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Colorado Doesn’t Know How to Enforce Its Own Red Flag Law

When Colorado passed its “extreme risk protection order” bill into law in April of this year, the promise was that it would disarm dangerous criminals before they could, uh, become criminals. Not a single Republican lawmaker voted in favor and Democrat Governor Jared Polis promised when he signed it, “We might be saving the life your nephew niece or grandchild.” Or, we might be violating the 2nd, 4th, and 5th Amendment rights of perfectly innocent people. But whatevs.

There’s just one teensy other little fly in the unconstitutional ointment: Nobody knows how to enforce the damn thing, even though the law goes into effect in three weeks.

Here’s how it works in theory:

The law allows family or law enforcement to seek a court order to have guns seized if they believe the owner is a threat. If approved, a court hearing will be held within 14 days to determine whether to extend the seizure, up to 364 days. The law also would require anyone whose guns are seized to prove that he or she no longer poses a risk in order to get them back. So any crank with a grudge can try to get your guns taken from you, and it’s up to you to prove that you should get them back. “I swear under oath I wasn’t going to do those crimes I wasn’t going to commit” seems like a standard of justice better suited to a Franz Kafka story or a Soviet kangaroo court. Nevertheless, it’s now a standard of justice in Colorado and a dozen other states.

But how does the new law work in practice? In other words, how do the police get the guns from Point A (your gun safe) to Point B (police custody)? The fact is that not even the police know for sure.

Jesse Paul reports for the Colorado Sun that the Colorado Peace Officer Standards and Training Board’s (POST) recently released guidance “deals only with how law enforcement should accept, store and return guns seized under the law.” But as Paul notes, “the guidance didn’t include advice on what to do when someone refuses to give up their firearms.”

Lawrence Pacheco, spokesman for Colorado Attorney General Phil Weiser explained, without actually clarifying anything, that “It’s up to each law enforcement agency to determine how to respond to an individual who refuses to surrender a firearm.”

This is no small issue.

If you’re going to be in the nasty business of taking firearms away from someone considered to be “an extreme risk” for violence, police would hope for some sort of standard enforcement policy. Most importantly, in order to minimize the risk of violence. But also to avoid liability claims against police departments trying to enforce a badly written law.

The complications don’t end there though. Paul’s article continues:

The red flag law also created a new Class 2 misdemeanor offense for those who refuse to turn in their weapons when served with an ERPO, meaning they could be arrested if they don’t comply. First, however, law enforcement would have to be able to prove they actually have firearms.

People who refuse to follow a seizure order could also be arrested for being in contempt of court, though a judge would have to make that finding at a hearing sometime after a person has refused to hand over their weapons.

House Majority Leader Alec Garnett, a Denver Democrat who was one of the prime sponsors of the red flag legislation as it passed through the Colorado General Assembly in 2019, said the assumption was that the POST board would “write some detailed instructions for law enforcement agencies,” including how to handle people who refuse to follow an ERPO order.

Plus, Jefferson County Sheriff Jeff Shrader explained that “There’s no order to seize.” Instead, “the order is for the person to surrender their firearms and then for the law enforcement agency who is serving that order to report what happens to the court.”

If the person — I won’t say “the accused,” because no one is accused of a crime under ERPO — won’t surrender their weapons, local police have zero procedure to fall back on. Law-writing Democrats in the Assembly didn’t bother with that part. Some departments will write their own procedures, others might not, and sheriffs in other jurisdictions have flatly said they won’t enforce any ERPOs.

If all of this seems to you like a tangled mess, with lawmakers trying to do the popular thing, but leaving all the difficult decisions in the hands of judges and cops, I’d say you’re right.

What ought to happen is for one of these laws to get taken all the way to SCOTUS, where hopefully common sense will prevail, and the conservative majority will order the “red flags” pulled down. What I hope is that nobody gets killed between here and the Supreme Court.