The El Paso Board of County Commissioners voted unanimously Monday, approving a resolution to challenge HB19-1177, the “Red Flag” extreme risk protection order bill in court if it becomes law.
The Commissioners stated 19 reasons to challenge the law, including the Second Amendment, United States Supreme Court rulings, Article II Section 13 of the Colorado Constitution that says “the right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question,” and their oaths of office to “question the constitutionality of legislation that infringes upon constitutional rights”
El Paso County Sheriff Bill Elder spoke to the Board, saying, “This bill that is passing through our legislature today woefully misses the point it doesn’t address the mental health crisis, it focuses on a tool. We believe that a constitutional challenge in the courts is the best course of action.”
Elder has departed from the “sanctuary county” movement because he feels that refusing to enforce the law is not the way to deal with bad laws. Laws passed by the General Assembly and signed by the Governor are presumed by the courts to be constitutional until overturned. If challenged, the burden is on the person challenging the law to prove that the law is either unconstitutional on its face or as it is being applied to an individual.
“I believe we can get a judge to issue an injunction that stops the state from enforcing this law until it is heard on constitutional challenges,” said Elder. “I think that there are more arguments than not that we can stop it.”
“Once we have an injunction then we’ve got time to put all of our ducks in a row to challenge this on the Fourth, Fifth and Fourteenth Amendments as well as the Second Amendment. It’s bad law, it doesn’t meet the criteria that we all operate on,” Elder said. “My hope is no one loses a firearm until they have a chance at due process and we hear from legal and mental experts on whether they should or should not have a firearm.”
Elder also says that the search warrant provision of the bill that allows police to enter someone’s home to seize guns is unconstitutional.
“There has to be a criminal nexus to the possession of those firearms, otherwise this is a requirement for a civil search warrant,” Elder told Complete Colorado. “There is no 4th Amendment provision for a civil search warrant. That’s why I said that the Sheriff’s Office will not initiate these petitions.”
Colorado and U.S. Supreme Court rulings make it clear that search warrants cannot be issued except on probable cause that a crime has been or is being committed.
Commissioner Stan VanderWerth said, “It’s my firm belief that this bill as written does not meet the standard of due process. We still have mental health challenges in our state. We are committed to working on mental health issues.”
Commissioner Holly Williams said of the bill’s requirement that a person subject to an ERPO must prove by “clear and convincing evidence” he is not dangerous to regain his rights, “it really does deny due process. This is a country where we are innocent until proven guilty and this bill says you are guilty until proven innocent.”
Commissioner Cami Bremer said, “I’m saddened that as local official we have to have a resolution to protect a right that we already have. When our legislators overstep their authority, the proper course is court action.”
Commissioner Longinos Gonzalez Jr. said, “I have an obligation to protect our citizens against governmental overreach. We are as a board following the law and doing things legally.”
Commissioner Mark Waller said, “What this resolution is about is the rule of law. The rule of law is the cornerstone of civilized nations. It’s up to the courts to decide.”
“Just because a bill is pushed through by rogue legislators does not mean it will stand,” said Elder. “We have until January 1, 2020 to stop this bill through legal means.”