Red flag law expansion questioned as data shows wrongful gun seizures in Colorado

By Cory Gaines | Commentary, Colorado Accountability Project

Expanding red flag laws without fixing current problems

I wanted to share David Kopel’s written testimony against the proposed expansion–the second time in two years for those keeping count–of Colorado’s Red Flag Law (aka Extreme Risk Protection Order Law). It’s linked first below.

As he has done in the past, Mr. Kopel does a wonderful job of dispassionately laying out arguments against the gun control we’ve seen, often striking at the underpinnings and foundations of the law as well as the arguments made by legislators/others for it.

I will leave it to you to read the op ed, but I will share a couple things that made it especially noteworthy to me.

Besides the unproven (and probably unprovable) narrative that Red Flag Laws save lives,* one of the narratives you’ll often hear about them is how they seem to not be abused or to have a negative effect.

The evidence offered up in support of this is just how many petitions are tossed by the courts.** See? There is robust due process and protection with them. Kopel here takes that notion and flips it around.

Quoting his op ed:

“The CU [Medicine] study covered 353 gun confiscation petitions. Of these, 167 ultimately led to a year-long renewable order against an individual possessing firearms. Unfortunately, along the way to disarming those 167, the Colorado system improperly disarmed 71 other people. This is a disarmament error rate of 29.8% (71 of 238). The 71 wrongfully disarmed petitions were 37 from law enforcement petitions and 34 from family/romance petitions. In other words, for nearly one-fifth (19.56%) of all gun confiscation petitions, the respondent was wrongfully disarmed during an ex parte hearing. The confiscation order was issued when the person had no notice and could not present his side. Later, after the person’s guns had already been confiscated, the person was granted a hearing, and the confiscation was then denied or dismissed. For any given confiscation petition, there is about a 20% chance that a Coloradan’s firearms will be wrongfully confiscated, and (hopefully) eventually returned.”

To repeat:

“For any given confiscation petition, there is about a 20% chance that a Coloradan’s firearms will be wrongfully confiscated, and (hopefully) eventually returned.”

Reading this makes me wonder if anyone has ever looked at the length of time it took for the improperly seized firearms to be returned. The study was not much help. Apparently this is not something that is easily measured and/or something that has not been measured.

Quoting from the study:

“Results from these analyses shed light on data gaps surrounding ERPO use and implementation. Specifically, data around petitioner types, documenting relinquishment of firearms when orders are granted, and returning firearms when orders expire or are lifted is lacking.”

This brings me to one of my concerns.

Clearly the Red Flag process has errors. People whose rights oughtn’t to be abridged … are having their rights abridged. For them, and for those whose full orders (the year long ones) are lifted, we don’t really know how expeditiously and thoroughly their rights are being restored. A judge can order, but we seem to have no idea how well that translates to someone getting property and rights restored after they shouldn’t have been taken.

Given that, are we sure that expanding this policy, enabling more people to do it, is a good idea without fixing problems with the existing policy? (For a particularly concerning aspect of this expansion, see the second post today.)

The other part of Mr. Kopel’s written testimony that stuck out relates to the way this bill has been titled. He puts it better than I can, so I will take an extended quote (there will be a footnote, see the op ed itself for that):

Senate Bill 26-004 drastically expands who may file a court petition for confiscation of a citizen’s firearms. Like most bills on the topic, this bills’s title is intentionally deceptive. The title is ‘Concerning who may petition a court for an extreme risk protection order.’ As at least the supporting lobbyists know, ‘extreme risk’ is a falsehood. Current Colorado law provides for gun confiscation based upon ‘a significant risk,’ not an ‘extreme’ one.[2] Therefore, SB26-004 violates the plain title Colorado constitutional requirement for legislation, that the ‘one subject’ of a bill ‘shall be clearly expressed in its title.’ Colo. Const., art. V, § 21, A bill title about “extreme risk” that instead applies to something much lesser, ‘a significant risk’ is a calculated decision to deceive the public and the media. To comply with article V, section 21, SB26-004 should be amended so that the word “extreme” is stricken from the title. The only purpose of keeping the word in the title is continuing deception.”

Fighting this law using this would involve a court case and a plaintiff. I am not aware of anyone willing to take this on (and I don’t have the money to do it on my own), but I am willing to volunteer to be a plaintiff if anyone is willing to represent me pro bono and try it.

If you didn’t, please take a minute out of your day to read Mr. Kopel’s op ed in full. I would also recommend using it to help inform your advocacy with your own state rep or senator (and/or send it to them and urge them to read it).

Protecting the rights that Colorado Democrats seem to not have any concern over will not happen on its own. Speak up.

I’d also urge you to donate to your favorite gun rights organization (CSSA is a good one as is RMGO). I don’t necessarily agree with them down the line on every little thing, but they are actively fighting for our rights in the courts and your support is needed.

*This seems to be especially the case with regard to gun violence with suicides perhaps having some anecdotal evidence.

**Skipping great amounts of detail, the process for getting an extreme risk protection order involves first a temporary court order which can take someone’s guns for up to 14 days without them being present in court. A more durable order necessitates a follow up hearing where the one who’s guns would be confiscated can be present and mount a defense.

https://completecolorado.com/2026/01/29/recklessly-expanding-colorados-red-flag-reporting/

https://www.sciencedirect.com/science/article/pii/S2211335524002158

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Newly-passed safe storage laws and Sullivan’s red flag expansion

SB26-004 was the first of Senators Sullivan’s and Froelich’s crop of gun control bills for 2026. The bill itself is linked first below.

As you can read in the Colorado Capitol Alliance article linked second below, or also in David Kopel’s written testimony against the bill in the previous post, it expands who can seek Red Flag orders to a wider swath of uninvolved humanity.

There’s one lesser-known (at least to me) aspect of the bill that I saw in the article linked second which is important to be aware of. Quoting the article:

“Another piece of the measure would allow for the seizure of someone’s guns if their child, or a child in their household, is determined to be in danger of harming themself or others.”

Put aside the wisdom of this particular policy for a second (I don’t agree myself), and focus on the following: this particular expansion of red flag laws doesn’t seem to logically fit with earlier gun storage laws (Colorado has two, both are linked in chronological order third and fourth below). There seems to me a logic mismatch.

Screenshot 1 attached is from the 2021 storage bill’s fiscal note.

Screenshot 2 attached is from the 2024 storage bill’s fiscal note.

It’s quite plain in either case that firearms in the home and vehicle are legally required to be stored in such a way as to limit access. It’s also quite plain in other laws that giving a firearm to someone not legally allowed to possess one is illegal.

Given that, why do we need red flag expansions that allow someone to take away your rights and property, based on the actions of another?

All the more so when it’s an other that is legally not to have access to begin with.

I struggle to find an explanation for this that doesn’t either involve thoughtless passing of laws merely to impress your base and repay donors, or, what’s decidedly worse, a concerted effort at disarming more and more Colorado citizens because in the end that’s what we’re really after.

READ THE FULL COMMENTARY AT THE COLORADO ACCOUNTABILITY PROJECT

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