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Red Flag Bill Advances to Senate

Of all the debates that can get very heated very fast, gun legislation is one of the ones at the top, and the last few weeks in the Colorado House of Representatives have proven to be no exception. However, the debate, at least, in the House, seems to be over.

People line up outside Chambers to hear debate and testimony on Red Flag Law_Photo Credit Denver PostLast Monday, the Colorado House of Representatives approved the “red flag” bill which allows the courts to temporarily seize the firearms of a person the court has deemed to be a risk to himself or others.

The vote was 38 to 25 with 2 Democrats (Bri Buentello-Pueblo and Donald Valdez-La Jara) voting against the bill and 1 Republican (Jon Becker-Fort Morgan) voting in favor.

The bill will now advance to the Senate where it will be debated.

HB 19-1177 carries with it powerful significance at a number of levels beyond just the obvious.

First, it’s named the Deputy Zackari Parrish Violence Prevention Act in honor of the Douglas County deputy who was shot and killed by a man on New Year’s Eve in 2017. The man, who wounded four other deputies and two civilians in the altercation, had been deemed a threat by local law enforcement for years.

“This bill is about people who are an extreme risk,” emphasizes Sheriff Tony Spurlock who was Parrish’s boss and is a strong supporter of the bill.

Second, one of the four sponsors of the bill (all Democrats) is newly elected Tom Sullivan from Centennial. Sullivan’s son was one of the 12 individuals killed in the Aurora Theater shooting in 2012.

However, Representative Sullivan is careful to explain how he sees the legislation. In a recent radio interview, he said the bill was “about saving lives”, but he doesn’t believe a red flag law would have stopped the shooter from killing his son and others, although the shooter was known to have mental problems. “Mass shootings are rare,” he said, “so this bill is more likely to prevent suicides. It’s about people’s access to firearms when they’re in the throes of a serious mental problem.”

According to the Colorado Health Institute, firearms were involved in half of all suicides in Colorado in 2017.

Republicans frame the situation differently. Some state that the focus should be on changing the state’s 72 hour mental health hold law, making it easier for law enforcement to get help for someone in distress.

As Assistant Minority Senate Leader John Cooke, a Greeley Republican and former sheriff, said in a recent interview with the Colorado Sun, ““The criteria for a 72-hour hold is you are a danger to yourself and others. Well, that’s what this bill is saying, too — to come in and take your guns. But the problem is you leave the person at the house. It’s gun confiscation, and it’s really short on mental health. So, if you’re going to take the gun, you ought to take the person instead if they are that dangerous.”

Other opponents cite concerns with the process being used by someone with an agenda and a personal ax to grind while still others are concerned with the bill’s constitutionality.

But a final and very important factor in the dialogue is the visible presence of historically deep seated, 2nd amendment advocacy groups like Windsor based Rocky Mountain Gun Owners. RMGO is responsible for spearheading the recall election of two Democrats (and the resignation of a third) who voted for gun control legislation in 2013, and social media discussions suggest the group is considering the same tactic now.

Representative House Minority Leader Patrick Neville was clearly on the same page when he suggested some lawmakers could be recalled if the legislation passed. “Their actions do have consequences,” Neville is quoted as saying in a KDVR.

HB 19-1177 is civil—not criminal—legislation and creates the ability for a family member, a household member or a law enforcement official to petition (that is, to request) the court to seize the firearms of a person who is of significant risk to self or others. In order to for the court to issue the temporary Extreme Risk Protection Order (ERPO), the petitioner must have the “preponderance of the evidence” that puts forth facts and a reasonable basis for believing the risk is real. The affidavit must be signed under oath and the threat of perjury and submitted to the court.

The court must then hold a temporary ERPO hearing—either in person or by phone—on the day the petition is submitted or the next court day following the request. If a judge grants the temporary ERPO, the respondent (i.e. the person considered to be a significant risk) will surrender all firearms in his possession to either a law enforcement official or a federally licensed firearms dealer.

 

At that hearing, the judge must rule—using a clear and convincing evidence legal standard—to either return the firearms or extend the ERPO, which would prevent the person from purchasing or being in possession of firearms for up to 364 days.

If an ERPO for the longer period is issued, the respondent can ask the judge to reconsider as many times as possible, but the burden of proof will fall upon them.
Likewise, before the expiration of the ERPO, the petitioner may ask the court to extend it. However, they must be able to prove that the person has continued to be a significant risk to self or others, with the burden of proof being their responsibility.

One area of contention—and, to a certain degree, misinformation—relates to who exactly can petition the court. The bill says it may be a member of the family or household which is further defined as: someone related by blood, marriage or adoption; someone who has a child in common whether married or not; someone who lives with a person or lived with a person within the last 6 months; a domestic partner; someone who has a bio or legal parent-child relationship including stepparents, stepchildren, grandparents or grandchildren; someone who has been a legal guardian and/or someone whose relationship would fit the definition of a person who was the victim of domestic violence.

A similar bill to current legislation was introduced—in a bi-partisan format—in 2018 but was defeated in the Senate, which was controlled by Republicans. With Democrats now in control of the Senate, there is the general expectation that the bill will pass and go to the governor for signature. Governor Polis has indicated he will sign the bill.

Even as the bill looks to soon become law, county commissioners and law enforcement—the men and women expected to carry it out—are largely split in their support. Some agencies at the city, county and—in the case of the CBI—state level have been vocal about backing the bill.

Others…not so much.

County Commissioners in El Paso and Teller Counties have already stated they are “2nd Amendment Sanctuary Counties” and have no intention to enforce the law. Commissioners in Weld and Montezuma are reportedly not far behind.

Guess there’s nothing left to say other than…

The battle—and yes, in some cases, it is an actual battle—rages on.

After this article was published, the Kiowa County Sheriff's Office made a statement via facebook:

The Kiowa County Commissioners recently adopted the following resolution to become one of the many Second Amendment Sanctuary Counties in Colorado with the support of Sheriff Casey Sheridan.

RESOLUTION 2019-03

A RESOLUTION FOR THE KIOWA COUNTY BOARD OF COUNTY COMMISSIONERS, KIOWA COUNTY, COLORADO, DECLARING KIOWA COUNTY TO BE A SECOND AMENDMENT SANCTUARY COUNTY
WHEREAS, 30-11-101, C.R.S. provided that Counties have the authority to adopt and enforce ordinances and resolutions regarding health, safety and welfare issues; and
WHEREAS, 30-11-103, C.R.S. provided that the powers of a county as a body politic and corporate shall be exercised by a board of county commissioners; and
WHEREAS, the Second Amendment to the United States Constitution, adopted in 1791 as part of the Bill of Rights, protects the inalienable and individual right of the people to keep and bear arms; and
WHEREAS, the Supreme Court in the District of Columbia v. Heller, 554 U.S. 570 (2008), decision affirmed an individual’s right to possess firearms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home; and
WHEREAS, the Supreme Court, in McDonald v. Chicago, 561 U.S. 742 (2010), affirmed that the right of an individual to “keep and bear arms,” as protected under the Second Amendment, is incorporated by the Due Process Clause of the Fourteenth Amendment against the states; and
WHEREAS, the Supreme Court, in United States v. Miller, 307 U.S. 174 (1939), opined that firearms that are part of ordinary military equipment, or with use that could contribute to the common defense are protected by the Second Amendment; and
WHEREAS, Article II, Section 3 of the Constitution of Colorado provides that all “persons have certain inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness”; and
WHEREAS, Article II, Section 13 of the Constitution of Colorado provides that the “right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question”; and
WHEREAS, Article II, Section 11 of the Constitution of Colorado provides that no “ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation…shall be passed by the general assembly”; and
WHEREAS, Article II, Section 7 of the Constitution of Colorado provides that the “people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures”; and
WHEREAS, Article II, Section 15 of the Constitution of Colorado provides that “[P]rivate property shall not be taken or damaged, for public or private use, without just compensation,” which

the Colorado Supreme Court has indicated includes a legal interference with the physical use, possession, disposition, or enjoyment of the property, including temporarily; and
WHEREAS, it is the desire of the Board of County Commissioners of Kiowa County to declare its support of the Second Amendment to the United States Constitution and the Colorado Constitution protecting citizens’ inalienable and individual right to keep and bear arms; and
WHEREAS, the members of the Board of County Commissioners of Kiowa County took an oath to support and defend the United States Constitution, the Constitution of the State of Colorado and the laws of the State of Colorado, insofar as they are constitutional.
NOW, THEREFORE, BE IT RESOLVED, by the Board of County Commissioners of Kiowa County, Colorado by the authority granted the Board by the laws of the State of Colorado and people of Kiowa County, Colorado to stand and defend their rights and liberties, which are guaranteed by the United States and Colorado Constitutions, we hereby declare this Resolution to be a Second Amendment Preservation Resolution Designating Kiowa County a Second Amendment “Sanctuary County”.
BE IT FURTHER RESOLVED that this Board affirms its support for the duly elected Sheriff of Kiowa County, Colorado in the exercise of his sound discretion and affirms its resolve to support decisions by our Sheriff to not enforce any unconstitutional firearms law against any citizen.
BE IT FURTHER RESOLVED that this Board will not authorize or appropriate government funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing law that unconstitutionally infringes on the right of the people to keep and bear arms.

Commissioner Robertson moved for adoption of this resolution, with a second by
Commissioner Oswald. The vote of the Board was unanimous in favor of the Resolution:

The Resolution was declared to be duly adopted this 28th day of February, 2019.

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