2019 Leg Session, Constitutional Law, Criminal Justice, Douglas County, Featured, Governor Polis, Red Flag bill, Right To Arms

How Colorado’s ‘Red Flag’ law prompted a growing Second Amendment sanctuary movement

DELTA COUNTY–The Delta County Board of County Commissioners’ work session on March 12, 2019, was standing room only.

Nearly 250 residents had packed into the county building in Western Colorado. Every available chair was filled, and attendees lined the wall elbow-to-elbow. To accommodate the unusually large crowd, county staff opened up a second meeting room and dialed up the internal conference line to broadcast what was being said in the main meeting room. Even with that additional space, attendees spilled out into the adjacent hallways—all attempting to jockey for a better position to listen in on deliberations.

The discussion that generated so much attention in this rural community of 30,568 started 275 miles away, in Denver: House Bill 1177 (H.B.1177), passed by the Colorado House of Representatives just 10 days prior. Officially titled “Extreme Risk Protection Orders” (ERPO), the bill would codify the seizure of firearms from citizens who are a perceived threat to themselves or others with an ex parte civil order.

Commonly referred to as a “red flag law,” this type of legislation is part of a state-by-state strategy pushed by gun control activists who were galvanized by the 2018 shooting at Stoneman Douglas High School in Parkland, Florida. Prior to the Parkland shooting, five states had some sort of red flag law on the books; not including H.B. 1177, there are now 14.

Delta County residents showed up to the hearing because they were deeply concerned about the bill’s constitutionality. When the Delta County forum opened to public comment, resident after resident beseeched the commissioners to stand up in support of their individual rights to bear arms, private property, and due process. Sporting a shirt with the words “I plead the Second” in military stencil accompanied by the profile of an AR-15, one man standing in the hallway shouted “amen” and “yes, sir,” boisterously affirming each petitioner who referenced gun rights. Not one person spoke in support of the bill.

Sheriff Mark Taylor

County leadership shared their antipathy toward the legislation. Delta County Sheriff Mark Taylor, who was elected sheriff in 2018 and also served as undersheriff for the previous 16 years, was the first to speak. Visibly and audibly nervous, Taylor read a prepared statement that expressed his own opposition to H.B. 1177.

“I feel that that bill goes beyond, there’s no due process as far as enforcing that bill,” said Taylor.

After summarizing his main objections—specifically, that the legislation violates the Second, Fourth, Fifth, and Fourteenth Amendments—Taylor requested that the board of commissioners adopt a resolution that designated Delta County as a “Second Amendment Sanctuary County.” Taylor received a standing ovation from the audience.

What exactly constitutes “sanctuary” status for law enforcement is a point of contention throughout Colorado. Like Delta County, more than half of Colorado counties have adopted resolutions—some more strident, some more symbolic—explicitly challenging H.B.1177 and implicitly suggesting local law enforcement will not comply with the new law. Several sheriffs—predominately from rural Colorado—have publicly expressed their willingness to go to jail if court-ordered to enforce an ERPO. Other sheriffs have said it is not their job to pick and choose the laws that they want to enforce.

The Red Flag Sheriff: Tony Spurlock

On the exact same day as the Delta work session, an entirely different scene was unfolding over 300 miles away in Douglas County, just south of Denver. Like in Delta, a sheriff stood in front of a large crowd, asking elected county leaders take action in response to the red flag bill. This time, however, Sheriff Tony Spurlock was encouraging Douglas County commissioners to vote against a resolution that officially rebukes H.B.1177.

“I told them ‘that’s kind of silly, guys, don’t do that,” Spurlock says in an interview after the meeting. “You’re going to embarrass yourselves.”

Despite Spurlock’s protests, Douglas County commissioners voted unanimously in favor of the resolution, making Spurlock the only Colorado sheriff to openly support the red flag law without the backing of his county commissioners.

“I don’t have to listen to them,” Spurlock says, referencing his county commissioners. “I am an independently elected official, and they are essentially telling me not to enforce the law.”

Spurlock doesn’t buy the rhetoric of red flag opponents. A self-proclaimed “Second Amendment guy” and “a strong Republican,” Spurlock believes that the law is perfectly constitutional, and says he would “put money on it” being upheld by the U.S. Supreme Court.

“The argument that there isn’t due process is really a joke,” Spurlock says. He thinks there is more due process enumerated in this bill than in other ex parte court orders, such as restraining orders or search warrants.

Spurlock also cites the “high bar” of establishing a “clear and convincing” preponderance of the evidence that ERPO petitioners must submit before a judge can an issue an ERPO. (From a legal perspective, a preponderance of evidence, which is the evidentiary standard used in civil court, carries less weight as a legal threshold in comparison to that of reasonable doubt and the burden of proof necessary to for conviction in criminal court.)

Spurlock’s vocal support of ERPOs dates back to the tragic events that unfolded during New Year’s Eve in 2017. In response to a nuisance complaint, Douglas County Undersheriff Zackari Parrish III was dispatched to the apartment of Matthew Riehl.

Riehl, a veteran with a long history of documented mental health issues, was behaving erratically according to the officers who showed up at the scene. When police attempted to place him under 72-hour psychiatric monitoring, Riehl began firing a gun at the responding officers from inside his apartment. The 29-year-old Parrish was fatally wounded in the exchange. Riehl wounded three additional officers before police shot and killed him. A judge would later deem Riehl’s death to be justified.

Spurlock argues that if police had the ability to seize Riehl’s weapons, Parrish would still be alive today.

“We had dealt with [Riehl] for over three months [before Parrish’s death],” Spurlock says. “We knew that he had been hospitalized for extreme mental health disorders—bipolar, schizophrenia—he had all kinds of unfortunate mental health disorders. There was no law to restrict him from having access to weapons but also protect his family, the community, and himself.”

Since that fateful New Year’s Eve, Spurlock has been on the forefront of red flag legislation, openly lobbying in favor of the law. Colorado Democrats welcome the help. After a version of the bill died in committee during the last legislative session, Spurlock was approached by Colorado House Democratic Majority Leader, Rep. Alec Garnett. His party knew they needed law enforcement support, so the new ERPO bill was named the “Deputy Zackari Parrish III Violence Protection Act.” Spurlock backed the law without hesitating.

Sheriff Tony Spurlock

On February 14, 2019—the one-year anniversary of the Parkland shooting—Spurlock joined legislators and gun control activists in a press conference announcing the introduction of H.B.1177. Since then, Spurlock has been a consistent figure in the background for every subsequent press event.

“I knew I was doing the right thing to stand for this,” Spurlock says. But not all of Spurlock’s constituents agreed. Shortly after the initial press conference , a committee to recall the sheriff formed. The Committee to Recall Tony Spurlock filed paperwork with the Colorado Secretary of State’s office on February 22. The paperwork to recall Spurlock cannot be legally filed until six months after he officially took office. Spurlock was sworn into his most recent term on January 8, 2019, which means activists won’t be able to start gathering signatures for their recall petitions until July. In the interim, the recall committee has already started gathering financial donations in an effort to build up a war chest come petition time.

In addition to the recall effort, Spurlock’s own party abandoned him. As one of the few elected Republicans openly supporting the ERPO law, Spurlock was publicly rebuked by the Douglas County GOP. The county affiliate passed a resolution that not only condemned the red flag legislation—calling it “an excuse to pass gun confiscation legislation”—but also expressed “profound disappointment and disgust with Sheriff Tony Spurlock.”

This very same political wave is also inspiring Colorado sheriffs to become more stridently defiant of legislation they deem to be unconstitutional.

The Sanctuary Sheriffs

“If you haven’t read the bill, the bill is a train wreck of how the mechanics of it work,” says Weld County Sheriff Steve Reams.

Reams isn’t a firebrand or a lofty polemicist, but he has nevertheless emerged as a key figure in the growing opposition to Colorado’s red flag law. He made national headlines in March when he declared he would go to jail for contempt of court before he served an ERPO.

“That’s a sacrifice that I’ll be forced to make,” Reams told CNN on March 31. When pushed further, he replied simply, “I’m not bluffing.”

Like all red flag opponents, Reams believes the law undermines rights protected by the Constitution, which puts him in direct conflict with his sworn oath to defend it.  “I would much rather not be in this situation where I am looking at a law that violates the Constitution,” Reams says. “That puts me in a tough predicament.”

Reams is also concerned with avoiding legal exposure. The liability of a potential legal challenge will place his office in the crosshairs. A lawsuit would likely target his office, not the court that issued the ERPO or the legislators who passed the bill.

“They would be suing the law enforcement agency that violated their constitutional rights,” says Reams. “I’m the one who owns the liability.”

Ten other Colorado sheriffs have publicly communicated their refusal to issue an ERPO. As of this writing, over 50 Colorado sheriffs have expressed varying shades of opposition to H.B.1177.

“How many judges are going to send all the sheriffs in Colorado who are standing up to this to jail?” said Teller County Sheriff Jason Mikesell, who, during an interview with CNN, also stated his intentions to not execute an ERPO within his district.

Sheriff Steve Reams

Most of the enthusiasm for opposing the red flag bill is emanating from Colorado’s rural corners. The vast majority of Second Amendment sanctuary counties are located on the western slope of Continental Divide and the eastern plains that border with Kansas.

“Folks out here take their gun rights seriously,” Reams says.

From a practical standpoint, many of these counties simply don’t have the infrastructure to comply with the red flag law. “If we were to confiscate and hold 20 guns and rifles, that would max out our space,” says Delta County Sheriff Mark Taylor.

“Even if the county owned a 10-by-20-foot storage shed, we still wouldn’t have enough room to store these folks’ guns,” says Delta County Commissioner Don Suppes. Like many other Second Amendment sanctuary counties, Delta included language in its resolution denying the allocation of funding for increased capacity related to ERPOs.

The new legislation also presents challenges to the judicial infrastructure of smaller rural counties. Once an ERPO affidavit has been filed, a court hearing must take place within 14 days. Based on its current caseload, the Delta County Combined Court is currently scheduling jury trials at least one year out, according to county officials. To stay in compliance with the new law, ERPO hearings will likely need to “butt in line,” placing a greater burden on an already overburdened court system.

As of this publication, 35 of Colorado’s 64 counties have officially passed some form of resolution that publicly rebukes the new law. Each resolution is unique in its language. Some resolutions are more strident in their opposition, while others hedge their bets by adopting more moderate stances.

The hesitancy to pass more strongly worded resolutions has everything to do with the loaded meaning of one word: sanctuary.

Sanctuary for Whom?

The Second Amendment sanctuary movement isn’t unique to Colorado. County and municipal governments have passed similarly symbolic resolutions in defiance of similarly restrictive gun control laws in Illinois, New Mexico, Nevada, Maryland, and Washington. But the term “sanctuary” is problematic from a legal standpoint because it is a loaded term that lacks universal meaning.

“I don’t know what that means,” Spurlock says when asked to define the concept. “So everybody gets to have a gun? Felons? The 6-year-old kid? Nobody really can answer what being a Second Amendment sanctuary means.”

Some counties outright omitted the word from their resolutions. For example, Delta County adopted the symbolic status of “Second Amendment Preservation County.” The omission of “sanctuary” was by design, according to Delta County officials.

“The last thing we wanted to do is to insinuate that a criminal who has committed a crime involving a gun could gain safe haven in Delta,” Suppes says. “It’s the wrong message.”

Appropriating “sanctuary” for the gun rights movement also carries an ironic twist. In modern political parlance, the term is most closely associated with cities and counties that have established themselves as safe havens for undocumented immigrants.

This is problematic for rural communities that are, broadly speaking, aligned with President Donald Trump. The vast majority these Colorado counties voted overwhelmingly for Trump, who opposes both legal and illegal immigration. If county officials in these Colorado hinterlands attempted to adopt resolutions providing sanctuary to immigrants, the reaction would be drastically different.

“It would be very negative,” Reams says when asked what the community response would be if he approached his county leadership about becoming an immigration sanctuary. But Reams doesn’t see a contradiction.

“My stance on illegal immigration is that it is a federal issue,” Reams says. Trump’s immigration policies have not “been proven to be unconstitutional by the Supreme Court yet so we should be enforcing it,” he adds.

When asked about a hypothetical situation in which his constituents wanted to make his county an immigration sanctuary—perhaps in response to the U.S. Immigration and Customs Enforcement (ICE) overloading Weld County courts and jails without additional federal support—Reams didn’t hesitate to support the feds.

“I don’t see a time where I would try to push back to say what the federal government is doing is wrong,” Reams says. “I support ICE in any and every way that I can now.”

Is Sanctuary Another Word for Immunity?

Should law enforcement be granted the professional discretion to pick and choose what laws they want to enforce? Case law brings us back to the county seat of Spurlock’s district and Castle Rock v. Gonzales.

In 1999, Jessica Lenahan-Gonzales obtained a restraining order against her ex-husband, Simon Gonzales, restricting him from coming within 100 yards of her and her four children. Simon was the biological father of three of the children—all of whom were girls—and stepfather to the fourth, Jessica’s son from a previous relationship.

Ignoring the restraining order, Simon Gonzales kidnapped the girls. Lenahan-Gonzales pleaded with the Castle Rock Police Department to search Simon’s property. Claiming to not have enough evidence to establish probable cause for a search warrant, the police department refused. Several days after the kidnapping, Simon Gonzales showed up at the police station, where a confrontation with officers escalated into a shootout. Simon Gonzales was killed and police discovered the bodies of the three daughters in his truck.

Jessica Lenahan-Gonzales sued the city of Castle Rock, claiming that the police violated “a federally protected property interest in the enforcement of the restraining order” under the due process clause of the 14th Amendment.

After six years of appeals, the case eventually made it to the Supreme Court. The highest court ruled 7–2 against Lenahan-Gonzales.

“A benefit is not a protected entitlement if officials have discretion to grant or deny it,” Justice Antonin Scalia wrote for the majority. “Even if the statute could be said to make enforcement ‘mandatory,’ that would not necessarily mean that respondent has an entitlement to enforcement.”

Governor Jared Polis

This decision supports the underlying argument that Colorado sheriffs are making against the red flag law: They have professional discretion when it comes to the enforcement of their state’s laws. Furthermore, if this precedent was applied to a future legal challenge, noncompliant law enforcement would not be held legally liable if they refused to serve a court order even if the targeted person subsequently committed a heinous crime. If death and taxes are two guarantees in life, police immunity is a safe bet for the bronze medal.

Colorado Gov. Jared Polis reaffirmed this discretion during a press event on March 26.

“Have you jaywalked in the past year?” Polis sarcastically asked a reporter, who asked about the growing opposition to the red flag law at the county level.

The flippant comparison, which earned Polis significant criticism, was the governor’s awkward way of implying that law enforcement has the authority to exercise personal judgment when enforcing all laws.

After successfully passing both Colorado legislative chambers, H.B.1177 was signed into law by Polis on April 12, 2019, making Colorado the 15th state to adopt a red flag law. Sheriff Spurlock participated in the signing ceremony, where he could be seen smiling and applauding the new law alongside legislators and activists.

As Spurlock and supporters celebrate the new law, opponents—primarily, gun rights organizations—are gearing up for a battle in court. On May 2, 2019, the Rocky Mountain Gun Owners filed suit against the state of Colorado, alleging that the Colorado General Assembly failed to abide by procedural requirements outlined in the Colorado Constitution. Based on this technical error by the state legislature, the suit argues that the H.B. 1177 should be declared “null, void and of no effect.”

A version of this article originally appeared in Reason.

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