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Old January 17, 2020, 10:52 AM   #23
Aguila Blanca
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Join Date: September 25, 2008
Location: CONUS
Posts: 13,922
Quote:
Originally Posted by USNRet93
I get that but the sheriff wouldn't act on the order until the initial judge issued it, correct? I see in other states, the RF is filed, the LEO seizes the guns THEN it goes to a judge.
No, not correct as I understand it.

My state also recently enacted a red flag law. It works similarly to the Colorado law, and I think the other states also largely follow suit. Filing the petition is NOT an order, and the police do not serve anything or confiscate firearms just because a petition has been filed. I posted a link to the actual text of the Colorado law, as enacted by the legislature. What it calls for is that, upon filing of the petition, there is an initial, ex parte hearing for the issuance of a temporary extreme risk protective order (ERPO). This initial hearing is to be held (under the Colorado law) the day the petition is filed or on the next court day thereafter:

Quote:
(4) THE COURT SHALL HOLD A TEMPORARY EXTREME RISK
PROTECTION ORDER 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 that, a full hearing must be held within fourteen days to decide whether or not the order will become permanent (for a year). It's normally only at this second hearing that the defendant gets to argue in his/her defense.

Quote:
(5)
(a) IN ACCORDANCE WITH SECTION 13-14.5-105 (1), THE COURT
SHALL SCHEDULE A HEARING WITHIN FOURTEEN DAYS AFTER THE ISSUANCE
OF A TEMPORARY EXTREME RISK PROTECTION ORDER TO DETERMINE IF A
THREE-HUNDRED-SIXTY-FOUR-DAY EXTREME RISK PROTECTION ORDER
SHOULD BE ISSUED
PURSUANT TO THIS ARTICLE 14.5. NOTICE OF THAT
HEARING DATE MUST BE INCLUDED WITH THE TEMPORARY EXTREME RISK
PROTECTION ORDER THAT IS SERVED ON THE RESPONDENT. THE COURT
SHALL PROVIDE NOTICE OF THE HEARING DATE TO THE PETITIONER.

(b) ANY TEMPORARY EXTREME RISK PROTECTION ORDER ISSUED
EXPIRES ON THE DATE AND TIME OF THE HEARING ON THE EXTREME RISK
PROTECTION ORDER PETITION OR THE WITHDRAWAL OF THE PETITION.
Until the preliminary hearing has been held, the petition is just a petition (application), it is not an order and doesn't represent anything that can be served or enforced against the defendant.
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