SAGUACHE — Citing due processes issues for accused individuals, Saguache County Sheriff Dan Warwick says he cannot in good conscience enforce the recently passed red flag bill for Colorado if Gov. Jared Polis signs it into law, “and I am sure he will sign it,” Warwick says.
Polis has pledged to sign the law once it was passed but has not yet done so. Over half of Colorado sheriffs, supported by county commissioners, have declared their counties gun sanctuaries meaning they will not enforce the law. Saguache County Commissioners did not join Alamosa and Rio Grande Counties recently in declaring Saguache a gun sanctuary county.
The bill would allow anyone who has ever been close to an individual— friends, family members, those in an intimate relationship or roommates, for example — to go before a judge and request an individual’s firearms be confiscated if they feel s/he is a danger to society or him or herself. The law reads that the confiscation would last for 364 days before the accused could petition the court to have the guns returned.
“I don’t agree with it by any means,” Warwick commented Monday. “The law is poorly written and it violates constitutional rights.” Accused individuals should be issued a summons to appear in court for a hearing regarding having their guns removed, but as the law now stands, the accusations can be made against them and they have no right to be advised of the hearing or plead their case.
“This is no different than being charged with any other crime,” Warwick pointed out. “You get your day in court. They can say it’s a law, but that doesn’t mean we have to enforce it. Who’s to say what is more important — what takes precedence — to violate someone’s constitutional rights or to obey the ‘law’”?
The new law will face many legal challenges, he added, and until it is actually declared constitutional, which could take a U.S. Supreme Court determination, “I can’t enforce the law if there is a constitutional question.”
Warwick went on to explain that mental health providers should be the ones reporting potentially dangerous individuals to law enforcement or the courts because they have the expertise to determine when a true danger exists and when it does not. Privacy and legal issues, however, prevent them from providing this information, and these are the issues that should have been addressed, he said.
The legislature should have explored how to empower mental health to better make these determinations, Warwick observed, so they could distinguish who should temporarily have their firearms removed and returned within a short period of time and who should not possess firearms at all. Mental health providers would then be able to work in concert with the courts to provide such information on which a judge could base a decision. Better supervision and training of mental health personnel would also be in order to assure proper treatment and evaluation of those referred by the courts.
If laws regarding the right to commit someone possessing firearms as a possible danger were first enforced by a judge automatically and then an evaluation was made, this would be the correct course and due process would be better served. The current law on commitment (not considered in the red flag law) would allow for a petition to be made to the courts for a three-day psychiatric evaluation when grave concern is exhibited mainly by social services officials or family members based on erratic behavior.
Even someone convicted of a felony can petition the court for the right to bear arms once again, Warwick noted.
Warwick also expressed concerns that vengeful ex-spouses or ex-partners could present such reports to a judge, or family members with grudges could try to sabotage a disliked family member by alleging misbehavior reports in court. He emphasized that it should not be the primary responsibility of law enforcement or the courts to act in such matters, but that families should take charge themselves, remove the firearms and ask the courts to evaluate a family member’s mental health condition if they can prove there is a grave reason to do so.
According to Warwick, the law was proposed for the right reasons and intentions, but was more or less hijacked along the way, getting “twisted around.” He would like to see a bill that better protects second amendment rights and prohibits the truly mentally ill from possessing firearms.
“In all reality,” he continued, “a judge cannot make an informed determination about the mental health of any individual without the assistance of a mental health expert, and the judge should still have that person present to speak on his/her own behalf.”