The El Paso County Sheriff’s Office has never used Colorado’s 2019 red flag law to ask a judge to temporarily order the seizure of firearms from a person deemed a significant risk to themselves or others.
That includes last year, when it arrested the accused Club Q shooter on felony menacing and kidnapping charges in a case that was later dropped.
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Sgt. Jason Garrett, a spokesman for the sheriff’s office, told The Colorado Sun on Wednesday that the agency has never initiated an extreme risk protection order — or ERPO — which is the first step in making a seizure happen. Garrett didn’t answer a question about why the office has not used the law.
The sheriff’s office’s decision to not use the law is drawing intense scrutiny and questions over whether an ERPO could have prevented the Club Q shooting. To critics, it’s a clear example of partisan intransigence getting in the way of public safety. But at least one expert cautions that red flag laws can’t be seen as a catch-all solution to violence prevention.
“Any time you have a law, it’s only as good and effective as how it’s used,” said Dr. Emmy Betz, a physician and professor at the University of Colorado School of Medicine and the Colorado School of Public Health who studies ways to prevent gun violence.
“Extreme risk orders are one tool for a very complicated problem. … I think we can’t expect this one law can fix everything.”
Sheriff Bill Elder declined an interview request from The Sun. He opposed the red law when it was debated in the legislature because of constitutional concerns, and vowed never to initiate a seizure.
And the El Paso County Commission, in response to the law, designated the county a “Second Amendment preservation county” through a resolution that said the law “infringes upon the inalienable rights of the citizens of unincorporated El Paso County.”
Did a 2021 arrest provide an opportunity to use the red flag law?
In June 2021, the sheriff’s office arrested the alleged shooter, Anderson Aldrich, on felony menacing and kidnapping charges after a woman called El Paso County authorities to report her son “was threatening to cause harm to her with a homemade bomb, multiple weapons and ammunition,” according to the county sheriff’s office.
The Colorado Springs Gazette reported that the El Paso County District Attorney’s Office chose not to pursue formal charges and the case was subsequently sealed. “There is absolutely nothing there, the case was dropped, and I’m asking you either remove or update the story,” Aldrich said in a voice message left for an editor at The Gazette in August, according to The Associated Press. “The entire case was dismissed.”
Authorities have not discussed the June 2021 arrest because the case is sealed. The Colorado Sun and other media outlets have petitioned to unseal the case.
A man who described himself as a former neighbor of Aldrich’s told 9News that it is his understanding that Aldrich’s family declined to cooperate with the prosecution in that case.
“Bottom line is they didn’t want to testify against Andy,” the neighbor, Xavier Kraus, told the station.
How the law works
Colorado’s law allows a judge to issue an ERPO if the petitioner can show that a person “poses a significant risk of causing personal injury to self or others by having in his or her custody or control a firearm or by purchasing, possessing or receiving a firearm.”
The 2019 law was passed along party lines in the legislature controlled by Democrats.
Here’s how the law, which went into effect in 2020, generally works: Law enforcement and family members can petition a judge to order the temporary removal of someone’s firearms.
If the order is granted, the judge must rule within 14 days whether to extend the seizure period and prevent the person from purchasing more guns for up to 364 days. The judge is required to determine whether evidence is clear and convincing in weighing whether a person is a significant risk to themselves or others when deciding whether to extend the ERPO.
That is a strict standard for a civil proceeding, but one that is in line with how red flag laws work in most other states, said Allison Anderman, senior counsel and director of local policy for the Giffords Law Center to Prevent Gun Violence.
The process is a civil one, not criminal, and a person can ask a judge who orders a firearm seizure to reconsider, though the burden of proof then shifts to the person whose guns were taken away to prove that they should get them back.
“These orders are very similar to the other types of civil orders that we have in the legal system to prevent violence, such as domestic violence restraining orders,” Anderman said.
When an ERPO is issued, the person whose firearms are ordered seized must turn their weapons over to an authorized dealer or surrender them to law enforcement. If law enforcement pursues an ERPO, investigators are also supposed to file a search warrant to try to find any guns that a person may not have surrendered.
If law enforcement doesn’t initiate an ERPO but a seizure order is granted, the law enforcement agency with jurisdiction where the respondent lives is tasked with serving the order.
How often Colorado’s red flag law is used
According to data provided to The Colorado Sun on Wednesday following a request to the state Judicial Department, there have been nearly 300 requests for temporary extreme risk protection orders and nearly 100 requests for extended extreme risk protection orders statewide since the law went into effect Jan. 1, 2020.
But the data is difficult to parse quickly and without diving deeply into individual cases. Some requests appear to be approved and then denied when an effort is made to extend them, with both results showing up in the data on petition outcomes.
Betz and her colleagues at CU-Anschutz conducted an in-depth analysis based on the first year the law was in effect. They identified 109 petitions that were filed and were able to analyze 86 of them. Others were missing data.
They found that petitions for temporary ERPOs were granted 71% of the time. Of those filings initially granted a temporary order, 80% were then approved for longer ERPOs. The large majority of petitions were filed against respondents who were white males. It was more common that ERPOs were sought for people making threats against others than people feared to be a danger to themselves.
Law enforcement agencies requested the majority of temporary ERPOs, and they were most often successful. Betz and her colleagues found only two instances where law enforcement requested a temporary order and it was denied. In contrast, when the petition was filed by a family or household member, it was most likely unsuccessful, according to the analysis, which was published in the journal Injury Epidemiology.
Betz said that may be due to law enforcement being seen as more credible or having more familiarity with the court system. She and her colleagues found only four examples of misuse.
“What we don’t know is how often people perhaps should request one but don’t,” Betz said. “It’s hard. We can’t say if people are underusing it or overusing it until cases like this one happen and we look back.”
Focus on the Club Q shooter
It’s unclear whether an ERPO could have been used in Aldrich’s case. And it doesn’t appear that anyone sought to impose one.
Any extended ERPO issued in the summer of 2021 would have expired long before the day of the Club Q shooting unless a new extended order was issued. It’s also unclear where Aldrich got the weapons allegedly used in the shooting. Authorities say the suspect was armed with a rifle and a handgun.
Anderman, with the Giffords Law Center, said it is possible for law enforcement to seek a protection order even in cases where witnesses are uncooperative and when criminal charges have not been filed. Colorado’s law allows law enforcement officers to submit a sworn affidavit detailing why there is a need for the order. That affidavit can be based on what an officer has learned during an investigation. Witnesses can — but don’t have to be — called during the hearing to decide whether to grant the order.
Elder was among a number of Republican sheriffs who were critical of the red flag law when it passed three years ago, arguing the legislation was constitutionally shaky. Some sheriffs even vowed to not use the law.
”We’re going to be taking personal property away from people without having due process,” Elder told KOAA-TV in March 2019, when the measure was being debated. “We’re not going to pursue these on our own, meaning the sheriff’s office isn’t going to run over and try and get a court order.”
There was never a mandate that sheriff’s offices or police departments pursue an ERPO. It was always left to the discretion of officers as to whether they should pursue a seizure. The lawmakers who passed the measure likened the policy to a tool in the toolbox.
Since the law went into effect, law enforcement in some areas that originally opposed it have warmed to the statute. Betz and her colleagues found that there were red flag petitions filed in nine out of the 37 counties that declared themselves “Second Amendment sanctuaries” during the law’s first year. The sanctuary counties had nominally lower rates of petitions filed and lower proportions of law enforcement doing the filing. But, because of small sample sizes, she said researchers couldn’t tell whether those differences were statistically significant.
In January 2020, Elder and the El Paso County Sheriff’s Office released a policy vowing to petition for an ERPO only when “exigent circumstances exist” and “probable cause can be established … that a crime is being or has been committed.” The policy didn’t explicitly define “exigent circumstances.”
The sheriff’s office said in the policy that if a seizure order was issued by the court but not initiated by the sheriff’s office, it would “conduct a risk analysis to determine what resources and personnel are necessary, and establish operational plans to safely serve the order as required.” The policy also said the office won’t search for weapons without probable cause and a signed search warrant.
The Colorado Springs Police Department has initiated at least one ERPO, Lt. Pamela Castro, a spokeswoman for the agency, told The Sun on Wednesday.
The Denver Police Department, by comparison, has used Colorado’s red flag law to pursue gun seizures many times.
The Associated Press reports that an analysis it conducted earlier this year found Colorado pursues red flag gun seizures at a lower rate than other states with a similar law. In fact, Colorado’s seizure order rate was a third of the average ratio of orders issued for the 19 states and District of Columbia with surrender laws on their books.
Colorado Gov. Jared Polis, a Democrat who signed the 2019 red flag bill into law, told The Sun earlier this week that more should be done to educate Coloradans about the tool and how it works.
“Clearly, we need to do a better job on the public outreach to make sure people know about the opportunity that the red flag law can provide,” he said.
The Associated Press contributed to this report.