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Colorado lawmakers consider changes to Extreme Risk Protection Order Petitions

Posted at 11:52 AM, Mar 08, 2023

DENVER — A series of bills are being discussed at the Colorado state capitol this session to change gun laws. One of which is an expansion to the state's Extreme Risk Protection Order (ERPO) commonly called red flag laws.

SB23-170 would add to the groups of professionals who can petition for an ERPO including District Attorneys, educators, healthcare professionals, and mental health providers.

In the wake of the Club Q shooting, calls have grown from gun reform advocates to strengthen and broaden the law. The Club Q shooting suspect’s 2021 arrest for allegedly making bomb threats has put Colorado’s red flag law back in the spotlight.

Colorado’s red flag law allows a family or household member or law enforcement to petition a court if they believe a person poses a significant risk to themselves or others.

They can ask a judge to issue an order, known as an extreme risk protection order, to have the person’s firearms removed and prohibit them from purchasing other firearms.

Following the lead of Colorado Gov. Jared Polis, some lawmakers say it is time to consider changes to the law, like expanding who can petition a court to have guns removed from someone's custody.

Editor's note: The Senate State, Veterans, & Military Affairs Committee hearing is ongoing. Listen to the audio broadcast

Senate Bill 170's prime sponsors are Senator Tom Sullivan (D-Arapahoe, Douglas), Senator Steve Fenberg (D-Boulder), Representative Jennifer Bacon (D-Denver), and Representative Mike Weissman (D-Adams, Arapahoe). SB21-170 was introduced in late February and is currently assigned to the Senate State, Veterans, & Military Affairs committee. The purpose is to repeal the previously passed law and reenact with the new provisions.

Sen. Sullivan lost his son in the 2012 Aurora theater shooting and sponsored the red flag law as a House member in 2019. He's argued in favor of adding district attorneys, attorney generals, and health care professionals as part of the group that can petition.

The proposed bill in this session "expands the list of who can petition for an extreme risk protection order to include licensed medical care providers, licensed mental health-care providers, licensed educators, and district attorneys", according to the summary text.

It also "requires the office of gun violence prevention to expend funds annually on a public education campaign regarding the availability of, and the process for requesting an extreme risk protection order."

During a hearing Wednesday morning in Denver, current El Paso County Sheriff Joe Roybal testified against the bill. He argues the "legislation that violates 4th Amendment protections against unreasonable search and seizure and a citizen’s right to the 14th Amendment- protections of due process," according to a release. In Roybal's prepared remarks he told lawmakers, "As sheriff, it is my priority to uphold the constitution, carry out the letter of the law, and keep our community safe.”

For the purposes of this bill:

  • A licensed healthcare professional means a licensed physician, physician's assistant, or advanced practice registered nurse who is a primary provider of health services to a respondent; a psychiatrist; or a licensed emergency room medical care provider.
  • A mental health professional means a psychologist, social worker, marriage and family therapist, licensed professional counselor, or addiction counselor licensed, registered, or certified psychologist candidate, clinical social worker candidate, marriage and family therapist candidate, licensed professional counselor candidate, or addiction counselor candidate or an unlicensed psychotherapist.

Anyone who files a petition or is involved in the process is offered protection against an employer disciplining or terminating an employee, whether it is in regard to filing a petition, omitting information, or refusing to take part in the investigation.

The bill includes provisions allowing a licensed healthcare professional or mental health professional to disclose private health information for the purposes of review by a court, but that information must be sealed by a court. Additionally, the bill offers protection from civil or criminal liability for disclosing private health information.

A petition for an extreme risk protection order must include:

  • allegations of danger to themselves or others
  • must be filed in the county where the subject lives
  • identify the firearms the subject is believed to possess
  • if possession of a firearm is part of the subject's employment
  • identify if there is a current domestic abuse order or protection order against the subject
  • If the petitioner and subject have a common lawsuit, complaint, petition, or other action
  • If law enforcement was notified about the petitioner's concerns

As part of the process to consider the petition, there should be a hearing in-person or over the phone, on the same day the petition is filed to determine whether a temporary extreme risk protection order should be issued. Before issuing an order, the court is to consider whether the subject meets the standards of mental health concerns to warrant an emergency commitment.

Within 14 days after the initial hearing, there would be a second hearing to determine if a 364-day extreme risk protection order is warranted. During the second hearing, the subject of the order would be allowed to represent themselves or be represented by an attorney in the proceedings, including cross-examination of witnesses.

Relevant evidence to be considered on whether an extreme risk protection order will be issued:

  • a recent act or credible threat of violence, whether involving a firearm or not
  • a pattern of acts or credible threats of violence within the past year
  • violation of a civil protection order
  • a conviction for a crime that includes domestic violence
  • ownership or access to firearms
  • a credible threat of or the unlawful or reckless use of a firearm
  • history of use, attempted use, or threatened use of physical force against another person
  • prior arrests for murder, homicide, assault, menacing, kidnapping, or sexual assault
  • evidence of substance abuse
  • if possession of a firearm is part of the subject's employment
  • evidence of the recent acquisition of a firearm

A temporary extreme risk protection order would expire on the day the second hearing is held or if the petition is withdrawn. Upon expiration of an order, the law enforcement agency in possession of the subject's firearms should provide notice on how to reclaim the firearms.

If an extreme risk protection order is granted, a court order would be issued for a law enforcement agency to serve the order and start the process of transferring possession of the subject's firearms. The subject would be required to sell or transfer possession of firearms to a federally licensed firearms dealer or arrange storage by a law enforcement agency within 24 hours of being served. They would also have to surrender any concealed carry permit. If the court determines not all firearms were surrendered, a search warrant can be issued to find other items.

Notice to the subject of an extreme risk protection order would include the following language.

'To the subject of this temporary extreme risk protection order: this order is valid until the date and time noted above. You may not have in your custody or control a firearm or purchase, possess, receive, or attempt to purchase or receive a firearm while this order is in effect. You must immediately surrender to the (insert name of law enforcement agency in the jurisdiction where the respondent resides) all firearms in your custody or possession, and any concealed carry permit issued to you. A hearing will be held on the date and at the time noted above to determine if an extreme risk protection order should be issued. Failure to appear at that hearing may result in a court entering an order against you that is valid for three hundred sixty four days. An attorney will be appointed to represent you, or you may seek the advice of your own attorney at your own expense as to any matter connected with this order.'

In the case that someone does not respond or comply with the order to surrender firearms, the local law enforcement agency is to make a 'good faith effort' to determine if the information is being withheld.

Any orders will be entered into the National Instant Criminal Background Check System as a measure to prevent purchases of firearms while the order is in effect. Violations of the order regarding the possession or purchase of firearms would constitute a class 2 misdemeanor.

When someone does not come to reclaim their firearms more than a year after an order has expired, the firearms should be disposed of by the law enforcement agency.

It is worth noting some local jurisdictions opposed the 2019 version of the law before it even passed, including El Paso County Commissioners and then El Paso County Sheriff Bill Elder.

At the time, Elder wrote, “It is the policy of the Sheriff’s Office to respect and protect the constitutional rights of all those we serve. The El Paso County Sheriff’s Office will ensure that the rights of people to be free from unreasonable search and seizure and to receive due process of law are safeguarded and maintained. These protections are reflected in our mission statement, the law-enforcement code of ethics, and codified in our policies.”

An Associated Press analysis of the law found Colorado courts issued 151 gun surrender orders since the law took effect in 2020, a much lower rate than the other 18 states and the District of Columbia with red flag laws.

Denver7's Brandon Richard contributed to this report

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