Weiser Files Defense In Red Flag Law Court Case

DENVER — State Attorney General Phil Weiser has released a statement in response to a constitutional challenge to Colorado’s Extreme Risk Protection Order (ERPO) law that was recently filed in Larimer County.

In the case, David Gatton, a Fort Collins resident currently being held in Larimer County jail, is asking the court to overturn the ERPO that was used to confiscate his firearms earlier this year. According to the filing, Gatton claims the law violates his 2nd, 4th, 5th and 14th Amendment rights and must thus be declared unconstitutional.

Gatton, a 31-year-old military veteran, was held after making threats last year to commit mass shootings, including on school campuses. Those threats formed the basis of the ERPO.

In filing the state’s response to the suit, Attorney General Weiser argues that the law was written, “Well within the bounds of the Constitution,” and that the Gatton case exemplified the purpose of the law, which was to “Temporarily authorize the removal of firearms from persons who the Court determines, after a hearing, pose a significant risk of causing personal injury to themselves or others.”

The state’s filing notes that, “The right to bear arms is not absolute,” and that courts have “Repeatedly uphold the reasonable regulation of firearms, specifically including prohibitions on the possession of firearms by persons considered to be dangerous.”

Colorado is one of 15 states to have ‘Red Flag’, ERPO-style laws on their books. Bill HB-19-1177 was signed into law by Governor Polis in April last year and became effective January 1st.

In a statement released after filing the Gatton suit response the Attorney General wrote:

“Colorado’s extreme risk protection order law was designed to give law enforcement a valuable tool to use in a targeted way to keep guns out of the hands of dangerous people and to save lives. That’s exactly what happened in this case in Larimer County: an investigator with the Larimer County Sheriff’s Office obtained an order against David Gatton because he threatened to use guns to carry out attacks against people once he was released from custody.

“The U.S. Supreme Court said in District of Columbia v. Heller that the U.S. Constitution permits reasonable restrictions on access to firearms, including by felons and the mentally ill. This is why courts have consistently upheld the constitutionality of extreme risk protection order laws.

“Colorado’s law guarantees due process and requires that a judge decide whether someone poses a significant risk to themselves or others before restricting access to firearms. According to judicial records, courts have issued such orders in only 18 cases since the law went into effect. It also has safeguards in place to prevent the misuse of this procedure, which resulted in the prompt dismissal of another case in Larimer County earlier this year.

“In Colorado, we will protect the constitutional rights of gun owners, honor due process, and save lives by defending this common-sense public safety measure when necessary.”

The case is scheduled to be heard at the Larimer County courthouse on Monday, April 20th. The state’s filing can be read in full at : https://coag.gov/app/uploads/2020/04/20200402-Pastecki-v-Gatton-Amicus-Brief-vf.pdf