Wednesday, January 8, 2020

A Basic Primer on Red Flag/ERPO

Effective January 1, 2020, law-abiding gun owners in Colorado are subject to being “Red Flagged” under Colorado Revised Statutes 13-14.5-101 et seq. C.R.S. (Page number references below are only to this full text of the Act found at:…/defa…/files/2019a_1177_signed.pdf).
According to the abbreviated legislative summary of the new law (, its purpose is to permit law enforcement or a household member (parent, sibling, child, spouse, domestic partner, unmarried co-parent, someone who resides or has resided with you during the last 6 months) (pg. 2 of Act) to seek a court order for the surrender/confiscation of any firearms in the subject's possession or control. The surrender can be voluntary or forced by search warrant (which could include a no-knock raid of your business, home or other property the subject controls at any time of the night or day).
In enacting this ill-conceived legislation, the General Assembly clearly failed to consider the safety of all parties involved in this Constitutionally-questionable process, including law enforcement, bystanders and the subject himself. In Maryland, where Red Flag/ERPO laws are already in place, 148 seizures occurred in the first 3 months with one gun-owner killed (…/fatal-officer-involved-sh…/).
To obtain a preliminary ERPO, the accuser must establish before a judge by sworn petition and testimony that the subject poses a significant risk of causing personal injury to himself or others in the near future by having, purchasing, possessing or receiving a firearm (pg. 3). The standard of proof is a preponderance of the evidence--the lowest standard in our legal system (…/preponderance_of_the_evidence).
The court must hear the petition as soon as possible, but no later than the day after filing. The accuser and witnesses may appear by phone (pg. 4) and are not subject to formal cross-examination. The hearing is ex parte, meaning the subject of the order will not be aware of the hearing or issuance of an ERPO until the police arrive to execute it. The issued order will require the surrender (or seizure) of all firearms and any concealed-carry permit, but cannot address ammunition or other accessories. The subject of the order is entitled to a court hearing within 14 days (pg. 4), but the burden of proof is on the subject to counter the finding of the court that the subject poses a risk/threat/danger. Simply put, once an ERPO is in effect, a judge must be convinced that he/she was completely in error by initially granting the order, an extremely-remote likelihood.
ERPOs can also seek to prevent recovery of firearms already in police/government custody.  In one of the first cases filed after the law went into effect consisted of Denver Police seeking to retain firearms that were already in their possession as the result of a Domestic Violence investigation (…/73-2c6b704c-bb49-4683-a8e8-df85b978…).
Given the complex legal issues involved in this new and highly-questionable law, the assistance of experienced legal counsel, especially in the areas of firearms and criminal law, is of vital importance.

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