In the spring of 2018, Colorado state legislators debated a proposed a law which would allow for the creation of an “extreme risk protection order,” whereby a court — if it believes an individual poses a significant threat to him or herself or to others — could order that individual to hand over their guns.
In response, the right-wing Facebook page “1776 We the People” posted a meme labelling the proposal a “gun confiscation bill,” and claiming that it would “strip our second amendment rights away from us.” The 5 May post that accompanied the meme read:
A sad day in the Colorado State House as the Democrat majority voted in lockstep to STRIP our second amendment rights away from us. The so-called Red Flag bill threatens every law-abiding gun owner in Colorado and sets a precedent for other states to follow.
The meme itself reads: “House Democrats passed gun confiscation bill HB18-1436 on third reading” and features a photograph of Alec Garnett, a Democratic state representative and one of the bill’s main sponsors:
The bill does allow for the lawful confiscation of a person’s firearms, but only under very narrow circumstances, only on a temporary, emergency basis, and in the interest of protecting the safety of gun-owners and those around them. House Bill 1436 is similar to a law passed in Oregon in August 2017, which also mandated the extreme risk protection order (ERPO) and which also prompted similarly exaggerated descriptions from advocates for liberal gun laws.
In reality, this is how the ERPO would work in Colorado, according to the most up-to-date version of the bill as of 9 May 2018:
Temporary ERPO (seven days)
- If a law enforcement officer or agency, or a housemate or family member of an individual is worried that that individual is a threat to herself/himself or others using a firearm, they can petition a judge for an ERPO
- The petitioner must set out the facts as to why they have those concerns, in an affidavit that they must sign under oath and on penalty of perjury. This means that if they are found to have lied in the affidavit, they could face a perjury conviction, a Class 4 felony carrying a two to six year prison sentence and/or fine of between $2,000 and $500,000
- The court must hold a hearing within 24 hours of the application, and if it finds by a preponderance of evidence that an individual poses a significant risk of harm to himself/herself or others, the court will issue a temporary ERPO, which must be delivered to the individual who is the subject of it (the respondent)
- The temporary ERPO orders the respondent to temporarily surrender all firearms and permits in their possession and bars them from purchasing or acquiring a firearm, and law enforcement officers are also authorized to search the respondent’s property and confiscate all firearms and permits in their possession
- The respondent is allowed to sell or transfer ownership of their firearms to a licensed dealer, or submit them for storage by a law enforcement agency, for the duration of the ERPO
- If the respondent is found to have violated the ERPO, they risk conviction of a Class 2 misdemeanor, which carries a prison sentence of three to 12 months and/or a fine or $250 to $1,000
- In issuing the temporary ERPO, the court must schedule another hearing, to take place within seven days, to decide whether a new, 182-day ERPO should be issued.
Continuing ERPO (182 days)
- At this second hearing, both the petitioner and respondent have the right to present evidence and be heard by the court
- At the second hearing, the standard of evidence is higher than in the first hearing. This time, the petitioner must persuade the court using “clear and convincing evidence” that the respondent poses a danger if they are allowed to possess or acquire a firearm
- If the petitioner fails to establish this, a 182-day ERPO will not be issued, and law enforcement authorities must return to the respondent all lawfully-owned firearms
- If the petitioner convinces the court, the court would issue a 182-day ERPO, and the respondent would continue to be barred from possessing or acquiring firearms for that time period
- In deciding whether to issue a continuing ERPO, a court can take into account several factors, including: recent acts or threats of violence by the respondent against herself/himself or others; a previous pattern of such acts or threats; relevant mental health issues; any past violation of a civil protection order (similar to a restraining order); a past domestic violence conviction; ownership of or attempts to acquire a firearm; evidence of drug or alcohol abuse, and so on.
Ending or renewing an ERPO
- During the course of this 182-day ERPO, the respondent is allowed to request one hearing to terminate the ERPO
- The court will schedule a termination hearing between 14 and 28 days after the original petitioner is notified
- At a termination hearing, the burden of proof rests with the petitioner, who must once again establish with clear and convincing evidence that the respondent continues to pose a danger to herself/himself or others
- If the petitioner does not convince the court, the court will terminate the ERPO, and the respondent will get their guns back
- If the petitioner does convince the court, the ERPO will resume
- In the 63 days before the end of the 182-day ERPO, the petitioner can request a hearing to renew the ERPO
- If the petitioner does not request a renewal, the ERPO will not be renewed
- If the petitioner requests a renewal and the respondent contests it, the renewal hearing will take place in the same way, considering the same kinds of evidence, as in the second hearing (continuing ERPO)
- If the respondent does not contest the renewal request, there is no need for a hearing, and the petitioner only needs to sign an affidavit stating that the circumstances which gave rise to the original 182-day ERPO have not changed.
- The court will renew the ERPO for a period of time it deems appropriate, but no longer than one year, and set a date no later than 35 days before the end of that period, to review the ERPO once again
The ERPO set out in H.B. 1436 does not “strip away” any rights wholesale. In only one instance (the initial temporary ERPO) is it possible for a court to order the confiscation of firearms without hearing evidence from the person who owns them (an “ex parte” hearing.) Even then, that order only lasts a maximum of seven days.
At every stage after that, the burden of evidence and proof is on the person requesting the confiscation. If a petitioner doesn’t present good enough evidence for a 182-day ERPO, it won’t be issued and the gun owner will get their guns back. If a petitioner doesn’t present good enough evidence at a termination hearing, the ERPO will be ended and the gun owner will get their guns back. If the petitioner doesn’t request a renewal and also convince the judge, for the third time, then the ERPO won’t be renewed, and — you guessed it — the gun owner will get their guns back.
Similarly, a petitioner must submit their evidence to the court along with an affidavit, signed under oath and on penalty of perjury. This means that if they are found to have knowingly, deliberately misstated the facts in their request for an ERPO, they could face a perjury conviction, a felony which could land them in prison for between two and six years.
This is likely to discourage anyone who might otherwise attempt to abuse the ERPO or use it to harass someone who is not genuinely a threat.
Finally, the “1776 We the People” page is right to point out that the bill was passed by a Democratic majority in the Colorado House of Representatives, but it omits that one of its three main sponsors is a Republican — Rep. Cole Wist, who in 2016 got an A rating from the National Rifle Association, which describes him as a “solidly pro-gun candidate.”
On 4 May, the Democratic-controlled House passed the bill by 37 votes to 23, with only two Republicans voting in favor of it. H.B. 1436 will now go before the Republican-controlled state Senate, where its chances of passing into law appear slim. Wist himself told his House colleagues that the bill is “likely to die when it leaves this chamber.”