The Crestone Eagle • May, 2019

Outcry over the Red Flag bill

by Sandia Belgrade

An overflow crowd filled the courtroom and greeted the Saguache County Commissioners (BOCC) in their second meeting in April. Most of them were there to argue against the Red Flag Law which Gov. Jared Polis has signed into law. This controversial bill, House Bill 1177, or the Extreme Risk Protection Orders law as it’s formally known, is set to take effect Jan. 1. It would make Colorado the 15th state to adopt a “Red Flag” law. The legislation would give judges the authority to issue an order to temporarily seize firearms from a person considered a significant risk to themselves or others. In 1999, Connecticut was the first to enact a Red Flag Law, following a rampage shooting at the Connecticut Lottery. The states that have already enacted a Red Flag Law see it as a gun violence prevention law that permits police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves.

The law has created strange bedfellows. Since the Parkland School shooting in Florida when 17 people were gunned down, more and more elected officials from both parties are embracing common-sense gun laws such as the Red Flag Laws. Prominent Republicans including Govs. John Kasich (OH), Rick Snyder (MI) andPhil Scott(VT) have indicated a new openness to supporting Red Flag Laws, which are also referred to as Extreme Risk Protection Orders. And the Republican legislature in Florida passed a Red Flag bill that the governor signed into law. With gun safety groups and elected officials from both major parties backing Red Flag legislation, the National Rifle Association (NRA) has been facing intense public pressure and found itself increasingly isolated. The NRA has voiced conditional support for Red Flag Laws. The NRA’s chief lobbyist, Chris Cox, said, “this can help prevent violent behavior before it becomes a tragedy.” While this sounds like a reversal from an organization that has spent years advocating against these policies, the NRA has already issued a lengthy list of conditions any Red Flag bill would need to meet to win its support. But it is starting to talk about the types of gun violence restraining orders that it would support after years of opposing them, perhaps sensing an opportunity to join public safety advocates, law enforcement and the majority of Americans by supporting strong, comprehensive efforts across the country. Perhaps.

Vigorous opposition

However, the law has faced immense backlash from a wide spectrum, and not just gun-rights groups. Over half of Colorado’s 64 counties have passed resolutions declaring themselves “second amendment sanctuaries” in response to this piece of gun control legislation. In this context “sanctuaries” refers to resolutions adopted by some jurisdictions in the United States not to expend resources to enforce Red Flag gun control measures perceived as being in violation of the Second Amendment. Local officials who say they will refuse to enforce the new laws are utilizing a tactic being referred to as nullification. Some argue that people’s rights to due process are just as important as Second Amendment rights. Under a Red Flag law, the person whose firearms are targeted would not be present at the first court hearing. It would be 14 days before the person who has had their guns taken could appear in court— with guaranteed legal counsel— and make the case for why he or she should get their weapons back. The judge then must rule whether to extend the seizure and prevent the person from purchasing more guns for up to 364 days. Even the American Civil Liberties Union in one state has argued against giving police broad authority to search the property of an individual subjected to an order, subjecting them to coerced mental health evaluations, and that the standard for issuing an order being so broad that it could be used against people using “overblown” rhetoric on social media.

Closer to home

Alan Jones, a Saguache County property owner of 30 years, declared the law was illegal and unconstitutional. He cited the Second Amendment and referred to the right of people to be secure against unreasonable search. He hoped Saguache would joining 40+ other counties as a sanctuary county. Another gentleman, who has previously served in law enforcement and has worked with vets, said this bill eliminates the possibility of mediation and other means of dealing with people whom the sheriff might know.

Others said you can’t skip due process and felt the law puts the sheriff in danger.

One person who grew up here spoke in favor of the Red Flag law, saying no one is trying to take guns away from people. That’s often the battle cry of those who feel any gun law threatens their rights to have guns. A judge determines if a person is unstable.

One person present asked how to prove someone is mentally incompetent—and if it goes on someone’s record it could ruin their lives. One lawyer in the county noted that there already are risk protection orders in place.

County Sheriff Dan Warwick was present. He stated that the law violates the Second and Fourth plus Fifth Amendments. He contended that the law comes with a lot of problems, including illegal search and seizure. Should we take weapons from the mentally ill when mental health is not reporting them? Warwick said we need to revamp mental health laws to work with law enforcement. This bill could make things worse. The person could use some other tool like knives. Though he doesn’t like the term sanctuary, the Sheriff supports the resistance and said we need something to be put in place. A growing number of sheriffs have pledged not to enforce the law, and County Commissioners are backing them in many cases. Weld County Sheriff Steve Reams has been vocal about his opposition. The Weld County Commissioners unanimously passed its resolution in early March. Reams argues the bill violates constitutional rights, does little to address mental health and says it could put law enforcement in danger if officers show up to a person’s house and attempt to seize their weapons. What if a sheriff chose not to enforce the law while courts conduct a review? It’s unclear how severe the consequences would be. If a judge issues a gun seizure order, and the sheriff refuses to enforce it, the judge could haul in the sheriff and hold him or her in contempt. In addition, a sheriff could be sued for not following through with a court order. However, Scott Robinson, a 9NEWS legal expert, thinks the threat of litigation against a sheriff or a county that backs him and ignores a court order may not hold much weight. But it could force sheriffs across the state to decide whether to uphold the United States Constitution or to turn their backs on the oath they took when accepting their elected position.

Where do our Commissioners stand?

Many who appeared in the courtroom were hoping the Commissioners would take a stand. Commissioner Ken Anderson said they have samples of a resolution from four counties, but they hadn’t heard from the Sheriff and so have not made any decision. Commissioner Lovato thinks it’s a poorly written law. He supports the Second Amendment but doesn’t like the sanctuary term. Jason Anderson noted that the non-profit Colorado Counties voted against the Red Flag law. It may not be perfect but it is better than the alternative which is to do nothing. Before it goes into effect next year, a law enforcement advisory group called the Colorado Peace Officer Standards and Training (POST) Board will decide how the law should be implemented. Since the Parkland School shooting, people on both sides of the aisles are more willing to look at ways to deter violence without making upstanding gun owners feel threatened. The challenge is to balance gun safety with due process. The lack of political will to address gun violence may finally be shifting.