Colorado legislature passes Red Flag bill to Senate

[LoboGunLeather]

In this morning's Pueblo Chieftain newspaper it is reported that our state legislature has passed the so-called "Red Flag" bill and forwarded to the Senate. Very much a party line vote in the House, and with both the Senate and the Governor's office controlled by the same party, I predict that this bill will become law in Colorado.

What follows is the text of my letter to the editor commenting on the newspaper article:
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Pueblo Chieftain, March 5, 2018, page 1. Peter Ruper in "House sends red-flag gun bill to Senate":

"The bill allows police to temporarily confiscate guns from someone having mental health problems, based on a judge's willingness to issue an Extreme Risk Protection Order. That would happen after hearing testimony from police or a family member that the person was a danger to himself or others".

These statements are inaccurate and misleading.

The bill allows temporary confiscation of firearms from a person ALLEGED to have mental health problems, without benefit of a psychiatric, medical, or judicial finding of fact, and the "testimony" referred to would consist of an ex parte hearing or review without notice to the affected party or opportunity to contest such allegations.

The effects of this bill, if passed into law, would be in direct violation of the US Constitution, allowing deprivation of life, liberty, or property without due process of law. While the bill provides a mechanism by which an affected person may contest the action, doing so places the affected person in the position of petitioning for a hearing at personal expense, then having to prove a negative proposition. How does one go about proving that he or she does not have a mental health problem? Perhaps by engaging a psychiatrist (at significant expense) for months of testing or evaluation, then producing that doctor in court (at significant expense, and a matter that many professionals would not willingly be brought into)? Even if the affected person is successful in such an appeal that would come only after months, perhaps years, of deprivation of constitutionally-guaranteed rights, deprivation of the means to adequately protect ones self in a dangerous society, significant time taken away from employment or other usual pursuits, and exposure in the public record of an action questioning his/her stability or sanity (with potentially adverse consequences for employment and other aspects of peaceful enjoyment of life).

None of this takes into account the potentially traumatic experience of armed officers arriving unannounced to temporarily detain the affected person while his property is systematically torn apart searching for alleged firearms.

Will our political masters be the ones going out to someone's home to serve the court orders, with an ever-present possibility of armed confrontation? No, they will rely upon law enforcement officers that we should all trust to protect our lives, property, and rights. How many such confrontations will end with citizens or officers injured, maimed, or dead? How many citizens will respond to a demand for their guns and ammunition by giving up the ammunition first?

How many spouses, exes, and significant others will use such a law to beat up on someone out of anger or retribution?

Bad ideas make for bad laws. Bad laws make for angry, disaffected, and distrustful citizens, and create human tragedies in the future.

 

[dockmurgw]

If your red flag is anything like Vermont's new red flag law, it will be abused and applied where some never imagined it would. Our first use of the law was to confiscate firearms that were locked in a safe, in an uncles house, simply because a kid claimed his uncle had guns that he could get to...in a house the kid didn't even live in.

 

[10ring]

It is a terribly-written law that is ripe for all kinds of abuse. Just one example; if a person has such an order entered, their CCW is revoked. Even if the temporary order is not made permanent in 14 days, the CCW remains revoked and the person has to re-apply and pay the fees and wait the 90 days, etc. The oredrs are obtained ex parte on a preponderance standard and a search warrant can issue at the same time as the order enters. You won't know about the order until they arrive to search your home. No time limit for return of guns after the order expires or is withdrawn. Police can take however long they want to get your stuff to you. No clear civil remedy for false allegations resulting in an Order and criminal charges are discretionary with the government (read...not gonna happen). I could go on.

It flew through the house and will do so through the Senate and the Governor will sign it about 5 seconds after it hits his office. Perhaps instead of simply opposing it we should have tried to have some input and corrected the most egregious portions, but that horse has left the barn. Can't wait to see what bill comes next. Gun people simply have no say in state government here at this time.

I hope people elsewhere can learn from this.

 

[gman51]

Step by step will eventually cover a mile. It is ridiculous that the SCOTUS allows the 2nd Amendment to be infringed on. The people are told laws are made to increase their safety but in reality they are usually made to take away freedoms as the end result.
The US House just passed a bill providing tighter background checks. It is said it embarrassed the Democrats because of what the Republicans got included in the bill. Pelosi smiling face shows me she got what she wanted which was the bill passing the House. If this bill becomes law then no gun can be sold or owner transfer without going through a background check.
Gun Control Legislation: House Passes Sweeping Bill : NPR
Step by step the 2nd is getting closer to being negated.

 

[EdinDenver]

I've got a friend that's a Deputy Mesa County Sheriff. His sister is also a friend and is a Morgan County Sheriff Deputy. Most of the Sheriffs in the state are opposing this and are putting their foot down saying that they won't enforce it. The problem is, they said the same thing about the magazine ban and Denver and Boulder are enforcing that Ban. I live in Denver.

I posted this on my Facebook account this morning. It's a bit scary. For reference - I live in Denver, I fought with my City Councilman on the Denver Magazine limitation (the State law allows grandfathering...the City law does not). I also fought with him about the Grandoozy Festival and the Levitt Pavilion - I live about a mile to the west and EVERY Wednesday, Friday, Saturday, and Sunday, I have to deal with the noise (loud enough to hear, not loud enough to enjoy the music) simply because of where I bought my house 22 years ago.

Just a heads up- I may shut down my Facebook account. Here in Colorado, we have a "red flag" bill going through the legislature. I've been a gun owner, collector, and enthusiast for about 30 years now. Essentially, what this bill does, is it allows a third party to notify police about a "potential threat" (which is not specifically defined), police come to your home and seize your firearms, and then the court is required to hold a hearing to see if you get them back or if you get a one year timeout (the police store your firearms for a year). In the meantime, your house is searched, you incur legal expenses, and your reputation is tarnished. If the legislature passes more restrictive gun laws while the whole process plays out (whether you are guilty or not) the police cannot return items that were grandfathered under previous laws – as an example, Colorado passed a magazine ban a few years ago for magazines with a capacity greater than 15 rounds…but those who had existing magazines are grandfathered and allowed to own magazines of a higher capacity.

Naturally, this bill violates the Due Process Clause, violates the Second Amendment of the Constitution, and based on my interpretation also violates the First Amendment of the Constitution.

Let me explain the third, because I'm sure you're tired about hearing about the Due Process Clause and the Second Amendment. First, this bill would essentially deputize Facebook, Twitter, Instagram, LinkedIn, and every other social media platform. Say something offensive or derogatory and the folks monitoring the platform can turn that information over to the police…in fact, they might even be obligated to turn that info over to the police. I'll give a real world example - if I get pissed off because an idiot politician decides to sell out my neighborhood and throw a concert in my backyard, and I post about it on Facebook, both Facebook, and that politician, can notify police that I am a "potential threat" against he and the local concert. Next thing you know, the police are knocking at my door just because I happen to own firearms. Essentially, if I can't be myself and post freely, then I'm not interested in participating on the platform.

Love my friends, but I'm not interested in putting myself in a position where this scenario could play out. If this bill passes, I will close my social media accounts. If you want to keep in touch, give me a call or send me an email…if you've lost my number or my email address, send me a PM and I'll pass it along (at least as long as the Facebook account is open).

Thanks.

The media is also reporting this evening that Dems are working on introducing a bill that would pardon "low level felonies".

Lawmakers introduce bill that would wipe out non-violent criminal records for low level offenses

This is my response:

So let me get this straight. The Democratic majority wants better gun control measures. I get it. Convicted felons are not allowed to own firearms - and there's this huge push to close the "firearms loophole" (whatever that means) so those not eligible to own firearms can't buy them. At the same time, the Democratic majority wants to wipe out the criminal records of convicted felons....which would make them eligible to purchase and own firearms. What kind of a bizarro world am I living in?

...and as such, I'm not sure I'll be participating in any public internet forum if this passes. I no longer live in a free State. My house is paid off, my elderly Mother lives here, I started a new job less than a year ago (the company I worked for decided to move it's corporate office to New Jersey and I have AR type rifles) and my skills are most marketable in places like California, New York, Atlanta, Oregon, Washington, etc. which are also not free states. I'm not a young man where I can go back to school and learn a new trade. It's a bit scary and a bit frustrating to be honest.

 

[sigp220.45]

I think the real effect will be that gun owners who are going through personal difficulties will just not seek out any help. Who is going to disclose anything to a professional if it means cops are going to come to your house and haul off your guns?

Without some kind of registry how will the cops know they got everything? I've done a lot of search warrants, and there is just no way you be sure you found all the guns (or whatever) at the place. They aren't going to dig up the yard.

I hope the courts stomp these things down as a violation of due process.

 

[EdinDenver]

I think the real effect will be that gun owners who are going through personal difficulties will just not seek out any help. Who is going to disclose anything to a professional if it means cops are going to come to your house and haul off your guns?

Without some kind of registry how will the cops know they got everything? I've done a lot of search warrants, and there is just no way you be sure you found all the guns (or whatever) at the place. They aren't going to dig up the yard.

I hope the courts stomp these things down as a violation of due process.

That's exactly right. Here's the message from the Mesa County Sheriff himself....

MCSO NEWS: Message from Sheriff Matt Lewis

 

[M29since14]

I think the real effect will be that gun owners who are going through personal difficulties will just not seek out any help. Who is going to disclose anything to a professional if it means cops are going to come to your house and haul off your guns?

A good point, rarely mentioned.

 

[fordson]

All interesting comments and a bit scary for the future.

 

[10ring]

Below are some of the most annoying aspects of this law. I am posting this for two purposes. First, if you live in Colorado and hope to convince state senators to change the language or vote against the law, these are some troubling aspects you might want to discuss with them.. Second it illustrates why we should never vote for or against a law based on a cute name name or claimed intent. You have to read the proposed law and see what it really says. I suspect some people who support "red flag laws" think these laws are different than they really are.

The following is based on the specific language in the proposed Colorado law, and not on some article or editorial. If you want to read the proposed bill, go here Extreme Risk Protection Orders | Colorado General Assembly and click on "read the bill text"

First the standard for issuing one of these has nothing to do with "extreme risk" or proven mental health issues. The issuance of an order only requires that a county or district court judge finds that the respondent poses a "significant risk of causing personal injury to self or others in the near future by having a gun." No mental health issue is required or even relevant.

An order may be sought by any person who is a law enforcement officer or who is related by blood, marriage, or adoption to the respondent (in-laws, etc.), and others, including anyone who;

has a child in common with the respondent, regardless of whether such person has been married to the respondent;

regularly resides or regularly resided with the respondent within the last six months;

is a domestic partner of the respondent;

is a person who has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren;

is a spouse, former spouses, one of a past or present unmarried couple, or who is a parent of the same child of the respondent regardless of whether the persons have been married or have lived together at any time.

So, yeah, your mother-in-law, your ex-girlfriend or spouse or the child of your step-child may do this to you.

The person seeking the order can have their address withheld and may "appear" by telephone for the hearing to make the order in effect for a year. They never have to show up in court.

Evidence that may support the issuance of a one-year order includes the mere ownership, access to, or intent to possess a firearm; any prior "unlawful or reckless use of a firearm," any history of use, attempted use, or threatened use of unlawful physical force (no gun use required) by the respondent against another person; evidence of the abuse of controlled substances or alcohol by the respondent; evidence of recent acquisition of a firearm or ammunition by the respondent.

So, possession of a gun or the recent purchase of a gun or ammo is evidence that supports the issuance of an order. If you are a recovering alcoholic or drug addict, have any history of arrests for fighting or assault, then those are factors that would count against you under this law.

And, last but not least, the one year order, if it enters, may be renewed every year thereafter if someone asks for it and can "prove" you are still a threat. The person subject to these orders is entitled to petition only once to terminate the order "starting from the date of this order and continuing through any renewals" and has to prove by clear and convincing evidence that he is no longer a threat (understand that this means a court has already found you to be a threat, so you will need to prove something has changed.)

So you get one shot to try and prove the order should end, even if the order is renewed year after year.

If someone can convince a judge that you pose a "significant risk of harm" to anyone by having a gun, you may lose your right to possess a gun, perhaps permanently, even if you have never committed a crime in your life.

 

[daglockman]

I think the real effect will be that gun owners who are going through personal difficulties will just not seek out any help. Who is going to disclose anything to a professional if it means cops are going to come to your house and haul off your guns?

I know people that are refraining from seeking assistance that they NEED NOW for fear of retribution.....