Illustration by the Front Porch using an iStock Photos image with an actual petition that was denied.

On January 8, a Windsor man petitioned the Denver Probate Court to have his son XYZ’s weapons confiscated under Colorado’s fledgling Red Flag Law. Two days earlier, a Limon woman had filed a similar petition in Lincoln County. His was granted. Hers was denied. The discrepancy is rooted in two different philosophies about how to enforce the controversial law that states a family or household member or law enforcement officer or agency can petition a judge to temporarily remove firearms from a person who may be a danger to self or others.

One philosophy—adopted by 22 Second Amendment “sanctuary” counties—seeks to protect the gun-owner’s rights. The other seeks to be an advocate for the endangered.

In the case of XYZ, court documents reveal that he had recently lost his job and his right to unsupervised visitation with his children. He’d also brought a gun with him to a parenting time-exchange with his ex-wife and accused his father of having his phone “wiped” by the CIA. Furthermore, he sent threatening text messages including: “[I]t’s [sic] the person that you [sic] have nothing to lose that should be your biggest fear. I’ve had nothing before, and I am not afraid to go the distance with you….I promise you when you’re gone, you will not be missed…. You’re going to see a darker side of me and [sic] you ever wanted to. Consider yourself warned.”

After a petition is filed, a judge reviews the petition the same da-y—or the next day for petitions filed in the afternoon. In the case of XYZ, Judge Elizabeth Leith granted the temporary extreme risk protection order (T/ERPO), citing a recent and credible threat of violence.

Once an extreme risk protection order (ERPO) is issued, guns are confiscated and a second hearing is scheduled within 14 days to decide if the order should be extended for up to 364 days. If the petition is granted, a respondent may file a motion to terminate the ERPO by proving s/he no longer poses a danger to self or others.

In the case of the Limon woman, she had made previous complaints to police about her abusive boyfriend and stated in her petition that he was, “grabbing and pushing me, not allowing me to leave the house, threatening me with a handgun,” and “even broke the bathroom door to get to me to threaten me verbally.” Her petition was denied. It’s unclear if Lincoln County’s “sanctuary” status played into the judge’s decision; however, it is clear this law is shaping up differently in different counties.

Sanctuary counties say they aren’t willing to take two specific actions that other counties—that are following the law as written—are willing to do. They won’t file a T/ERPO if they think there’s a risk and they won’t seize guns without a criminal warrant. The new law allows for a civil warrant, which is what the sanctuary counties object to. They cite issues based both the Second Amendment and the Fourth Amendment, which deals with search and seizure.

Weld County’s Sheriff Steve Reams was quoted in the Washington Post as saying he’d rather go to jail than enforce the law; he believes it infringes on someone’s constitutional right to due process and the Fourth Amendment, which protects against unlawful search and seizure.¹ El Paso County Sheriff Bill Elder told KRDO News (Colorado Springs) his office will enforce an order if it comes from the court, but a TERPO will not be initiated by any of his deputies. He also said his deputies won’t be searching for firearms like other agencies might.²

Conversely, the Denver Police Department is putting potential victims first. Division Chief of Investigations Joe Montoya said, “There are different philosophies statewide, and I’m not critical of anyone’s perception. For the community of Denver, it serves our purpose to adhere to the way the law is written. We’ve come across several situations when we look back and say, ‘Boy if this law was in place it might have helped us out.’” The department’s official stance is that “T/ERPOS can significantly reduce the risk of suicide, and harm to victims, the community, and law enforcement, and it is committed to enforcing extreme risk protection orders.”

In fact, on Jan.2, DPD’s Sergeant Troy Bisgard was the first in Colorado to file a T/ERPO. He responded to a domestic violence call and found an intoxicated man with a loaded 9mm Glock semi-automatic handgun in his waistband. The man, who had threatened to do something “bad” to himself voluntarily handed over his Glock as well as another gun in his home. He later said he was thankful for the department’s intervention.

Montoya also stressed that filing a T/ERPO isn’t always necessary for taking someone’s guns. “In a lot of these cases, there’s going to be a crime attached to it, so we can take action because a crime occured. If someone’s actually threatening someone else with a weapon, that’s a criminal offense, and we take guns all the time from people involved in criminal activity or from people who shouldn’t be in possession of a gun. But if there’s no crime, and we still feel like if we leave guns here, something bad might happen, that’s when we’ll get involved and do the filing to have an emergency T/ERPO hearing.” So, DPD will not only file a T/ERPO, they’ll also execute it along with a civil warrant. Montoya says those two things will go hand-in-hand at DPD.

If you or someone you know is in danger, contact the Denver Police Department at 720-913-2000.

1 – https://www.washingtonpost.com/nation/2019/04/02/colorado-sheriff-would-rather-go-jail-than-seize-firearms-under-states-red-flag-law-he-says/
2 – https://krdo.com/news/2020/01/13/el-paso-county-sheriff-receives-death-threats-over-red-flag-law-policy/