Extreme risk protection orders, better known as “red flag laws,” are on the rise across the United States. Sheriffs in Colorado are split on enforcing these laws, and County Commissioners in Colorado and across the country are declaring themselves “Second Amendment Sanctuaries.”
The Fact Zone:
- Red flag laws are designed to give family members a tool to remove firearms from family members they deem to be a danger to themselves or the public.
- In Colorado, extreme risk protection orders are handed down by a judge without the knowledge of the person in question.
- An elderly man in Maryland was killed while being served an extreme risk protection order.
- The accused must prove they are not a risk in order to get their guns back.
In the wake of the Christchurch massacre, the debate over guns and mental health has been sparked once again. As we discuss the ramifications of Christchurch, extreme risk protection orders, better known as “red flag laws,” are being introduced across the country. There are 15 states that have some version of the law in place, with Colorado poised to join them and others considering the law. In Colorado, the bill passed in the House and has moved to a full vote in the Senate. During public testimony, which lasted several hours, Colorado’s sheriffs found themselves split when it came to the idea of enforcing the law. Sheriff Tony Spurlock of Douglas County is among those who believe the laws are good for the protection of the citizenry of Colorado.
In January of last year, Douglas County Sheriff’s Deputy Zackari Parrish III was killed in the line of duty when he tried to confront a man who may have been deprived of his weapons had the red flag law been in place. The death of the deputy is what spurred support for the bill from Sheriff Spurlock, though his constituents seem to feel differently.
Douglas County commissioners unanimously voted to not enforce the bill should it become law. “We all took an oath to uphold the Constitution, so for us it’s paramount that the Colorado and United States Constitution are upheld and defended,” said Abe Laydon, a county commissioner. The resolution promises to, “fund the enforcement of only those duly enacted state laws that fully respect and support the Constitutional rights of our citizens, including their rights to due process, to bear arms, and to defend themselves from evil.” Sheriff Spurlock believes that the commissioners are extorting him, saying, “That really means nothing. They would be foolish to take money away from the office of sheriff because I enforce the law.”
When the red flag law was first introduced in Colorado in November of 2018, the story of an elderly man in Maryland was on the lips of many people. In Maryland, a man was killed while being served an ERPO at 5:17 in the morning. The law in Maryland states that these orders are confidential. This means that the press is unable to identify why the protection order was issued by law enforcement, what reasoning was behind the order, or any other relevant information.
In Colorado, controversy arises because if a person runs afoul of anyone related to them, they will lose their weapons for 14 days before they are allowed a hearing with a judge, either in person or on the phone. In addition to this, the person who lost their guns must prove to the court that they are not a risk in order to have their weapons returned. If the judge is not satisfied that the defendant is not a threat, the judge may order that the weapons be kept for 364 days. The defendant may challenge the ruling only once during the 364 day period.
The bill states:
“The bill creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO). The petitioner must establish by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm. The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist.” – CO HB 19-1177
In addition, the text of the bill defines “family members” as follows:
“FAMILY OR HOUSEHOLD MEMBER” MEANS, WITH RESPECT TO A RESPONDENT, ANY: (a) PERSON RELATED BY BLOOD, MARRIAGE, OR ADOPTION TO THE RESPONDENT;
(b) PERSON WHO HAS A CHILD IN COMMON WITH THE RESPONDENT, REGARDLESS OF WHETHER SUCH PERSON HAS BEEN MARRIED TO THE RESPONDENT OR HAS LIVED TOGETHER WITH THE RESPONDENT AT ANY TIME;
(c) PERSON WHO REGULARLY RESIDES OR REGULARLY RESIDED WITH THE RESPONDENT WITHIN THE LAST SIX MONTHS;
(d) DOMESTIC PARTNER OF THE RESPONDENT;
(e) PERSON WHO HAS A BIOLOGICAL OR LEGAL PARENT-CHILD RELATIONSHIP WITH THE RESPONDENT, INCLUDING STEPPARENTS AND STEPCHILDREN AND GRANDPARENTS AND GRANDCHILDREN;
(f) PERSON WHO IS ACTING OR HAS ACTED AS THE RESPONDENT’S LEGAL GUARDIAN
It is because of this lack of due process that opponents are creating so-called “Second Amendment Sanctuaries.” Representative Dave Williams says that the “preponderance of evidence” is too low of a standard to use when talking about removing guns. Williams elaborates, “I feel strongly that this is a violation of the Constitution.” County Commissioner Dwayne Mcfall agrees, and defends his county’s resolution to be a Second Amendment Sanctuary by saying, “I think we’re trying to make a statement to the lawmakers in Denver who are acting on their own agenda and not listening to the rest of the state. We’re not sworn to uphold an unconstitutional law.” In response, Colorado Attorney General Phil Weiser tells county sheriffs, “All law enforcement officers swear an oath to uphold the rule of law.” Weiser added, “I am confident that when and if the time comes, all law enforcement officials will follow the rule of law.”
Colorado is not the only state in which county commissioners have declared their counties a Second Amendment Sanctuary. Cherokee County, North Carolina declared itself a sanctuary on Friday. County Commissioner C.B. Mckinnon shared his thoughts on Facebook, stating, “People are recognizing the threats to this nation. Without an armed citizens, our nation will not stand. Only the….2nd Amendment and patriots can protect the Constitution. People, not government, upholds our Constitution and way of life.” Twenty nine counties in New Mexico have also declared themselves “sanctuaries.”
The grassroots organization “Rally for our Rights” reports that 26 of Colorado’s 64 counties have either passed resolutions or are considering declaring themselves Second Amendment Sanctuaries.
The red flag law in Colorado takes the concept of “innocent until proven guilty” and turns it on its head. This is a law which punishes people before they have had a chance to defend themselves. It also places the burden of proof upon the accused, as opposed to the accuser. The law in Colorado doesn’t specify what exactly a “preponderance of evidence” means.
What proof is required to demonstrate someone is “acting out of character” that will convince a judge an extreme risk protection order needs to be issued? Is it simply hearsay information, or must there be more substance to it? If there does need to be more substance, what exactly can a family member provide as proof that someone is suffering a mental health crisis?
While we do need to address the way we handle mental health issues in this country, they way this law is written simply does not provide enough protection against abuse. Additionally, the broad definitions of “family member” leave many people open to the possibility of having their guns removed by: angry or activist roommates; vindictive ex-lovers or spouses; and family members who may not have a lot of interaction with the defendant.
The fact that counties within Colorado, North Carolina, New Mexico and others are resolving to not enforce these laws should be telling to the state legislatures. If this is going to be the trend across the country, it may further divide an already divided country.