In the waning days of the legislative session a late bill by Republican Rep. Cole Wist of Centennial and Democratic Rep. Alec Garnett of Denver titled “Extreme Risk Protection Orders” is flying through the process with little notice but significant concerns voiced by members of the public, politicians and law enforcement who know about it and growing ire from those just finding out. The bill creates a new process for seizing legally-owned firearms from those deemed “dangerous persons.”
House Bill 18-1436, introduced Monday, April 30, was heard and passed on a party line vote by the House Judiciary Committee the next day, had second reading on the House floor on Wednesday, and passed out of the Democrat-controlled House today after emotional speeches from members of both parties by a vote of 37 to 23 with 5 members excused. It now moves to the Senate, where the bill’s blistering pace will likely slow, despite only 3 working days remaining in the legislative session.
Gun owners say the new law violates their rights by giving police the power to seize guns based only on the say-so of a family or household member. An immediate court order without notice to the accused to confiscate guns can be based only on “facts tending to establish the grounds of the petition or the reason for believing they exist.” A six-month protection order has a higher bar and requires “clear and convincing evidence” in a court hearing that the person is dangerous.
In a Facebook statement issued Thursday, Joshua Hosler, Chairman of the El Paso County Republican Party wrote, “I am writing this not as the Chairman of the El Paso County Republican Party, but as a proud Coloradoan and combat Marine…HB18-1436 is a direct assault on every veteran and freedom loving Coloradan…If this bill is passed, literally any person close to someone can accuse another person of being “dangerous” and have that person’s constitutional rights removed.”
“While this bill is paved with good intentions, so is the road to hell,” he continued.
At the House Judiciary Committee hearing on Tuesday, Republican House Minority Leader Rep. Patrick Neville from Douglas County said of the process, “I’m kind of reminded of the phrase of lipstick on a pig. I think we were just given a lot of lipstick that I don’t know if we have enough time to process in the next nine days.”
Twitter and Facebook have been filling with posts excoriating the bill. Hosler said he has never received so many emails and voice mails in opposition as he has in the last couple of days.
The initial order and warrant to seize weapons issues without notice to the accused. A hearing must be held before a judge within 7 days before a continuing order is issued, but the presence of the accused is not required.
If the judge allows it, the continuing order may be served by publication in a newspaper. That is sufficient to subject the accused to misdemeanor arrest for failing to surrender firearms. A provision calling for felony charges for repeated instances of failing to surrender firearms was stricken at the House Judiciary Committee hearing.
The proposed law will make things worse for potential victims according to critics. The bill leaves someone thought to be too unstable to have a gun in the same home with the people making the report. Weld County Sheriff Steve Reams said the bill “doesn’t do anything to provide treatment for the person in mental distress, it only aims to take away lawfully owned firearms.”
“This bill removes due process and doesn’t just invite abuse – it makes abuse inevitable,” said Kristina Cook, the former host of Grassroots Radio Colorado on KLZ 560, “If someone is enough of a threat to harm themselves or others, enough of a threat to remove their access to firearms, then they are enough of a threat to put them on a 72-hour hold under C.R.S. 27-65-105,” she continued, “If they do not meet that standard, then they should not be disarmed.”
This bill does not separate the accused from those making the report. Critics say this creates a risk of creating an enraged suspect free to retaliate with other weapons. Reams noted that seizing guns “only pushes the potential criminal to find a new tool to perpetrate violence.”
El Paso County Sheriff Bill Elder is also concerned about the risks and burdens it puts on law enforcement officers while serving a civil restraining order. “This is a misdemeanor if he fails to produce the firearms,” said Elder, “But what is it for me as the Sheriff or what is it for the officer to say, ‘I am not going to enforce this. I know more information about this that the court knows, but it was not able to be provided because they didn’t hold a hearing.’ This is an ex parte order in absence of the respondent and the decision is made by the judge ex parte that creates, in my mind, jeopardy for public safety.”
As Cook points out, existing law allows police to take someone believed to be a threat to themselves or others into custody and take them to a hospital for a mental health evaluation. There they can be held for 72 hours while a physician examines them. If a doctor finds they need treatment they can be committed to a mental institution for as long as necessary.
“Take him into custody, remove him from the firearms, put him in the custody of someone else and let that information drive whether or not you need to remove the firearms,” said Elder.
Elder is adamant that law enforcement already has the tools needed to deal with these situations. “I think there’s a ton of cracks. Cops have been doing this without this this bill, for eons.”
“There are no victim protections in this bill,” Cook said. She presented a hypothetical situation where an abuser files a false affidavit because an ex-partner buys a gun for self-defense, resulting in the victim being disarmed by court order. While a perjury charge for lying on the petition is in the bill, proving it may come too late to protect the now-disarmed victim.
In a Facebook post to his constituents, Reams said the bill is on “a very dangerous path in letting one person petition restrict another person’s 2nd Amendment right based on whomever can present the best ‘case’ before a judge.”
Firearms seized by the police must either be sold to or held by a licensed gun dealer or stored by the police until the court order expires. Police departments can set their own policy about storing seized firearms. Nothing in the bill prevents police from charging whatever they like for that storage. The protection order lasts for a minimum of 182 days and can be extended for up to another year.
It precludes transferring the firearms to anyone else for storage while the order is in effect. This leaves the accused with only two choices: sell his guns or let the police hold them and potentially have to foot an expensive storage bill or forfeit them to the police.
It is not known at this time to which Senate committee the bill will be assigned.