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Colorado Sheriffs Unite Against “Red Flag” Law

Colorado Sheriffs Unite Against “Red Flag” Law

“There are 32 counties that have declared sanctuary against it to some degree, and I would say there are probably more Colorado sheriffs in agreement with me that this bill is poorly written and unconstitutional.” Weld County Sheriff Steve Reams, Westword magazine, 4/4/19

We’ve grown accustomed to attacks on the Second Amendment—and on lawful gun owners—coming in states such as New York, New Jersey and California. That’s where the anti-gunners enact their latest fads, then use the compliant mass media to market them elsewhere. 

But in recent years, anti-gun advocates have found an unlikely base in the Rocky Mountains from which to push their “gun control law of the day”—Colorado. Over the past five years, Colorado’s Legislature has outlawed private gun sales, imposed a fee for background checks and outlawed sales of magazines holding more than 15 rounds. None of this has had any effect on crime, of course. But it makes gun ownership more difficult and legally risky, which is the real objective. Such laws also keep gun control and gun control advocates relevant in a world in which firearm sales, carry permits and permitless carry laws are rapidly expanding, even as crime rates fall.

Colorado’s latest experiment came in April, when Democrat Gov. Jared Polis signed into law Colorado’s version of a “red flag” law. The new law allows petitions to be filed by any relative of a gun owner, as well as by anyone who has resided with him or her during the past six months (in other words, any vengeful ex-spouse or romantic partner). The petition must allege that the person who is its target: 1) owns guns; and 2) poses a “significant risk of causing personal injury to self or others.”

If the court finds a basis for these claims (and remember, the gun owner cannot argue against them, since he or she has not yet even been notified that the petition was filed) the court must issue an order commanding the gun owner to give up his guns to law enforcement or to a federal firearms license holder (FFL). Afterward, the gun owner would finally get a hearing (at which the vengeful ex-spouse or other petitioner can testify by telephone). Next, the court can order the guns held for a year, then has the power to renew the order at the end of the year. The court can also, under certain circumstances, issue a “civil search warrant”—a concept with no constitutional meaning. The Fourth Amendment requires search warrants to be based upon probable cause to believe that a crime has been committed, not a judge’s guess that there is a risk that a law-abiding person might commit one in the future.

The earlier gun laws were a forewarning, though, and they gave local Colorado officials time to react and organize. Depending upon how you count, somewhere over half of Colorado’s counties have declared themselves Second Amendment sanctuaries (though some favor terms other than “sanctuary”), announcing that they will not enforce unconstitutional gun laws, nor appropriate tax money for such enforcement.

Even before it was enacted and signed, the “red flag” law worked to stiffen this local pushback. Colorado’s sheriffs have begun announcing that they want no part of seizing their constituents’ guns or violating the Constitution they swore to uphold and defend.

“I briefed my county commissioners and told them that, unless the bill was extensively amended, there would be major constitutional concerns.” Weld County Sheriff Steve ReamsEven before the law was signed, Weld County Sheriff Steve Reams announced: “I’m refusing to enforce a law I believe is unconstitutional, and I believe my constituent base is in agreement. I can’t enforce a law that I believe goes against our state Constitution or our federal Constitution.”

In an exclusive interview, Reams gave America’s 1st Freedom the background to his decision. “I saw the first version soon after it was introduced, and thought ‘this thing is terrible!’” he explained. “I briefed my county commissioners and told them that, unless the bill was extensively amended, there would be major constitutional concerns.”

Reams believes that the Colorado law blatantly targets the law-abiding. After all, it starts off with a court order that a defendant gun owner turn in his or her guns within 48 hours. It assumes that the person will peacefully do just that because, well, they’re not the type who would disobey a judge’s orders. “That negates any claim that this law is aimed at people who’re at risk to commit a crime,” he noted. Supposedly, the people targeted by the law are at risk for committing violent crime, but in practice the law won’t work unless they are actually peaceful people who wouldn’t dream of disobeying a court order.

“The biggest concern is we are having to order law enforcement into somebody’s home without any kind of crime being committed or any kind of investigation into why we are going to someone’s home to seize their property.” Delta County Sheriff Mark TaylorLike Reams, Delta County Sheriff Mark Taylor was startled to find out what was in the bill. He initially supported the concept behind it. Then he stopped to read the bill itself and was shocked.

“I saw that due process was thrown clear out of the window,” he said. “The biggest concern is we are having to order law enforcement into somebody’s home without any kind of crime being committed or any kind of investigation into why we are going to someone’s home to seize their property.”

Sheriff Bill Elder of El Paso County (the most populous county in the state) told 1st Freedom that he had hoped Gov. Polis would veto the bill since it was opposed by all but a handful of Colorado’s sheriffs, together with many chiefs of police. “That speaks volumes about the bill,” Elder said.

He feels his deputies had a legal duty to serve the court orders, but that they would go no farther.

“My deputies will not search for or confiscate firearms. Nor will we execute any warrant that is not signed by a judge and based upon probable cause to believe that a crime has been committed.” El Paso County Sheriff Bill Elder“My deputies will not,” he said, emphasizing the word, “search for or confiscate firearms. Nor will we execute any warrant that is not signed by a judge and based upon probable cause to believe that a crime has been committed.”

Elder added that all law enforcement officers are familiar with mental health issues and the fact that mental health resources are seriously underfunded and understaffed.

“That’s the issue they don’t want to talk about,” he said. “If a person is suicidal, we need to be able to get them treatment. What good does it do to take away their guns and then leave them be, without help? They can still kill themselves by hanging, by pills or by many other ways. It’s foolish to think that seizing people’s guns will keep them from committing suicide.”

Sheriff Steve Nowlin, of Montezuma County, is in full agreement. He noted that in his 42 years in law enforcement he’s dealt with many mental health issues. And the “red flag” law is actually a distraction from the real problem.

“It doesn’t solve the problem—the debate is all pro-gun and anti-gun,” he said. “Let’s address the problem, bring the resources forward. … This is directed at a piece of personal property and not [saving] a human life.”

This is directed at a piece of personal property and not [saving] a human life.” Montezuma County Sheriff Steve NowlinThis raises a question. Risk of “danger to self or others” is the standard legal basis for court-ordered mental treatment. So if a person really poses that danger, why not seek such court-ordered treatment?

With the recent signing of the bill into law, the real controversy is just beginning. Phil Weiser, Colorado’s attorney general, argues that any sheriff who refuses to enforce the law should resign.

“If a sheriff cannot follow the law, the sheriff cannot do his or her job,” Weiser said. He seems not to understand that to enforce the Constitution—to respect the right to arms, the right to due process and the right against unreasonable searches—is to “follow the law.”

Weiser may have a learning experience in the near future. Colorado’s sheriffs and county governments are considering suing to establish the unconstitutionality of the “red flag” law. Sheriffs Reams and Elder have already proposed such a suit, which would draw support from gun owners and from local civil libertarians.

“Law enforcement and NRA, teamed with ACLU—now that would be one interesting lawsuit,” Elder remarked.

Colorado’s sheriffs illustrate why we have the office of sheriff—the highest-ranking elective law enforcement position in the country. Unlike chiefs of police, sheriffs are chosen directly by their constituents—the voters of their counties—and answer to them rather than to another official.

That so many have chosen to obey their oaths of office to support and defend the U.S. Constitution is encouraging to all who respect that Constitution. The Colorado sheriffs’ rejection of this unconstitutional law might give pause to legislatures that are considering enacting such statutes.

David T. Hardy is a Second Amendment attorney practicing in Tucson, Ariz.; his law review articles on the right to arms have twice been cited by the U.S. Supreme Court. His latest book, Mass Killings: Myth, Reality, and Solutions, is available on Amazon and proves that gun control is useless against such crimes.

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