Colorado's Red Flag Law : A Guide to Extreme Risk Protection Orders

Under Colorado's version of what's commonly known as a "red flag law," courts may issue extreme risk protection orders (ERPOs) to prohibit individuals (called "respondents") from having firearms if they pose a significant risk of gun violence to themselves or others. Read on for details on who may request those orders, what kind of proof is needed, how hearings and the rest of the process work, how respondents can oppose ERPOs, and how the orders will be enforced.

Who Can Request Extreme Risk Protection Orders in Colorado?

Colorado allows law enforcement or members of the respondent's family or household to request an ERPO. The law's definition of a family or household member includes anyone who:

• is related to the respondent by blood, marriage, or adoption
• has a child with the respondent
• lives regularly with the respondent, or has done so within the last six months
• is the respondent's former spouse
• is or has been in an intimate, couple relationship with the respondent, or
• is the respondent's legal guardian.

(Colo. Rev. Stat. §§ 13-14.5-102, 13-14.5-104(1) (2021).)

How to Request a Colorado ERPO

In order to request an extreme risk protection order, complete a petition and affidavit for a temporary extreme risk protection order. You should provide detailed, specific information to support your reasonable fear that the respondent will do something dangerous, and that having access to a gun is likely to lead to injury (to self or others). If you have any information about guns that the respondent has—or about existing protection orders or other legal actions between you or the respondent—you must include that as well.

You'll need to sign the petition and affidavit in front of a court clerk or notary public and file the form with the court in the county where the respondent lives. There's no fee for filing the petition.

You also need to show up at the hearing for the temporary ERPO, which must be held on the same day you file the petition or the next court day. The judge may hold this hearing by phone if you have a disability or it's necessary to protect you from harm. There's no requirement that the respondent learn about or appear at this temporary ERPO hearing.

If the court grants the petition, the temporary ERPO will last only until the hearing on a final ERPO—which must be scheduled within 14 days. Both the petitioner and the respondent can and should appear at this hearing and present evidence (more on that below).

Technically, it's possible to skip the process of requesting a temporary ERPO and go straight to filing a petition for a final ERPO. The court may issue a temporary order before the hearing takes place. But if it doesn't do that, the respondent would know about the proceedings and still have access to guns at least until the hearing—and might pose an even greater risk of violence. (Colo. Rev. Stat. §§ 13-14.5-103, 13-14.5-104, 13-14.5-105 (2021).)

What If a Petitioner Lies to Request an ERPO?

Petitioners may face criminal charges for filing malicious or false petitions for extreme risk protection orders in Colorado. Although the state's red flag law doesn't specifically say what those criminal charges might be, lying on the petition and affidavit—which must be signed under oath and penalty of perjury—could be considered second-degree perjury (a class 1 misdemeanor in Colorado) if the false statement was material and was meant to mislead the court. (Colo. Rev. Stat. §§ 3-14.5-113, 18-8-503 (2021).)

What Proof Does Colorado Require for an ERPO?

Colorado law requires two different standards of proof for the court's decisions at different stages of the proceedings for extreme risk protection orders. Because a temporary ERPO lasts only two weeks (at the most), the standard of proof is lower: a preponderance of the evidence. This means that the court must issue a temporary order if it finds that more than 50% of the evidence shows the respondent poses a substantial risk in the near future of causing injury (including suicide) by having access to a firearm.

However, stronger proof is needed for the court to issue a final ERPO (which lasts for 364 days), to renew the order, or to grant the respondent's request to terminate an ERPO. At these hearings, the evidence of risk must be "clear and convincing," which means it's highly probable that the evidence is true. In order to make that finding, the court may question the petitioner, the respondent, and other witnesses; it may also consider sworn affidavits, as well as any other relevant evidence. (Colo. Rev. Stat. §§ 13-14.5-103, 13-14.5-105, 13-14.5-107 (2021).)

What Are Your Rights in Colorado to Oppose an ERPO?

If someone requests a temporary ERPO against you, you won't necessarily find out about it until you're served with notice that the court has issued the temporary order—at which point you'll be required to surrender any guns in your possession. After that, however, the Colorado red flag law gives you important rights to fight against the order in upcoming proceedings—and potentially get your guns back—including the right to:

• receive information about the hearing on the final ERPO (which will be included in the notice of the emergency order), and
• attend the hearing and present evidence and witnesses on your behalf.

Most importantly, you have a right to have a lawyer represent you at the hearing. So if you've been served with a temporary ERPO, it would be wise to speak with an attorney as soon as you can. Although the hearing will come up quickly, a lawyer who's experienced with handling restraining orders should be able to help gather the evidence you need to challenge the ERPO as well as give you expert representation at the hearing itself—including cross-examining witnesses.

If a judge has already issued a final ERPO against you, an attorney can also help you file a request to have the order lifted and represent you at the hearing on that request. (Colo. Rev. Stat. §§ 13-14.5-105, 13-14.5-106, 13-14.5-107 (2021).)

Surrendering Guns: How ERPOs Are Enforced in Colorado

Once a court has issued an extreme risk protection order (including a temporary order) against you, you are required to surrender any guns and concealed carry permit that you have. When officers serve you with the ERPO, they must take possession of the surrendered weapons, as well as any guns that are in plain sight or that the officers find through a legal search. According to your preference, the weapons will be transferred or sold to a licensed dealer, or the law enforcement agency will keep them in storage.

When law enforcement files an ERPO petition, it may apply for a search warrant at the same time. Then, if the court has issued the warrant, officers will carry out the search when serving the order.

The person who requested the ERPO—or any law enforcement officer—may file an affidavit to inform the court that the respondent hasn't surrendered all of his or her firearms. The affidavit should describe the guns and the places to be searched if the court issues a search warrant.

Violation of an ERPO is a class 2 misdemeanor in Colorado. The judge must refer your case to a local veterans court if you're a military veteran and are facing eligible criminal charges related to service or enforcement of an ERPO. (Colo. Rev. Stat. §§ 3-14.5-106, 13-14.5-108, 13-14.5-111, 16-3-301.5 (2021).)

Getting Your Guns Back After an ERPO in Colorado

If you've surrendered any guns (or had them taken from you) under an ERPO, those weapons must be returned to you within three days after the order is lifted or expires without being renewed—but only after a criminal history check confirms that you're eligible to have firearms under federal and state law. (Colo. Rev. Stat. § 3-14.5-109 (2021).)