Last week a gunman killed five people an LGBTQ
nightclub in Colorado Springs, Colorado. For some lawmakers, the early facts
raised questions about whether local police and sheriff’s deputies could have
used the state’s “red flag” law to prevent the attack, reported Colorado Public Radio.
Last year, the suspect in the Club Q shooting was
involved in an earlier incident in which he allegedly made bomb threats and
confronted law-enforcement officers. It appears that authorities did not
attempt to file a “red flag” petition after the incident, which could have
barred him from possessing or buying guns.
Now, that decision is coming under scrutiny.
“I’m hearing reports that perhaps the red flag law
wasn’t enforced on this young man,” said state Sen. Rhonda Fields, a
Democrat.
The state’s red flag law, passed in 2019, allows
local authorities to request permission to temporarily confiscate firearms from
people they believe may be a danger to themselves or others.
A “red flag” order, also known as an Extreme Risk
Protection Order (ERPO), could have allowed authorities to seize any guns the
Club Q suspect had, and it would have barred him from purchasing other weapons.
A search of public records found no indication that the sheriff’s office or
other authorities filed such a petition. The charges in the case were dropped
and the case was sealed.
But local law enforcement are not required to file
red flag petitions. And leaders in conservative areas like El Paso County —
where the nightclub shooting and the 2021 incident happened — have criticized
the idea that the government should seize weapons from people who haven’t been
convicted of a crime.
For example, in 2019, local district attorney
Michael Allen derided the red flag law as “unconstitutional,” tweeting that
it was “[n]othing more than a way to justify seizing people’s firearms under
the color of law.”
After the law was implemented, he tweeted: “This law
is a poor excuse to take people’s guns and is not designed in any way to
address real concrete mental health concerns.”
In the 2021 incident, the Club Q suspect was
arrested after allegedly threatening his mother with a “homemade bomb, multiple
weapons and ammunition,” the El Paso County Sheriff’s Office reported
at the time.
He was also wearing body armor and had live-streamed
himself in a standoff with law enforcement. It’s unclear whether he
was armed at the time.
Rep. Meg Froelich, a Democrat, said the legislature
should examine how local authorities are using — or failing to use — the red
flag law.
“Is it being applied and enforced? That’s something
we want to look at,” Froelich said. She added that she wants to know whether a
red flag order could have been applied in the case of the gunman who last
year killed
five people in a rampage that struck several tattoo shops in Denver
and Lakewood.
Colorado is one of 19 states, plus Washington, D.C.,
that have red flag laws. The concept first became law in Connecticut more than
20 years ago, but the laws have become more widespread since the 2018 massacre
at Marjory Stoneman Douglas High School in Parkland, Fla.
The red flag orders in Colorado must be initiated by
law enforcement or family members of the person in question. Judges review the evidence
and decide whether to authorize law enforcement to seize a person’s firearms. A
temporary order lasts two weeks and it can be extended into a year-long order,
which can then be renewed.
But the use of the law in Colorado has remained
relatively low, and authorities in El Paso County have used the orders even
less often.
In 2019, county commissioners declared El Paso a
“Second Amendment preservation county” and pledged that county leaders would
not “appropriate funds, resources, employees or agencies to initiate
unconstitutional seizures in unincorporated El Paso County,” as
The Gazette reported.
(The 2021 incident took place in unincorporated El
Paso County, according to property records.)
Similarly, in a 2020 statement,
the El Paso County Sheriff's said that deputies would only request removal
orders and search for guns in “exigent circumstances” and when they could find
“probable cause” of a crime. That’s a stricter standard than what’s required by
the law, which is focused on the possibility of violence — and not whether
someone has committed a crime.
The policy was meant to “ensure that the rights of
people to be free from unreasonable search and seizures, and to receive due
process of law,” according to the sheriff’s office statement.
Sheriff Bill Elder has not commented on whether that
policy stopped his deputies from pursuing a removal order after arresting the
Club Q suspect in 2021 for making bomb threats. The sheriff’s office declined
to comment for this story, saying the state’s law about criminal justice
records prevented them from talking about the earlier case.
Colorado Springs Mayor John Suthers said that people
shouldn’t assume that the earlier case qualified for a red flag petition.
“I would caution against an assumption that the
circumstance of this case would lead to application of the red flag law. We
don't know that,” he said at a press conference Monday. “Hopefully there'll be
a time when there can be a specific discussion about any prior interaction with
law enforcement … But I think it's premature to do so now.”
Colorado Springs Police Chief Adrian Vasquez said he
supports use of the red flag law when appropriate. “If law enforcement has
credible information that fits within the parameters of the red flag law, then
we should take action on that,” he said at the press conference.
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