The Colorado Springs Gazette final

‘Red flag’ law will not work if it is not used

BY JENNY DEAM AND DAVID MIGOYA

Almost immediately after Anderson Lee Aldrich was identified as the suspect in the Club Q mass shooting, the 22-year-old was linked to a 2021 bomb threat in a Colorado Springs neighborhood where a person with the same name and birthdate was arrested on multiple counts of kidnapping and felony menacing after threatening to blow up their mother’s house.

Authorities have not officially confirmed that the two crimes were committed by the same person, but the likelihood is high. Which instantly raises another question: Why was someone with that kind of history not stopped by Colorado’s “red flag” law, a measure specifically designed to curb violence by removing the weapons of someone shown to be a threat to themselves or others, before Saturday’s rampage that killed five people?

The answer is complicated, tangled in a maze of gun politics, lack of awareness, personal freedom, and the right to due process. But at its heart it comes down to the simple fact that the law will not work if it is not used.

First passed in Connecticut in 1999 in response to a shooting that left five dead at the state lottery headquarters, the red

flag template was intended as a preemptive tool for law enforcement. The idea mostly languished until it began to gain traction after the 2018 massacre at Marjory Stoneman Douglas High School in Parkland, Fla.

Today, 19 states and the District of Columbia have such laws, officially known as extreme risk protection orders. Colorado passed its version in 2019 after tumultuous debate, with opponents decrying government overreach.

Thirty-seven of Colorado’s 64 counties have since declared themselves Second Amendment Sanctuaries in protest of gun-control measures that include the red flag law.

Is it enforced?

El Paso County, where Aldrich is believed to have been living and where both the bomb threat and the Club Q mass shooting occurred, was among the first to deem itself a sanctuary county after commissioners argued the red flag law did not address mental health issues and infringed on people’s constitutionally protected gun rights.

At a news conference this week in the wake of the Club Q shooting, the Colorado Springs Police Department confirmed that in the nearly three years the law has been in effect, it has filed just two petitions with the court to remove weapons. The El Paso County Sheriff’s Office has filed none.

Current El Paso Sheriff Bill Elder openly opposed the law during legislative hearings and the incoming sheriff, current Undersheriff Joe Roybal, has said he will prioritize defending the Second Amendment. Neither has stated directly, though, that they would refuse to enforce the red flag law. Elder at first said deputies would not file ERPO petitions but would carry out any judicial order mandating weapons confiscation. Later he said his office would only file the petitions at the request of family members or under “exigent circumstances.”

Now many residents of Colorado Springs are asking if that culture of law enforcement opposition to red flag laws put them at greater risk.

In Colorado, a petition can be filed in civil court by either a law enforcement agency, a family member or a member of a household who has become alarmed by someone’s erratic or threatening behavior. Often those who go on to commit mass shootings or take their own lives have signaled their intentions in advance, public health experts have said. An arrest does not have to be made for a petition to be filed, nor is the existence of weapons required for a filing.

The court then holds an immediate hearing and if it finds substantial evidence the person poses a significant risk of causing injury or death to his or herself or to others by having a gun, an emergency order is granted for up to 14 days. A second hearing is held within that period to determine if the person is still a risk. At that point, if the court thinks the person is a grave danger it can extend the order for as long as 364 days. Under both the temporary and extended orders, the person must surrender any firearms and their concealed carry permit. Once the protection order expires, all weapons must be returned within three days.

El Paso District Attorney Michael Allen has called the red flag legislation a problem because “it is designed to violate a persons (sic) due process rights and is unconstitutional.

“As DA, I promise that those living in the 4th Judicial District can rest easy knowing that their DA’S Office will not participate in ‘red flag’ confiscations,” Allen wrote in a 2020 campaign post on Facebook.

Overall, there have been 53 extreme risk protection order filings in El Paso County between Jan. 1, 2020, when the law went into effect, to the present, a Colorado Judicial Department official told The Gazette on Tuesday.

The filings include requests for a 14-day temporary emergency order as well as for those lasting a year, the court official said. That means a person could be counted more than once in the numbers.

It is unclear where in El Paso County the petitions came from, who filed them — family member or law enforcement — or how many were granted.

By the numbers

In Denver, between Jan. 1, 2020 and June 30, 2022, there were 86 requests for an extreme risk protection order, according to the state’s judicial department annual reports. During that same time, El Paso County had 44, Jefferson County had 28, Douglas County had 23, Weld County had 12 and Arapahoe County had 11, the annual reports show. Again, it is not clear from the court statistics how many requests were granted.

An investigation by The Gazette last year showed that judges in the state refused requests about 40% of the time during the law’s first year.

Statewide, there have been 344 total petitions for extreme risk protection orders filed since the law’s inception through Sept. 28, according to state judicial records reviewed by The Associated Press. That includes both temporary and extended petitions.

That puts Colorado in the bottom third of the 19 states and District of Columbia in usage of the law, the AP study found. Colorado had just 3.3 gun surrender orders per 100,000 people. By comparison, Florida had 10 times more, AP reported.

Christopher Knoepke, an assistant professor at the University of Colorado School of Medicine, who has studied red flag laws both in Colorado and nationwide, worries the state law is a valuable tool that is being underutilized.

He said his research found that in its first year there were 109 ERPO petitions filed in Colorado. In 2021 there were 144, and as of Aug. 1 of this year there have been 69.

“We can assume there were more than 144 people who might have an acute crisis across the state,” he said of the 2021 numbers.

Researchers have found that the laws can be effective at potentially staving off mass shootings. A University of California-davis study published in June in the Injury Prevention journal found that in California during the first three years of that state’s gun violence restraining order law, 58 cases involved mass shooting threats. Such threats are defined as planning to shoot three or more people.

Six of those cases involved minors, all of whom targeted schools, the research found. Of those who had firearms confiscated, about 30% were an assault-type weapon.

The situation is similar in Colorado where Knoepke said an analysis of the first half of 2020 petition requests revealed six that involved threats to shoot three or more people.

He and other researchers caution, though, that the law is far from a cure-all. Awareness remains lacking among both the public and law enforcement. People can and do slip through the cracks.

For instance, the law took effect in Illinois in 2019 but as Mother Jones reported in July, it did little to prevent the shooting rampage in Highland Park during a Fourth of July parade. The gunman had previously talked of killing himself, had attempted suicide and threated to “kill everyone” in 2019 after which authorities did seize some knives. But he was able to later obtain a cache of weapons used to kill seven people and wound 48.

In fact, only one county in Illinois filed more than two extreme risk protection orders per year in 2019 and 2020, the magazine reported based on information from the Illinois Criminal Information Authority.

Similarly, New York’s red flag law, also passed in 2019, did not stop the shooter in May from killing 10 Black people in a Buffalo supermarket. In that case, the suspect had said he wanted to commit a murder-suicide at his high school when was 17. He underwent a psychological evaluation and was referred to the police but no action was taken. After he turned 18, he was able to legally obtain the weapon he used in the massacre.

‘Only be as good as people are able to use it’

Back in Colorado, it remains unknown if the accused shooter at Club Q possessed any weapons during the 2021 bomb threat. But a woman who owned the house at the time provided The Gazette video footage from a Facebook posting that shows the suspect in that case dressed in body armor and holding an assault-type weapon and a handgun on a bedroom mattress.

Club owners have said the man who stormed in just before midnight Saturday was dressed in body armor and opened fire with a “long rifle.”

State leaders this week have vowed to encourage more use of the law in reaction to this latest shooting. Gov. Jared Polis and Attorney General Phil Weiser agreed: The law remains as effective as its use.

“Extreme Risk Protection Orders can save lives when utilized and we need to do more to ensure that these orders are used when needed to prevent self-harm and violent acts against others,” Polis told Colorado Politics through a spokesperson.

“This red flag law will only be as good as people are able to use it,” Weiser told Colorado Politics days after the Club Q attack. “My judgment is our red flag law is an effective and important tool, and the real limiting factor is a lack of awareness and comfort in using it.”

Key, he said, is to ensure law enforcement recognizes its benefit and makes use of it.

“We need to make sure that all law enforcement agencies understand this tool, see its value and use it appropriately,” Weiser said.

And although Douglas County is among the Second Amendment Sanctuaries, Sheriff Tony Spurlock has been a supporter of the law from its beginning.

His department has used it five times to confiscate the weapons of people who were making serious threats, he said.

“I can today give you give solid examples of how it has worked,” Spurlock told The Gazette in an interview Monday. “All five of them are still alive today and all of their families are still alive today.”

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2022-11-27T08:00:00.0000000Z

2022-11-27T08:00:00.0000000Z

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The Gazette, Colorado Springs