House Bill1177 better known as the “red flag” law became the law of Colorado on January 1, 2020 and, with amendments, remains the law today. The law allows a law enforcement officer or agency to request an Extreme Risk Protection Order (ERPO) from a judicial officer by filing a petition alleging the respondent, as defined in the statute, “poses a significant risk of causing personal injury to self or others by having in his or her custody or control a firearm or by purchasing, possessing, or receiving a firearm” along with other requirements. If the court grants the ERPO, the respondent must surrender all firearms for a period of 364 days.

The red flag law has been the topic of much debate surrounding the Second Amendment. Numerous articles have been published in Colorado Politics expressing various opinions. One such article by George Brauchler, a former district attorney, on June 9, condemned the victims (although pretending to be sympathetic to them but horrified by their attorneys) of the Club Q massacre for seeking monetary damages from the El Paso County Sheriff’s Office for not trying to block the Club Q killer from buying guns before the attack. The legal action was based on facts known about the killer from an incident in June 2021, when he allegedly threatened to detonate a bomb and kill his grandparents in his quest to become “the next mass killer,” which he accomplished in November 2022.

Brauchler, puts forth the legal arguments that will probably be advanced by the sheriff’s office, which he believes will be resolved in favor of the sheriff’s office. He may well be right but only time will tell. He claims that the “lawsuits are not about justice. These lawsuits are about money for lawyers.” He then goes on to provide excuses for Sheriff Elder’s ineptitude and flagrant disregard for the law, which is the elephant in the room.

Recall that Elder is on record saying he would not enforce the red flag law because, in his opinion, the law was unconstitutional. Suffice to say his opinion was wrong and, to this day, the law has the full force and effect of a duly enacted law.

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In a previous article I suggested that failing to obey the red flag law might place El Paso County and other counties who declared themselves to be sanctuary cities – see Weld County – in financial peril. That day is before us with the filing of the victims’ lawsuit.

What’s missing from Brauchler’s article is any hint that Elder’s refusal to acknowledge and enforce the red flag law should be widely criticized as a rejection of the rule of law, which is essential to our system of government. Interestingly, Brauchler was finally able recently to admit that even former presidents are not above the law. But sheriffs are?

Unfortunately, it is usually the victims who get the short end of the stick. In this case, the county might escape liability but the real question that should be considered is what should be the consequences if a sheriff intentionally refuses to enforce the law as Elder did and the refusal resulted in death or injury.

One suggestion might be that the legislature enact a law that immunity does not apply when a sheriff has openly refused to enforce the law, remove any statutory limits on a favorable judgment for the plaintiff(s) and perhaps consider the imposition of treble damages and attorney fees. If the community is willing to elect a sheriff with utter disdain for the law it must also be willing to accept the consequence of such disdain.

Of course, the taxpayers will be the ones who will foot the bill. Justice would certainly not be served if the victims went uncompensated because of the unwillingness of law enforcement to enforce the law, which they have sworn to uphold.

Dennis Maes served 24 years as a 10th Judicial District judge in Pueblo and was chief judge for 17 of those years. He previously served as director of Pueblo County Legal Services, Inc.; as a public defender and as an attorney in private practice.