One law, several policies: How agencies are treating Extreme Risk Protection Orders

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COLORADO SPRINGS — It was ripe for a judicial showdown. An Extreme Risk Protection Order (ERPO) was filed in Lincoln County, one of the many Colorado counties declared a “second amendment sanctuary” by commissioners.

But, the judge ruled against the order. The Lincoln County Sheriff’s Office said it was in the jurisdiction of Limon Police, but admits, it sped up their process of creating a policy to deal with the law, also referred to as Red Flag Laws, that came into effect in Colorado on January 1, 2020.

The law allows for family members or law enforcement to petition a judge to take a person’s guns away if they reasonably feel that person is a threat to themselves or others.

The Lincoln County Sheriff is not alone. The Pueblo County Sheriff’s policy is under “legal review” before it is finalized and Pueblo Police say their policy is nearly done. Pueblo Police will fully follow ERPO’s, similarly to Colorado Springs Police and the Teller County Sheriff’s office.

In Teller County, Sheriff Jason Mikesell is trying to find a balance, the office says, between second amendment rights and following state law.

“I think there is a little bit of the wait and see aspect to this,” said Commander Greg Couch, the agency’s public information officer. “We feel strongly this will be challenged and that could change our calculus on everything.”

Those are legal challenges Couch refers to, as he said other counties have told the TCSO they are planning to file lawsuits over the law.

In El Paso County, Sheriff Bill Elder’s policy strikes the line between adhering to state law and protecting against what he sees as illegal search and seizures.

“Absent [a firearm] being in plain view, we are not going to conduct a search,” Elder said.

Elder said his office will serve ERPO’s but will not search for guns to seize.

Elder will treat the orders like protection orders. A person served an ERPO has 14 days to petition a judge to get their guns back. Elder said his obligation to serve the order comes from a piece of the law that starts the 14-day clock ticking down from when the judge makes an order, not when law enforcement serves it.

“If you don’t serve the order, the respondent could potentially have the time period expire and it becomes a permanent order even without the respondent appearing,” Elder said.

In Colorado Springs, the city’s police will fully carry out ERPO’s from the court.

“If that requires a search warrant to fully comply with the judge’s order then we’ll apply for a search warrant in order to do that,” said Lt. James Sokolik, the agency’s public information officer.

Elder recognizes the differences between his policy and those of agencies like CSPD.

“Our policy is significantly more conservative than theirs is and that goes along with a request for assistance,” Elder said. “Should one of these things go sideways, they’re going to have to have in hand, a signed search warrant before we will engage.”

There is already one lawsuit filed against the ERPO bill passed and signed in Spring 2019. In that suit, the Rocky Mountain Gun Owners Association claims lawmakers improperly passed the legislation. The legal action is still pending.

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