Paper's "fixes" for red flag law would only make things worse

Ed Reinke

Colorado’s “red flag” law has been the topic of a lot of debate in the wake of the mass murder at a Colorado Springs nightclub last November. The suspect had previously been arrested and charged with felony offenses for allegedly holding his grandparents hostage (charges that were later dismissed by the local prosecutor after family members reportedly refused to cooperate), but local officials never invoked the state’s Extreme Risk Protection Order law in an attempt to prohibit the suspect from lawfully possessing firearms in the future.

I personally think the failures of the criminal justice system are far more important than the lack of a “red flag” petition, but the Democrats in control of the Colorado legislature appear to be far more interested in expanding the ERPO statute than they are addressing the rise in violent crime across the state; a rate that’s been steadily climbing for close to a decade now. Many media outlets have also adopted the position that’s what’s really needed is a more robust “red flag” law, including The Sentinel, whose editors recently offered some proposed “fixes” to Colorado’s ERPO law; starting with who can file a petition with the courts.

One current easy solution headed for the Legislature would expand the list of those who can appeal to courts for intervention to include, possibly, health-care providers and school officials.

It’s unclear why anyone should not be allowed to begin the ERPO process, since applicants must provide proof to a court to begin the process. Substantial proof could easily come from neighbors, employers or fellow employees, shooting range officials or even gun-store clerks.

Yeah, what could go wrong with letting everyone and their dog file petitions with the court to ban them from owning a firearm? Under current law, only police and family members can petition the courts to have firearms removed from someone’s possession. While that alone isn’t enough to end the potential abuses of ERPOs, restricting who can file for a “red flag” order presumably reduces the number of false reports that are filed, maliciously or not.

We’re talking about depriving people of one of their most fundamental rights here, but the paper’s editors aren’t concerned with any violations of civil liberties (at least not concerned enough to spend even a sentence discussing them). They appear to be fixated on simply approving more red flag petitions and taking guns away from more Coloradans.

In addition to expanding the law, state legislators need to review the measure carefully for loopholes.

Some El Paso County police and political officials consider the red-flag law anathema to their political interpretation of the Second Amendment.

County Republican officials there have long bragged about the county being a “Second Amendment sanctuary,” opposing the red-flag law and other common sense measures that seek to at least keep guns out of the hands of clearly and imminently dangerous people, like Aldrich.

El Paso County Sheriff Bill Elder “has previously said he would only remove guns on orders from family members, refusing to go to court himself to get permission except under “exigent circumstances,” according to an AP story in December week. “We’re not going to be taking personal property away from people without due process,” Elder said as the law neared passage in 2019.

He and others have since backpedaled on some of the rhetoric. It’s clear, however, that state officials need to find ways to ensure gun-rights complicit local law enforcement officials follow and carry out Colorado law, rather than interpret or outright dismiss it.

How’s the state supposed to do that? Set a quota for every county sheriff and sanction them if they don’t produce the “correct” number of petitions as determined by anti-gun politicians? ERPO laws were originally billed as a “tool” that law enforcement could utilize, but now its proponents want the state to wield it as a cudgel against “gun violence”, with success measured solely in terms of how many petitions are approved.

After offering up some terrible ideas, the editors conclude with a few outright delusions.

Proven and sensible red-flag laws are easy, effective and come installed with checks and balances.

Gun-rights activists regularly insist that the plague of gun violence is primarily a mental health issue. We agree. And legislation that removes deadly weapons from the hands of mentally ill people makes only perfect sense.

“Red flag” laws aren’t proven to be effective, and the “checks and balances” that the editors claim are in place are few and far between. In ex parte hearings the subject of a petition can be deemed a danger to themselves or others based solely on the evidence presented by prosecutors to a judge, without the subject ever knowing that the hearing was taking place much less being allowed to present their own defense. Even when they do get their day in court, because ERPO’s are a civil matter they’re not entitled to a public defender, though they’ll most likely be facing a seasoned prosecutor from the local D.A.’s office. If they can’t afford to hire an attorney they’re on their own, which puts them at even more of a disadvantage.

Perhaps most importantly, “red flag” laws do nothing to address the supposed dangerousness of someone on the receiving end of an Extreme Risk Protection Order. Not only is there no mental health evaluation performed by a healthcare professional at any point in the “red flag” process, even after someone’s been deemed a danger there’s no place for the mental health system. Once the guns have been removed, supposedly the problem is solved. That may make sense to the editors at The Sentinel, but it doesn’t make any sense to me.

One of the big reasons that “red flag” laws have no mental health component is that the mental health system in most states is already stretched to the breaking point; Colorado included. ERPO’s aren’t just an easy way for anti-gun politicians to take some people’s guns away, they allow those officials to say they’re doing something without actually addressing the real problem. Colorado Democrats are no exception, and while they might not go as far as The Sentinel editors would like, I have a feeling that “fixing” the state’s “red flag” law is going to be a much bigger priority than either repairing Colorado’s crumbling mental health system or seriously addressing its rising violent crime rates over the course of this year’s session.