On Jan. 1, Colorado’s Extreme Risk Protection Order (ERPO or “Red Flag”) law went into effect. Denver District Attorney Beth McCann provided a detailed discussion of the law and the data that supports its passage because it saves lives. On Feb. 3, several Colorado Republicans, including prime sponsors Lori Saine, John Cooke and Jim Smallwood, introduced a bill that sought to repeal ERPO in its entirety. The bill died in committee, however, the fact that it was introduced without giving Colorado even a short time to see how the law works here clearly communicates a position that is hostile to evidence-based common sense and constitutionally sound gun legislation if it involves the slightest time, place, or manner restriction of a firearm.  As gun deaths in Colorado continue to trend upward with suicide accounting for the majority of gun deaths overall nationally, it is time to embrace real change for the sake of public health and safety.

At the time of its passage and continuing today, critics of Colorado’s Red Flag law complain that it violates the Second Amendment and lacks due process protections. On the contrary; the law contains ample procedural safeguards. Chief among them is judicial oversight:

• In every case, a judge must hold a hearing before an ERPO can issue. 
• The judge can initially issue a temporary ERPO following a hearing where the respondent is not present. However, the longest that the order can remain in effect before conducting a second hearing where the respondent will have an opportunity to be heard is 14 days.
• The longest an ERPO can remain in effect following the second hearing is 364 days. After that, if the order is to continue then well in advance of the termination of the order the judge must hold another hearing in order to renew the ERPO for a period not to exceed a year. 
• At any time while the ERPO is in effect, the respondent can ask the court for a hearing to request early termination. 

In short, the procedure contemplates multiple hearings, up to three in a year, with opportunities to be heard before a judge who decides whether or not to issue an ERPO. Even that can be appealed to a higher court.

One of the most extraordinary features of the bill is its provision of counsel for the respondent at government expense. The procedure set out under Colorado’s ERPO law is civil, not criminal, and would not invoke a right to an attorney absent this specific language included as a safeguard for Second Amendment rights. Civil proceedings have a profound impact on the lives of Coloradans, many of whom cannot afford an attorney. Drivers license revocations, termination of parental rights, and eviction all result in hundreds of thousands of orders every year. These proceedings all have devastating real-life consequences; yet none of them provides for government-funded counsel like Colorado’s ERPO law does.

Opponents of the ERPO law advance a hypothetical that an angry roommate or spurned ex-lover would provide false information in order to obtain an ERPO. However, the law allows for criminal prosecution if someone files a “malicious or false petition” for a temporary ERPO.

Similar laws around the country have withstood challenges to constitutionality. Colorado’s Red Flag law, too, is strong enough to survive a constitutional challenge. And we are strong enough to give common sense a chance.

Lily Alves is a civil and criminal litigator and former federal prosecutor in Colorado.