Colorado’s Red Flag Extreme Risk Protection Orders ERPO law just went into effect on January 1, 2020. Today the news broke to the public that the first case had been successfully filed and granted. Sadly, it’s not unlikely the person being ERPO’d also heard about the ERPO against them for the first time on the local news along with the public. That is because the person being accused is not awarded the opportunity to defend themselves at the first hearing, nor are they even aware of it.
Here’s what we know about this unique first case:
- Police made contact with a 26 year old man at a SW Denver gas station on December 29. 2019. PD allege he had a cut over his eye, and during a pat down search they discovered he had a loaded 9mm Glock in his waistband.
- The man said the cut was from falling down and the gun was because he wanted to “off himself” after an argument with his wife and her sister. PD also allege he was visibly intoxicated.
- The man later told PD that the cut was actually from his wife, who had hit him in the face with a bottle.
- PD took the man in on a mental health hold due to his suicidal statement.
- The firearm was seized and logged into Denver Police Property.
- When PD spoke with the wife, she was also visibly intoxicated and admitted to throwing the bottle at her husband. She was booked on 2nd degree assault charges. Her story later changed and she claimed her husband has perpetrated the abuse and that he had pointed his gun at her while making threats.
- At the request of PD, the man voluntarily surrendered another firearm while the domestic violence investigation took place. That firearm was a .45 caliber Springfield.
- It is also alleged the man told police it was a “good thing they stopped him because he was contemplating doing something bad”.
- On January 2, 2020, the Denver District Attorney’s Office declined formal charges on both parties in regards to the domestic violence allegations.
This is where the ERPO comes in:
Because no domestic violence charges were filed, the firearms needed to be returned to the owner. Instead of returning the firearms, the police officer chose to request to continue to hold them through an Extreme Risk Protection Order ERPO citing that the individual may still be suicidal.
So, now we have a potentially suicidal individual, who may or may not also be a victim of domestic violence (or perpetrator), and the police feel they have “done something” by withholding firearms –while leaving the person in crisis with many other tools. Possibly two people in crisis.
Considering this man voluntarily gave up his guns prior to the ERPO and allegedly told the police officer that he was worried he would have harmed himself if he had not, a private solution would be a great option. Imagine if this police officer visited suicide prevention organization Hold My Guns (www.holdmyguns.org) and helped arrange a FFL who would store his firearms until he felt he was in a better place. No courts, no judges, no rights being infringed – just help and compassion.
What will happen now?
On January 16, 2020 the man will go to court where he will have an opportunity to defend himself and request his firearms be returned. The police officer who filed the ERPO petition will also be there to present his case, or he could submit sworn affidavits if unable to attend in person. At that hearing, the judge will make a decision whether or not the accusations are true. This decision will be based on clear and convincing evidence, whereas at the first hearing the decision was based on a preponderance of evidence (meaning one side had more convincing evidence, even though only one side was present).
The man who has been ERPO’d can either retain a private attorney, represent himself, or request the court appoint one. Because this is a civil, not criminal, proceeding, public defenders are not used, but instead attorneys who have volunteered to work these cases for state pay will be called upon.
At the January 16 hearing, the order will either be dismissed or made permanent. If made permanent it will go into effect for 364 days. The person who has been ERPO’d will have one opportunity to ask the courts to lift it during that time. If he was to make that request, the police officer would be alerted and could ask it remain in place. At the end of the 364 days the police officer will also be alerted that it is going to expire and could request the ERPO be renewed for another year.
To learn more about Colorado’s Red Flag law, get attorney resources, and more visit www.redflagresourcecenter.com.
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3 thoughts on “What We Know About Colorado’s First Red Flag ERPO Case”
Um… the ERPO was processed via Denver PROBATE Court?
How is this even remotely a PROBATE matter?
this shouldnt be red flag at all. only half is being used. his weapons were surrendered without being ordered to. both parties were drunk, handled like a dv case. strange dv was never filed. they are using the dv case to pull in the red flag law to set precedent for future cases. they claim its for mental health, really? “The man was taken to Swedish Medical Center on a mental health hold for his suicidal statements, according to the petition. He was turned away because of his intoxication.”
so much for mental health…..
“that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”
Marbury v Madison
Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.
The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.