Gun violence expert says ‘red flag’ law met with unusual resistance from some Colorado law-enforcement

· Nov. 22, 2022, 1:34 pm
Club Q Shooting Colorado SpringsClub Q Shooting Colorado SpringsKevin J. Beaty/Denverite
Police presence seen early Sunday outside Club Q after a mass shooting there late Saturday night. Sunday, Nov. 29, 2022.

The state on Sunday was rocked by news that a gunman had killed five people in an attack on Club Q, an LGBTQ nightclub in Colorado Springs. For some Democratic lawmakers, the early facts raised questions about whether local police and sheriff’s deputies could have used the state’s “red flag” law to prevent the attack.

Last year, the suspect in the Club Q shooting was involved in an earlier incident in which he allegedly made bomb threats and confronted law-enforcement officers. It appears that authorities did not attempt to file a “red flag” petition after the incident, which could have barred him from possessing or buying guns.

Now, that decision is coming under scrutiny.

“I’m hearing reports that perhaps the red flag law wasn’t enforced on this young man,” said state Sen. Rhonda Fields, a Democrat. 

The state’s red flag law, passed in 2019, allows local authorities to request permission to temporarily confiscate firearms from people they believe may be a danger to themselves or others. 

A “red flag” order, also known as an Extreme Risk Protection Order (ERPO), could have allowed authorities to seize any guns the Club Q suspect had, and it would have barred him from purchasing other weapons. A search of public records found no indication that the sheriff’s office or other authorities filed such a petition. The charges in the case were dropped and the case was sealed.

But local law enforcement are not required to file red flag petitions. And leaders in conservative areas like El Paso County — where the nightclub shooting and the 2021 incident happened — have criticized the idea that the government should seize weapons from people who haven’t been convicted of a crime.

For example, in 2019, local district attorney Michael Allen derided the red flag law as “unconstitutional,” tweeting that it was “[n]othing more than a way to justify seizing people’s firearms under the color of law.”

After the law was implemented, he tweeted: “This law is a poor excuse to take people’s guns and is not designed in any way to address real concrete mental health concerns.”

In the 2021 incident, the Club Q suspect was arrested after allegedly threatening his mother with a “homemade bomb, multiple weapons and ammunition,” the El Paso County Sheriff’s Office reported at the time

He was also wearing body armor and had live-streamed himself in a standoff with law enforcement. It’s unclear whether he was armed at the time. 

Rep. Meg Froelich, a Democrat, said the legislature should examine how local authorities are using — or failing to use — the red flag law.

“Is it being applied and enforced? That’s something we want to look at,” Froelich said. She added that she wants to know whether a red flag order could have been applied in the case of the gunman who last year killed five people in a rampage that struck several tattoo shops in Denver and Lakewood.

Colorado is one of 19 states, plus Washington, D.C., that have red flag laws. The concept first became law in Connecticut more than 20 years ago, but the laws have become more widespread since the 2018 massacre at Marjory Stoneman Douglas High School in Parkland, Fla.

The red flag orders in Colorado must be initiated by law enforcement or family members of the person in question. Judges review the evidence and decide whether to authorize law enforcement to seize a person’s firearms. A temporary order lasts two weeks and it can be extended into a year-long order, which can then be renewed.

But the use of the law in Colorado has remained relatively low, and authorities in El Paso County have used the orders even less often.

In 2019, county commissioners declared El Paso a “Second Amendment preservation county” and pledged that county leaders would not “appropriate funds, resources, employees or agencies to initiate unconstitutional seizures in unincorporated El Paso County,” as The Gazette reported.

(The 2021 incident took place in unincorporated El Paso County, according to property records.)

Similarly, in a 2020 statement, the El Paso County Sheriff's said that deputies would only request removal orders and search for guns in “exigent circumstances” and when they could find “probable cause” of a crime. That’s a stricter standard than what’s required by the law, which is focused on the possibility of violence — and not whether someone has committed a crime.

The policy was meant to “ensure that the rights of people to be free from unreasonable search and seizures, and to receive due process of law,” according to the sheriff’s office statement.

Sheriff Bill Elder has not commented on whether that policy stopped his deputies from pursuing a removal order after arresting the Club Q suspect in 2021 for making bomb threats. The sheriff’s office declined to comment for this story, saying the state’s law about criminal justice records prevented them from talking about the earlier case.

Colorado Springs Mayor John Suthers said that people shouldn’t assume that the earlier case qualified for a red flag petition.

“I would caution against an assumption that the circumstance of this case would lead to application of the red flag law. We don't know that,” he said at a press conference Monday. “Hopefully there'll be a time when there can be a specific discussion about any prior interaction with law enforcement … But I think it's premature to do so now.”

Colorado Springs Police Chief Adrian Vasquez said he supports use of the red flag law when appropriate. “If law enforcement has credible information that fits within the parameters of the red flag flag law, then we should take action on that,” he said at the press conference.

What could be changed?

Sen. Fields said local law enforcement leaders may be falling short of their duties. “I think if they’re not gonna follow the law, they should not be in law enforcement,” she said. “We follow the rules, and when people don’t follow the rules, we have anarchy.”

Fields has been a key advocate of new gun control laws; her son was murdered in 2005 along with his fiancée before he could testify in a trial.

Rep. Tom Sullivan, a Democrat whose son was killed in the Aurora theater shooting, said the state should consider allowing more people to initiate the ERPO process. Currently, it’s limited to family members and law enforcement.

“Maybe we could look to expand who can file (red flag petitions) — doctors, mental health people, school principals?” Sullivan suggested.

Christian Heyne, vice president of policy at the Brady Campaign, which advocates for gun law reform, said that other states already allow broader groups of people to start the process.

“Certainly there are a number of states that are doing more,” Heyne said. But even in those other jurisdictions, much of the responsibility falls back on police and sheriff’s offices.

Sullivan also said that the state will work to improve public knowledge of the law, ensuring that family members are aware that they can file petitions for protection orders.

Froelich, the state representative, said the legislature should consider closing “loopholes” in the red flag law, especially if local authorities aren’t using the law.

“When there are loopholes in enforcement, whatever they are, is it from a failure to follow the intent of the law, or is it a failure of the legislature to compel that piece of it?” she said.

But it’s not clear whether state lawmakers could effectively force law enforcement to use the law. Shannon Frattaroli, a professor at the Johns Hopkins Center for Gun Violence Solutions, said that red flag laws are designed to leave decision-making with local authorities.

“To my knowledge, there aren’t any of those states that sort of compel or have a mandatory provision for these laws. It's a little bit difficult to imagine how that would work, quite honestly,” she said. 

“There’s an understanding that the people on the front lines of witnessing the dangerous behavior are best positioned to know how to proceed, and that ERPO may or may not be the right tool for the moment,” she added.

Asked about Colorado’s low usage of the law, she pointed to two potential causes. The first is that it can take time for a state to start using a red flag law. The second is that usage of these laws depends on the enthusiasm of local leaders.

“You can usually trace that back to what I’ll call an ERPO implementation champion … somebody who just sees this law as a real opportunity to increase community safety,” she said. 

But in Colorado, she said, the law has instead faced an unusual resistance from some law-enforcement leaders. “We just haven’t seen that kind of pushback in other parts of the country,” she said. 

Heyne similarly said that the effectiveness of red flag laws depends on active participation from law enforcement: “These tools and laws are never self-actualizing. It requires robust and intentional implementation in order to be effective.”

Republican leaders in the statehouse did not immediately respond to interview requests on Monday and Tuesday.

Beyond red flag laws

State Senate President Steve Fenberg, a Democrat, said that lawmakers would examine potential changes to the red flag law and more.

“It’s early to say,” he said. “I don’t think we know all the details yet.”

He said conversations are also focusing on several other ideas, such as raising the age requirement for buying certain guns; requiring minimum waiting periods before gun purchases; and requiring more stringent background checks for purchases.

Sullivan said he specifically wants to see a prohibition on purchases of assault weapons for those under age 21. 

State lawmakers have implemented several changes to gun laws over the last decades. A 2021 law expands the list of criminal offenses for which people can be temporarily banned from buying guns. Laws passed that year also created an Office of Gun Violence Prevention and allowed cities to pass their own gun laws.

Earlier laws banned large-capacity magazines, regulated private sales and barred people from possessing guns if they’ve been convicted of domestic abuse or if they’re subject to a restraining order

But those new laws have met legal challenges. The gun-rights group Rocky Mountain Gun Owners has sued several municipalities over their gun laws, and it also has sued in federal court over the statewide magazine law.

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