Colorado’s Red Flag Law: What Gun Owners Should Know

In recent years, Colorado has implemented a legal mechanism known as the Extreme Risk Protection Order (ERPO) to address concerns about gun violence and public safety. This article explores what an ERPO is, how it works, and its specific impact on gun owners and those who possess a concealed handgun permit in the state of Colorado.

What is an Extreme Risk Protection Order (ERPO)?

An Extreme Risk Protection Order (ERPO), sometimes referred to as a “red flag” law, allows family members, household members, or law enforcement officers to petition a court to temporarily remove firearms from an individual who is deemed to pose a significant risk of harm to themselves or others. In Colorado, the ERPO law is codified under Article 14.5 of Title 13 of the Colorado Revised Statutes.

When an ERPO is issued, it can result in the immediate confiscation of the respondent’s firearms by law enforcement and the suspension of their ability to purchase firearms for the duration of the order. The ERPO can be temporary or extended based on a subsequent court hearing.

How ERPOs Affect Gun Owners and Concealed Handgun Permit Holders

For gun owners and individuals who hold a concealed handgun permit (CHP) in Colorado, the issuance of an ERPO has significant implications:

1. Immediate Firearm Confiscation: Upon the issuance of a temporary ERPO or a full ERPO, the respondent must surrender all firearms in their possession to law enforcement. Failure to do so can result in criminal charges.
2. Suspension of Firearm Purchase Rights: The court clerk is required to enter the ERPO into the Colorado Bureau of Investigation (CBI) system and the National Instant Criminal Background Check System (NICS) on the same day the order is issued. This action prevents the respondent from purchasing firearms while the ERPO is in effect.
3. Revocation of Concealed Handgun Permit: One of the most direct impacts of an ERPO on a concealed handgun permit holder is the immediate revocation of their permit. According to the statute, within three court days of issuing an ERPO, the issuing court must notify the county sheriff in the respondent’s jurisdiction. If the respondent holds a CHP, the sheriff is required to revoke the permit immediately. The respondent may only reapply for a CHP once the ERPO has been lifted and is no longer in effect.
4. Statewide and Nationwide Enforcement: The ERPO is entered into both state and federal databases, making it enforceable statewide and in any jurisdiction where the respondent may be found. This ensures that law enforcement agencies are aware of the order and can take appropriate action if the respondent attempts to purchase or possess firearms.
5. Removal of Orders from Systems: If an ERPO is terminated or expires, the CBI and relevant law enforcement agencies must promptly remove the order from their systems, restoring the individual’s right to purchase and possess firearms, assuming no other disqualifications exist.
6. No Permanent Prohibition: It is important to note that an ERPO does not constitute a permanent finding that an individual is a “prohibited person” under federal law (18 U.S.C. sec. 922 (d)(4) or (g)(4)). However, while the ERPO is in effect, the respondent is prohibited from possessing firearms under state law.

The Unconstitutionality of ERPOs

While proponents of ERPOs argue that these laws are necessary to prevent potential violence, many gun owners and constitutional scholars believe that ERPOs are fundamentally flawed and violate constitutional rights. The most significant concerns revolve around due process and the Second Amendment.

1. Due Process Violations: ERPOs can be issued without the respondent being present in court to defend themselves. This lack of a hearing before the initial order is granted raises serious due process concerns. Individuals can lose their firearms, a fundamental right under the Second Amendment, based on accusations that may not be fully vetted until a later court date.
2. Second Amendment Infringement: The Second Amendment guarantees the right to keep and bear arms, and ERPOs directly challenge this right by allowing the government to confiscate firearms without a criminal conviction or even a mental health diagnosis. This preemptive approach to law enforcement, where individuals are punished based on what they might do rather than what they have done, sets a dangerous precedent.
3. Potential for Abuse: The broad criteria under which ERPOs can be requested open the door to potential abuse. Family members or law enforcement may petition for an ERPO based on personal grievances or misunderstandings, leading to the wrongful confiscation of firearms from law-abiding citizens.
4. Chilling Effect on Gun Ownership: The threat of an ERPO can create a chilling effect, discouraging gun owners from seeking help or discussing their concerns with others out of fear that their firearms might be seized.

In conclusion, while Extreme Risk Protection Orders are promoted as a tool for enhancing public safety, they raise significant constitutional issues that cannot be ignored. The lack of due process, the infringement on Second Amendment rights, and the potential for misuse make ERPOs a deeply problematic legal measure. For gun owners in Colorado, understanding the implications of these laws is essential, and there must be continued advocacy to protect constitutional rights from such overreach.