Attorney General Weiser confident sheriffs will enforce Colorado’s red flag law

Eagle County's James van Beek says he stands with other sheriffs opposed to the law

David O. Williams
Special to the Daily
Douglas County Sheriff Tony Spurlock, left, speaks as Rep. Tom Sullivan, D-Aurora, looks on before Colorado Gov. Jared Polis signs a bill to allow Colorado to become the 15th state in the union to adopt a red flag gun law allowing firearms to be taken from people who pose a danger on April 12 in the State Capitol in Denver.
David Zalubowski | AP

Colorado Attorney General Phil Weiser on Thursday said he’s skeptical any sheriff in the state – including Eagle County’s – will refuse to enforce the new red flag law that will allow police to confiscate guns from people deemed by a judge to be a danger to themselves or others.

“Your job is to protect people and to enforce the law, and the idea that you could pick and choose what laws you will enforce is antithetical to the rule of law,” Weiser told the Vail Daily following the U.S. Attorney’s Law Enforcement Conference at the Vail Marriott on Thursday.

More than half of Colorado’s counties reportedly oppose the law, signed by Gov. Jared Polis on April 12, and at least 10 sheriffs have said they’d rather be found in contempt of court and locked up in their own jails rather than take away someone’s guns.

Asked if he would compel sheriffs to enforce the law if they refuse to when it goes into effect on Jan. 1, Weiser again said he doubts it will come to that when and if sheriffs actually face “the extreme risk” of someone who is mentally ill and clearly a threat to the community.

“We’re going to have to confront that situation if and when it happens,” Weiser said of Colorado’s Extreme Risk Protection Order law. “I am skeptical it’s going to happen. I believe when push comes to shove, it’s not going to happen, but if it does … we’ll have to see.”

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Van Beek opposed to law

Eagle County Sheriff James van Beek supported the concept of the law with some reservations last year before it was killed in the Republican-controlled state Senate, but this year he withheld public comment until the day Polis signed it into law – writing a 3,000-plus-word Facebook post opposing the measure on constitutional grounds and its failure to address mental health.

On April 15, van Beek appeared on “Fox & Friends” on Fox News, where host Brian Kilmeade introduced him by stating, “Colorado’s controversial red flag gun law is now on the books, meaning guns can be taken away from people who are determined to be dangerous, but one sheriff in that state is vowing not to enforce the controversial new law …”

Van Beek, in fact, never said during the interview that he wouldn’t enforce the law. Nor did he make that statement in his lengthy Facebook post.

“I have never said I wouldn’t enforce it,” van Beek told the Vail Daily Thursday. “Just that I think it is a bad law as they failed to address the root problem, which is mental health, and that I do believe, along with many other sheriffs, that there are constitutional issues with this law and I would stand with those sheriffs challenging those issues.”

‘This law is constitutional’

Colorado is the 15th state to adopt some version of Extreme Risk Protection Order legislation, and this version is named after Douglas County Sheriff’s Deputy Zackari Parrish, who was killed by a mentally disturbed man whose parents had warned he was a heavily-armed threat to the community. The law is backed by Republican Douglas County Sheriff Tony Spurlock.

Colorado Attorney General Phil Weiser, the former dean of the University of Colorado Law School, a former U.S. Justice Department lawyer and U.S. Supreme Court law clerk, says the state’s new red flag law is constitutional.
Colorado Attorney General’s office

Weiser on Thursday promised to vigorously support anyone facing recall as a result of voting for or supporting the red flag bill, which he says will save lives – both from homicides and suicides.

“This law is constitutional,” said Weiser, who is the former dean of the University of Colorado Law School, a former U.S. Justice Department lawyer and U.S. Supreme Court law clerk. “I will be defending the extreme risk protection law if it’s challenged. Fifteen states have it now, including Colorado, and every other state where it’s been challenged it’s been upheld.”

But van Beek insists the new law is fraught with constitutional problems.

“I stand with other sheriffs in opposition to the red flag law on constitutional grounds as well as its failure to address the true issues, which are behavioral and mental health,” van Beek wrote on Facebook. But he added that Eagle County, unlike other counties opposing the law across the state, does not need to declare itself a so-called Second Amendment sanctuary county.

That’s because, he said, Eagle County has “always utilized discretion in the implementation of our duties and will continue to do so … Gov. Polis understands this priority, as he stated on March 26, that he believes sheriffs are committed to enforcing laws approved at the capitol, but he also said they have discretion to decide which issues to focus on.”

Weiser acknowledged there’s a profound lack of mental health services in Colorado, especially in rural areas, but that’s no reason to hold off on red flag gun laws.

“I do not understand the argument that goes like this, ‘Because we don’t have adequate mental health services, let’s let people who are mentally ill keep their weapons,’” Weiser said. “That’s what you’re saying, which is, ‘Let’s tolerate a level of risk that is avoidable.’”

‘We have to be working on both fronts’

Weiser added that Eagle County is making great strides toward adequately funding and providing mental health services, including the 1A marijuana sales tax and a $60 million commitment to behavioral health by Vail Health.

He added that the state is also trying to do its part on multiple fronts. Several bills in the current legislative session address mental and behavioral health, and the attorney general’s office has created a framework for the Department of Health and Human Services to more rapidly provide competency determinations for mentally ill individuals in the criminal justice system.

Weiser also said his office is vigorously defending the federal Affordable Care Act, which includes funding for mental health via Medicaid and Medicare expansions and mandates mental health parity with traditional health care coverage by private health insurance plans.

Finally, Weiser points to a Colorado lawsuit first filed by his predecessor, former Attorney General Cynthia Coffman, against Oxycontin manufacturer Purdue Pharma. Saying he may expand the suit to include other manufacturers, Weiser adds any settlement funds will be directed toward substance abuse and mental health treatment throughout Colorado.

“We have a lot of work to do on this front,” Weiser said. “My view is we have to do both. I wouldn’t be in favor of not passing Extreme Risk Protection Order because we haven’t done enough mental health [services], and I wouldn’t be comfortable not doing enough mental health. We have to be working on both fronts.”

Weiser added: “The reality is our jails and prisons by default end up becoming a place that’s providing mental health services, and not at the level we need. I’d much rather be providing alternative facilities and relieving jails and prisons.”

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