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Bill to repeal ‘Red Flag’ law, address mental health introduced in the House

DENVER — A bill introduced in the Colorado House of Representatives on Monday, would repeal the controversial ‘Red Flag’ law passed in 2019 and, according to its sponsors and supporters, replace it with clearer, more defined language in identifying people considered to be an extreme risk to themselves or others.

“This addresses what we’ve been asking for from the beginning,” said Weld County Sheriff Steve Reams. “That is the mental health aspect. It’s not an overly complicated issue to tackle, just one no one wants to.”

Steve Reams

Reams has been a strong vocal opponent of the law that allows a judge to remove firearms via a temporary order from anyone deemed to be a risk to themselves or others by a judge.

The “Extreme Risk Protection Orders” bill passed last year and was signed into law by Gov. Jared Polis. It took effect Jan. 1. It only took a few days after it became effective before judges began issuing the order that Reams believes to be unconstitutional.

Reams has vowed to sit in his own jail rather than enforce the law.

“The bill is so riddled with constitutional problems that it makes it hard to understand how professional lawmakers could have constructed something so terrible,” Reams said in a previous interview with Complete Colorado, adding the bill, “raises some serious concerns about due process, in that a person can have their guns taken away and their rights violated, all without ever having a chance to appear in an initial court hearing and cross-examine accusers and witnesses in person. In legal terms, this is an ex parte hearing.”

In addition to repealing language from the law that allows the firearms confiscation, House Bill 20-1271 (HB 1271) changes the standards by which a law enforcement officer can place someone on an involuntary 72-hour mental health hold.

The law currently says the person must be an “imminent danger.” The bill’s prime sponsor Rep. Lori Saine, R-Dacono, said that level of burden ties officers’ hands.

HB 1271 replaces the word “imminent” with “extreme risk,” and defines extreme risk as “a credible and exigent threat of danger to themselves or others through actionable threats of violence or death as a result of a current mental health state.”

“Someone would have to say, I’m going to jump off this roof right this minute,” Saine said. “Now it opens the door so that it’s a bit more general — a substantial likelihood that the threat is real.”

Lori Saine

This is the same language that Reams — who worked with Saine on bringing this bill forward — attempted to put forth last session, but was not supported by Democrats, he said.

“Let’s fix the mental health part,” Reams said. “Now that we’ve seen how the Red Flag bill can be abused, it makes even more sense now. We are dealing with the person.”

Reams was referring to a Red Flag application in Larimer County in which a woman filed a complaint against a Colorado State University police officer who was one of two officers who shot and killed her son in 2017. He was found to be justified in the shooting.

The woman claimed to have a son in common with the officer in order to file the application. While the temporary order was denied after it was learned the filing was fraudulent, and the woman has subsequently been charged for falsifying the report, some say this was proof the system works, that people will not be able to abuse the law.

Reams disagrees. He said this case was an extraordinary one where the accused was a government employee and the Attorney General’s (AG) office represented the officer. Not everyone will be able to have that kind of defense — if any defense.

“And all the AG argued was that she didn’t have the standing to file and that this was not the proper venue,” Reams said about the officer’s defense. “He didn’t argue the constitutionality of it, whether this was even a legitimate law to begin with. This was the perfect case to test that with and he didn’t argue it.”

Saine agreed, adding it is much more compassionate to focus on getting people with mental health issues the help they need instead of arbitrarily taking weapons away from people who may be targets of revenge from those abusing the law.

“We need to remove the person from the circumstances not the weapons from the person,” Saine said. “Taking away a person’s constitutional rights causes far more problems than it helps.”

Reams and Saine agreed that although they are not optimistic the repeal will pass the Democrat-held legislature, they are hopeful the mental health piece will survive.

“Even if (the repeal) part gets taken out of the bill, it still becomes a useful tool for law enforcement to address the mental health piece,” Reams said. “I don’t know anyone who can argue against that.”

The bill was assigned to the House Judiciary Committee. It does not have a committee hearing date set as of yet.

Sen. John Cooke, R-Greeley and Jim Smallwood, R-Douglas County are sponsoring the bill in the Senate.

 

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