Columbine. Century 16 in Aurora. Arapahoe High School. Douglas County Sheriff’s Detective Dan Brite. DCSO Deputy Zackari Parrish. During my time as a public servant, I have had the opportunity and obligation to deal directly with some of the most high-profile and tragic cases that have flowed from disturbed individuals and firearms.
I am confident that when it comes to mental illness and access to weapons in our community, the status quo is unacceptable. Colorado should do better.
Law enforcement needs a legal tool to intervene at the nexus of dangerous mental illness and weapons to prevent a member of our community from harming themselves or others.
The best approach, the one not pursued by any in our legislature, would address our broken 72-hour mental health hold law and the lack of mental health resources in our community to help those in crisis.
Instead, the tool pursued this year is Red Flag 2.0. Of the 14 versions of the Extreme Risk Protection Order (ERPO) across the country, last year’s Colorado version — the one I publicly supported with suggested amendments — was the most conservative in America.
The bill was killed by the Republican-controlled Senate over legitimate concerns of ensuring due process before infringing upon a constitutional right.
This year’s ERPO bill is significantly different from last year’s. Other than the laudable addition of an appointed (and taxpayer-funded) attorney for each subject of these orders, it is a More Extreme ERPO, or a MERPO.
MERPO proponents push the false narrative that Colorado must either pass this exact bill or surrender more innocent lives. They are wrong. The need to do something is not the same as the fervor to do anything. Our law enforcement needs a precision scalpel; the MERPO is a battle-axe. The proof is in the unnecessary and extreme provisions aimed at the person whose rights are being infringed.
A few examples highlight how MERPO is too extreme for Colorado and our constitutional values.
First, the use of the term “extreme risk” makes it sound like an emergency, but we — and the courts — are left to guess at its meaning.
“Extreme risk” is not defined in the bill. It is not even required to exist. It’s just in the title. The only requirement is a showing of a “significant risk.” That term is also undefined. That is not mere semantics. A four-egg omelet is significant. A 10-egg omelet is extreme … and likely a dietary cry for help.
A bill entitled “Significant Risk Protection Order” does not sound nearly as urgent or impactful. The term “extreme risk” should both be defined and required to exist, or it should be struck from the bill.
Second, a bill more extreme than its prior version necessitates increased scrutiny of who can seek a rights-limiting order. Unlike the warrants sought by professional, experienced, sworn law enforcement officers, the MERPO permits “family and household members” to seek infringement of someone’s rights.
It defines those members to include an ex-spouse from a decade ago, a one-night stand resulting in a child, an ex-boyfriend and others. The MERPO should be limited to law enforcement, who will welcome input from anyone, including family members and past paramours, but with the ability to scrutinize, evaluate and investigate before going to court to limit someone’s rights.
Third, this year’s MERPO doubles the time someone’s rights can be taken without a full hearing, and it doubles how long the permanent order will exist. The time limits should be shortened to reflect the gravity of the infringement of rights and the risk itself.
Fourth, the MERPO is premised upon allegations seemingly related to “extreme” mental health issues, but provides no treatment, no funding and no extra tools to address that issue.
That is why it is easy for many to view the mental health component as mere pretext for seizing firearms. This bill should include funding for immediate mental health resources to quickly address and resolve whatever “extreme” issues may exist.
Finally, the most troubling change in this year’s MERPO is the provision that shifts the legal burden to restore constitutional rights to the very person whose rights have been taken.
And they have to prove their worthiness to get their constitutional rights back by clear and convincing evidence, the highest standard in all of civil law. That is not the American way. It should not be the Colorado way.
The measure of how out-of-step this bill is with our state will be found in the final vote. We will become the first state in America to pass Red Flag legislation on a party-line vote. That also should not be the Colorado way.
A legislature thus far enthusiastically proving what they can do ought to pause to consider what they should do. These proposed changes will not diminish the bill’s life-saving potential, but they will provide far more needed due process.
Let’s eliminate the MERPO’s extreme provisions and encourage an effective bipartisan solution that Colorado wants and deserves.
George Brauchler is district attorney of the 18th Judicial District (Arapahoe, Douglas, Elbert and Lincoln counties).
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