ACLU Neutral on Proposed Red-Flag Gun Bill but Raises Privacy and Penalty Concerns

ACLU Neutral on Proposed Red-Flag Gun Bill but Raises Privacy and Penalty Concerns
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A bipartisan group of House leaders in Colorado have introduced a red-flag bill that would allow law enforcement to temporarily seize the firearms of those who pose a "significant risk" of harming themselves or others.

Law enforcement, victim advocates, representatives Alec Garnett and Cole Wist, and Arapahoe County District Attorney George Brauchler stood shoulder to shoulder during a press conference at the State Capitol to support the Deputy Zachary Parrish III Violence Prevention Act, which is named after a Douglas County deputy sheriff who was fatally shot this past New Year's Eve while answering a disturbance call in Highlands Ranch. Gunman Matthew Riehl was waiting for officers to respond to his call and live-streamed his shootout, during which he unloaded 100 bullets using two rifles, a shotgun and a handgun on Parrish and four deputies. Riehl was a veteran who was known to be suffering from severe mental health issues for years by several law enforcement agencies in Colorado and in Wyoming.

"This bill will save lives. This bill does not infringe upon your constitutional rights to have and to keep and to bear arms. This does not do that. It protects people who you know as well as I do should not have a gun in a mental health crisis," said Douglas County Sheriff Tony Spurlock at the press conference.

Though Colorado is no stranger to gun violence, this bill is bigger than any one incident. In the wake of the Marjory Stoneman Douglas High School shooting in Florida and the nationwide March for Our Lives protests, the gun debate has taken on a new life in statehouses across the country. Florida passed a red-flag law this year, making it the eighth state to have one in place; 28 states and Washington, D.C., are considering their own such laws.

But a surprising opponent to some red-flag legislation in the U.S. has emerged: The American Civil Liberties Union is somewhat aligned with the National Rifle Association's stance on this type of legislation.

"If we have opposed any of those bills, it's simply because there was not enough due process protections of the individuals who were being denied their guns."

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In March, the ACLU issued a fourteen-page legislative analysis in opposition to a red-flag bill winding its way through the Rhode Island statehouse, saying it had "great concern" because the bill didn't narrowly define who could or couldn't be the subject of an extreme-risk protection order to have their guns removed and that the onus was on the accused to prove that they should have their guns back, among other issues. The ACLU (and the NRA) also opposed an Obama-era proposal that would have fed information regarding the mental health of recipients of Social Security disability benefits into the FBI's background-check database for firearms purchases. The ACLU said that the rule took away people's constitutional rights without due process.

"If we have opposed any of those bills, it's simply because there were not enough due-process protections of the individuals who were being denied their guns," says ACLU of Colorado Public Policy Director Denise Maes. "That's where we have parted ways in other states on this legislation."

Colorado's red-flag bill would allow law enforcement agencies or family members to petition the courts for an extreme-risk protection order that would legally compel someone who is deemed to be dangerous to themselves or others temporarily relinquish their firearms and prevent them from purchasing any guns.

Once a petition is filed, a court hearing is scheduled in person or via telephone, if needed to accommodate a disability. The law enforcement agency or family member who is requesting the extreme-risk protection order must prove that an individual is more likely than not to cause harm to themselves or others. If they're successful, a judge will grant a temporary order of up to two weeks, during which a court hearing must be held with the potentially dangerous individual. During this hearing, the highest evidentiary standard in civil law — clear and convincing evidence — will be used to determine whether to continue the extreme-risk protection order for the full 182 days or whether to return the firearm(s) to the individual. The judge considers evidence such as credible threats of violence, recent acts of violence, patterns of behavior, mental health issues, a history of domestic violence, prior arrests, and alcohol and substance abuse.

If an extreme-risk protection order is successfully argued, the person whose firearms were seized could request a re-hearing to have the order terminated. The court could also renew the order for up to a year following the initial 182 days at the behest of family or law enforcement, which would require another court hearing. In either case, the burden of proof remains with the petitioner.

So what does the ACLU have to say about Colorado's proposal?

“Let me first say that we’re neutral on the bill. We’re not supporting it or opposing it. ... I think [Colorado's red-flag bill] reaches that bar of providing enough due process," Maes says. "There are a lot of bills out there that we decide not to play in at all. In this one, we would definitely be opposed if the due process provisions were much less or non-existent, but with those in place, it's hard for us to play in this arena.”

Republicans and Democrats in the House have worked for months on legislation that would balance those constitutional issues with giving law enforcement tools to intervene before a dangerous and, perhaps, mentally ill person takes his or her life or the lives of others.

The ACLU has raised its concerns with the bill's sponsors, including how severely the bill criminalizes those who violate a court order to surrender their firearms. According to the bill, those who have broken their extreme-risk protection order more than once could face felony charges and up to eighteen months in prison. (The first offense is a Class 2 misdemeanor and up to six months in prison.) With correctional facilities across the state over capacity, the ACLU hopes legislators will reconsider essentially creating a new crime that would further tax the state's infrastructure.

“We always worry about creating new crimes, and we also worry about...a rising prison population, so I think the state needs to be much more careful about offenses it relegates to felony status," Maes says. She is trying to persuade legislators to amend the bill to make the offense strictly a misdemeanor.

Maes also expressed privacy concerns for the accused, particularly with regard to sensitive mental health information that may be in court documents from hearings required for extreme-risk protection orders.

"Make no mistake about it: There is potential for this law to be abused," said Brauchler, who's running as a Republican for attorney general, at the Monday morning press conference. "We are lying to ourselves if we don't think that's out there. So I am skeptical of giving the government authority like this, but skepticism is not a justification for inaction. Instead, we have put together, in my opinion, the most due process-protected version of this bill in the United States of America." Brauchler added that in Indiana, a state with a twelve-year-old red-flag law, only 46 extreme-risk protection orders have ever been issued.

Here's a copy of the bill that was introduced on Monday:

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Nora Olabi covers general and breaking news for Westword with an emphasis on politics and local government. Prior to making her way to the Front Range and joining Westword in 2017, she worked at major Houston newspapers. She's a proud Houstonian who's acclimating to snow and mountain living.
Contact: Nora Olabi