HB19-1177, the “red flag” bill, passed the Colorado House last week, is now in the state Senate. It would mandate an expedited legal process to temporarily confiscate firearms from, and ban their acquisition by, individuals found by the court to pose an “extreme risk” to themselves or others.
Seeking legal methods of reducing the likelihood that at-risk individuals will harm themselves and others is something we should all support. But using Colorado’s court system to pre-emptively infringe on the Constitutionally protected rights of law-abiding citizens is nothing short of Orwellian.
Should HB19-1177 become state law, it would permit a family or household member, or a law enforcement officer, to petition the court to issue an extreme risk protection order (ERPO) against an individual whom they believe poses an “extreme risk” to him or herself or others. If the court finds that a “preponderance of evidence” supports this assertion, it issues an order for that individual to surrender all possessed firearms for a period of 364 days. It also prohibits the individual from purchasing firearms for the same period.
Individuals (referred to as respondents in the bill) subjected to this ERPO petitions need not commit, or be accused of committing a crime, let alone a violent or firearms related crime. They also need not own a firearm. Their only protections against false claims are the bill’s requirements that petitioners sign their petitions under oath and penalty of perjury. In a world where we watch government leaders perjure themselves without consequence on an almost daily basis, this hardly seems like any protection at all.
Respondents found by the court to be an extreme risk to themselves or others must surrender their firearms to law enforcement or a federally licensed firearms dealer. They get to keep their knives, their Kubatons, their cars and trucks, their baseball bats, their ropes, their hazardous chemicals, their poisons, their rolling pins, and any other legally possessable items that can be used to harm themselves or others. The only weapons they must surrender are those whose possession is expressly protected by the second amendment to the United States Constitution.
Then, according to the bill’s current language, the respondent’s ERPO is entered into the statewide judicial information system. Is it then publicly available for background searches, effectively becoming a part of the his or her rap sheet, even though an ERPO does not constitute a crime or even an infraction? It’s unclear in the bill. If so, good luck explaining that on your next job or apartment rental application.
If you don’t agree that dragging law-abiding citizens into a government court, with no probable cause that they have committed a crime, in order to determine if the government should temporarily infringe on their Constitutionally protected rights is an Orwellian process, I would suggest you dust off and re-read “1984”.
Additionally, you can, and you should, read the bill summary and full text on the Colorado General Assembly website at: https://leg.colorado.gov/bills/hb19-1177, and make up your own mind.
While the differences appear subtle, the standards for issuing ERPO’s seem less rigorous compared to other judicial processes. Unlike arrest warrants, or court restraining orders where the petitioner must demonstrate cause that a crime, or violence has occurred or been threatened in the past. HB19-1177 appears to only require that a petitioner believe that there is an “extreme risk” of future violence to petition the court for an ERPO.
And the permanent suspension of one’s (not Constitutionally enumerated) right to vote due to a prior conviction of a felony is hardly equivalent to HB19-1177’s temporary restriction on the Constitutionally protected right to keep and bear arms for respondents who may have no criminal record.
None of this diminishes the seriousness of the circumstances that this bill is intended to address, nor the need for a pathway to constructively address the violence leading to tragedy caused by emotionally unstable individuals and those suffering from mental illness. Fully half of all suicides committed in the United States between 2000 and 2016 involved the use of firearms. Forty three of 50 states have suffered the devastating effects of a school shooting since 2000. These issues are real and their impacts are a legitimate subject for legislation intended to address them.
But proposed legislation that focuses exclusively on firearms confiscation betrays the complexity of these issues in favor of a simplistic and politically divisive strategy that ultimately could be used as a model to infringe on other Constitutionally protected rights.
Do we want to put the government in charge of determining whose opinion is so much of a threat that it should be censored because it might hurt someone in the future? I have heard otherwise educated and intelligent people call for this kind of restriction on free speech more and more frequently over the past several years on subjects ranging from the anti-vaccination movement to, you guessed it, the right to bear arms.
In spite of its limits and good intentions, HB19-1177 takes that first small step across the boundary separating a government’s obligation to provide for the health, safety and welfare of its constituents into the realm of infringing on individual rights. The use of the most politically divisive of our Constitutionally protected rights, the right to keep and bear arms, to institutionalize a legal structure permitting firearm confiscation solely on the basis of potential future harm, is that first small step into the realm of Orwellian “big brother” government.
How would George Orwell react to this development? I don’t know, but I can imagine him saying “I told you so.”
Paul Menter can be reached at email@example.com