Gun Control

Fiscal Analysis of Colorado's New 'Red Flag' Law Assumes Gun Confiscation Orders Will Be Granted 95% of the Time

Such a high approval rate reflects the threat these laws pose to due process and the Second Amendment.

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The Colorado legislature's official fiscal analysis of that state's new "red flag" law, which took effect this week, projects that police and "family or household members" will use it to seek gun confiscation orders against people they portray as threats to themselves or others about 170 times a year. The analysis also assumes that 95 percent of those petitions will be granted, which is not far-fetched given Florida's experience with such orders.

Such a high approval rate reflects the due process problems with red flag laws, which take away people's Second Amendment rights for a year or more based on vague standards and dubious evidence that judges are not inclined to question because they worry about the potentially deadly consequences of rejecting petitions. But there are a couple of reasons to think Colorado's approval rate may not be quite as high as Florida's.

First, of the 17 states with red flag laws, Colorado is the only one that provides court-appointed counsel to respondents who can't afford lawyers or choose not to hire them. Legal representation is crucial for respondents trying to navigate a process that is stacked against them from the beginning.

Second, Colorado's law allows a long list of people to seek what it calls "extreme risk protection orders" (ERPOs), including anyone related to the respondent by blood, marriage, or adoption; anyone who has produced a child with the respondent; and current or former spouses, domestic partners, girlfriends, boyfriends, and housemates. In Florida, by contrast, petitions must be filed by law enforcement officers or agencies. While Colorado's much broader approach creates a bigger risk that biased individuals will seek ERPOs out of personal animus or sincere but mistaken concerns, that risk may lead judges to treat petitions more skeptically. In Maryland, where the list of potential petitioners is similar to Colorado's, the approval rate for final ERPOs is around 62 percent, substantially lower than the 95 percent rate in Florida.

Whatever the approval rate turns out to be in Colorado, there are sound reasons to be concerned that ERPOs will be issued against many people who are neither suicidal nor homicidal. That is bound to be true with the initial, ex parte orders, which last up to 14 days. At that stage, the respondent has no opportunity to contest the allegations against him, and the standard of proof ("preponderance of the evidence") is weak. The experience of other states suggests that judges rarely, if ever, decline to issue temporary orders, which in Colorado are based on a claim that the respondent "poses a significant risk of causing personal injury to self or others in the near future."

This is also the stage where the risk of violence may be greatest, since police arrive without notice to take away people's guns. The consequences can be deadly.

When the respondent finally gets a hearing, the petitioner is supposed to show by "clear and convincing evidence" that he "poses a significant risk of causing personal injury to self or others." While the standard of proof is stronger at this stage, the risk no longer has to be imminent, the judge may consider any evidence he deems relevant, and the meaning of "significant risk" remains unclear. Although the name of these orders implies that the risk is "extreme," the law requires nothing of the sort. That problem is shared by nearly all of the red flag laws that have been enacted so far. The notable exception is Vermont's law, which allows petitions only by prosecutors and requires them to show, based on the respondent's actions or threats, that he poses "an extreme risk."

Under Colorado's law, a final ERPO lasts for 364 days unless the respondent seeks early termination and shows by clear and convincing evidence that he does not pose a significant risk. That case will be hard to make, especially since "significant risk" is undefined and judges will not want to take the blame should something terrible happen after they terminate an order. The petitioner has a right to seek an extension of the order before it expires, based on the same standard of proof.

Critics of Colorado's red flag law, including gun rights activists and some county sheriffs, rightly worry that judges will err on the side of issuing ERPOs, since the risk of suicide or homicide will loom large compared to the risk of unjustly but temporarily taking away someone's constitutional rights. "We want sensible people to have firearms," one activist told Colorado Public Radio at a rally last month. "We're not looking for people who are mentally incapacitated or whatnot. But when you talk about the red flag law, you're talking about taking away people's due process. Basically you're guilty until proven innocent."

Eagle County Sheriff James van Beek notes that when the target of an ERPO tries to have it terminated, "the burden of proof is not on the petitioner (the accuser), as in every other legal case, but instead, is placed on the respondent (defendant) to prove that the accusations are wrong." He observes that "proving one's sanity could be very difficult, as it is highly subjective." Nor is "proving one's sanity," however that's defined, enough to prevail, since a person may be considered a threat even if he does not qualify for a psychiatric diagnosis.

Dozens of Colorado counties have responded to the red flag law by declaring themselves "Second Amendment sanctuaries," and several sheriffs in rural areas have said they will not enforce the law. While sheriffs have the discretion to decide whether their offices will seek ERPOs, refusing to serve orders obtained by other petitioners would create a clear conflict with state law. Colorado Attorney General Phil Weiser, who testified in favor of the red flag law, has predicted that resistant sheriffs will change their minds when they encounter suicidal or dangerous people who can't be trusted with guns. But correctly identifying such people is the central problem that supporters of red flag laws face, and so far they have not done a very good job of meeting that challenge.

[This article has been revised to reflect the most recent tally of Colorado counties that have passed resolutions against the red flag law.]

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  1. I’m inclined to be against red flag laws, but then I see people like Rev. Kirk on this website.

    1. TripK2… I have seen your posting, you lean “R” for “Red State”… Fairly clearly to me at least… Your RED flag is gonna flag ya BADLY, buddy!

      Rev. Kirk leans “D” = “Blue Flag”… NO blue flags are mentioned here! He will NOT fall under suspicion!!!

      I just don’t know any more, just HOW things could get even yet more biased, around here!

      1. Oh, I forgot to mention SQRLSY too.

        1. Hey, I’m rootin’ for ya here, Buddy! I think (if we ARE gonna have “red flag” laws, I am skeptical, truth be told), then the LEAST we could do, is have “blue flag” laws to balance against them!

          (Else Antifa goons get to run amuck on us!)

          Who’s gonna get on board with this? Is basic, balanced “fairness” now something that ONLY the “D” team worries about?

          1. Yeah, it’s all about red and blue all the time, eh sqrlsy?

            Not supporting these laws at all, but my guess is that a lot of the people who go before a judge for it will be not concerned with politics, much less supporters of team r or d. Maybe some mentally ill mixed with some not dangerous people reported because of personal animus or paranoia.

            Stay obsessed, dude.

            1. Humor goes over your head… Work on it!

    2. Red flag laws are 100% unconstitutional.

      The 14th amendment makes all federal rights minimum rights the states have to abide by. In other words, no infringement of right to keep and bear Arms.

  2. “”that risk may lead judges to treat petitions more skeptically.””

    Now that’s some pretty good humor right there.

  3. No judge is ever going to be held accountable for taking away someone’s guns who later turns out to not to be dangerous. Every judge who deals with these motions will live in mortal fear of being the judge who refused to take the guns away from someone who later does something awful. It is not hard to see how the incentive structure would work for these laws. Frankly, I think 95% of them being granted is optimistic. I would be shocked if one were ever denied.

    1. The 5% that are denied are the ones filed against police officers or other government officials.

    2. how many people affected by red flag laws go over the edge because of the laws actions.probably more than those who get restraining orders.
      Of course after words everyone will say see we told you so when it was really the government that created the straw that broke the camels back.

      1. Good point. Good reality based point made.

  4. The only people that need to be concerned about red flag laws are clingers. Us woke betters know that the only people that need guns are the progressive and socialist workers for the state. And the only the wrong thinking clingers are affected so there is no reason to worry.

    1. https://www.goodreads.com/quotes/34787-germans-who-wish-to-use-firearms-should-join-the-ss

      “Germans who wish to use firearms should join the SS or the SA — ordinary citizens don’t need guns, as their having guns doesn’t serve the State.”

      ― Heinrich Himmler

      Sad to say, history says we might have some unforeseen consequences to this kind of thinking…

      If we had a reliable and affordable method of brain scanning, I would NOT vote for ANY politician who fails the brain-scan for selfishness v/s sincere looking out for the good of all of us! Politician won’t reveal brain-scan results? NO vote from me! And if each voting district got to chose whether or not they will accept cops who won’t get on board with this… I would be OK with expanding the power of the state! Till that day… Till we get a reliable method of weeding out the bad apples… I want to SHRINK the state! History shows why!

      I’m not blessing “pre-crime” ideas… I just want less bad apples among my “public servants”!

    2. The only people that need to be concerned about red flag laws are clingers.
      Really? So someone calls police and says “Rev. Kuckland is acting funny and he has guns.”
      A judge signs a “Red Flag” warrant saying Rev. Kuckland poses a risk and must give up his guns.
      The SWAT team shows up and the leader says, “Rev. Kuckland, cough up your guns!”
      “But I’m not a clinger,” Rev. Kuckland says. “I have no guns to cough up.”
      “I’ve heard that before,” the SWAT team leader says. “The warrant states you have guns you have to cough up. Boys, find his guns.”
      And that’s when things get ugly.

  5. Aren’t the red flag hearings all done in civil court? As in, these aren’t criminal acts the Sheriff is being asked to deal with.

    Cops go after criminals, nothing about the red flag process makes anyone a criminal. Regardless of where they stand on 2A, no cop in their right mind should want to start enforcing these things lest every decision coming out of small claims court become their problem as well.

    1. Sheriffs deal with civil stuff all the time.

      Sheriff deputies serve court documents and evict people around the USA daily.

  6. But correctly identifying such people is the central problem that supporters of red flag laws face, and so far they have not done a very good job of meeting that challenge.

    But they mean well, and surely any reasonable person would agree that doing something is better than doing nothing and if it saves just one life….. What’s the Constitution when lives are at stake? No rational person is ever going to prefer liberty to the risk of death in this sort of situation, that’s just crazy and anybody who would say such a thing should obviously be right at the head of the red-flag line.

    1. and surely any reasonable person would agree that doing something is better than doing nothing and if it saves just one life….

      This is the liberals’ mantra and it’s completely ridiculous. You could save a lot of lives just by making everyone a slave to the state, but would that be right? America was founded on liberty and rights. When you start taking those away “to save one life”, you’ve missed the point of the entire American experiment.

  7. If someone is *that* “significant” a threat to themselves or others, why not incarcerate them — temporarily, of course? Why should a person perceived to be *that* out of control have access to a knife or a car, much less a gun?

    1. Oh, and for the good of the Republic — allow that threat only a provisional ballot!

    2. This was the plan all along, didn’t you know? They started taking rights and liberties away from undesirable populations such as convicted felons so they could justify taking them away from other people later. This is straight from the autocratic playbook!

      1. Yep. Serve your time. Pay your debt to society. Then, all is well…..except you can’t vote or own/shoot a firearm. I can agree to careful scrutiny in restoring someone’s ability to own or shoot a firearm if his crime involved a violent felony. Aside from them, all who pay their debt should be returned immediately to status as a full citizen with the rights guaranteed by law.

  8. Judges have no incentive to rule against granting confiscation. Won’t be celebrated as a hero for defending individual gun rights, but in the event someone gets shot, which will infrequently occur somewhere along the way, he/she will be branded the villain of the century. Why risk it? Grab their weapons

    1. This is about usurping the 2nd amendment.

  9. Why does the state need to intervene on potential suicides?
    If someone wants to Cobain themselves, let ’em.

    1. Funny how the state cares about protecting life the moment it gives them an excuse to seize guns. If only there was some way to make abortions and guns go hand in hand…

  10. How does this law not necessarily strip each police officer of their guns?

    It’s their job to engage in violence, so there’s not only an extreme risk, but explicit premeditation and plans to engage in violence.

    “Judge, he’s going to go out tomorrow driving around looking for trouble and draw his gun on anyone he sees acting up. If they keep it he’ll tie them up and throw them into a cage! The rest of his gang regularly kills people and none of them are ever charged!”

  11. Wintemute and colleagues from UC Davis’ Firearm Violence Research Center studied “Extreme Risk Protection Orders Intended to Prevent Mass Shootings: A Case Series” by investigating all 414 ERPOs issued in CA in 2016-2018. As they noted in their reply to my Comment, “…we drew no inference of a causal relationship between the use of gun violence restraining orders and the non-occurrence of mass violence in the 21 cases we reported…” While motivated by Mass Shooting prevention, there is no evidence ERPOs had the intended outcome over two years in the most populous state in the USA. The authors conclude Further evaluation of the implementation and effectiveness of ERPO policies in California and other jurisdictions where they have been enacted would be helpful.”

    When there is no evidence gun laws work, gun control proponents usually explain that more laws in more states, enforced more vigorously for more years must be the answer – because gun laws *must* work, by their way of reasoning. Their error is in trying to address crime and violence by regulating objects – guns – rather than addressing the perpetrators of crime and violence. No study, no data, no evidence will convince them they are wrong.

  12. I did not read the law.
    I assume there are no penalties for making knowingly false red flag accusations.
    That is a feature, not a bug.
    Every single angry divorcing wife will use this as another cudgel to beat their spouse.
    Until they agree to the divorce terms.
    Then the child abuse, red flag and tax cheat accusations will disappear.
    Can anybody tell I have experience in divorce court?

    1. The law that infringes on the People’s right to keep and bear Arms is unconstitutional on its face.

      Red Flag laws are illegal and should be ignored and repealed.

      1. Need a Constitutional challenge immediately. No due process should end these laws in short order.

        1. You can only challenge it in court when you are ordered to appear. Of course you will have to wait a year for a court date, and also you will be stigmatized and labelled for life. The odds of anyone getting firearms returned is slim to none. If you store firearms in one place you will lose them all.
          Police are un-Constitutional and work for the courts- not the public, they care nothing for the damage they do. The drug problem is propaganda and racist in its origin but a cash cow for the city coffers. (Thanks to MADD) Red Flag has already violated half your Rights with possibilities of eliminating them all in a decade or two. Losing Rights is what police call “tools”. Police always state they need “tools” to do their job effectively. Most police have other tools such as M-16s and are para-military.

  13. Who pays when someone who had their guns confiscated gets killed by someone breaking into their home etc? The DA here in Colorado is an UBER LIBERAL from the Peoples Republic of Boulder. He thinks all law enforcement will enforce these laws, he is sadly mistaken. IMO since he was so adamant about this law passing he should lead the way of the 1st few dozen seizures and show us how it’s done! Fucking Pansy and nothing more.

    1. You meant the governor in Colorado…

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  15. I can’t imagine any of these laws passing SCOTUS, of all the offenses upon due process this one directly assaults the Bill of Rights. I wonder when any of them will get the chance to be challenged there.

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