'Red flag' bill to allow temporary removal of guns from high-risk owners is back

Democratic state legislators introduce extreme risk protection order proposal

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Introduced on the anniversary of the Parkland, Florida, school shooting, a bill to allow law enforcement to remove firearms from those shown to be a risk to themselves or others has emerged again at the state Capitol after last year's defeat by a then-Republican Senate.

“We are on the clock of trying to save people's lives,” said state Rep. Tom Sullivan, a Centennial Democrat whose son was killed in the 2012 Aurora theater shooting.

Bearing the name of a Douglas County sheriff's deputy who was killed when a reportedly mentally ill man shot him and four other officers on Dec. 31, 2017, the Deputy Zackari Parrish III Violence Prevention Act faces a different political landscape than last year.

Now with a majority in the state House and state Senate, Democrats are expected to pass the measure — known as a “red flag” bill — which comes with some changes from last year's version that have alienated some Republicans.

The prior proposal enjoyed the support of then-state Rep. Cole Wist, a top sponsor of that bill, and 18th Judicial District Attorney George Brauchler — both Republicans.

“There are significant material differences in this year's bill,” Wist, who in November was unseated by Sullivan, said in a tweet. “I am opposed and urge the General Assembly to vote no.”

Along with Sullivan, House Majority Leader Alec Garnett, of Denver, and Sens. Brittany Pettersen, of Lakewood, and Lois Court, of Denver — all Democrats — are top sponsors of the bill, which was introduced Feb. 14. It passed the House Judiciary Committee a week later to move closer to a full vote.

'No bill perfect for everyone'

Under the bill, a family or household member or a law enforcement officer can petition a court to allow officers to remove a person's guns. The requester must prove that the person poses a “significant risk” to self or others in having or purchasing a gun. A temporary extreme risk protection order can prohibit a person from having firearms for up to 14 days. After that, if the requester can prove the person is a risk — under a higher standard of evidence — the court can issue a continuing order, preventing the person from having or buying a gun for 364 days. The court would appoint an attorney, at no cost, to represent the person during that second court hearing.

At issue for Wist are the longer time periods a person can remain without their guns: This year's bill doubles the length of both the temporary and continuing orders, compared to last year's.

It also shifts the burden of proof to the person whose guns are taken, rather than the person who requested the order, to prove to the court that the guns should be returned before the 364 days end. That's another issue for Wist and Brauchler.

“I don't want you to say there's no form of this bill that I'd support,” said Brauchler, the DA for the district comprising Arapahoe, Douglas, Elbert and Lincoln counties. “To Sullivan and Garnett's credit, they've made some changes.”

Douglas County Sheriff Tony Spurlock, also a Republican, has been in meetings with lawmakers at the Capitol, pushing for changes like keeping the burden of proof on the requester rather than the person who may be a risk. But like last year, Spurlock is in favor.

“I have issues with it as well, but there's no bill that is perfect for everyone,” Spurlock said. “Way too many politicians are making this about guns, and it's not. This is about mental health issues.”

Spurlock noted the court would be able to put a person under a 72-hour mental health hold, with evaluation and treatment, if they're shown to be in need of it.

“The goal is not to break down someone's door and take his guns,” Spurlock said.

The process of taking someone's guns wouldn't always start that way, Spurlock added — if a person isn't in mental health crisis, law enforcement would have a conversation with them. On the question of that situation escalating to use of force, Spurlock said people shouldn't think that would be frequent.

“That's looking into a crystal ball,” Spurlock said. “We contact people every day with mental health issues that (involve) no use of force.”

Colorado Attorney General Phil Weiser, a Democrat, said the bill is constitutional and annouced his support for it in a news release Feb. 21, saying "reasonable restrictions" on some groups, including those with mental illness, are permissible based on a Supreme Court decision.

'Violation of due process'

The bill isn't aimed squarely at preventing mass shootings, which are often a “sudden instance,” Sullivan said.

“This is another tool that law enforcement has been asking for to help them to do their job as effectively as they can,” Sullivan said. “And that's what we should be doing.”

Brauchler, who prosecuted the Aurora theater shooter, said he hopes such a bill could have an effect on mass shootings, but it's difficult to tell.

“Even the Aurora theater (shooter), I don't know that this law, had it been on the books before July 20, 2012, would have stopped it,” Brauchler said. “But for Zack Parrish's case, I'm pretty convinced that there would have been an intervention that stopped that from happening.”

Deputies were attempting to place Parrish's shooter on a mental health hold when he opened fire, but deputies had contacted him multiple times before, Spurlock said. The suspected shooter at Marjory Stoneman Douglas High School in Parkland also was known to local law enforcement as troubled.

Some oppose the proposal in more broad terms, though, like Rocky Mountain Gun Owners, a gun-rights group that says it has more than 200,000 members and supporters statewide.

“Colorado gun owners loudly oppose so-called 'red flag' schemes because they are a gross violation of due process protections,” said Dudley Brown, executive director of the group, in a news release. “The bill will do nothing to prevent another Columbine, Aurora, or Parkland.”

Democrats "missed the chance" to write a bill that protects Coloradans' civil rights, House Minority Leader Patrick Neville said in a Feb. 21 news release.

"The very real threat exists that innocent people will be stigmatized as dangerous. I have seen this happen with veterans and friends of mine that I served with in the military,” said Neville, R-Castle Rock. "People who actually need help will be dissuaded from seeking it out of concern about their rights being taken away."

'Reducing these tragedies'

Under the bill, the person whose guns are taken can ask the court once to end the order, and they would also have the burden of proving that the order should end. The requester could ask for an extension of the order before it expires if they can prove the person still poses a risk.

“We're not infringing on someone's Second Amendment right,” Spurlock said. “We're not taking those guns permanently. They're removed until someone is treated and cared for.”

On potential changes to the bill, Spurlock wants to see if the guns could be transferred to a family member instead of law enforcement taking them. He also seeks more support for entities that provide treatment for behavioral health, adding that an emergency room is “no place for someone who's in crisis.”

Thirteen states have enacted extreme-risk protection order laws, Spurlock and House Democrats said.

Parrish's parents put out a statement through Democratic state senators at a news conference Feb. 14 that announced the legislation, saying “it is incumbent upon us” to support it, according to a news release.

“This is not about taking gun rights away from anyone; it is about protecting our first responders, families and the community at large,” the parents' statement said, “thus reducing these tragedies in the future.”

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