(Editor’s note: The following is written testimony of David B. Kopel on Colorado Senate Bill 26-004, which significantly expands who can file a court petition to confiscate an individual’s guns under the state’s ‘red flag’ law. Submitted to the Colorado Senate State, Veterans, and Military Affairs Committee. The bill passed out of the Democrat-controlled committee Jan. 27 on a party line vote, 3-2.)
Executive summary
A University of Colorado School of Medicine study on Colorado gun confiscation shows the following:
- 75% of law enforcement petitions for confiscation are ultimately found to be valid.
- Only 11% of confiscation petitions from family and romantic partners are ultimately found to be valid.
- Twenty percent of all confiscation petitions are granted when the court hears only one side, but then are reversed when the court hears both sides.
Therefore:
- The extremely poor rate of legitimate petitions from non-law enforcement persons shows that the State needs to do a much better job of informing the public how to file proper petitions.
- Fixing the serious problems with non-law enforcement petitions should precede recklessly expanding a broken system to generate even more low quality petitions.
- To address the problem of 20% of ex parte petitions improperly leading to gun confiscation from non-dangerous persons, Colorado should adopt the Vermont rule that a petitioner seeking to proceed ex parte must show “specific facts” that “the respondent poses an imminent and extreme risk of causing harm.”
I have testified before the United States Senate Judiciary Committee and the U.S. Senate Subcommittee on the Constitution in support of “red flag” laws, if such laws are properly structured to protect public safety and due process.[1] Colorado’s law is having serious problems and needs to be fixed. Proposals for further expansion at this stage are reckless and irresponsible.
Plain title violation
Senate Bill 26-004 drastically expands who may file a court petition for confiscation of a citizen’s firearms. Like most bills on the topic, this bills’s title is intentionally deceptive. The title is “Concerning who may petition a court for an extreme risk protection order.” As at least the supporting lobbyists know, “extreme risk” is a falsehood. Current Colorado law provides for gun confiscation based upon “a significant risk,” not an “extreme” one.[2]
Therefore, SB26-004 violates the plain title Colorado constitutional requirement for legislation, that the “one subject” of a bill “shall be clearly expressed in its title.” Colo. Const., art. V, § 21, A bill title about “extreme risk” that instead applies to something much lesser, “a significant risk” is a calculated decision to deceive the public and the media.
To comply with article V, section 21, SB26-004 should be amended so that the word “extreme” is stricken from the title. The only purpose of keeping the word in the title is continuing deception.
University of Colorado School of Medicine study
A detailed study of firearms confiscation orders in Colorado was conducted by authors from University of Colorado School of Medicine. The authors are part of the school’s Firearm Injury Prevention Initiative and similar projects. The study examined Colorado confiscation petitions from 2020 to 2022, a period when only law enforcement officers, family members, or romantic partners (broadly defined) could file confiscation petitions.
The study’s data show serious flaws in the existing gun confiscation system. These flaws should be addressed before partly dysfunctional system is further expanded.
According to the CU Medicine data, confiscation petitions filed by law enforcement officers tend to be relatively high quality at every stage, and petitions from other persons tend to be very low quality.
Of the 193 ex parte petitions by law enforcement officers for temporary gun confiscation in 2000 to 2002, 182 were granted, and 11 were denied or dismissed. (All data are in Table 2 of the article.)
Then, when the person whose guns had already been confiscated was later given an opportunity to be heard, final confiscation orders were granted in 145 cases, and denied or dismissed in 37.
In other words, when there is no due process — no chance for the target of the petition to defend himself or herself — the law enforcement petition is granted 94.3% of the time. When due process is allowed later, law enforcement succeeds in 79.7% of cases,
The data indicate that 14.6% of gun confiscation petitions sought by law enforcement are granted improperly. That is, when the court heard only one side, confiscation was ordered, but when the court later heard both sides, confiscation was denied. Thus, about 1 in 8 law enforcement petitions for gun confiscation results in incorrect temporary confiscation of firearms, because the court was only allowed to consider evidence from one side.
Put another way, of the 193 petitions filed by law enforcement, 145 resulted in a final order once both sides were heard. Meaning about 75 percent of law enforcement petitions filed (145 of 193) appear to have had a strong factual basis.
The petitions filed by family members and romantic partners were considerably lower quality. At the “temporary” stage, before the individual could defend himself or herself, 56 family/romantic partner petitions were granted, and 104 were denied. This means that even when the person in favor of gun confiscation was the only person the court heard from, the evidence was so lacking that the court ruled against confiscation 65% of the time
After the 56 ex parte petitions were granted, the targeted individual later received a day in court. Then, the court found that the majority of the temporary petitions should be denied or dismissed. Once the target was given the opportunity to be heard, only 22 of the 56 temporary confiscation orders were made permanent. Thus, over 60% of the temporary confiscation orders obtained by family and romantic were later found to be incorrect.
In other words, when a family member or romantic partner files a gun confiscation petition, there is only an 11% chance (22 out of 170) that the petition will stand up under due process. Eighty-nine percent of petitions from family members and (former) romantic partners turn out to be invalid.
As demonstrated by the 89% failure rate for petitions filed by the general public, the State of Colorado has done an abysmal job of educating members of the public how to file proper petitions for gun confiscation. As with so much of what has transpired in Colorado state government in recent years, the General Assembly and the Executive Branch have been eager self-congratulators at signing ceremonies for new legislation, and failures at effective follow-through for successful implementation.
Rather than expanding on failure, the advocates of SB26-004 ought to get to work on finding out why the system they designed works so poorly for the general public.
Fixing the enormous error rate for temporary petitions
The CU study covered 353 gun confiscation petitions. Of these, 167 ultimately led to a year-long renewable order against an individual possessing firearms.
Unfortunately, along the way to disarming those 167, the Colorado system improperly disarmed 71 other people. This is a disarmament error rate of 29.8% (71 of 238). The 71 wrongfully disarmed petitions were 37 from law enforcement petitions and 34 from family/romance petitions.
In other words, for nearly one-fifth (19.56%) of all gun confiscation petitions, the respondent was wrongfully disarmed during an ex parte hearing. The confiscation order was issued when the person had no notice and could not present his side. Later, after the person’s guns had already been confiscated, the person was granted a hearing, and the confiscation was then denied or dismissed. For any given confiscation petition, there is about a 20% chance that a Coloradan’s firearms will be wrongfully confiscated, and (hopefully) eventually returned.
Because 20% of Colorado confiscation petitions result in wrongful confiscation, the confiscation statute should be revised so that ex parte proceedings are authorized only when the petitioners can show some reason why ex parte is necessary. For example, in Vermont, a petitioner who seeks to proceed ex parte must show “specific facts” that “the respondent poses an imminent and extreme risk of causing harm.” Vt. Stats. tit. 13 § 4054.
For persons and lobbies motivated by animus against gun owners in general, that Colorado’s current system confiscates guns from innocent people 20% of the time may be a cherished feature. For sensible persons concerned with protecting both public safety and civil rights, the Colorado confiscation system is in need of reform.
David B. Kopel is research director at Independence Institute, a free market think tank in Denver.
[1] U.S. Senate Subcommittee on the Constitution. Hearing on Red Flag laws. Apr. 28, 2021. Written testimony.
U.S. Senate Judiciary Committee, written testimony on “Red Flag Laws: Examining Guidelines for State Action.” Hearing on mental health and gun legislation. Kopel starts at 31:36. March 26, 2019. Supplemental Questions for the Record, from Sen. Grassley.
[2] C.R.S. § 13-14.5-103(3) (ex parte, preponderance of evidence, temporary confiscation); § 13-14.5-105(2) (long-term confiscation, clear and convincing evidence, right to defend oneself).
