To: Honorable Mayor and Members of Town Council
From: Robert J. Slentz, Town Attorney
Elizabeth Allen, Assistant Town Attorney
Title
Town Attorney’s Report: HB19-1177
Body
________________________________________________________________________________
At the direction of Town Council, the Town Attorney’s office, in collaboration with the Town Manager’s office and the Castle Rock Police Department, has prepared an overview of the impacts of HB19-1177 to the Town. Additionally, this Memorandum serves to answer the follow questions directed at staff:
1. How does Charter Section 1-5. - Constitutional Rights impact HB19-1177?
2. Is HB19-1177 constitutionally valid?
3. What are other jurisdictions doing?
4. How does HB19-1177 impact CRPD?
HB19-1177 Summary
HB19-1177 (Attachment A) creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (“ERPO”) beginning on January 1, 2020. The petitioner must establish by a preponderance of the evidence that the respondent poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm. The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist. The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed.
After issuance of a temporary ERPO, the court must schedule a second hearing no later than 14 days following the issuance to determine whether the issuance of a continuing ERPO is warranted. The court shall appoint counsel to represent the respondent at the hearing. If a family or household member or a law enforcement officer establishes by clear and convincing evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm, the court may issue a continuing ERPO. The ERPO prohibits the respondent from possessing, controlling, purchasing, or receiving a firearm for 364 days.
Upon issuance of the ERPO, the respondent shall surrender all of his or her firearms and his or her concealed carry permit if the respondent has one. The respondent may surrender his or her firearms either to a law enforcement agency or a federally licensed firearms dealer, or, if the firearm is an antique or relic or curio, the firearm may be surrendered to a family member who is eligible to possess a firearm and who does not reside with the respondent. If a person other than the respondent is determined to be the lawful owner of any firearms surrendered to law enforcement, the firearm must be returned to him or her.
The respondent can motion the court once during the 364-day ERPO for a hearing to terminate the ERPO. The respondent has the burden of proof at a termination hearing. The court shall terminate the ERPO if the respondent establishes by clear and convincing evidence that he or she no longer 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. The court may continue the hearing if the court cannot issue an order for termination at that time but believes there is a strong possibility the court could issue a termination order prior to the expiration of the ERPO.
The petitioner requesting the original ERPO may request an extension of the ERPO before it expires. The petitioner must show by clear and convincing evidence that the respondent continues to pose a significant risk of causing personal injury to self or others by having a firearm in his or her custody or control or by purchasing, possessing, or receiving a firearm. If the ERPO expires or is terminated, all of the respondent's firearms must be returned within 3 days of the respondent requesting return.
Discussion
1. How does Charter Section 1-5. - Constitutional Rights impact HB19-1177?
In 2014, the registered electors amended the Town Charter to add Section 1.5 as follows:
Section 1-5. - Constitutional Rights.
Any restriction or limitation on the rights of citizens to keep and bear firearms enacted by the Town Council shall require the approval of the registered electors as a referred measure under Section 15-4 of this Charter. This Section shall not apply to Town Council action which makes unlawful the discharge or brandishing of firearms. This Section shall govern and control over Articles II and VII or any other conflicting provision of this Charter, and shall apply only to Council action taken after its adoption.
Section 1-5 applies to any action by Town Council to regulate firearms within the Town. HB 19-1177 was adopted by the State General Assembly and signed by the Governor. As such, the regulation of firearms is not the result of any action by Town Council. Rather, the regulation originates at the State level, as a matter of statewide concern. Therefore, although HB 19-1177 conflicts with the spirit of the Charter, Charter Section 1.5 does not apply to HB 19-1177.
2. Is HB19-1177 constitutionally valid?
Colorado Revised Statutes § 2-4-201 states that legislation is presumed to be in compliance with the Colorado and United States Constitutions. Therefore, absent a lawsuit or judicial review, HB19-1177 is presumed constitutionally valid. To date, no lawsuits have been filed in Colorado challenging the constitutionality of HB19-1177. Furthermore, of the 14 other jurisdictions with some variation of Colorado’s ERPO Law (Attachment B), two statutes have been constitutionality challenged, with both being upheld as constitutional.
3. What are other jurisdictions doing?
In response to HB19-1177, many Colorado counties have adopted resolutions affirming their residents’ Second Amendment rights. Locally, the Board of County Commissioners for Douglas County passed a resolution “regarding citizens’ Constitutional rights, public safety and mental health” (Attachment C). In the resolution, the Board said it “will continue to work to ensure that Douglas County will be a safe place for individuals to pursue their God given rights, liberties, and freedoms in peace and prosperity.” Further, the Board said it will “fund the enforcement of only those duly enacted state laws that fully respect and support the Constitutional rights of our citizens, including their rights to due process, to bear arms, and to defend themselves from evil.”
To date, one municipality that the Town is aware of, Commerce City, has also adopted a similar resolution. Commerce City’s resolution declared support for lawful gun owners and declared Commerce City a “Second Amendment Sanctuary” (Attachment D). The City further went on to say in its resolution that it should not “be construed to modify or repeal any existing laws, policies, or regulations of Commerce City or to direct any employee of Commerce City in any manner, including to take an action in violation of any law or court order.” Mayor Pro Tem Rick Ticker further explained that the City will enforce the law which allows judges to confiscate the guns of people deemed a danger to themselves or others. He wants to send a message to lawmakers.
The Board of County Commissioners for Weld County adopted a resolution with language similar to the Commerce City resolution, declaring Weld County a “Second Amendment Sanctuary County” (Attachment E). The resolution says the Board supports the County Sheriff “in his exercise of his sound discretion not to enforce against any citizen an unconstitutional firearms law.” Further, the Board said in its resolution it would not appropriate funds for the purpose of storing weapons seized pursuant to HB19-1177.
4. How does HB19-1177 impact CRPD?
HB19-1177 requires that law enforcement agencies have a policy and training in place by January 1, 2020, the first date that ERPO’s may be issued. Therefore, the focus of CRPD has been to develop a policy and train our officers to ensure that they are fully prepared to follow any judicial orders. Since the execution of ERPO’s will involve new procedures and protocols for our officers, it is imperative to ensure adequate time to prepare our officers for these potentially emergent situations. CRPD is working with the Town Attorney’s Office to adopt a policy that complies with the minimum requirements of HB19-1177, ensuring that CRPD’s values of community policing are present in any policy and subsequent implementation.
Conclusion
The Town Attorney’s office will continue to work with Castle Rock Police Department to ensure that policies and practices are in place by the January 1, 2020 deadline imposed by HB19-1177. The Town Attorney’s office will continue to monitor HB19-1177 for any potential lawsuits challenging the constitutionality of the statute and will update Town Council if/when said lawsuit is filed and will advise on potential actions thereafter.
Attachments
Attachment A: HB19-1177
Attachment B: 2018 Federal Commission on School Safety Chapter 11: ERPO Laws & Recommendations
Attachment C: Douglas County Commissioners Resolution
Attachment D: Commerce City Council Resolution
Attachment E: Weld County Commissioners Resolution