Colorado's House has given preliminary approval to the most controversial gun legislation of the 2018 session: the so-called "red flag" bill, House Bill 1436.
The bill would allow law enforcement and/or family members of an at-risk person to obtain a temporary "extreme risk protective order" that would then allow a law enforcement officer to remove firearms and ammunition from the person's control.
That protective order would remain in place for seven days, at which time the at-risk person, who has been deemed a danger to him/herself or to others, has an opportunity to have the firearms returned. If the person is still a risk - at that time the burden of proof changes from a preponderance of evidence to a higher standard of clear and convincing evidence - the ERPO can remain in effect for another 182 days.
Wednesday night's discussion on the bill produced a hush for much of the two-hour debate in the normally chatty House chamber.
The hush started during an apology from the bill's Republican co-sponsor, Assistant Minority Leader Cole Wist of Centennial. His sponsorship of the measure, along with his Democratic counterpart, Rep. Alec Garnett of Denver, led to a late night caucus on Monday during which an attempt was made to strip him of his leadership position. A vote was never taken on the matter. Republicans, including Minority Leader Patrick Neville of Castle Rock, cast the incident as a family feud that was talked out in the caucus meeting.
That family feud between Neville and Wist, according to sources, actually ramped up last March with the vote to expel then-Rep. Steve Lebsock of Thornton. Wist was one of the first of his caucus to reveal he would vote to expel Lebsock for retaliating against his victims during the March 2 debate and vote. His stance appeared to open up a floodgate of fellow caucus members who, one by one, said they also would vote to expel. Neville had been attempting to hold the caucus together on rejecting the expulsion resolution, sources said.
In the last few days, Wist has also been under fire from outside the Capitol. Criticism of Wist includes social media attacks from Rocky Mountain Gun Owners, which formerly employed Neville's brother, Joe, as a lobbyist, and Advancing Colorado, which has ties to the consulting firm run by Joe Neville.
Wist didn't back down Wednesday night but offered his regrets to his caucus for bringing the bill forward so late in the session.
"I have deep respect for each of you in terms of your views on this subject," Wist said. Acknowledging that the bill was introduced just on Monday, Wist added, "I apologize to the members of my caucus for this bill coming so late," and pledged to work with the caucus throughout the debate.
The bill is named after Douglas County Sheriff's Deputy Zackari Parrish, who was ambushed by a man, about whom some had mental health concerns, on New Year's Eve. The sheriff's department was reportedly aware for two months that he posed a risk, but he wasn't deemed an imminent threat until the day of the New Year's Eve shooting. When Parrish and three other deputies showed up at the man's apartment, he shot and killed Parrish and injured the other deputies, several severely. The shooting took place in Wist's district.
This is not a gun confiscation bill nor a gun control bill, Wist said, adding that it's a public safety bill and has the potential to save lives.
Neville countered Parrish's story with one of his own: the most difficult order he was ever given, while in the Army when stationed at Fort Carson after returning from Iraq. A female officer had been brutally raped in Iraq and sent back to his command. The Army has a similar policy to the red flag law, Neville explained, and he was ordered to take her weapons because they believed she was suicidal. "I was sent in to take her one form of protection," Neville said. She was very upset, but the family recognized Neville did not have the authority to remove weapons that belonged to other family members. That weapon made her feel safe, he said.
Other members of the caucus went to the House microphone one by one to condemn the bill. Rep. Terri Carver of Fountain said the law on a 72-hour mental health hold ought to be changed to a lesser standard (currently, it's "imminent," the highest possible standard), instead of creating a new law allowing guns to be seized. Get the individual into treatment and evaluation, she said. "This [bill] is not the best approach to address this serious safety issue."
Garnett responded that the mental health system, which he said is underfunded, is broken. The 72-hour hold is never 72 hours; it's usually two or three hours, he said. Hospitals that don't have the beds to take a person on a 72-hour hold must release the person, he added.
This is a tool to protect law enforcement and give family members a voice, and the bill has more due process protections than the red flag laws in other states, Garnett said.
Democratic Rep. Pete Lee pointed out that both the state sheriffs' association and chief of police groups support the bill, although some individual members do not. It's not a gun grab, he explained. He also asked lawmakers to have faith in judges, stating they will not issue one of these orders without sufficient evidence.
After a final House vote Thursday, House Bill 1436 was headed to the Senate, where it is unlikely to survive.