Democratic state lawmakers are introducing a “red flag” gun bill on Thursday, legislation that would allow a Colorado judge to order the firearms of a person deemed a risk to themselves or others to be temporarily seized.
The measure is expected to be among the most hotly debated at the Capitol this year, piggybacking off a similar effort in 2018 that was rejected by Republicans. Polls indicate a majority of Coloradans support the concept, but members of the GOP still are likely to mount a significant offensive against the measure.
If House Bill 1177 passes the legislature, now controlled by Democrats, and is signed into law by Gov. Jared Polis, Colorado would join a growing number of states that have enacted similar laws since the shooting at Marjory Stoneman Douglas High School in Parkland, Florida. That massacre, which left 17 people dead, prompted calls nationwide for red flag laws, in large part because of the gunman’s documented history of troubles.
The one-year anniversary of the attack is Thursday.
“It’s a saving-lives bill,” said state Rep. Tom Sullivan, a Centennial Democrat whose son, Alex, was murdered in the 2012 Aurora theater shooting. He’s among the prime backers of the legislation, which creates “extreme risk protection orders” for those deemed too dangerous to have weapons.
If passed, the red flag legislation would be the most significant gun-control policy to become law in Colorado since 2013.
The Colorado Sun analyzed how the red flag bill being offered in the legislature this year compares to the 2018 effort and what other states have placed into law. The study revealed that Colorado would mostly fit into national models despite a few key exceptions.
MORE: Read House Bill 1177
Which other states have red flag laws? Do Coloradans support them?
If Colorado passes a red flag bill this year, it would join 13 states that have passed similar laws.
More than a dozen other states, including New Mexico and Nebraska, also are debating similar measures this year, according the pro-gun-control group Giffords, named after former Arizona Congresswoman Gabby Giffords, who was shot in a 2011 attack.
The laws allow judges to issue so-called extreme risk protection orders to temporarily seize firearms. The Associated Press reports that judges across the country issued more than 1,700 gun-seizure orders in 2018 under red flag laws. The real tally is likely higher, though, because the data is incomplete and doesn’t include California’s numbers.
Red flag laws have been linked to reduced gun violence, especially suicides. According to the AP analysis, one study found that the Connecticut law reduced gun suicides by more than 10 percent in recent years and that a similar law in Indiana led to a 7.5 percent drop.
There are strong signs Coloradans favor the policy. For instance, a new poll of registered Republican voters in Colorado released Thursday by GOP pollster Magellan Strategies shows that 60 percent support “allowing a judge to temporarily take a gun from someone who is determined to be a significant risk to themselves or others, based on evidence presented to a judge.”
Another 33 percent said they oppose the concept while 7 percent said they were unsure or refused to answer the question. The poll’s margin of error is plus-or-minus 3.9 percentage points.
Additionally, the Giffords organization released a poll from Colorado’s Keating Research in December showing nearly 80 percent of active voters surveyed were supportive of a red flag law.
“I anticipate a little bit more organized opposition, but overall I think — from the campaign trail to everything that we’ve heard — that it’s overwhelmingly supported by the vast majority of Coloradans,” said House Majority Leader Alec Garnett, a Denver Democrat who is bringing this year’s bill with Sullivan.
How does Colorado’s effort compare nationally?
In most ways, the red flag bill being introduced in Colorado is similar to those that other states have approved. But there are some key differences in how law enforcement would carry out seizing a weapon and how the due-process rights would be handled for someone whose weapons are taken.
Here is how the policy is designed to work: A family member or law enforcement officer would petition a court to request the ability to immediately seize a person’s guns. If a judge signs the order, the weapons can be taken away and the court must hold a hearing within 14 days to determine whether to extend the seizure and bar the person from purchasing more firearms. The longest a judge could order the seizure of firearms is 364 days. The entire process is a civil, not criminal, proceeding.
For the initial seizure order to be granted a judge must find there is a preponderance of the evidence showing that the person in question is a significant risk to either themselves or other. For the longer seizure, there has to be clear and convincing evidence.
“The timeline is very similar to the majority of the states,” said Garnett.
California and Delaware allow longer temporary seizure periods before a court hearing for 21 and 15 days, respectively. Maryland and New York have a shorter temporary seizure period, with seven- and six-day maximums, respectively.
Almost every state follows the year-long total seizure span. Illinois and Vermont, however, mandate 6 months and Indiana 180 days.
Colorado’s bill would allow family members or law enforcement to petition for a gun seizure. Seven other states — California, Illinois, Massachusetts, Maryland, New Jersey, Oregon and Washington — also adhere to that standard, according to an analysis of red flag laws by the Giffords organization. Three states limit petitions to law enforcement.
Maryland also allows mental health professionals to petition for a temporary seizure. Colorado’s bill this year would not, with the expectation that others could contact law enforcement to warn them of a person who is dangerous and, in turn, have authorities investigate.
(Something to note: In Colorado, a red flag order would be separate from a mental health hold, meaning that people whose guns are seized wouldn’t necessarily be ordered into mental health treatment.)
“By preponderance, it’s going to be law enforcement,” Sullivan said. “They’re the ones who are familiar with these people. These are people that are in the system, who they have become aware of. By adding a family member into it, that gives the family the opportunity (to intervene).”
One key element of Colorado’s proposed law is language eliminating a two-step system for how firearms are seized. Some states require law enforcement to make contact with someone in distress to take their firearms, but they would need a second warrant to access someone’s home if that person does not comply.
Colorado’s bill this year would allow judges to issue a gun-seizure order and a search warrant at the same time. Garnett said that’s something the state’s law enforcement community wanted in the bill to prevent a violent confrontation with someone unwilling to hand over their guns.
“At that point, the two-step system has elevated the level of danger for everybody involved,” he said, “including law enforcement.”
Four states — Delaware, Illinois, New Jersey and Rhode Island — similarly require a warrant to be issued concurrently with a gun-seizure order, according to Giffords.
The most notable difference between Colorado’s proposed law and what other states have implemented: The measure mandates that a lawyer be provided to the gun owner at the first hearing on whether a seizure order should be extended. The sponsors also want to provide the gun owner a longer period to be able to petition the court to re-examine their case, as other states have done.
Garnett and Sullivan hope that those two elements serve as ample due process protections — a major concern for Republican lawmakers pushing back against the red flag concept. A false or malicious effort to have someone’s guns seized, under the bill, would be subject to criminal prosecution.
“There are some nuances to the (bill) that I think are very unique — that I think states will begin to use as a model,” Garnett said.
What’s different about this year’s bill?
The 2018 bill brought by Garnett differed in a few ways.
Among the most significant was a provision that mandated the temporary seizure time period be no longer than seven days and the permanent seizure period be no longer than six months. That’s half as long as the periods outlined in this year’s bill, changes that were made at the recommendation of law enforcement, Garnett said.
Also, if a person whose guns have been seized wants to ask the court to reconsider once a long-term protection order is issued, they must show proof that they are no longer a significant risk. In 2018, the burden of proof for every hearing was on whomever was petitioning for the guns to be temporarily taken away. Garnett says that, too, was changed on the recommendation of law enforcement.
However, it should be noted, a person can ask multiple times for the court to reconsider its long-term gun-seizure order as part of this year’s bill. The 2018 version only gave them one opportunity to do so.
The legislation this year also lacks a Republican prime sponsor. In 2018, then-Assistant House Minority Leader Cole Wist, a Centennial Republican, signed onto the bill with Garnett, and faced immense backlash from within his party and the fiercely pro-gun group Rocky Mountain Gun Owners. (Rocky Mountain Gun Owners is again opposed to the bill.)
Wist lost in the 2018 election to Sullivan.
On Thursday Wist said he wouldn’t be supporting this year’s version of the bill because of the changes that had been made.
The biggest difference between last year’s bill and the effort this year is the political makeup of the legislature. Republicans controlled the state Senate and were able to quickly defeat the bill in 2018 once it arrived in their chamber. Democrats are in control of the House, Senate and governor’s office now.
One key similarity: This year’s bill will also be named in the honor of slain Douglas County Sheriff’s Deputy Zackari Parrish, who was fatally shot by a man who had long been on law enforcement’s radar as someone in distress.
What are the bill’s chances?
While it’s impossible to predict, it’s fair to say the legislation has a wide lane toward passage.
The bill will be introduced in the House, where Democrats have a significant majority. The Senate is where things could get a bit more complicated.
Democrats hold a 19-16 majority, but at least two of those lawmakers have voted against gun-control legislation in the past. Senate President Leroy Garcia of Pueblo and Sen. Kerry Donovan of Vail have voted to repeal Colorado’s controversial law that limits gun magazines to 15 rounds.
Donovan says she is supportive of the red flag bill concept, but Garcia has declined to make a decision until he sees the measure’s final language.
“I recognize this conversation is difficult, but it is one we need to have and an issue we need to address,” Garcia said in a statement Thursday. “We must protect the most vulnerable while respecting law-abiding citizens.”
Garnett said he has been speaking with Garcia about the bill and that the conversations have been “really thoughtful and positive.”
As for potential Republican votes for the bill, that’s even harder to predict. The two lawmakers in the House last year who voted for the measure — Wist and Dan Thurlow of Grand Junction — are no longer in the legislature.
GOP leadership in the House was quick to blast the bill on Thursday. “I am extremely concerned about the lack of due process in this bill,” House Minority Leader Patrick Neville, R-Castle Rock, said in a written statement. “This is an even more draconian version of legislation than what we saw last year.”
Gov. Polis has vowed to sign a red flag bill if it makes it to his desk.
The legislation’s backers are set to formally announce their bill at a 1:30 p.m. news conference at the Colorado Capitol on Thursday. Douglas County Sheriff Tony Spurlock, a Republican who last year pushed for a red flag bill, and Boulder County Sheriff Joe Pelle, a Democrat, are slated to be in attendance. Pelle’s son was critically wounded in the shooting that left Parrish dead.
This reporting is made possible by our members. You can directly support independent watchdog journalism in Colorado for as little as $5 a month. Start here: coloradosun.com/join
More from The Colorado Sun
- Colorado needs affordable housing. The state owns land. Can this combination work?
- As Colorado nears 100% broadband access, funds for rural support shrink
- Who Colorado donors support the most in the 2020 presidential race
- Federal court revives long-fought lawsuit in Colorado challenging TABOR
- Equifax to pay up to $700 million in data breach settlement, including more than $3 million to Colorado