Colorado’s so-called red-flag gun bill – HB19, Extreme Risk Protection Orders – feels tailor-made to divide a state such as Colorado, which has seen both its share of high-profile mass shootings as well as political ruptures on the fault line of gun control.
Since the bill, supported by Democrats, passed the state House on a party-line vote, 10 Colorado counties pledged not to enforce it, including Montezuma County. It is now up for debate in the state Senate, where Democrats also have a majority, and Gov. Jared Polis has said he is sympathetic to its intent. If he signed it into law, it would be the first significant gun legislation in the state since 2013, the last time Democrats had majorities in both houses. That ended with the recall of two state senators.
We do not look favorably on cities, towns or counties declaring themselves sanctuaries, whether it is to shield undocumented immigrants from federal law enforcement agents, or gun owners from legislation that passes Constitutional muster on Second Amendment grounds, as we believe Colorado’s red flag bill does in light of the Supreme Court’s 2008 Heller decision.
We think there may be another issue with this red-flag bill, however.
It allows a law enforcement officer or a family or household member to ask a court to recognize that a person “poses a significant risk to self or others by having a firearm in his or her custody” and issue a temporary order to take the person’s guns.
After no more than 14 days, the gun owner can respond to argue for the return of the gun or guns and will have court-appointed counsel. At that point, the court can continue the order for one year. During that year, the owner can appeal the order once, if he or she “establishes by clear and convincing evidence that he or she no longer poses a significant risk of causing personal injury to self or others” – but “the respondent has the burden of proof at a termination hearing.”
We worry that shifting the burden of proof to the accused violates the spirit if not the letter of the Fifth Amendment, that no one shall be “deprived of life, liberty, or property, without due process of law.”
There are good reasons to want to take guns from those who are thought to pose a danger to themselves and others. We need only look at the sad numbers of victims of gun violence, including suicide, and the devastated survivors. When Rhode Island proposed similar legislation a year ago, however, its branch of the American Civil Liberties Union said it was greatly concerned by the bill’s impact on civil liberties “and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.”
Nevertheless, last June, Rhode Island Gov. Gina Raimondo, a moderate Democrat whom we admire, signed it into law.
Colorado is not Rhode Island. And we think there is still time for Democrats of good will to work with Republicans in the state Senate to modify this bill.
We cannot see why the customary burden of proof must be reversed. All of the bill’s laudable aims still would be preserved and the Senate, we suspect, could get it passed with a few Republican votes, which could go a long way toward tamping these partisan fires while still making Coloradans safer.