Second Amendment legal experts say Colorado's new “red flag” gun control legislation doesn’t properly protect due process rights and is ripe for abuse.
The experts gathered for a panel discussion last week hosted by the Colorado-based Mountain States Legal Foundation, a conservative public interest law firm.
It featured David Kopel, research director for the Independence Institute and a law professor at University of Denver, and Alexandra Garza, state director for the NRA-Institute for Legislative Action, covering Wyoming, Colorado and New Mexico.
Colorado Gov. Jared Polis signed a “red flag” gun control bill into law in April. The law allows a judge to issue a temporary extreme risk protection order (ERPO) for an individual’s firearms if family members or law enforcement believe the individual is a threat to themselves or others.
The legislation was widely opposed by Republicans and groups like the Independence Institute and the NRA. Over half the state’s counties also passed measures declaring “Second Amendment sanctuaries” in response to the legislation.
A similar bill is on the desk of Nevada Gov. Steve Sisolak ready to be signed.
The Colorado law, like other “red flag” laws across the country, is based on deception, at least when it comes to the bill’s title, according to Kopel.
“The phrase ‘extreme risk protection order’ is a conscious misrepresentation," he said. "The bill that passed the Colorado legislature was called ‘Concerning creation of an extreme risk protection orders,’ and the Colorado constitution says that all bills have to have a clear title.”
Instead of being about “extreme risk,” the bill is actually about “significant risk,” Kopel said.
“[The bill] says an extreme risk is a significant risk, which is the opposite. It’s a deliberately deceptive title,” he said. “If it were limited to extreme risks, it would in my view be a lot closer to being constitutional.”
Because of that, it’d be more accurate to call the law “a gun confiscation order,” Kopel said.
Both Kopel and Garza agreed the law doesn’t properly protect due process rights, which makes it easier to abuse.
Kopel said he’d be open to “red flag” laws if they protected due process.
“I think if they’re properly narrow and with appropriate due process protections, they could be constitutional, but the gun confiscation bill that was passed by the legislature goes way beyond that,” he said. “Based on the record in other states is likely to result in many deprivations of civil rights for innocent people.”
Kopel cited Connecticut and Indiana, where ex parte hearings – where only one side is present – take place prior to a hearing where the subject of an ERPO gets to defend themselves. Kopel said according to one estimate, confiscation orders are overturned 30 percent of the time in those states.
While proponents of “red flag” gun laws often tout them as a way to address those with mental health issues possessing firearms, the laws often don’t do anything to address the mental health problem, as is the case with the Colorado law, Garza said.
“As we’ve evaluated some of the shootings that have happened, there’s been a theme of mental health that has appeared, and this has been flagged – no pun intended – as the solution to this mental health issue that we’ve seen with shootings over the years,” she said.
“Unfortunately the legislation [House Bill 1177] does not have a mental health component and it does not address any kind of mental health component, therefore we’re just sidestepping due process,” Garza argued. “We’re confiscating someone’s personal property without truly getting them the help that they need.”
Another issue, Kopel pointed out, is that when it comes to peaceable surrender of firearms, the Colorado law “promotes unnecessary confrontations.”
“The Colorado law just defaults to forcible seizure, to showing up at the person’s home with no notice,” he said. “Other states have procedures that say you have to surrender your guns within 24 or 48 hours, and you can surrender them” to a registered gun dealer or legal custodian.
Kopel added that many law enforcement officials in the state oppose the legislation for this reason, because it turns their role in the confiscation into “an army of occupation” instead of acting as peace officers.
When the Colorado legislation was being debated, Democratic lawmakers said it would help reduce suicide rates, but Garza cited a study that found when firearms were removed as an option for committing suicide in Connecticut, the number of suicides by other methods rose.
“There’s no requirement for this person to go get mental health help, there’s no requirement for this person to be taken in and evaluated,” Garza said.