Tackling Questions About Colorado’s Red Flag Law and the Second Amendment

Colorado Gov. Jared Polis, a Democrat, signed
into law a bill this
month that allows a person to be temporarily disarmed if a court finds that he
or she poses a significant risk of harm to self or others.

This makes Colorado the 15th state to enact such a law, known in Colorado as an extreme risk protection order and colloquially as a red flag law.

The state Legislature’s push for red flag legislation came after a man with a long history of untreated mental health problems shot and killed a 29-year-old sheriff’s deputy, Zach Parrish, who responded to 911 calls regarding a mental health crisis.

We have long noted that untreated serious
mental illness
plays a key role in suicides
and acts of mass
public violence
, including those committed with firearms.

Red flag laws can play an important
in combating these types of firearm-related violence, but such laws
must also respect due process protections, be limited in duration, and refrain
from broadly undermining the Second Amendment rights of gun owners who aren’t a
danger to themselves or others.

Every state’s red flag law is different, and some are
unquestionably worrisome. But how do claims against Colorado’s law stack up
against reality and reason?

Below, we’ve addressed some of the common concerns raised about Colorado’s red flag law. In truth, the law—while not perfect—is well-crafted to intentionally avoid many of the problems normally seen in these types of laws.

1. Is it “Gun Confiscation?”

No. The term “gun confiscation” rightly evokes fear among
law-abiding gun owners that the government will impose broad-scale civilian
disarmament like that seen in Australia and the United Kingdom. Laws that
severely diminish the ability of citizens to keep and bear arms commonly used
for lawful purposes are an affront to the Constitution.

But this law doesn’t seek to impose broad restrictions on
all gun owners. Instead, it creates a legal process to temporarily disarm only
those specific individuals who are determined by a court to meet objective
criteria for dangerousness.

Under the statute, a law enforcement officer, family member,
or household member (such as a roommate or domestic partner) may petition a
court to hold a hearing over whether a person poses a significant risk of
danger to self or others, and then temporarily revoke his or her right to
purchase or possess firearms because of that risk.

A petitioner may request an emergency 14-day order if the risk for harm is “in the near future,” or a yearlong order if the risk is significant but not necessarily imminent. In either case, if the order expires without a new hearing being held and the order renewed, the individual’s firearms must be returned within three days and his or her name removed from any lists of disqualified persons, at no cost to the individual.

The same three-day mandate for the return of a person’s firearms applies to the expiration of yearlong orders, as well.

Moreover, the law explicitly states that this type of red
flag order doesn’t count as a disqualifying mental health commitment under
federal law. As soon as the order expires, the person is free to exercise his
or her Second Amendment rights again without undergoing additional restoration

In other words, this law doesn’t impose general prohibitions on all gun owners, but allows for temporary restraints on individuals who are genuinely a risk to personal or public safety, and only for the length of time that they pose a risk.

2. What About Due Process?

No person’s constitutional rights should be revoked, even
temporarily, without first affording him or her meaningful due process
protections. Colorado’s law generally ensures that the process for restricting
firearm access via a red flag law has the same protections in place as its
process for involuntarily committing someone to mental health treatment.

Once a petition is filed for a yearlong order, the court must hold a hearing within 14 days.

There, the defendant is entitled to legal counsel and the
full array of due process protections for a civil commitment hearing—including
the right to testify, to present evidence, and to cross-examine witnesses.

The burden of proof is on the petitioner to show by clear
and convincing evidence that the individual is a significant risk of danger
because of his access to firearms.

If the petition is for a 14-day emergency order, the hearing
must be held within one court day, but it may be done without the defendant

The burden of proof is also lower, at a preponderance of the evidence. However, the petitioner must show that the risk of harm is in the “near future,” and must seek a full-fledged hearing for a yearlong order or else the emergency order expires after 14 days and the individual must have their firearms returned.

Orders don’t renew automatically, and any petitioner who
requests a renewal must again show that the person is still a significant risk
of danger.

If a petition is granted, the defendant may later request
that the court remove the order before its expiration date and show that he is
no longer a risk of danger.

It is common in all civil and criminal procedures for the
person appealing a decision to bear the burden of proof.

In short, there is nothing out of the ordinary or fundamentally lacking in terms of due process prior to the temporary restriction of an individual’s rights under this law.

3. What About Actually Treating Them?

Some opponents of the law argue that it merely “kicks the can down the road” by taking away a person’s guns without actually treating them. While this is certainly a valid criticism of some red flag laws, Colorado’s law makes a commendable effort to integrate its red flag law with the existing mental health framework.

Under the law, whenever a temporary or yearlong order is granted, the court must also evaluate whether the individual meets the criteria for an emergency mental health assessment or for court-ordered mental health treatment.

Regardless of whether the individual meets that criteria, the law mandates that he be provided with resources regarding behavioral health treatment options, presumably as a means of facilitating his ability to later demonstrate a more stable and less violent frame of mind.

4. Aren’t Red Flag Laws Dangerous for Cops?

Law enforcement officers often respond
to dangerous situations, and there is no practical difference between serving a
red flag order, serving a normal arrest warrant, or taking someone into
emergency protective custody when they’re in the middle of a mental health

If anything, the red flag law allows mentally unstable
people to be disarmed before they actively engage in violent behavior directed
toward themselves or others.

It’s already the case that untreated mental illness is major
cause of concern for responding officers, with one 2012
finding that at least half of all physical attacks on police
officers are by mentally ill individuals—many of whom are untreated.

The goal of red flag laws, however, is to disarm these
individuals and reroute them toward proper treatment before they ever reach a
crisis stage. This ultimately makes cops and communities safer from potentially
volatile situations, not less safe.

To be sure, reasonable people can debate whether certain
aspects of Colorado’s new law should be altered as a matter of policy.

For example, should the order last for only six months
instead of a year?

Should people who knowingly file baseless petitions in order
to harass someone face additional criminal penalties?

Would it be a good idea to ensure that all records of a
petition are expunged if the court doesn’t grant it, or that granted petitions
are sealed after a certain period of time?

These are all useful questions, but they don’t mean the law
is fundamentally flawed or constitutionally unsound. The truth is that Colorado
lawmakers did a laudable job of taking into consideration and addressing very
real concerns raised about past versions of this bill.

It’s true that anti-Second Amendment rhetoric is an
ever-present force in recent years. But we needn’t condemn laws that, like
Colorado’s, correctly focus on the underlying causes of firearm-related
violence without broadly infringing on the rights of all gun owners.