red flag laws and trusts?

[CS1983]

Perhaps this has been addressed and I missed it, but if X firearms were actually property of a trust, would/how would a red flag issue have an effect on an individual vs trust?

Looking forward to the "this is not legal advice, consult a lawyer" answers -- especially from the lawyers (who are not my lawyer, and I should consult a lawyer).

[ryorourke]

An attorney would most likely point out the following. How it will actually play out may differ due to your state of mind at the time of receiving the red flag, how your trust is set up, and the officers.

CRSA 13-14.5-108 in short says that upon issuance of an extreme risk protection order, the person flagged must surrender all firearms by: (1) selling or transferring possession to a FFL, (2) arrange storage at a law enforcement agency, or (3) antique and curio/relic store with a relative that doesn't reside at the same place.

A gun trust does not fall within any of these exceptions, unless the trust only owns antique curio/relics and your successor trustee is a family member that doesn't reside with you.

Part 5 does, however, provide that if a person other than the person flagged claims title to any firearms, and it can be proven that such person is the lawful owner of the firearm, such person can take possession of the firearms as long as it is effectively removed from the flagged person's custody, control, or possession.

Thus, depending on how your gun trust is set up, you could potentially resign as trustee, and your successor trustee takes over, and removes all firearms from your custody, control, and possession.

[FoxtArt]

Seems to me to potentially be a mess, depending on the construction. This is my understanding, but I'm going to be off slightly on a couple points. The Trust, much like a corporate entity, is not ever going to be the subject of a RFO, as although it may meet the definition of a "person" in the consideration of being an existing legal entity, I don't see it being possible to sufficiently allege anything against a trust. So, a RFO would be potentially subject upon a person that is a beneficiary of the trust (ETA: To be clear, because someone filed a complaint against that one person). Logic dictates that weapons cannot be seized from the trust in any case (so long as they are legal in the jurisdiction themselves), especially if the trustee has some level of control over them and is a legal firearms possessor too. However, all beneficiaries have to be legal firearm possessors to be a beneficiary of a firearm trust. Practice would seem that it would be handled the same as if they incurred a felony.
IMHO, it may be wise to construct a trust in such a fashion that beneficiaries are automatically revoked if they are subject to a red flag order (ETA: or anything else that would disqualify), and the trustee is directed to relocate and/or deny access to any firearms of the trust that the beneficiary may possess.

(There is the issue of constructive possession; so firearms could not be kept and accessible at the home of someone who is not a legal firearms possessor anyway, whether or not they were "technically" their guns or not... at the risk of the illegal possessor. ) Note that a RFO is a civil order and not a warrant, law enforcement can ask you to turn over your weapons but there doesn't seem to be any effort to forcibly collect them; an act that everyone seems to know would get eventually slapped down by SCOTUS quite hard. (giving any citizen the power to issue warrants against any other without oversight). Also note that even if a beneficiary is in possession of a trust asset, it is still a trust asset, owned by the trust, and doesn't need to be transferred back. (but the beneficiary again, cannot have constructive possession or actual possession if they are not a lawful possessor).

That said, bear in mind that the courts treat the law as "guidelines" and as there's 250,000 pages of C.F.R., 180,000 pages of U.S.C., and throw in probably another 50,000 pages of C.R.S., together with millions of pages of precedence, an average judge may only knows about 1% of the law in depth - their area (prosecutor, bankruptcy, divorce, etc.) and even then there are broad gaps. The chance that your judge knows estate and trust law extensively is quite slim, so.... anything can happen, as a general rule. However they wanted to take it would essentially be how it went, regardless of how "it's supposed to work".

This obviously doesn't qualify as legal advice, nor do I proclaim it to be entirely accurate. Just a quick response based on present understanding.

ETA: It would also seem to be smart to have a mechanism to automatically replace any Trustee that was subject to similar issues. AFAIK when you run into unplanned circumstances and the trust documents don't account for a method to deal with them.... it can turn into a trainwreck of huge proportion. Smart to provide broad, but clear, mechanisms to replace - reinstate - etc. wherever and whatever as needed, and then nobody can successfully war over it in the future.

PS: I've never written a firearms trust. Other users here have. My experience is mostly with generation skipping irrevocable and life estates. This is not advice.

[spqrzilla]

[fail]

Nope

[FoxtArt]

[fail]

Nope

I assume you're replying to ryorourke, but by all means, step in and correct my thoughts. I do like to advance my own understanding as well, since an effective irrevocable trust seems the best way to pass down future prohibited-but-grandfathered items of any kind at least a couple generations down the line I wouldn't mind setting one up myself "when I get to it".

ETA: And I guess my perspective hasn't considered the settler-is-a-trustee perspective, but same logic dictates - the trust would have to have the mechanisms to replace an illegal possessor whoever they are.

[spqrzilla]

The courts will pay no attention at all to trusts. Nor will any LEO executing warrants. This is all mental masturbation.

But go ahead, get trusts in the delusional belief it will ward off Red Flag laws like holy water and garlic. [Coffee]

[FoxtArt]

The courts will pay no attention at all to trusts. Nor will any LEO executing warrants. This is all mental masturbation.

But go ahead, get trusts in the delusional belief it will ward off Red Flag laws like holy water and garlic. [Coffee]


Generally agreed there. Although there's no warrants with a RFO, from what I'm seeing officers don't search and seize - the only thing someone risks by not turning over seems to be initially (civil?) contempt at this point - outside the view of the court - which if all of the weapons are itemized by the complaintant, it might give a decent window to argue before a show cause that 1) they are owned by a trust and 2) possession was returned to the trust after service & no weapons are at the residence so the subject is in compliance and will remain in compliance. I do tend to think that would work before many judges especially if you could document it in any way - that you are no longer in possession.

But it is mostly a mental exercise, it always goes to rule #1 anyway... whatever the judge wants to do, is going to be what happens, right or wrong, like we all know, and have seen.

ETA: And of course, if a department does decide to go all Jack-Boot on RFO's and forces entry, then all the shits going bye no matter who technically owns it.... including any families or friends that are also there, so no disagreement there.

[funkymonkey1111]

Seems to me to potentially be a mess, depending on the construction. This is my understanding, but I'm going to be off slightly on a couple points. The Trust, much like a corporate entity, is not ever going to be the subject of a RFO, as although it may meet the definition of a "person" in the consideration of being an existing legal entity, I don't see it being possible to sufficiently allege anything against a trust. So, a RFO would be potentially subject upon a person that is a beneficiary of the trust (ETA: To be clear, because someone filed a complaint against that one person). Logic dictates that weapons cannot be seized from the trust in any case (so long as they are legal in the jurisdiction themselves), especially if the trustee has some level of control over them and is a legal firearms possessor too. However, all beneficiaries have to be legal firearm possessors to be a beneficiary of a firearm trust. Practice would seem that it would be handled the same as if they incurred a felony.
IMHO, it may be wise to construct a trust in such a fashion that beneficiaries are automatically revoked if they are subject to a red flag order (ETA: or anything else that would disqualify), and the trustee is directed to relocate and/or deny access to any firearms of the trust that the beneficiary may possess.

(There is the issue of constructive possession; so firearms could not be kept and accessible at the home of someone who is not a legal firearms possessor anyway, whether or not they were "technically" their guns or not... at the risk of the illegal possessor. ) Note that a RFO is a civil order and not a warrant, law enforcement can ask you to turn over your weapons but there doesn't seem to be any effort to forcibly collect them; an act that everyone seems to know would get eventually slapped down by SCOTUS quite hard. (giving any citizen the power to issue warrants against any other without oversight). Also note that even if a beneficiary is in possession of a trust asset, it is still a trust asset, owned by the trust, and doesn't need to be transferred back. (but the beneficiary again, cannot have constructive possession or actual possession if they are not a lawful possessor).

That said, bear in mind that the courts treat the law as "guidelines" and as there's 250,000 pages of C.F.R., 180,000 pages of U.S.C., and throw in probably another 50,000 pages of C.R.S., together with millions of pages of precedence, an average judge may only knows about 1% of the law in depth - their area (prosecutor, bankruptcy, divorce, etc.) and even then there are broad gaps. The chance that your judge knows estate and trust law extensively is quite slim, so.... anything can happen, as a general rule. However they wanted to take it would essentially be how it went, regardless of how "it's supposed to work".

This obviously doesn't qualify as legal advice, nor do I proclaim it to be entirely accurate. Just a quick response based on present understanding.

ETA: It would also seem to be smart to have a mechanism to automatically replace any Trustee that was subject to similar issues. AFAIK when you run into unplanned circumstances and the trust documents don't account for a method to deal with them.... it can turn into a trainwreck of huge proportion. Smart to provide broad, but clear, mechanisms to replace - reinstate - etc. wherever and whatever as needed, and then nobody can successfully war over it in the future.

PS: I've never written a firearms trust. Other users here have. My experience is mostly with generation skipping irrevocable and life estates. This is not advice.

What do "250,000 pages of C.F.R., 180,000 pages of U.S.C." have to do with interpreting a Colorado statute?

[CS1983]

It’s always refreshing when lawyers admit there is no actual rule of law or adherence to coherence.

[FoxtArt]

What do "250,000 pages of C.F.R., 180,000 pages of U.S.C." have to do with interpreting a Colorado statute?

The question is one equally dependent on estate law which spreads across federal and state statues and regulation.... there is few things more complicated than a correctly setup trust. So no, it's not interpreting state statue alone.

What the reference REALLY has to do is to demonstrate the understanding that any judge or attorney knows less than 1% of the law, and will probably know next to nothing about what you need them to. For comparison, all the worlds major religious texts combined (save for Hindi) would combine to less than 10,000 pages... and good luck finding a single expert on all of them. Law is 50x worse... C.R.S. alone is far larger then that. For the most part, a judge wings it and does whatever the f%%% they want. Even people here copy and paste a statute or something from the bill of rights, thinking it's going to protect them in a courtroom, but fail to realize there's probably a thousand pages of precidential judicial opinions applicable to each one....

...and a judge will pick and choose the ones that agree with what they want to do.

We're a bureaucracy, not a republic.

[CS1983]

So what you’re saying is George Washington should have cut down the Cherry-Pickin’ Tree.

[FoxtArt]

Indeed. It's unfortunate they weren't forward thinking quite enough to realize what they were creating....

https://vignette.wikia.nocookie.net/villains/images/f/f4/Jeltz_Movie.jpg/revision/latest?cb=20181015202428

[CS1983]

I was under the impression that there was a legal shift which debuted from the sort of system they did set up. Is this not the case?

At any rate, it ain’t Sam Walton’s fault that the company he created is now run by a bunch of scummy bastards.

[FoxtArt]

I was under the impression that there was a legal shift which debuted from the sort of system they did set up. Is this not the case?

I think the core issue may be they didn't have longevity in mind (e.g. refresh every 20 years with the blood of blah blah blah). They completely failed to create what amounts to a janitorial branch -- e.g. everything gets buried in shit if there's nothing to come clean up after and maintain efficiency.

I'm pretty sure a 4 branch government like ours could last millennia. This one is doomed under it's own ever growing crap heap, the argument is whether it's much sooner or much later. AFAIK, C.F.R. triples every three terms of the senate (or is it U.S.C, I'd have to double check). At some point the regulatory burden will exceed the capability for anyone to even pretend compliance, and then the nature of our country will be obvious and far more pronounced to just about everybody.... highly selective and corrupt enforcement and judgment across the board, with no compliance necessary for the favorites.

[not really any different than any other country at that point, but it's not that it's a shift, it's that the 3 branch gov't has an expiration date]

[ryorourke]

The Trust, much like a corporate entity, is not ever going to be the subject of a RFO,

I agree with this. I was talking from the point of an individual being served with the RFO who so happens to be a beneficiary/trustee of a gun trust. Sorry for the confusion, I did not make that part clear.


Logic dictates that weapons cannot be seized from the trust in any case (so long as they are legal in the jurisdiction themselves), especially if the trustee has some level of control over them and is a legal firearms possessor too. However, all beneficiaries have to be legal firearm possessors to be a beneficiary of a firearm trust. Practice would seem that it would be handled the same as if they incurred a felony.

While I never said weapons would be seized, but even if the weapons were seized, there is a mechanism in the statute that I was pointing out that would allow the trust via the trustee to take the weapons back. Also, yes, it would be good practice to include provisions that a prohibited person can't be a beneficiary or trustee of a trust, it's just that not all gun trusts are drafted well. As I mentioned a factor to how things play out will be how your trust is set up.


(There is the issue of constructive possession; so firearms could not be kept and accessible at the home of someone who is not a legal firearms possessor anyway, whether or not they were "technically" their guns or not... at the risk of the illegal possessor. ) Note that a RFO is a civil order and not a warrant, law enforcement can ask you to turn over your weapons but there doesn't seem to be any effort to forcibly collect them; an act that everyone seems to know would get eventually slapped down by SCOTUS quite hard. (giving any citizen the power to issue warrants against any other without oversight). Also note that even if a beneficiary is in possession of a trust asset, it is still a trust asset, owned by the trust, and doesn't need to be transferred back. (but the beneficiary again, cannot have constructive possession or actual possession if they are not a lawful possessor).

Even if the trust has a mechanism to auto kick out the beneficiary and transfer possession under the trust to the next beneficiary, there is still the practical issue of said beneficiary is still in possession of the firearms at the service of the RFO. I believe the statute gives the respondent 24 hours to make arrangements in certain circumstances, thus in that 24 hours the trustee could pick up the weapons and transfer them to the next beneficiary.

But other factors, as OxArt pointed out is how the judge will handle the matter, not only may the judge's knowledge on the issue be less than 100%, this is also new law without test subjects.

[spqrzilla]

Everyone is getting terminology backwards. The Trustee is the one with legal ownership of trust assets. The beneficiaries have an equitable, beneficial, interest in the trust assets but no legal ownership.

[ryorourke]

Note that a RFO is a civil order and not a warrant, law enforcement can ask you to turn over your weapons but there doesn't seem to be any effort to forcibly collect them; an act that everyone seems to know would get eventually slapped down by SCOTUS quite hard. (giving any citizen the power to issue warrants against any other without oversight). Also note that even if a beneficiary is in possession of a trust asset, it is still a trust asset, owned by the trust, and doesn't need to be transferred back. (but the beneficiary again, cannot have constructive possession or actual possession if they are not a lawful possessor).

As to law enforcement collecting the weapons, I think the ERPO will depend if it is sought by an individual or by law enforcement. Under the statute, you are correct, an ERPO by an individual does not seem to give law enforcement the ability to really do anything other than deliver the ERPO to the respondent.

However, even if the ERPO is sought by an individual it looks like some counties will still seek a warrant as standard operating procedures. ie: in Douglas county, Spurlock is instructing his deputies to obtain a search warrant if an ERPO is made by an individual.
https://coloradosun.com/2019/12/04/colorado-red-flag-law-policies-gun-seizures/

If on the other hand, law enforcement seeks the ERPO, then the statute gives law enforcement the ability to obtain a search warrant.