Colorado Democrats are advancing a number of anti-gun bills this session, including legislation legislation requiring background checks on the sale of gun barrels, a ban on making gun parts with a 3D printer and criminalizing the dissemination of computer files used to produce those parts, more regulations and paperwork requirements for gun store owners, and expanding the state's "red flag" law to allow institutions to file for Extreme Risk Protection Orders.
That last bill has now cleared both chambers and is on its way to Gov. Jared Polis, who is likely to sign it into law. The bill, though, could easily erode accountability that's built in to the existing ERPO statute.
Under the current "red flag" law, anyone filing for an Extreme Risk Protection Order must swear under oath that the information provided is true, to the best of their knowledge, and knowingly filing a false petition can lead to criminal charges. But what happens when it's not an individual who files a petition, but instead an "institution"?
The legislation doesn't say. Or rather, all it says is this:
A family or household member of the respondent, a community member, AN INSTITUTIONAL PETITIONER, or a law enforcement officer or agency may request a temporary extreme risk protection order without notice to the respondent by including in the petition for the extreme risk protection order an affidavit, signed under oath and penalty of perjury, supporting the issuance of a temporary extreme risk protection order that sets forth the facts tending to establish the grounds of the petition or the reason for believing they exist and, if the petitioner is a family or household member or community member, attesting that the petitioner is a family or household member or community member.
So, when institutions like health-care facilities, behavioral health treatment facilities, K-12 schools, and institutions of higher education file ERPO petitions under the legislation, who actually signs the affidavit under oath and under penalty of perjury? Is it the head of the organization? Someone in Human Resources? An individual teacher, counselor, or doctor who has first-hand knowledge of the recipient of the petition, but is allowed to file anonymously under the umbrella of the organization they work for?
The details matter. As 2A attorney and scholar Dave Kopel brought up in his testimony opposing the expansion of Colorado's "red flag" law, there are already far too many petitions that are granted on a temporary basis but rejected when the subject of a petition actually gets their day in court.
At the “temporary” stage, before the individual could defend himself or herself, 56 family/romantic partner petitions were granted, and 104 were denied. This means that even when the person in favor of gun confiscation was the only person the court heard from, the evidence was so lacking that the court ruled against confiscation 65% of the time
After the 56 ex parte petitions were granted, the targeted individual later received a day in court. Then, the court found that the majority of the temporary petitions should be denied or dismissed. Once the target was given the opportunity to be heard, only 22 of the 56 temporary confiscation orders were made permanent. Thus, over 60% of the temporary confiscation orders obtained by family and romantic were later found to be incorrect.
In other words, when a family member or romantic partner files a gun confiscation petition, there is only an 11% chance (22 out of 170) that the petition will stand up under due process. Eighty-nine percent of petitions from family members and (former) romantic partners turn out to be invalid.
Allowing institutions to file ERPO petitions runs a real risk of exacerbating this problem. Instead of documenting supposedly dangerous behavior firsthand, "institutions" will rely on the reports of individual employees. How many of these institutions will independently corroborate those claims before filing a petition? And if that petition contains false information, can the filer be charged with perjury simply for relying on the information provided to them by a third-party?
Bill sponsor Tom Sullivan claims the reason for the bill is to streamline the process and help those individuals who work in institutional settings navigate a confusing process.
“Teachers, doctors and therapists were not trained to fill out the forms to file this type of paperwork,” Sullivan said. “That is why it is so important to allow the institutions, hospitals, and others to file because that’s what they were trained for. It’s also what they have the time to do.”
If these individuals don't have the time to fill out an ERPO petition, are they going to have time to fully document the reasons why they think a petition should be filed? And frankly, it's an insult to the intelligence of doctors, therapists, and educators to say that filling out the paperwork is too much of an intellectual challenge for them.
What's really at work here is an attempt to increase the number of ERPO petitions while decreasing the accountability that comes with filing one. The potential for abuse is enormous, and as Kopel has pointed out, the current law is already deeply flawed and depriving people of their Second Amendment rights on a regular basis. Gov. Polis should veto SB26-004 when it lands on his desk, but I wouldn't count on him doing the right thing.
