Despite opponents’ concerns, Colorado’s “red flag law” is in effect and Grand County’s law enforcement agencies are preparing for its ramifications.
The red flag law, or Extreme Risk Protection Order Act, allows law enforcement officers, family members or people living in the same house to petition a judge to confiscate a person’s firearms and prevent them from purchasing other guns if they are believed to be a danger to themselves or others.
Under the law, there are temporary protection orders, which last 14 days and can be filed without notice, and continuing protection orders, which can last up to 364 days. In order to get a continuing protection order, there must be a hearing.
Many people argue the new law infringes on the constitutional right to bear arms and the right to due process. However, Grand County Sheriff Brett Schroetlin explained his officers frequently balance a person’s constitutional rights with the law.
“Every day law enforcement officers are dealing with laws and weighing the constitutional aspect of those laws to make sure they fall within our freedoms,” he said. “Marijuana is a perfect example … we have a couple different law variations there.”
Schroetlin added that Grand County is not a Second Amendment sanctuary county, though other counties in Colorado have passed resolutions stating they would not enforce the new law.
Another concern for local agencies is the potential risk to officers and others in the household when confiscating the guns.
“I believe the officer safety and citizen safety need to be evaluated with each one of these cases moving forward,” Schroetlin said. “Just like any other call we receive, we don’t know what we’re going to see until it’s presented.”
For Schroetlin and other local police agencies, the extreme risk protection order should be considered a last resort, and officers should try to address situations with other tools first.
“The first thing is always conversation and relationships,” Fraser Winter Park Police Chief Glen Trainor said. “We will always try to work it out in a way where we’re not only lessening the danger for our officers, but lessening the danger to our citizens.”
Because law enforcement officers aren’t the only ones who can petition for a protection order, local agencies have updated their policies to reflect who can seek an order and what is needed under the new state law.
For a family or household member to get a temporary protection order, they would need to provide a statement on the risk of harm to themselves or others and prove that the person has access to firearms, Trainor said. The petitioner would also need to inform local law enforcement.
“General members of the public (or neighbors) who may have concerns would not be eligible for that,” he explained. “I think there are potential advantages to it, in that if we have somebody who is truly a danger to themselves or others, it’s a tool that law enforcement can use to try and keep them safe and the community safe. But I think the potential for abuse remains fairly high, and I think we will all have to be very diligent in the way this is enforced.”
After it’s been filed, a petition would go to a judge in either district or county court. According to the law, a judge may take into consideration recent threats or acts of violence; any other existing protection orders; conviction of certain crimes, such as domestic violence; evidence of drug or alcohol abuse; and access to firearms.
The law also says that the court must provide representation for the defendant. Grand County’s District Attorney Matt Karzen noted his office has a limited role in the process because filing for a protection order is a civil matter, not a criminal one.
“DA’s offices often review applications for search warrants and arrest warrants … that is not true with these applications and I don’t intend for our office to review them whether it’s an application by a civilian or law enforcement,” Karzen said.
Instead, the DA’s office will typically only be involved if a judge or officer asks the office for relevant information or if someone already on a protection order commits a crime.
“It’s apparently a Class 2 misdemeanor for someone who has one of these orders applicable to them (to) possess a firearm — that’s a crime,” Karzen said. “That’s really the only role I see that’s clear in the statute.”
The law has already been invoked at least once in Colorado, but because of the wide variety of opinions, Schroetlin said he isn’t sure what to expect locally.
Trainor added that, in his almost 35 year career in Grand County, he could only recall a handful of times the law might have been used if it were in effect.
In Massachusetts, which passed a red flag law in 2018, the state saw only 20 petitions last year and approved 14 of them.
“We’re going to rely on the courts to make a determination during these hearings and give us some type of due process for these people,” Schroetlin said. “A lot of civil process that we do at the sheriff’s office comes from direction or decisions of the courts, so this will just be another example of the sheriff’s office moving forward with a court decision.”