Colorado To Issue “Red Flag” Extreme Risk Protection Orders

What do you do when a loved one’s behavior or mental health raises a red flag that they may become dangerous? Under a new law, Colorado judges can issue Extreme Risk Protection Orders to remove firearms from the hands of those who may pose a threat to themselves or others. But what can you do if you are the one whose Second Amendment right to bear arms has been put on hold for the wrong reasons?

Colorado “Red Flag” Law Tries to Stop Rise in Gun Deaths Statewide

Last April, the Colorado legislature passed HB19-1177, a law creating a process for law enforcement or family and household members to temporarily remove firearms from someone they believe pose a risk to themselves or others. In 2018, 885 Colorado residents were killed by firearms. That number has been skyrocketing since 2013 (613 deaths), and is more than double the number of gun deaths in 1980. By far, the highest cause of gun-related deaths is suicide, followed by homicide. A much smaller number of people die every year because of gun accidents.

Colorado has responded to this disturbing trend by passing the Extreme Risk Protection Order law, which bill sponsor and House Majority Leader Alec Garnett (D-Denver), says will “put forward meaningful change that can truly save a life.” As of January 1, 2020, that law has come into full effect, giving Colorado judges the authority to enter Extreme Risk Protection Orders and remove firearms from the hands of those they consider dangerous to themselves or others.

Family Members Can Use Extreme Risk Protection Orders to Respond to Risky Behaviors

Often a person’s family members are the first — and sometimes only — ones to know that a person is struggling and could resort to violence. A loved one may become depressed, be wrestling with a relationship falling apart, or be responding to a hostile work or school environment.

The Extreme Risk Protection Orders law allows members of a person’s family or household, or a law enforcement officer to file a petition with the court requesting a temporary extreme protection order (ERPO). That petition has to lay out the circumstances that show the respondent (the one the order will affect) is more likely than not to pose a significant risk to themself or others by having or obtaining a firearm. That petition must also come with an affidavit signed by the person filing it setting out the specific facts that support the claim of danger under penalty of perjury, and a reasonable basis for believing those facts exist.

What Happens After an ERPO Petition is Filed

When the petition is filed, the Colorado court must hold an in-person or telephone hearing that day (or the next day court is in session) to determine if there is a “preponderance of the evidence” to support the need for an ERPO. If the judge is convinced the standard has been met, the court will issue a temporary ERPO and schedule a second hearing within 14 days to determine if it is appropriate to continue the order.

The respondent to the ERPO must be notified of this hearing and has a right to an attorney to assist them in court (appointed or retained). At this second hearing, the legal standard for showing an ongoing ERPO is needed is higher. Either the family member or law enforcement officer must prove by clear and convincing evidence (the highest civil law standard) that the person poses a significant risk to themself or others by purchasing or possessing a firearm. If this new, higher standard is met, the resulting ERPO prohibits the respondent from possessing or purchasing guns for 364 days after the new order is entered.

What to Do If Someone Filed an ERPO Against You

Once the ERPO is entered, the obligations shift to the respondent. If you are the person named in the order, you must surrender all firearms in your possession or control to a law enforcement agency or federally licensed firearms dealer (antiques and other collectibles can be sent to an eligible family member). Once the ERPO expires or is terminated, all of your guns must be returned to you within 3 days of your request.

That doesn’t mean you automatically have to wait a year to get your weapons back. If you receive a temporary or continuing Extreme Risk Protection Order, an attorney can help you to:

  • Defend against the petition at the 14-day continuation hearing by showing that you are not a danger to yourself or others.
  • File a motion to terminate the ERPO if you feel that the ERPO was entered improperly or that the danger has passed.

You may only file one motion to terminate during the 364-day period, but a judge can “continue” the motion if he or she believes you are making progress toward no longer needing it. Also, while the burden is on the petitioner to prove you are dangerous in the initial petition, when you file a motion to terminate it will be up to you to show that you are no longer a risk.

Whenever a court is considering entering an Extreme Risk Protection Order, the very nature of the petition means that you are in for a fight. Whether you are trying to protect someone you love, or defending against claims that affect your Second Amendment rights, you need an attorney who understands this new law and is willing to do the hard work of showing the court what needs to be done.

At Aviso Law, LLC, our attorneys understand how important a person’s guns can be to them, and how dangerous. We know how to address complicated issues such as mental illness and personal safety with respect. We can help you file a petition for an ERPO, or fight back when one has been improperly entered against you. Contact us today to schedule a consultation.

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