Over the weekend, a 22-year-old white man went into Club Q, an LGBTQ+ nightclub in Colorado Springs, and began shooting. It was the night before Transgender Remembrance Day. This comes after a slew of anti-LGBTQ+ bills introduced and passed in state legislatures, anti-LGBTQ+ executive actions by states, and a series of anti-LGBTQ+ attacks and violence throughout the country. Plus the 175 transgender people murdered in the United States over the past five years (whose cases mostly go unsolved and unprosecuted).
As of press time, five people were killed; 25 were seriously injured. It appears that patrons of the club stopped the shooter by hitting him with his handgun and then pinning him down until police arrived.
The official police reports have been extremely sketchy on the details, probably because the suspect was under the scrutiny of the law last year. Thus far, the Colorado Springs police have said that the suspect had a “long gun” as well as at least one handgun.
According to an official sheriff’s report in 2021, the El Paso County Sheriff’s Department responded to a call from the suspect’s mother in which she claimed the then-21-year-old was holding her hostage with a homemade bomb and other undisclosed weapons. It was serious enough that the sheriff’s office evacuated the neighborhood. No one applied for an Extreme Risk Protection Order at the time.
At the time, the suspect was arrested, but the district attorney never filed charges and dropped the case without comment. The local news has said that the suspect even called the paper to ask them to take down the article about his arrest.
Others have pointed out that the current sheriff of El Paso County (which contains Colorado Springs), Bill Elder has aligned himself with extreme 2nd Amendment groups and has been part of a movement to oppose limitations on gun purchases and licensing – but not, notably, criminal charges for felony gun possession, for which sheriffs will happily arrest people of color.
One of the laws on the table during Elder’s tenure – which started in 2014 and ends this year because of term limits – was the 2019 Extreme Risk Protection Order, which is a version of a so-called red-flag law. The idea behind a red flag law is that it enables law enforcement, judges, and other authorities/community members (it varies from law to law, but often includes family members) to ask a judge for an order to remove firearms from a person’s home. Legal experts generally agree these are constitutional (even under Bruen) because they have a due process mechanism.
A lot of sheriffs throughout the years have kicked up a big fuss about red flag laws. Colorado is no exception, and it’s been going on for some time with assistance from the gun lobby. In 2013, the County Sheriffs of Colorado (the association that lobbies for sheriffs in the state) issued a position paper on proposed gun control legislation after the shootings in Aurora, Colorado, and Sandy Hook Elementary School. “The Second Amendment is not a guideline but rather a right,” it reads. It cites a bunch of discredited research, including writings by David Kopel, an “adjunct scholar” at the Cato Institute and known fan of sheriffs and guns. (Kopel is or was an adjunct law professor in Colorado.)
Colorado sheriffs also filed a lawsuit against the governor, which ended in a nine-day trial in 2014 that found the law constitutional. (The El Paso County sheriff joined the lawsuit, although it wasn’t Elder at the time.) In 2016, the 10th Circuit held that the trial should never have taken place.
In 2019, the Colorado legislature passed the Extreme Risk Protection Order Act, with the support of some sheriffs (and Donald Trump), though plenty of sheriffs and sheriffs groups lobbied against it. Multiple counties declared themselves “Second Amendment Sanctuaries,” and sheriffs published op-eds written by the National Rifle Association.
It’s important to bear in mind that no matter how much sheriffs complain and lobby, they generally do end up using the laws available to them. This is the nature of law enforcement. The same is true in Colorado. According to the AP, while Colorado as a whole files fewer gun confiscation orders than other states with similar laws, there have been 151 gun surrender orders since the law was enacted. Thirteen were in El Paso County. A study focusing on the first year of the 2019 law found that sheriffs who proclaimed themselves opposed did use the law, but tended to use it less. The study didn’t provide further analysis of the race of the person subject to the orders or other details.
Here is the full AP analysis. Just to make a note, in Florida – which, per the AP, uses red flag laws most often of the states analyzed – around 17% of the population is Black. In Colorado, Black people are 4% of the population. I have a (untested) theory that the use of extreme risk protection order is correlated to demographics or, more likely, a change in demographics. Colorado Springs County is whiter than Denver County – although Colorado Springs is also a place where more immigrants are settling. Could it be that what sheriffs are reacting to is not the idea of gun confiscation per se, but rather the idea of taking guns from “law-abiding” (e.g. white) Americans? The lengths to which they will go not to arrest or confiscate guns from white men who, like the suspect in the Club Q case, are manifestly not “law-abiding” is a testament to this. (In addition to the troublesome idea that many complaints to law enforcement come from female family members, whose right to life has always been subordinate to men’s right to weapons.) These same sheriffs also have no problem arresting people when they are not white.
Elder is, as they say, certainly no angel. His office has not posted any information about the shooting. Elder became famous last Christmas when his office posted a photo of Santa getting a concealed carry permit just days after a school shooting in Michigan.
In 2017, he kept Saul Cisneros in jail for nearly four months on an ICE detainer, which expires after 48 hours, and after his daughter posted his bond. Elder claimed that he “intentionally” violated Cisneros’s civil rights and that the law (Colorado’s Governmental Immunity Act) only created liability for “negligently” violating someone’s rights. Therefore, because he did it on purpose, he was immune. Believe it or not, Elder lost at the state supreme court level (although he won at the appellate level). I watched the Colorado Supreme Court hearing on this, and the judges were having trouble keeping straight faces.
Elder was also at the vanguard of opposing Colorado’s 2019 Extreme Risk Protection law. His Facebook post at the time suggested that he would sue – which he didn’t – and that he wouldn’t use the law – which he does, albeit selectively.
I don’t have an answer as to whether or not the extreme risk protection order should have been used here. I do think police spokespeople are being remarkably shady about the perpetrator and whether he has a prior history. (The 22-year-old is also related to a California politician who “compared the Jan. 6, 2021, attack on the U.S. Capitol to the American Revolutionary War.”) They haven’t even been clear what firearms he had in his possession. Elder is retiring and Joe Roybal, his hand-picked successor, will assume the position in January. (Believe it or not, Roybal was the least-bad pick for the Republican nominee for sheriff. Richard Mack even made a pit stop in the county to stump for his organization.)
I do want to point out an important correction to the discourse around sheriffs “ignoring gun laws,” as the media routinely writes. Let’s be clear about when and where and with whom gun laws are ignored. This is not some neutral use of police discretion. This is white supremacy, plain and simple.