hb19-1177 Archives - Rally for our Rights

Red Flag ERPO Critic and CO Sheriff Gets ERPO’d AGAIN By Jail Inmate

Posted on April 16, 2020April 16, 2020 by Lesley Hollywood

On Februrary 25,2020 one of Colorado’s most outspoken critics of Colorado’s Red Flag ERPO law, Weld County Sheriff Steve Reams, was red flagged using the state’s Extreme Risk Protection Order (ERPO) law – and it was an inmate who has been incarcerated in his jail since 2016 on serious drug trafficking charges who filed it – from jail.

That story was nuts.

And now it’s happened again, less than two months later. Same inmate, new ERPO – from jail!

According to a post on Reams’ Facebook page, on April 15, 2020 an Extreme Risk Protection Order petition was filed by inmate Leo Crespin against Sheriff Steve Reams, which is public record. The inmate claims he falls under the law’s extremely broad definition of ‘household or family member’ by marking the box “I regularly reside or have resided with the respondent in the last 6 months”, citing that he lives in Reams’ jail.

In the body of the petition the inmate states that Sheriff Reams arms his S.O.G. officers with 12 gauge shotguns. The Weld County jail S.O.G. (Special Operations Group) is responsible for maintaining order in situations involving enhanced security risk. The “shotguns” they carry are actually devices that fire less-than-lethal projectiles and are only carried by the specialized team of officers.

The petition was immediately dismissed by district court Judge Vicente Vigil.

You can read the petition and the ruling in the images below, but it is along the same lines as the February ERPO that was filed. Read all about that here.

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CO Sheriff And Red Flag ERPO Critic Steve Reams Gets ERPO’d By Jail Inmate

Posted on February 28, 2020February 28, 2020 by Lesley Hollywood

One of Colorado’s most outspoken critics of Colorado’s Red Flag ERPO law, Weld County Sheriff Steve Reams, has been red flagged using the new Extreme Risk Protection Order (ERPO) law – and it was an inmate who has been incarcerated in his jail since 2016 on serious drug trafficking charges who filed it – from jail.

On February 25, 2020 the inmate filed the petition. On the petition, which is public record, the inmate claims he falls under the law’s extremely broad definition of ‘household or family member’ by marking the box “I regularly reside or have resided with the respondent in the last 6 months”. I suppose there may be some validity to this, as he is housed in Sheriff Reams’ jail.

In the body of the petition the inmate states that “Sheriff Steve Reams is the rudder of the ship, and that ship being the S.O.G. who carry shotguns inside the jail”. According to the inmate, these deputies carry these “deadly weapons 24 hours a day intimidating and threatening people for the most minor things, such as get on your bed.” You can read the entire petition below.

The Weld County jail S.O.G. (Special Operations Group) is responsible for maintaining order in situations involving enhanced security risk. The “shotguns” they carry are actually devices that fire less-than-lethal projectiles and are only carried by the specialized team of officers.

The petition was dismissed as soon as it landed on the desk of Judge James F. Hartmann, without allowing a temporary hearing where the petitioner would be present but the respondent would not be, and the case decided based on a preponderance of evidence. The judge wrote an in depth statement as part of his dismissal order which in conclusion stated that the petitioner failed to provide any facts that either Sheriff Reams or his deputies were a “significant risk of causing personal injury to themselves or others in the immediate future” as is required by the law, and that the allegations made were not against any specific individual or Sheriff Reams himself, but instead were an attempt to prevent peace officers from carrying firearms within the jail. The judge refused to address the threshold question of whether or not his residency inside the jail made him a qualifying petitioner.

In a radio interview with Peter Boyles of 710 KNUS today, Sheriff Reams said he found out about the petition when the dismissal order was emailed to him while he was out of town. This is because according to the law the person being Red Flagged, the respondent, is not informed of the proceeding until AFTER the first hearing has taken place.

This is the second ERPO filed against a member of law enforcement since the Colorado law took effect January 1, 2020. The first was filed on January 9, 2020 by Fort Collins resident, Susan Holmes, against a Colorado State University Police Officer who fatally shot her son in 2017. Her son was carrying an 11 1/2″ bayonet hunting knife and had lunged at the officer before he was killed. After a circus of a hearing, Holmes was charged with perjury for marking the box on her petition stating she was a ‘household or family member’ because her and the officer had a child in common. It is far less clear if perjury charges in this new case filed against Reams would stick, as “residency” is not really defined within the scope of the law.

Weld County is one of Colorado’s ten largest counties with a large land mass and diverse demographic.

I myself hold law enforcement to high standards when it comes to excessive force, therefore I feel it should be noted Weld is one of only a few counties where the DA refuses to sign off on no-knock raids, and Sheriff Reams has a record of taking swift action in cases of excessive force. In November 2019, two Weld County deputies were fired and one resigned after video surfaced of them using excessive force during an interrogation when the suspect refused to cooperate. Two of them had been with the sheriff’s office for 15 years. One of the deputies was charged with third degree assault.

Sheriff Reams has been sounding the alarm for over a year now on how Colorado’s poorly written Red Flag law can easily be abused and now he has lived it first hand. He made international news when he told CNN he’d rather sit in his own jail in contempt than enforce an unconstitutional and dangerous Red Flag order. Reams has been a great ally to us here at Rally for our Rights, even joining us on stage to speak against the Red Flag ERPO law at rallies as well as teaching seminars on the dangers of the law to gun owners and other concerned citizens. He also helped lead the Second Amendment Sanctuary movement here in Colorado, of which more than half the state’s counties joined.

A burning question of mine that I’ve brought up many times: Why are these free to file? Even a small filing fee would deter the most frivolous of cases. Nothing else in the court system is free to file and even a Temporary Restraining Order is $97.

Proponents of Red Flag laws will undoubtedly point to this case as “working as it intended” since no one had their guns seized or their rights violated. I would argue against that in several ways. First, what an absolute waste of court time and taxpayer resources. Second, how scary is it that these petitions are THIS easy to file? And third, just as we saw in the Susan Holmes case, we’re again seeing how high profile individuals are naturally awarded protection from the abuses of the law. If this had been an average citizen, unknown to the judge, and someone they had let crash on their couch for a couple weeks, we’d have a completely different story to tell. And honestly, that is playing out in Colorado already. This case is the eighteenth ERPO filed in less than two months and a repeal bill has been introduced into the Colorado State Legislature. That bill will get it’s first hearing on March 12, 2020.

To learn more about Colorado’s Red Flag Law, obtain attorney resources, and/or report if you’re Red Flagged, visit www.redflagresourcecenter.com.

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Bill Introduced To Repeal Colorado’s Red Flag ERPO Law

Posted on February 5, 2020February 5, 2020 by Lesley Hollywood

Colorado’s Red Flag ERPO law has only been in effect since the first of the year and a bill has already hit the state legislature to repeal it. Introduced by Rep Lori Saine, Senator John Cooke and Senator Jim Smallwood, HB20-1271 Repeal Red Flag And Amend 72-hour Hold would effectively repeal the Extreme Risk Protection Order law while simultaneously changing the standard for a 72 hour involuntary hold. It has been assigned to the House Judiciary Committee. No hearing is scheduled yet but because every bill gets a public hearing in Colorado, sparks will surely fly when it does.

The changes to the 72 hour hold would replace the term “imminent” with “extreme risk” which is defined as “a credible and exigent threat of danger to themselves or others through actionable threats of violence or death as a result of current mental health state”. This would give officers more leeway in who they can place in a hold and would remove the person from the crisis, rather than leave a person in crisis while removing one tool harm could be done with.

With the hyper-partisan make up of the state legislature, it is highly unlikely the bill will make it out of committee. That said, it will give activists a megaphone to bring the Red Flag ERPO abuses we’ve already seen front and center.

The highly controversial Red Flag ERPO bill, HB19-1177 “Red Flag” Extreme Risk Protection Orders, passed through the Colorado legislature last year by one single vote and was then signed by Governor Jared Polis. It had bi-partisan opposition. Every Republican and three Democrats voted against it.

Colorado’s ERPO law has been used eight times since it became law.

Three were in Denver…

The first ERPO was filed by a police officer requesting to keep guns that had been voluntarily handed over during a domestic dispute call where the respondent made suicidal statements. The respondent voluntarily agreed to the ERPO before a permanent hearing. We detailed that case here and detailed how an ERPO wasn’t even needed.

Another hit Denver soon after. In this case, the Temporary ERPO was filed by the ex-father in law of the respondent. Ex-father in law claimed respondent had made non-specific threats. Temporary ERPO was granted and a permanent hearing was scheduled for Jan 23, 2020. Respondent did not initially voluntarily surrender his firearms or file the necessary affidavit stating he had personally relinquished them according to what is required by law; this prompted further action from the court at which time the firearms and CCW permit were seized. Respondent is also going through a nasty custody battle which according to him is being financed by the ex-father in law. The case documents include pages and pages of angry, but non-threatening text messages between ex-father in law, respondent, and ex-wife. On Jan 23, the hearing was vacated for two reasons: 1) ex-father in law is not a qualified person to file petition; 2) witnesses were out of town.

The next day another ERPO was filed against the same man by the ex-wife, who is qualified person to file under the law. That permanent case will be heard Feb 5, 2020.

In Larimer County three have now been filed…

The first was filed by the Larimer County Sheriff’s Office on an inmate. He was being held on two felony charges: Inciting Destruction of Life or Property and Retaliation Against a Witness or Victim. The petition stated that the inmate did not own any guns, but while in jail he had told cell mates that when he gets out he “wants to kill 50 people”. The ERPO was initiated in an effort to make him a prohibited buyer if he successfully bonded out. We had lots of questions about this, as if he was released on bond, being a prohibited person is a condition of that bond. After some back and forth with law enforcement and the CBI, it sounds like “it’s too much work” to get him into the CBI database via the bond route, therefore an ERPO was an easy band-aid to that broken piece of law. At the permanent hearing, an attorney for the inmate respondent argued for more time as she believed he may already be adjudicated mentally defective and a prohibited buyer. The permanent hearing was rescheduled for March 5, 2020.

The second Larimer case was filed by 64 year old Susan Holmes against CSU Police Officer Phillip Morris. Morris had shot and killed Holmes’ mentally unstable, knife wielding son in 2017. Body cam footage clearly shows the shooting as justified, and the DA agreed. On her petition, which she discussed in a YouTube video, Holmes stated that her and Morris had a child in common, a fact that made her a person qualified to file. They do not have a child in common. Holmes discovered a loophole in the ERPO law that allowed her to bypass the Temporary ERPO hearing which would have likely denied her at the door, and instead move right into a full permanent orders hearing. That hearing was a circus and the Permanent ERPO was denied in the end. The Larimer county DA then put out an arrest warrant for Holmes based on two charges: Perjury and Attempting to Influence a Public Servant. After nearly two weeks on the run, Holmes was arrested.

And the third Larimer case was denied at the Temporary ERPO hearing, but it’s so absurd it’s worth pointing out. This was our first case of legitimate family members: sister and brother. The petitioner is the sister who is apparently allowing her brother to live with her temporarily. The brother got very upset when someone moved his soap, and allegedly screamed at his sister and their father. Sister felt physically threatened and claimed she had seen a gun in the past but wasn’t sure where it is now or if he still had it. No other information besides the soap incident was provided. The petition was denied. Case closed.

Douglas County tried to do one too…

Douglas County Sheriff’s Office filed a temporary ERPO on an inmate in their jail. The inmate was homeless and owned no guns, but had made suicidal statements while detained. Similar to the thinking of Larimer ERPOing their inmate, this would have made him a prohibited buyer and unable to legally purchase a firearm when released. At the Temporary ERPO hearing it was discovered he was already a prohibited buyer because he’d been Adjudicated Mentally Defective in the past. ERPO denied, case closed.

And one in Lincoln County…

Another was filed in Lincoln County by a woman who claimed a man “whom she’d had relationship with” had made physical and verbal threats to her with a handgun. She also claimed he used alcohol and marijuana. The judge denied the temporary petition but his reasoning was not made public.

To learn more about Colorado’s Red Flag Law, obtain attorney resources, and/or report if you’re Red Flagged, visit www.redflagresourcecenter.com.

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Hearing Recap: Red Flag ERPO Denied Against Colorado Police Officer Who Shot Petitioner’s Son

Posted on January 16, 2020January 16, 2020 by Lesley Hollywood

Today I attended the Red Flag ERPO hearing of CSU Police Officer Phillip Morris. Susan Holmes is the woman who filed the petition requesting that Morris’ firearm rights be suspended and any firearms he owns be confiscated. Holmes claimed her and Morris have a child in common which would qualify her to file against him. They do not have a child in common based on what you’d think “child in common” means, but turns out there is no legal definition of that term and it can be argued many ways.

In 2017 Morris shot and killed Holmes’ 19 year old knife wielding son (11 1/2″ bayonet hunting knife). The shooting was deemed justified, and I have watched the bodycam footage and I do agree with that assessment.

Susan Holmes discovered a loophole in Colorado’s Red Flag ERPO law that allowed her to bypass the initial Temporary ERPO hearing. The way it’s supposed to work is a Temp hearing would be scheduled within 24 hours of her filing, where the judge would determine based on a preponderance of evidence if the facts on the petition were true or not, and he would either approve or deny the Temp ERPO order. Had Susan Holmes gone through this Temp hearing the case would have more than likely been denied based on her claim they had a child in common (but who knows). Turns out it doesn’t matter. This law is so poorly written, if you think you will be denied at the Temp hearing because, say…you lied, you can just bypass it and go right to a full hearing forcing the person being ERPO’d to fight back or risk losing their firearm rights. It doesn’t matter how frivolous any of it is.

The Attorney General’s office sent two of their attorneys to represent Officer Morris, dismissing the attorney who had been appointed to him. I wonder if the AG would do the same for me if I was fraudulently ERPO’d? I won’t hold my breath.

Susan Holmes did not have any legal council with her at the hearing.

Larimer County Sheriff Justin Smith refused to serve the petition on Officer Morris calling it a fraud. It was a fraud, but would he also not serve me if I claimed an ERPO on me was a fraud?

The hearing began by the AG’s attorneys who were representing Officer Morris waiving service since the sheriff was refusing to serve Morris. This allowed the hearing to proceed.

Susan Holmes had filed a motion asking the judge to recuse himself based on his history of overseeing cases she was involved in. I’m still not clear what those cases were. The judge denied the motion.

Susan Holmes then stated “I do not recognize you as a judge or your ruling” and she accused him of judicial misconduct. Judge told her she could appeal his decision and/or file a formal misconduct complaint with the court.

Judge was actually really patient with her and thorough in everything he did. Kudos to him because even though this fraud makes a mockery of the court system, this is what happens when the legislature passes laws against the wishes of law enforcement who deal with the courts. You end up with laws that turn the court into a circus, and it’s the judges job to see that through no matter what, and this judge was going to do just that.

Holmes was then given the opportunity to present evidence and call witnesses to make her case for the removal of Morris’s firearm rights and the confiscation of his guns. She refused based on the fact she wouldn’t recognize the judge.

Judge turned to Morris’ attorneys from the AG’s office and invited them to present evidence and call witnesses. They began by stating this should have first gone through a Temporary ERPO hearing. Judge stopped them and said no, because that wasn’t the way the petition was filed. This is a permanent hearing. They then begin to argue that there is no standing for Holmes to file the petition because they do not have a “child in common” (although attorney was stumbling over the definition because there really isn’t one). A sworn affidavit from Morris was filed stating he does not have a child with this woman.

Holmes was given the opportunity to respond and make her case for what she believes “child in common” means. Judge asked: “Do you want to address if you have a child in common?” Holmes: “I don’t recognize you as a judge.”

The judge regularly had to read right from the ERPO law to try to make sense of what he was supposed to do.

Judge ruled he cannot find by clear and convincing evidence that they do have a child in common, mainly because Holmes won’t present evidence, so the ERPO was being denied based on her not having standing to file. Holmes can appeal and get a different judge. Holmes last statement was that she was appalled that the AG had stepped in. I was a little bit too. The AG called people like me who said this law could be abused “paranoid” and didn’t care if we were collateral damage.

Holmes started demanding an amendment be added to the ERPO that allows citizens to directly ERPO law enforcement.

I told media this makes it obvious how easily ERPOs can be used maliciously, and if these were average citizens and not a police officer in a high profile case, would the sheriff refuse to serve the petition and would the AG come to the defense? Absolutely not. We’d be on our own – defenseless.

Colorado’s Red Flag ERPO law had been in effect for 9 days when Holmes filed, and this is the 5th ERPO in the state. This is going to be a bumpy ride.

To learn more about Colorado’s Red Flag Law, obtain attorney resources, and/or report if you’re Red Flagged, visit www.redflagresourcecenter.com.

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What We Know About Colorado’s First Red Flag ERPO Case

Posted on January 3, 2020January 3, 2020 by Lesley Hollywood

Colorado’s Red Flag Extreme Risk Protection Orders ERPO law just went into effect on January 1, 2020. Today the news broke to the public that the first case had been successfully filed and granted. Sadly, it’s not unlikely the person being ERPO’d also heard about the ERPO against them for the first time on the local news along with the public. That is because the person being accused is not awarded the opportunity to defend themselves at the first hearing, nor are they even aware of it.

Here’s what we know about this unique first case:

Police made contact with a 26 year old man at a SW Denver gas station on December 29. 2019. PD allege he had a cut over his eye, and during a pat down search they discovered he had a loaded 9mm Glock in his waistband.
The man said the cut was from falling down and the gun was because he wanted to “off himself” after an argument with his wife and her sister. PD also allege he was visibly intoxicated.
The man later told PD that the cut was actually from his wife, who had hit him in the face with a bottle.
PD took the man in on a mental health hold due to his suicidal statement.
The firearm was seized and logged into Denver Police Property.
When PD spoke with the wife, she was also visibly intoxicated and admitted to throwing the bottle at her husband. She was booked on 2nd degree assault charges. Her story later changed and she claimed her husband has perpetrated the abuse and that he had pointed his gun at her while making threats.
At the request of PD, the man voluntarily surrendered another firearm while the domestic violence investigation took place. That firearm was a .45 caliber Springfield.
It is also alleged the man told police it was a “good thing they stopped him because he was contemplating doing something bad”.
On January 2, 2020, the Denver District Attorney’s Office declined formal charges on both parties in regards to the domestic violence allegations.

This is where the ERPO comes in:

Because no domestic violence charges were filed, the firearms needed to be returned to the owner. Instead of returning the firearms, the police officer chose to request to continue to hold them through an Extreme Risk Protection Order ERPO citing that the individual may still be suicidal.

So, now we have a potentially suicidal individual, who may or may not also be a victim of domestic violence (or perpetrator), and the police feel they have “done something” by withholding firearms –while leaving the person in crisis with many other tools. Possibly two people in crisis.

Considering this man voluntarily gave up his guns prior to the ERPO and allegedly told the police officer that he was worried he would have harmed himself if he had not, a private solution would be a great option. Imagine if this police officer visited suicide prevention organization Hold My Guns (www.holdmyguns.org) and helped arrange a FFL who would store his firearms until he felt he was in a better place. No courts, no judges, no rights being infringed – just help and compassion.

What will happen now?

On January 16, 2020 the man will go to court where he will have an opportunity to defend himself and request his firearms be returned. The police officer who filed the ERPO petition will also be there to present his case, or he could submit sworn affidavits if unable to attend in person. At that hearing, the judge will make a decision whether or not the accusations are true. This decision will be based on clear and convincing evidence, whereas at the first hearing the decision was based on a preponderance of evidence (meaning one side had more convincing evidence, even though only one side was present).

The man who has been ERPO’d can either retain a private attorney, represent himself, or request the court appoint one. Because this is a civil, not criminal, proceeding, public defenders are not used, but instead attorneys who have volunteered to work these cases for state pay will be called upon.

At the January 16 hearing, the order will either be dismissed or made permanent. If made permanent it will go into effect for 364 days. The person who has been ERPO’d will have one opportunity to ask the courts to lift it during that time. If he was to make that request, the police officer would be alerted and could ask it remain in place. At the end of the 364 days the police officer will also be alerted that it is going to expire and could request the ERPO be renewed for another year.

To learn more about Colorado’s Red Flag law, get attorney resources, and more visit www.redflagresourcecenter.com.

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Red Flag Law Now In Effect In Colorado, Here’s What You Need To Know

Posted on January 2, 2020 by Lesley Hollywood

On January 1, 2020 Colorado’s Red Flag Extreme Risk Protection Orders ERPO law officially went into effect. This means Red Flag ERPO petitions will start making their way into the courts and orders will be coming out, landing in the hands of law enforcement who will then be responsible for serving them and confiscating firearms – or not.

There is a lot to learn about this downright dangerous and unconstitutional law. The Red Flag Resource Center will be your absolute best resource. Bookmark this site. Share it with your friends and family. This effort is a collaboration between Rally for our Rights, civil rights activists, and legal experts. It has all the information you could need about the law, what to do if you’re Red Flagged, along with attorney resources. They will also be tracking ERPO’s and providing transparency to the public.

Here’s what you need to know if you are Red Flagged:

These are civil cases, not criminal. You have not been charged with a crime. The first court hearing has already taken place without you. This hearing included the petitioner and a judge. If you are receiving the ERPO order, the judge granted it based on the accusations provided by the petitioner.
Law enforcement will come to your home or place of employment to serve the order.
The law enforcement agency who will serve the order and seize the firearms will be your local municipal agency if you reside inside city limits, or your sheriffs office if in unincorporated county.
They will have a TEMPORARY Red Flag ERPO order. This order will have a future court date where the ERPO will either be made permanent or will be dismissed. This court date must be within 14 days of the initial hearing, but it can be less.
They may or may not have a search warrant.
Law enforcement may assess you for a mental health hold.
They may or may not request to take your firearms and/or CCW permit.
If they do not have a search warrant, and do not request to take your firearms, they will provide instructions as to how you can surrender them yourself. Law enforcement agencies are supposed to provide storage but many have said they will not store firearms and/or do not have the space to store firearms.
If you do not surrender your firearms, it is a Class 2 misdemeanor.
When the temporary order is granted, you are put into the NICS and CBI databases as a prohibited buyer.

Since the introduction of this bill in the state legislature, there has been debate about who can actually file a petition. The proponents have said it has to be a family member or law enforcement. We have long stood by our words that the definition of “family member” in the bill language is broad enough to include spouses and ex-spouses, former and current roommates, anyone you’ve dated, grandparents and grandchildren, and so on. When the court finalized the petition and put it on the Colorado Judicial website, everything we’ve said this whole time was vindicated. The images below are of the actual petition. This is all that needs filed. There is no filing fee. You can find all the court forms related to ERPO’s here.

If you or someone you know is Red Flagged, the Red Flag Resource Center wants to know.

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If you or someone you know is Red Flagged, the Red Flag Resource Center wants to know.

Here’s How Colorado Red Flag Orders Will Go Down According To Newly Released Best Practices

Posted on December 4, 2019December 4, 2019 by Lesley Hollywood

Colorado’s “Red Flag” ERPO law will go into effect January 1, 2020. Leading up to this, the Colorado Attorney General’s office is responsible for developing law enforcement “best practices” via their POST (Peace Officer Standards and Training) Board. Those were just released this week and we’ve included the full text below. It should be noted that Colorado Attorney General Phil Weiser admitted during the debate of this legislation that there will be false claims, lack of due process, and collateral damage.

It’s important to note if the person being Red Flagged lives within city limits, it is the responsibility of the CITY police department to do this. If the person is in unincorporated county, it is the responsibility of the COUNTY Sheriff’s Office. This mean 246 different agencies across Colorado will have to figure out how to abide by these guidelines as well as find firearm storage space for confiscated weapons.

There is a very glaring piece missing from these best practices: what to do if someone refuses to comply. Some agencies, such as the Weld County Sheriff’s office and the El Paso County Sheriff’s office have already stated they will not take surrendered firearms or provide storage for them, but they will deliver the order so the person being accused can have the due process they deserve – and they wouldn’t have otherwise since the accused doesn’t know they have been Red Flagged until law enforcement is at their door.

Other agencies such as Douglas County Sheriff’s office have stated they will make sure every Red Flag ERPO order is accompanied with a search warrant, no matter who the petitioner is. Sounds like he’s ready for some legalized SWATTING in the name of his deputy who was killed doing the exact same thing he will soon be asking the rest of his deputies to do on potentially innocent people.

If you’re not familiar with how this law works, click here to read up on it. It’s downright frightening.

ERPO Model Policy: Acceptance, Storage, and Return of Firearms
CRS 13-14.5-101
Deputy Zackari Parrish III Violence Protection Act

Download the PDF here: ERPO Weapon Seizure Policy

I. Purpose:

To provide direction and guidelines for the proper handling and storage of firearms that are surrendered, or seized as a result of an Extreme Risk Protection Order. This policy will also deal with the proper procedure to follow for the return, or disposal of firearms after resolution of the ERPO has been achieved.

II. Scope:

This policy is available for use to all law enforcement agencies in The State of Colorado.

III. Policy:

Colorado Courts may order, pursuant to CRS 13-405.5-101, the surrender, or seizure of firearms. Officers will comply with all applicable Colorado Revised Statutes in regards to the acceptance, storage, and return of all firearms.

IV. Definitions:

A. Respondent- the person who is the subject of the Extreme Risk Protection Order.

B. Extreme Risk Protection Order- Known in this document also as an ERPO. Either a temporary, or continuing order granted pursuant to CRS 13-14.5-101.

C. Firearm- Any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable of discharging bullets, cartridges, or other explosive charges.

D. Antique firearm/Relic- any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898.

E. Federal Firearms Dealer- A Federal Firearms Dealer is a person licensed in the United States, that enables an individual or company engaged in a business pertaining to the manufacture or importation of firearms and ammunition, or the interstate and intrastate sale of firearms.

V. Acceptance of a Firearm:

There are two methods by which you will be in the position to accept weapons based on the issuance of the temporary ERPO. They are by voluntary surrender by the respondent, as directed in the language of the temporary ERPO, or seizure by you, or your agency, during a lawful search pursuant search warrant, plain view search, or consent.

A. Voluntary Firearm surrender – According to orders set by the court in the temporary ERPO, the respondent has 24 hours to surrender all firearm(s) listed in the court order, or in their control or possession. The order will require surrender of the firearm(s) to law enforcement, or a federal firearms dealer for transfer, storage, or sale. They may also be transferred to a family member, if firearm is classified as an antique, or relic.

If the firearms are surrendered to law enforcement, you will give the option to the respondent of where they want the firearm(s) to go. The options allow for a transfer to a federal firearms dealer for storage or sale, or storage with law enforcement. Be advised, this law does not require a federal firearms dealer to accept the firearm, they have the option to refuse. If the respondent indicates no preference, officers will take custody of the firearm for storage at a secure law enforcement facility. If applicable, and set forth in the temporary order, you will also take custody the respondent’s concealed carry permit. You will be required to issue a property receipt accounting for every firearm surrendered to you, and the concealed carry permit, if applicable. You will issue a copy of the inventory of items seized to the respondent prior to termination of the contact. Additionally, you must ensure the original copy of the receipt is filed with the courts, and a copy is retained with your original report. The original receipt for the firearm(s) that have been surrendered must be submitted to the court within 72 hours.

If the firearm in question is an antique, or relic, you may give that firearm to a relative if: the relative does not live with the respondent, and you have verified through a criminal records check, CBI InstaCheck, that the relative is legally allowed to be in possession of a firearm. You must still complete a property receipt for the transfer from storing the firearm until relinquished to the relative. The relative retains a copy of the receipt, the original goes to the court within 72 hours, and a copy submitted with your report.

Once the firearm is in your possession, and proper documentation has been completed, the weapon will be secured, packaged, and stored in accordance with your agency’s existing policies regarding firearm storage, and in accordance with section IV of this policy. The ammunition and any magazines associated with the surrendered firearm(s) will not be taken.

B. Firearm Seizure – If you as the law enforcement officer are the petitioner, and a temporary ERPO is issued, the process begins with
the issuance of the order. Along with the search warrant obtained at the ERPO hearing, you serve the order to the respondent.

After the respondent has been properly served with the ERPO, you shall take custody of the respondent’s firearm(s) pursuant to the previously obtained search warrant, or other lawful search (plain view).

If applicable, and named in the warrant, you will also seize the respondent’s concealed carry permit.

Similar to the voluntary surrender, once you have seized all of the firearms in question, either seized through a lawful search, or in plain view, the respondent will have the option of the disposition of their firearms. They may choose transfer to a federal firearms dealer, or police custody. If they offer no preference the firearms will remain in police custody.

Also, just as with the voluntary surrender of firearm(s), upon completion of your search, a receipt shall be issued to the respondent articulating all items seized. The original will be filed with the court, and a copy filed with your original report. The original to court needs to be submitted within 72 hours.

If after the firearms are in the possession of your agency, another party claims verifiable title to the firearms, the firearms will be released to him or her. You must also confirm that party is eligible to be in possession of firearm(s), via a CBI InstaCheck. This transaction must also be documented, and notification made to the court.

As with the surrendering of weapons, when you are seizing the weapons by order or warrant, you will not seize any ammunition or magazines associated with the firearm(s).

VI. Storage of Firearms

Once the firearms are in the control and care of your agency, they will be stored, and maintained in a substantially similar condition that the firearm was in when it was surrendered. If the respondent makes no choice of the firearm’s disposition, your agency will store the firearm in a similar manner as if surrendered. You will follow your agency’s policy for safe and secure storage of a firearm i.e. unloaded, open action or cylinder secured by lock, or strap. If the respondent opts for the storage of the weapon(s) with a registered Federal Firearms Dealer, your agency will contact a dealer requesting storage on the respondent’s behalf, and assist to facilitate the transfer.

VII. Return of Firearms

If the ERPO or temporary ERPO is terminated, or expires without renewal, your agency, or agency in possession of the respondent’s firearm(s), have no more than three days to return the firearm(s) in your possession to the respondent. The three day window for the return of the firearm(s) will begin upon the completion of an InstaCheck by the Colorado Bureau of Investigation. Your agency will be notified of the termination of the order by the court. You will then, via a CCIC notification, request the InstaCheck be completed by Colorado Bureau of Investigation. CBI in turn will notify you, again via CCIC, of the status of the respondent.

If the firearm(s) are in the care and custody of a Federal Firearms Dealer, they too have the same window of three days to return the firearm(s) to the respondent. The three day window for the return of the firearm(s) will begin upon the completion of a an InstaCheck by the Colorado Bureau of Investigation.

If the firearm(s) was/were classified as an antique or relic, and transferred to the care and control of a relative, they are also required to return care and custody of the firearm(s) in no more than three days to the respondent. The three day window for the return of the firearm(s) will begin upon the completion of the InstaCheck by the Colorado Bureau of Investigation.

If applicable, the respondent’s concealed carry permit will be returned at the same time as the firearm(s).

Any firearm(s) surrendered by the respondent, or taken into custody by a lawful order, that remains unclaimed by the respondent, or lawful owner for at least one year from the date the temporary ERPO, or ERPO expired, whichever is later, becomes property of your agency. The firearm(s) will then be disposed of in accordance with your agency’s policy and procedure for disposal of firearms in police custody.

Full documentation of the disposition of the firearm(s) needs to be submitted to the respondent, to the courts, and in your case disposition report.

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Understanding Colorado’s “Red Flag” Extreme Risk Protection Order ERPO Law

Posted on September 27, 2019 by Lesley Hollywood

Background

HB19-1177 Extreme Risk Protection Orders ERPO was introduced into the Colorado State Legislature on Feb 14, 2019. It was sponsored by Rep Tom Sullivan and Rep Alec Garnett in the state house. It passed the house on March 4, 2019 with every Republican and two Democrats voting against it. It was sponsored by Sen Lois Court and Sen Brittany Pettersen in the state senate, where it passed on March 28, 2019 with every Republican and one Democrat voting against it. This legislation had bi-partisan OPPOSITION. It was signed by Governor Jared Polis on April 12, 2019. It will become law on January 1, 2020.

Red Flag laws, also known as Extreme Risk Protection Orders or Gun Violence Restraining Orders, have been around since 1999, when Connecticut adopted theirs. This was followed by Indiana in 2005, California in 2014, Washington in 2016, and Oregon in 2017. In 2018 nine other states passed Red Flag ERPO laws, and in 2019 three states passed them, including Colorado.

What the public is being told about Colorado’s law

A family member or law enforcement officer would petition a court to request the ability to immediately seize a person’s guns. If a judge signs the order, the weapons can be taken away and the court must hold a hearing within 14 days to determine whether to extend the seizure and bar the person from purchasing more firearms. The longest a judge could order the seizure of firearms is 364 days. The entire process is a civil, not criminal, proceeding.

Who can petition the courts?

According to the bill summary and media reports, only family or household members, and law enforcement can petition the courts. But what is the definition of “family member” and “household member”?

According to the bill language, “family or household member” means:

Person related by blood, marriage, or adoption;
Person who has a child in common with the respondent, regardless of whether such person has been married to the respondent or has lived together with the respondent at any time;
Person who regularly resides or regularly resided with the respondent within the last six months;
Domestic partner of the respondent;
Person who has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren;
Person who is acting or has acted as the respondent’s legal guardian;
A person in any other relationship described in section 18-6-800.3 (2) with the respondent. [So, what does 18-6-800.3 (2) say? “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.]

What is needed to file the ERPO petition?

The filing of the ERPO petition can be done either in person or over the phone. The petition must be filed in the county court of where the accused lives – but since the petitioner can do it over the phone, they don’t even need to be in the same state. There is NO filing fee. The petitioner even has the option to not provide their address, and in certain cases, it can be done anonymously.

Questions that will be asked on the petition include how many firearms the person being accused has, what types, and where they are located. This doesn’t only include ownership – it also includes possession, custody, or control.

Petitioners are also asked to disclose if there are any other legal actions pending between parties, such as: current restraining orders, lawsuits, civil suits, custody cases, etc, but the existence of such cases shall not delay or prevent an ERPO from being granted.

What happens after the ERPO petition is filed?

Once an ERPO petition is filed, a hearing will be set either the same day or the next day. Once again, the petitioner (accuser) does not need to be present. They can attend this hearing over the phone. At this hearing, the petitioner will be asked to provide a “preponderance” of evidence. Preponderance is the lowest evidentiary threshold used in the court system. It is based on the more convincing evidence. But these hearings are ex-parte with only the accuser present, so there is no counterevidence presented.

What kind of evidence are they looking for? A recent act or credible threat of violence, even if such act does not involve use of a firearm. Self harm or threats of self harm within the past year. A prior violation of a protection order. A previous ERPO. Prior domestic violence convictions. Prior ARREST, even if not convicted, of a whole host of other crimes. Ownership, access to, or intent to purchase a firearm. Drug or alcohol abuse. Recent acquisition of a firearm or ammunition.

At this hearing the court will either approve or deny the ERPO. If it is denied, they must document reasoning for denial.

How will the ERPO be enacted?

Once the ERPO and warrant are in hand, it’s up to law enforcement how they take action, but these are judicial orders coming down from the courts. Law enforcement is required to carry out the orders. During the act of serving the ERPO on the accused, law enforcement must also determine if the individual should be put into a 72 hour involuntary commitment hold.

Once the firearms have been confiscated, the accused will be asked if they’d like to sell them, store them with law enforcement, or store them with a FFL. The accused’s information will also be added to the CBI and NICS database prohibiting them from purchasing guns.

The order will include a future court date for the permanent hearing. This will be the first opportunity the accused will have to speak on their own behalf.

The creation of a civil search warrant

Buried deep inside the bill language is one of the most unconstitutional pieces. They are creating a new type of search warrant in the state that would be specific to gun owners only: a civil search warrant. This civil search warrant would be issued along with the initial temporary ERPO.

Currently, with very few exceptions, search warrants are only issued for criminal reasons. According to mountains of existing case law, search warrants are granted by convincing a neutral and detached magistrate that they have probable cause to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there.

Very few civil search warrants have ever been issued, and the ones that have were in cases of intellectual property such as seizing computer files, and even those required clear and convincing evidence.

What happens at the 14 day ERPO hearing?

First, it’s important to understand this hearing is WITHIN 14 days. It could be in 3 days, or 6 days, or 14 days.

Prior to the hearing, the court will appoint an attorney or the accused can obtain their own or they can proceed self represented. Because no one has been charged with a crime, these are civil cases, not criminal. This means public defenders are not used, but instead the state would appoint one from a pool of attorneys who have agreed to work these cases.

During this hearing the petitioner and the accused will have the ability to provide evidence, call witnesses, cross examine witnesses, etc. Once again, the petitioner does not need to be present, and can provide sworn affidavits.

The judge will make their decision based on clear and convincing evidence.

At the end of the hearing, the judge will either dismiss the ERPO, and the firearm rights of the accused will be restored and their guns returned. Or the temporary ERPO will become a permanent ERPO. This would mean it will remain in effect for 364 days. The judge has the discretion to schedule hearings sooner than the 364 days if he or she believes the order should be lifted sooner. The accused also has ONE opportunity during that 364 day period to request a hearing. If they do request a hearing, the petitioner is alerted and that person can request it be denied.

What happens when the 364 days is up?

The petitioner will be alerted that the ERPO is going to expire, and they can request it be extended. If this happens, another hearing similar to the one at 14 days will take place. And it begins again.

What are the penalties?

Any person who has in his or her custody or control a firearm or purchases, possesses, or receives a firearm with knowledge that he or she is prohibited from doing so by an ERPO or temporary ERPO is guilty of a class 2 misdemeanor.

There are no penalties for false reports/false accusers.

Have ERPO’s worked in other states?

It’s difficult to say because the majority of the laws are so new.

States like California and Connecticut have still seen horrific mass shootings. Sandy Hook happened in Connecticut while they had a Red Flag law in place. California has seen a public mass shooting each year since theirs went into effect in 2014.

States like Indiana pointed to stats showing suicide by firearm was decreasing, but turns out it wasn’t. It was still increasing but not at the projected rate, so they consider that a win. In addition, suicide by other methods has skyrocketed and Indiana has dropped from 19th in the country for mental health in 2011, to 45th in 2015, and in both 2016 and 2017 suicide was the tenth leading cause of death for all residents over all demographics, and the leading cause for certain demographics. Their Red Flag law was enacted in 2005.

They are also used differently in various states, and this is largely because the laws from state to state vary so drastically.

Florida has seen ERPO’s used 5 times a day since the law went into effect mid-2018, with over 2000 firearms taken. In contrast, Oregon has received 132 extreme risk protection order petitions total through August 2019 and granted 107. Their law went into effect in 2017. These varying numbers are due to the process in which they are granted, as well as who is able to request them. Colorado’s law is one of the worst based on the broad range of people who can petition the courts as well as the low evidentiary threshold needed to grant one.

There is no mental health component

The claims that Colorado’s “Red Flag” ERPO law will help those in a suicidal crisis is disingenuous at best and dangerous at worst. Colorado’s law has no mental health component to it. The legislation asks law enforcement to enter the home of a suicidal individual who own firearms (forcibly if necessary), confiscate those firearms, and leave both the person in crisis and many other tools to follow through with the act of taking their own life.

This is not compassion. This is not empathetic. This is cruel.

If you are a firearm owner and are suicidal – or someone else in your home is suicidal – there are options. Hold My Guns is a private group who is working to partner with FFL’s and police departments to offer a place people can store firearms during a crisis (www.holdmyguns.org). In addition, Walk The Talk America offers non-crisis support to gun owners (www.WTTA.org).

And then there are the crisis lines:

National Suicide Prevention Lifeline: Call 1-800-273-8255, or chat online
Veterans Crisis Line: Call 1-800-273-8255 and press 1, text 838255, or chat online

There is deep concern within the firearms community that the existence of an ERPO law will make gun owners no longer reach out for help when they need it.

What about Second Amendment Sanctuary Counties?

Since the debate over the ERPO legislation began in spring of 2019, over 50 county sheriffs have come out publicly in opposition to the law as written in Colorado. Many of them still support the Red Flag concept, but after reading through the legislation that was passed in Colorado, they cannot support it. Their reasons vary from unconstitutionality, to worry of putting their officers and citizens in harms way, to worry about the abuse that will likely be rampant with the poorly written law.

37 counties have declared Second Amendment Sanctuary status. What this means varies from county to county.

In addition, the Denver Police Union and Aurora Police Union also opposed the law as written, citing constitutionality.

Constitutional Concerns

2^nd Amendment aside, Colorado’s Red Flag law has many constitutional concerns.

The creation of a civil search warrant is a 4^th Amendment violation.

The taking of property without due process is a 5^th and 16^th Amendment violation.

The inability to face your accuser or be heard by an impartial jury is a 6^th Amendment violation.

Not to mention the chilling effect it will have on the 1^st Amendment.

A constitutional lawsuit cannot be brought forth until someone is “harmed” by the law, meaning until someone is ERPO’d, there is no plaintiff for the case. Expect to see challenges to this law once it goes into effect January 1, 2020.

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Five of Colorado’s Ten Safest Cities Are In This ONE Second Amendment Sanctuary County

Posted on September 4, 2019September 4, 2019 by Lesley Hollywood

A list of Colorado’s safest cities based on FBI crime statistics has been released, and five of them are in Second Amendment Sanctuary county, Weld County, including the top spot. Could it be that gun ownership and independent self protection leads to less crime? More information on data and methodology can be found here.

The top ten safest cities are as follows:

Firestone (Weld)
Louisville (Boulder)
Frederick (Weld)
Golden (Jefferson)
Broomfield (Broomfield)
Windsor (Weld)
Parker (Douglas)
Erie (Weld)
Johnstown (Weld)
Steamboat Springs (Routt)

Weld County Sheriff Steve Reams has led the Second Amendment Sanctuary movement across the state and is an outspoken opponent to Colorado’s poorly written and unconstitutional “Red Flag” ERPO legislation, which ultimately passed by a single vote. The law will go into effect January 1, 2020.

Back in April he stated he’d rather sit in his own jail than enforce such unconstituational orders on the citizens of his county.

“If a judge issues an order saying a person can’t possess weapons, and also compels law enforcement to perform a search warrant to seek out those guns, I believe that’s a violation of a person’s constitutional rights,” Reams said.

“I have a hard choice at that point. I can potentially violate someone’s constitutional rights. Or I can violate a court order. I would rather be on the side of violating a court order than someone’s rights.”

More than 50 of Colorado’s 64 sheriffs opposed HB19-1177, “Red Flag” Extreme Risk Protection Orders ERPO, and 37 counties have declared Second Amendment Sanctuary status.

In addition to having five of the top ten safest cities, Weld county has below state average suicide rates. This is important because Giffords group has been pushing the narrative that Second Amendment Sanctuary counties have the highest suicide rates, a narrative that is parroted by Moms Demand Action. What they fail to mention is MOST of these counties have very small populations. For example, they are using Custer county’s calculated suicide by firearm rate of 49 per 100,000 people to make their case, but Custer county has a population of 4,900 people and ONE suicide by firearm.

Weld County Sheriff Steve Reams regularly testified to his concern that Colorado’s “Red Flag” legislation as written does nothing to aid those who do need help, and instead sends deputies to confiscate firearms from someone who may be suicidal, while leaving the person in crisis. Such actions will only escalate and exacerbate a distressing situation. Compassion may be lost on the gun grabbers, but it is not lost on us.

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Actually, Donald Trump Could “Red Flag” Chris Cuomo – And Here’s Why

Posted on August 14, 2019August 14, 2019 by Lesley Hollywood

In the wake of two tragic public mass shootings, one of which the National Gun Violence Memorial actually honored the perpetrator as a gun violence victim, calls for knee jerk gun control legislation has been front and center on both the left and the right. Prominent Republicans such as President Donald Trump, Congressman Dan Crenshaw, and several senators are calling for “Red Flag” Extreme Risk Protection Order ERPO laws.

And now, after Colorado passed an atrocious “Red Flag” ERPO bill in 2019 – a bill that passed by only ONE vote in the hyper-partisan Democrat controlled legislature with every Republican and three Democrats voting against it – we might be looking at Colorado becoming a blueprint for the whole country, a very terrible idea.

Then yesterday I woke to this tweet from President Donald Trump: “Would Chris Cuomo be given a Red Flag for his recent rant? Filthy language and a total loss of control. He shouldn’t be allowed to have any weapon. He’s nuts!”

Would Chris Cuomo be given a Red Flag for his recent rant? Filthy language and a total loss of control. He shouldn’t be allowed to have any weapon. He’s nuts!

— Donald J. Trump (@realDonaldTrump) August 13, 2019

I, just like millions of others, had to hunt down exactly what Trump was talking about. And I did. Here’s what happened:

A man in New York approached CNN’s Chris Cuomo and called him “Fredo”. Watch the video for the exact exchange, but here’s a snip…

Cuomo: “You’re going to have a problem”
Man: “What are you going to do about it?”
Cuomo: “I’ll fuckin ruin your shit. I’ll fucking throw you down these stairs”

Now here’s where I think this gets really interesting following Trump’s tweet; Cuomo could actually get Red Flagged for this. The criteria fits perfectly. This is why:

1.) He made a violent threat – and even though the threat was regarding stairs, not firearms, it STILL qualifies! Below is an excerpt from HB19-1177, Colorado’s “Red Flag” ERPO law. You can access it yourself here, scroll to the bottom of page 8 and top of page 9.

2.) We know he owns firearms because he has stated that on Twitter in the past. Again in HB19-1177, it states another qualification is ownership, access to, or intent to posses a firearm. Read it yourself here, scroll to the bottom of page 8 and top of page 9.

And his Tweet stating he’s a gun owner:

Now the person Cuomo threatened wouldn’t be able to bring forth the “Red Flag” ERPO petition (unless, of course, he wanted to state him and Cuomo had an affair in the past), but that person – or anyone for that matter – would be able to approach law enforcement and ask them to do it for him. Or if an ex-girlfriend of Cuomo’s saw this, or maybe a live-in nanny he’d fired, they’d be able to go right to the court and file the petition themselves.

What happens next? Well, Cuomo would get a visit from his local law enforcement agency with a temporary “Red Flag” order in hand, along with a search warrant to find all those guns he’s told us he owns. Within 14 days, he’d be able to go to court and show the judge Trump’s tweet, and convince him or her that he is not a risk to anyone at all – even though he’d made the threats to throw that man down the stairs. If the judge doesn’t agree to return his guns, the order goes into effect for 364 days, during which time Cuomo will have one opportunity to ask the courts to get his firearms – his means of self defense – back. Of course, each time the court considers returning them, the person who brought forth the petition will be alerted and have an opportunity to ask the judge to not return them – FOREVER.

Sounds like some real “common sense gun legislation” doesn’t it? <insert sarcasm>

But it proves the point of exactly how poorly these laws are written, and that Trump, as misguided (or not?) as his Twitter statement was, it is 110% accurate and not hyperbole at all.

Tag: hb19-1177