Despite concerns about its potential abuse, the red flag law passed by the Colorado Legislature has been used only once in Montezuma County since it went into effect on Jan. 1, 2020.
The law’s proposal in 2019 was met with stiff, if symbolic, resistance from county officials and some citizens who viewed it as a slippery slope toward stripping away their Second Amendment rights.
HB 1177 created the ability for a family member, household member or law enforcement officer to petition the court for a temporary extreme risk protection order.
An extreme risk protection order directs a person to surrender his or her firearms.
The petitioner must present evidence under oath that a person poses significant risk to self or others by having a firearm in his or her custody.
The court must hold a temporary protection order hearing on the day the petition is filed or the day after, and the evidence must meet the “clear and convincing’ standard. If the court issues the order, the person must surrender all his or her firearms and concealed carry permit.
A second court hearing must be held within 14 days to determine whether the protection order should be continued for up to 364 days, during which time the person is prohibited from possessing a firearm. The court must provide an attorney for the person under the protection order during the hearing.
The person can motion the court once during the 364-day order for a hearing to terminate the protection order. The respondent has the burden of proof at a termination hearing.
According to data from the Montezuma County Combined Courts, the law has been used only once in the county since taking effect over a year ago.
According to court documents, District Court Judge Doug Walker issued a temporary extreme risk protection order for a Mancos resident in October.
The man’s ex-girlfriend alleged in a signed affidavit that the man had access to firearms, made death threats and was abusive.
An investigation by the Montezuma County Sheriff’s Office determined that the man never had a weapon.
According to Sheriff Steve Nowlin, there was no evidence that the petitioner’s claims of abuse and firearm possession were true.
The man previously been convicted of a felony and was on probation, barring him from possessing any weapons in the first place.
At a hearing to determine whether the temporary order should be continued, the petitioner was unable to prove her case and the order was lifted.
Attorney Mike Green was appointed by the court to defend the Mancos man. Green is also the Cortez city attorney.
“She couldn’t prove the elements that she needed to prove under the statute, Green told The Journal. So the order wasn’t granted.
According to statute, a court must find by a preponderance of evidence that “the respondent poses a significant risk of causing personal injury to self or others in the near future by having in his or her custody or control a firearm or by purchasing, possessing or receiving a firearms.”
Green acknowledged that the judge in these cases is often put in a tough spot.
“In all fairness to the court, it’s an extremely difficult situation,” Green said. “So they give out the temporary order to be on the side of caution.”
Nowlin told The Journal that the petitioner’s allegations were unfounded and that he believed the law was abused.
“I just really questioned a lot of it,” Nowlin said. “He never had any weapons. And that went totally against what she was saying.”
Nowlin has been skeptical of the law since the beginning.
“Just the potential for abuse is so valid,” Nowlin said. “It can come from anybody in that family circle, even an ex-wife from 20 years ago.”
Despite his own reservations, Nowlin intends to enforce the law.
“When I get a court order, then I have to obey the court order. And I do,” Nowlin said.
According to reporting from The Denver Post, concerns from gun advocates about widespread abuse of the law statewide turned out to be off-base. In its first year, the law has been used relatively sparingly and mostly by law enforcement agencies.
anicotera@the-journal.com