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Colorado’s attorney general says sheriffs who won’t carry out a red flag bill court order “should resign”

A growing number of counties have declared themselves so-called “Second Amendment sanctuaries.” But does that mean commissioners want their sheriffs to disobey court-issued extreme risk protection orders?

Colorado Attorney General Phil Weiser speaks at the Colorado Capitol on Feb. 12, 2019. (Marvin Anani, Special to The Colorado Sun)
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As county after county responds to the red flag gun bill making its way through the state legislature by declaring themselves a so-called Second Amendment sanctuary, Colorado’s attorney general says that any sheriff who disregards a court order under the measure “should resign.”

“If a sheriff cannot follow the law, the sheriff cannot do his or her job,” Phil Weiser, a Democrat, testified before a state Senate committee Friday. “The right thing to do for a sheriff who says ‘I can’t follow the law’ is to resign.”

The legislation, House Bill 1177, would give judges the authority to issue an order to temporarily seize firearms from a person considered a significant risk to themselves or others. It has faced immense backlash from Republicans and gun-rights groups, who question its constitutionality and want to see a mental health-treatment option instead.

County commissions that have made their counties “sanctuaries” say they don’t want their elected sheriffs enforcing a law they don’t think is legally sound. But what’s not totally clear is if that means refusing to use the tools provided under the measure, or defying a court order to seize weapons.

MORE: 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 other states have already enacted red flag laws. Technically, only a court can rule on the constitutionality of a law.

“Any commission that says ‘I don’t want my sheriff upholding an unconstitutional law,’ they’re on solid ground,” Weiser said, adding that he expects the question to go before a court.

But Weiser, whose job it is to defend Colorado statutes, says he believes that if the red flag bill becomes law as expected and is challenged, it will be found to be constitutional and therefore must be enforced.

Bottom line: Law enforcement will be legally bound to follow through on any “extreme risk protection order” — or ERPO, as it is known — issued by a court, Weiser says.

It’s important to note that law enforcement is not required to seek an extreme risk protection order against someone they believe is a risk to themselves or others. However, family members and others can also request a seizure order, which law enforcement would then be tasked with carrying out if a judges signs off.

“Because ERPO will be constitutionally upheld, every sheriff will be required and, I believe, will follow through to uphold an act under that law,” Weiser said, citing a 2008 U.S. Supreme Court ruling that the Second Amendment does not prohibit guns from being restricted from people in distress.

Weld County Sheriff Steve Reams, a vocal critic of the legislation whose county commissioners earlier this month voted to become a Second Amendment sanctuary, is among those who have vowed not to uphold and carry out the red flag law.

“If you pass an unconstitutional law our oaths as commissioners or myself as the sheriff — we’re going to follow our constitutional oath first,” Reams told Fox News. “And we’ll do that balancing act on our own.”

The reaction has been mixed among sheriffs in other counties where Second Amendment sanctuary declarations have been made. Teller County Sheriff’s spokesman said they would be put in a “difficult situation” if ordered to carry out an ERPO order, according to KRDO-TV in Colorado Springs. El Paso County’s sheriff’s office said they would carry out any court order under the statute, The Gazette reports, but with some limitations.

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

“There will be a court challenge the first time this is invoked,” said Fremont County Sheriff Allen Cooper, whose county commissioners were among the first in the state to pass a sanctuary ordinance. “I’m sure there are a number of sheriffs out there waiting to see who catches that hot potato.”

He acknowledges that the ordinance passed by his county’s commission is nonbinding, but he’s not sure if he will uphold a red flag court order or not.

“I would defer to my county attorney,” Cooper said. “I can tell you that I have never refused a court order in the past.”

Larimer County Sheriff Justin Smith, a Republican opponent of the bill, says he thinks it’s appropriate for law enforcement to sometimes push back on a judge’s ruling. But he’s not in favor of a blanket decision to not follow through on an extreme risk protection order or to ban using the tool.

Larimer County has not declared itself a sanctuary county and Smith is against the concept. But he’s worried about many parts of the legislation that he feels are open questions: How will the combination of civil court proceedings and criminal search warrants work? What if someone whose guns are ordered seized has a gun safe? What if that person is violent? What if the court makes a mistake?

“Here’s the reality,” Smith said, “just because the legislature passes something doesn’t make it infinite wisdom.”

He added that “there’s certainly room for the discretion and the application of law and for sheriffs to challenge that.” Smith thinks Weiser’s comments that sheriffs who don’t follow a judge’s ERPO order should resign reflects the attorney general jumping into the political arena.

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

Ultimately, Weiser says he thinks that when the red flag bill becomes law, sheriffs will follow court orders issued under the policy.

“I do not believe that is not going to happen,” he said. “It is literally — you are going against your oath. You are undermining the very essence of law enforcement.”

He added: “That is unheard of and it is inappropriate for law enforcement to act in a way that would be lawless.”

Bill opponents have other options if they wish to push back against the legislation, Weiser said in a statement to The Colorado Sun. “If any individual wishes to oppose the enactment of a law, then the right forum is the legislature,” he said. “If anyone wants to challenge a law as unconstitutional, that is their right, and the proper venue for such a challenge is our courts.”

House Bill 1177 is now making its way through the state Senate and is poised to pass the Colorado legislature and be signed into law by Gov. Jared Polis.

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