At the Greeley Tribune: Appeals court decision could upend Red Flag law in Colorado

A new Colorado Appeals court decision will almost surely lead to the state’s new Red Flag law being struck down. The law allows judges to confiscate people’s firearms on nothing more than a hunch.

 

In 2019, the Colorado House rushed to pass Red Flag legislation without even a full reading and informed debate on the House floor. That violated the state constitution.

 

Unfortunately, many legislators don’t read the bills they are voting on. The requirement to read the bill is in the Colorado state constitution for a reason: “To prevent, so far as possible, fraud and trickery and deceit and subterfuge in the enactment of bills and prevent hasty or ill-considered legislation.”

 

The legislature not only rammed through a poorly drafted bill — they also ignored that their own alternatives on the books in Colorado.

 

In Colorado, the alternative lies in Statute 27-65, which concerns involuntary treatment. All states have versions of this statute, and most have been on the books since the early 1970s. They allow police, doctors, and family members to have someone held for a mental health examination — typically for 72 hours. A judge need only be convinced that the request is reasonable.

 

These laws focus on mental illness, and they require that mental healthcare professionals evaluate the individual. If a person can’t afford a lawyer, a public defender is provided. Judges have a broad range of options, such as choosing to monitor the individual instead of resorting to involuntarily commitment. Judges can place a wide range of restrictions on individuals in exchange for not committing them.

 

But instead of utilizing these statutes, 19 states have now adopted Red Flag laws. Fifteen states passed them after the 2018 shooting at a high school in Parkland, Fla.

 

Red Flag laws are overwhelmingly used in connection with concerns about suicide. But Colorado’s law, like those in other states, doesn’t require mental-health experts be involved in evaluating the person. The only option given a judge is to take away a person’s guns.

 

Colorado requires just a “reasonable fear,” which is little more than a guess or a hunch. Judges only have a piece of paper in front of them when deciding whether or not to take away a person’s guns. When hearings occur weeks later, courts at least in other states, overturn a third of these initial orders. But since few people in those states can afford legal representation, the actual error rate is undoubtedly much higher.

 

Just taking someone’s guns away is unlikely to accomplish anything. Guns are only one means of committing suicide or causing other injury.

 

Red Flag laws can harm people who need help. Absent such laws, a person contemplating suicide might speak to a friend or family member and be dissuaded from that dire course of action. With the red flag laws, they may fear that speaking out will result in a report to authorities. They won’t even have a chance to explain their circumstances before being stripped of their ability to defend themselves and loved ones.

 

Police officers often experience depression due to their jobs. Now, they may feel that sharing their feelings will mean losing their guns and hence their jobs.

 

All this discourages getting help, and research indicates that Red Flag laws are associated with slightly higher rates of suicide.

 

Red Flag laws also let the government take firearms away from people who have been arrested but not even convicted of anything. Even simple criminal complaints without arrests have been enough.

 

So much for being innocent until proved guilty. Hopefully, courts will eventually strike down such provisions. Gun-control advocates have resisted making this presumption of guilt explicit in the laws, presumably to avoid potential legal challenges.

 

There’s no evidence of any benefits from Red Flag laws. Data from 1970 to 2017 don’t show any corresponding reductions in murder, suicide, mass public shootings, robbery, aggravated assault, or burglary rates. Lives weren’t saved.

 

Hopefully, after the Appeals Court ruling, Colorado legislators will take a close look at the existing involuntary commitment law. Some tweaking may be in order. But rather than acting as though a new law that focuses solely on guns will solve our problems, we need to protect civil rights, not strip people of them. Legislators didn’t have the guts to strip away the protections of existing law, so they made new laws to bypass them.

— Lori Saine is a former state lawmaker and current Weld County Commissioner. John Lott Jr. is the president of the Crime Prevention Research Center. Up until January, Lott worked in the US Department of Justice as Senior Advisor for Research and Statistics.

Lori Saine and John R. Lott, Jr., “Appeals court decision could upend Red Flag law in Colorado,” Greeley Tribune, November 24, 2021.