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Colorado’s “red flag” law, passed in 2019, allows family members or law enforcement to request the temporary confiscation of firearms from people who pose a threat.

Today, the law is receiving renewed attention in the wake of a gunman attack that killed five people at Club Q, an LGBTQ nightclub in Colorado Springs. Democratic lawmakers questioned why the alleged shooter was not subject to a restraining order after a previous incident involving violent threats.

Here’s how the law works and what experts are saying about its use in Colorado.

How the law works

Red flag laws are intended to allow temporary confiscation of firearms from people deemed to be an “extreme risk” to themselves or others. Under Colorado law, restraining orders can be requested by law enforcement officers or a person’s family members, but can only be issued by a judge.

“He’s really meant to intervene on that trajectory of violence,” said Shannon Frattaroli, a professor at the Johns Hopkins Center for Gun Violence Solutions.

The process begins when the officer or family members file a petition for a temporary “Extreme Risk Protection Order” or ERPO with the court. The petitioner must provide proof of the need for the ERPO, by signing an affidavit under oath and providing a “reasonable basis to believe” that these facts exist.

The court must then hold a hearing within one working day. A judge will decide if a “preponderance” of the evidence supports the takedown case. This means that the evidence must show that the argument is “more likely to be true than false”.

If so, the judge can issue a temporary protection order, which remains in effect for a maximum of 14 days. The respondent must then surrender his firearms to law enforcement. They can also sell or transfer the firearms to a federally registered firearms dealer, and they must surrender any concealed carry permits.

The court must then hold a second hearing to determine whether the order should be continued beyond two weeks.

This time, the petitioner – again, law enforcement or family members – must establish ‘clear and convincing’ evidence that allowing the person to have firearms would pose a ‘significant risk’ for herself or for others. Defendants who do not have a lawyer are represented by a court-appointed lawyer.

If the judge makes the extended order, it stays in effect for 364 days and can be renewed by the court. After it expires, law enforcement must return all confiscated weapons to the person.

The Colorado law went into effect on January 1, 2020.

Colorado authorities don’t often use the law

According to the Johns Hopkins Center for Gun Violence Solutions, nineteen states, plus Washington DC, have “red flag” laws.

So far, authorities in Colorado have used the law far less often than in other states, according to an analysis by The Associated Press.

For example, Florida’s emission rate was ten times that of Colorado. From April 2019 to the end of 2021, Colorado courts issued 151 orders, or about 3.3 per 100,000 adults, according to AP data.

El Paso County officials used the law even less — about 2.3 removals per 100,000 adults.

County political leaders resisted the use of the law. In 2019, county commissioners voted unanimously to become a “Second Amendment Preservation County”. The Red Flag Act was then being debated in the Legislative Assembly.

Commissioners at the time pledged to “actively resist the legislation”, arguing that it was unconstitutional because it did not allow for sufficient due process before someone took up arms.

And El Paso County Sheriff Bill Elder previously placed limits on how his deputies would use the law.

In a 2020 statement, the sheriff’s office said deputies would only seek remand orders and search for firearms when they could find “probable cause” of a crime. It’s a stricter standard than required by law, which focuses on the possibility of violence – not whether someone has committed a crime.

The policy was intended to “ensure the right of individuals to be free from unreasonable searches and seizures and to enjoy due process,” according to the statement. The right to bear arms is guaranteed in the Second Amendment, and some see the red flag as a restriction on that right, as it allows the removal of weapons without a person being convicted of a crime.

Elder has not commented on the 2021 incident which apparently involved the alleged Club Q shooter.

Similar fights have unfolded elsewhere in the state, including Weld County, where Sheriff Steve Reams said he’d rather go to jail than confiscate someone’s guns. In total, more than half of counties in the state made similar claims, CPR News reported.

But authorities in many of those counties then used the orders. Kaiser Health News reported last June that protective orders had been filed in 20 of the sanctuary counties.

When motions are filed, judges often approve them. In 2020, about 85% of law enforcement filings resulted in one-year protective orders, CPR News reported.

Colorado law is similar to other states

The first national red flag law was passed in 1999 in Connecticut, and their use spread faster after the Marjory Stoneman Douglas High School massacre in Parkland, Florida.

The laws broadly follow the same pattern, but there are some variations.

For example, Colorado only allows law enforcement and family members to file the petitions. But several other states and Washington, DC allow a broader set of people to petition, including variously school administrators; doctors; and, in California, employers and co-workers.

But the biggest differentiator between states, according to Frattaroli, may be the level of enthusiasm among law enforcement officials.

Research on the effects of the laws is ongoing, as most have only been implemented in recent years. But Frattaroli sees the promise.

“This is a complex problem that has many root causes, and it needs a lot of different solutions to fix it,” the researcher said. “I see ERPO as a promising solution that has the potential to make a big difference – again, if implemented.”