By: Jessica A. Saldin
During the 2019 regular session, Colorado’s legislature passed a new law regarding protection orders. This law did not replace or change the old law; it simply forms a separate protection order basis. This new law governs what are now called “Extreme Risk Protection Orders.” This new law allows a family member or household member of an individual, or a law enforcement officer or agency, to file a petition for a temporary extreme risk protection order.
The issue of these extreme risk protection orders has been the subject of much debate in the media over the last few months. The intent of this blog post is not to weigh in on the political ramifications of the issue or to advocate for either side. Rather, the intent is to provide legal information regarding these new orders, which might, in some extreme circumstances, intersect with family law cases. It should be noted that with restraining orders between domestic partners, federal law requires the removal of firearms anyway. Thus, it is more likely that these types of orders will be sought in non-domestic violence situations. Of course, that’s yet to be seen.
Much like other protection orders in Colorado, this request is filed without notice to the individual against whom a protection order is being sought. Unlike other protection orders in Colorado, though, the sole basis and focus of an extreme risk protection order is whether an individual’s possession of firearms pose a significant risk of causing personal injury to oneself or others. Therefore, the petitioner requesting such a protection order must make this allegation, and must be accompanied by an affidavit stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the restrained individual. The petition must also identify the number, types, and locations of any firearms though to be in the restrained party’s ownership, possession, custody or control; whether the restrained party is required to possess, carry or use a firearm as a condition of employment; whether there is a known existing other protection order regarding either party; whether there is a pending lawsuit or action between the parties; and, whether the requesting party informed a local law enforcement agency regarding the restrained party. Also, unlike other protection orders, this law specifically requires the filing party, to the best of their ability, to notify the law enforcement agency in the jurisdiction where the restrained party resides, of the petition and hearing date with enough advanced notice that the law enforcement agency can participate in the hearing if they so choose.
Similar to other protection orders, once the petition is filed, the court may grant a temporary extreme risk protection order without the restrained party’s participation. However, a hearing must be scheduled for the restrained party’s participation within 14 days of the date the temporary order is issued. Unlike other protection orders, the question at that hearing is not whether the extreme risk protection order should be made “permanent” but whether a 364 day extreme risk protection order should be issued.
If a temporary extreme risk protection order is issued, it will require the restrained party to surrender all firearms in their custody, control or possession, and any concealed carry permit issued to them, to the law enforcement agency in their jurisdiction. At the hearing, the court then has to determine if, by clear and convincing evidence, the restrained party poses a significant risk of causing personal injury to themselves or others by having in his or her custody or control a firearm, or by purchasing, possession, or receiving a firearm. In determining whether such grounds exist, the court may consider any relevant evidence. Examples of relevant evidence in the statute include:
- A recent act or credible threat of violence against self or others, whether or not such involved a firearm;
- A pattern of acts or credible threats of violence within the past year;
- A violation of a civil protection order;
- A previous or existing extreme risk protection order and a violation of such;
- A conviction for a crime that included an underlying factual basis of domestic violence;
- The ownership, access to, or intent to possess a firearm;
- A credible threat of, or the unlawful or reckless use of, a firearm;
- The history of use, attempted us, or threatened use of unlawful physical force against another person, or history of stalking another person;
- Any prior arrest for a crime listed in C.R.S. 24-4.1-302(1) or 18-9-202;
- Evidence of the abuse of controlled substances or alcohol
- Whether the individual is required to possess, carry or use a firearm as a condition of employment
- Evidence of recent acquisition of a firearm or ammunition
If the court finds that such credible risk exists, the court is to issue an extreme risk protection order for a period of 364 days.
The termination procedures for extreme risk protection orders are also different than other protection orders. The restrained party may submit one written request for a hearing to terminate the protection order for the period that the order is in effect. Additionally, if a 364 extreme risk protection order is entered, the court is to notify the requesting party of the impending expiration of the order, prior to the expiration date. The requesting party, a family or household member of the restrained party, or a law enforcement officer or agency may, by motion, request a renewal of such order at any time prior to its expiration.
The other unique aspect of these types of protection orders is that the court is required to appoint an attorney for the party defending against the protection order. That party is entitled to hire their own counsel but, until such time, they are to have a court appointed attorney.
It is important to keep in mind, if considering one of these protection orders, that they don’t provide any specific protections for the requesting party beyond the surrender of firearms. Unlike standard protection orders, the restrained party is not prevented from contacting the requesting party, seeing the requesting party, living with the requesting party, etc. Therefore, in domestic violence situations, filing a traditional protection order likely still provides more protection as the court still has the authority to require the other party to not possess firearms. However, this new law does provide a unique level of protection. Notably, only 1 day after this law went into effect, the first temporary extreme risk protection order was granted.