The Red Flag Law – An Analysis
I’ve been going after the Arapahoe Sheriff and his corruption and ineptitude for the last few weeks (those of you that know my blog site has seen the 9-part series thus far, including his latest spending of $480K of county resources so he could have an extra day off from work with his family). Now let’s turn back to state issues, starting with the newly signed “Red Flag” bill – Colorado House Bill 2019a-1177.
This bill is brought into law against the wishes of the vast majority of Colorado Law Enforcement, including (so far) over half the state sheriffs that are refusing to enforce it. This was originally brought to the floor for consideration in 2018 and was killed… But then we had a change in legislative majority, they made a few “changes” and it sailed through this time virtually unscathed. Let’s understand the background of the bill:
It was originated in large part through the efforts of Sheriff Tony Spurlock (R-Douglas County) following the death of one of his deputies, Zach Parrish, who was killed by a man who was believed to be mentally unstable at the time. It has made him highly unpopular and subject to a recall effort that is gathering steam quickly. There remain questions around the situation that led to the shooting that took Deputy Parrish’s life and wounded other deputies, but the facts that were released were that patrol deputies made contact with the person (who actually called them in the first place) who later slammed the door on them. The deputies, using a roommate’s key, made entry back into the residence, Deputy Parrish then attempted to kick in a bedroom door to restrain the individual who was known by his roommate to have a rifle. He then shot Parrish and three other deputies, later shot a SWAT officer, and then died of return fire from law enforcement. Two neighbors were also shot in the process but survived. Before re-entering the apartment, Deputy Parrish mentioned that he believed the person was having a manic episode, and he was going to place the person on a mental health hold.
Entering into these situations with a potentially at-risk person is exactly the situation that could arise again with this new law – and the people behind the badge know it. Imagine having your rights stripped of you (without any prior knowledge), whether justified or not. How would some people react? Law enforcement isn’t called to happy occasions very often – they are, however, called to high-stress, high-risk environments every day.
Everyone should agree that people with mental challenges, especially with violent words, actions, or tendencies, should not possess firearms. I don’t think anyone reasonably disputes that premise. But due process has been stripped in this bill, and this could easily result in more bad outcomes. I have read it through a couple times and discussed it in my household – which is also a law enforcement background – and the text is worrisome. Some of the highlights:
- This bill provides for law enforcement or person related (by blood or relationship) to an individual to sign a sworn affidavit affirming that an individual is a candidate for an Extreme Risk Protection Order (ERPO).
- A hearing must be held, even by phone, within 1 business day. The individual identified in the request (the Respondent) is not notified or required to appear. No lawyer is there to represent them. No evidence beyond statements are required. If the order is granted as a Temporary ERPO, this is when Law Enforcement is expected to go serve them with court orders to surrender their weapons, conceal-carry permits, etc. Searches of their residence and property is permitted. This encounter is where the major risk exists for Law Enforcement!
- The Respondent must then PROVE to the court they have complied with giving up their firearms and permits within 48 hours.
- Nowhere in this bill does the Respondent have any choice in this. They wouldn’t even know it was happening until a deputy shows up at their door to seize their firearms. They may have done absolutely nothing wrong, or they may have yelled at an ex-partner, or they may have actually said something that would warrant the action. But the Respondent is still forced to comply.
- Law Enforcement now must store the weapons until the order is lifted, and provide receipts to the Respondent.
- Within seven days a full hearing is scheduled, where the Respondent can defend themselves, bring a lawyer, or have one appointed. But up to that point they have no rights.
- If the order is upheld, it now becomes a year-long order that may be renewed at the discretion of the court.
The right to bear arms is, of course, upheld within the constitution, and the taking of those arms without due process will lead to court battles. However, the real issue here is the extreme risk this law is now placing squarely on the shoulders of the Deputies and Officers that are court-ordered to enforce. There are needs for these kinds of protections, but there are also plenty of ways to create them without stripping due process, while having to then go prove your innocence later. This law does not allow for proper representation of the Respondent before actions are taken against them; this is where it goes way off the rails, and unfortunately will place too many law enforcement professionals in even more danger.
