Colorado’s law enforcement and courts are gearing up to implement the new law that would allow the state to temporarily take guns from people deemed extreme safety risks, but officials still don’t know how many requests they’ll need to field and how the system will work in counties where sheriffs swore they would not enforce it.
The red flag law – one of the most controversial bills passed during the 2019 legislative session – will go into effect on Jan. 1, despite vocal opposition from some law enforcement and vows from a handful of sheriffs to ignore the law. The biggest unknown is how many of the orders the state’s courts and law enforcement agencies will have to process and what impact that will have on the criminal justice system.
“We have really no idea right now what kind of volume we’re looking at,” Denver Police Department division chief Joe Montoya said.
The laws allows family members or law enforcement to ask a judge to order a person’s firearms be temporarily confiscated because they pose an immediate safety threat to themselves or others. Once petitioned, the judge must hold a hearing within 24 hours – or the next court day – to determine whether to grant the request, though the person in question does not have to be present for that hearing. Then, within two weeks the judge must hold another hearing with all parties present to determine whether to confiscate that person’s guns for a year and ban them from purchasing other firearms.
In the 17 other states with similar laws, the number of orders filed annually have varied from less than 20 to more than 1,300, according to data compiled by state analysts. When calculated based on the states’ population, the rates of orders per 100,000 residents varied from 1.4 in Rhode Island to 20 in Maryland. If Colorado were to see the same usage rate as Maryland, that could mean more than 1,600 orders a year.
But state analysts estimated in the spring that the number filed annually statewide would be closer to about 170.
“We’ll take whatever comes,” said Rob McCallum, spokesman for the Colorado court system. “We don’t say we’re capped out
If far more come than expected, courts may have to adjust their dockets or hire extra staff. The courts are also searching for attorneys across the state to serve as court-appointed lawyers for people who are facing petitions to have their guns taken.
“We’re looking for as many as we can possibly get,” McCallum said.
The Denver Police Department, one of the largest law enforcement agencies in the state, has been working for months to develop a policy on the new law. Their policy will require patrol officers encountering situations where they think an extreme risk protection order is needed to call one of a handful of detectives knowledgeable on the new protection orders. Those detectives will then handle the court filings and follow the case through court.
If the police department sees a high number of orders, its leadership may ask for money to form a dedicated unit of detectives devoted exclusively to the cases, Montoya said.
The department also set up a separate gun storage area and logging system for firearms confiscated through the extreme risk protection order system so that weapons don’t get mixed with evidence.
“The law is written with good intention, but I don’t think they think of logistics, ” Montoya said.
Law enforcement also isn’t sure how the system will work if some agencies refuse to implement the law, as some sheriffs have threatened. For example, what happens if Denver police contact a suicidal person who they believe should be the subject of an order but that person – and that person’s guns – are in Weld County, where the sheriff has said he will not enforce the law?
“A lot of it we’re just going to be feeling our way through,” Montoya said.
The law has earned the scorn of a number of Colorado county sheriffs who said it violates residents’ constitutional right to bear arms and cited fears about false reports leading to gun confiscation. If the sheriffs follow through with their threats to defy the law and judges’ orders, each judge will have to decide how to proceed.
“We’ll deal with that on a case-by-case basis,” McCallum said.
RELATED: If red flag bill passes, can Colorado sheriffs ignore it?
Sheriffs for the counties surrounding Denver – Adams, Jefferson, Arapahoe and Douglas – said they will enforce the law. The legislative bill that later became the law was named for Douglas County sheriff’s deputy Zackari Parrish, who was shot and killed by a man in mental health crisis who ambushed deputies responding to a domestic disturbance.
Even though Jefferson County Sheriff Jeff Shrader opposed the bill as it made its way through the legislature, he issued a policy that states his deputies will serve paperwork when ordered by a judge. But his policy is more restrictive on when the deputies will seek a search warrant to confiscate weapons.
Jefferson County deputies will only take someone’s firearms if there is an arrest warrant for that person or if deputies themselves have a reason to believe that a person is an immediate danger, in which case they will take the person into custody for a 72-hour mental health hold. The sheriff’s office will not confiscate guns for other law enforcement agencies unless those two criteria are met.
“Through the application of our mission to serve, protect and enforce, we will carefully evaluate and weigh the rights of people to be free from unreasonable search and seizure, with the rights of people to be free from acts or threatened acts of violence, and respond in a reasonable and lawful manner,” the policy states.
The other three sheriffs in the metro area supported the law from the beginning.
Arapahoe County Sheriff Tyler Brown “feels he is sworn to uphold the laws of the state,” said Deborah Sherman, spokeswoman for the sheriff’s office.
Even though Denver’s police union opposed the bill before it became law, Montoya said he isn’t worried about officers refusing to enforce it. Had the law been in effect in 2019, Montoya said he believed Denver police could have avoided several dangerous standoff situations with armed suspects.
“It’s going to be to protect people and to save lives,” he said. “And I think officers understand that.”
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