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GOP Lawsuit Claims Passage of Red Flag Bill Was Unconstitutional

As the clock wound down on a chaotic final few hours of Colorado’s 2019 legislative session, Republican lawmakers stood before reporters in a tightly packed meeting room at the Capitol to issue a rousing, resounding cry of “No fair!”

The passage of Democrats’ red-flag gun legislation earlier this year violated the state Constitution, GOP legislators and gun-rights activists alleged at a press conference today, May 2. Flanked by House Minority Leader Patrick Neville and three other Republican legislators, Rocky Mountain Gun Owners executive director Dudley Brown said his organization would file a lawsuit in Denver District Court that seeks to overturn the law.

“Democrats used illegal and unconstitutional tactics and methods to push a bill that would remove the due process of our citizens,” said Brown, a controversial figure in state politics whom even the National Rifle Association once denounced as too extreme. “In other words, they violated due process at both ends.”

In March, frustrated by the red-flag bill and other Democratic reform efforts, Republicans began employing a variety of delay tactics, including asking for bills to be read at length on the floors of the House and Senate. In the upper chamber, Democrats used computers to speed-read the bill in question, which ultimately prompted a lawsuit against Senate President Leroy Garcia.

A similar scene played out as the House considered House Bill 1177, the red-flag legislation, on March 4. After Representative Steven Humphrey, a Republican from Severance, requested that the bill be read at length, several House clerks began reading different sections of the bill at once to speed up the process.

Humphrey later withdrew his motion, but state representatives Lori Saine of Dacono and Dave Williams of Colorado Springs also made motions to read the bill at length, both of which were denied. The two conservative lawmakers are plaintiffs in the lawsuit filed by RMGO.

Barry Arrington, the attorney representing the plaintiffs and a former state representative himself, said that denying Saine’s and Williams’s motions violated Article V, Section 22 of the Colorado Constitution.

“The Colorado Supreme Court has upheld this provision,” said Arrington, “and said that if a law passed in contravention of the provisions of Article V, Section 22, it is null, nugatory, void, of no effect.”

House Democrats released a statement denying the lawsuit's allegations. "Despite claims during the lawsuit announcement that the Majority party failed to read the bill at length, the bill was indeed read at length when the motion was properly made until the motion was withdrawn by the requestor, in accordance with the rules of the legislature," the statement read.

"This is not about what happened during the debate," said House Majority Leader Alec Garnett, a Democrat from Denver. "This is about the gun lobby trying to unwind a popular measure to help save and protect lives in Colorado."

Despite polling showing overwhelming bipartisan support in Colorado for red-flag laws, which allow law enforcement to seize guns from people found by a court to be a "significant risk to self or others," few bills passed by the legislature's Democratic majority this year have elicited as much conservative opposition as HB 1177.

RMGO is moving forward with recall campaigns against up to a dozen Democratic lawmakers who voted for the bill, said Brown, who led similar recall efforts against Democrats following the passage of gun-control measures in 2013. And he made clear that regardless of the outcome of this lawsuit, more are likely to follow.

“This does not preclude any other lawsuits we might file,” Brown said. “In fact, we are pursuing another lawsuit in case this is not successful.”

Arrington, who has served as legal counsel for a variety of Colorado conservative causes and has a long history of anti-gay statements, brushed aside the notion that the case rested on a "technicality."

"You're allowed to publish the stories you're writing right now because of a technicality: the First Amendment," he said.

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