There were many good reasons to reject ‘red flag’ legislation
Author: John Cooke - May 30, 2018 - Updated: May 29, 2018
In the closing days of the 2018 session of the General Assembly, the so-called “red flag” bill was rushed through the state House of Representatives in only five days from introduction to passage. House Democrats and the progressive media were united and vocal in their support, but in the end, only two of 47 Republicans in the legislature thought HB1436 worthy of support.
Why the partisan divide? Both Republicans and Democrats see a challenging problem, but Republicans believe any solution must be consistent with constitutional standards of due process. There is no mystery behind that wall of Republican skepticism when we go beyond the proponents’ alarmist rhetoric and stop to examine the bill’s deficient language and dangerous shortcuts. HB1436 might indeed “plough new ground in public safety,” but at what price?
If passed HB1436 would see Colorado join only five other states in establishing a process for using “Extreme Risk Protection Orders” to seize guns from individuals deemed a “significant risk” to themselves or others. What aroused fervent opposition was not the bill’s goals but its inadequate safeguards for rights grounded in the United States Constitution.
The bill had numerous gaps and flaws:
- The proposed legislation would allow a person’s firearms to be taken away by a petition from a relative or law enforcement officer filed through an “ex parte” process – meaning by a telephone conversation with a judge, not a courtroom hearing.
- While the title of the bill suggests the process is to be used only in circumstances of “extreme risk” of harm to self or others, the bill’s language required only a showing of “significant” risk, and that risk need not be imminent.
- To seize a person’s firearms, the bill required only a civil procedure’s low “preponderance of evidence” standard; the higher “clear and convincing evidence” standard was needed only seven days later, when a judge could extend the “temporary” protection order to 182 days.
- The relatives and “household” members who could use this new civil procedure were not well defined and limited; they extended to potentially very distant relatives, “dating partners,” and recent roommates.
- It had totally inadequate safeguards against false or malicious claims, nor did it allow for fines or imposition of monetary damages.
- The bill did not provide for a right to court-appointed counsel, as current law allows in cases of 72-hour involuntary holds on mental health grounds.
- What can justify a protection order issued under “emergency” conditions being extended up to a full year? A long-term problem should be addressed through a very different process that affords much stronger due process protections.
Those are only a few of the dangerous gaps in the bill that arrived on the agenda of the Senate State Affairs Committee on May 7, only two days before the end of session. If the committee had amended the bill extensively and then returned it to the House on the last day of session, who really believes that an 11th hour conference committee could resolve the deep differences to produce a great piece of legislation?
Before investing more energy and angst in a rancorous debate to find agreement on the perfect “protection order,” perhaps we ought instead to investigate ways to improve existing domestic violence laws and mental health interventions. County Sheriffs testified on both sides of HB1436, but all of them cited mental health issues as the most frequent circumstance justifying the proposed emergency protection order. Yet the bill contained not a single new idea or provision for identifying or dealing with mental health issues.
Changes of such magnitude and complexity affecting both public safety and basic constitutional rights deserve more scrutiny, not less, than more routine legislation. When lives are at stake, we can and must do better.