Impending legislative proposal to expand Colorado’s red flag law

COLORADO SPRINGS, Colo. (KRDO) -- Legislation is in the works to expand Colorado’s red flag law.

The Violence Protection Act, which went into effect Jan. 1, 2020, allows family, household members or law enforcement officers to petition the court for a temporary extreme risk protection order (ERPO) if “a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm.”

The court can then decide to issue a temporary ERPO, lasting 14 days, or a 364-day order, prohibiting the respondent from possessing, controlling, purchasing, or receiving a firearm.

During Governor Jared Polis’s State of the State Address on Tuesday, he called for the expansion of the red flag law to allow district attorneys to file a petition along with family members and law enforcement.

“We should strengthen Colorado’s Extreme Risk Protection Order law to prevent those who are a risk to themselves or others from getting their hands on a gun,” Polis said during his State of the State Address. “This legislation has been used hundreds of times successfully, but we can do more to spread awareness and make sure it is used when the situation calls for it.”

“Right now, loved ones and local law enforcement have the ability to pursue an extreme risk protection order,” he said. “But why not expand this to include additional petitioners, like District Attorneys?”

The call for change from the Polis comes in the wake of the Club Q tragedy, where some lawmakers have questioned why red flag laws weren't utilized in a previous criminal case against the suspected shooter.

In 2021, suspected Club Q shooter Anderon Aldrich told family members they 'wanted to be the next mass killer' before being arrested by the El Paso County Sheriff's Office for making bomb threats. Deputies charged Aldrich with three counts of kidnapping and two counts of felony menacing. The El Paso County Sheriff's Office took Aldrich's firearms into evidence following his arrest. Aldrich's arrest in 2021 also triggered a mandatory protection order from the courts, barring him from owning and buying guns.

4th Judicial District Attorney Michael Allen previously told 13 Investigates the 2021 criminal case was ultimately dismissed after Aldrich's family refused to testify. When the case was dismissed in court, the protection order expired, allowing Aldrich to buy and own guns again. However, the El Paso County Sheriff's Office never returned Aldrich's guns after the case was dismissed. A month after the criminal case was dismissed, a judge granted Aldrich's request to seal the criminal records. In December, the El Paso County Sheriff's Office said the sealing of the court records prevented the agency from using the case details to utilize the red flag law and petition the court to bar Aldrich from having access to guns.

"The legal ability Aldrich had to acquire firearms following the dismissal of the previous case and the MPO can only be addressed legislatively.  It most certainly is not a situation with which to indict the El Paso County Sheriff’s Office for wrongdoing or inaction in this case," the El Paso County Sheriff's Office previously said.

Now, Democratic state Senator Tom Sullivan of Colorado's 27th district is drafting a red flag law bill to expand the current law to give district attorney's the authority to petition the court too.

Henry Solano, the District Attorney for Las Animas and Huerfano Counties, said he believes he already has the authority to petition for an ERPO, and expanding the law would provide more clarification for DA's throughout the state.

“Rural district attorney's offices are often contacted by either victim of crime or citizens who have concerns about what's going on in the community; because we get those calls, it would be important in this critical area to have the capacity to, with our investigators, perhaps help implement the red flag laws,” Solano said.

The District Attorney’s in El Paso and Pueblo Counties declined to comment on the potential expansion, as no bill has been filed yet. The Colorado District Attorneys' Council said via email, “We are not in a place to comment until a bill is introduced and our board has time to review and discuss.”

But this could change. 13 Investigates learned Colorado’s 27th District Senator Tom Sullivan is working on a proposal to expand the law. He was one of the main sponsors of the original bill.

During the first year of the state’s red flag law being in place, a total of 111 petitions were filed, with 66 temporary orders and 49 364-day orders being issued. In some cases, courts issued a temporary order but did not issue a 364-day order.

A judge must approve all extreme-risk petitions. Dennis Maes, a former judge in the 3rd Judicial District, said expanding the red flag law to include district attorneys is another layer of protection for the public.

“They should be included,” Maes said. “They should be one of the parties that should have access to the law itself when it's pursuing these kinds of cases, particularly when they're intimately aware of the facts involved in the case.”