People in the Interest of R.Z.
2025 COA 58. No. 24CA1009. Colorado Constitution—Due Process—Second Amendment—Right to Bear Arms—Care and Treatment of Persons With Mental Health Disorders—Certification for Short-Term Treatments—National Instant Criminal Background Check System.
June 18, 2025
In April 2024, Dr. Chamberlain filed a “notice of certification and certification for short term treatment” (the Chamberlain certification) in the Denver probate court for R.Z.’s short-term treatment under CRS § 27-65-109. Dr. Chamberlain reported that R.Z. was unable to meet his basic needs, had a mental health disorder, and had not accepted voluntary treatment. The court entered an order under § 27-65-109 certifying R.Z. for involuntary short-term treatment. Accordingly, pursuant to CRS § 13-9-123(1)(c), R.Z.’s name was added to the national instant criminal background check system (NICS), which restricts a person’s ability to possess or receive firearms. At R.Z.’s request, the court set a hearing to review his certification. In May, Dr. O’Brien filed a notice of termination of involuntary treatment (the notice of termination) informing the court that R.Z. no longer met the statutory criteria for certification, thereby terminating the certification. In response to the notice of termination, the court vacated the hearing and closed and sealed the case, as required by § 27-65-109(7). R.Z.’s counsel then filed an emergency motion, arguing that because the court had not conducted a § 27-65-109(6) hearing, it lacked authority to enter the order certifying R.Z. for short-term treatment. Counsel requested that the court vacate the April order and remove R.Z.’s name from the NICS. The court denied the request.
On appeal, R.Z. argued that § 13-5-142.8 is unconstitutional to the extent it permits a person’s name to be added to the NICS based solely on a professional’s notice of certification before entry of an involuntary care order. However, the court adopted the Chamberlain certification as a court order one day after Dr. Chamberlain filed it, and the statute does not preclude a court from confirming a respondent’s certification for short-term treatment before holding a § 27-65-109(6) hearing. Thus, R.Z. has no grounds for challenging the constitutionality of § 13-5-142.8 to the extent it may allow a person’s name to be added to the NICS based only on a professional’s filing of a notice of certification.
R.Z. also argued that the April certification order unconstitutionally infringed on his right to bear arms because the court did not hold a hearing at which he could challenge the certification order and the inclusion of his name in the NICS. Section 13-9-123(1)(c) requires that the name of a person who is the subject of an order for involuntary certification for short-term treatment of a mental health disorder be added to the NICS. Here, the court’s April order was based on Dr. Chamberlain’s findings about R.Z.’s mental health; it was not a firearm regulation, let alone one that exceeded the state’s inherent police power. Further, R.Z. did not avail himself of the statutory procedure under § 13-9-124(3) for challenging the inclusion of his name in the NICS.
R.Z. further contended that there was an insufficient evidentiary basis for the April order because the court did not expressly find that clear and convincing evidence supported Dr. Chamberlain’s request that R.Z. be certified for short-term treatment. R.Z. focused this argument on his inability to challenge his short-term certification at a § 27-65-109(6) hearing after Dr. O’Brien’s submission of the termination notice. Section § 27-65-109, which specifies the procedure for certification for short-term treatment, does not preclude a court from entering a certification order before conducting a § 27-65-109(6) hearing at which the respondent can challenge the certification. Thus, the court was not required to conduct an evidentiary hearing before entering an order that caused R.Z.’s name to be added to the NICS.
R.Z. further asserted that CRS § 13-5-142.8 is unconstitutional, interpreting that section to mean that Dr. Chamberlain’s certification was legally equivalent to a court order for involuntary certification for short-term treatment, so it could cause his name to be added to the NICS even if the court did not also enter a certification order. But as explained above, R.Z.’s name was not added to the NICS based solely on the Chamberlain certification; his name was added to the NICS through a court order signed by a judge. Therefore, the Chamberlain certification at most indirectly, if at all, impacted R.Z.’s constitutional right to bear arms. Accordingly, R.Z. has no basis to challenge the constitutionality of § 13-5-142.8, and the court of appeals did not reach the merits of this argument.
R.Z. additionally contended that the court erred by not giving him notice that the filing of the Chamberlain certification resulted in a restriction on his right to bear arms. But as explained above, R.Z. has no basis for challenging the constitutionality of § 13-5-142.8 because, even if the Chamberlain certification resulted in the inclusion of his name in the NICS, the entry of the April order independently caused his name to be added to the NICS pursuant to § 13-9-123(1)(c). And as also explained above, § 27-65-109(6) does not require a court to defer entry of a certification order until it has conducted a hearing.
R.Z. also argued that the court violated his due process rights because, after Dr. O’Brien filed the notice of termination, R.Z. never had an opportunity to challenge the April order at a § 27-65-109(6) hearing. Under § 27-65-109(7), the court was required to close R.Z.’s case upon his release from certification. Accordingly, upon receipt of the notice of termination, the court had no authority to keep the case open and conduct a § 27-65-109(6) hearing. And R.Z. did not cite any legal authority allowing a court to retroactively vacate an order certifying a person for short-term treatment. Accordingly, the court did not violate R.Z.’s due process rights.
Lastly, R.Z. apparently argued that the April order improperly required him to prove that he did not have a mental health disorder. However, R.Z. did not show that requiring a person who was the subject of a certification order to prove that the person’s name should be removed from the NICS violates the person’s constitutional rights. Nor did he produce any legal authority to support his contention that the Colorado Constitution’s right to bear arms prevents the state from requiring a person to prove that the person’s name should be removed from the NICS.
The orders were affirmed.