Larimer County Extreme Risk Protection Order Attorney
In Fort Collins and Larimer County, a law regarding firearm possession and mental health becomes effective January 1, 2020 called the Extreme Risk Protection Order or the Red Flag Law. This law offers an avenue for a family / household member or law enforcement agency to request the court enter an order taking away someone’s right to possess firearms. This appears to be our lawmakers’ response to the increase in mass shootings and suicides. It provides that if police or a family member thinks that a person is at risk for harming themselves or others, they can request the court enter an Extreme Risk Protection Order, which automatically denies them access to their firearms. It has a huge risk for abuse and denial of our 2nd Amendment Rights as citizens.
Specific Issues Related to Extreme Risk Protection Orders
Petition for Extreme Risk Protection Order in Fort Collins What is the Process for Obtaining an Extreme Risk Protection Order?
To start, a family member, household member, or law enforcement agent must file a Petition for Extreme Risk Protection Order with the Larimer County Court (or whichever jurisdiction the respondent resides in). Under C.R.S. 13-14.5-104(3), a Petition for Extreme Risk Protection Order must include the following:
(a) Allege that the respondent poses a significant risk of causing personal injury to self or others by having in his or her custody or control a firearm or by purchasing, possessing, or receiving a firearm and must be accompanied by an affidavit, signed under oath and penalty of perjury, stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent;
(b) Identify the number, types, and locations of any firearms the petitioner believes to be in the respondent’s current ownership, possession, custody, or control;
(c) Identify whether the respondent is required to possess, carry, or use a firearm as a condition of the respondent’s current employment;
(d) Identify whether there is a known existing domestic abuse protection order or emergency protection order governing the petitioner or respondent;
(e) Identify whether there is a pending lawsuit, complaint, petition, or other action between the parties to the petition; and
(f) If the petitioner is not a law enforcement agency, identify whether the petitioner informed a local law enforcement agency regarding the respondent.
Once the petition is filed with the court, a hearing date is set. The court will automatically assign an attorney for the respondent. This attorney will be listed on the Notice of Hearing document that will be served to the respondent. The petitioner (if a family or household member) must notify the local law enforcement agency about the petition and hearing date.
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Loveland Red Flag Temporary Extreme Risk Protection Orders When a Protection Order is Entered Without Your Knowledge or Notice
Along with the Petition for Extreme Risk Protection Order, the filing party can include an affidavit, signed under oath and penalty of perjury, requesting an immediate issuance of a Temporary Extreme Risk Protection Order (C.R.S. 13-14.5-103). The affidavit must include:
• Facts that establish why the Extreme Risk Protection Order is necessary or reasons for believing it is necessary; and
• Confirmation that the filing party is a family member or household member to the respondent.
A law enforcement agent can also file for this type of order and along with their request, must file a search warrant. The court will hold a hearing on the day or immediately following the day the Temporary Extreme Risk Protection Order is filed. If at the hearing, the court finds there is sufficient evidence presented that the respondent is a threat to themselves or others, then the temporary order will be entered. Within 14 days the court must hold a hearing to determine if the temporary order should be extended to the 364-day Extreme Risk Protection Order. The court must provide a copy of the temporary order to the respondent along with the notice of the hearing. The temporary order is set to expire on the date of the hearing. Once the respondent is served with the paperwork, they are required to surrender all firearms and concealed carry permits to the listed law enforcement agency.
Hearing on Petition for Extreme Risk Protection Order What Does an Extreme Risk Protection Order Hearing Entail in Larimer County or Weld County?
Upon the filing of a Petition for Extreme Risk Protection Order, the Larimer or Weld County court must set a hearing date. The court clerk will send a copy of the petition and notice of hearing to the Fort Collins Police or Larimer County Sheriff to serve the respondent with the paperwork. During the hearing, the court will consider the following in determining whether to issue a 364-day Extreme Risk Protection Order, according to C.R.S. 13-14.5-105:
(a) A recent act or credible threat of violence by the respondent against self or others, whether or not such violence or credible threat of violence involves a firearm;
(b) A pattern of acts or credible threats of violence by the respondent within the past year, including but not limited to acts or credible threats of violence by the respondent against self or others;
(c) A violation by the respondent of a civil protection order issued pursuant to article 14 of this title 13;
(d) A previous or existing extreme risk protection order issued against the respondent and a violation of a previous or existing extreme risk protection order;
(e) A conviction of the respondent for a crime that included an underlying factual basis of domestic violence as defined in section 18-6-800.3 (1);
(f) The respondent’s ownership, access to, or intent to possess a firearm;
(g) A credible threat of or the unlawful or reckless use of a firearm by the respondent;
(h) The history of use, attempted use, or threatened use of unlawful physical force by the respondent against another person, or the respondent’s history of stalking another person as described in section 18-3-602;
(i) Any prior arrest of the respondent for a crime listed in section 24-4.1-302 (1) or section 18-9-202;
(j) Evidence of the abuse of controlled substances or alcohol by the respondent;
(k) Whether the respondent is required to possess, carry, or use a firearm as a condition of the respondent’s current employment; and
(l) Evidence of recent acquisition of a firearm or ammunition by the respondent.
Both the respondent and the petitioner will have the opportunity to present evidence and cross-examine any witnesses during the hearing. During the hearing, the court can also determine if a mental health evaluation is necessary or if the respondent should be held for an emergency commitment.
Fort Collins, Loveland and Estes Park Extreme Risk Protection Order
If the court finds sufficient evidence that a Fort Collins, Loveland or Estes Park Extreme Risk Protection Order is necessary, then they will enter the order. This order must include:
• A statement of the grounds supporting the issuance of the order;
• The date and time the order was issued;
• The date and time the order expires;
• The address of the court in which any responsive pleading should be filed;
• The requirements for relinquishment of a firearm and concealed carry permit pursuant to section 13-14.5-108; and
• The following statement:
To the subject of this extreme risk protection order: This order will last until the date and time noted above. If you have not done so already, you must immediately surrender any firearms in your custody, control, or possession and any concealed carry permit issued to you. You may not have in your custody or control a firearm or purchase, possess, receive, or attempt to purchase or receive a firearm while this order is in effect. You have the right to request one hearing to terminate this order during the period that this order is in effect, starting from the date of this order and continuing through any renewals. You may seek the advice of an attorney as to any matter connected with this order.
Second Amendment Conflict Surrendering a Firearm in Larimer County
When an Extreme Risk Protection Order is entered, it is in conflict with our country’s generous Second Amendment right to possess guns and firearms. Regardless, the respondent is required to surrender their firearms by one of the following methods:
1. Sell or transfer possession of the firearm to a firearms dealer;
2. Arrange for storage of the firearm by a law enforcement agency; or
3. Only for an antique firearm, curio, or relic – transfer possession to a relative who does not live with the respondent as long as the relative is legally eligible to own or possess a firearm.
When the Temporary Extreme Risk Protection Order is served on the respondent by law enforcement, the respondent must immediately surrender all firearms and concealed carry permit to the agent. Once the law enforcement agent has custody of the firearms, the respondent can inform the agency whether they want to sell, transfer, or store the firearms (likely at an innocent party’s expense). Law enforcement will keep possession of the firearms until they are sold or transferred. This is also the case if the respondent fails to appear at the hearing and the order is entered and needs to be served. If, after a hearing, the Extreme Risk Protection Order is entered and the respondent was present at the hearing, they have 24 hours to surrender the firearms and concealed carry permit to law enforcement.
Termination or Renewal of a Fort Collins, Loveland and Estes Park Extreme Risk Protection Orders
An Extreme Risk Protection Order issued in Fort Collins, Loveland and Estes Park is valid for 364 days, as stated on the order paperwork. During those 364 days that the order is valid, a person can submit a written request for a hearing to terminate the Extreme Risk Protection Order. The court will set a date for the hearing fourteen days after the request is filed and notice of the hearing must be served on the original person who filed the petition. If the respondent can show clear and concise evidence that they are no longer a threat to themselves or others, then the order can be terminated. We expect that this will rarely occur. Judges and government officials will fear career pressure to never return guns to anyone.
Sixty-three days before the Extreme Risk Protection Order is set to expire, the court must notify the petitioner of the impending expiration. The petitioner can file a motion to renew the order any time before the stated expiration date. If a motion is filed, the court must set a hearing and the respondent must be personally served the hearing notice. The court will again hear the evidence from both sides and make a determination regarding renewing the order. The court can renew the order for any amount of time, but not to exceed one year.