Legislative Update: Red Flag Law Passes in Colorado

On Friday, April 12, 2019, Governor Jared Polis signed into law House Bill 1177. The gun control legislation previously passed by just one vote in the Senate on March 28th, 2019 and was voted in by the House of Representatives on April 1st, 2019 (available to read here).

Under this law, a family member could petition the court to temporarily stop a person that poses a significant risk to themselves or others from possessing, purchasing, or receiving a firearm. How do they do this? With an Extreme Risk Protection Order (ERPO). Find out what you need to know about this new law and how it can affect you.

Who May Request an ERPO?

  1. Family Member;
  2. Household Member; or
  3. Law Enforcement Officer or Agency.

The Parties Involved

  1. Petitioner – Person requesting the ERPO
  2. Respondent – Restrained party

Temporary ERPO Hearings

To obtain a temporary ERPO, the process starts with a hearing.

  • The Petitioner starts the ERPO process by submitting an affidavit signed under oath and penalty of perjury that states the facts and evidence in support of a temporary ERPO.
  • This request may be filed without notice to the Respondent.
  • If the Petitioner is law enforcement, an affidavit for a search warrant must also be filed to search for any firearms in the possession or control of the Respondent.
  • The court must hold a temporary ERPO hearing on the same day the petition is filed or the following day.
  • The Petitioner must establish proof by a preponderance of the evidence that the Respondent poses a significant risk to him or herself or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm.
  • The Respondent must be served with the temporary ERPO, the petition for a temporary ERPO, and notice of the continuing ERPO hearing. If the Respondent attends the court hearing, he or she must relinquish their firearms and Concealed Handgun Permit (CHP) within 24 hours of the hearing.
  • Temporary ERPO expires on the date and time of the continuing ERPO hearing.

Continuing ERPO Hearings

If a successful temporary ERPO is issued, a continuing ERPO must be scheduled within 2 weeks, or 14 days following the initial order. The petition must be filed in the county where the Respondent resides, and they will be appointed counsel by the court if they don’t have an attorney. The main reason for this continuing ERPO hearing is so that the Petitioner can establish by clear and convincing evidence that the Respondent poses a significant risk to self or others by having a firearm in their custody or control or by possessing, purchasing, or receiving a firearm.

  • Factors the Court May Consider:
    • A recent act or credible threat of violence by the Respondent whether or not that the act or threat involved a firearm;
    • A pattern of acts or credible threats of violence by the Respondent;
    • A violation by the Respondent of a civil protection order;
    • A previous or existing ERPO issued against the Respondent and any violation of such;
    • A conviction of the Respondent involving domestic violence;
    • The Respondent’s ownership, access to, or intent to possess a firearm;
    • A credible threat of or the unlawful or reckless use of a firearm by the Respondent;
    • The Respondent’s history regarding use, attempted use, or threatened use of physical force by the Respondent against another person;
    • The Respondent’s history of stalking;
    • Prior arrests of the Respondent for crimes involving victims rights or cruelty to animals;
    • Evidence of abuse of drugs or alcohol by the respondent;
    • Whether the Respondent is required to have a firearm for employment; and
    • Evidence of recent acquisition of a firearm or ammunition by the Respondent.

During the hearing, both the Petitioner and the Respondent may present evidence and cross-examine witnesses. The court must order the Respondent to undergo a mental health evaluation and treatment, if the person qualifies. Additionally, the court may initiate emergency commitment of the Respondent, if he or she qualifies. If ordered, the continuing ERPO remains in effect (unless vacated at a subsequent hearing) for 364 days (unless grounds to continue the order are found).

Relinquishment of Firearms and CHP

Upon the issuance of a temporary or continuing ERPO, a Respondent must relinquish all of their firearms.

How to Relinquish

  • All firearms and CHP must be surrendered at the time the ERPO is served.
  • Respondent then can inform the law enforcement officer of their choice between the following three options:
    1. Sell or transfer possession of the firearms to an FFL;
    2. Arrange for storage of the firearms by a law enforcement agency; or
    3. For antique firearms, transfer possession to a relative who does not live with the respondent after confirming, through a criminal history check, the relative is eligible to possess a firearm.
  • Proof of Relinquishment:
    • Timing – Within 48 hours after the issuance of an ERPO, Respondent must file proof of relinquishment and attest to the court he or she does not currently have any firearm OR attest to the court he or she was not in any possession of firearms to relinquish.
      • If no proof or attestation is made, law enforcement will be ordered to determine whether the Respondent violated the ERPO.
  • Concealed Handgun Permit:
    • A CHP must be surrendered to the law enforcement officer serving the ERPO at the time of service.
    • A CHP will immediately be revoked by the issuing county and can be reapplied for after termination or expiration of the ERPO.
  • Receipt – the law enforcement officer must provide Respondent with a receipt identifying all firearms or permits seized.
    • If the Petitioner or law enforcement notifies the court that the Respondent has failed to relinquish all firearms, and the court determines probable cause exists to believe this information, a search warrant will be issued.
    • Firearms the Respondent Does Not Own – The true owner may request the court order possession be transferred to him or her.

Motion to Terminate Continuing ERPO

The Respondent can motion the court once during the 364-day ERPO for a hearing to terminate the order. If this is done, the Respondent has the burden to establish by clear and convincing evidence that he or she no longer poses a significant risk of causing personal injury to self or others by having in his or her custody or control a firearm or by purchasing, possessing, or receiving a firearm.

Motion to Extend ERPO

The Petitioner may request an extension of the ERPO within 63 days before the expiration of the order. Once the request is made, the hearing must be scheduled within 14 days. Service to the Respondent is required. The Burden of Proof falls on the Petitioner to show that the Respondent continues to pose a significant risk.

The Return of Firearms

Within three days of termination or expiration of an ERPO, the agency or person possessing Respondent’s firearms must, upon request by the Respondent, return items after confirming the Respondent can legally possess a firearm through a criminal history check. If the Respondent or owner of the seized firearm does not claim the item within one year of the termination or expiration of the ERPO, law enforcement may dispose of the item.

ERPO Reporting

  • All ERPO are entered into a statewide judicial information system on the same day of the order.
  • All orders are forwarded to Central Bureau of Investigation (CBI) and the county law enforcement agency;
  • CBI is ordered to enter the ERPO into the National Instant Criminal Background Check System (NICS).
  • The State Court Administrator must also report state court data related to all persons who are subject to ERPO that are later charged with a criminal offense.
  • Expungement – ERPO’s are expunged from the various systems after expiration or termination.
  • An ERPO does not constitute a finding that a Respondent is prohibited to possess a firearm under Federal Law.

Penalties for Violating an ERPO and Collateral Consequences

  • If a Respondent violates an ERPO, it is a Class Two Misdemeanor criminal offense.
  • A Petitioner who files a malicious or false petition may be subject to criminal prosecution

Q&A

  • Question: What do you do if you are served with an ERPO, relinquish your firearms, then realize you are still in possession of a firearm?
    • Answer: Immediately have the firearm removed from your possession or control and contact an attorney.
  • Question: What if a spouse or other person in my home owns a firearm and I am subject to an ERPO?
    • Answer: Best practice is to have that person remove the firearm from the home or transfer possession to someone outside of the home so you are not accused of being in constructive possession of the firearm.
  • Question: I’ve been served with an ERPO, what should I do next?
    • Answer: Comply with the law enforcement officer serving the ERPO, including any search warrant they have obtained. DO NOT make any additional statements. Contact an attorney immediately.
  • Question: An ERPO was issued against me. Is it possible to terminate the order prior to the expiration date?
    • Answer: Yes.
  • Question: An ERPO was issued against me. Can I go hunting or to the range if I do not own the firearms that will be used?
    • Answer: No. An ERPO prohibits the possession (which has a broad legal definition) of any firearm.
  • Question: The ERPO has expired. How do I get my guns/CHP back?
    • Answer: You must claim possession of your firearms within one year of expiration or termination of the ERPO, or they will be disposed of.

These gun-seizing red flag laws have been spreading across the country since the Marjory Stoneman Douglas High School shooting last year in Parkland, Florida. Nine states added their own versions of the law last year, bringing the number of states with red flag laws to 14 (as of February 2019), with several more states’ legislatures considering similar legislation.

If you have any questions about this law or others, contact U.S. LawShield and ask to speak to your Independent Program Attorney.

First Aid for Gunshot Wounds 2A Institute

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