DENVER–The “Red Flag” bill moving through the Colorado Legislature has been the subject of plenty of debate, but as it stands now, for persons against whom even a temporary Extreme Risk Protection Order (ERPO) has been issued, there is a risk they could be trapped into inadvertently violating federal gun control laws.
House Bill 19-1177 requires that at the initial ex parte hearing (where the subject is excluded), and based on a judge finding by a preponderance of the evidence that the person meets the “danger to self or others” standard, a ruling issuing a temporary ERPO and search and seizure warrant to confiscate guns is required.
According to federal regulations provided to Complete Colorado by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) someone is “adjudicated as a mental defective” if found by a “court, board, commission or other lawful authority” to be, among other things, “a risk to himself or others.”
A strict reading of the federal law suggests that a person under any ERPO has been “adjudicated as a mental defective” by a judge and is barred from all gun ownership from the federal perspective.
The potential threat to gun owners is that even if the judge declines to issue the year-long order, there is still an adjudication and a temporary ERPO on record that arguably prohibits people from getting their guns back until another court proceeding required by federal law to relieve that disability is held.
As well, an ERPO that expires without further court action at the end of the statutory time period of 364 days doesn’t meet the standard for relief from the federal gun-ownership disability.
Prior to 2008, a judicial finding that a person was a danger to himself or others permanently revoked a person’s right to keep and bear arms. This disqualified many people suffering from temporary mental health issues from gun ownership for life.
The federal NICS Improvement Amendments Act of 2007 provides, among other things, a pathway for people who were barred from gun ownership due to temporary mental illness to regain their rights once they are no longer in crisis.
The 2007 federal law says that a state can provide relief from the federal ban by creating a program for granting relief in state law. The law must provide that a “state court, board, commission or other lawful authority” grant the relief.
Colorado passed just such a statute in 2013 that is found at C.R.S. 13-5-142.5
When petitioned, the court may grant relief if it finds the person is “not likely to act in a manner that is dangerous to the public safety” and that the relief is not “contrary to the public interest.”
The catch is that only persons who have been “found to be incapacitated,” “committed by order of the court” to the custody of the state, or for whom the court has entered an order for short term treatment or for long-term care of a mental health disorder are eligible to petition for relief.
The bill does not address this situation, meaning that the subject of either a temporary or year-long ERPO might not be eligible to petition for relief under existing Colorado law.
Both federal and Colorado statutes say that persons taken in for observation on a 72-hour mental health hold or those who voluntarily admit themselves to a psychiatric facility do not qualify as being “committed to a mental institution,” which is another event that disqualifies gun ownership. But the Colorado ERPO bill doesn’t require a person adjudicated as dangerous to get any mental health treatment at all.
This potentially puts people who are issued temporary ERPOs pending a full hearing, those who are not issued an ERPO at the full hearing and those for whom an ERPO expired without further court action in the position of having to go back to court to relieve the federal prohibition, if they even know they must do so, only to find that they are not eligible to petition for relief under state law.
Denver Field Division BATFE Public Information Officer Mary Markos, declined to provide any official interpretation of the federal statute. When asked about this potential problem, she responded in an email saying, “Please reach back out with your questions after the bill has passed with its final language.”