In less than a month, Colorado’s “red flag” law takes effect, but some critical questions still remain about how the law is supposed to be enforced, and whether or not many county sheriffs will even attempt enforcement in the first place.
The Colorado Sun reports that the Colorado Peace Officer Standards and Training Board, or POST, has released six pages of guidance for law enforcement agencies across the state on how to “accept, store, and return guns seized under the law”, but the guidance is lacking one critical piece of information: what law enforcement is supposed to do if individuals subject to a red flag order don’t surrender their firearms.
The Colorado Attorney General’s Office, which houses the POST Board, says language in the red flag law limited the panel to forming a model policy for only those three parts of the legislation.
“It’s up to each law enforcement agency to determine how to respond to an individual who refuses to surrender a firearm,” said Lawrence Pacheco, a spokesman for Attorney General Phil Weiser. “It would likely depend on the factors of each case and available resources.”
The model policy is just a suggestion, and there’s no requirement that law enforcement agencies actually follow it. In fact, several sheriff’s offices have already come up with their own procedures for how their deputies are to use the law.
But the lack of a roadmap on the crucial — and potentially deadly — question of what to do when someone refuses to hand over their guns underscores broader law enforcement unknowns around the complicated new law.
According to the Sun, under the model policy promulgated by POST, law enforcement agencies that file a red flag order are supposed to seek a search warrant once the order has been issued, but if family members or non-law enforcement start the process, there may not be a search warrant issued along with the order, though law enforcement is still supposed to somehow seize the guns belonging to the subject of the restraining order. Even sheriffs who support the new “red flag” law say it’s a complicated process.
Douglas County Sheriff Tony Spurlock, one of the law’s main proponents, said his office’s policy requires deputies to obtain a search warrant if an ERPO is issued stemming from a seizure request not made by law enforcement. He acknowledged that it was difficult to find the right approach and to decipher what was allowed under the law, but he said it is possible for police agencies to figure it out if they put their minds to it.
“I would say it’s very complicated,” Spurlock said. “It requires you to jump through a bunch of hoops.”
Other sheriffs in the state aren’t so sure that law enforcement even has the authority to seize firearms once a “red flag” order’s been issued by a judge.
Fremont County Sheriff Allen Cooper, who opposed the law, said Monday that while he hadn’t gone over the POST guidance, he questions whether law enforcement could even act if someone refused to comply with an order to surrender their guns.
“This is a civil protection order, not a criminal protection order,” he said. “If somebody refuses, my understanding of the civil process is that I can’t force the issue. This is one of those issues where, unfortunately, I think we’re going to have to have a court case to have a lot of these questions answered.”
I suspect that Sheriff Cooper is correct, and we’ll be seeing a lawsuit filed soon after the law takes effect in January. One thing is clear even now though; the legislators who wrote the law had absolutely no idea how it should or could be enforced. Their job was to make the law, not enforce it, and they passed the problems with the “red flag” legislation along to the state’s sheriffs and police to figure out for themselves.