It doesn’t matter which side you take in the gun debate. Everybody wants the killing to stop. Red flag laws were proposed after the February 14, 2018, shooting at the Marjory Stoneman Douglas High School in Parkland, Florida. These laws change the focus away from reaction to prevention. Colorado is one of 12 states to enact a red flag law since the Parkland shooting.
Technically, a red flag law is an “Extreme Risk Protection Order” (ERPO) statute. Colorado’s ERPO statute took effect on January 1, 2020. CRS 13-14.5-101, et seq. It is named The Parrish III Violence Prevention Act. Parrish was a Douglas County Sheriff’s deputy who was shot and killed on December 31, 2017, by a mentally ill man.
The Parrish Act
The Parrish Act allows a court to order the relinquishment of firearms upon evidence from family members or other concerned parties that a person poses a “significant risk of causing personal injury to self or others in the future" by having or purchasing a firearm. The Parrish Act is complex and abstract. It provides for:
- Expedited hearings
- Admission of credible evidence
- Notice to the person alleged to pose the “significant risk”
As with any new law, there will be disagreements. Some public officials threaten court challenges. Act sponsor Rep. Tom Sullivan, whose son Alex was murdered on July 20, 2012, during the Aurora theater shooting, has weathered a recall effort by gun lobbyists and extremists.
Legal Context: The Second Amendment
History and context help to understand the policy tensions of gun safety legislation. The Second Amendment of the United States Constitution says: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The United States Supreme Court has held that an individual’s right to keep and bear arms is unconnected to service in a militia. District of Columbia v. Heller, 554 U.S. 570 (2008). No law can bar the right to bear arms for defensive purposes. However, even Justice Scalia, who wrote Heller, recognized that Second Amendment rights are not unlimited. The right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The Brady Bill
The Brady Handgun Violence Prevention Act established a national instant criminal background check system which can block a dealer’s gun sale to a convicted felon. Since the system’s implementation in 1998, over 200 million background checks have been conducted. About .06 percent (120,000) of these background checks result in a block of the dealer’s sale.
A less well-known provision of the Brady Bill empowers state courts to order the relinquishment of firearms in cases involving:
- Sexual abuse
- Domestic abuse
- Stalking
- Conduct placing an intimate partner or family member in reasonable fear of bodily injury
Beginning in 2013, Colorado has been one of 17 states which allow a court to enter a Brady-type order for the relinquishment of firearms or ammunition. After proof, by a preponderance of evidence, of a history of abuse, domestic violence, or threatened physical harm directed at an intimate partner, family member or former spouse, a court may order firearms relinquishment under Colorado’s Civil Protection Order (CPO) law, CRS 13-14-101, et seq.
Practical Application of CPO Cases
I have represented victims in CPO cases both privately and pro bono. CPO cases can become very complicated, very quickly. To meet the victim’s burden of proof may require:
- Medical or mental health testimony
- Information from a firearms expert
- Detailed research of hunting licenses
- Police reports
- Transcripts from prior court proceedings
Legislative Framework and Impact
When drafting the Parrish Act, Colorado lawmakers were working within the framework of:
- The Second Amendment
- District of Columbia v. Heller
- The Brady Act
- Colorado’s existing CPO statute
The Parrish Act broadens the scope of inquiry concerning risk from an identified victim to the public at large. It provides strict criteria to determine whether a gun owner presents a credible threat, outlines evidentiary standards, ensures notice of hearing and requires detailed findings to support any relinquishment order. The Parrish Act maintains appropriate constitutional safeguards against unlawful seizure of firearms.
Balancing Rights and Risk
Gun right absolutism ignores tragic experiences. Doctrinaire logic must be tempered by practical wisdom. The Second Amendment is not a “suicide pact.” Colorado’s ERPO statute may save lives. It is possible to uphold the right to bear arms while also protecting public safety.
With 40 years of practice under his belt, Jim Chalat is a senior partner at Chalat Hatten & Banker PC. He represents personal injury victims, families who have suffered from wrongful death cases and handles complex litigation involving car and truck accidents, ski cases and malpractice cases.
