Lawsuit challenges Colorado's red flag law

Opponents say measure was passed unconstitutionally

Posted 5/2/19

A leading pro-gun organization says Colorado's red flag bill signed into law less than a month ago was not passed in accordance with rules laid out in the state Constitution — and they're taking …

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Lawsuit challenges Colorado's red flag law

Opponents say measure was passed unconstitutionally

Posted

A leading pro-gun organization says Colorado's red flag bill signed into law less than a month ago was not passed in accordance with rules laid out in the state Constitution — and they're taking that argument to court with the hope a judge declares the law void altogether.

Rocky Mountain Gun Owners, along with House Minority Leader Patrick Neville, R-Castle Rock, and state Reps. Lori Saine, R- Firestone, and Dave Williams, R- Colorado Springs, are plaintiffs in a lawsuit Rocky Mountain Gun Owners filed in Denver District Court on May 2. Gov. Jared Polis is listed as the sole defendant.

“Democrats used illegal and unconstitutional tactics and methods to push a bill that would remove due process rights of our citizens,” said Rocky Mountain Gun Owners Executive Director Dudley Brown. “If a judge agrees with us, the Constitution will throw this law out and effectively kill the red flag bill.”

Article V, Section 22 of the state Constitution governs the reading of bills, said the group's attorney, Barry Arrington, adding that House rules require if there is not unanimous consent from legislators to waive the full reading of a bill, it must be read at length.

“If any of the 100 legislators stands up and says, 'Read this bill at length,' it is absolutely mandatory that the bill be read at length. There is no wiggle room. There is no compromise,” Arrington said.

The group alleges that requests from Saine and Williams to read the full bill were not granted, violating their Constitutional rights and making the law invalid.

“I think what you're seeing right now shouldn't be a surprise. When Democrats offered this bill, it was unconstitutional on its face,” Williams said. “It shouldn't be a surprise that they tried to pass it in an unconstitutional way.”

Neville estimated reading the bill in its entirety could have taken two hours or longer, but Brown said the time to read it “doesn't really matter” when the Constitution required that happen after Saine and Williams asked it be read.

Arrington refuted characterizing the lawsuit as being rooted in a “technicality,” saying the Constitution is not a technicality.

Reached from the House floor on May 2, one of the bill's House sponsors, Rep. Tom Sullivan, D-Centennial, said he had not yet heard the details of the group's lawsuit but that opponents have the right to challenge the law.

"I stand behind the bill," he said. "It's constitutional. It's been vetted. The attorney general has looked it over. I'm confident with what we did. This is America. They have their opportunity."

The Senate sponsor, Brittany Pettersen, D-Lakewood, called the Rocky Mountain Gun Owners one of the most radical gun groups in the state, saying they're out of touch with Colorado residents.

"Our attorney general will be prepared for that (lawsuit)," she said. "I think it's interesting they're trying to go after a process question here when their argument was that it was unconstitutional."

House Majority Leader Alec Garnett, D-Denver, released a statement following the announcement of the lawsuit.

"This is not about what happened during the debate — this is about the gun lobby trying to unwind a popular measure to help save and protect lives in Colorado," he said. "Throughout the entire debate, no one approached me about the issue they are raising in their lawsuit. We have been extremely respectful of the rights of the minority party and this bill was respectfully debated in the House."

Both Pettersen and Garnett pointed to the recent closure of schools across the metro area when 18-year-old Sol Pais traveled from Florida to Colorado, spurring a massive manhunt. Authorities believed she was infatuated with Columbine and discovered she procurred a weapon immediately after arriving in the Denver metro area. The incident is a prime example of why the Extreme Risk Protection Order is needed, Petterson and Garnett believe.

While the challenging group believes the bill was passed improperly, they also maintain the law itself violated due process and the Constitution.

Brown promised more lawsuits could come and that this would not be the organization's only approach to challenging the controversial legislation should the suit fail. The law is scheduled to go into effect in January.

Recall efforts spurred by the bill of more than 10 legislators in both the House and Senate remain underway and will not stop because of this lawsuit, Dudley said.

Dudley told Colorado Community Media the Rocky Mountain Gun Owners have also spoken with citizens planning to recall Douglas County Sheriff Tony Spurlock and will get involved with that campaign “if time and resources permit.”

Spurlock, a Republican sheriff in a largely Republican county, has been a vocal advocate of the bill and received backlash for his unwavering support of Extreme Risk Protection Orders. Dudley said Douglas County sheriffs have a history of being “weak” on the Second Amendment, and that Spurlock's support of H.B. 19-1177 “set a new low bar.”

Spurlock declined to comment on both the Rocky Mountain Gun Owners' lawsuit and Dudley's remarks, although a sheriff's office spokeswoman said he “feels very passionate about his part in the bill process and he will continue to fight for what he believes in and for those that are in need of mental health resources/support.”

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