The board overseeing law enforcement training and procedures in Colorado has released its model policy for how police departments and sheriff’s offices should use the new, controversial red flag gun law when it goes into effect Jan. 1.
The law allows a judge to order temporary seizure of guns from someone deemed a significant risk to themselves or others. But the guidance didn’t include advice on what to do when someone refuses to give up their firearms.
That was a major concern of critics of the law, who said officers will be subjected to an extra level of risk as they carry out a court order to take away people’s guns who aren’t willing to give them up.
The six-page guidance issued Dec. 1 by the Colorado Peace Officer Standards and Training Board, known as POST, deals only with how law enforcement should accept, store and return guns seized under the law.
The Colorado Attorney General’s Office, which houses the POST Board, says language in the red flag law limited the panel to forming a model policy for only those three parts of the legislation.
“It’s up to each law enforcement agency to determine how to respond to an individual who refuses to surrender a firearm,” said Lawrence Pacheco, a spokesman for Attorney General Phil Weiser. “It would likely depend on the factors of each case and available resources.”
The model policy is just a suggestion, and there’s no requirement that law enforcement agencies actually follow it. In fact, several sheriff’s offices have already come up with their own procedures for how their deputies are to use the law.
But the lack of a roadmap on the crucial — and potentially deadly — question of what to do when someone refuses to hand over their guns underscores broader law enforcement unknowns around the complicated new law.
If a police officer or sheriff’s deputy seeks a gun-seizure order — called an extreme risk protection order — they are also instructed to simultaneously obtain a search warrant. However, if a family member or someone else close to a person in distress asks a judge to compel a firearm seizure, a search warrant doesn’t necessarily accompany that order and law enforcement is still expected to serve it.
One sheriff told The Colorado Sun he doesn’t think he can “force the issue” if someone turns his deputies away when they are serving an ERPO without a search warrant. Another said he plans to report back to a judge if a person refuses to comply with an ERPO and there is no search warrant issued.
If a person in distress is left with their firearms and knows a judge is ordering them to turn the weapons in, the fear is that an already tenuous situation could be escalated.
Douglas County Sheriff Tony Spurlock, one of the law’s main proponents, said his office’s policy requires deputies to obtain a search warrant if an ERPO is issued stemming from a seizure request not made by law enforcement. He acknowledged that it was difficult to find the right approach and to decipher what was allowed under the law, but he said it is possible for police agencies to figure it out if they put their minds to it.
“I would say it’s very complicated,” Spurlock said. “It requires you to jump through a bunch of hoops.”
Spurlock sits on the POST board and said he plans to bring up the question about whether more guidance is needed when the panel next meets, on Friday.
The red flag law also created a new Class 2 misdemeanor offense for those who refuse to turn in their weapons when served with an ERPO, meaning they could be arrested if they don’t comply. First, however, law enforcement would have to be able to prove they actually have firearms.
People who refuse to follow a seizure order could also be arrested for being in contempt of court, though a judge would have to make that finding at a hearing sometime after a person has refused to hand over their weapons.
House Majority Leader Alec Garnett, a Denver Democrat who was one of the prime sponsors of the red flag legislation as it passed through the Colorado General Assembly in 2019, said the assumption was that the POST board would “write some detailed instructions for law enforcement agencies,” including how to handle people who refuse to follow an ERPO order.
“The legislative process tried to preemptively think through what a lot of those questions were going to be,” he said. “In the end, it’s not that the process doesn’t exist.”
The law was billed as a way to reduce suicides and potentially prevent mass violence. It was named after Douglas County Sheriff’s Deputy Zackari Parrish, who was shot dead while trying to take a mentally distressed man into custody on a 72-hour mental health hold.
Opponents say the law infringes on the Second Amendment and that there aren’t enough due process protections written into the policy.
Here’s how the law generally works: Law enforcement and family members can petition a judge to order the removal of someone’s firearms. If the order is granted, the judge must rule within 14 days whether to extend the seizure period and prevent the person from purchasing more guns for up to 364 days. The judge is mandated to use a clear and convincing evidence legal standard as the burden of proof in weighing whether a person is a significant risk to themselves or others when deciding whether to extend the ERPO.
The process is a civil one, not criminal, and a person can ask a judge who orders a firearm seizure to reconsider, though the burden of proof then shifts to the person whose guns were taken away to prove that they should get them back.
Jefferson County Sheriff Jeff Shrader says his agency’s policy instructs deputies, when they don’t have a search warrant but an ERPO is issued, to report back to the judge who issued the order on what happened.
“There’s no order to seize,” he said. “The order is for the person to surrender their firearms and then for the law enforcement agency who is serving that order to report what happens to the court.”
Shrader says his deputies will only pursue an ERPO on their own if a crime has been committed or if authorities are trying to take the person into custody on a 72-hour mental health hold. His policy also instructs his deputies to research the person they are serving an ERPO to in order to prevent a bad outcome.
“I anticipate that when these things come up, they are going to be volatile situations,” he said. “We want to be as well informed as we can on the front end.”
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Fremont County Sheriff Allen Cooper, who opposed the law, said Monday that while he hadn’t gone over the POST guidance, he questions whether law enforcement could even act if someone refused to comply with an order to surrender their guns.
“This is a civil protection order, not a criminal protection order,” he said. “If somebody refuses, my understanding of the civil process is that I can’t force the issue. This is one of those issues where, unfortunately, I think we’re going to have to have a court case to have a lot of these questions answered.”
The areas that the model policy does address are clear. It says law enforcement should give people ordered by a judge to turn over their guns the option to either have them stored by a police department or sheriff’s office, or to have them kept with or sold by a federal firearms dealer.
Antique or relic guns may be given to a relative if that relative has passed a background check and is not living with the person whose guns are being seized.
The policy says ammunition and gun magazines are not to be taken.
Meanwhile, the state’s judicial system has begun soliciting applications for lawyers to serve as court-appointed counsel for people whose guns are seized. The red flag law included a stipulation that anyone who is subjected to a gun seizure will be represented by an attorney, whether or not they can afford one. It’s a new concept, similar to the criminal public defender system but specific to the civil ERPO cases.
Jon Sarche, a spokesman for the Colorado Judicial Department, said judicial districts across the state have been receiving applications, but he did not not know how many.
The Judicial Department still is finalizing development of forms related to the new law and is working with court clerks to make sure they know all the processes and procedures involved.
“As for guidance to the courts, however, the Judicial Department does not set policy on how judges interpret any particular law,” Sarche said.
Shrader said those unresolved details are prompting more questions about the law’s implementation. “Nobody has seen, at this point, state judicial’s process on how things work,” he said.
Finally, it’s still very unclear how many times the law might be used each year. State fiscal analysts estimated there will be about 170 extreme risk protection orders sought annually, with 95% of them granted.
It’s also unknown what will happen if the Colorado sheriffs who have vowed not to carry out seizure orders keep their word, potentially setting off a legal standoff. There’s no requirement that they use the tool, but they could be compelled to serve an ERPO if a family member seeks one and a judge grants that request.