FOX 31’s Rob Low correlated a data point in the renewed debate over gun control in general and Colorado’s extreme risk protection order (ERPO or “red flag”) law in particular: something so significant and troubling that we wanted to make sure it was mentioned in this space.
Supporters of Colorado’s “red flag” law say the measure is more likely to prevent suicides than mass shootings, even though it’s the recent mass shootings in El Paso, Texas and Dayton, Ohio that led President Donald Trump to embrace red flag laws as a way to reduce gun violence.
In Colorado, more than half of the state’s 64 counties have declared themselves Second Amendment sanctuaries opposed to the the red flag law. Many of those counties have the state’s highest gun suicide rates, according to statistics provided to FOX31 by the Colorado Department of Health and Environment… [Pols emphasis]
Counties with large urban populations like Denver and Boulder tend to have lower rates of suicide by gun: 6.5 deaths per 100,000 people in Denver; 8 per 100,000 people in Boulder between the years of 2013 and 2017. However, Custer County averaged 49 gun suicides per 100,000 people over the same time period.
Gun rights proponents often insist that suicides involving guns should be excluded from statistics used by gun control supporters, arguing that because only the perpetrator is harmed in suicide such incidents shouldn’t “count” as according-to-Hoyle gun violence. But the undeniable positive correlation between access to guns and their use in suicides as well as crimes against other people is why ERPO laws permit the removal of guns from persons ruled to be a risk to themselves or others. Suicide prevention is every bit as important as, and in theory more likely to form the basis of ERPO requests than individuals plotting attacks on others.
With respect to the large number of elected county sheriffs who have announced their intentions to refuse to enforce Colorado’s new ERPO law, the high suicide rate in many of these same counties is going to put these politician-sheriffs in a very difficult position after the law takes effect on January 1, 2020. It won’t be long, perhaps a matter of days, before someone who could have intervened in the suicide of a family member is thwarted by a county sheriff who refuses to enforce Colorado law. It’s not a hypothetical. It’s a certainty.
And it’s not something we’d ever want to face the news cameras to explain.
This poses an interesting question that maybe one of our local legal beagles can answer. I know Colorado has a governmental immunity law, but does it protect officials who refuse to enforce the law like Sheriff Big Package? Could sheriffs be sued or even prosecuted when somebody dies after they refused to enforce ERPO?
In not the law should be changed so they can be sued. Their grandstand is gonna have a cost measured in lives.
At minimum, a sheriff who ignored a writ of mandamus could be jailed for contempt. Sudafed is pretty good on basic law, maybe he will weigh in.
The Colorado Governmental Immunity Act (CGIA) provides that "public entit[ies]" (defined to include counties) are wholly immune from civil liability for "injury" (defined to included death) that lies or could lie in tort unless the injury resulted from certain specifically enumerated circumstances. None of the statutory exceptions to immunity apply here, so the county would be immune from liability for any injury or death resulting from Sheriff Needledick's inaction.
A "public employee" (defined to include elected officials) is likewise immune from liability on civil actions that lie or could lie in tort provided that the injurious act or omission occurred within the scope of his employment, unless the act or omission was "willful and wanton." The willful-and-wanton standard requires proof of conscious disregard for the safety of others. Sheriff Needledick's inaction under the scenario you posit arguably qualifies as willful and wanton.
Since the provisions of CGIA are considered jurisdiction, if a public employee files a motion to dismiss, the trial judge has to conduct an evidentiary hearing (a Trinity hearing, in CGIA parlance) and decide for himself whether the employee's acts or omissions qualify as willful and wanton. If the judge says nay, the case is dismissed. If the judge decides in the plaintiff's favor, the case proceeds but the public employee gets a second bite at the liability apple at trial. What's more, the public entity is not vicariously liable for injuries resulting from an employee's willful and wanton conduct (although the entity is free to pay the costs of defending and indemnifying the employee by adopting a resolution to that effect).
CGIA also caps the amount of recovery against a public employee or entity ($350K per person, $900K per occurrence). Thanks to Dem state legislators, the caps are must less severe than they used to be ($150K total), but they're still there.
There's an argument to be made that state civil damages law is unconstitutional as applied to the extent it imposes liability on a sheriff based on refusal to enforce a statute the sheriff considers unconstitutional, but the argument ain't worth a a flying fuck or a weeping pustule on a rat's ass, imo.
CGIA doesn't address criminal liability at all.
Fine rundown, Genghis. We Khan always count on you
I'm not a lawyer … but I'd think a sheriff failing to act on a court ordered ERPO would be in legal jeopardy.
If there is a statewide expectation of "protection from harm" triggered by a court order finding the person poses a danger to self or others, and an sworn officer does not act, seems to me a suicide or homicide would be a "wrongful death" — and the sheriff's office would be liable. I think that's the theory behind prison guards allowing a suicide triggering civil liability that has cost Denver multiple millions in damages.
At the very least, the judges I've met have not been amused when someone does not follow a court order. One or two I've met described some creative responses to those who failed to act.
You're talking about civil liability under federal law, particularly 42 U.S.C. § 1983 and the Eighth Amendment. Federal courts have held that the Cruel and Unusual Punishment Clause requires state and local government to provide medical care for prisoners. Determining whether that duty has been breached is where the "deliberate indifference" test comes in. Obviously, the 8th doesn't apply in the Sheriff Needledick situation.
That's not to say that Sheriff Needledick is utterly beyond "legal jeopardy.” He could still get his tit stuck in the legal wringer in any number of ways. For instance, as V pointed out, punitive contempt is an option.
A former congressman of mine became something of a folk hero when, as a county sheriff, he got locked up for contempt in his own jail. The local economy had collapsed, and foreclosures were rampant. In that part of the world, the last stages of the foreclosure process involve the county sheriff signing a deed transferring title to the new owner. Dudebro refused to sign the deeds, then ignored a court order telling him to sign, then went to jail for contempt. It was all grandstanding of course (the deeds got signed by a court appointee and the sheriff was released immediately thereafter), but he rode the folk hero wave all the way to the U.S. House of Representatives.
The same guy successfully defended himself in a federal criminal prosecution for bribery based on taking a bunch of cash from mafiosi while running for sheriff. He said he took the money with the idea of infiltrating the mob and taking it down after getting elected sheriff. For reasons passing all understanding, the jury bought it and acquitted.
Years later, he was convicted of failing to report and pay taxes on the bribe money. He also got expelled from the House.
The reason the sheriffs don’t want to talk about or enforce the anti-suicide provisions is that the demographic that most often commits suicide by gun is middle-aged white males who have easy access to firearms.
This is a pretty accurate description of their base.
Maybe if they ignore the elephant in the room, it will go away?