Before a 10-hour hearing at the Colorado Capitol on a “red flag” gun bill last week even began, the die had been cast.
The measure won the House Judiciary Committee’s approval, as it always was slated to. And no matter how hard Republicans push back, it’s expected to ultimately pass the legislature this year.
That means the real questions surrounding the bill, which would allow judges to order the temporary seizure of guns from someone deemed a significant risk to themselves or others, are what will happen alongside and beyond the legislative debate. The bill’s path will raise significant questions with lasting implications in terms of policy and politics.
“The central dynamic is not what the outcome is going to be — we know there is going to be a signing ceremony — what’s interesting is what position different legislators take in the process,” said Eric Sondermann, a political analyst in Denver.
For Democrats, the measure fulfills the party’s promise to voters to address gun violence. For Republicans, the battle against the bill centers on how much the GOP can activate its base and rally opposition ahead of the 2020 election.
“Can the Republicans and advocates for the Second Amendment raise this issue high enough and get enough press and do enough social media and educate enough people about what the bill really does — and what alternatives there might be — to change the way the public perceives it?” asked former state Sen. Greg Brophy, an Eastern Plains Republican and lobbyist who is a fierce gun-rights advocate.
Here’s what to watch as the bill makes its way through the legislature — and beyond:
Key Republicans switch positions
Two prominent Colorado Republicans who supported similar legislation last year oppose the current bill because of changes they believe weaken due process protections for those whose guns would be seized under such a law.
Their main concern centers around a shift in the burden of proof requirement after someone’s guns are seized and a judge rules that they can be taken away for up to a year. Instead of the burden of proof being on law enforcement, a family member or loved one who petitions for the seizure, it would move to the person who loses their weapons when they petition a judge to reconsider.
For all other hearings and decisions made by the court related to the legislation, the burden of proof would be on the petitioner.
Cole Wist, who sponsored the 2018 red flag bill but lost a re-election bid in November, called the change “ill advised.” George Brauchler said the measure’s current form, namely because of that detail, is too extreme. But Democratic lawmakers say they made the alteration at the recommendation of law enforcement.
“I don’t know anything else in our law that says, ‘You’ve got to prove to me, not by a preponderance of the evidence, but by the highest standard in civil law that you deserve to get your rights back,’” Brauchler testified at last week’s hearing. “That’s too much.”
How the red flag bill works
– Law enforcement or a family member requests the court to temporarily seize the firearms from someone who is a significant risk to themselves or others.
– Within 14 days a judge must rule, using a clear and convincing evidence legal standard, whether to extend the seizure period and prevent the person from purchasing more guns for up to 364 days. The process is a civil one, not criminal.
– If the longer seizure period is granted, a person can ask a judge as many times as possible to reconsider, but the burden of proof is then shifted to them.
Some Democrats accuse the pair of making a political calculation in backing off from this year’s effort. The two men strongly deny that claim.
The reason their support is important this year is the same as it was a year ago: Counting prominent Republican leaders as supporters gives middle-of-the-road Democrats and moderates in the GOP political cover to back the legislation. Losing the support of Wist and Brauchler now also gives opponents another attack line against the bill.
Brauchler did express support for an added provision in this year’s bill that ensures someone whose guns are taken away is provided a lawyer by the state throughout the process if they cannot afford one. The prosecutor urged lawmakers to make several other amendments, including a mechanism by which they can review the measure’s effectiveness in a few years, but so far the bill remains unchanged.
“I’m still invested in the idea that there is a role for government to play here,” Brauchler said, explaining that he supports the concept, though he prefers to first address mental health funding and the state’s 72-hour mental-health hold law. “This bill just goes too far.”
But Wist says he feels this year’s version of the measure moved significantly left. “We can’t pretend like it’s the same bill as last year,” he said. “It doubles the time period where someone can lose their rights and it shifts the burden of proof in a critical stage.”
House Majority Leader Alec Garnett, a Denver Democrat who is a lead sponsor of the legislation, said before the bill was introduced that he expected to have Brauchler and Wist’s support because of its similarities to the 2018 version.
“There’s no reason not to support this year’s bill over last year’s bill,” Garnett said.
Will any Republicans vote in favor, and how many Democrats defect?
So far, no Republican state lawmakers support the bill, and that may not change.
One reason is the influence of the Rocky Mountain Gun Owners, a hard-line gun advocacy group, and the potential political blowback for a GOP member to voice their support.
“I don’t think a Republican will vote for it,” Brophy said. “I think that it would be really hard to win a Republican assembly race if you were a supporter of this bill or this concept. I think it would be very damaging to you. I don’t know if you if you could win a straight-up Republican primary as a supporter of this type of legislation.”
Take Brauchler and Wist: Their support of the red flag bill last year led to attacks from RMGO. It’s likely a policy decision they will always have to answer for in Republican politics.
It’s also possible that some Democrats will oppose the bill.
Reps. Donald Valdez, of La Jara, and Bri Buentello, of Pueblo, say they are undecided. The pair come from moderate districts.
“I’m still reading the bill and hearing a lot of opposition from my constituents on the bill right now,” said Valdez, who voted “yes” for last year’s red flag measure.
Buentello, a teacher, said she can “see the need to keep weapons out of the hands of dangerous people who would seek to harm the general public.” But, she added, “in southern Colorado, we hold our Second Amendment rights sacrosanct.”
Buentello, the daughter of two Marines and wife of an Army officer, all of whom have suffered from post-traumatic stress disorder, is concerned the bill is “disproportionately going to impact combat veterans, like my parents, like my husband.”
“I have very serious concerns about the due process piece of this bill, in addition to where the burden of proof falls,” she added.
The biggest question mark remains Senate President Leroy Garcia, a Pueblo Democrat. He has voted to repeal Colorado’s 2013 law limiting ammunition magazine size to 15 rounds and issued a noncommittal statement on the red flag bill upon its introduction.
His vote will be important to watch because it appears the rest of the Senate Democratic caucus supports the measure. If the Senate leader is opposed, it could send a signal that Democrats are pushing too far.
Recall election threats and other long-term consequences
Democrats from moderate districts who do decide to vote for the measure will face a backlash in the 2020 election, Republicans say.
At the very least, those Democrats should expect to see campaign mailers sent to their constituents accusing them of overreach. On the more extreme end could be recall efforts.
“I’m sure we’re going to use it against the Democrats, if it passes,” said Assistant Senate Minority Leader John Cooke, a Greeley Republican and former sheriff. “We’re going to use it against them once they vote for it, in some of those swing districts.”
Rocky Mountain Gun Owners distributed fliers to state lawmakers recently urging them not to vote for the bill with a not-so-subtle hint about potential political consequences such as those Democrats faced in 2013 after passing tougher gun regulations. That year, two Democratic state senators were recalled and a third resigned amid their support for firearm control legislation.
“In 2013, Colorado lawmakers violated our rights by passing some of the most radical and expansive gun control laws in the nation,” the fliers say. “Despite leftists losing historic recall elections, anti-gun lawmakers are now calling on the passage of even more gun control.”
The group’s Facebook page is filled with similar posts. The National Rifle Association is also working to activate its members against the bill.
The GOP is pushing for lawmakers to instead focus on changing the state’s 72-hour mental health hold law to make it easier for law enforcement to get help for someone in distress. They say that alternative should be discussed first.
“The criteria for a 72-hour hold is you are a danger to yourself and others,” Cooke said. “Well, that’s what this bill is saying, too — to come in and take your guns. But the problem is you leave the person at the house. It’s gun confiscation, and it’s really short on mental health. So, if you’re going to take the gun, you ought to take the person instead if they are that dangerous.”
There’s a sense among Republicans that creating enough fury around the Colorado effort could send a message to other states and Congress to not even think about bringing a similar measure up for debate. In 2013, there was even more furious pushback against the two gun-control bills brought by Democrats — both inside and outside the legislature — which included the magazine limit legislation and a measure expanding background checks.
“I believe that the fight we put up here actually stopped the bill from being passed in the U.S. Congress that same year,” Brophy said. “That’s what this is about here, too — impacts across the state in the public and impacts in other state legislatures and in the Congress.”
But it may not resonate more broadly if the fears about the bill are not realized, Sondermann says.
“If it turns out to be noise and empty threats, then I don’t think the ripple effect is at all significant,” he said. “In fact, it’s probably the contrary.”
How much will the bill change?
Another big question mark surrounding the legislation is how much it could change as it makes its way through the legislature.
Garnett, the sponsor, has vowed to take as much input as possible to address the measure’s fiercest critics.
“I’m taking every phone call,” he said. “I’m going on conservative talk radio. If you have legitimate issues, I’m taking the time and working with you.”
Garnett offered several amendments to the bill last week as it received its first House committee hearing. Those include:
- A three-day limit on how long it can take for someone’s guns to be returned after they are seized
- Language ensuring that if a seizure happens, the target can get their record expunged faster
- Allowing someone to quickly get their concealed-carry permit back after a temporary seizure happens and without extra cost
Finding ways to amend the bill but not significantly alter its impacts is good politics, said former Colorado House Speaker Mark Ferrandino, a Denver Democrat. Doing so reduces places opponents can attack — and makes for better policy.
“I think it’s smart of the majority leader to look at those ideas and put them in where they are justified,” Ferrandino said.
But one area that Garnett does not seem open to shifting is the burden-of-proof element that some Republicans have found so troubling.
The fiscal note
A final moving target that will be an important part of the debate is the bill’s fiscal note, which nonpartisan staff at the Capitol use to estimate a law’s impact and cost to the state. The estimates can change as a measure is amended.
Right now, the analysts are assuming there will be about three extreme risk protection order petitions made for every 100,000 people in Colorado annually. That equals about 16 petitions in the state’s current fiscal year, should the bill pass, and roughly 170 per year beginning in the 2019-20 fiscal period.
Some conservatives think those estimates are low given that other states that have already enacted red flag laws, like Florida and Maryland, which have larger populations, issued more than 1,000 orders in 2018 alone. Their red flag laws are different than the bill being brought in Colorado, however.
Another notable estimate made by the analysts is the cost of the state providing a lawyer for anyone who faces a petition for their guns to be seized. Garnett and state Rep. Tom Sullivan, a Centennial Democrat who is also sponsoring the bill, say that’s an addition that sets Colorado’s legislation apart in terms of increased due process protections from what other states with red flag laws have adopted.
Legal experts have raised questions about the cost of creating what’s essentially a public defender system for civil court.
The estimated cost for the current fiscal year is $11,065 and $117,564 for subsequent years. That’s in addition to about $9,000 for an increase in mental health evaluations this year as part of the measure and roughly $98,000 in subsequent years.
House Bill 1177 is awaiting a hearing in the House Appropriations Committee before it comes up for a full vote in the chamber. It would then head to the Senate, where more intense and long debate about the measure is expected.
Staff writer John Frank contributed to this report.