Red Flag laws work, but they have to be used

By Brian Sexton

When Colorado passed its Red Flag law, called “Extreme Risk Protection Orders,” in 2019, El Paso County Sheriff Bill Elder announced his opposition: “I am exploring all legal options and am vigorously challenging the constitutionality of this law.”

He wasn’t alone. Many county sheriffs in Colorado said they believed the law didn’t allow enough due process or was unconstitutional.

But since then, some 20 of these so-called “sanctuary” counties have seen the light, implementing this sensible law so that weapons have been taken away from violent people. But it was not used in El Paso County’s Colorado Springs, where a man recently killed five people and wounded many others at Club Q, an LGBTQ bar.

The shooter, who survived, never had to go to court to defend himself against the Red Flag law — even after law enforcement was called in a year ago to stop him from threatening his family with a bomb.

If anyone needed to be parted from weapons, it was the Club Q shooter. But sadly, in the wake of massacres like this, we frequently learn that no action was taken earlier by either law enforcement or family.

The El Paso County Sheriff’s office, in a statement to the Colorado Sun, admitted that it has never initiated an extreme risk protection order, the first step in removing a firearm from someone under Colorado law.

The Red Flag law builds in due process, as only a judge can begin the process of removing someone’s guns. A second court appearance is necessary to extend a temporary protection order beyond two weeks. While a Red Flag law is now used in 19 other states, the Associated Press found that Colorado residents invoke the law less often than residents of other states.

Why not? A major reason is the anti-democratic ideology of county sheriffs who choose what laws to enforce. Sheriffs have bought into the peculiar notion that a county has ultimate legal authority to uphold the Constitution of the United States.

One result of this old “Posse Comitatus” approach is that local sheriffs feel free to ignore state laws they don’t like. All they have to do is label them “unconstitutional.”

This attitude was on full display in several states when they issued emergency orders to curb the spread of Covid 19. Rural sheriffs in Nevada, New Mexico, Oregon, Washington and California resisted. They defied the orders of their state government and refused to enforce public health measures.

The backbone of this county approach is best represented by the Constitutional Sheriff and Peace Officer Association, a group based in Arizona and founded by Richard Mack, described by the Anti-Defamation League as an “anti-government extremist.” Mack is also credited as a founding member of the Oath Keepers, infamous for their involvement in the January 6th Capitol riot.

In my home state of Oregon, this rhetoric has made inroads. Though a contentious ballot measure restricting magazine capacity and implementing a new firearm permitting system recently passed, several county sheriffs have joined lawsuits to prevent the reforms from going into effect. Many more of Oregon’s 36 county sheriffs have stated they will not enforce all or parts of the law.

While not all of these sheriffs may view themselves as members of the Constitutional Sheriff and Peace Officer Association, the influence of its ideology is undeniable.   

You would think it goes without saying, but the job of a county sheriff has never been to interpret laws as they see fit. Sheriffs are elected officials entrusted by their community to apply laws fairly. Allowing sheriffs to act as supreme legal arbiters is wrongheaded and dangerous. If the El Paso County sheriff or the shooter’s family had implemented the Red Flag law, a massacre might have been prevented.

So-called “Constitutional Sheriffs” couch their rhetoric and ideology as a fight to preserve liberty and justice. It is almost as if they were living in a fictionalized version of the Wild West, where a lone sheriff with a gun upholds civilization.

That is not the world we live in. Guns are not sacrosanct possessions, unstable and dangerous people should not be allowed to stockpile weapons, and activating the Red Flag law can save lives.

If our sheriffs won’t uphold the laws, maybe it’s time to vote for someone who will.

Brian Sexton is a contributor to Writers on the Range, writersontherange.org, an independent nonprofit dedicated to spurring conversation about Western issues. He writes about wildlife and hunting in Oregon.

Arnav Singhal via Unsplash

This column was published in the following newspapers:

12/05/2022 Forest Grove News Times Forest Grove OR
12/05/2022 Forest Grove News Times Forest Grove OR
12/05/2022 Columbia County Spotlight Scappose OR
12/05/2022 Tigard Times Tigard OR
12/05/2022 Beaverton Valley Times Beaverton OR
12/06/2022 Vail Daily Vail CO
12/06/2022 Explore Big Sky Big Sky MT
12/06/2022 Kingman Daily Miner Kingman AZ
12/07/2022 Denver Post Denver CO
12/07/2022 Grand Junction Daily Sentinel Grand Junction CO
12/07/2022 Four Points Press Garryowen MT
12/07/2022 Montrose Daily Press Montrose CO
12/07/2022 Salt Lake Tribune Salt Lake City UT
12/07/2022 Jackson Hole News & Guide Jackson Hole WY
12/07/2022 Montana Standard Butte MT
12/09/2022 Boulder Daily Camera Boulder CO
12/09/2022 Idaho Mountain Express Ketchum ID
12/09/2022 Yahoo sunnyvale ca
12/09/2022 St. George Spectrum St. George UT
12/14/2022 Arvada Press Arvada Co
12/12/2022 Bandon Western World Bandon OR
12/12/2022 Del Norte Triplicate Crescent City CA
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David McCuskey
1 month ago

Brian, Of course I disagree with many parts of your Red Flag article or I wouldn’t be writing. My county opted not to enforce that law and it wasn’t just the sheriff, we had a town meeting and elected to become a sanctuary. We elected our sheriff because he will stand up to laws that are unconstitutional. Sheriffs take an oath to protect the constitution.
If Colorado passed a law that limited your speech and came to close your office, would you want the sheriff to say “Sorry Brian, I guess you have to close shop and take it to the courts” or would you want him to say “Guys, get your butts out of town and don’t come back or I’ll lock you up”. If you read the constitution, it says that you can’t be deprived of life, liberty or property without due process. Colorado’s Red Flag law takes your property before due process and you would essentially have to prove yourself innocent. Why hasn’t Colorado attempted to punish those counties who declared themselves sanctuaries. Might it be that they know the law is unconstitutional and don’t want to take the matter to a higher court. The shootings that happen are tragic and maybe we should actually enforce the laws already on the books before we make more. I or any gun store owner can tell you laws that aren’t being enforced by the feds or you can “google” it.

Administrator’s note: (ERPO’s are pursued by bringing evidence in front of a judge. Who weighs evidence and issues or decides not to issue an order. This is in fact — due process)

Sincerely,
David McCuskey

julie mccabe
1 month ago

thank you for red flag article

I have pages of thoughts about US, 2nd Amendment, commercialization of weapons, etc. But, since you write about Red Flag Laws (RFL), I focus there.

I’m not saying don’t have RFL. BUT, “mental health” slogans tossed around by politicians following mass shootings are meaningless. To say the Uvalde shooter had “mental health” problems sits very wrong with me. Someone who kills children in a schoolroom with a gun is different than another who drives drunk repeatedly until he kills people in a wreck. NO ONE explains “mental health” given this dissonance, the cause and effect of “murder”. We’re beyond good and bad “choices” into something (I hesitate here.) evil at work (Stephen Paddock).

Use Aldrich as an example. His (our?) RFL chance was derailed by his family (who he threaten to the extent they called the police) refusing to cooperate with prosecutors in the followup criminal case. (This happens all the time, e.g. in domestic abuse cases.)Yes, this RFL failure has produced hindsight angst in Colorado strong enough to change / alter people’s opinions. Few would assert we don’t have more “Aldrich(s)” on our future. But knowing this – what now?

I flux between whether our gun / mass shootings predicament is God ordained irony or just the foreseeable, big number statistics of cause and effect. Whatever, our gun infused “mental health” crisis will result things like societal fragmentation (e.g. Am I afraid for my child in school?) to Big Brother computer algorithms looking for the unstable outliers among us. I can’t fathom that gun advocates don’t grok on this dystopia we face?

I loathe doom and gloom logic. Nonetheless, “mental health” platitudes won’t solve our guns and addictions crises. Social services departments have $ millions in funding, are filled with mental health experts, sociologists, etc. Yet they have struggled for years with their bureaucracy’s handling of child abuse cases.

We have to get this right, no choice, it’s where we are. But we really need to level with ourselves, whew!!

Good day, Happy Holidays, New Year, and Merry Christmas, Hanukah, Kawanza (anything else?). Julie McCabe

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