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The problem is that any celebration would be, well, premature. Because if the bill — officially the Extreme Risk Protection Order — becomes law, only then would the real fight begin.
You’ve already seen the battle lines being drawn. A dozen or so counties — including El Paso County — have declared themselves Second Amendment sanctuaries, whose commissioners have said they would support their sheriffs if they refuse to enforce the law. They’ve taken this step, you might notice, even before there is such a law. More will certainly follow. This is how wide the divide already is: In Douglas County, where the sheriff, Tony Spurlock, is among the bill’s strongest supporters, the commissioners have voted to join the sanctuary counties.
It’s funny that these counties have tried to co-opt the sanctuary city/immigration model, which most people on the gun rights side oppose. There’s at least one major difference, though, in the sanctuary branding. ICE makes detainer requests for cities to hold someone in jail after his or her release date until ICE can pick them up — so a so-called sanctuary city simply isn’t honoring a request.
The proposed red-flag law, on the other hand, would have the force of law.
What we’re seeing here is something like the recent secession movement, except that this is far more serious. If a judge rules that it is dangerous for a person to have guns and the sheriff refuses to follow the court’s order to remove them, the sheriff could be held in contempt of court. I have no idea how that would play out. I have no idea how many sheriffs would actually go through with it and risk extended jail time. But I can predict the level of anger — which has already moved past simmer in some parts of the state — could reach dangerous levels.
Presumably, “sanctuary” would mean that if a judge in, say, Fort Collins ruled, after hearing sworn testimony, that guns needed to be removed from an individual, that person — who wouldn’t be at the original hearing, by the way — could race to Weld County to avoid the cops. And Weld County would be welcoming a conceivably well-armed mentally disturbed person to offer him or her protection from state law.
Does this seem likely? Possible? (Sadly, I’m going with a qualified yes.)
Meanwhile, Dudley Brown and others in the so-called “gun rights” world are already threatening to recall any vulnerable Democrats who vote for the bill. One such Democrat, Senate President Leroy Garcia of Pueblo, hasn’t said how he will vote. You may remember 2013 when two senators were recalled for their gun safety votes, while one resigned with the posse in pursuit. You may notice, too, that the laws are still in effect, and despite the recalls, Democrats now have a majority in both houses of the Legislature.
The one certainty here is that the law would be challenged in court. Opponents are citing various problems with the law, citing violations of what, in their view, is about half the Bill of Rights.
But for a significant percentage of Colorado residents, the law would represent real, if small, progress in keeping guns out of the hands of the mentally disturbed. You’d think that is something we could all agree on. After all, the gun-rights people are always saying it’s not the guns, but mental health, that is the real issue. And yet I’m still waiting to see legislation from anyone that would truly address that problem.
So, we don’t agree. And because the issue is guns, the lack of future agreement is guaranteed.
Here’s how the law would work. A member of law enforcement, a family member or a household member could petition to make the case that an individual is dangerously disturbed and a danger to him/herself or others. If a judge hears the testimony and agrees, police would go to the home and remove the guns.
After 14 days, the person who has had his guns removed could appear in court, with guaranteed legal counsel, and make the case why he/she has been misrepresented and should, in fact, have the guns returned. The state would have to make a clear and convincing argument to remove the guns. If that case is made, the guns would be removed for up to 364 days, although the gun owner would have the right to appeal for an earlier date.
The bill, depending on your point of view, is either a wise precaution or a step toward gun grabbing. There is a question about due process, which the courts would someday have to answer. What we do know is that most people killed by guns die from suicide. And that mass murderers are often disturbed young men with access to guns.
And we also know, especially here in Colorado, the cost of gun violence, and we know all about the missed signs of the violence to come. What amounts to a 14-day timeout, granted by a judge after hearing sworn testimony of the potential danger involved, would seem like a reasonable response. But how many times has reason won out in the never-ending gun-violence debate?
This article originally appeared in The Colorado Independent.