ARAPAHOE COUNTY–Complete Colorado interviewed District Attorney of the 18th Judicial District George Brauchler Tuesday about HB19-1177, the “Red Flag” bill working its way through the statehouse that would allow police to seize firearms from people thought to be dangerous.
Brauchler ran for state Attorney General on the Republican ticket in the last election, losing to Boulder Democrat Phil Weiser. He was elected as DA first in 2013 and is in his second 4-year term.
Brauchler took considerable heat from his fellow Republicans last year for supporting a similar bill that was introduced in the final days of the legislative session. That effort died in the Senate.
This year Brauchler still supports the need for a way to deal with people who may pose an extreme risk to the public, but disagrees with the focus on taking away guns rather than getting them into mental health treatment.
“This is a bill that is about guns, and not about mental health,” said Brauchler. “They could have attacked the mental health side and the problems with it. And they didn’t.”
Interviewed last year by Complete Colorado, Brauchler said that he experienced a person brought into an emergency room on a 72-hour mental health hold walking back out the door before Brauchler had even completed his own report.
“I still think the 72-hour mental health hold is broken. It doesn’t work,” said Brauchler. “If it we were able to fix that piece, it seems to me that would take care of almost every situation where something like this red flag bill might come up.”
Referring to one improvement over last year’s proposal, Brauchler said, “The appointment of private counsel at state expense for a person who becomes subject to one of these orders, that makes sense.”
Under the bill, if the subject of an order wants her rights restored after the order has been lifted, it’s on them to prove that they should have them restored rather than the burden being on the state to prove they should not. Brauchler says this is simply unacceptable.
“They have to prove it at the highest level of standard of proof in all of civil law: clear and convincing evidence,” said Brauchler.
That is the civil equivalent of the standard to convict in criminal law: beyond all reasonable doubt. Guns can be initially seized based only on a preponderance of the evidence, which is the lowest standard in civil law, generally referred to as the 51 percent rule. But, Brauchler says, to have gun rights restored the highest level of civil proof is required.
“That is not how we treat people who want to get their rights restored. We just don’t do that. And that’s what this bill does,” said Brauchler.
Brauchler also objects to the preponderance of the evidence standard for a petition to be filed and a warrant to search and seize guns to be issued. “I think that the due process protections that were there last year had been significantly watered down, to the point where I just can’t support it,” he said.
Another area of concern is the bill’s requirement that if the person petitioning for an order is a police officer, that officer has to make a “good faith effort” to notify “any known third party who may be at risk of violence” of the impending petition. What concerns Brauchler is the ambiguity of who a “third party” might be.
“If I thought their goal or the outcome was to start notifying employers, and schools, and stuff. That would make me really, really skeptical about that language because that should not be the way this goes,” said Brauchler. “Even with our domestic violence restraining order we don’t have law enforcement start advertising to everyone in someone’s life that they’re the subject of this thing.”
Brauchler expressed significant concerns about the lack of a clear definition of the standard a judge is to use in deciding whether to issue an order. “Nowhere in these 30 pages do they even try to define extreme risk, or even require that a court find the extreme risk. In fact, it’s only a significant risk,” said Brauchler. “There is a qualitative difference between significant and extreme, so I think it’s misleading.”
“Once the court determines someone’s a significant risk, they label them through the protection order as an extreme risk. This is geared towards firearms,” Brauchler continued.
Brauchler is skeptical of the bill’s motives because nothing in it mandates treatment.
“There’s no requirement that the person get any sort of court ordered treatment,” said Brauchler. “And that’s what makes the bill feel more and more like it’s about firearms, and not about mental illness.”
“If the approach taken was to fix the 72-hour mental health hold rule then you could say this is 100 percent about mental health. All it does is put this guy in a position to get mental health treatment,” said Brauchler. “It doesn’t try to touch his property. It doesn’t try to do anything with his rights, it just puts him in a position, even on a temporary basis, to get some sort of mental health treatment.”
“This particular version of the red flag bill is something that I am going to oppose this Thursday,” Brauchler said.
The bill is scheduled to be heard for the first time on Feb. 21 in the House Judiciary Committee at 1:30 p.m. in the Old State Library. Those who cannot attend interested in listening to the hearing can do so by going online to www.leg.colorado.gov/ clicking on Watch & Listen, scrolling to House Committees of Reference and selecting Judiciary. Follow the instructions to log on to the audio-only webcast.