In its first month on the books, Colorado's extreme risk protection order (ERPO) law was used eight times in January.
The ERPO law, also known a red flag law, allows a family member, household member, or law enforcement to petition a judge for an order to have an individual's firearms temporarily removed and to prevent them from buying new ones. It went into effect in the state on Jan. 1.
For an ERPO to be issued, the court must find by a "preponderance of the evidence," that the respondent poses a "significant risk" to themselves or others by possessing a firearm.
In January, here is how Colorado's ERPO law was used:
- Eight cases were filed
- Seven temporary ERPOs, lasting 14 days, were requested. One was denied, five were granted, and two were then vacated, meaning cancelled either because a petition was withdrawn, expired or replaced. Two permanent ERPOs, lasting for 354 days, were requested. One was denied, another was granted.
- One petition was filed against a white woman. The rest have been filed against men, mostly white men.
- Petitions were filed in Denver, Douglas, Larimer, Archuleta and Lincoln counties.
The ERPO law has been controversial from the start. When the bill passed in 2019, some Colorado sheriff said they wouldn't enforce it , citing a variety of objections including concerns about due process and gun rights. But in January, there was no evidence to suggest sheriffs were actively resisting the law.
Weld County Sheriff Steve Reams said he still opposes the law but that there haven't been any ERPOs issued in his jurisdiction. As far as he knows, nobody has approached his office asking law enforcement to request an ERPO on their behalf.
Larimer County Sheriff Justin Smith, like Reams, is an elected Republican, and had also voiced concerns about the ERPO bill before it became law. But last month, two ERPOs petitions were filed in Larimer County, one of them by the Larimer County Sheriff's office. Smith explained that the individual in question is facing criminal charges and is currently in the county jail.
"Essentially, this is an individual who fantasizes about mass killings and doing a school shooting," Smith said. "It's a situation where the TERPO (temporary ERPO) we sought on him was not actually to seize any weapons. It allows us to get him into the system so that if he were to walk into a licensed dealer, he would be prohibited from purchasing... It just seemed irresponsible for us to not at least get that flag in the system so that a gun dealer would know that he was a dangerous person."
Smith still has major reservations about the law: a perceived lack of due process, privacy concerns, questions about how much force can be used in gun removal, and questions about the legality of confronting suicidal people. But, in this case, Smith described ERPO as a tool.
"This was a situation where the ERPO does expose some holes in the system because this individual is not currently a convicted felon so you don't have that prohibition from purchasing and was subject to no other domestic violence order or anything else to prohibit him from purchasing," Smith said.
For Smith, the second ERPO filed in Larimer County in January serves as an example of how the law can be abused.
On Jan. 9, Susan Holmes, whose teenage son was shot and killed by a CSU police officer in 2017, petitioned for an ERPO to have that officer's guns removed. On the petition, Holmes claimed she had a child in common with that police officer but didn't provide any evidence.
"As we saw in the Holmes case, that's absolutely an abuse of the system," Smith said. "And it was a way for her to use the courts to try and restrict the Second Amendment rights of an individual."
