Robbins: Colorado’s red flag law brouhaha | VailDaily.com

Robbins: Colorado’s red flag law brouhaha

When the holidays are over, there will be — as in most years — a passel of new laws.  Perhaps the most controversial of them will be Colorado’s new red flag law.

“Red flag law” is the vernacular.  More formally, the law is known as the Extreme Risk Protection Order Act. 

In recognition of the spate of gun violence plaguing this nation, the law will allow family, household members, and law enforcement to petition the court for an order to temporarily take guns from an individual deemed to be at significant risk of hurting him/herself or others by having a firearm.  Once enacted, Colorado will join more than a dozen other states with some version of the legislation on their books.

The law requires there to be a hearing and a finding of considerable risk.  Guns may not be confiscated for longer than one year unless another evidentiary hearing takes place to extend the period of confiscation.

Constitutional rights

Proponents of the bill hold that it could prove instrumental in reducing the likelihood of another mass shooting while at the same time diminishing the epidemic of suicides in Colorado. On the other hand, Second Amendment advocates maintain that the law runs the risk of depriving Coloradans of their constitutional right to bear arms.

The Second Amendment to the United States Constitution provides that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” While people of goodwill can disagree over precisely what the Founding Fathers intended this to mean, the Supreme Court has consistently held that the Second Amendment assures citizens the individual right to bear arms. 

Colorado’s Constitution is cut from slightly different cloth. Article II, Section 13 provides in pertinent part that “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question….”

While the Big Kahuna of the United States Constitution says nothing about limiting the right to bear arms to self-defense, Colorado’s Constitution does.  Whether or not this presents an irony and dilemma for state’s rights advocates, I’ll leave you to sort out on your own.

Will the law be followed?

With its signing into law, the controversy over the law has scarcely abated. Nearly half the counties in the state have passed resolutions declaring themselves “Second Amendment sanctuary counties.”  

Precisely what this means and what the effect will be is up in the air. At least until the bill is actually effective. In shorthand, though, the intent of these “Sanctuary Counties” is to disobey the law, to discourage their judges and sheriffs from issuing and carrying out orders to seize weapons. 

At least a handful of county sheriffs have been outspoken in their opposition to the law and in declaring that they have no intent to follow it. But here’s the rub; county sheriffs and state court judges are sworn to uphold all the laws. They simply don’t get to choose which laws they like — and will therefore defend — and those they don’t.

As you might imagine, this has created quite the dustup. Even “60 Minutes” recently visited our fair state for a feature on the brouhaha.

Several of those sheriffs whose heels are dug in in opposition to the bill, recognizing that their failure to abide by it might buy them time behind the bars of their own jails, have nonetheless committed themselves to its defiance, the consequences be damned. Whether this, in fact, comes to fruition after the New Year remains to be seen; for now, however, it is bombast. When the rubber hits the road, the resolve of these committed law enforcement officers may well wane.

Don’t get me wrong; I take them at their word but the measure of a man or woman is appraised in deeds not words.

Already on the books

To this lawyer, though, here’s what else is of interest.

Already on our books are laws pertaining to “plain vanilla” protection orders.  If one feels threatened by another, the party who feels at risk may petition the court for a protection order. The standard to grant one is that the petitioning party is in reasonable apprehension of physical or emotion harm unless the other party is restrained. 

Most commonly, petitions for protection orders occur in domestic situations. While a temporary protection order may be granted on approval of a judge without a hearing, for the order to be made permanent, an evidentiary hearing must take place within two weeks of issuance of the temporary order and at hearing the petitioner must prove his or her case beyond a reasonable doubt. 

Here, however, is the point. When a protection order is granted, the restrained party is banned from the residence, place of employment and school of the protected party and, usually, those places where the protected party’s children may be found. The protected person may be — and often is — barred from his or her own home. 

Commonly, a “bubble” is placed around the person of the protected party and his or her children. If the restrained party “bursts” that bubble — often 100 yards or so — he or she will be carted off to jail and made to explain to the judge why the protection order was violated. 

Violation of a protection order is a separate criminal offense. Here, though, is the fine point on all of this: When a protection order issues, the restrained party must forthwith turn in all of his or her firearms to law enforcement. Failure to do so constitutes a separate criminal offense.

So with laws already on the books that confiscate firearms when a threat is deemed to be palpable, there is some fine parsing to be made between existing laws and the newcomer that will join those laws in January.

People of good faith can and obviously will disagree. Dissent is the beauty of our system. What is certain is that this new law will find its equilibrium.  Precisely where the balance is, however, remains to be tested and be seen.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.