The red flag law itself and a model policy created by the state’s unit for managing law enforcement agencies’ policies lay out the procedure for Extreme Risk Protection Orders. All law enforcement agencies were also required to adopt their own policies for the law by Jan. 1, according to the law — House Bill 19-1177.
The bill outlines two ways for an ERPO to be submitted to a judge: either by a peace officer or by a family or household member of the person thought to be a danger.
If the judge approves the order, law enforcement in the person’s jurisdiction has five days to serve the order, which calls for the person to surrender any firearms or concealed carry permits they have. The officer serving the order is also required to seize any firearms in plain sight or obtained through a search warrant.
The individual whose guns are confiscated is given the choice between giving their firearms to law enforcement for storage or allowing a federally licensed firearms dealer to store or sell the guns.
Within 14 days, the court must set a hearing to determine if that temporary order, which also prevents the individual from purchasing guns, should be extended for 364 additional days. The person in question will appear in that meeting and will either be appointed legal counsel or hire their own representation.
If a full 364-day order is issued, the person served will have one chance to try to appeal the decision and have it terminated. Once the order expires, the person who requested it can file to renew the ERPO for up to a year.
If it’s not renewed, law enforcement or the firearms dealer storing the guns must return the firearms within three days.
The law also requires that the officer serving the order include referrals to appropriate resources, including those regarding domestic violence, behavioral health and counseling. If the court grants the ERPO and determines that the person in question meets the standard of a mental health disorder, the judge is required to order treatment and evaluation as well.
- Elliott Wenzler
Extreme Risk Protection Orders will be carried out by the law enforcement agency that has jurisdiction where the person in question lives.
Sheriff’s offices have the responsibility of enforcing ERPOs in unincorporated areas, such as Highlands Ranch, and municipalities that contract for their services, such as Centennial.
But for much of the metro area, the duties will belong to local police departments. The largest of these agencies, the Denver Police Department, will seek out orders when necessary and fulfill the ones handed down to them by judges, according to the department’s policy.
“DPD believes that (ERPOs) can significantly reduce the risk of suicide and harm to victims, the community and law enforcement and is committed to enforcing extreme risk protection orders,” according to the policy.
Unlike some sheriff’s offices, the department will seek a search warrant whenever an ERPO is approved by a judge, according to the policy.
The procedure, found in the department’s operations manual, outlines a chain of people who will be consulted for the order. The officer who wants to establish an ERPO will consult a domestic violence unit sergeant and an attorney from the city’s mental health unit. Then, a domestic violence prevention detective will prepare the affidavit and serve the order. A similar process will take place for citizen-initiated orders.
Rocky Mountain Gun Owners filed a lawsuit in May challenging the red flag law, but instead of claiming the law violates the Constitution, it alleges the bill was passed illegally. Now, the organization is waiting as the lawsuit sits on the desk of a district court judge. Originally, the group expected a decision by the end of 2019, but now believe it could be as late as May 2020, a spokesperson said.
On its website, Rocky Mountain Gun Owners says it “has led the charge to halt the radical anti-gun agenda across Colorado.”
This is the first installment in an occasional series on Colorado’s red flag law.
Two years and a day after Douglas County Sheriff’s Deputy Zackari Parrish was fatally shot by a mentally ill man, a controversial red flag law named for him went into effect.
The state law allows a judge to temporarily order the confiscation of firearms from people deemed a threat to themselves or others. Those in favor of the measure — which became law on Jan. 1 — say it can help prevent incidents such as the one that took Parrish’s life, as well as suicides. Those opposed to the law say it infringes on Second Amendment rights and could be abused.
In the metro area and throughout Colorado, varying views have emerged, even among law enforcement leaders whose agencies could find themselves tasked with confiscating firearms under the new law.
In Douglas County, Sheriff Tony Spurlock’s ardent support of the law prompted detractors of the measure to explore the possibility of recalling him.
In Jefferson County, Sheriff Jeff Shrader, who once spoke out against the law, says he will enforce it, but will only forcefully seize firearms in very specific situations.
Sheriff Steve Reams of Weld County has said he won’t enforce the law, and in March, Sheriff Bill Elder of El Paso County released a statement saying his office would challenge the constitutionality of the bill.
The law also prompted action last year by officials in Colorado outside law enforcement. Across the state, numerous boards of county commissioners voted to declare their terrain Second Amendment sanctuary counties, a largely symbolic move to show their disapproval of the legislation.
The law, known formally as the Zackari Parrish III Violence Prevention Act, is named for the deputy killed in the line of duty while attempting to put a mentally ill man on a 72-hour hold on Dec. 31, 2017 in Highlands Ranch. The bill was passed during the 2019 legislative session, propelled by Democratic support and largely opposed by Republicans.
One of the biggest questions that remains is: What happens when someone refuses to give up his or her guns? The answer depends on who made the request, called an Extreme Risk Protection Order, or ERPO.
If the person petitioning for the ERPO is a law enforcement officer, the bill also requires filing of a search warrant request. The same is not true for a citizen-initiated order.
Under the law, those who don’t comply with an ERPO will be charged with a class 2 misdemeanor. Anyone who files a false, malicious petition for an ERPO can also be charged with a crime.
While the bill itself outlines specific protocols, sheriffs in the metro area suburbs seem to have different interpretations and opinions about the law and how to implement it.
Spurlock, a Republican in a largely conservative county, was one of the law’s most vocal supporters — putting him in opposition with the three-member board of commissioners. The board approved a resolution denouncing the law but stopped short of declaring the county a Second Amendment sanctuary.
“That’s politics sticking its nose in where it shouldn’t be,” Spurlock said of the resolution.
After Spurlock announced his support of the measure early last year, a committee to recall the sheriff was formed. The committee continues to operate a website but hasn’t announced plans to begin the 45-day signature collection period required to take the recall to the next step.
While some opponents of the law have spoken out against it, citing the risk of violence, Spurlock couldn’t disagree more, he said.
“So are we supposed to just let them be dangerous?” he said. “The reason why we’re going in is because it’s dangerous … to avoid that just because it’s dangerous, that’s not even common sense. It’s silliness.”
When asked how the sheriff’s office will react if someone doesn’t surrender his or her weapons under a citizen-initiated order, Spurlock said it’s impossible to know what his office will do.
“Each situation will be handled based upon its circumstances,” he said. “There will be lots of options in my experience. It’s not black and white.”
The key to enforcement will be working with the court system, county attorneys, the district attorney and mental health officials, Spurlock said.
“Every law has its nuances,” he said. “In Douglas County, we’ve got that figured out how we’re going to handle it … and I hope that the other jurisdictions follow suit.”
Under Douglas County’s policy, deputies presented with an order will conduct research and learn as much as possible about the person, Spurlock said.
They will also consult the county’s critical response team, which is trained to deal with mental health crises.
He expects to only see about one or two cases per year, he said.
Shrader, a Republican, openly spoke out against the law last year, saying he was concerned about the conflicts between applying a civil order using a criminal standard. He also said the law didn’t adequately address challenges with mental health.
Though he now says he will enforce the orders, his policy outlines very specific scenarios in which any kind of force will be used to confiscate guns.
“If it’s a civilian who has petitioned, the only role we have is to present (the ERPO) initially,” Shrader said. “It’s not an order to seize. It’s an order for the person to surrender the firearms.”
If the person doesn’t give up any guns, the deputy will report this to the court, according to Jefferson County’s policy.
According to the law, if a person declines to surrender his or her guns and a court is able to verify that they do possess them, the judge will then issue a search warrant.
But Shrader said his office will only get a search warrant to seize the guns in two situations: If there is probable cause for an arrest or if the person needs to be brought in for a 72-hour mental health hold.
“It’s a little bit silly to me to say we’re going to obtain an ERPO and not do something with the person,” he said. “Because clearly there are many other things that are potentially weapons.”
When Arapahoe County Sheriff Tyler Brown first heard about the chance of a red flag law in Colorado, his biggest question was whether it is possible to confiscate someone’s guns without any danger.
Now, Brown, a Democrat, believes it can be safe, but only if it’s done slowly and methodically, he said.
“I think if it’s used appropriately, it has the potential to save lives,” he said.
The sheriff’s office will enforce the law and will even seek out orders “when necessary,” according to its policy.
“We’re not getting (the order) in our hands, rushing straight to the door and demanding firearms,” he said. “We’re doing our research, we’re finding out what specifically caused this, we’re talking to reporting parties.”
Brown never considered not enforcing the law because of the Second Amendment, he said.
“The First Amendment is the freedom of speech, but you can’t run into a movie theater and yell fire,” he said. “There’s responsibilities with it.”
Under Arapahoe County’s policy, a team made up of leaders from special investigations, special operations, the behavioral health response program and the assistant county attorney will work together on carrying out the orders. They will conduct a “threat assessment” and an operational plan, according to the policy.
If possible, a trained member of the crisis intervention team or the behavioral health response program will be present while the order is enforced.
Adams, Elbert counties
According to the Adams County Sheriff’s Office policy, the law will be enforced there. Sheriff Richard Reigenborn, a Democrat, has not responded to multiple requests for an interview about the law.
The policy outlines a similar process to Jefferson County’s. The office’s procedure also states that the office will only seek search warrants when accompanied by an arrest warrant or a mental health hold.
Both counties also require the deputy serving the order to prepare a written report for the presiding judge. Neither policy gives specific directive to deputies who wish to obtain an ERPO, whereas Douglas County, Arapahoe County and Denver Police all do.
The Elbert County Sheriff’s Office did not respond to multiple requests for an interview about its policy. In March, county commissioners approved a resolution making it a Second Amendment sanctuary county and stating it did so in support of the sheriff, Tim Norton, a Republican. The resolution also challenged the constitutionality of the red flag law.
The office's policy states that their deputies will not petition for any ERPO's because the law appears to violate the constitution, according to the policy.
It also states that if a judge grants a citizen-initiated ERPO, the sheriff will have the discretion to decide whether to serve it. The sheriff's office also will not take possession of any firearms turned in by someone attempting to comply with an order, according to the policy.
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