By: Robert Davis
Colorado’s House of Representatives has approved the state’s red flag gun confiscation bill.
HB 19-1177 would make it legal for police officers and family members to petition a court to force people they deem to be dangerous to surrender their weapons under threat of force and undergo involuntary treatment for mental illness.
The bill passed the House by a 38-25 margin, with two Democrats voting against it.
‘So Much Wrong with This Bill’
“There is so much wrong with this bill,” Rep. Mark Baisley (R-Douglas) said. “Not the least of which are the words at the beginning of the bill which says you must immediately surrender to the law enforcement agency all firearms in your custody, control, or possession and any concealed carry permits issued to you.”
Baisley asked lawmakers to consider the juxtaposition of that requirement with the schedule for a hearing after the respondent’s private property has been confiscated, though they have not been charged with a crime. He argued that this mechanism violates the Fifth Amendment of the U.S. Constitution.
“If this is a mental health response, then it needs to look a whole lot different than the way this bill looks,” Baisley said. “I’m concerned that this bill leverages people who are in trouble in order to gain access to weapons.”
Other Republicans echoed Baisley’s concerns that the bill chisels away at other Constitutional rights.
Rep. Hugh McKean (R-Larimer) took the time to remind lawmakers that they won’t be the ones knocking on people’s doors and asking them to surrender their weapons.
“No one in this chamber is going to tell someone we had a report, we held a hearing without you there, and we determined we are going to come and take these possessions from you so you can’t hurt anybody, and leave somebody without a full understanding of what that means,” McKean said.
McKean said he spoke to Matt Sychla, a police officer in Loveland, who had real concerns about the practical side of the bill. McKean said in no uncertain terms that Sychla’s main concern was that police officers would be killed while trying to enforce this law.
McKean then read a statement from Sychla, which said, in part, “I do not want to see a law that increases the chances of law enforcement agencies getting into shootouts with people who have committed no crimes.”
Proposed Amendment Axed
House Minority Leader Patrick Neville (R-Douglas) said red flag laws won’t fix the underlying problems that lead to violence.
“What we have in HB 1177 is a very broad abuse-prone solution to a narrow, but important problem,” Neville said. “Sometimes those with mental health problems slip through the cracks. Sometimes they get guns, and sometimes they kill. Sometimes, as we saw a year ago at the high school in Florida, authorities with the ability and responsibility to intervene fail to do so for reasons only known to themselves. For those reasons, no legislative fix is possible.”
At the beginning of Second Reading on the bill, Republicans offered a strike-through amendment that Neville argued would fix many of the problems the red flag bill poses.
The amendment would attempt to make sure the people who are most familiar with the troubled individual can make a report to law enforcement that is to be regarded as more legitimate than any other reporting person(s), clarifying the bill’s language that allows for anyone to make such a report.
Second, the amendment would make the respondents aware of the proceedings against them and offer treatment in a timely manner. It also requires timely action to be taken by law enforcement.
Finally, the amendment would allow the respondents to present their side of the case, which would alleviate the one-sided nature of the court proceedings under the current bill.
The amendment was ultimately killed, however, with Mike Weissman (D-Arapahoe) articulating the Democratic reason for voting against it.
“This amendment would erase nearly the entirety of a bill that has been worked on for more than a year,” Weissman said.
"The amendment that struck me the most interesting was the one which would have clarified that 'no knock' raids could not be used to serve gun confiscation orders," Ryan Flugaur, National Association for Gun Rights Political Director, told Gunpowder Magazine. "By voting to uphold the use of 'no-knock' SWAT raids in this gun confiscation bill, Colorado Democrats voted to needlessly endanger the safety of law enforcement and law abiding gun owners alike in effort to further their gun grabbing agenda.
"Voting to weaponize government against gun owners is only further proof of the real intent behind HB19-1177 – infringing on Coloradans’ Second Amendment rights," Flugaur said.
Dems Who Rebelled
Rep. Bri Buentello (D-Pueblo) said the bill was not supported by her constituents in southern Colorado.
“Many of my Republican, Democratic, and Unaffiliated constituents voiced concerns regarding this bill,” Buentello told Gunpowder Magazine. “I consider it my duty as the representative of Fremont, Otero, and Pueblo counties to vote No on HB 1177.”
Buentello has consistently voted against the gun control measures promoted by her party in the 2019 legislative session. She has also introduced legislation that promotes gun rights, including legislation to reintroduce hunter education in schools.
Rep. Donald Valdez (D-Alamosa) also voted no on the bill. He attempted to speak about the bill on the House floor before the vote took place, but was overcome with emotion.
Growing List of Sanctuary Counties
Fremont County became the first county in the state to pass a Second Amendment resolution in response to HB 1177, citing legal and constitutional concerns with the law. Custer County has since followed suit, and Weld County is reportedly on the verge of declaring itself a sanctuary.
The resolution reads, in part, that the county won’t use “government funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing law that unconstitutionally infringes on the right of the people to keep and bear arms."
Fremont County Board of Commissioners Chair Dwayne McFall spearheaded the movement to pass the resolution, according to the Canon City Daily Record. McFall is concerned that the bill would do away with due process and violate the Second Amendment.
“I believe that the way the bill is written violates our constitutional rights,” McFall told Gunpowder Magazine. “There’s no due process, it creates a situation where law enforcement would have to illegally search and seize weapons, and the accused is assumed to be guilty until proven innocent.”
The red flag bill requires an initial ex parte hearing (where the respondent is not present), where a judge can rule based on a preponderance of evidence that someone’s guns could be confiscated for up to a year if he or she is deemed to be a serious risk to themselves or their community.
To McFall, these requirements are troublesome for a number of reasons. Chiefly, he argues that the bill places law enforcement officers in a high-risk situation should a respondent find out that a court is considering ordering them to surrender their weapons.
“If someone finds out that someone is coming to seize their guns, it could put law enforcement on the wrong end of a gun,” McFall said.
McFall also noted that Colorado already has a law that can place someone in a mental health hold for 72 hours if they are deemed to be a risk.
“No one denies that mental health is a problem that needs to be addressed, but this isn’t the way to do it,” McFall said.
Problems for Small Counties
Another problem the bill poses is that it places a burden of paying to store seized weapons on small and rural counties. Fremont County Sheriff Allen Cooper told GPM that his evidence room is currently full. If the red flag bill passes, that could force local county commissioners to invoke an emergency appropriation, which would take funds from other necessary functions.
“The state is essentially saying here do this without giving us a way to pay for it,” Sheriff Cooper said.
Firearms are considered to be a liability item, so guns must be stored separately from other evidence, like jewelry and drugs. Liability items must be stored in such a way that they are safe from damage, rust, or rodents. The red flag bill would require local law enforcement departments to invest in new holding facilities for weapons that are not evidentiary and tracking systems to account for the receipt of seized weapons. Otherwise, seized weapons would be stored with weapons used in the commission of crimes, which could lead to unwarranted mix ups.
“The reality is I don’t want to store firearms with ones that are non-evidentiary with ones that are,” Sheriff Cooper said. “That could cause more problems than solutions.”
Robert Davis is a general assignment reporter for Gunpowder Magazine. You can contact him with tips or comments at RobertDavis0414@gmail.com or on Twitter @Davisonthebeat.