Whose Red Flag Law Is It Anyway?
November 24, 2022
TW: Please note this includes descriptions of gun violence, attempted suicide, and DV.
In 2019, during legislative hearings over Colorado’s Extreme Risk Protection Order bill, hard-right Republican stalwart Sheriff Tony Spurlock explained that he supported the bill because it would protect law enforcement. He said,
The County Sheriffs of Colorado (the organization) supports this. The Colorado Chiefs of Police have come out, and they support this bill. The majority of officers that do the work day and night support this bill, because they deal with folks who are mentally ill on a regular basis.
The bill was called the “Zackari Parrish III Violence Protection Act” after a Douglas County Sheriff’s Deputy was shot and killed by a man (also an Iraq war veteran and lawyer) who threatened law enforcement multiple times before getting into a shootout with deputies. A version of the bill failed the year before; it finally passed in 2019. Even then, a few sheriffs across the state continued to resist the law, though it was formally supported by law enforcement.
As Spurlock emphasized in his testimony and public statements, the legislation focuses specifically on removing firearms from a person with mental health concerns.
Under Colorado’s law, law enforcement and family members can file for an ERPO. But, as the testimony at the legislative sessions reflected – and future enforcement would show – law enforcement is the primary beneficiary and primary voice.
To ensure this was true, ERPOs require reams of paper and an onerous process, including presenting evidence at a hearing before a judge, even though the order is only a civil one requiring the removal of an individual’s firearms for 14 days. (The order can be renewed.) Anyone who files what is deemed a frivolous or fraudulent ERPO petition can be charged with a misdemeanor.
According to an analysis by a local news station of the first two years of implementation, 95% of ERPOs filed by law enforcement have been approved. Only 32% filed by non-law enforcement were approved. (In El Paso County, site of the Club Q attack, the approval rate was 20%.)
One of those was Christine (a pseudonym), who filed an ERPO for her brother, who put a gun in his mouth and threatened suicide. Christine called the cops, who did nothing and suggested she file for an ERPO. She won, but only after binders of evidence, including threatening text messages. Other petitions, including women alleging domestic abuse and harassment, did not succeed. (The news story points out that petitions filed by law enforcement look like police reports, which is not something a regular person would know.)
In some counties, like El Paso County, where Colorado Springs is located, sheriffs, with the blessing of their county prosecutors and county commissioners, vowed not to apply for ERPOs. In some resistant counties where sheriffs occasionally filed for ERPOs nevertheless, it was plainly to protect their own. Dolores County Sheriff Don Wilson filed an ERPO against a man who pointed a gun at his deputy, explaining:
If a gentleman pulls a rifle on my deputy and then comes and threatens to shoot up my courthouse and kill me, kill the judges, and kill the district attorney.. I’ve got a problem with that person having a gun.
To date, no ERPOs have been filed against police officers, even when they shoot and kill civilians. In early 2020, Susan Holmes filed an ERPO against a Colorado State University police officer who killed her 19-year-old son in 2017. The officers who killed her son were cleared of wrongdoing and no one was put on leave or had their gun removed from their possession. The sheriff of Larimer County refused to serve the petition and said that the filing was “fraud.” It was held up as an example of red flag laws being abused. A judge threw out Holmes’ filing, and she was eventually charged with two felonies, for which she is serving two years of probation after two trials. (The first trial ended in a mistrial.) The prosecutor described Holmes’s petition as “a grieving mother’s revenge,” even though she argued she was a victim and activist trying to get justice for her son.
In another case of alleged misuse of the law, “prisoners in county jails filed petitions against their sheriff jailers, including one who accused the sheriff of slavery.” (A judge threw these out. The law is working!)
With such stories serving as early examples of the challenges of filing ERPOs by family members, is it any wonder that someone might be discouraged?
In the case of the Colorado Springs shooter, there is evidence that his family found him a risk. In addition to the fact that his mother called the El Paso County Sheriff’s Office because he threatened her with a homemade bomb, a local news station recently reported that his grandparents said in an affidavit that they were afraid of him, that he was threatening violence, and that he “want[ed] to go out in a blaze.” We don’t know if they filed for an ERPO – the case is conveniently sealed and the sheriff’s office isn’t talking – but if they didn’t it could be because nobody told them they could or they knew there were unlikely to be believed.
This case again shows the folly of relying on law enforcement to keep the public safe. The Supreme Court of the United States has said that there is no obligation for police to protect the public. That case also happened to involve a family – a woman who tried to tell the police that her abusive ex-partner was a danger to her children. She was right. She was not believed. And the high court confirmed that no one had to listen to her. No one had to help her.
Here, at all levels, from the drafting to legislative approval to execution, Colorado’s ERPO law implicitly favors law enforcement’s opinions, views, and concerns. What (and who) police view as violent is not necessarily what others see as violent. What (and who) they do not see as violent is very often not what others see as non-violent. The problem with red flag laws is that they rely on a policing system that is not only extremely violent but that also has no duty to protect or to serve. It protects its own, and it polices the people – largely men from poor or minority communities (for one struggles to call the poor a minority in America any longer) – it was founded to police. Violent men who want to go out in a blaze of glory are, as the news always shows, a dime a dozen, if not actually on police forces themselves.