by Jim Chalat
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 Feb. 14, 2018, shooting at the Marjory Stoneman Douglas High School in Parkland, Florida. These laws change the focus 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” statute. Colorado’s goes into effect on Jan. 1, 2020. It is named the Deputy Zachary Parrish III Violence Prevention Act, named after a Douglas County Sheriff’s deputy who was shot and killed on Dec. 31, 2017, by a mentally ill man.
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, the admission of credible evidence and notice to the person who is 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, at the Aurora Theater shooting, has weathered a recall effort by gun lobbyists and extremists.
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 U.S. Supreme Court has held that an individual’s right to keep and bear arms is unconnected to service in a militia. No law can bar the right to bear arms for defensive purposes. However, even late Justice Antonin Scalia, who wrote the Heller opinion, 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 Handgun Violence Prevention Act established a national instant criminal background check system which can block a dealer’s gun sale to a convicted felon. Over 200 million background checks have been conducted since 1998. About .06%(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 of sexual abuse, domestic abuse, stalking or conduct which places an intimate partner or family member “in reasonable fear of bodily injury.”
Since 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, 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 our Civil Protection Order law.
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 and/or the detailed research of hunting licenses, police reports and transcripts from prior court proceedings.
With the Parrish Act, lawmakers worked with the context of the Second Amendment, Heller, the Brady Act and the existing CPO statute. Parrish broadens the scope of inquiry concerning the risk — from an identified victim — to the public at large.
It provides strict criteria upon which to make a finding that a gun-owner is a credible threat, for the admission of evidence, notice of hearing and requires detailed findings to support any relinquishment order. The Parrish Act maintains appropriate constitutional safeguards against un-lawful seizure of firearms.
Gun right absolutism ignores our tragic experiences. Doctrinaire logic must be tempered by practical wisdom. The second Amendment is not a “suicide pact.” Colorado’s new ERPO statute may save lives. We can recognize and uphold the right to bear arms while also upholding everyone’s right to safety.
—Jim Chalat is a partner at Chalat Law