Dolores County Second Amendment "Sanctuary County"
On Tuesday morning, March 12, 2019, during a special meeting held by the Dolores County Board of County Commissioners, Resolution No. 3-19-01 was signed and then subsequently recorded to declare Dolores County a Second Amendment "Sanctuary County". (See language below)
The development and approval of the Resolution came in response to what is also known as the 'Red-Flag Bill" - Democrat-sponsored House Bill 19-1177 that passed the Colorado House on March 4, 2019.
The proposed legislation awaits passage in the Colorado Senate, and is moving to its first Senate Hearing on Friday, March 15, 2019, and will be refered to as SCR 357 at adjournment.
If the proposed legislation passes, it would then move along and await the signature of Governor Jared Polis, potentially placing the bill into effect as early as January 1, 2020.
Dolores County joins, at the time of this article, thirteen Colorado counties who have passed similar measures.
In a press release dated March 4, 2019, a supporter of the 2018 version of this bill, Chaffee County Sheriff, John A Spezze stated that he could not support HB 19-1177. Spezze stated, "As I looked at the bill the first thing that was obvious was the fact that if we encounter a person in crisis there are provisions to seize weapons, however there is no funding for any additional mental health resources. We have now done a great disservice because we have once again fallen way short of providing the much needed help to persons in mental health crisis. We may have just stirred the pot more. "
What is the "Red-Flag Bill"?
This proposed legislation would allow law enforcement and household members the ability to make an ex parte petition to the court for the removal of a person's ability to purchase, receive, or have in their possession, any firearms based on the petitioner's belief that the person is a danger to themselves or others. This action is defined as an Extreme Protection Order (ERPO) , and once petitioned, the court would hold a hearing that day or the very next day in order to be in compliance with the proposed law.
If the Court approves the ERPO, the respondent would be required to surrender all of their firearms to law enforcement or to a licensed FFL dealer. If the firearms are considered by law to be antiques, relic, or curio, then it would be allowed by law to surrender those particular firearms to a family member, provided they are legally eligible to possess them.
A second hearing, scheduled by the court no later than 14 days following the issuance of the ERPO, is set for the purpose of determining whether the initial order should be continued. At that time, the respondent can appear with their own or court provided counsel while the original claimant then can present evidence to support that the person is a risk to themselves or others. If continued, the ERPO would be in effect for 364 days.
During the 364-day ERPO, the respondent can petition for a termination of the ERPO. At which time, the responding would present evidence that there is no longer a risk to themselves or others. If the evidence convinces the court, the ERPO can be terminated prior to the expiration of the order.
Dolores County Commissioners and Their Stance
Though the Resolution does state that Dolores County is a Sanctuary County relative to the Second Amendment of the Constitution, Attorney Dennis Golbricht in his summarization of the Resolution clarified that this Resolution should not be looked at only as a "gun grab" issue. The language is there primarily to make clear that Dolores County places a very high priority on the Second Amendment, and is not their intent to "second guess" the Sheriff and the discretionary actions afforded to that office to promote public safety. The Dolores County Commissioners are in full support of the actions of the Sheriff.
Dolores County Sheriff Don Wilson and His Stance
Sheriff Don Wilson stated that, as it stands, this proposed measure does not solve the mental health epidemic that is in this state and throughout the country. Wilson cited that this proposed measure not only infringes on the Second Amendment of the Constitution, but also the infringement of the Fourth and Fourteenth Amendments of the Bill of Rights.
If this measure becomes a law, Wilson stated that rather than enforce an ERPO, he would seek out a remedy that would encourage the sound judgement of a trained behavioral health professional, such as is done with an "M-1 Hold". According to Sheriff Wilson, the proposed legislation is a repeat of what is already in place.
Dove Creek Mayor and the Town of Dove Creek's Stance
During the meeting, it was mentioned that the Sonny Frazier, Town Manager of the Town of Dove Creek delivered a letter of support in the Dolores County Sheriff. Prior to the meeting, Mayor Brett Martin also reached out to the Dove Creek Press to state in reference to the Commissioner's Resolution that "Our stance as a town board is to support that resolution."
M-1 and M-.05 Emergency Holds
In Colorado, and M-1 hold is a form of emergency hold and evaluation in accordance with CRS Title 27 and recommended by Colorado Department of behavioral Health that can be recommended by Colorado Law enforcement, Licensed Professional Counselors, Licensed Social Workers, Doctors and Nurses, often with the aid of information from the family. This hold can be up to 72 hours and is intended to focus on those that are displaying indications that they are an imminent threat to themselves or others.
Effective June of 2018, the Involuntary Transportation Hold, also known as the "M-0.5" was created. The Fact Sheet for this emergency hold states: "Pursuant to 27-65-105(1)(a)(I.5), C.R.S., the Involuntary Transportation Hold is an initial intervening step to get an individual in a mental health crisis, who will not go voluntarily and does not clearly meet 72-Hour Hold criteria (imminent danger to self or others, or gravely disabled) from the community to a facility with crisis walk-in services that will then screen for the need for a 72-Hour Hold."
DOLORES COUNTY RESOLUTION NO. 3-19-01
A RESOLUTION BY THE DOLORES COUNTY BOARD OF COUNTY COMMISSIONERS, DOLORES COUNTY, COLORADO, DECLARING THAT ANY ATTEMPTS AT ADDRESSING THE POSSIBLE DANGER ASSOCIATED WITH POSSESSION OF FIREARMS BY PERSONS SUFFERING FROM BEHAVIORAL (MENTAL) HEALTH ISSUES SHOULD BE VIEWED AND ADDRESSED AS A PUBLIC HEALTH ISSUE, WITH IDENTIFICATION, EVALUATION AND APPROPRIATE SERVICES THE FIRST AND PRIMARY FOCUS, AND CONSIDERATION OF ANY POSSIBLE INFRINGEMENT UPON SECOND AMENDMENT RIGHTS ONLY AS ANCILLARY TO THE PRIMARY FOCUS AND ONLY IN EXIGENT CIRCUMSTANCES AND NARROWLY TAILORED AFTER DILIGENT APPLICATION OF THAT PRIMARY FOCUS
WHEREAS, §30-11-101, C.R.S. provides that counties have the authority to adopt and enforce ordinances and resolutions regarding health, safety, and welfare issues; and
WHEREAS, §30-11-103, C.R.S. provides that the powers of a county as a body politic and corporate shall be exercised by a board of county commissioners; and
WHEREAS, the Board finds that making appropriate mental health and substance abuse services available to all persons, and should be part of the primary focus of any attempts at preventing the possible dangers of firearm possession by persons suffering from mental health or substance abuse issues; and
WHEREAS, the Board finds that identification and evaluation of persons in need of mental health or substance abuse services, along with locating said services, should also be part of the primary focus of any attempts at preventing the possible dangers of firearm possession by said persons; and
WHEREAS, the Board finds that any attempts at possible infringement upon Second Amendment rights initiated with the claimed goal of addressing the possible danger associated with possession of firearms by persons suffering from mental health or substance abuse issues, should be pursued only as ancillary to the primary focus stated above and only in exigent circumstances and narrowly tailored after diligent application of that stated primary focus; and
WHEREAS, the Second Amendment to the United States Constitution, adopted in 1791 as part of the Bill of Rights, protects the inalienable and individual right of the people to keep and bear arms; and
WHEREAS, the Supreme Court in the District of Columbia v. Heller, 554 U.S. 570 (2008), decision affirmed an individual's right to possess firearms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home; and
WHEREAS, the Supreme Court in McDonald v. Chicago, 561 U.S. 742 (2010), affirmed that the right of an individual to "keep and bear arms," as protected under the Second Amendment, is incorporated by the Due Process Clause of the Fourteenth Amendment against the states; and
WHEREAS, the Supreme Court, in United States v. Miller, 307 U.S. 174 (1939), opined that firearms that are part of ordinary military equipment, or with use that could contribute to the common defense, are protected by the Second Amendment; and
WHEREAS, Article II, Section 3 of the Constitution of Colorado provides that all "persons have certain inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness"; and
WHEREAS, Article II, Section 13 of the Constitution of Colorado provides that the "right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question"; and
WHEREAS, Article II, Section 11 of the Constitution of Colorado provides that no "ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation... shall be passed by the general assembly"; and
WHEREAS, Article II, Section 7 of the Constitution of Colorado provides that the "people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures"; and
WHEREAS, Article II, Section 15 of the Constitution of Colorado provides that "[P]rivate property shall not be taken or damaged, for public or private use, without just compensation," which the Colorado Supreme Court has indicated includes a legal interference with the physical use, possession, disposition, or enjoyment of the property, including temporarily; and
WHEREAS, it is the desire of the Board to declare its support of the Second Amendment to the United States Constitution and the Colorado Constitution protecting citizens' inalienable and individual right to keep and bear arms; and
WHEREAS, the members of the Board took an oath to support and defend the United States Constitution, the Constitution of the State of Colorado and the laws of the State of Colorado, insofar as they are constitutional; and
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of the County of Dolores by the authority granted the Board by the laws of the State of Colorado and the people of Dolores County, Colorado to stand and defend their rights and liberties, which are guaranteed by the United States and Colorado Constitutions, the Board hereby declares this Resolution to be a Second Amendment Preservation Resolution Designating Dolores County a Second Amendment "Sanctuary County."
BE IT FURTHER RESOLVED that the Board affirms its support for the duly elected Sheriff of Dolores County, Colorado in the exercise of his sound discretion and affirms its resolve to support decisions by the Sheriff regarding enforcement of laws related to the possible infringement of Second Amendment rights.
BE IT FURTHER RESOLVED that the Board encourages all appropriate agencies to take reasonable steps to ensure that there is available to all persons, appropriate mental health and substance abuse services.
BE IT FURTHER RESOLVED that the Board encourages the Sheriff, as well as all other appropriate agencies to adopt the focus of identification and evaluation of persons in need of mental health or substance abuse services, along with locating said services, as the primary focus of any attempts at preventing the possible dangers of firearm possession by persons in need.