2019 Leg Session, Civil Liberties, Constitutional Law, Criminal Justice, Dave Kopel, Gold Dome, Politics, Right To Arms

Kopel: Red Flag bill guts due process, unnecessarily threatens police and public safety

The “Red Flag” bill passed by the Colorado House has an effective date of January 1, 2020. But in some counties, the date might as well be “never,” since a growing number of counties and sheriffs’ offices are announcing that they will not enforce the bill. While bill sponsor Rep. Alec Garnett deserves to be commended for many constructive amendments, the bill as it presently exists can create rather than mitigate danger to public safety.

House Bill 1177 contains several good features, including a fair process for return of seized guns, free court-appointed counsel for respondents, and a provision for civil lawsuits against people who bring maliciously false complaints. Additionally, the amended bill contains language to try to deter the federal government’s background check system from converting a one-year state order into a lifetime ban on gun possession.

Unfortunately, the bill still deprives individuals of due process, and unnecessarily forces law enforcement and the public into dangerous situations.

No right of cross-examination

“Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth … [It] is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.” So said the U.S. Supreme Court in 1981 (Watkins v. Sounder), quoting Prof. John Henry Wigmore, the pre-eminent American expert on the rules of evidence.

But HB 1177 eradicates the right of cross-examination. The accuser and witnesses supporting the accuser never need to testify in court and be subject to cross-examination. Instead, persons can simply submit an affidavit. (HB 1177, §13-14.5-105 (4)(a)). Although the bill provides for a due process hearing two weeks after an individual’s guns have been confiscated, the absence of cross-examination turns that hearing into a sham.

No protection against no-knock raids

Colorado law generally disfavors no-knock raids, and requires that, except in fast-breaking emergencies, such raids should occur only with the approval of a District Attorney and specific authorization from a court. (Colo. Rev. Stats. §20-1-1061). But HB 1177 does not specifically require that no-knock raids follow this procedure.

By making no-knocks easier for gun seizures than for all other no-knocks, the bill unlawfully discriminates. The Supreme Court has rejected the notion that an entire class of cases can automatically be no-knock at unfettered law enforcement discretion. (Richards v. Wisconsin (1997) (drugs).

Stigmatizing gun owners

HB 1177 lists several specific risk factors for courts to consider when determining confiscation orders. The bill directs the State Court Administrator to create standard forms for gun confiscation petitions, which presumably will be based on the items in the bill. The listed risk factors are a litany of red flags: recent acts or threats of violence, violation of a civil protection order, a previously-issued gun confiscation order, conviction of a domestic violence crime, reckless or unlawful use of firearms or a credible threat thereof, a history of unlawful violence by the respondent, stalking, prior arrests, and drug or alcohol abuse. Mixed into this list of stigmatizers is the lawful exercise of constitutional rights: owning or acquiring firearms or ammunition, or possessing a firearm as part of one’s employment.

Thus, when the State Court Administrator creates the forms based on HB 1177, the forms will tell the public and the courts that “ownership” of “a firearm” is in the same presumptively-suspicious list of activities such as “stalking,” “credible threats of violence,” or conviction of “domestic violence.”

Of course gun confiscation orders should only be issued against persons who are reasonably believed to be in possession of guns, or about to acquire a gun. A separate section of the bill already requires the petitioner to identify, to the extent possible, the arms possessed by the respondent.

Unnecessarily causing confrontations

Under HB 1177, an ex parte order by a court automatically starts a process by which law enforcement must show up at someone’s home and take their guns. The first notice that a person will receive is when the police arrive at a person’s home and announce: “We’re from the government and we’re here to confiscate your guns.”

This creates an inflammatory situation, endangering both law enforcement and the public. Undoubtedly there are situations where instant confiscation without notice might be necessary; the bill could so provide, based on specific judicial findings about an individual case.

In contrast to HB 1177’s system of automatic no-prior-notice confiscation by law enforcement, the laws of California and Oregon require an individual to surrender custody of firearms within 24 hours of being served with an order. Washington allows 48 hours.

Who has custody?

HB 1177 mandates that the firearms must be taken by the government. After that, the owner may ask that the guns be transferred to a federal-licensed firearms dealer (FFL). Certain collectible “curios and relics” may be transferred to a relative. The custodian may not return the firearms to the owner until the risk protection order is no longer in force.

Instead of automatic seizure by government, the laws of California, Oregon, and Vermont allow the firearms to immediately be transferred to any individual who may lawfully possess firearms. Connecticut and Florida allow the owner to request that guns in law enforcement custody be transferred to a lawful individual custodian.

One should not underestimate the difference between having one’s arms carted out of the home by law enforcement officers versus a dignified transfer of the arms directly to a FFL or other responsible citizen. The latter will cause less resentment and more compliance.

No-notice instant confiscation should be allowed only when specific findings by the court show its necessity.

Unreliable process with high error rate

The bill’s flimsy procedures for ex parte orders ensure that a very large amount of the orders will be issued against innocent and peaceable individuals. Combined with the automatic, no-notice, surprise confiscation, the poor procedures aggravate dangers to the public and to law enforcement. Similarly poor procedures have already led to the death of one citizen in Ferndale, Maryland.

The error rate of ex parte confiscation orders is very high. In Connecticut, once a judge eventually hears the respondent’s side of the story, 32 percent of confiscation orders are overturned. Michael A. Norko & Madelon Baranoski, 46 Conn. Law Review 1609, 1619 (2014).

A study in Marion, County, Indiana, reported similar results. George F. Parker, Circumstances and Outcomes of a Firearm Seizure Law: Marion County, Indiana, 2006-2013, 33 Behavioral Science and the Law 308 (2015) (29 percent).

The error rate is likely to be even higher in Colorado. In Connecticut and Indiana, only law enforcement officers can file a gun confiscation petition. In contrast, HB 1177 allows a wide variety of persons, including ex-girlfriends or ex-boyfriends, to file a petition.

Ex parte hearings are disfavored in law. Normally, when a plaintiff seeks a temporary restraining order on an ex parte basis, the plaintiff must explain why the defendant was not notified of the hearing. If the court grants the order, the court must explain why it was necessary to issue the order ex parte. (Colo. Rules of Civil Procedure 65(b)). HB 1177 eliminates these protections.

A better bill would have allowed ex parte confiscation orders only when the court makes a specific finding of necessity, based on the evidence in a particular case.

The high error rate of ex parte proceedings is worsened by the low standard of proof. Even though the court is only hearing one side the story, the standard of proof is “preponderance of the evidence”—the lowest standard.

Two weeks later, when the court hears from both sides, the standard of proof is “clear and convincing evidence.” Hence, a good-faith petitioner will know that he eventually must provide clear and convincing evidence. The petitioner should be held to that standard at an ex parte hearing as well. After all, the respondent will not even be in court to contradict anything the petitioner claims. Faced with no opposition, a good-faith petitioner should be able to meet this fair standard.

What’s the harm?

It is sometimes argued that ex parte hearings with low standards are acceptable because the harm inflicted will last only two weeks, until the respondent receives a hearing and can present her side of the story.

Sometimes, little harm will be done. An individual might miss a few weekends of target practice. But there are more substantial harms too.

During the period when a temporary order is in effect, the respondent is deprived of the means of self-defense. We know from Connecticut and Indiana that 30 percent of these respondents are innocent and peaceable. When the arms are confiscated, the innocent victims of incorrect orders are defenseless. The innocent victims of wrongful orders may be people who are especially vulnerable—since the confiscation petitions may be filed by spurned lovers, angry spouses in a divorce, and so on.

Some persons who might use ex parte orders to target innocent victims may be deterred by the risk of civil lawsuits. But some persons who want to deprive an innocent victim of self-defense may be intent on homicide—and not expecting to live much longer after they kill their victim. For such abusers, the ex parte order may be the means to disarm their intended victim long enough for the victim to be murdered. Intended to be a tool to prevent domestic homicides, HB 1177 could instead facilitate such homicides.

More broadly, the innocent victims of temporary confiscation are rendered defenseless against home invaders, robbers, and rest of the gamut of violent criminals.

I raised the issue when I was serving on a study committee of the Uniform Law Commission. At the request of Conference of Chief Justices, the Commission was taking the first steps towards drafting a national model red flag law. A representative of the Giffords gun control organization retorted that disarmed victims could just buy a toy gun and scare the criminal away. As if.

The Uniform Law Commission had brought together a wide variety of stake-holders: state legislators of diverse views; law enforcement representatives who were equally diverse; attorneys and advocates across the spectrum; plus representatives from the courts and mental health groups. Our committee was nearly unanimous that the Uniform Law Commission should proceed with drafting a national model. The only opposition came from Giffords, which was afraid that the careful process of the Uniform Law Commission might produce something very different from the one-sided model written by Giffords.

Unfortunately, HB 1177 started close to the Giffords model—drafted as if petitioners were always right and their targets always nefarious. The dangers inflicted by wrongful confiscation did not matter at all. Amendments in the House have fixed some of the problems. But many dangers remain. These include the disarmament of the many respondents who are innocent; the absence of normal regulations on no-knock raids; and forcing law enforcement officers to automatically show up at homes unannounced to confiscate guns, without any showing of specific need for such heavy-handed tactics.

David Kopel is Research Director of the Independence Institute, a free market think tank in Denver, and an adjunct professor of constitutional law at Denver University. He served on the Uniform Law Commission’s Study Committee for drafting of a model law on Extreme Risk Protection Orders.


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