So because almost anyone a person knows can file for a gun grab in Colorado, judges will look more carefully at these requests than they do in other states. At least, that’s the theory.
The Colorado legislature’s official fiscal analysis of that state’s new “red flag” law, which took effect this week, projects that police and “family or household members” will use it to seek gun confiscation orders against people they portray as threats to themselves or others about 170 times a year. The analysis also assumes that 95 percent of those petitions will be granted, which is not far-fetched given Florida’s experience with such orders.
Such a high approval rate reflects the due process problems with red flag laws, which take away people’s Second Amendment rights for a year or more based on vague standards and dubious evidence that judges are not inclined to question because they worry about the potentially deadly consequences of rejecting petitions. But there are a couple of reasons to think Colorado’s approval rate may not be quite as high as Florida’s.
First, of the 17 states with red flag laws, Colorado is the only one that provides court-appointed counsel to respondents who can’t afford lawyers or choose not to hire them. Legal representation is crucial for respondents trying to navigate a process that is stacked against them from the beginning.
Second, Colorado’s law allows a long list of people to seek what it calls “extreme risk protection orders” (ERPOs), including anyone related to the respondent by blood, marriage, or adoption; anyone who has produced a child with the respondent; and current or former spouses, domestic partners, girlfriends, boyfriends, and housemates. In Florida, by contrast, petitions must be filed by law enforcement officers or agencies. While Colorado’s much broader approach creates a bigger risk that biased individuals will seek ERPOs out of personal animus or sincere but mistaken concerns, that risk may lead judges to treat petitions more skeptically.
– Jacob Sullum in Fiscal Analysis of Colorado’s New ‘Red Flag’ Law Assumes Gun Confiscation Orders Will Be Granted 95% of the Time