Editorial: Red-flag law extreme overreach
For those who may not be familiar with the term, a “red flag law” permits police or family members to petition a state court to order the temporary removal of firearms from those who may present a danger to themselves or to others.
To date, 14 states have passed such laws — nine of them in the past year — and several other states, including Colorado, are debating similar legislation.
When the news hit that lawmakers in Denver were considering such a bill, the reaction in Moffat County — and indeed, across much of Northwest Colorado — was both swift and clear: We do not — and will not — support such a law.
On Tuesday, the Moffat County Board of County Commissioners joined commissioners in Fremont and Custer counties in declaring their county a “Second Amendment sanctuary county,” which would allow law enforcement officers not to comply with state gun laws commissioners and law enforcement officials deem “unconstitutional.”
On Wednesday, commissioners in Weld County passed a similar resolution.
And while we understand the stated rationalization behind the legislation, we add our collective voice to the opposition of this legislative overreach.
According to the summary of HB19-1177 — Colorado’s version of the red flag law — “The bill creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO). The petitioner must establish by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm.
“The petitioner must submit an affidavit under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist. The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed.”
Upon issuance of the ERPO, the respondent — who does not have to be informed of the filing or included in the ERPO hearing — must “surrender all of his or her firearms and his or her concealed carry permit if the respondent has one” to law enforcement or a federally licensed firearms dealer.
If the respondent refuses, he or she will be “guilty of a Class 2 misdemeanor,” under the bill’s provisions.
Finally, if a temporary ERPO is issued, the court must schedule a second hearing no later than 14 days following issuance to determine whether a “continuing ERPO,” which would remain in effect for 364 days, should be imposed. The respondent may petition for removal of the ERPO, but “the respondent has the burden of proof at a termination hearing.”
We could cite a number of reasons we oppose this bill, not the least of which is at least three Northwest Colorado sheriffs — including Moffat County Sheriff KC Hume, Routt County Sheriff Garrett Wiggins, and Garfield County Sheriff Lou Vallario — have expressed serious reservations about its prudence, constitutionality, and likely efficacy.
But at its core, we oppose it for two main reasons: It seeks to circumvent the Fourth Amendment to the U.S. Constitution, and it would upend the bedrock upon which our entire legal system is based.
The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In our view, this means U.S. citizens are constitutionally protected from being searched or having their property seized without “probable cause,” and “probable cause” is generally taken to mean a reasonable basis for believing a crime may have been committed by the citizen in question.
The last time we checked, the belief that someone might commit a crime is not a crime, and “probable cause” cannot exist until and unless a crime has been committed. For that reason alone, establishing that a person may pose a risk does nothing to justify seizing his or her property under the Fourth Amendment. In fact, it doesn’t even come close.
If we begin treating those who might commit a crime the same way we’d treat someone who probably has committed a crime, then we must treat everyone that way. After all, anyone might commit a crime.
That, alone, would be enough for this bill to earn our opposition, but there’s also the matter of due process. Our judicial system operates on the same principles as any valid logical argument: The null hypothesis must be presumed until it has been proven false. Hence, a suspect must be presumed innocent until he or she has been proven guilty beyond a reasonable doubt.
But HB19-1177 explicitly states: “The respondent has the burden of proof at a termination hearing.” This amounts to presuming a respondent — who still, by the way, has not been charged with a crime — is guilty of maybe being likely to commit a crime at some date in the future until he or she proves otherwise.
Do we really want to be presumed guilty until proven innocent, particularly when we’re not even talking about an actual crime? Do we really want to start down the road of stripping people of their guaranteed rights under the U.S. Constitution based upon nothing more than the suspicion they might do something bad?
If we do, we might as well chuck the entire document.
To be clear, both suicide and mass shootings are serious problems, and we’re all for finding solutions to those problems, as long as those solutions are rational, constitutional, and likely to bring about the desired result.
In our view, HB 10-1177 is none of those things, and in the name of the U.S. Constitution, we respectfully urge our legislators to vote it down.