With Colorado red-flag bill on deck, some county commissioners move to protect gun rights with ‘sanctuary’
In the face of likely passage of a so-called red flag bill introduced by Democrats that would require residents to turn over firearms in certain cases, Republican Colorado lawmakers are calling on Republican Weld County commissioners to ignore the law should it pass.
In conservative Weld County, the word “sanctuary” has gotten a bad rap, but House Republicans Lori Saine, R-Firestone; Steve Humphrey, R-Greeley; and Perry Buck, R-Windsor; are encouraging Weld commissioners to declare Weld a “2nd Amendment Sanctuary County.”
The three lawmakers have sent the request on official Colorado House of Representatives letterhead.
“As Representatives of the Colorado House, we want to offer our emphatic support for Weld County becoming a 2nd Amendment Sanctuary County,” the letter reads in part.
The move comes in response to House Bill 19-1177, the extreme risk protection order bill that would allow law enforcement or others to seek the removal of firearms from individuals deemed to be at risk of harming themselves or others. That bill passed second reading in the House this past week, but still must officially pass out of the House before going to the Colorado Senate.
Under the current bill, a judge could require a person to go without firearms for up to 364 days, or longer should the petitioner establish clear and convincing evidence that the respondent is still a danger to themselves or others.
Humphrey said he and his fellow representatives aren’t optimistic about how the bill will turn out, and wanted to do something to protect people’s rights.
“We just wanted to weigh in and encourage that,” Humphrey said. “We’re really concerned about the violation of people’s Constitutional rights.”
Arguments from conservatives, including Weld County Sheriff Steve Reams, who is cited in the letter, center on Constitutional questions:
- Does the law, which allows family members or law enforcement to initiate the order and then requires the respondent to prove innocence, violate due process?
- Is it Constitutional in terms of the 2nd Amendment?
“This bill, in my opinion, is an attack on firearms and firearm ownership under the disguise of trying to help people that may suffer from some sort of mental disturbance,” Reams wrote in a mid-February Facebook post about the measure.
In a phone interview Saturday morning, Reams said he doesn’t believe the law is Constitutional, but he also wouldn’t commit to how he would approach executing the law should the bill pass, as he said the bill is ambiguous and technically doesn’t require law enforcement to be involved.
The current language of the bill requires, should a judge issue an extreme risk protection order, that the respondent surrender all of his or her firearms and his or her concealed carry permit to a law enforcement agency or a federally licensed firearms dealer.
“I don’t have a place to store firearms like that,” Reams said. “That’s not part of my budget. I’m budgeted to hold evidence. So that creates a secondary issue.”
That’s where Weld County comes in. Commissioners are set to host a work session at 8 a.m. Wednesday to discuss a Sanctuary County resolution. The resolution would likely touch on clearly established law — in this case the 2nd Amendment — and how the sheriff wouldn’t be required to go against clearly established law, according to a working discussion of the resolution provided to The Tribune via email.
It could also touch on the county’s ability to control spending. This means the county could say, for example, that it won’t fund any extra storage for potentially confiscated guns should the law pass, Weld County Commissioner Chairwoman Barbara Kirkmeyer said in a phone interview Saturday.
Fremont County has already enacted a 2ndAmendment Sanctuary County resolution, and Humphrey said other counties, including Custer and Montezuma counties, are considering similar resolutions.
When asked whether the county could or should ignore any laws it doesn’t like, Kirkmeyer, Humphrey and Kirkmeyer’s fellow commissioner Scott James all pointed to this being a unique case involving the U.S. Constitution.
There is a Constitutional case for ignoring the bill if it becomes law, said University of Northern Colorado Constitutional law professor Britton Morrell.
Because all elected officials, including county sheriffs and commissioners, have to take an oath to uphold the federal Constitution, those elected officials do get to make up their own minds about what is constitutional.
“And consistent with that vow, (they) could refuse to enforce laws or edicts that they believe are not Constitutional,” Morrell said in a phone interview Saturday.
Morrell said it’s called nullification, and generally it means states can nullify federal laws they believe violate the U.S. Constitution.
It’s not new.
County sheriffs in Colorado, including Weld County’s own John Cooke, have refused to enforce gun-related legislation just within the past decade.
There are other examples, and not all are positive.
Morrell pointed to Gov. George Wallace’s Stand in the Schoolhouse Door in Alabama in an effort to prevent integration, or Gov. Ross Barnett’s similar, anti-integration stance with regards to black military veteran James Meredith’s enrollment at Ole Miss.
Another example involved Proposition 8 in California, the voter-approved state constitutional amendment that did not recognize same-sex marriages in the state. After a federal judge struck it down as a violation of the 14th Amendment, then-State Attorney General Kamala Harris and then-Gov. Arnold Schwarzenegger declined to appeal the ruling, Morrell said.
Time will tell how the Colorado bill plays out, and how Weld County and other counties enact it — or not.
There are currently 13 states that have similar laws on the books, and an analysis of eight of those states by the Colorado Legislative Council staff in the bill’s fiscal notes shows about 3,500 extreme risk protection orders being executed in those states in 2018.
Maryland had the highest rate, with 20 per 100,000 residents, and California was the lowest, with 1.07 per 100,000 people.
Legislative Council staff assumes a rate of three per 100,000 in Colorado, meaning about 170 extreme protection orders per year in the state.
Overall, costs are expected to be near $250,000 per year for the program, based on court-appointed attorneys and required mental health evaluations, should the bill become law.
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