Update: The red-flag legislation described below passed through committee by a 7-4 vote on February 21. It next heads to the House appropriations committee. Continue for our previous coverage.
At 1:30 p.m. today, February 21, in the Old State Library, the Colorado House Judiciary Committee will consider one of the most controversial bills in the 2019 session — so-called red-flag legislation that would create a framework for temporarily taking guns away from those considered a danger to themselves and others.
Since sponsors of Colorado House Bill 19-1177, also known as "Extreme Risk Protection Orders," include Representative Tom Sullivan, the father of Aurora theater shooting victim Alex Sullivan, most coverage to date has focused on how the measure might be able to prevent the unstable from staging a mass shooting. But Nancy VanDeMark, interim president and CEO of Mental Health Colorado, who's an advocate for the bill, points out that more lives would likely be saved by removing firearms from the possession of individuals who are thinking about ending their own lives.
"These kinds of protection orders save people from suicide," VanDeMark says, "and that's the critical part of our support for this legislation."
Staking out the opposite position is Dudley Brown, executive director of Rocky Mountain Gun Owners, an important part of the Second Amendment-defending coalition that helped defeat a similar red-flag bill last year. He considers such proposals to "grossly violate people's due-process rights. The whole idea of red-flag laws is that you go around the normal process based on an accusation and confiscate one thing: not car keys, not knives, not propane tanks, but guns. That's it. And if people are indeed a menace to society before this, they're still a menace to society afterward."
Also unconvinced is Representative and House Minority Leader Patrick Neville. "As written, House Bill 1177 is fundamentally unfair," he writes in a statement provided to Westword. "People are robbed of their constitutional rights without getting a chance even to be present when accused at a hearing in front of a judge. Democrats have missed the chance to put together legislation that protects individual Coloradans and their civil rights. As a result, I cannot support it."
As noted in its summary, the bill "creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO). The petitioner must establish by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm. The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist.
"Such hearings must be held in person or by telephone on the day the petition is filed or the next day courts or open, the document continues, with a second hearing to be scheduled no later than fourteen days following the issuance of an ERPO to determine if the order should be continued, thereby preventing the person from "possessing, controlling, purchasing or receiving a firearm for 364 days."
Colorado would hardly be the first state to take such a step. Indeed, the number has now reached thirteen (plus Washington, D.C.), with eight states enacting laws in the wake of the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
Brown views the proliferation of such regulations with distress. "This is about taking guns, period," he allows. "Why do you think anti-gun groups are so excited about this? They're running all around the country, pushing this very hard."
For her part, VanDeMark sees the success of such measures as driving the expansion. According to her, officials in Connecticut, which passed a red-flag law in 1999, "estimate that they save a life for every ten to twenty risk warrants they issue. Also, about a third of the people who had protection orders issued ended up receiving services, including mental health services. And our perspective is that we want to see people get treatment. We believe that if people get the treatment they need early enough, that's an important part of preventing suicide."
Guns make that more difficult, she maintains. "The lethality of suicide attempts is far greater if someone is choosing a firearm versus asphyxiation or any other method. Approximately 85 to 90 percent of suicide attempts using a gun are completed, as compared to something like 2 percent with other means. So that's another issue that drives us. If someone attempts but doesn't complete suicide, it gives us the opportunity to intervene and engage that individual in treatment."
Such stats don't persuade Brown, who believes that "if someone who's deranged is determined to commit suicide, he will do it. It's not because of the tool. It's because of the willpower. If it doesn't happen, it's because they really didn't want it to."
He acknowledges that he's not a trained mental health professional. Instead, "I'm an expert in firearms policy. And red-flag laws are a deep violation of civil rights that's kind of Orwellian in many ways. To use a rough example, imagine if you have an ex-girlfriend and she doesn't like you very much because you broke up with her. She knows you have guns, so she goes to court and says you have a problem with anger and fabricates some elaborate story. The first you're going to know about it is when your door explodes and SWAT officers are pointing rifles in your face because they're there to take your firearms."
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VanDeMark sees the legislation in much more benign terms and thinks it would work well in conjunction with SB 18-270, passed last year with backing from Mental Health Colorado. "The intent of that bill was to identify people with mental health concerns that bring them to the attention of police and get them engaged in treatment," she explains. "What we see is that folks who are at high risk of suicide often have contact with the system before they attempt or complete suicide. So we want to maximize first contact — because these kinds of efforts can help prevent suicide, as well as crimes and other kinds of involvement with law enforcement and the public."
Mental Health Colorado is also supporting another new proposal, House Bill 19-010, which would allow schools to partner with community groups to provide mental health and other services and change the criteria under which schools are prioritized for grants by adding suicide attempts and death by suicide to the equation. The organization notes that suicide remains the leading cause of death for Coloradans between ages 10 and 24.
As for why suicide hasn't gotten much attention in coverage of the latest red-flag bill in Colorado, VanDeMark has a theory. "Family members often don't feel comfortable sharing the cause of death for their loved one in those circumstances because of the stigma around suicide," she says. "That also impacts the suicide rate, since, because of the stigma, people who need help often don't seek it out."
Others could do so on their behalf if the red-flag law passes. And its legislative journey starts today.