Bill Introduced To Repeal Colorado's Red Flag ERPO Law

Colorado’s Red Flag ERPO law has only been in effect since the first of the year and a bill has already hit the state legislature to repeal it.  Introduced by Rep Lori Saine, Senator John Cooke and Senator Jim Smallwood, HB20-1271 Repeal Red Flag And Amend 72-hour Hold would effectively repeal the Extreme Risk Protection Order law while simultaneously changing the standard for a 72 hour involuntary hold.  It has been assigned to the House Judiciary Committee.  No hearing is scheduled yet but because every bill gets a public hearing in Colorado, sparks will surely fly when it does.

The changes to the 72 hour hold would replace the term “imminent” with “extreme risk” which is defined as “a credible and exigent threat of danger to themselves or others through actionable threats of violence or death as a result of current mental health state”.  This would give officers more leeway in who they can place in a hold and would remove the person from the crisis, rather than leave a person in crisis while removing one tool harm could be done with.

With the hyper-partisan make up of the state legislature, it is highly unlikely the bill will make it out of committee.  That said, it will give activists a megaphone to bring the Red Flag ERPO abuses we’ve already seen front and center.

The highly controversial Red Flag ERPO bill, HB19-1177 “Red Flag” Extreme Risk Protection Orders, passed through the Colorado legislature last year by one single vote and was then signed by Governor Jared Polis.  It had bi-partisan opposition. Every Republican and three Democrats voted against it.

Colorado’s ERPO law has been used eight times since it became law.

Three were in Denver…

The first ERPO was filed by a police officer requesting to keep guns that had been voluntarily handed over during a domestic dispute call where the respondent made suicidal statements. The respondent voluntarily agreed to the ERPO before a permanent hearing. We detailed that case here and detailed how an ERPO wasn’t even needed.

Another hit Denver soon after.  In this case, the Temporary ERPO was filed by the ex-father in law of the respondent.  Ex-father in law claimed respondent had made non-specific threats.  Temporary ERPO was granted and a permanent hearing was scheduled for Jan 23, 2020.  Respondent did not initially voluntarily surrender his firearms or file the necessary affidavit stating he had personally relinquished them according to what is required by law; this prompted further action from the court at which time the firearms and CCW permit were seized. Respondent is also going through a nasty custody battle which according to him is being financed by the ex-father in law.  The case documents include pages and pages of angry, but non-threatening text messages between ex-father in law, respondent, and ex-wife.  On Jan 23, the hearing was vacated for two reasons: 1) ex-father in law is not a qualified person to file petition; 2) witnesses were out of town.

The next day another ERPO was filed against the same man by the ex-wife, who is qualified person to file under the law. That permanent case will be heard Feb 5, 2020.

In Larimer County three have now been filed… 

The first was filed by the Larimer County Sheriff’s Office on an inmate.  He was being held on two felony charges: Inciting Destruction of Life or Property and Retaliation Against a Witness or Victim.  The petition stated that the inmate did not own any guns, but while in jail he had told cell mates that when he gets out he “wants to kill 50 people”.   The ERPO was initiated in an effort to make him a prohibited buyer if he successfully bonded out.  We had lots of questions about this, as if he was released on bond, being a prohibited person is a condition of that bond.  After some back and forth with law enforcement and the CBI, it sounds like “it’s too much work” to get him into the CBI database via the bond route, therefore an ERPO was an easy band-aid to that broken piece of law. At the permanent hearing, an attorney for the inmate respondent argued for more time as she believed he may already be adjudicated mentally defective and a prohibited buyer.  The permanent hearing was rescheduled for March 5, 2020.

The second Larimer case was filed by 64 year old Susan Holmes against CSU Police Officer Phillip Morris.  Morris had shot and killed Holmes’ mentally unstable, knife wielding son in 2017.  Body cam footage clearly shows the shooting as justified, and the DA agreed.  On her petition, which she discussed in a YouTube video, Holmes stated that her and Morris had a child in common, a fact that made her a person qualified to file.  They do not have a child in common.  Holmes discovered a loophole in the ERPO law that allowed her to bypass the Temporary ERPO hearing which would have likely denied her at the door, and instead move right into a full permanent orders hearing.  That hearing was a circus and the Permanent ERPO was denied in the end.  The Larimer county DA then put out an arrest warrant for Holmes based on two charges: Perjury and Attempting to Influence a Public Servant.  After nearly two weeks on the run, Holmes was arrested.

And the third Larimer case was denied at the Temporary ERPO hearing, but it’s so absurd it’s worth pointing out.  This was our first case of legitimate family members: sister and brother.  The petitioner is the sister who is apparently allowing her brother to live with her temporarily.  The brother got very upset when someone moved his soap, and allegedly screamed at his sister and their father.  Sister felt physically threatened and claimed she had seen a gun in the past but wasn’t sure where it is now or if he still had it.  No other information besides the soap incident was provided.  The petition was denied.  Case closed.

Douglas County tried to do one too…

Douglas County Sheriff’s Office filed a temporary ERPO on an inmate in their jail.  The inmate was homeless and owned no guns, but had made suicidal statements while detained.  Similar to the thinking of Larimer ERPOing their inmate, this would have made him a prohibited buyer and unable to legally purchase a firearm when released.  At the Temporary ERPO hearing it was discovered he was already a prohibited buyer because he’d been Adjudicated Mentally Defective in the past.  ERPO denied, case closed.

And one in Lincoln County…

Another was filed in Lincoln County by a woman who claimed a man “whom she’d had relationship with” had made physical and verbal threats to her with a handgun.  She also claimed he used alcohol and marijuana. The judge denied the temporary petition but his reasoning was not made public.

To learn more about Colorado’s Red Flag Law, obtain attorney resources, and/or report if you’re Red Flagged, visit www.redflagresourcecenter.com.

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