Colorado moves to expand ‘red flag’ law, with some lawmakers pointing to Club Q shooting as the cause

Hart Van Denburg/CPR News
After a mass shooting at Club Q in Colorado Springs, a makeshift memorial grows outside the LGBTQ club on Monday, Nov. 28, 2022.. Daniel Aston, Kelly Loving, Ashley Paugh, Derrick Rump and Raymond Green Vance were killed in the shooting.

Colorado lawmakers on Tuesday debated whether to expand the state’s Extreme Risk Protection Order law, along with two other proposed gun laws.

The existing ERPO law is meant to disarm people who might be a risk to themselves or others, before anything happens. But it has seen relatively little use in Colorado since it was instituted in 2020, leading Democrats to propose changes this year.

“The changes we have made … are a result of the actions taken or not taken prior to the Club Q shooting last November,” said state Sen. Tom Sullivan, a Democrat, at the beginning of a day-long committee hearing.

Sullivan is a sponsor of a bill, SB23-170, which would expand the state’s Extreme Risk Protection Order law. It was the focus of the hearing’s first hours.

What the bill would do

The biggest proposed changes are:

  • Expanding the list of people who can initiate the "red flag" process.
  • Requiring the state to spend money on a public education campaign about the law.

A red flag case begins when someone files a petition in court. Currently, those petitions can be filed by law enforcement officers, and also by individuals close to the person in question. That includes current and former romantic relations, roommates and family members. If a petition is filed by anyone else, it is automatically dismissed.

The new bill broadens that, allowing a range of new professionals to file the petitions, including psychologists, social workers, family therapists, counselors, doctors, physician assistants, teachers, school counselors, administrators, school nurses and college faculty, and district attorneys, among others.

Backers say these professionals are well-positioned to spot warning signs, and that giving them the power to seek a red flag order can serve as a backstop in areas where law enforcement isn’t using the law.

“We have some communities around our state that either can’t, or won’t, file or enforce extreme risk protection orders,” said Senate President Steve Fenberg, referring to the fact that many law agencies have never filed an ERPO petition.

Adding new petitioners “provides different options,” he said.

The proposal drew objections from sheriffs in conservative areas, among others

Sheriff Darren Weekly of Douglas County said that people might avoid seeing a counselor if they’re worried it could result in a red flag petition.

“The very people who will need help will be reluctant to seek it,” he said. 

Weekly’s predecessor, Sheriff Tony Spurlock, was a key supporter of the original ERPO law.

Weekly also argued that the existing law violates due process protections. A judge can order someone’s guns be taken for up to two weeks without giving them an immediate chance to respond. 

The red flag law says that a judge must find a “preponderance” of evidence of a “significant” risk before issuing a two-week ban. A one-year ban requires “clear and convincing” evidence, and can’t be issued until the judge holds a court hearing and gives the person an opportunity to respond.

Sheriff Joseph Roybal of El Paso County disputed the idea that an expanded red flag law could have stopped the Club Q shooting. 

“This proposed bill is here to try to predict the future or rewrite the past, both of which are flawed,” he said.

Authorities in El Paso County have come under heavy criticism because they did not file a red flag petition against the suspect. The suspect had allegedly threatened a mass shooting and engaged in an armed standoff with police a year earlier, and authorities confiscated the suspect’s weapons at the time. But the court case was dismissed and the suspect faced no known restrictions on acquiring new weapons at the time of the shooting.

However, in his testimony, Roybal indicated the suspect could have acquired the guns illegally — which a red flag order would not have stopped.

“I will tell you, the weapons that were used in that incident would not have applied to ERPO,” Roybal said. He added later: “People are making the assumption the weapons that (the suspect used were) obtained legally.”

9News and other outlets have reported that so-called "ghost guns" were used in the attack.

Social worker, teacher and medical groups support the proposal, while a gun rights group threatens to sue

The gun rights group Rocky Mountain Gun Owners has threatened to sue the state, should lawmakers pass the new legislation.

Erik Stone, a commissioner in conservative Teller County, said that teachers aren’t ready to take on the burden of considering red flag petitions. 

“It extends responsibilities to people who already have enough on their plate,” he said.

The American Federation of Teachers’ Colorado branch is supporting the bill. The state’s largest teacher’s union, the Colorado Education Association, has not filed to lobby on the bill.

Leanne Rupp, executive director of the Colorado chapter of the National Association of Social Workers, acknowledged concerns about protecting client confidentiality, but said her organization supports the proposal, arguing it could save the lives of clients and others.

“There are times when we as providers may be able to prevent a catastrophic event from occurring,” she said. 

The bill requires that judges must place health records under seal, and it includes legal protections for professionals who make ERPO decisions in good faith, including if they don’t file a petition and their client goes on to commit an act of violence.

Dr. George Hertner, president of Emergency Medical Specialists in Colorado Springs, said that emergency room doctors are well-positioned to identify dangerous cases.

“We are able to identify and treat these individuals. We treat the victims of these violent crimes,” he said. “What we are lacking is the ability to raise our hands and cry out, ‘Help, this person is at risk.'”

The Colorado Medical Society and the Colorado Psychiatric Society have both requested amendments to the bill, according to lobbying records.

"CMS understands the issues in this bill and wants to ensure that in situations where physicians are trying to help that they do not either unintentionally get exposed to other risks per other laws and regulations," wrote a spokesperson for CMS in an email.

Other witnesses said that expanding the red flag law could save lives.

“You think about all the ‘what ifs,’” said Jane Dougherty, whose sister Mary Sherlach was killed while trying to stop the shooter at Sandy Hook Elementary School in 2012. “What if the shooter didn’t have access to those guns?”

The ERPO bill passed the committee on party lines with a 3-2 vote. It heads next to the full Senate. Later in the day, the committee was set to consider bills that would create more legal liability for the firearm industry and raise the firearm purchase age to 21.

Editor's note: This article was updated on March 8, 2023 with comment from the Colorado Medical Society.