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House Majority Leader Garnett says red flag bill protects due process

Posted at 8:32 PM, Mar 11, 2019
and last updated 2019-03-11 22:58:22-04

DENVER – House Majority Leader Rep. Alec Garnett is defending the red flag bill he co-sponsored as multiple sheriffs and boards of county commissioners from Southern Colorado have come out in opposition to the legislation.

House Bill 1177 creates Extreme Risk Protection Orders which use the state court system to temporarily take away guns from someone believed to be a risk to themselves and others.

El Paso County Sheriff Bill Elder, Fremont County Sheriff Allen Cooper, and Custer County Sheriff Shannon Byerly have all raised concerns about what they see as due process violations in the legislation.

Yet Garnett said he hasn’t heard from any of them.

“My door has always been open,” he said. “So, for all of these folks who are in your viewing area: come talk to me, come sit down with me, give me a call. No one’s called.”

The process for gun removal, as described in the legislation, is for a law enforcement officer or a family member to ask a judge for the ERPO. The orders may be requested and granted in what lawyers call an ex parte hearing, meaning the gun owner does not have to be notified.

Garnett explained that the police chiefs and sheriffs he worked with in drafting the bill wanted it to be done this way.

“If you give them notice that, hey, we’re going to be coming over in 7 days, all you do is you escalate the danger and you escalate the timeline,” Garnett explained.

The temporary order expires after two weeks. The court must schedule a second hearing to determine whether a continuing ERPO is warranted. Garnett points out that the state will provide legal representation to the gun owner for that second hearing and any subsequent hearings.

“We don’t want it to be falsely or maliciously applied and it’s not going to be,” Garnett said. “We not only multiple hearing on the front end, we have a termination hearing, we provide an attorney to the respondent throughout the entire process.”

Sheriff Elder told reporters last week that he wanted to reassure gun owners in El Paso County that he wasn’t going to actively pursue the ERPOs.

“We’re not going to pursue these on our own, meaning the Sheriff’s Office isn’t going to run over and try to get a court order,” he said.

However, he added that he cannot refuse to enforce an ERPO if one is granted. Sheriff Byerly in Custer County didn’t draw the same distinction.

“I want to be as clear as possible, I think it depends,” he said when asked if he would enforce the law.

Byerly explained that he believed HB 1177 could be effective in circumstances where a person is a threat to themselves or others.

“But I think it has to be measured, it has to be evaluated, you have to be very critical of how you’re going to proceed before you do it.”

Garnett believes law enforcement agencies are most likely party to apply for the protection orders.

“So, if law enforcement doesn’t believe that somebody is a significant risk to themselves and others, then, for the most part, I highly doubt that these orders are going to come forward.”

Colorado Attorney General Phil Weiser wrote a legal opinion to the House Judiciary Committee last month in which he stated his belief that the bill is constitutional. Mr. Weiser referenced the 2008 Supreme Court case District of Columbia v. Heller in which Justice Scalia wrote in the majority opinion that reasonable restrictions on categories of persons, including those struggling with mental illness, are permissible under the Second Amendment.

The advocacy group Mental Health Colorado, which supports the bill, issued a news release Wednesday stating they were disheartened by the various resolutions passed by local counties in which commissioners said they would not require their sheriff to uphold the proposed new law.

Interim CEO Nancy VanDeMark said she believes the protection orders can reduce suicides in our state.

“Having access to a gun, it really capitalizes on the impulsive nature for many people of suicide,” she said.

VanDeMark pointed out 2018 study by researchers from the University of Indiana who found that similar red flag laws implemented in Indiana and Connecticut resulted in measurable decreases in the rate of suicide.

“I would hope that we would be giving our community members the message that every life counts, and that preventing suicide in your family, my family, or anyone else’s family in our communities is an important first step,” she said.

Bill 1177 passed the House on Monday by a vote of 38-25 with only Democrats supporting. Representatives Bri Buentello and Don Valdez joined House Republicans in voting against the measure.

It will have its first hearing in the Senate State, Veterans, and Military Affairs Committee on Friday. El Paso County Commissioners are expected to pass a resolution Tuesday declaring themselves to be a Second Amendment Preservation County.