CO-04 (Special Election) See Full Big Line

(R) Greg Lopez

(R) Trisha Calvarese

90%

10%

President (To Win Colorado) See Full Big Line

(D) Joe Biden*

(R) Donald Trump

80%

20%↓

CO-01 (Denver) See Full Big Line

(D) Diana DeGette*

90%

CO-02 (Boulder-ish) See Full Big Line

(D) Joe Neguse*

90%

CO-03 (West & Southern CO) See Full Big Line

(D) Adam Frisch

(R) Jeff Hurd

(R) Ron Hanks

40%

30%

20%

CO-04 (Northeast-ish Colorado) See Full Big Line

(R) Lauren Boebert

(R) Deborah Flora

(R) J. Sonnenberg

30%↑

15%↑

10%↓

CO-05 (Colorado Springs) See Full Big Line

(R) Dave Williams

(R) Jeff Crank

50%↓

50%↑

CO-06 (Aurora) See Full Big Line

(D) Jason Crow*

90%

CO-07 (Jefferson County) See Full Big Line

(D) Brittany Pettersen

85%↑

 

CO-08 (Northern Colo.) See Full Big Line

(D) Yadira Caraveo

(R) Gabe Evans

(R) Janak Joshi

60%↑

35%↓

30%↑

State Senate Majority See Full Big Line

DEMOCRATS

REPUBLICANS

80%

20%

State House Majority See Full Big Line

DEMOCRATS

REPUBLICANS

95%

5%

Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
March 27, 2019 11:38 AM UTC

Will Leroy Garcia Scuttle "Red Flag?"

  • 54 Comments
  • by: Colorado Pols

UPDATE: Colorado Public Radio’s Bente Birkeland:

“This bill is supported by an overwhelming majority of Coloradans, and outside of this building, it is not controversial,” said Democratic Sen. Brittany Pettersen of Lakewood, the bill’s main sponsor. “We are going to pass this bill and do what’s right for our law enforcement, domestic violence survivors, our kids who just want to feel safe when they go to school, and the countless family members who have lost someone to unnecessary gun violence.”

She said she’s still confident it will pass its final vote in the Senate, even without Garcia’s support.

—–

Senate President Leroy Garcia (D).

As the Colorado Independent’s John Herrick reports, one of the major agenda items for Democrats in the Colorado General Assembly is in jeopardy after Democratic Senate President Leroy Garcia announced he will vote no on House Bill 19-1177, the “red flag” bill to enact a process for the temporary removal of firearms from people in a mental health crisis:

Garcia’s decision, first reported in The Pueblo Chieftain Tuesday, comes amid threats of recalls targeting Democratic lawmakers in vulnerable seats who support gun control legislation.

“I took a hard look at this bill, and while I strongly believe in its intent of preventing gun violence, this is simply not the right legislation for the people of Pueblo and southern Colorado,” Garcia said in a written statement Tuesday afternoon.

House Bill 1177, which passed the House 38-25 earlier this month, would allow police to temporarily confiscate a person’s firearms if the person is deemed a threat to themselves or others. Since the February 2017 school shooting in Parkland, Fla., over a dozen states have passed similar red-flag laws, also known as extreme risk protection orders…

Democrats control the Senate 19-16. If one more Democrat joins Senate President Garcia and decides to vote against the bill, it will fail.

We’ll try to summarize all of the moving parts in play: the briefest and easiest explanation is that Senate President Garcia remains haunted by the ghosts of the recalls that sacked his predecessor Angela Giron back in 2013. But there’s more to the story than that, in both mitigating and aggravating ways for Garcia personally. Garcia has been consistently less supportive of gun safety laws than many other Democrats, having voted to repeal the state’s 15-round magazine limit in previous years–a position he claims is in line with the will of constituents in Pueblo and Southern Colorado. As Senate President in 2019, Garcia has faced extreme intransigence from the Republican minority as they’ve sought to obstruct majority Democrats, leading to tough calls like the decision to keep the chamber open during the recent “bomb cyclone” blizzard.

This is all happening in the context of a bill that failed in 2018 despite bipartisan lawmaker support–support the bill lost this year, ostensibly due to changes made at the request of law enforcement that opponents say shift the burden of proof to the accused. But despite the gun lobby’s intense campaign against, we’re still talking about legislation that enjoys overwhelming public support. Could an amendment reverting to the 2018 language bring sides back to the table–or at least reveal the bad faith of opponents? Is Garcia pulling a safety valve to forestall another grassroots rebellion from the right by coming out against this bill, or caving in the face of bullying by the gun lobby? Right now there are more questions than answers.

History will record this moment either as an act of leadership, or something else.

We’ll have to wait and see how it ends.

Tweet
Share

Comments

54 thoughts on “Will Leroy Garcia Scuttle “Red Flag?””

  1. Sounds like he's eager to lose to Scott Tipton by ~30k votes. Even if he won, what's he going to do in 2022 when Pueblo (probably) gets tossed into a completely different district?

  2. As noted, there’s probably dozens of questions that could be pointed up here about this . . . 

    . . . here’s my just one:  Why didn’t the Senate President discuss with his party’s bill sponsors his personal and representational misgivings prior to the introduction of this bill?  

    This situation with the Senate President appears to be yet another instance this session where the term “Democratic leadership” is only an unfortunate oxymoron . . . 

  3. I've already expressed my deep disappointment with Senator Garcia, whom I supported and volunteered for when I was in Pueblo. He will be hearing from me.

  5. He can respect his conscience and his district by individually voting “no.” But he can also respect his caucus by not trying to kill a bill which has 18 votes.

    he doesn’t need to become a Mitch McConnell.

  6. The bills problems may go deeper than Senator Garcia's misgivings.  The Denver Police Protective Association came out today against 1177.  And Gov. Polis was pretty evasive when talking about enforcement for the proposed law.  I do wonder if there's at least one other Democratic Senator in a possible swing district who is feeling that an unpopular and possibly un-Constitutional law is worth losing their seat over.

    Getting guns out of the hands of the mentally unstable is a great idea.  Having people stripped of their rights in absentia and being forced to prove their innocence to get them back is a step in the wrong direction imho.

    1. You haven't read the bill, have you?

      The gun owner (respondent) doesn't ever "give up his/her rights". The process is:

      1. Petitioner signs under oath and penalty of perjury* that there is extreme risk because respondent has a firearm, and presents facts and evidence to a court to back this claim.

      2. Court decides on the basis of evidence and facts presented whether to issue a temporary ERPO. (Extreme Risk Protection Order). If an ERPO is issued,

      3. Respondent is asked to surrender firearm(s) and concealed carry permit.

      4. Within 14 days, respondent appears in court, represented by court-appointed lawyer, to accept or dispute temporary ERPO. Evidence is considered; if warranted, the ERPO can be extended for a year. If not warranted, ERPO is discontinued and respondent gets guns back.

      5. If 1 year ERPO is issued, respondent gets one time within that year to petition the court, and show by clear and convincing evidence that he or she no longer poses a danger by possessing firearms.  Court can terminate ERPO, if warranted.If ERPO is terminated, respondent gets guns back.

      6. At end of a year, petitioner can ask the court to extend the ERPO. Again, evidence must be presented. Nothing is taken on hearsay.

      *If petitioner lies or ERPO was found unwarranted, petitioner can be sued for damages and fees.

      All the ERPO process does is put some teeth into a normal restraining order , providing that the dangerous and/or unstable or suicidal person does not have access to firearms for a set period of time,  and expand it to prevent self-harm, as well as harm to others. Nobody's "rights" are taken. ERPO, above all, takes guns out of the hands of dangerous people for a limited period of time. It doesn't exist outside of existing domestic violence and restraining order law, but supplements it.

      It is saying that the petitioners rights to peaceful and safe existence supersede the ownership of firearms, within limits. Life over property.

      If this bill is rejected, it is a signal to all victims of domestic violence that their lives are not valued; that legislators like Senator Garcia are more afraid that AR-toting constituents will show up and yell at him and try to instigate a recall, than that another 800 Coloradans will lose their lives to firearms this year.

      The Giffords Center has a good summary of ERPO law as applied by states and the Federal Government.

      1. thanks for the thorough outline of the bill.

        And have you ever noticed, although there are lots of gun folks opposed to whatever SPECIFIC bill is being debate, they keep saying "it's just not the right approach" for something…. and they never get around to offering anything which IS the right approach.

        2. Pretty much.  There is the constant platitude about needing to address mental health.  Absolutely no suggestions about how.  The only thing they can even suggest is requiring teachers to have guns, which is a demonstrably stupid idea.

      2. Wow, this is a great summary of the bill.  This morning, listening to John Caldera on Ross Kaminsky's show, I had to laugh….he talked about last year's Red Flag bill and how much wose this one is…but as I recall, last year's bill was the end of the Constitution for honest gun folk.  

        The truth is, the GOP will oppose any and all bills that regulate guns.  End of story.  I hope this bill passes and demonstrates its effectiveness in the next 18 months.  I wonder if the sheriffs who say they won't enforce this bill, have considered how badly they will look, the first time they refuse to remove guns from a killer and someone dies.  

    2. Do you consider a mandatory no bail hold (until a first appearance) on an accused Domestic Violence charge to be "stripping their rights in absentia"?  

  7. It effectively allows a court to order the removal of a persons property in absentia, and requires that person to then prove their innocence.  It also doesn't allow an appeal to a separate court.  It also has no set means of notification that a person is supposed to turn over their firearms.  Will this be done by court served papers or a law enforcement agent kicking in a door?  Or anything in between?  It's a badly written law.

    1. So you would support the law if those minor details were hashed out? I doubt it. I get the sense you're looking for excuses not to support it. I'm sure your lovely gun collection is grateful for the tender consideration. The neighbor lady living in fear of her mentally ill but well-armed partner, not so much.

      The bill requires the state court administrator to develop and

      prepare standard petitions and ERPO forms.

      This is standard practice. They never develop the forms and exact methods of delivery within the bill text. Police departments will have to develop their own procedures for delivering notice. Of course delivery of notice would be prompt, formalized, with multiple ways of documenting receipt.

      1. I would be willing to support the bill if the accused party were able to be present to present their defense at the initial hearing.  This would also allow the court to have proper law enforcement present to proceed with the accused if the court finds that the removal of firearms is necessary.  It's safer all around.  I would also like a provision that if upon further review the removal of firearms was not necessary and or improper, that the return of firearms to the proper owner not need a background check as it currently stand under law, or the fees for the check be waived.  That removes an unnecessary burden from those improperly accused.

        1. Defendants are not present for initial Temporary Protection order hearings; they can appear at the next hearing, normally in 14 days.  Why should a gun owner have special rights? 

           

          1. Same re: ex parte temporary restraining orders issued in advance of a full preliminary injunction hearing. It's SOP, and in full accord with procedural due process principles.

              1. Subject to and actually exposed to are two totally different subjects when it comes to testimony during complaints between couples in a domestic dispute.

                1. We're talking about sworn testimony to get a temporary/emergency restraining order.  Where's your evidence that there's a difference between "subect to" and "exposed to"? 

                   

                  1. When it gets to the "he said, she said" testimonies, someone almost always is lying.  Without proof of who it is, it comes down to whoever the judge decides to believe or favors.  I've literally seen judges allow one side of a case an entire morning for their testimony and then tell the other side, "This is taking too long, you've got 10 minutes".  I have little faith in the judicial system to punish liars in such cases.

                    1. So, in your "worst case" scenario, someone could lie (and they'd have to lie about being in fear for their life, not just, "He didn't put the toilet seat down") and the accused would be without their guns for as long as 14 days until their hearing.  And that's an unreasonable time, for you?  

                    2. For some reason Curmudgeon I'm not getting a Reply button to your toilet seat comment.  So I'll reply here.  I've seen more ridiculous things in family court.  And since a TPO removes the firearms already, why does a domestic abuse victim need a second law, if that's all it's about?

                    3. A TPO doesn't remove the firearms "already".  Show me where it says that in every TPO instance. 

        2. You're being unrealistic about the dynamics between abusers and victims. The petitioner must have the ability to make the accusation of threat and request without the respondent present.

          Otherwise she (probably she) won't show up.

          Under 1177, the respondent may appear anytime within the next 14 days, with court-provided legal representation, and argue that the petition is not founded.  I think that you are saying that he (probably he) shouldn't have his guns taken until that happens. Unfortunately, if there is a real threat to the victim's life, this may  seal her fate. Is her life worth less than the gun owner's property rights? You still refuse to answer that question, and it is critical.

          In my experience, gun collectors are far more attached to their firearms than to their supposed "loved ones". There is more emotional investment. Sad but true.

          1. If you're talking about domestic abuse and threats, there is already a law in place that when a TPO is issued, removes the ability of the accused to possess firearms, why do you need another?

            Your experience with gun owners must be quite limited if that's what you've taken away from it.

             

              1. There are Federal and Colorado State laws on the books in regards to that.  And yes that's after a hearing where the accused is supposed to be present.

                18 U.S.C. §922(g)(8); vea, por ejemplo, United States v. Bunnell106 F. Supp. 2d 60 (D. Me. 2000), aff'd 280 F.3d 46 (1st Cir. 2002.)  

                1. Right.  So, you want the accused abuser there, to be able to intimidate the victim attempting to get a TPO, just so they don't lose their guns? 

            2. The TPO removes the ability of the accused to possess firearms, but, critically, it does not provide a process for taking the firearms from the accused's possession.

              In my own case, with a domestic violence charge and a TRO in place against my ex husband, police were still not willing to confiscate the 40+ firearms in the home. They unrealistically expected him to "surrender" them.

              Luckily, we had neighbors and relatives who were willing to brave possible theft charges and keep the guns. They had no legal footing to do so.  Again, this bill provides that legal process.

              Regarding my experience with gunheads, it is unfortunately, extensive. I was married to one for 12 years. Most of my ex-in-laws also have gun collections. My son does now (he has his dad's guns). I've shot targets – it's fun. I live in a town where, on my way to work, I could walk to the store  and buy sweet feminine pink ammo for the purse gun I don't have. 

              I pawned a shotgun, and went through a background check. It was $10 at that time. Not really that big a deal.  For me, for most women who date men, the possession of an extensive gun collection is a deal-breaker. That man will never be emotionally available to a human being. His heart is committed elsewhere.

              And you still haven't answered my question as to whether in your opinion, the risk to the victim's life is a higher priority than the "right" to uninterrupted possession of firearms.

              2. Hmm, so the TPO doesn't provide a process to remove the guns, just like 1177 doesn't.  So the same LEO's who wouldn't remove you're ex husbands firearms under a restraining order would do so under this type of court order?

                And every person who owns guns that I know would not even have to think if they had to choose between their firearms and their loved ones.

                And I have no problem with removing weapons from those who are proven to be a danger to themselves and others.  I disagree that this bill and the automatic presumption of guilt built into it's mechanisms will do anything in that direction beyond the laws we have now.

                1. Look at the revised text. Section 7, page 7, lines 16-22. There is a process:

                  7) A LAW ENFORCEMENT OFFICER SHALL SERVE A TEMPORARY EXTREME RISK PROTECTION ORDER CONCURRENTLY WITH THE NOTICE OF HEARING AND PETITION AND A NOTICE THAT INCLUDES REFERRALS TO APPROPRIATE RESOURCES, INCLUDING DOMESTIC VIOLENCE, BEHAVIORAL HEALTH, AND COUNSELING RESOURCES IN THE SAME MANNER AS PROVIDED FOR IN SECTION 13-14.5-105 FOR SERVICE OF THE NOTICE OF HEARING WHERE THE RESPONDENT RESIDES.

                   

                2. It's not presumption of guilt.  It's safeguarding a victim. Presumption of guilt would mean permanent confiscation of weapons, not two weeks, until the hearing. 

                  Two weeks.

                  That's two weeks that you think is too much time to be without a weapon when there's a possibility (as determined by a judge) that someone is in danger.  

                  Two. Weeks.  

                   

        3. The revised version of 1177 allows for the respondent to meet with a court "of competent jurisdiction" at the same time as the petitioner petitions for the temporary ERPO. It also provides for service to respondent by law enforcement, and specifies the wording of the statement.

          Would that satisfy you or do you still have more excuses?

          2. I could only find one reference to "a court of competent jurisdiction" – 

            "IF A PETITION -4- 1177  PURSUANT TO SECTION 27-65-106 IS ALSO FILED AGAINST THE 2 RESPONDENT, A COURT OF COMPETENT JURISDICTION CAN HEAR THAT PETITION AT THE SAME TIME AS THE HEARING FOR A TEMPORARY EXTREME RISK PROTECTION ORDER OR THE HEARING FOR A CONTINUING EXTREME RISK PROTECTION ORDER. "

             – doesn't this refer specifically to a 27-65-106 petition, which is  "Court-ordered evaluation for persons with mental illness"?  

            I'm not sure if it applies to respondents who aren't mentally ill, but still a danger.  I could be wrong. 

            1. I think you're right. That provision for a hearing the same day as the temporary ERPO appears to only apply to respondents who seem to be mentally ill and a danger to themselves or others.

              Which is smart, as suicidal folks need intervention – elderly white males are the highest suicide demographic in Colorado or anywhere – but it doesn't specify when a non-mentally ill respondent can answer the accusations, other than as soon as possible and within the 14 day span.

              The process still is that the petitioner petitions the court. Within 24 hours, the court, on the basis of evidence,  either grants or refuses the temporary ERPO.

              If granted, the respondent gets a visit from law enforcement, who hand him/her the temporary ERPO, ask for his guns,  and give him a notice of hearing within 14 days to see if a permanent ERPO shall be issued. They also give him lists of resources to access for counseling, mental health, etc. The temporary ERPO expires when the permanent ERPO is either issued or denied at the second hearing.

              note: it doesn't say anything about law enforcement breaking down the door and rampaging through the house to take guns. We're talking about voluntary surrender.

              Thinking about my ex, he probably would have kept one or two "fixer-uppers" back, or hidden them. So it's an imperfect process, but still better than no process at all for taking guns away from dangerous people.  

               

    2. Gee, so no-knock warrants are a bad idea, too? And you oppose auto towing as it allows private businesses (backed up by police, if necessary) to remove a person's property without notification?

      1. No knock warrants are a lousy idea.  They get people killed all the time.  And comparing this to removal of an improperly parked vehicle from private property is an apples to oranges comparison.

  8. It's not the right approach

     

    Because the right approach would be more like responsible law abing citizens get left alone, and get to create the laws that they agree to abide by and all intervention, ways, and edpeciespe if it is intrusive , must be after the fact

  9. BREAKING-Senate passed the red flag bill! Polis will sign it.

    So now, expect wailing and weeping and gnashing of teeth, proclamations of DOOM and mass confiscation of personal guns. And if Colorado's experience runs true to form for other states that have passed ERPOs, there will be very little impact on gun ownership, and only, perhaps, a few dozen lives saved.

    Good job, legislators (except for Senator Garcia – later for you, schmuck). You did the right thing.

Leave a Comment

Recent Comments


Posts about

Donald Trump
SEE MORE

Posts about

Rep. Lauren Boebert
SEE MORE

Posts about

Rep. Yadira Caraveo
SEE MORE

Posts about

Colorado House
SEE MORE

Posts about

Colorado Senate
SEE MORE

207 readers online now

Newsletter

Subscribe to our monthly newsletter to stay in the loop with regular updates!