Colorado Residents, Police Take Red Flag Gun Control Petitions To Court

Colorado’s Extreme Risk Protection Order law went into effect on the first of the year. Now the results of some of the first “red flag” gun control petitions are in, and the results are mixed.

Colorado ERPO Gives Residents, Police a Tool to Prevent Gun Deaths

Last year, the Colorado legislature debated and eventually passed the state’s Extreme Risk Protection Order (ERPO) law. This law, which went into effect on January 1, 2020, was designed to give family members and police officers a way to act proactively to prevent gun deaths. The theory behind the ERPO is that, often there are warning signs before individuals with violent tendencies or mental health challenges take the last step to picking up a gun and committing suicide or homicide.

A previous blog post described the ERPO in detail, including who can file a gun control petition. It explained the standard residents and police officers must meet before a judge will issue a protective order directing a respondent to turn over his or her guns for up to 364 days. Now, two months after the law went into effect, the first gun control petitions have gone to court, giving attorneys and advocates a glimpse of what is to come under the new law.

Colorado’s First ERPO Petition Targets Domestic Violence Prevention

The Denver police department seems to have won the race to be the first to file a gun control petition under the state’s ERPO law. On January 2 (the first day the courts were open in the new year), an officer was standing ready with a petition intended to prevent a pattern of domestic violence from escalating to gun violence.

According to documents filed in the Denver Probate Court, the police had responded to a domestic violence incident between the respondent and his wife in December. When the police filed the petition, they said there was “clear and convincing evidence” that he posed a significant risk of causing injury to himself or others. The court issued a temporary ERPO, and set the matter for a hearing on January 16, 2020, so the police could prove the danger. However, days before the hearing, the man waived his right, agreeing to hand over his firearms for 364 days.

ERPO Closes the Gap Between Criminal Prosecution and Mental Health Proceedings

Another early gun control petition was filed by the Larimer County Sheriff’s Office against Respondent David Gatton as part of an ongoing set of cases involving threats of school shootings. Gatton has been in police custody since March 2019 after he was arrested for retaliating against a witness or victim and inciting destruction of life or property. This was in response to text messages Gatton admits sending saying he was struggling to find work and threatening to “kill a lot of people” and planning to be “a serial campus shooter.” However, the district attorneys involved in the matter have had trouble determining whether to proceed on the criminal charges or to pursue detention under a mental health case instead.

The sheriff’s office’s gun control petition cited Gatton’s “recent … credible threat of violence” against his parents for reporting him to the police. The evidentiary hearing on the request for an Extreme Risk Protection Order was held on January 8, and the resulting ERPO provided a level of assurance to the police and Gatton’s family as they considered their options going forward.

Controversy Swirls Over Resident’s ERPO Petition Against Police Officer

The implementation of the new law hasn’t been entirely without incident, however. While courts across the state have been addressing gun control petitions by officers and family members, one petition, also filed in Larimer County, has raised concerns by lawmakers and law enforcement officers.

On January 9, 2020, Susan Holmes filed a petition for an extreme risk protection order against Colorado State University police officer Phillip Morris. Her petition claimed there was a credible risk of unlawful or reckless use of a firearm by Cpl. Morris because he had threatened and then killed her son, Jeremy Holmes, and had shown ongoing violence and aggression.

The incident in question occurred on July 1, 2017, when Jeremy Holmes is said to have charged an officer while wielding an 11-inch hunting knife. According to police body camera footage, the officers repeatedly warned the 19-year-old to drop the knife before firing their weapons. A subsequent investigation by the district attorney into the young man’s death deemed the officers’ actions justified, and Morris continued to serve as a police officer at the time Holmes filed the ERPO petition.

The evidentiary hearing was held on January 16, 2020. There it appeared that the petition had included a statement that Holmes and Officer Morris had “a child in common” which appeared to reference her late son. The judge denied Holmes’s petition after the hearing, allowing Morris to continue to possess his firearms and serve as a police officer.

Traditionally, in Colorado family law, this phrase is intended to mean that the parties are the legal or biological parents of the same child. However, Holmes told the Associated Press that it could be “interpreted in different ways”. She is considering appealing the trial court’s decision.

Holmes’s petition is causing controversy over the way the new law can be used — or some say abused — in ways the legislature did not intend. Larimer County Sheriff Justin Smith called her petition a “fraud”. On January 30, the Sheriff’s Office issued a warrant for her arrest on suspicion of perjury and attempting to influence a public servant. Holmes has been recorded saying, “That man should have his gun taken away and he should never be able to work as a police officer,” but says, “I don’t have a vendetta. I have a desire for justice for everyone.”

The politicians who passed the bill are equally divided over how it has been used. Democrats say that the judge’s denial of the petition shows that the law works as it should to exclude improper petitions and protect respondents gun rights. However, Republicans say that the petition shows how easily the law can be manipulated and abused.

Anytime the legislature creates a new law it takes time for the courts to work out the details to properly enforce it. What these three cases show is that red flag gun control petitions are being granted and denied based on a careful application of the law. That means that anyone seeking or defending against an ERPO should enlist the help of an experienced Colorado attorney to advocate on their behalf.

At Aviso Law, LLC, our attorneys have worked through new laws before to protect our clients’ interests. We know how to advocate for our clients, educating trial court judges on emerging legal issues, so that you can receive a just result. 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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