Colorado Gov. Jared Polis says his state's "red flag" law "could have been used" to prevent the November 19 mass shooting at a gay nightclub in Colorado Springs. "It's really up to the local law enforcement entity how to use it," Polis said during a Face the Nation interview on Sunday. "In cases like this, where somebody can potentially be a danger, and there are signs that they are a danger, we have a legal way to temporarily remove custody of any weapons they might have. And this is an example of a case where it might have been used."
Polis was alluding to a June 2021 incident in which Laura Voepel, the mother of the 22-year-old man now charged with murdering five people at Club Q, reported that he had threatened her with a homemade bomb. The governor said Voepel did not seek an "extreme risk protection order" (ERPO) against her son, which would have barred him from possessing or buying firearms. But since Colorado's red flag law also authorizes police to ask judges for ERPOs, that need not have been the end of the matter. "It wasn't pursued by the local sheriff agency," Polis noted. "I'm sure what will be looked into is why wasn't it pursued."
There are legitimate questions about why the El Paso County Sheriff's Office did not apply for an ERPO in this case. The law's supporters note that Sheriff Bill Elder is a vocal critic of Colorado's red flag law who indicated that he planned to use it sparingly. But even if Elder's office were more inclined to seek ERPOs, it is by no means clear that doing so in this case would have prevented the Club Q shooting. An order against the future murderer would have expired months before the attack unless the sheriff's office or another petitioner successfully sought an extension.
Under Colorado's law, which was enacted in 2019 and took effect at the beginning of 2020, "a family or household member" can seek an ERPO; so can "a law enforcement officer or agency." The court "shall issue" a temporary order, which lasts up to 14 days and does not require an adversarial hearing or advance notice to the respondent, if it finds "by a preponderance of the evidence" that the respondent's access to firearms poses "a significant risk of causing personal injury" to himself or others "in the near future." A final ERPO, which is issued after the respondent has a chance to rebut the allegations against him, requires "clear and convincing evidence" that he "poses a significant risk."
A final order lasts for 364 days unless the respondent successfully seeks to shorten it by presenting clear and convincing evidence that he no longer poses a "significant risk." The order can be extended for up to a year based on a new showing of clear and convincing evidence that the respondent still poses such a risk.
The evidence that a judge considers in deciding whether to issue an ERPO can include "a recent act or credible threat of violence" and an arrest for any of various crimes involving such acts or threats. It looks like the alleged 2021 bomb threat, as described by ABC News, would have qualified under both of those headings.
On the afternoon of June 18, 2021, the sheriff's office said, Voepel reported that "her son was threatening to cause harm to her with a homemade bomb, multiple weapons, and ammunition." Deputies located her son at a house where she was renting a room and contacted him by telephone, but he "refused to comply with orders to surrender." ABC News says "a tactical support unit was called in and approximately 10 homes in the immediate surrounding area were evacuated, while an emergency notification was sent to cellphones of residents within a quarter-mile radius."
The Colorado Springs Gazette obtained a Facebook Live video that the man uploaded during the standoff. "This is your boy," he says. "I've got the fucking shitheads outside. Look at that. They've got a bead on me. You see that right there? Fucking shitheads got their fucking rifles out. If they breach, I'm going to fucking blow it to holy hell. So go ahead and come on in, boys. Let's fucking see it!"
Police eventually persuaded the suspect to surrender, and they found no explosives during the subsequent search. KRDO, a radio station in Colorado Springs, reported that he was charged with two counts of felony menacing and three counts of first-degree kidnapping. But he was not prosecuted, and the arrest records were sealed, as required by state law.
If Voepel declined to cooperate with her son's prosecution, that could explain why the charges against him were dropped. It also would be consistent with the fact that she did not seek an ERPO. But it does not necessarily explain why the sheriff's office did not file its own petition based on what happened that day.
"Law enforcement agencies in appropriate circumstances should…utilize the law," Colorado Springs Mayor John Suthers said last week. But Suthers added that he would "caution against an assumption that the circumstances of this case would lead to application of the red flag law," saying "we don't know that."
In 2019, the El Paso County Board of Commissioners unanimously condemned Colorado's proposed red flag law, saying it "infringes upon the inalienable rights of law-abiding citizens" by authorizing police to "forcibly enter premises and seize a citizen's property with no evidence of a crime." Elder likewise raised due process concerns about the law, saying his office would enforce it only if a family or household member obtained an ERPO or in "exigent circumstances" where "probable cause can be established" that "a crime is being or has been committed."
El Paso is one of 37 Colorado counties that have declared themselves "Second Amendment sanctuaries," meaning they will not enforce gun laws they deem unconstitutional. In those counties, the Associated Press found, just 45 ERPOs were issued in 2020 and 2021, about a fifth fewer per capita than were issued in the rest of the state.
Polis evidently is troubled by such sparing use of the red flag law, and so is President Joe Biden. "The idea that we're not enforcing red flag laws…is ridiculous," Biden told reporters last week. Yet the concerns raised by critics like Elder are valid, given the way these laws, which 19 states have enacted, tend to be rigged against respondents.
Colorado's law is actually better than average in that respect. The state limits temporary orders, which are issued without an adversarial process, to threats "in the near future," for example, and it gives respondents a right to court-appointed counsel when they finally have an opportunity to challenge the claim that they pose a danger. Colorado's evidentiary requirements for both temporary and final orders are stricter than some states have prescribed. Even so, the "significant risk" standard is open to wide interpretation, and the process encourages judges to err on the side of issuing orders, which creates a danger that people will lose their Second Amendment rights even when it is highly unlikely that they would use firearms to harm themselves or others.
That manifestly was not the case with the Colorado Springs shooter. Even without Voepel's cooperation, the sheriff's office might have had enough evidence to obtain an ERPO against him last year. But that does not necessarily mean it would have had enough evidence of a continuing threat to extend the order a year later. At that point, in the usual course of things, he would have been able to recover any guns that were seized. He also would have been allowed to purchase additional firearms.
"Gun control advocates say [the] June 2021 threat is an example of a red flag law ignored, with potentially deadly consequences," A.P. notes. But given that ERPOs expire after a specified term, the story adds, "it's not clear the law could have prevented" the Club Q shooting.
Legislators could try to avoid that problem by authorizing ERPOs that last indefinitely. But time limits are a minimum requirement for any red flag law to pass constitutional muster. Doing away with them would effectively expand the already overbroad criteria that permanently deprive people of their Second Amendment rights. Court orders that were originally justified as temporary responses to temporary dangers would be transformed into lifetime bans.
Like previous mass murders, the Colorado Springs attack illustrates the inherent limitations of red flag laws. To work as advertised, they require that family members or law enforcement agencies with reason to believe someone is dangerous file petitions. But they also require a careful balance between the risk of preventable violence and the risk that innocent people will lose the right to armed self-defense based on erroneous or malicious petitions. Because the former risk tends to weigh much more heavily on legislators and judges, legitimate due process concerns do not get the attention they deserve. Reflexively reacting to horrifying crimes by demanding more use of red flag laws is not likely to improve that situation.