Every man, whether he is conscious of it or not, has drawn a line in the sand behind which he will not retreat. Most Americans have ancestors who defended that line when it was crossed by government tyranny. It is now being crossed in Colorado.
Colorado Governor Jared Polis signed into law in April an Extreme Risk Protection Order bill, making it the 15th state to pass what are known as “red-flag laws.” Beginning in January 2020, this law will give judges the power to seize firearms from people who are thought to be at high risk of harming themselves or others.
A household member, family, or even a police officer could petition a court, claiming that someone is “dangerous” or “crazy.” If a judge thinks that allegation is credible, that person’s primary means of defending himself and his family may be confiscated by the state.
The standard of proof for granting red-flag petitions is “preponderance of the evidence.” This is a much lower standard than the “proof beyond a reasonable doubt” needed to convict someone who has been accused of committing an actual crime, and lower still than the “probable cause” standard needed for search warrants and arrests.
Preponderance of the evidence is the lowly standard used in civil litigation. Yet it can soon be used in Colorado to deprive citizens of their firearms, even if they are not accused of any crime. Suppose an affidavit is signed by a jilted lover, or a wayward son scorned over a lack of inheritance, or an officious policeman who feels his authority was not adequately respected. Such an individual would merely have to persuade a judge that the firearm owner in question is an “extreme risk.”
Rest easy, we are told. The affidavits from the complainants in these cases are signed under oath and under the penalty of perjury. Surely that will protect the innocent from frivolous allegations stemming from a spiteful family member bent on revenge. These are the same type of flimsy affidavits casually signed by those you see renewing their delinquent car tags at the DMV, whereby they avoid a late fee by swearing that they have never actually driven the vehicle in question during the months its tag has been expired. What could go wrong?
During the press conference celebrating his signature, Gov. Polis sadly informed us, “This law will not prevent every shooting.” Thanks, governor, for that bit of enlightening information. When you finally get a bill on your desk that will, count me on board.
Polis also ensured us that a “court order…helps make sure they don’t harm themselves or others.” This is sheer nonsense. Any sane person knows many ways one could harm oneself or others without using a firearm.
And, of course, Polis concluded with a talking point that should be a “red flag” to any of us who have been paying attention: Think about the children. “Today we may be saving the life of your nephew, your niece, your grandchild,” he said. Translation: If you are against this law, you have no qualms about having your precious family members gunned down.
There is one thing I know for certain from the 19 years I’ve spent working in criminal justice. Family and household members will lie on affidavits and depositions in order to exact revenge or get the legal upper hand. Filing a false police report is a crime, and sadly many more do it than are convicted of doing it.
We are treading on dangerous ground here. Heretofore, Americans have operated on the understanding that one must actually have to do something to be punished. With these red-flag laws, you do not actually have to do anything. Along with the low-threshold standard of evidence, the burden of proof is on the accused. If someone uses these laws to accuse you, as a firearm owner, of being mentally unstable, you must prove to a judge that you are not. Otherwise, the state will take your firearms by force of law. Not only do you not have to be convicted of a crime, you do not even have to be accused of one.
At least 11 sheriffs across Colorado have said they will not enforce the law, reinvigorating the theory once known as the doctrine of the lesser magistrate—the idea that lesser civil authorities have the right to refuse an unjust decree from a higher civil authority. In the immediate aftermath of the governor’s signing, about half of the counties in Colorado declared themselves Second Amendment sanctuary counties, where sheriffs and judges will be discouraged from acting on the new law in the interest of preserving citizens’ liberties.
President Obama once derided working-class Americans:
. . . they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.
Now it’s gun-control proponents who are frustrated at having failed to enact federal gun confiscation law. They’re now focusing on the local level and more measured, incremental steps eroding our rights.
The fight is now between those local authorities who are eager to flex their power by testing the line drawn by the Second Amendment, and those who are willing to defend it.