Coloradans asked judges to remove certain people from their weapons under the state’s new red flag law an average of about twice a week last year, though the petitions were relatively rare in the Aurora region, data show.
A report issued by Attorney General Phil Weiser’s office last week detailed the 111 temporary and extreme risk protection orders related to 99 unique cases sought across the state in 2020, lauding the new law’s benefits but underscoring the meager adoption in its first year of implementation.
“The extreme risk protection orders outlined in the red flag law are a vital tool in Colorado’s commitment to gun violence prevention,” Weiser said in a statement. “Expanding our education, awareness, and training efforts on the protection order process can help save lives.”
In 2020, judges issued a total of 66 temporary orders — barring someone deemed a threat to themselves or others from accessing their firearms for two weeks — and 49 extreme risk orders, which strip a person of their weapons for up to 364 days unless a court intervenes.
The numbers have marginally crept up in the first seven months of 2021, with an additional 27 temporary orders issued and 33 year-long edicts granted through July 15 of this year, according to data provided by the state Judicial Department via an open records request.
But adoption across the state has been sporadic, figures show, with fewer than half of the state’s 64 counties boasting at least one granted temporary order, and only about a third of counties reporting an extreme order.
In the Aurora region, adoption has been equally slow, with only three temporary orders and four extreme orders granted in Arapahoe County, which covers the bulk of Aurora, between Jan. 1, 2020 and July 15 of this year, according to Judicial Department data. Adams County has recorded just one of each brand of order, and Douglas County — which touches a fraction of southeast Aurora — tabulated five temporary orders and eight long-term mandates.
Longtime Douglas County Sheriff Tony Spurlock was one of the few law enforcement officials who lobbied in support of the bill when it wove its way through a contentious legislative process in 2019. The legislation was ultimately named after slain Douglas County Sheriff’s deputy Zack Parrish, who was shot and killed on Dec. 31, 2017 while attempting to place a man on a mental health hold.
Current Douglas County Undersheriff and former Arapahoe County Sheriff Dave Walcher said the Douglas County Sheriff’s deputies have applied for and received at least four protection orders under the law.
“It’s been operating as designed as far as we’re concerned,” he said.
Walcher, who was ousted from the top post in Arapahoe County following the 2018 general election, said he has long been a proponent of red flag legislation, including when initial iterations of the proposal died three years ago. He referenced a case toward the end of his tenure in Arapahoe County in which a man who was ultimately arrested on criminal charges was found to be in possession of multiple long guns and pistols “staged” throughout his home.
Walcher, who joined the sheriff’s office in Douglas County a year ago and has served as undersheriff for about eight months, said he would have pursued an extreme risk protection order against the person eventually arrested in that case if it had been on the books at the time.
“We absolutely would have used it,” he said. “It was a perfect storm, and we’re fortunate that it didn’t end worse.”
Contrary to the rhetoric espoused under the state’s gold dome when the bill, sponsored by Aurora and Centennial state Rep. Tom Sullivan, was debated, the law was seldom exploited, the AG’s report shows, with four instances of impropriety reported.
“When the red flag bill was first presented, there was this fear that there was going to be an overwhelming misuse of this particular piece of legislation,” said Arapahoe County Sheriff Tyler Brown. “And I think we’ve seen through the review process and the judicial review of specific cases that there hasn’t been the overrunning of the civil court system that we initially thought was going to happen.”
One woman was charged with perjury after lying about her familial relationship with a person she was seeking a petition against, and others were rejected for seeking to strip prison guards or entire police departments of their weapons, according to state attorneys.
A handful of additional petitions were denied due to procedural hiccups and vague allegations.
“Courts denied roughly a dozen red flag petitions either because the petition was filed in the wrong county or lacked firearm-specific allegations, or because another law or legal proceeding already prohibited the respondent from possessing firearms, thereby rendering the order unnecessary,” according to the report.
The vast majority of petitions filed in 2020 were initiated by law enforcement, with nearly all of the extreme orders stemming from requests lodged by police.
“Of the more than 30 petitions filed by family or household members, courts granted 364-day orders in only six instances,” the report states.
Brown said he expected deputies and officers to seek the majority of the petitions due to the increased number of calls related to mental health authorities have had to respond to in recent years.
“It makes sense that we brought a majority of the cases that were presented because we usually have the ability to do that deep-dive investigation,” he said. “ … I think most of the time when people are dealing with mental health issues, we become the de facto mental health experts. When we see something that rises to the level of an extreme risk protection order, I think it’s why you’re seeing 85% of the cases filed by law enforcement. We’re getting them, and we’re just taking control of the situation and running it through the judicial review process.”
Brown did not know how many temporary or extreme orders his deputies have sought since the law took effect last year.
Walcher, too, said he wasn’t surprised that law enforcement filed most of the state’s successful petitions.
“I think we’re more successful than John Q. Public, and intuitively that makes sense to me,” he said. “We’re used to having to file cases and to prove cases, and we’re probably better at going in front of a judge and making an argument. We have attorneys behind us to do these things, too.”
Still, Aurora police have only petitioned for one extreme risk protection order in the bill’s first two years of existence, according to Officer Crystal McCoy, spokesperson for the Aurora Police Department. The order was sought in Arapahoe County Court.
McCoy indicated that police don’t always look to the state’s red flag laws to remove a person from their weapons as many people already have existing protection orders entered against them that similarly preclude them from possessing firearms.
“ERPO’s are a moot point when the person involved already has a mandatory protection order in place, which prevents them from possessing firearms,” she wrote in an email. “ … In other instances such as (domestic violence cases) those are already put in place, too, so an ERPO isn’t sought.”
Outside of police, only family members and certain household members are empowered with seeking petitions, a scope that Sullivan, a Democrat, would like to broaden in the future, he told The Sentinel in a recent interview.
“Right now we only have that very narrow grouping of immediate family members who can report this,” he said. “Maybe that should be something we should look at.”
Overall, he lauded the findings of the attorney general’s report.
“(This) report shows we are making change and saving lives,” he said in a statement. “I’m proud to see so many police departments across the state use ERPO as a tool for their service to the community. It is my sincere hope that other departments will see the data presented today and take it as an opportunity to learn more about how they can also use the law to save lives. As the report highlights, the next major step we must take is to improve education and awareness around gun violence prevention, which is exactly what the newly created Office of Gun Violence Prevention is designed to do.”
The office, which is designed to enhance education efforts centered on gun ownership in the state, was borne out of a bill Sullivan sponsored and Gov. Jared Polis signed earlier this year.
Sullivan lamented that a red flag petition was not sought against an Aurora man who engaged in a lengthy shootout with police — and eventually prompted the response of the Arapahoe County bomb squad after investigators found a phony explosive device — outside of his condo in June.
Police and mental health responders interacted with the man, Jeffrey Moralez, some two dozen times in the weeks leading up to the hours-long standoff, though police said nothing — including reports of the man walking around his complex naked while holding a hammer — rose to the level of a protection order. McCoy said officers likely would have pursued an order the week Moralez was eventually arrested, but he menaced police and was apprehended before the process was able to come to fruition.
“The ERPO process is not 24/7 like the criminal courts are, so we do not have access to judges 24/7, they are business hours,” she wrote in an email. “… It takes time and in this case officers only had about six hours to pursue it. However, he commited a crime during the event by pointing a gun at an officer so an ERPO is no longer necessary as a restraining order will go in place.”
There are no fees for anyone seeking to file an extreme risk order, though the legal morass associated with weaving through civil court can cool some people’s intentions, officials have indicated. Weiser’s office acknowledged that most Colorado residents either don’t know about the law or are unable to sort through the sometimes thorny civil county court process involved with filing a petition.
“Many Coloradans are unaware that the red flag law exists, while others, especially individuals who are not members of law enforcement, know of the red flag law, but may struggle to understand and navigate the legal process required to obtain an order,” the report reads.
The attorney general encouraged law enforcement agencies like Denver, where judges have granted 75 extreme and temporary protection orders in the past 18 months, to educate the public on how to initiate the process.
“Law enforcement agencies that effectively used the red flag law during 2020 may be well suited to share their best practices and lessons learned with other agencies,” according to the report. “All agencies benefit from a greater understanding of the various tools and resources – of which the red flag law is only one – available for intervening when individuals credibly threaten to harm themselves or others, and for connecting those individuals with support and treatment services as appropriate.”