Understanding Extreme Risk Protection Orders in Colorado: HB19-1177 Explained

In 2019, the Colorado General Assembly passed House Bill 19-1177 (HB19-1177), creating Extreme Risk Protection Orders (ERPO). This legislation allows law enforcement or family members to petition a court to temporarily remove firearms from individuals deemed a significant risk to themselves or others. This article delves into the details of HB19-1177, examining its provisions, the process involved, and its implications.

What is an Extreme Risk Protection Order (ERPO)?

An ERPO, often referred to as a "red flag law," is a civil order issued by a court that temporarily restricts a person's access to firearms. The goal is to prevent potential tragedies by providing a legal avenue to intervene when someone exhibits warning signs of violence.

Key Provisions of HB19-1177:

• Who Can Petition: A family or household member or a law enforcement officer can petition the court for a temporary ERPO.
• Standard of Evidence for Temporary ERPO: The petitioner must prove by a preponderance of the evidence (meaning it is more likely than not) that the person poses a significant risk to self or others by having a firearm.
• Affidavit Requirement: The petition must include a signed affidavit under oath, detailing the facts supporting the need for a temporary ERPO.
• Timely Hearing: The court must hold a temporary ERPO hearing on the day the petition is filed or the next court day.
• Second Hearing for Continuing ERPO: If a temporary ERPO is issued, a second hearing must be held within 14 days to determine if a continuing ERPO is warranted.
• Right to Counsel: The respondent (the person the order is against) is appointed counsel for the second hearing.
• Standard of Evidence for Continuing ERPO: For a continuing ERPO, the petitioner must establish by clear and convincing evidence that the person poses a significant risk.
• Duration of Continuing ERPO: A continuing ERPO prohibits the respondent from possessing firearms for 364 days.
• Firearm Surrender: Upon issuance of an ERPO, the respondent must surrender all firearms and concealed carry permits.
• Options for Surrender: Firearms can be surrendered to law enforcement, a federally licensed firearms dealer, or, in the case of antiques, to an eligible family member not residing with the respondent.
• Return of Firearms to Lawful Owner: If someone other than the respondent owns the surrendered firearms, they must be returned to that person.
• Termination Hearing: The respondent can request a hearing to terminate the ERPO once during the 364-day period, bearing the burden of proving they no longer pose a significant risk.
• Extension of ERPO: The original petitioner can request an extension of the ERPO before it expires, again demonstrating a continued significant risk.
• Return of Firearms Upon Expiration or Termination: If the ERPO expires or is terminated, the respondent's firearms must be returned within 3 days of their request.
• Standardized Forms: The state court administrator is required to develop standard petitions and ERPO forms.
• Data Collection: The judicial department must provide statistics related to ERPO petitions.
• Appropriation: The act initially appropriated funds for court costs and court-appointed counsel.

The Process of Obtaining an ERPO:

1. Petition Filing: A family or household member or a law enforcement officer files a petition with the court.
2. Temporary ERPO Hearing: The court holds a hearing, and if the petitioner meets the required standard of evidence, a temporary ERPO is issued.
3. Firearm Surrender: The respondent must surrender their firearms.
4. Continuing ERPO Hearing: A second hearing is held within 14 days to determine if a continuing ERPO is warranted.
5. Potential Termination Hearing: The respondent can request a hearing to terminate the order during its duration.
6. Extension or Expiration: The ERPO may be extended upon request or will expire after 364 days.

Arguments For and Against ERPOs:

Proponents of ERPOs argue that they are a crucial tool for preventing suicides and mass shootings by temporarily removing firearms from individuals in crisis. They emphasize the importance of providing a legal avenue for concerned family members and law enforcement to intervene.

Opponents of ERPOs, on the other hand, raise concerns about due process and the potential for abuse. They argue that the orders can infringe on Second Amendment rights and that the standard of evidence for issuing them may be too low.

Related Legislation and Resources:

HB19-1177 is part of a broader legislative landscape addressing behavioral health and firearm safety. Related bills, such as SB22-010 (Pretrial Diversion For Person With Behavioral Health), highlight the state's ongoing efforts to address mental health issues within the legal system. The Colorado General Assembly also provides resources such as Issue Briefs on Extreme Risk Protection Orders, offering further insights into the topic.

Conclusion:

HB19-1177 introduced Extreme Risk Protection Orders in Colorado as a mechanism to temporarily remove firearms from individuals deemed a significant risk. The law balances concerns about public safety with individual rights, establishing a process for petitioning, hearings, and firearm surrender. Understanding the nuances of this legislation is crucial for both legal professionals and the general public.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult with an attorney for advice on specific legal issues.