While it may come as a surprise to no one who lives in the Roaring Fork Valley, Pitkin County and Garfield County have diametrically opposite views of the state’s new red-flag gun law.
“I’m in a minority among our sheriffs, but I happen to think it’s a good thing,” said Pitkin County Sheriff Joe DiSalvo. “If there’s any sign of violence related to mental illness, then we should protect others.”
Garfield County Sheriff Lou Vallario said he lobbied against the law from the beginning and prompted Garfield County commissioners to pass a resolution in April declaring the county a Second Amendment “preservation county.”
“I oppose it,” Vallario said. “I don’t like the fact that … it puts law enforcement in a position to take away someone’s guns without due process.”
The law, which takes effect Jan. 1, allows a law enforcement officer or a family member to petition a judge to take guns away from a person exhibiting troubling or dangerous behavior toward themselves or others. The petitioner must present evidence of the threat, which can lead the judge to take the weapons for 14 days.
After 14 days, the court must schedule a hearing to address continuing the seizure for a year.
The person whose guns were taken can petition the court to return them once during the yearlong seizure if it is granted. Noncompliance with the law, named after a Douglas County deputy killed while responding to a domestic dispute, is a misdemeanor crime.
Vallario said his main problem with the law is that a judge is left to decide if a person is competent to possess guns without the involvement of a mental health professional. That is not the case, for example, when a person is deemed incompetent to stand trial in Colorado, which is determined by state psychiatrists, not a judge, he said.
The red-flag law also doesn’t provide money or direction for treatment or crisis intervention and puts law enforcement officers in a dangerous position if someone refuses to relinquish their weapons, Vallario said.
In his opinion, the law violates both the Second Amendment and the Fourth Amendment, which guards against unreasonable search and seizure.
“There’s no due process and it can violate someone’s constitutional rights,” Vallario said.
DiSalvo, on the other hand, said he doesn’t think the Second Amendment applies and that the red-flag law is all about community protection.
“I have a hard time (connecting) the red flag law with the Second Amendment,” he said. “I think there should be a firewall like this.
“If someone is clearly demonstrating violent behavior or mental illness, take away their guns until they’re deemed safe. But in the meantime, you have to protect people who might be affected by (the possible gun violence).”
DiSalvo said he thinks that anyone who falls under the red-flag law would likely already be covered by state mental health laws that allow law enforcement to take someone into custody so they can be examined by mental health professionals at a psychiatric hospital. If that happens, it would make it easier to seize guns owned by the person, he said.
While Garfield County commissioners declared their support for the Second Amendment in their April, nonbinding resolution, Pitkin County commissioners have been silent on the subject of the red-flag law.
And while some Colorado sheriffs and counties have refused to enforce the red-flag law and declared themselves “Second Amendment sanctuary counties,” Vallario and Garfield County haven’t gone that far.
“I won’t defy the law,” he said. “It’s a lawful law and I will comply with it.”
How exactly that happens, especially when a person refuses to give up their guns, is another story.
“We’ll comply with it, but how we do that is the interesting thing,” Vallario said. “There are ways we will handle it based on the situation.”
And that, in a nutshell, was essentially the legal advice dispensed by the Colorado Attorney General’s Office last week.
“It’s up to each law enforcement agency to determine how to respond to an individual who refuses to surrender a firearm,” a spokesman for Attorney General Phil Weiser told The Colorado Sun on Tuesday. “It would likely depend on the factors of each case and available resources.”
The advice was in response to a model red-flag law policy issued last week by the Colorado Peace Officer’s Standards and Training Board, which provided no guidance on what to do if someone refuses to give up their guns.
Jeff Cheney, 9th Judicial District Attorney, said that while he understands the impetus for the law, he, like Vallario, is bothered by a perceived lack of due process.
“It’s a concern rooted in trying to protect the community,” Cheney said. “I do believe in a person’s right to bear arms and when you seek to deprive someone of that, you need due process.”
However, Cheney’s office won’t be charged with enforcing the law because it is civil, not criminal, he said.
Aspen City Attorney Jim True, who would provide legal advice on the law to city officers, said he believes the red-flag law is meant to protect communities and that it is a legal law. It is governed by the same U.S. Supreme Court precedent that allowed the Aspen City Council to recently ban guns in city buildings, he said.
“From a legal process standpoint, (the red flag law) is relatively simple,” True said. “But from an actual execution standpoint, I don’t really have any comment about it.”