Colorado’s new red flag gun law could have been used to stop a gun purchase by an 18-year-old woman, who authorities say was “infatuated” with the 1999 Columbine High School shooting and flew to Denver after making potential threats.
But the extreme risk protection order that may have kept Sol Pais from buying a shotgun at a Littleton store near Columbine would have needed to be filed in her home county of Miami-Dade, in Florida.
That’s because Colorado’s red flag law dictates that a petition to seize someone’s gun must be sought in the county where they reside.
Florida has a red flag gun law of its own that allows judges to order the seizure of firearms from someone deemed a significant risk to themselves or others, and some proponents believe that an order filed there could be acted upon in Colorado.
But it’s not clear what would happen if someone came to Colorado from a state without such legislation, though it appears unlikely an extreme risk protection order could be issued for a visitor who is not from one of the 14 other states that have a similar law.
Still, House Majority Leader Alec Garnett, a Denver Democrat who was the lead sponsor of the red flag legislation, says Pais’ case is a prime example of why such a policy is needed.
“It shows that states across the country need to do more to make sure that people who are mentally ill, who are a clear threat to themselves or others don’t have access to firearms,” Garnett said. “She didn’t commit a crime, but she clearly was in no state to be purchasing firearms after making these threats.”
Pais flew to Denver on Monday after making nonspecific potential threats, some of them on social media platforms, authorities said, although they have not elaborated. Soon after she arrived, Pais purchased a pump-action shotgun and ammunition at the Colorado Gun Broker. Colorado requires background checks for every gun purchase, but anyone who clears that hurdle and is at least 18 years old can purchase a rifle or shotgun. Handguns can’t be purchased by anyone under age 21.
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“We didn’t know she was a threat until after the weapon had been procured,” said Dean Phillips, the special agent in charge of the FBI’s Denver division, when asked by a reporter about whether there was anything that could have prevented Pais from buying a gun.
Pais was found dead at the base of Mount Evans Wednesday morning following a massive search and the shuttering of schools across the Front Range. Hundreds of thousands of students were kept home because of the risk authorities feared she posed.
Garnett says an extreme risk protection order, even if Pais didn’t own any guns, could have been issued to prevent her from purchasing firearms. He said Florida could have issued an order and entered Pais into a national background check database “and she wouldn’t have been able to purchase a firearm here in Colorado.”
Garnett said the red flag law is a tool for use when other laws don’t apply.
“I do think that it is possible that an extreme risk protection order from Florida could have helped stop this woman if the flow of information had been sufficiently timely,” said Sen. Lois Court, a Denver Democrat who also was a prime sponsor of the red flag bill.
Admittedly, however, the sponsors of Colorado’s red flag law weren’t considering such a unique scenario when they drafted their bill.
Sen. Brittany Pettersen, a Lakewood Democrat and another prime bill sponsor, said she is open to exploring adding a provision to law making it possible to seek an extreme risk protection order for visitors from out of state. Doing so could be complex and logistically difficult, she notes.
“Like any big piece of legislation, we’re going to always have to (make) changes along the way,” Pettersen said. “This highlights the need to have another option besides the filing of ERPO with the county of residence if somebody is coming from out of state and is going through a crisis.”
Not everyone is so sure that an extreme risk protection order would work across state lines as-is, even between two states that have red flag laws.
“It’s tough to say how this would play out if push came to shove,” said Christopher Jackson, an appellate attorney at the Denver firm of Sherman and Howard. “This is a civil matter, and state courts often apply the law of other states. So, for example, a California court might apply Nevada law in adjudicating a dispute between a Nevada and a California resident. So, I suppose a Florida court could apply this Colorado statute in a hearing that would take place in Florida. But that seems kind of unlikely to me, just as a matter of practice.”
George Brauchler, the 18th Judicial District attorney and a Republican who opposed the red flag bill that passed the legislature this year, also isn’t convinced about the interstate use of the tool.
He says it’s possible a gun dealer in Colorado could have searched the National Crime Information Center database and found the Florida extreme risk protection order preventing Pais from buying a firearm. But he doubts Colorado law enforcement could have asked a Florida court for permission to seize Pais’ gun here.
“The Florida courts don’t have the ability to say, ‘Yes, I’m ordering based on Colorado’s law,’” he said.
Brauchler said it’s an issue that will likely need to be addressed. More broadly, however, he said the Pais’ case highlighted “some of the weaknesses in our system.”
“They may end up uncovering stuff that hasn’t been released yet, but I can’t think of the crime that was committed,” he said. “Maybe interference with school officials. But threats? There is no crime of just threats. It’s not menacing because she didn’t make a threat to a specific individual or institution.”
Brauchler said Colorado’s 72-hour mental health hold could potentially have been used, only if Pais had been captured and evaluated. “It’s just hard to figure out that tool in that toolbox that would have grabbed her up.”
Colorado courts are still preparing to implement the red flag gun law, signed last week by Gov. Jared Polis, and aren’t set to begin accepting seizure petitions under the legislation until next year. However, Garnett says he did speak with law enforcement officials Wednesday morning who told him that in a “worst-case scenario,” an extreme risk protection order likely could be issued now.
“The law is effective immediately,” Garnett said.
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