2019 Leg Session, Civil Liberties, Constitutional Law, Criminal Justice, Dave Kopel, Exclusives, Featured, Gold Dome, Legal, Original Report, Politics, Right To Arms

Kopel and Greenlee: Plenty of red flags in Colorado’s ‘extreme risk’ protection order bill

Editor’s note: The following is an analysis of House Bill 19-1177, which would create in Colorado an “Extreme Risk Protection Order” process for the confiscation of firearms, more commonly known as a red flag law.  The authors are David Kopel, research director at the Independence Institute, and Joseph Greenlee, an attorney in Steamboat Springs.  The bill sponsors are Rep. Tom Sullivan, D-Centennial, Rep. Alec Garnett, D-Boulder, Sen. Lois Court, D-Denver, and Sen. Brittany Pettersen, D-Jefferson County. 

Defective title

The bill violates the Colorado Constitution’s Clear Title rule. The title is about “extreme risk protection orders.” But the statute requires the finding of only a “significant risk.”

According to the Colorado Constitution, “No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title;…” Colo. Const., art. V, § 21. Unlike similar sections in other state constitutions, Section 21 requires that the subject be “clearly” expressed in the title. In re Breene, 14 Colo. 401, 406, 24 P. 3 (1890).

The purpose of the Clear Title rule is so that the public is not misled in the legislative process. A “significant risk” is not the same as an “extreme risk.” The title defect of HB19-1177 is unusual. This is the rare bill in which the title is actually deceptive because it is directly contrary to the text.

Weak standard of proof, and no requirement of imminence

The Petitioner must establish “FACTS THAT GIVE RISE TO A REASONABLE FEAR OF FUTURE DANGEROUS ACTS BY THE RESPONDENT.” In contrast, a temporary civil protection order requires the finding that an “imminent danger exists.” C.R.S. §13-14-104.5(7)(a). In other words, the court must find that there actually is an imminent danger.

For a continuing order, HB19-1177 requires a somewhat higher standard of proof: “clear and convincing evidence.” The same standard should be required at the ex parte hearing. After all, the petitioner at the ex parte hearing enjoys the unusual luxury of being able to present one-sided evidence to the court, with no opportunity for the court to consider contrary evidence. A petitioner with a solid case, and facing no contradiction, ought to be able to meet the clear and convincing standard.

Mandatory government defamation of the innocent

Suppose a petition is filed against a person, and the court denies the petition for lack of evidence. Or suppose a confiscation order is issued on day 1 (ex parte) and overturned on day 14 (after the court hears evidence from both sides). Based on consideration of all the evidence, the court concludes that the Respondent was unfairly and inaccurately accused. The Respondent gets her firearms back. If she was lucky enough not to be criminally attacked when she was defenseless on day 12, perhaps no permanent harm is done to the innocent Respondent.

However, HB19-1177 ensures that the Respondent’s reputation in the community will be destroyed—even for petitions that are rejected on day one. Under §13-14.5-104(5), law enforcement must make a good faith effort to give notice to a Respondent’s family and any third parties that may be at risk prior to filing a petition for an extreme risk protection order. At risk third parties may include local schools, the Respondent’s neighbors, boss, coworkers, friends, church members, and so on. This happens before the Respondent has ever stepped into court to defend herself and before a court has ruled on the merits of the petition.

The scope of the defamation problem would be reduced if the bill applied only to “extreme” and “imminent” risks.

Duration

The Order in the 2019 bill is valid for 364 days. In the 2018 bill, it was 182. The former period is more than enough time for authorities to take steps to address the Respondent’s underlying problems, such as by mandatory psychiatric evaluations, or other means.

Firearms custody

HB19-1177 requires the Respondent to transfer the firearm(s) to a Federal Firearms Licensee (a gun store) or law enforcement agency. Yet restraining orders that involve firearms allow a transfer to a private party. C.R.S. §13-14-105.5.

No timeline for the law enforcement agency to return the firearm

The bill says the firearm must be returned “ONLY AFTER CONFIRMING, THROUGH A CRIMINAL HISTORY RECORD CHECK PERFORMED PURSUANT TO SECTION 24-33.5-424, THAT THE RESPONDENT IS CURRENTLY ELIGIBLE TO OWN OR POSSESS A FIREARM UNDER FEDERAL AND STATE LAW AND AFTER CONFIRMING WITH THE COURT THAT THE EXTREME RISK PROTECTION ORDER HAS TERMINATED OR HAS EXPIRED WITHOUT RENEWAL.”

In other words, there is no timeline for law enforcement to return firearms to their lawful owners. Law enforcement agencies do sometimes refuse to return firearms to lawful owners, and courts sometimes allow it—typically under the theory that the person’s rights are not violated if he can legally acquire new firearms. See City of San Jose v. Rodriguez, no. H040317, 2015 WL 1541988 (Cal. Ct. App. Apr. 2, 2015) (no constitutional violation); Walters v. Wolf, 660 F.3d 307 (8th Cir. 2011) (due process violation but no Second Amendment violation); Houston v. City of New Orleans, 675 F.3d 441 (5th Cir. 2012) (no Second Amendment violation) (opinion later vacated).

A strict deadline is preferable—e.g., the firearm(s) must be returned within 3 days.

Similarly, if a confiscated firearm actually belongs to someone else, HB19-1177 says the firearm “shall be returned” to that person. But again, there is no time limit.

Concealed carry permit restoration for the falsely accused

The Respondent’s concealed carry permit is revoked immediately when a temporary order is entered. Even if the temporary order is terminated two weeks later, once the court hears the Respondent’s side of the story, the Respondent must reapply for a carry permit. Carry permits are expensive and time-consuming. The HB19-1177 process deprives innocent Respondents of their right to bear arms for months.

No notice of right to counsel

The notice provided fails to inform the Respondent that an attorney will be appointed for her. It just says that she “may seek the advice of an attorney.”

No right to cross-examine hostile witnesses

At the hearing for the 364-day order, the court may “EXAMINE UNDER OATH THE PETITIONER, THE RESPONDENT, AND ANY WITNESSES THEY MAY PRODUCE, OR, IN LIEU OF EXAMINATION, CONSIDER SWORN AFFIDAVITS OF THE PETITIONER, THE RESPONDENT, AND ANY WITNESSES THEY MAY PRODUCE.” This deprives the Respondent of the right to cross-examine witnesses against her.

Time frames skewed against respondent

The hearing on a motion to renew the 364-day order must be held within 14 days, but the hearing on the Respondent’s motion to terminate the order must be held between 14-28 days. Why make the Respondent wait longer on her motion?

No effective protection against false accusations

The bill provides that “A PERSON WHO FILES A MALICIOUS OR FALSE PETITION FOR TEMPORARY EXTREME RISK PROTECTION ORDER OR AN EXTREME RISK PROTECTION ORDER MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR THOSE ACTS.” The number of perjury prosecutions across the state each year is very low.

It is well-known that laws about child abuse, sexual assault, and domestic violence are sometimes used as tools by spurned lovers—and by people seeking revenge for other motives. There is no reason to believe that the type of people who pervert the law by making false reports will somehow be more scrupulous regarding this new tool.

The bill fails to provide a civil remedy for persons who are victimized by false accusations. There should be a stronger deterrent to prevent people from using this law to harass gun owners.

One of the authors, Joseph Greenlee, had a client who was an enthusiastic hunter. He wrote a negative review about his former employer online. To retaliate, the employer attempted to get a protection order against him so he wouldn’t be able to hunt anymore. The temporary protection order was granted but the permanent order was defeated.

Without a strong civil remedy, there is no practical deterrent to malicious reports.

No requirement that terminated orders be expunged

Regarding the reporting to background check systems, the bill says, “THE ORDER MUST REMAIN IN EACH SYSTEM FOR THE PERIOD STATED IN THE ORDER, AND THE LAW ENFORCEMENT AGENCY SHALL ONLY EXPUNGE ORDERS FROM THE SYSTEMS THAT HAVE EXPIRED OR TERMINATED.” This language provides the conditions under which the record may be removed but does not actually require removal.

Later, the bill expressly does require records removal for orders that are terminated before their expiration, but does not require records removal for orders that simply expire:

IF AN EXTREME RISK PROTECTION ORDER IS TERMINATED BEFORE ITS EXPIRATION DATE, THE COURT CLERK SHALL FORWARD, ON THE SAME DAY AS THE TERMINATION ORDER, A COPY OF THE TERMINATION ORDER TO THE COLORADO BUREAU OF INVESTIGATION AND THE APPROPRIATE LAW ENFORCEMENT AGENCY SPECIFIED IN THE TERMINATION ORDER. UPON RECEIPT OF THE ORDER, THE COLORADO BUREAU OF INVESTIGATION AND THE LAW ENFORCEMENT AGENCY SHALL PROMPTLY REMOVE THE ORDER FROM ANY COMPUTER-BASED SYSTEM IN WHICH IT WAS ENTERED PURSUANT TO SUBSECTION (2) OF THIS SECTION.

Problems with county venue

“A PETITION FOR AN EXTREME RISK PROTECTION ORDER MUST BE FILED IN THE COUNTY WHERE THE RESPONDENT RESIDES OR WHERE THE FIREARMS ARE LOCATED.”

But the notice served on the Respondent requires him to “IMMEDIATELY SURRENDER TO THE (INSERT NAME OF LAW ENFORCEMENT AGENCY IN THE JURISDICTION WHERE THE RESPONDENT RESIDES) ALL FIREARMS IN YOUR CUSTODY, CONTROL, OR POSSESSION, AND ANY CONCEALED CARRY PERMIT ISSUED TO YOU.”

A fairer process would take place in the county where the Respondent resides. For example, consider a Respondent who lives in Denver County, stores a gun there, and also stores hunting rifles at a friend’s hunting cabin near Craig, in Moffat County. The Petition is filed in Moffat County. Based on an ex parte ruling in Moffat, the Respondent must retrieve his guns from Craig, drive across state with them, and surrender them to Denver law enforcement.

But when the Respondent finally gets his day in court, the hearing will be in Moffat County. Even though most witnesses would presumably be in the Denver area.

The cause of the poor drafting

In 2018, the Conference of Chief Justices asked the Uniform Law Commission (ULC) to draft a model red flag law. The ULC convened a study committee composed of diverse stakeholders, such as the National Sheriffs Association, International Association of Chiefs of Police, psychiatric experts, the state courts, pro-gun and anti-advocates, pro-gun and anti-gun state legislators, and others. One of the authors, David Kopel, was among the members of the committee. The committee overwhelmingly voted to recommend that the ULC move forward with drafting a model law. Support for a model law came from across the political spectrum, including all the state legislators, law enforcement, and the courts. Opposition to the model law was expressed by the Giffords Law Center, which preferred that legislators have available only Giffords’ own model, and not the more balanced model that would be produced by the ULC.

Perhaps as a result of lobbying from Giffords, the Uniform Law Commissioners voted not to draft a model law.

HB19-1177 comes much closer to the one-sided approach of an advocacy group that is hostile to constitutional rights (including due process) than to the more even-handed approach that is typical of the Uniform Law Commission.

Social science research

Gun confiscation laws like HB19-1177 are new, and only a few states have more than a few months of experience: California (2016), Connecticut (1999), Indiana (2005), and Washington (2016). Social science research on the topic is therefore sparse. No research has found any statistically significant reduction in crime, including mass shooting fatalities, from red flag laws. Studies about suicide reduction have mixed results.

One study looked at suicide in Connecticut and Indiana. “Whereas Indiana demonstrated an aggregate decrease in suicides, Connecticut’s estimated reduction in firearm suicides was offset by increased nonfirearm suicides.” Aaron J. Kivisto & Peter Lee Phalen, Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015, 69 Psychiatric Services (June 1, 2018). Available here (abstract only; article is paywalled).

A different study of Connecticut examined 762 recipients of gun confiscation orders. Of this group, 21 later committed suicide—6 by firearms, and 15 by other means. Jeffrey W. Swanson, et al. Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does It Prevent Suicides? 80 Law & Contemporary Problems 179 (2017), available here.

Some methods of self-inflicted injury—such as hanging or strangulation—are nearly as likely as firearms to result in death. Other methods of self-inflicted injury—such as cutting or drug overdoses—are much less likely to do so, depending on the individual’s intent. For example, cutting one’s arm is a sign of mental distress; stabbing and ripping one’s intestines is a suicide attempt. If the fatal level of a particular prescription drug is 20 pills, taking 8 sleeping pills may be a cry for help; taking 80 is a serious attempt at suicide.

Unfortunately, the article failed to make this distinction. It treated all of the above methods of self-harm as serious suicide attempts, even though some were real suicide attempts (e.g., hanging), and some are not (e.g., low-level overdoses). Based on this error, the article then made various extrapolations, to create the factoid that 1 in 20 gun confiscation orders prevents a suicide.

Another study looked at both crime and suicide in all four states. John R. Lott and Carlisle E. Moody, Do Red Flag Laws Save Lives or Reduce Crime? (Dec. 28, 2018), available here (free public access). The study found no statistically significant changes in “murder, suicide, the number of people killed in mass public shootings, robbery, aggravated assault, or burglary.” One of the study’s authors, John Lott, is a controversial person. The other author, Carlisle Moody, is an econometrician of the highest expertise and reliability. (A decade ago, Kopel co-authored a study with Moody: David B. Kopel, Carlisle E. Moody & Howard Nemerov, Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations, 13 Texas Review of Law & Politics 1 (2008), available  here.

Sunset

Creating a system for the specific purpose of ex parte deprivations of constitutional rights is perilous.

Members of the current General Assembly may have no intention of extending the precedent to allow deprivation of other constitutional rights. But future General Assemblies may have very different philosophies. However high a majority party is riding one day, history shows that there will be a different majority another day. The federal Marihuana Tax Act of 1938 (the foundation of improper federal intrusion into a matter of state law) was made possible by the model of the National Firearms Act of 1934 (using the tax power as a pretext for regulation of state issues).

Legislators should also consider that the vast majority of law enforcement officers are ethical, but a minority are not. In the event of a terrorist attack on the magnitude of 9/11, HB19-1177 provides a police chief or sheriff who wants to broadly crack down on an unpopular minority group with a very potent weapon. It is unrealistic to imagine that in the aftermath of a terrorist attack, every judge would have the fortitude to deny the urgent petitions of law enforcement.

Considering the novelty of red flag laws in most states, the absence of data indicating that such laws reduce crime, the conflicting and sparse research on suicide reduction, and the extreme risks of turning the Minority Report movie into the law of the land, a sunset provision for the gun confiscation law would be prudent. On the sunset date, the General Assembly can consider experience, including, perhaps, abuses of the law. A re-enacted law can then include reasonable modifications. If business licensing systems are appropriate for sunset review, then surely a law that authorizes ex parte gun confiscation and the prohibition of exercise of constitutional rights also merits sunset review.

David B. Kopel is Research Director at the Independence Institute, a free market think tank in Denver. Joseph G.S. Greenlee is an attorney in Steamboat Springs.

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