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Crime and Courts

The red flag bill again thrusts Colorado’s sheriffs into the gun debate — with legal questions, strong emotions and Facebook letters

More than a dozen county commissions have passed some type of resolution supporting Second Amendment rights, many of them declaring their counties “Second Amendment Sanctuaries"

Montezuma County Sheriff Steve Nowlin waves to coworkers at his office in Cortez, Colorado, on March 11, 2019. (The Colorado Sun)
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For Montezuma County Sheriff Steve Nowlin, House Bill 1177 is indeed a red flag — a warning for just how far Colorado is from enacting meaningful mental health legislation.

That, he believes, should be where the discussion and energy is focused.

Not on guns.

Instead, the measure has roused the same partisan and pro-gun/anti-gun battles that have marked previous legislative attempts to grapple with gun violence.

He and the 63 other county sheriffs in Colorado again find themselves in the middle of the gun debate and are being asked by constituents and others about where they stand. Are you going to let them take our guns? Don’t you want to save lives? Would you defy a court order?

Well, no. And yes. And maybe.

As with most debates involving guns, the debate over the so-called red flag bill often veers into hyperbole and arouses strong feelings.

The split over it is generally along party and rural/urban lines. But not entirely.

Douglas County Sheriff Tony Spurlock, a Republican, supports the bill and believes Deputy Zackari Parrish III might be alive if such a law had been in place in 2017 when he was shot by a man in the midst of a mental health crisis. On Tuesday, his county commissioners rebuked him by passing a resolution.

They also threatened to withhold money from Spurlock if he tries to enforce laws that are found to be unconstitutional.

House Bill 1177, an extreme risk protection order bill, passed out of the state House and awaits a hearing in the Senate State, Veterans and Military Affairs Committee. It would allow law enforcement or a family member to seek a court order to temporarily remove guns from an individual deemed to be in danger of harming themselves or others. Proponents and opponents expect the bill to clear the Senate and be signed by Gov. Jared Polis.

While gun rights advocates worry about “gun grabs,” proponents insist the bill is about saving lives, suicide prevention and the mental health crises. The emotions run high on both sides.

More than a dozen county commissions have passed some type of resolution supporting Second Amendment rights, many of them declaring their counties “Second Amendment sanctuaries.” A few — Mesa, Otero, Baca and Rio Blanco — adopted such measures in 2013, after contentious gun legislation to limit magazine size and require additional background checks was adopted.

El Paso County, the second most populous in the state and home to Colorado Springs, unanimously adopted a resolution Tuesday to become a Second Amendment Preservation County and to take “legal action if warranted, to protect the Second Amendment rights of all lawful gun owners in the state, and not just in El Paso County.”

It’s not entirely clear what these sanctuary declarations will mean, other than potential court battles. Some sheriffs have declared they will ignore judges’ orders to confiscate guns. Others said they would obey or are torn about what to do. Even the term “sanctuary” is prompting debate among county officials.

At least a few sheriffs have penned impassioned Facebook posts about the red flag bill, writing about how they struggled with a decision to oppose or support the measure.

But for Nowlin, it’s well past time to quit fighting, sit down and talk and find solutions that don’t involve attacks on constitutional rights to get help for those who need it. He’s got a personal stake in that debate: his 11-year-old granddaughter died by suicide in November 2016.

Montezuma County Sheriff Steve Nowlin in a picture with his granddaughter Alana that sits in his office in Cortez. Alana died by suicide 2016, when she was 11, a loss that Nowlin says informs his thinking about the mental health care aspects of the red flag bill. (Provided by Montezuma County Sheriff Steve Nowlin)

Mental health bill or gun bill?

Several sheriffs have decried the bill for failing to provide mental health treatment resources, claiming that it’s a gun control bill masquerading as a mental health bill.

Proponents have countered that the bill is aimed at saving lives and that states that have had red flag laws for years, such as Indiana and Connecticut, have seen decreases in suicides.

After the first handful of counties passed Second Amendment Sanctuary resolutions, Mental Health Colorado issued a statement saying: “We are disheartened about the decision of these county commissioners. More than half of all suicides in Colorado involve a firearm. We believe everyone should have access to this life-saving protection order no matter where you live. Saving lives should not be a partisan issue.”

If you need immediate help, call the Colorado Crisis Services at 844-493-8255 or text TALK to 38255.

You can also visit mentalhealthcolorado.org to learn more about suicide prevention and how to be an advocate in your community.

Chaffee County Sheriff John Spezze supported a similar red flag bill in 2018 that ultimately failed, and he initially was prepared to support this year’s measure, he wrote in a Facebook post.

“Based on my strong desire to have another tool at my disposal I was compelled to initially offer support for the new bill,” he wrote. But he learned it had changed from the 2018 version, and he said he spent hours considering the ramifications of the changes.

Writing that it was “the hardest decision I have ever made,” he decided he could not support House Bill 1177.

Instead of following the 2018 template, this year’s bill shifts the burden of proof requirement after someone’s guns are seized for up to a year by court order. It puts that burden on the person whose guns were seized, rather than on law enforcement or a family member.

“The idea behind this legislation could be a tremendous tool to assist family and law enforcement when handling persons in a mental health crisis but there also has to be mental health funding attached so there are facilities and resources to treat these persons,” Spezze wrote.

He had other issues with the scope of searches allowed and the potential mingling of civil and criminal issues, but many of his concerns centered on the the notion of taking away guns without providing adequate mental health resources for those in crisis.

Delta County Sheriff Mark Taylor wrote a similar statement to the citizens of his county.

“I truly believe that my fellow sheriffs across the state would agree that there are individuals who live in our communities who should not possess a firearm due to severe mental health issues,” he wrote.

But the bill doesn’t get to the heart of those issues, and instead seems to be a way to “gain another toe hold on dismantling our Second Amendment rights,” he said in the statement.

MORE: The “red flag” gun bill is expected to pass in Colorado. But there are important things to watch along the way.

In remarks Tuesday before the El Paso County Board of Commissioners, 4th Judicial District Attorney Dan May said he had tried a year ago to work with both sides in crafting a red flag bill. But this year, the language flipped and no one was looking for compromises.

“I support the idea of taking guns out of the hands of mentally ill people,” he said, but he said he doesn’t believe this bill is the way to do that.

After hearing from citizens who opposed and supported the county’s resolution, El Paso County Sheriff Bill Elder turned to address the audience directly and thanked them for their heart-felt remarks.

“I, too, want to save lives,” he said, noting that it’s rare to get “advance notice” about suicides. “I don’t ever want you to think I don’t want to save lives.

“I’ve been doing this my whole life, I grew up in this community and I’ve responded on hundreds and hundreds of these call. We understand that people in mental health crisis shouldn’t have guns.

“I’m challenging the law based on the Constitution of the United States,” he said. “I’m not saying I won’t enforce the law.”

Nowlin, of Montezuma County, also believes the bill has due process and constitutional issues while not adequately addressing mental health needs.

He’s dealt with those needs throughout his 42 years in law enforcement, including in the county’s detention center. But he said what he learned from his family’s tragic loss has helped him refocus his efforts on getting to the root — the why — of mental health issues and suicide.

“It doesn’t solve the (mental health) problem — the debate is all pro-gun and anti-gun,” he said. “Let’s address the problem, bring the resources forward. We need more facilities and providers — and it needs to be the right stuff.”

Montezuma County Sheriff Steve Nowlin at his office in southwest Colorado on Monday, March 11, 2019, in Cortez. (The Colorado Sun)

If someone threatens others with a firearm, he said, he can take action under existing law.

But the bill fails those who are in a mental health crisis and in danger of harming themselves, he said.

“This is directed at a piece of personal property and not a human life,” he said. “If they want to hurt themselves, there’s 101 ways to do that. We’ve been dealing with this for years without this — it’s a family matter, a civil matter. There needs to be some intervention, but this is the wrong way.”

Nowlin said his deputies provide immediate intervention if someone calls about a family member or friend in distress. The person is taken into temporary custody and given a mental evaluation, and deputies communicate with the family about securing dangerous items in the house, whether it is firearms, ropes, drugs or belts.

The office works with the schools, too, on bullying and social media issues that impact teens, and it reminds schools that they must notify law enforcement is someone is at risk. It’s about getting to the root of the problem, he said.

“But services still are lacking, and HB 1177 does nothing to fix that,” he said.

Citizens gathered at the March 7, 2019 Teller County Commission meeting. Several spoke in opposition to the red flag bill before the commission passed a resolution to uphold citizen’s rights — without using the word “sanctuary.” (Sue McMillin, Special to The Colorado Sun)

The meaning of “sanctuary” still unclear

After the bill was introduced, sheriffs and county commissioners around the state began to hear from their residents, and many urged their elected officials to oppose the measure.

The movement comes amid what is becoming a national debate about whether sheriffs and local authorities can or should refuse to enforce laws with which they disagree.

Jared Goldstein, a professor at Roger Williams University School of Law who has written extensively about similar ideologies, spoke recently to National Public Radio.

“It dates back to a movement from the ’60s and ’70s called the Posse Comitatus movement, that itself came out of the Ku Klux Klan,” he told NPR. “That isn’t to say that there’s a moral equivalence to the Klan and these constitutional sheriffs. But the idea that they can refuse to enforce laws that they disagree with is just the same.”

The Second Amendment sanctuary movement took hold in states such as Illinois and New Mexico, and similar resolutions began circulating widely in Colorado in recent months.

Fremont County was the first to take up the resolution this year, although in May 2018 Rio Blanco County declared itself a “sanctuary city” and vowed to uphold its citizens’ rights to keep and bear arms.   

But the term didn’t sit well with everyone, including Richard Collins, a University of Colorado law school professor.

The idea of sanctuary has been flipped and is “being a little bit abused here,” he said, suggesting that backers are going for the “aura of that meaning.”

Conceivably, if a sheriff refused to uphold a court order to remove guns and an incident resulted, there could be a liability issue, he said. Or a resident of such a county could protest that their safety was not being ensured.

Teller County Commission Chairman Norm Steen said the county’s resolution to uphold its citizens’ rights to keep and bear arms, and to support the sheriff to “exercise his sound discretion and authority under the Colorado Constitution and Colorado law to keep and preserve the peace” purposefully avoided using the term “sanctuary.”

“The term sanctuary carries baggage,” he said, noting that it’s not clearly defined what is meant by sanctuary county. “We didn’t think it was helpful.”

El Paso and Douglas counties avoided that language for similar reasons.

Teller County wanted to focus on how officials believe the bill violates the U.S. and Colorado constitutions by allowing the seizure of weapons without due process.

For the residents who spoke at the March 7 meeting where commissioners unanimously adopted the resolution, the omission of the word “sanctuary” didn’t matter. About a dozen people spoke against House Bill 1177 and asked the commissioners to ensure their Second Amendment rights.

Ramiro Espinosa Jr. created the “Support 2nd Amendment Sanctuary for Teller County” Facebook page and asked the commission at a February meeting to take action.

He said he opposed the bill because he said it infringed on the constitutional right of due process and the Second Amendment, and he decided he needed to speak up and try to get others to do the same. He was pleased with how quickly commissioners responded.

“Our rights were given to us, and we should not sit silently while they are taken away,” he said.

Nowlin lauded Teller County for avoiding the term sanctuary. Montezuma County commissioners included it in their resolution, and he refused to sign it.

“I can’t agree to that as a sheriff,” Nowlin said. “What is the definition of sanctuary? It means free from the law.

MORE: Colorado’s “red flag” gun bill makes its debut. Here’s how it compares to other states.

“There are too many things that can be misconstrued. I can’t provide sanctuary — I think that word’s being used too much for too many things.”

Huerfano County commissioners on Tuesday decided to take no action on a sanctuary resolution. While they said they don’t like the wording of House Bill 1177, they want to see what happens in the Senate and do more research on the issues and how they want to act, an assistant said.

State Rep. Dave Williams, R-Colorado Springs, said he doesn’t believe it matters whether counties use sanctuary, preservation or some other language “as long as commissioners state the county should be a safe haven for the Second Amendment.”

He directly asked El Paso County commissioners to adopt a sanctuary county resolution. That sort of action brought condemnation from House Majority Leader Alec Garnett, a Denver Democrat who is leading the push for the red flag law in Colorado.

“Remember, a lot of this opposition that we’re seeing is completely manufactured and the taxpayers are essentially paying for some of the manufactured opposition around the extreme risk protection order bill,” Garnett said. “You have Republicans in the House, on their letterhead, sending out letters to elected officials across the state asking county commissioners to declare their counties sanctuary counties on a bill that hasn’t passed yet.”

House Majority Leader Alec Garnett, D-Denver, talks to reporters about the introduction of the red flag gun bill on Feb. 14, 2019. (Jesse Paul, The Colorado Sun)

Garnett called the bill “clearly constitutional if you look at what (Colorado Attorney General) Phil Weiser and former U.S. Attorney John Walsh have said.” Both Weiser and Walsh are Democrats.

But Williams believes otherwise, and he noted that efforts by Republicans to change wording in the bill were rebuffed. And, he encourages sheriffs to defy court orders should the bill become law.

He said he expects legal challenges and recalls, as well.

“The best thing that could have happened from the start is that we don’t pass these kinds of laws,” he said. “The best thing we could have done was get Republicans and Democrats together and talk about mental health.”

Vocal constituents vs. law enforcement

The politics and the pressure to take sides are what most sheriffs don’t like.

Saguache County Sheriff Dan Warwick posted this on the office’s Facebook page:

“The Saguache County Sheriff’s Office fully supports the Second Amendment and the rights it gives. We have had several people ask about making Saguache County a Second Amendment County. Please contact your county commissioners” and he lists the commissioners’ names.

In at least two counties — Montezuma and Douglas — sheriffs have disagreed with action taken by commissioners.

In Montezuma County both the sheriff and commissioners oppose the bill, but Nowlin argued against creating a sanctuary or implying that court orders might be defied.

The split was more profound in Douglas County, where Sheriff Spurlock has testified in support of the bill, named for one of his deputies killed in the line of duty.

On Tuesday, Douglas County’s commissioners approved a resolution that does not specifically name House Bill 1177 or announce the county as a Second Amendment preservation or sanctuary county. But commission Chairwoman Lora Thomas said Wednesday that commissioners want to reassure residents that they would work to protect their constitutional rights and that there already are laws and programs in place to deal with mental health issues.

At the same time, they want to send a message to the legislature and the sheriff about their opposition to what they believe are unconstitutional laws.

“I thought it was completely premature to do this resolution,” Spurlock told Denver7 after Tuesday’s meeting. “They would be foolish to take money away from the office of sheriff because I enforce the law. Essentially, what they’re trying to do is extort me, in my opinion.”

Douglas County Sheriff Tony Spurlock talks to reporters about the introduction of the red flag gun bill on Feb. 14, 2019. (Jesse Paul, The Colorado Sun)

The controversial phrase in the resolution says, “The Board of County Commissioners will fund the enforcement of only those duly enacted state laws that fully respect and support the constitutional rights of our citizens, including their rights to due process, to bear arms, and to defend themselves from evil.”

On Wednesday, Commissioner Thomas said the commissioners intentionally drafted broad language because “who knows what else is going to come out of this legislature.”

When asked who would decide which laws met constitutional muster with Douglas County, Thomas said “judicial review,” and not the county commissioners. She said a legal challenge was discussed, but the county would wait to see the bill in its final form before committing to that. Commissioners directed the county attorney to talk to the El Paso County attorney about a potential legal challenge.

Because of Wednesday’s storm, Spurlock was not immediately available for comment, a public information officer said.  

County sheriffs have some latitude in responding to their constituents and the concerns of local communities, and in how they uphold laws.

“There are not a lot of mechanisms to force sheriffs to do their jobs,” said Trent Steidley, a sociology and criminology professor at the University of Denver. “They are elected and they respond to their constituency.”

While it may seem dysfunctional to have local governments defying state or federal laws, historically it has happened with many issues, including civil rights, voting rights, gay marriage, immigration and abortion.

“It’s part and parcel of how our government system is set up,” Steidley said. “Of course if the law is being selectively enforced, that affects how effective the law is going to be. Many will be proactive in carrying out the law.”

As with most laws, the discretion and judgment allowed plays out through enforcement.

Weld County Sheriff Steve Reams has said he will defy court orders if the bill becomes law, and Williams, the lawmaker from Colorado Springs, encourages others to follow suit.

But most sheriffs are taking a more cautious stand, and recognize that such decisions usually are made on a case-by-case basis.

“If I get a court order, I have to do it,” Nowlin said. “But it doesn’t tell me how.”

Montezuma County residents are working together to find solutions to the mental health issues its citizens face, and Nowlin requires critical incident training for all of his deputies. The state needs to help such efforts rather than creating a divide with local governments, he said.

“The lives that we’ve saved by the things that we’ve done I just couldn’t give you a number but they’re out there.

“I just want us all to be OK,” he continued. “Quit taking a side and set aside personal agendas. Why can’t we all just speak the truth and work together? We’re not all going to agree on everything, but what would make it better?”  

Colorado Sun staff writer Jesse Paul contributed to this report.


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