A bill that would let law enforcement or family members seek a court order to remove firearms from at-risk individuals, also known as a “red flag” law, won approval in its first House committee hearing Tuesday.
House Bill 1436 would set up an ability for law enforcement or family members to obtain a temporary “Extreme Risk Protection Order” (ERPO). The bill garnered a 7-4 party-line vote of approval from the Democratic-controlled House Judiciary Committee and now heads to the full House for debate.
Under the bill, the person requesting the ERPO has to show that the at-risk person is either a risk to himself or herself, or at risk of harming others, through the use or control of a firearm, under a “preponderance of evidence” standard. The subject of the ERPO must be notified either on the day of the initial hearing or the day after, the bill states. Once the order is granted, law enforcement can pick up the weapon(s) and ammunition.
A judge who decides in favor of granting the ERPO must hold a second hearing within seven days to determine whether to extend the ERPO or return the firearms to the person initially deemed at risk. At that second hearing, under a stronger standard of “clear and convincing evidence,” the ERPO can be extended for up to 182 days.
The at-risk person can request the ERPO be terminated at any time, and the burden of proof falls upon the person who sought the restraining order.
Tuesday’s hearing included an unusual twist: House Minority Leader Patrick Neville of Castle Rock, a long-time ally of Rocky Mountain Gun Owners, put himself on the House Judiciary Committee in place of Assistant Minority Leader Cole Wist of Centennial, one of the bill’s main sponsors. Wist was taken out to the woodshed in a late Monday night caucus meeting over his sponsorship of the bill and included a motion to strip him of his leadership position (the motion was never voted on). House Republican members told Colorado Politics the caucus discussed the bill and worked out their differences.
Had Wist stayed on the committee for the Tuesday hearing, a 7-4 party-line vote could have been a bipartisan 8-3 decision.
Gov. John Hickenlooper put in his two cents on the bill Tuesday, which is named after Douglas County Deputy Zackari Parrish, III. Parrish died on New Year’s Eve in an ambush committed by a man identified as mentally ill. Douglas County Sheriff Tony Spurlock told the Judiciary Committee that they had been aware of the shooter’s mental illness problems for months and had been trying to find a way to resolve the situation.
Tuesday’s hearing brought many of the law enforcement officials, district attorneys, mental health professionals and gun control advocates who spoke in favor of the 30-page bill Monday. The committee also heard from those who have lost family members or other loved ones to suicide by gun or other gun violence, and from family members who back the bill because they fear for their mentally-ill loved ones.
Dan May, district attorney for the judicial district that includes El Paso County, told the committee he supports the bill but has concerns that should be addressed through amendments. Among them: the bill should include removal of firearm parts that could be used to readily convert firearms into automatic weapons, for example. He also advocated for the second hearing to take place in 72 hours rather than a week since that’s how other situations work.
May was also concerned about rushing the bill through the General Assembly in its final days and suggested a one-year sunset review so that any problems that surface could be addressed a year from now.
George Braucher, the Republican district attorney who represents Arapahoe and Douglas counties told the committee his support for the bill is not because of any less commitment to the Second Amendment, which he called among the most valuable guaranteed by the Bill of Rights. He said he supports the bill because of a “giant gaping hole” in the law that allows events like those that took place in Douglas County on New Year’s Eve and the death of Deputy Parrish.
And then there was Randy Chase, who spoke about the political aspects of the bill, reminding lawmakers that two senators were recalled and a third resigned in 2013 after the Democratic-controlled General Assembly passed several gun control laws in the session following the 2012 Aurora Theater shooting. “If I had a hat to take off, I would take it off” to Wist for his bravery in sponsoring the bill, Chase said.
The bill also garnered opposition from Rocky Mountain Gun Owners (RMGO) and the Firearms Coalition of Colorado, which is affiliated with the National Rifle Association.
James Bardwell, an attorney representing RMGO, told the committee his group does not disagree with the idea that some people should not have firearms because of their behavior. If it is too hard to incarcerate dangerous people under the criminal or mental health law, that’s where the legislature should focus, he said. “Depriving dangerous people of firearms does not address the problem this bill is supposed to address.”
Neville and Brauchler got into a back-and-forth over hypothetical situations that might apply under the bill, such as what happens when firearms are seized that belong to other people or damages caused by a weapons seizure. On the latter, Brauchler said the same rules apply that apply to any other search warrants: a person who refuses to cooperate is responsible for the damages, he explained. As to the former, Brauchler said the firearms owner, if not the person at-risk, has the ability to request their weapons back from the sheriff. But he also told Neville that “you will always be able to out-think the law in the short term, but in the practical application, it just doesn’t happen that way.”
The bill “is about the person, not the gun,” May told the committee. “We should be more concerned about the person who walks down a street” shooting and killing people, a situation that took place in Colorado Springs on Halloween night in 2015. The shooter, who was mentally ill, was killed by police in a shoot-out but only after killing three other people. May cited it as one of the reasons he backs the bill.
“We need to take a step forward that is constitutional, that is appropriate, has a lot of safeguards beyond anything else we’ve seen in this country,” May said, “and we need to protect people under certain circumstances and hold people accountable for their use of guns. That’s the issue…”
The hearing wrapped up with a round of kudos to Wist from the committee Democrats for his political courage in sponsoring a bill that has drawn the ire of his caucus. “This is what leadership looks like,” said Democratic Rep. Joe Salazar of Westminster.