By: Robert Davis
The Colorado Senate Military, Veterans, and State Affairs Committee voted to pass HB19-1177, the state’s red flag gun confiscation bill, by a 3-2 margin after eight hours of testimony.
“The description of the bill from its proponents is completely different than the text of the bill,” James Bardwell, in-house counsel for Rocky Mountain Gun Owners, testified during the hearing. “It’s just a scheme for gun confiscation. The bill treats firearms as the problem rather than the dangerous people themselves.”
Bardwell, along with other opponents of the bill, spoke at length about how the low standard of evidence needed to enter one’s home to seize a person’s weapons, the due process problems created by such an order, and about how the bill mixes civil law with criminal law.
HB 1177 asks a court to conduct an ex parte hearing, in which those seeking an order against someone provides evidence that a respondent is a clear and present danger to themselves or a community. The respondent is not made aware of the hearing, but nevertheless bears the burden of proving him or herself innocent.
This order is similar to a restraining order, which is a civil law matter. But forcing people to go through court proceedings to prove they are mentally fit to keep their weapons is where the bill conflates the two sets of laws.
“We already have enough laws on the books that punish criminal behavior, but none of these laws are strong enough to keep someone from committing them again,” Sen. Vicki Marble (R- Broomfield) told supporters of the bill. “So, why do we need to add more when those laws clearly cannot stop an evil person from committing atrocious acts?”
Many Colorado sheriffs are asking the same question to the bill’s supporters. One of the most outspoken critics of the bill, Weld County’s Republican Sheriff Steve Reams, told the committee that the bill has serious implications for what is considered a constitutional right.
“Just like every other law enforcement officer, I took an oath to protect the constitution and the Colorado constitution,” Reams testified before the committee. “This bill puts law enforcement in a position where they must do one or the other.”
Article II, Section 13 of the Colorado Constitution says, “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question.”
This language mirrors the provisions of the Second Amendment, and the 2008 Supreme Court ruling in District of Columbia v. Heller, which determined the right to bear arms is akin to self-protection and the security of a free state.
Douglas County Sheriff Tony Spurlock, who has been an ardent supporter of the bill, argued during his testimony that Heller can be used to justify the red flag bill.
“There are two classes of individuals that Heller says should not have weapons,” Spurlock said. “Those are felons and the mentally ill.”
Other law enforcement leaders, however, including Larimer County Sheriff Justin Smith, argue that even though Heller allows for the Second Amendment rights of those individuals to be curtailed, it doesn’t mean that a legislature can depose of the respondent’s due process rights or our process of jurisprudence to do so.
“There’s no question that there are a lot of dangerous people out there,” Smith said. “But, my concern is that this bill comes at the problem backwards. We’re starting by seizing someone’s firearms, their personal property, before getting them into treatment. To me, that’s backwards.”
The petitioners must submit a sworn testimony before the court that the respondent poses a serious threat to the community in order for their weapons to be seized.
Afterward, the respondent bears the burden of proof to show that they are no longer a threat to themselves or the community – even if they never were in the first place. In neither case is the respondent required to go to treatment for his or her “illness.”
Danger for Law Enforcement
Sheriff Smith also pointed out the problems that enforcing the red flag bill would pose for law enforcement, especially if the respondent suffers from paranoia.
“When someone is paranoid about how much force we are going to use in order to enter their home and seize their weapons, it could escalate the situation rapidly,” Smith said.
El Paso County Sheriff Bill Elder has publicly echoed Smith’s arguments, saying that if the bill passes, he will sue so that the due process concerns can be adjudicated by the Colorado Supreme Court.
“My concern with the bill as it is currently written is that it doesn’t allow a person proper due process before taking away their right to possess a firearm,” Elder told KOAA News. “The driving force behind this bill should be mental health treatment, not confiscation of firearms.”
Counties React, Consider a Recall
In an effort to show lawmakers in Denver how displeased the people of Colorado are that the red flag bill continues to be pushed through the legislature, several, mostly rural, counties across the state have passed “Second Amendment Sanctuary County Resolutions” prohibiting the use of county funds to enforce the law.
So far, 16 counties have passed such resolutions, including: Washington County, Douglas County, Dolores County, El Paso County, Prowers County, Park County, Teller County, Conejos County, Kit Carson County, Weld County, Moffat County, Montezuma County, Custer County, Kiowa County, and Fremont County.
Douglas County is beginning the conversation about recalling its sheriff over his support for the bill. However, those who support recalling Sheriff Spurlock need to wait until he’s been in office for six months until they can officially begin those proceedings under Colorado law.
Attorney Robert Wareham of Highlands Ranch is heading the fight to recall Sheriff Spurlock. According to Colorado Politics, he has already formed an issue committee for that purpose and is looking for support from either the National Rifle Association or Rocky Mountain Gun Owners.
“It will be a Herculean task, and there’s no false impression that it will be easy,” Wareham told Colorado Politics. “But the people involved are extremely motivated.”
The Douglas County GOP passed a resolution condemning the bill and Sheriff Spurlock on March 11. The resolution argues that the bill deprives respondents of their due process rights as well as violates the 2nd, 4th, and 5th amendments to the U.S. Constitution.
The red flag bill will now go back to the Senate’s Committee of the Whole for Second Reading. It could be heard as early as this week.
Robert Davis is a general assignment reporter for Gunpowder Magazine. You can contact him with tips or comments at [email protected] or on Twitter @Davisonthebeat.