In a first under Colorado’s controversial new “red flag” law, a judge has denied a request to confiscate a Colorado resident’s firearms.
Colorado’s hotly contested “Zackari Parrish Violence Prevention Act” — named after a sheriff’s deputy shot in the line of duty by a heavily armed, mentally ill man — went into effect at the start of the new year, and, since, at least four “temporary extreme risk protection orders” (ERPOs) have been filed in the state. All of the requests have been thus far approved, until the latest one, filed in Limon, the most populous city in Lincoln County, Colorado.
As detailed by the Denver Law Review, under the proposed law, “a family member, law enforcement officer, or law enforcement agency (the Petitioner) may petition the court for an ‘Extreme Risk Protection Order’ (ERPO) that would require the subject of the petition (the Respondent) to surrender his or her firearms to law enforcement for a period of time.” A judge then determines whether or not the protection order request will be granted. If it is, law enforcement are authorized to temporarily confiscate the respondent’s firearms.
CBS Denver, which obtained a copy of the protection order, reports that the ultimately rejected request was filed by a woman from Limon, who says a man with whom she had a relationship had made “verbal and physical threats” with a handgun against her. The man, the woman says, struggles with alcohol and marijuana abuse.
The request was submitted to a Lincoln County judge, who determined that it should not be granted. Lincoln County, CBS notes, is “one of the many counties that has indicated it would not honor the red flag law.”
According to the outlet, this is the first time a request has been rejected under the brand new law, which went into effect on Jan 1, 2020. “At least four requests have been filed since the first of 2020; CBS4 is aware of them being filed in Denver, in Larimer County and this one — in Lincoln County,” the outlet reports.
The denied request, says state Rep. Alec Garnett, who co-sponsored the controversial bill, is proof that the law is “being applied properly,” CBS reports.
But some local gun owners disagree. CBS spoke to a few at a local shooting range about their perspective on the law and was met with deep skepticism about how the law would be implemented.
“Red flag laws just allow for harassment of legal gun owners,” one gun owner told CBS. That this fourth request was denied, he suggested, is a “good thing,” explaining, “I think any other new law you’re going to have a lot of case law to determine exactly where the lines are.”
“I don’t think it’s going to be applied fairly,” another gun owner told the outlet. “Anybody can say pretty much what they want about anybody else.” Another local gun owner partly defended the law, telling CBS that people are “sick in the head” shouldn’t be allowed to have guns.
Ahead of its implementation, CBS Denver interviewed Denver Police Department Division Chief of investigations Joe Montoya about the controversial new law. “I think the intention is good and we just want to make sure we handle it the right way,” said Montoya. “We broke down the laws we got a firm understanding of the interpretation and we did a lot of scenarios, built out a lot of scenarios and went through the what if’s how should we do this,” the police chief said.“I understand why people are concerned about it especially on the gun rights side of things and it’s all in how we handle it,” he added. “I think there is that general fear that we are going to be going in seizing guns at the drop of a hat and really that’s not what we want to do.”
The Denver Law Review summarizes the main arguments of both those who support Colorado’s red flag law and those who oppose it, primarily over the fundamental right to due process. Excerpt below (formatting adjusted, footnotes removed):
Opponents of the Bill primarily contend that the Bill violates the Respondent’s due process protections. The due process clause, which is found in the Fourteenth Amendment of the United States Constitution, ensures that no state will “deprive any person of life, liberty, or property, without due process of law.” There are two kinds of due process: procedural and substantive. Procedural due process sets forth the procedures that must be followed before the government deprives an individual of “life, liberty, or property” and generally includes such as things as proper notice and a meaningful hearing before an impartial magistrate. Substantive due process tests whether the government “has adequate reason for taking away a person’s life, liberty, or property.” In conjunction with proper procedure, substantive due process dictates that a governmental action that deprives a “fundamental right” must be necessary to a compelling government interest.
In an effort to address the opponents’ due process concerns, the drafters of the Bill have included additional procedural protections. For example, in addition to numerous other procedures outlined in the text, the Bill mandates that the Respondent be provided with legal counsel for the hearing, a feature that goes beyond what similar “red flag” laws provide for. Additionally, when compared to other “red flag” laws, the Bill provides the Respondent with a longer period to re-examine the validity of his or her ERPO. Despite these proposed protections, the Bill is still expected to be one of the most “hotly-debated” items in the Colorado General Assembly this year. In 2018, a similar bill was rejected by the republican-controlled General Assembly, but this year the Bill is being introduced to a democratic majority.