Just for clarification:
1. The individual involved was not charged with any criminal offense.
2. No indication whether or not the individual was referred for mental health evaluation or subject to a "confine and treat" order.
3. Firearms were secured as a means of mitigating an obviously dangerous situation.
4. Follow-up includes a court order under the new "red flag" law to confiscate the firearms, leaving the individual (whether or not psychologically capable) with "due process" as a resort; i.e.: months or years in court at his personal expense in order to reclaim his lawful property.
Yeah, sounds like "due process" to me! (sarcasm intended). No arrest, no charges, no arraignment, no advisement of rights, no detention for mental health evaluation or treatment. Nothing at all to contest, except for the fair market value of those pesky firearms (probably less than an attorney's retainer to begin the "due process" thing).
And therein lies the problem. There are ways to assure procedural due process with these ERPOs, but it doesn't appear that the CO law has them.
This is a worthwhile read on the subject. Dave Kopel's Senate testimony on due process concerns:
Red Flag Laws: Examining Guidelines for State Action | Cato Institute
You can find the Senate copy with a simple search, but it won't load off a board.
Here's a summary of the CO law: Issues are in red.
HB19-1177
Extreme Risk Protection Orders
Concerning creation of an extreme risk protection order, and, in connection therewith, making an appropriation.
SESSION: 2019 Regular Session
SUBJECT: Courts & Judicial
BILL SUMMARY
Firearms - extreme risk protection order - petition requirements - hearings - firearm surrender options - termination hearing - appropriation. The act creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO) beginning on January 1, 2020. The petitioner must establish by a
preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm. The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist. The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed.
After issuance of a temporary ERPO, the court must schedule a second hearing no later than 14 days following the issuance to determine whether the issuance of a continuing ERPO is warranted.
The court shall appoint counsel to represent the respondent at the hearing. If a family or household member or a law enforcement officer establishes by clear and convincing evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm, the court may issue a continuing ERPO. The ERPO prohibits the respondent from possessing, controlling, purchasing, or receiving a firearm for 364 days.
Upon issuance of the ERPO, the respondent shall surrender all of his or her firearms and his or her concealed carry permit if the respondent has one. The respondent may surrender his or her firearms either to a law enforcement agency or a federally licensed firearms dealer, or, if the firearm is an antique or relic or curio, the firearm may be surrendered to a family member who is eligible to possess a firearm and who does not reside with the respondent. If a person other than the respondent is determined to be the lawful owner of any firearms surrendered to law enforcement, the firearm must be returned to him or her.
The respondent can motion the court
once during the 364-day ERPO for a hearing to terminate the ERPO.
The respondent has the burden of proof at a termination hearing. The court shall terminate the ERPO if the respondent establishes 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. The court may continue the hearing if the court cannot issue an order for termination at that time but believes there is a strong possibility the court could issue a termination order prior to the expiration of the ERPO.
The petitioner requesting the original ERPO may request an extension of the ERPO before it expires. The petitioner must show by clear and convincing evidence that the respondent continues to pose a significant risk of causing personal injury to self or others by having a firearm in his or her custody or control or by purchasing, possessing, or receiving a firearm. If the ERPO expires or is terminated, all of the respondent's firearms must be returned within 3 days of the respondent requesting return.
