A Colorado County Sheriff's thoughts on the red flag law

[Bigfoot]

I wasn't going to post this because it's such a very long read, plus it's a copy - paste without a link.
There was no link provided where I got it from. And I didn't want to link a whole thread / page from another forum.

But because of the subject matter I changed my mind... So copy - paste it is.
It's a long read but worth the time IMO.




Written by Colorado's Eagle County Sheriff

Part 1 of 3

Many have asked for the last several weeks where I stood on the Extreme Risk Protection Order Bill, we took a considerable amount of time reading, researching, debating and editing, tonight I let you know. It is a very long read but felt it had to be!

One of our nation’s most controversial new laws spreading across the country is known as the Red Flag Law, which has been approved by the CO House & Senate, awaiting the Governor’s signature. It would go into effect on January 1, 2020. Its purpose is to identify potential dangers and neutralize them by removing weapons from those whose behavior may appear erratic and possibly dangerous. While on the surface it seems to be a great idea, like everything else that is complex, the devil is in the details, and these details are constitutionally troublesome.

The contradiction between wanting to actively stop a potential tragedy and respecting an individual’s fundamental rights is causing a huge discourse between legislators, law enforcement (who will be on the frontlines implementing the law), and the counties who will be expected to pay an unfunded mandate, out of tight budgets.

The Red Flag Law is officially known as, Extreme Risk Protection Orders, attempts to prevent harm, caused by those who are experiencing a mental health crisis, which may result in violence to themselves or others. The intent of the law is one in which we can all agree; the implementation is problematic.

The premise of the law, to prevent tragedy due to a mental health issue, is solid. The presumption of predicting behavior is questionable. In some cases, it is a rather explicit cause and effect… someone makes direct threats, along with a violent history, which indicates a likely outcome, justifying an extreme intervention. However, we must be cautious in making assumptions, as well as aware of the potential for abuse.

Each of the current 15-states & DC, have provisions unique to their jurisdictions, with the most sensitive, being in states where school shootings have occurred. In Colorado, we are still reeling from Columbine, the Aurora Theater, and other violent tragedies, so, all are motivated to seek solutions, and none more than our county Sheriffs.

The initial focus of the bill was relating to mental health and public safety. Everyone was in support of identifying those in emotional crisis and providing treatment before anyone was harmed, with an emphasis on suicide prevention and potential homicidal inclinations. While guns have played a part of the cases brought forth for consideration, the true issue was on the people, who were in such desperate need of treatment, that they acted beyond anyone’s anticipation, sometimes uncharacteristically, to the point of being considered a mortal danger to themselves or others.

However, typical of so many good ideas gone wrong, as this bill made its way through the state capitol this issue turned became highly political… going from cutting-edge mental health legislation to what is perceived by many to be a gun-grab, leaving the Constitution in its wake.

We had the unique opportunity of moving Colorado from 47th to 1st place in the nation on addressing the behavioral health crisis that has impacted communities across the country. I agree with the experts who consider mental health the primary cause of these violent attacks. A disturbed mind will not be deterred by the removal of their guns.

House Rep. Tom Sullivan, whose son was killed in the Aurora theater shooting in 2012 says, “This bill will give law enforcement and families the tools that they need to stop tragedies from constantly happening and save lives.” Yet, what the Red Flag law addresses, is merely one of the potential tools used in implementation; it does nothing to diminish the determination to accomplish the act. If it was only as simple as removing guns, we would have considerably less crime in this country, but as we have seen, many of our cities with the strictest gun laws, coincidently have the highest murder rates, proving, where there is a will, there is a way.

By removing guns from someone intent on committing suicide or murder, we still have the danger of someone who may be unbalanced, now, angrier than before, and looking for another means… explosives, poisons, knives, car incidents of mowing down groups of unsuspecting innocents, and if fixated on shooting… the illegal purchase of guns, as is evidenced by the numerous weapons owned by gang members, who couldn’t care less about gun laws. So, what can be done?

In Eagle County, we are at the forefront of establishing public-private partnerships, to become a model of mental health treatment for communities across the nation. Our county has engaged professionals, covering every aspect of the process, from hospitals to non-profits, to schools, employers, counselors, law enforcement, social services, sports organizations, community groups, clergy, and others. We seek to provide support on every level. If someone is in crisis, we want help to be readily accessible, and easy to engage.

Meanwhile, despite our incredible local progress, we are faced with the implications of this Red Flag law, and rather than help, it has the potential of creating additional barriers to effective mental health solutions, at increased cost, with legal complications that will likely lead to the Supreme Court.

Most people are unfamiliar with the challenges built into this law. Below are some issues we must consider as we proceed.

 

[Bigfoot]

Part 2 of 3


The Red Flag law provides the following:

A household/family member could petition the court for an order requiring the Respondent to immediately surrender all firearms and any concealed carry permit. A law enforcement agency could also petition the court for a search warrant, based upon presumptive criminal acts.

Upon a judge’s order, without notice, or the accused’s ability to defend charges, his property is taken away. Imagine… their first awareness of an issue is when police arrive at their home stating that they represent the government and are there to confiscate their guns. It’s not hard to imagine how that could elicit conflict, which could easily escalate to a physical encounter, as the defendant attempts to protect their property, placing deputies in immediate danger. By contrast, the laws of California and Oregon require an individual to surrender custody of firearms within 24-hours of being served with an order. Washington allows 48-hours.

A hearing on whether the gun seizure should be extended up to 364 additional days, must take place within 14-days, during which the defendant’s property remains in the custody of law enforcement or a licensed firearms dealer. The defendant is prohibited from purchasing any other guns during this period of time.

This procedure is considered civil and not criminal, yet the accused is treated like a criminal, based entirely on speculation submitted to a judge, from a single, not necessarily professional, source.

The level of scrutiny in court, to allow the confiscation of weapons, is a “preponderance of the evidence”, declaring that the person in question is a risk to themselves or others. “Preponderance of the evidence” is a much lower burden of proof than “clear and convincing evidence” required for the recovery of those same weapons. In other words, they can take away your property with substantially less “cause” than it takes for you to recover them. According to Cornell Law School, “preponderance” means that 51% of the evidence, points to something. In other words, there is just over a 50/50 chance of accuracy… like the flip of a coin. Couldn’t that apply to just about anything a person does?

The Red Flag law allows for a gun-seizure order and search warrant to be completed in one step, with no additional validation presented to the court.

In Colorado, a Red Flag order would be separate from a mental health hold. The Judges are instructed to consider the mental health orders but they need not be applied to issue a Red Flag Order.

Therefore, a person could have guns removed yet not be considered dangerous enough for a mental health hold. If we are being asked to infringe on a person’s right of gun ownership, and the danger declared is imminent, then shouldn’t a mental health evaluation be the first course of action? Yet, it requires the defendant to prove their sanity in order to retrieve their property, which would require a mental health evaluation, yet few, if any, behavioral health services are available. The Red Flag law, as written, is presumptuous, extreme, and backward.

Removing the guns in a constitutionally questionable manner, without notice, denying the accused the ability to defend charges, then requiring medical services that are not available, in order to reinstate private property rights, afterward, is like putting a Band-Aid on the probability of a wound, and not allowing its removal until an injury has occurred. In other words, the entire process is ludicrous.

In addition, if a person is truly in a mental crisis, this aggressive approach will create even greater stress, possibly resulting in a violent overreaction, as their personal property has been taken, without a crime ever having been committed, and done so with no warning or ability to defend themselves against the charges, making the new standard… guilty until proven innocent!

The burden of proof is not on the petitioner (the accuser), as in every other legal case, but instead, is placed on the respondent (defendant) to prove that the accusations are wrong. Proving one’s sanity could be very difficult, as it is highly subjective. There are so many variances, from cultural norms to situational conditions, to medical issues, unrelated to mental health. Yet, the accused cannot retrieve their property until they can “prove” that they are no longer a risk… a “risk” they weren’t allowed to defend, because the proceedings were done without their knowledge, removing the possibility of cross-examination prior to a judge’s order being issued.

A false or malicious accusation could be subject to prosecution, but intent would have to be proven. Once again, how does one “prove” the intent of falsehood or maliciousness? They could always claim that they really believed the threat to be true.

The Red Flag Law can remind one, of the movie “Minority Report”; regulating against what we think someone might do. It’s like regulating via clairvoyance, but in this case, we actually take away someone’s property and require them to go to court to prove their innocence of a crime that hasn’t been committed, yet they were punished because someone thought they might be thinking about it.

Of course, sometimes things are rather explicit, but misinterpretation is always possible. Consider, how many people we know that have either in humor or anger, said they would kill themselves or someone with whom they were upset? We knew, of course, they didn’t mean it literally, but what if someone took it as a death threat and acted on it? Police could break into their homes in the middle of the night, search everything they own, looking for guns, take away their personal property, and all based upon nothing they’ve done, but rather, on the hearsay of someone who could possibly have ulterior motives.

The Red Flag law has been drafted as if accusers were always right and the defendant, always guilty. Our jurisprudence holds the opposite to be true… innocent until proven guilty. There is also a danger that someone could misuse the law to disarm a person they intend to violently target, such as a domestic violence situation, or a murder-suicide plan, thus endangering the very people this law is supposed to protect.

Like so many well-intentioned laws, the long-term implications can easily be exploited and may lead to an abuse of both individual and constitutional rights. In the case of the Red Flag Law, we must be cautious that a concern for mental health issues, does not turn into simply, anti-gun legislation.

I find no mental health programs associated with this law. Just a possible overreach of well-meaning citizens, with no infrastructure for addressing the primary intention of the law: mental health as it relates to public safety.

Our state legislators missed a grand opportunity to address this critical issue, which is the cause of many illegal activities; gun violence being just one of them. We must begin focusing on the root cause of violent behavior and not simply one of the methods used in its implementation.

This law provides for the removal of guns from those charged with the “crime” of mental illness (a stereotype professionals seek to avoid), telling them to get help in order to “prove” their sanity, before they are allowed the return of their personal property. This is discrimination at the highest level.

What problems can arise from this reversal of the traditional rule of order in proceedings, particularly as it deals with issues of mental health?

The fear of being labeled or targeted and having property taken away can inhibit an emotionally unstable person from discussing their mental health issues with family or friends, who might otherwise influence them into seeking treatment. Asking for help now comes with a stigma and at a cost, which may cause a person who is already feeling vulnerable, to now be defenseless, and unable to trust those discussions will remain private, thus, making them less likely to reach out for help and more susceptible to harming themselves or others. Precisely, what this law is supposed to prevent.

 

[Bigfoot]

Part 3 of 3


CONSTITUTIONAL CHALLENGES

2nd Amendment (Right to Bear Arms)
The Second Amendment specifically states, the right to bear arms “shall not be infringed.”

The Colorado law mandates that the firearms must be surrendered to or taken by the government. After that, the owner may ask that the guns be transferred to a federal-licensed firearms dealer (FFL). Certain collectibles may be transferred to a relative. The custodian may not return the firearms to the owner until the risk protection order is no longer in force (the defendant must prove their innocence).

4th Amendment: Search & Seizure 5th and 14th Amendments: Due Process

The bill infringes upon the inalienable rights of citizens, who are not charged with a crime.

It is also a huge infringement of the 5th Amendment… the right to due process of law.

The initial procedure takes place as an ex-parte hearing, where the gun owner does not have an opportunity to challenge the claims made against them, or even to be notified of the proceedings.

In Colorado, a single person’s complaint against an individual instigates the removal of personal property (the confiscation of guns from their possession), just in case, they may pose a danger to themselves or others, with no actual proof.

There is case law to consider where the U.S. Supreme Court stated: “Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth … [It] is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.” - U.S. Supreme Court, 1981 (Watkins v. Sounder).

The National Rifle Association (NRA) raised a valid point on this issue:

“Unchallenged statements made by a petitioner before a judge ... would be sufficient for law enforcement to enter that person’s home and confiscate their private property,”

The Red Flag law places the burden of proof on gun owners to prove in court they do not pose a risk if they want to recover firearms that have been seized… guilty until proven innocent.

Depending on how a search warrant is issued, by law, police may enter via a no-knock raid, making it easier for gun seizures, than for all other no-knocks, the bill unlawfully discriminates.

The Supreme Court rejected the notion that an entire class of cases can automatically be no-knock, at unfettered law enforcement discretion. (Richards v. Wisconsin, 1997), thus, stigmatizing gun owners.

Worth consideration, is what if the guns are reported to be at their place of business? A search warrant could certainly be obtained, but the repercussions beyond those already stated, are considerably heightened. A search at a business could conceivably have a negative impact on their organization, possibly costing them their job, even if no guns are discovered. In addition, medical privacy is now violated because business associates are aware of confidential mental health information. That damage cannot be undone.

Taking away personal property, denying 2nd, 4th, 5th, and 14th Amendment rights while placing the burden of proof on the accused rather than the accuser, and doing so, with no notice or ability to counter accusations… essentially, punishing someone for up to a year on hearsay, is certain to be determined illegal by the Supreme Court. I believe, we can do better.

In Connecticut, 32% of confiscation orders are overturned, once judges hear from the respondent. Michael A. Norko & Madelon Baranoski, 46 Conn. Law Review 1609, 1619 (2014). The entire process of this Red Flag law is an expensive means of making us feel like we are doing something when in reality, we are making matters worse. This is the reason why more than half of Colorado’s county Sheriffs oppose the law.

I stand with other Sheriffs in opposition to the Red Flag law on constitutional grounds as well as its failure to address the true issues, which are behavioral and mental health. In addition, it places fiscal hardships on county budgets, places law enforcement officials in imminent danger, violates citizen’s rights, and actually works against the mental health concerns that it was originally designed to aid.

Eagle County does not need to declare sanctuary status because we have always utilized discretion in the implementation of our duties and will continue to do so. Just because we can, doesn’t mean we should, is a core value. We are also fortunate to have a supportive community with a strong mental health focus and professionals who are willing to put the time and money into programs designed to address issues, as they arise.

Governor Polis understands this priority, as he stated on March 26th, that he believes Sheriffs are committed to enforcing laws approved at the Capitol, but he also said they have discretion, to decide which issues to focus on.

Supporting mental health, the safety of our community, as well as upholding our individual rights, will continue to be our focus, and arbitrary laws will not impede that mission. Continuing to reach across political and philosophical differences and finding solid ground, founded in our Constitution, where we, as a community can work together and be a model for the rest of the country to follow, will remain a top priority for the Eagle County Sheriffs Office.