Littwin: If the red-flag bill becomes law, don’t expect any white flags from the opposition

Photo by Tim Green, via Flickr: Creative Commons.

If the red-flag bill passes the state Senate — which is likely, but not yet a sure thing — and the governor, as expected, signs it into law, there will be no small celebration among those who see the law as a step toward keeping guns out of the hands of those deemed a danger to themselves or others. 

The problem is that any celebration would be, well, premature. Because if the bill — officially the Extreme Risk Protection Order — becomes law, only then would the real fight begin.

You’ve already seen the battle lines being drawn. A dozen or so counties have declared themselves 2nd Amendment sanctuaries, whose commissioners have said they would support their sheriffs if they refuse to enforce the law. They’ve taken this step, you might notice, even before there is such a law. More will certainly follow. This is how wide the divide already is: In Douglas County, where the sheriff, Tony Spurlock, is among the bill’s strongest supporters, the commissioners have voted to join the sanctuary counties.

It’s funny that these counties have tried to co-opt the sanctuary city/immigration model, which most people on the gun-rights side oppose. There’s at least one major difference, though, in the sanctuary branding. ICE makes detainer requests for cities to hold someone in jail after his or her release date until ICE can pick them up. But the detainer requests are just that — they don’t have the force of law, as the proposed red-flag law would.

What we’re seeing here is something like the recent secession movement, except that this is far more serious. If a judge rules that it is dangerous for a person to have guns and the sheriff refuses to follow the court’s order to remove them, the sheriff could be held in contempt of court. I have no idea how that would play out. I have no idea how many sheriffs would actually go through with it and risk extended jail time. But I can predict the level of anger — which has already moved past simmer in some parts of the state — could reach dangerous levels.

Presumably, “sanctuary” would mean that if a judge in, say, Fort Collins ruled, after hearing sworn testimony, that guns needed to be removed from an individual, that person — who wouldn’t be at the original hearing, by the way — could race to Weld County to avoid the cops. And Weld County would be welcoming a conceivably well-armed mentally disturbed person and offer him or her protection from state law.

Does this seem likely? Possible? (Sadly, I’m going with a qualified yes.)

Meanwhile, Dudley Brown and others in the so-called gun-rights world are already threatening to recall any vulnerable Democrats who vote for the bill. One such Democrat, Senate President Leroy Garcia of Pueblo, hasn’t said how he will vote. You may remember 2013 when two senators were recalled for their gun-safety votes, while one resigned with the posse in pursuit. You may notice, too, that the laws are still in effect, and despite the recalls, Democrats now have a majority in both houses of the legislature.

The one certainty here is that the law would be challenged in court. Opponents are citing various problems with the law covering, in their view, about half the Bill of Rights. 

But for a significant percentage of Colorado residents, the law would represent real, if small, progress in keeping guns out of the hands of the mentally disturbed. You’d think that is something we could all agree on. After all, the gun-rights people are always saying it’s not the guns, but mental health, that is the real issue. And yet I’m still waiting to see legislation from anyone that would truly address that problem.

So, we don’t agree. And because the issue is guns, the lack of future agreement is guaranteed.

Here’s how the law would work. A member of law enforcement, a family member or a household member could petition to make the case that an individual is dangerously disturbed and not safe to be around guns. If a judge hears the testimony and agrees, police would go to the home and remove the guns.

After 14 days, the person who has had his guns removed could appear in court, with guaranteed legal counsel, and make the case why he has been misrepresented and should, in fact, have his guns returned. The state would have to make a clear and convincing argument to remove the guns. If that case is made, the guns would be removed for up to 364 days, although the gun owner would have the right to appeal for an earlier date.

The bill, depending on your point of view, is either a wise precaution or a step toward gun grabbing. There is a question about due process, which the courts would someday have to answer. What we do know is that most people killed by guns are suicides. And that mass murders often come at that intersection of access to guns and disturbed young men.

And we also know, especially here in Colorado, the cost of gun violence, and we know all about the missed signs of the violence to come. What amounts to a 14-day timeout, granted by a judge after hearing sworn testimony of the potential danger involved, would seem like a reasonable response. But how many times has reason won out in the never-ending gun-violence debate?

12 COMMENTS

  1. “So, we don’t agree. And because the issue is guns, the lack of future agreement is guaranteed.” However, there is an absolutely 100% guarantee that we will have 45,000 gun deaths this time next year.

    I believe there is a compromise! Keep your guns, but keep the one you’re not using in a GUN SAFE. Know where and who has your guns. Who has access to your safe? The Bill of Rights are serious, magical, steps to Liberty. So much so that those who support the 2nd amendment HAVE to step up A LOT to accept this responsibility this, one of ten, brings with it.

  2. People who have no useful skills or ambition (Democrats) hate nothing more than the rights of those who they envy. Thus “Red Flag” law. The individuals who “Red Flag” laws are actually NEEDED for….are Democrat Party constituents (freaks and weirdos) and cannot be touched.

    • How can you paint a diverse group such as “democrats’ as having no useful skills or ambition. Holy Cow. I try very hard not to paint all Republicans as Trump Republicans. Can you at least open your mind to look for common ground? Could we both agree you would not want a loved one to be killed while going about their business? I know unstable people who come from all ranges of the political spectrum.

  3. I’m not a lawyer, but I think it possible that “county sanctuary” action has an interesting possibility.
    1. law requires law enforcement to enforce a judge’s ruling.
    2. a sheriff, relying on preference and the support of their commissioners, refuses.
    3. person with a gun, carries out a suicide or domestic violence homicide
    4. interested parties – such as the one who requested and got the judge’s ruling – sue for wrongful death.
    5. County attorney tries to defend, based on “sanctuary for Second Amendment” theory
    6. Court, looking at the actual statute, determines there is a state requirement, that the county actively decided to disobey the law, and rules it was a wrongful death. Damages, based on the life of the victim, are levied.

    Am I missing something? There have been a number of cases of wrongful death for suicide or accidental death while in county jails … wouldn’t the “sanctuary” bill allowing for suicide be essentially the same thing?

    • Here is another scenario of the unintended consequence kind:
      1. Person reports an acquaintance as being a danger to a judge, judge chooses to believe the hearsay (what other choice does the judge really have? What is the standard, a polygraph test?)
      2. Police arrive, removing firearm from “dangerous persons” home, (at gunpoint, they are the police after all)
      3. “Dangerous person” is victim of some violent crime, is unable to defend themselves
      4. “Dangerous person” or their surviving family sues the heck out of the state, county, judge, police dept, reporting person etc. or worse, really is a dangerous person and seeks some other form of revenge
      Seizing private property on the grounds of hearsay with complete lack of due process is simply a really bad idea. The current Democrats in the state legislature are proving themselves pretty crazy, or at least ignorant and uneducated buffoons.

    • Here is yet another scenario, of the movie plot kind:

      1. Person reports acquaintance as a danger to the judge.
      2. Police show up and seize “dangerous persons” firearm.
      3. The reporter is the actual “dangerous person” and proceeds to victimize the now unarmed sucker from step 2.
      I can come up with many more of these scenarios, plausible, fanciful, or ludicrous, truth can often be stranger than fiction.

  4. 1. Person reports “dangerous” acquaintance to judge, judge believes hearsay (what other choice does the judge have? What is the standard, a polygraph test?)
    2. Police arrive and seize firearm from “dangerous persons” home (at gunpoint, they are the police)
    3. “Dangerous person” is violently assaulted, cannot defend themselves because the police took their gun
    4. “Dangerous person” sues or worse really is dangerous and seeks some other form of retribution against the state, county, judge, reporting acquaintance, etc.

  5. This law will codify the “special duty” to a “particular individual” ruled in Warren vs District of Columbia.
    The Court ruled that the police Authority only exists for the protection of society at large. Unless that special duty exists to a particular individual the police are immune from litigation for their failure to act or their actions failing to prevent the action.
    IE: the police have no duty to protect any individual nor do they have any duty to prevent any crime against that individual.
    This law claims that it will prevent suicide by gunshot. Unfortunately this is not so. Within 20 minutes of having their firearms stripped from them the individual could conceivably go to the nearest sporting goods store and purchase a black powder arm and gunpowder with which to harm themselves. Black powder arms are not covered under the definition of firearms; and they are exempt from background checks or having to fill out a 4473 Firearms Transaction Report.
    So, in that case, how did this law prevent that suicide? Who was protected? How was this life preserved?
    Only the relatives of the person, and their attorneys, will be able to answer those questions.

  6. The question no one is asking is, “What if that person, named in the order to protect them from harming themselves, resists the confiscation of their firearms?”
    The answer is simple. The police will kill that person.
    So, how were they protected from harming themselves?

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