Second Amendment

If the Colorado legislature passes House Bill 1177, otherwise known as the Red Flag Bill, and it is signed by Governor Jared Polis, a judge will be able to decide if a person is a danger to him or herself, and confiscate any weapons owned by that person while the mental health of that person is being determined.

In a direct pushback against this upcoming law, a number of Colorado counties, including Park County, have passed resolutions that will give their Sheriffs the authority to make their own decisions on whether they will ignore HB 1177 eitherin part or altogether.

In a statement from Sheriff Tom McGraw, he believes this state bill to be a violation of the Second Amendment.

“I fully support the Park County Commissioners on the Red Flag resolution,” McGraw said.

“The Extreme Risk Protection Order or Red Flag does not address the real issue which is a mental health problem. If a subject is wanting to harm himself or others he will find a means even if he has his firearms taken away. I believe that an accused person should have the right to defend themselves before their accuser.

“The concept of the bill for law enforcement to have a means to go and seek assistance for someone with mental health issues that is threatening harm to himself or others is a solid concept however this bill is a complete violation of the Second Amendment.”

HB 1127’s official name is the “Extreme Risk Protections Orders” bill, otherwise popularly known as  the Red Flag bill. The legislation is sponsored by Majority Leader Alec Garnett (D-Denver) and Representative Tom Sullivan (D-Centennial). According to the summary of the bill posted on the Colorado Legislature’s website, 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 beginning January 1, 2020. 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. The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed.”

After two hearings, the court can issue an ERPO which requires the respondent to “surrender all of his or her firearms and his or her concealed carry permit if the respondent has one. The respondent may surrender his or her firearms either to a law enforcement agency or a federally licensed firearms dealer, or, if the firearm is an antique or relic or curio, the firearm may be surrendered to a family member who is eligible to possess a firearm and who does not reside with the respondent.”

The respondent is not present at either of these two hearings, and therefore not able to offer any evidence or rebuttal in his or her favor. It is not until after the ERPO is issued, and the firearms confiscated, that the respondent can petition the court to have the firearms returned.

House Majority Leader Alec Garnett (D-Denver), is the lead sponsor of the bill. Garnett sponsored the bill in memory of Douglas County Sheriff’s deputy Zackari Parrish, who was killed in 2017 while dealing with a barricaded man who was going through a mental health crisis. Current Douglas County Sheriff Tony Spurlock also supports the bill.

In a statement, the National Rifle Association points out that the respondent is being denied due process. “Unchallenged statements made by a petitioner before a judge, alleging that someone is a danger to themselves or others in an ex parte proceeding, prior to any formal court hearing at which the respondent can be represented by counsel and present counter evidence, would be sufficient for law enforcement to enter that person’s home and confiscate their private property.”

Thursday, March 7, the Park County Board of County Commissioners unanimously passed a resolution that would make Park County a Second Amendment sanctuary county. This resolution would give Sheriff Tom McGraw the discretion to not uphold, in part or whole, any unconstitutional red flag law passed by the state.

The central language of the resolution states:

“Now, therefore, be it resolved by the Board of County Commissioners of the County of Park by the authority granted the board by the laws of the State of Colorado and people of Park County, Colorado to stand and defend their rights and liberties, which are guaranteed by the United  States and Colorado Constitutions, we hereby declare this resolution to be a Second Amendment Preservation Resolution designating Park County a Second Amendment Sanctuary County.

“Be it further resolved that this board affirms its support for the duly elected Sheriff of Park County, Colorado in the exercise of his sound discretion and affirms its resolve to support decisions by our Sheriff to not enforce any unconstitutional firearms law against any citizen.

“Be it further resolved that this board will not authorize or appropriate government funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing a law that unconstitutionally infringes on the right of the people  to keep and bear arms.”

McGraw is also concerned about the safety of his deputies, who would be tasked with serving an ERPO.

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