Colorado's Red Flag Law: A National Context

May 21, 2019
Originally published on May 21, 2019 2:43 am

Colorado is one of the most recent states to enact a so-called red flag law, but a majority of counties here say they won't enforce it. Matt Vasilogambros is a reporter for Stateline, a news service funded by the Pew Charitable Trusts. He's reported on similar laws in place across the country.

He says while the laws vary from state to state, there really aren't any major differences. Recent versions have been signed by both Republican and Democratic governors alike. The measures usually include language allowing someone to make a report saying a family member—or in some cases a roommate, etc.— is a threat to self or others. From there, a judge will determine whether or not that case initially has any merit. An evidentiary process follows where evidence can be provided on both sides. 

The laws are also referred to as 'extreme risk protection orders.'

“It all kind of follows a similar equation,” Vasilogambros says. “But there isn't one bill that was written by gun control groups that's being passed around throughout the states. [The writing of this legislation] is state-by-state, following just the general gist of, ‘We do care about due process. We want to make sure that people aren't getting their guns their property taken away unjustly.’”

He says, as of right now, close 200 counties across nine states are denouncing any sort of gun legislation saying that they're not going to enforce it because they believe it does violate due process and the Second Amendment, among other things. That includes El Paso, Teller, Custer, Fremont, Montezuma, Otero and Weld counties.

Highlights from the interview

On the arguments being made in Colorado against the law and how agencies can choose not to enforce it:

If you jaywalk, a cop has a choice to give you a ticket or not. If you get pulled over for speeding, you could get a warning or you can get a ticket. [Law enforcement] has the discretion to do what they'd like since they are the law enforcement officer. In this case, they say, ‘Our citizens in mostly rural areas are responsible gun owners and it's a burdensome law for communities, so we have the discretion not to enforce it because we're not dealing with the same issues in say, Denver, than they are in rural areas of the state.’

On whether or not law enforcement could face consequences for not enforcing the law:

There hasn't been a specific case in which a sheriff has refused to carry out one of these red flag orders from a judge, but certain officials in other states have made it clear that if you do not enforce this law and something happens where someone gets injured because a law was not enforced, that that sheriff will be held legally responsible. The Washington state Attorney General recently came out with a statement that said as much. Other legal experts that I spoke to said that to hold a sheriff liable is a fantasy that, again, it goes back to this discretion issue. If it comes to a point where there is some sort of legal case, I think then maybe the courts will decide whether or not they have the right to do that. ***

On the use of the word ‘sanctuary’ in red flag legislation:

The term picked up in Illinois where officials downstate were frustrated with these new gun laws that they said were written because of the problems in Chicago. Illinois is a very big state and problems in rural areas are not the same in urban areas. Basically, this one county said, ‘You know, we want to spice up our legislation and since the sanctuary term is a big buzzword and Chicago is a sanctuary city for immigrants, we're going to co-opt that and we're going to say we are a sanctuary for gun rights.’ So, it's more of a thumb in the eye to say that while you may be protecting the rights of immigrants, we're protecting the rights of gun owners in our communities.

On the arguments in favor of red flag legislation:

Some lawmakers and law enforcement officers clearly say that this saves lives. I talked to a sheriff on the East Coast in Montgomery County, Maryland, who told me that since Maryland passed their red flag law, in the first four months, they had nearly 400 petitions to remove weapons from people. He said five of those involved a potential school shooting. He was very intent on saying that, in his community, he believes these laws have been lifesaving. If you look at school shootings like Columbine or even the Sandy Hook shooting, there was a lot of call for action but there wasn't a lot of action at the state level. A good argument could be made that if it weren't for student activists from Parkland, Florida that the momentum that we see now in states red and blue wouldn't have come to fruition.

On how states have successfully carried out the law, despite pushback:

I think it’s just following the procedures and making sure that due process isn't being violated. There are some legal challenges, but so far 15 states and the District of Columbia have been able to carry out these orders to seize weapons. In some cases, it's just a continuous process where you're seeing hundreds of petitions in certain states per month, so clearly some law enforcement wanted a mechanism in which to seize guns from at-risk people and they finally found that in the red flag legislation.

***Editor’s note: In March, Colorado Governor Jared Polis told reporters that sheriffs in Colorado have the autonomy to set local law enforcement priorities. His comments followed remarks by state Attorney General Phil Weiser who said sheriffs should resign if they are unwilling to enforce the law.

Copyright 2019 91.5 KRCC. To see more, visit 91.5 KRCC.