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Sheriff Elder: Deputies must follow law even if he disagrees with “Red Flag” bill

Posted at 2:34 PM, Mar 07, 2019
and last updated 2019-03-08 21:52:46-05

EL PASO COUNTY – Sheriff Bill Elder invited the media to join him Thursday afternoon for a conversation about the “Red Flag Bill” currently moving through the Colorado General Assembly.

Elder says, “We support the rule of law,” and as a result his Deputies must carry out court orders even if they disagree, and he disagrees.  At the same time, he is echoing the concern of other law enforcement leaders when it comes to the practicality and measures that may be needed in order to secure weapons in the possession of people deemed to be a risk by court order.

As for his disagreements with how the bill is written, Elder says the county will file a lawsuit to have the courts address the issue of due process.

Opponents have referenced the Fifth Amendment to the U.S. Constitution, which in part provides protections for due process.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

There’s also an argument in opposition which references illegal search and seizure, which we are protected against by the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If HB1177 passes and is signed, as is expected, Elder said the county will sue to try and get due process concerns heard by Colorado Supreme Court.

If passed, the Extreme Risk Protection Orders bill (HB19-1177) would allow law enforcement officers or family members to ask a court to temporarily remove guns from a person if they’re determined to be a danger to themselves or others.

If a court approves an order to seize weapons from someone deemed a risk, they would be allowed a hearing up to 364 days later to determine if their weapons should be returned or where the order should be extended.

As the measure supported by Democrats passed out of a House committee along a party line vote, El Paso County Sheriff Bill Elder released the following statement late last month:

“My concern with the bill as it is currently written is that it doesn’t allow a person proper due process before taking away their right to possess a firearm. The driving force behind this bill should be mental health treatment, not confiscation of firearms.”

So far the following counties have passed measures stating they would not enforce the law, if enacted:

  • Fremont County
  • Teller County
  • Custer County
  • Otero County
  • Weld County
  • Kiowa County
  • Moffat County
  • Rio Blanco County
  • Montezuma County

Teller County Commissioners voted Thursday morning on a resolution supporting the Second Amendment and the right of citizens to bear arms. The word “sanctuary” was not included as commissioners were concerned it carries a negative connotation, along the lines of sanctuary cities. Sheriff Jason Mikesell stated last week, “I do not support this bill as it is currently written.”

RELATED: Sanctuary movement raises question about enforcement of red flag bill

HB19-1177 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 has yet to be assigned to a committee in the State Senate.

Supporters of the bill include Boulder County Sheriff Joe Pelle and Douglas County Sheriff Tony Spurlock. Spurlock’s office lost Deputy Zackari Parrish on New Year’s Eve 2017 when he was shot and killed by a mentally ill veteran named Matthew Riehl. Riehl’s mental health concerns were known to his relatives, doctors, and law enforcement prior to shooting and Sheriff Spurlock has publicly stated his belief that a red flag law, sometimes called a gun restraining order, could have prevented the violence.

The bill’s sponsor is freshman Rep. Tom Sullivan, (D) of Centennial who lost his son Alex in the 2012 Aurora theater shooting. He will be joined by House Majority Leader Rep. Alec Garnett, (D) Denver, Sen. Lois Court, (D) Denver, and Sen. Brittany Pettersen, (D) Lakewood.