SAN LUIS VALLEY— In light of the new year many new laws have come into effect as of Jan. 1, including the controversial Red Flag Gun Law.
The sheriffs in the western end of the Valley have gone on record about enforcement of the law.
The Red Flag law creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO).
The petitioner for an ERPO must establish by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control; or by possessing, purchasing or receiving a firearm.
The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist.
The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed. Many Colorado residents believe the new law infringes on their constitutional rights.
In a brief interview with Rio Grande County Sheriff Don McDonald, the sheriff stated in reference to the new law that he and his crew will uphold the constitution and will handle each case on a case by case basis. “We already have restraining åorders and other laws that prohibit people that may be mentally unstable to be in possession of firearms. Those laws have worked for countless years and with this new law, I sincerely feel we have awoken a sleeping giant. There is no way that this law will do anyone any good.”
McDonald and Rio Grande County Commissioners have passed a resolution classifying Rio Grande County as a “sanctuary” county.
The resolution states, “Whereas, the Board of County Commissioners of Rio Grande County, Colorado, pursuant to Colorado Statute is vested with the authority of administering the affairs of Rio Grande County, Colorado, and Whereas the Second Amendment to the United States Constitution, adopted in 1791 as part of the Bill of Rights, protects the inalienable and individual right of the people to keep and bear arms.”
The resolution declaring Rio Grande County as a “sanctuary” county was recorded by Rio Grande County Clerk and Recorder on March 21, 2019, and will be used as a means to uphold the Second and Fourth Amendments set forth by the Constitution and Bill of Rights and will be unforced by Rio Grande County Sheriff in light of the new law.
“We took our oaths of office on the Constitution and that is what we will uphold,” stated McDonald.
Sheriff Fred Hosselkus in Mineral County took a similar stance on the topic but also stated that he will do as ordered by the courts. “We are a sanctuary county and will uphold the constitution, but we will do as ordered by a court of law if an order comes through to confiscate weapons. I trust the court system and will abide by those orders. Everything will be handled on a case-by-case basis and we will leave it up to the courts to decide whether or not we will confiscate weapons based on a complaint. We have a due process and an investigation will be performed before any action is taken.”
In Saguache County, Saguache County Sheriff Dan Warwick says he cannot in good conscience enforce the passed red flag bill for Colorado. “I don’t agree with it by any means,” Warwick commented. “The law is poorly written and it violates constitutional rights.”
Accused individuals should be issued a summons to appear in court for a hearing regarding having their guns removed, but as the law now stands, the accusations can be made against them and they have no right to be advised of the hearing or plead their case.
“This is no different than being charged with any other crime,” Warwick pointed out. “You get your day in court. They can say it’s a law, but that doesn’t mean we have to enforce it.
“Who’s to say what is more important — what takes precedence — to violate someone’s constitutional rights or to obey the ‘law?’ ”
The new law will face many legal challenges, he added, and until it is actually declared constitutional, which could take a U.S. Supreme Court determination, “I can’t enforce the law if there is a constitutional question.”
Warwick went on to explain that mental health providers should be the ones reporting potentially dangerous individuals to law enforcement or the courts because they have the expertise to determine when a true danger exists and when it does not. Privacy and legal issues, however, prevent them from providing this information, and these are the issues that should have been addressed, he said.
The legislature should have explored how to empower mental health to better make these determinations, Warwick observed, so they could distinguish who should temporarily have their firearms removed and returned within a short period of time and who should not possess firearms at all. Mental health providers would then be able to work in concert with the courts to provide such information on which a judge could base a decision. Better supervision and training of mental health personnel would also be in order to assure proper treatment and evaluation of those referred by the courts.
Colorado is the 15th state to pass a red flag law and pro-gun activists across the state have filed a lawsuit hoping to have the new law overturned in coming months.
The law has caused an upheaval of controversy ever since it was proposed by Governor Jared Polis last summer.