Kathryn Scott, Special to The Denver Post
Despite the threat of legal challenges and recall elections, Colorado Senate Democrats passed a gun control bill Thursday afternoon — the first such new legislation in six years.
The Senate voted 18-17 to pass a bill that would create the legal framework for judges to order the removal of firearms from people they determine to be at risk of harming themselves or others. Senate President Leroy Garcia, D-Pueblo, was the only Democrat to vote against it.
The bill heads back to the Colorado House to see whether representatives approve of a few changes made by the Senate. If the House approves those changes, the bill will head to Gov. Jared Polis’ desk.
Senate Majority Leader Steve Fenberg, D-Boulder, left, talks with Senate President Leroy Garcia, D-Pueblo, during testimony on HB1177 at the Capitol on March 28, 2019 in Denver. Garcia, a Democrat, voted no on the bill.
Here is where it stands now.
How does an extreme risk protection order work?
Under this bill, law enforcement, a family member or a household member could petition a judge for the removal of a person’s firearms. The judge would hold a hearing — without the gun owner being present — to decide whether to grant a temporary order for up to 14 days.
During those two weeks, the gun owner and the petitioner would try to convince the judge why those weapons should or shouldn’t be returned. The judge would then decide to end the order and return the weapons or extend it for up to 364 days.
The bill also allows the gun owner to request a court-appointed attorney.
What is the burden of proof to issue one of these orders?
The bill says a petitioner must prove by “a preponderance of the evidence” that someone is a risk to themselves or others before a judge can issue a temporary, 14-day order. The burden of proof rises to “clear and convincing” evidence at the second hearing.
The burden of proof to have firearms returned is on the gun owners, which is a change from a bill that failed to pass in 2018.
That change is part of the reason some Republicans who supported the 2018 bill decided to oppose the 2019 version.
“When it comes to depriving someone of their rights, I think the burden ought to always be on the petitioner,” 18th District Attorney George Brauchler said during a House hearing on the bill in February.
Are there any other differences from the 2018 bill?
Yes. The 2018 version of the bill would have let a judge remove a person’s firearms for up to six months instead of almost one year in this year’s version. The previous bill also didn’t guarantee an attorney for the gun owner.
Senator Ray Scott, R- Grand Junction, left foreground, joins other Senate colleagues in raising their hands in a “no” vote on HB1177, the so-called Red Flag bill, at the state Capitol on March 28, 2019 in Denver.
What do police chiefs and other members of law enforcement think about the bill?
Dozens of sheriffs, county commissioners and even the police unions of Aurora and Denver have come out in opposition to House Bill 1177. About half of Colorado’s 64 counties have voted on resolutions declaring themselves to be “Second Amendment sanctuary counties.” The resolutions vary slightly, but they all essentially say the county opposes the extreme risk protection order bill and would discourage their sheriffs and judges from carrying them out.
But the opposition isn’t unanimous.
Douglas County Sheriff Tony Spurlock and Boulder County Sheriff Joe Pelle support the bill, which is named after one of Spurlock’s deputies who died in 2017 when he tried to negotiate with a man in the midst of a mental health crisis.
Former U.S. Attorney for Colorado John Walsh also supports the extreme risk protection order bill. He called the bill “carefully written,” constitutional and written in a way that he believes protects people’s right to due process.
What happens if a law enforcement officer refuses to enforce one of these orders?
Spurlock told reporters at a news conference in March that he wouldn’t accept “no” as an answer from his deputies.
“They are there to enforce the law whether they like it or not. That’s what our country is about,” Spurlock said. “Just like a military man going to war. He may not want to go kill somebody in a foreign country, but his duty to his country is to do that if you join the military. My men and women of the Douglas County Sheriff’s Office feel exactly the same way.”
When it comes to publicly elected sheriffs, however, the outcome isn’t straightforward. The judge could hold the sheriff in contempt, and then the sheriff could sue the judge. That is when Colorado’s Democratic Attorney General Phil Weiser would likely get involved.
“If a sheriff cannot follow the law, the sheriff cannot do his or her job,” Weiser told a Senate committee this month. “The right thing to do for a sheriff who says ‘I can’t follow the law’ is to resign.”
Democratic Gov. Jared Polis, however, wouldn’t say whether he agrees with that position.
“Every law enforcement agency has limited resources, and they do have to prioritize what they choose to enforce or not enforce,” Polis said at a recent news conference with reporters.
The governor did say he thinks local sheriffs should enforce the law if it passes.
Updated March 29, 2019, at 10:15 a.m. Because of an error by a reporter, the burden of proof in a 2018 bill was incorrect. The initial hearing for a temporary, 14-day extreme risk protection required proof by a preponderance of the evidence.