court, which is only later in the process, that if they want an attorney to be provided by the government, the government will provide that,” he said.
Does the law infringe on due process rights?
Kopel said it will ultimately be up to courts to decide whether or not it’s unconstitutional. But he thinks it does violate due process in a “common-sense way.”
When a firearm is removed from somebody, only the accuser’s side of information is presented in court, Kopel said. There is also no opportunity for the accuser to be cross-examined and questioned.
“That's a fundamental thing in any fair system is when somebody makes an accusation, the accused person, if they want, can have a lawyer cross-examine the accuser and may bring out inconsistencies of the story and give the court the opportunity to observe the accuser in person and make a determination about the accuser’s credibility,” Kopel said.
Frattaroli said there are other protections put in place that shield those being accused.
“The judge listens to the case, listens to the perspective of the petitioner and considers that case and the risks to the public, the risks to the person,” she said. “Then there's this secondary line of due process where the person has an opportunity that's built into the system to be heard in court.”
She compared those protections to the same ones used in restraining orders for domestic violence cases.
Who can file a petition?
The law says only law enforcement and family or household members can ask a judge to remove somebody’s firearms. Lesley Hollywood, founder of the gun-rights group Rally For Our Rights, strongly opposes the law and said the definition of who counts as a family member is broad.
“There's a lot of concern that people will be falsely reported by ex-husbands… former roommates, dating partners, people they've had an affair with,” she said. “One of the things I worry about as a woman is that stalkers and abusers can actually use it to have their victims disarmed.”
Frattaroli said a family or household member would not include a dating partner unless they're living with them. Only a domestic partner who has lived with the respondent within the last six months can file a petition, according to the law. If somebody has a child with a respondent, they can file a petition at any time.
A domestic partner can also file a petition but it’s not clear if there’s a statute of limitations. Kopel argued somebody who dated a person 15 years ago, for example, could file a petition.
What is the likelihood of being falsely accused?
In order for an extreme risk protection order to be considered by the court, a petitioner would have to fill out paperwork, go to court to submit it and then appear in front of a judge to have the case heard, Frattaroli said.
“That isn't an easy thing to do,” she said. “It's not something that I think people enjoy doing.”
She said from talking with law enforcement around the country who deal with extreme risk protection orders and see how they’re actually used, false reports haven’t come through.
Kopel said the law is structured in a way that promotes false accusations. An earlier version of the bill had a protection against false accusations. He said the likelihood of somebody being prosecuted for perjury is not high.
Somebody wrote to CPR News asking if the law would impact veterans with PTSD and make them targets. We asked the experts.
Kopel said it would depend on the case and evidence presented.
Frattaroli said the law isn’t designed to target specific groups of people and whether or not someone has PTSD is irrelevant.
“It doesn't have anything to do with if someone is depressed or if someone is sort of unpopular,” she said. “It's all about what are people doing? What are people saying and are those actions, are those words, do they constitute a real actionable threat to their own safety or to the safety of others?”
At least a dozen Colorado counties have designated themselves “second amendment sanctuaries.” And some law enforcement officials have said they won’t enforce the law. What happens if they refuse to comply?
Kopel compared law enforcement refusing to comply with other sanctuary issues.
“You can argue about it all you want, but it's pretty hard to make government officials do something they don't want to do, especially when there's a lot of support within their jurisdiction for them not wanting to enforce a law that they and a lot of the public see is abusive and unfair.”
Frattaroli said she hasn’t seen as much pushback elsewhere from law enforcement about a red flag law as she has in Colorado. She said law enforcement and the community will ultimately decide if and how they’ll use the extreme risk protection order as a tool for when somebody is in crisis or threatening harm.
Colorado’s Red Flag Law is named after Deputy Zachari Parish who was killed in Douglas County while trying to take somebody in for a mental health hold. If the law had been in place then, would it have made a difference in that case?
Frattaroli said it’s hard to look back and say definitively if it would have made a difference but cases like Parish’s are examples of the driving force behind extreme risk laws.
Kopel cited Douglas County Sheriff Tony Spurlock, who thinks it would have.
“He knows more about the facts of that particular case then than I do so I wouldn't disagree with him,” he said. “And that's why I'm in favor of the (red flag) laws if they're well structured, which this one is not.”