On narrow legal grounds, a Denver district court judge dismissed a challenge to Colorado’s 2019 “red flag” law, finding that there was no question of a Second Amendment violation, but rather a “political question” about legislative rules.
The law establishing extreme risk protection orders allows a court to temporarily remove a person’s firearms if they post a danger to themselves or others. Known as the red flag law, conservatives derided it as unconstitutional and some sheriffs indicated that they might abstain from enforcing it.
During the second reading of House Bill 1177 in March 2019, Reps. Dave Williams, R-Colorado Springs, and Lori Saine, R-Dacono, asked for the bill to be read in its entirety. The debate chair ruled that both requests were improper. Williams and Saine, who were plaintiffs on the lawsuit along with House Minority Leader Patrick Neville, R-Castle Rock, and Rocky Mountain Gun Owners, claimed that the House violated the constitutional requirement to read bills “at length” unless there was “unanimous consent” to waive the reading.
“The Plaintiffs do not bring this action as an alleged violation of their right to bear arms,” wrote Judge Eric M. Johnson. Instead, “this matter presents only a narrow, legal issue: Allegations that the House violated the State constitution by the manner in which it passed HB 19-1177.”
Johnson explained that the state Supreme Court has held that the judicial branch can hold officials accountable for their noncompliance with specific procedures outlined in law. However, “when the constitutional requirement can be complied with in a number of ways, our task is to determine whether the method actually chosen is in conformity.”
The judge did not find it appropriate for a court to review the events leading up to the alleged constitutional violation and “substitute its ruling for the Chair’s.” Asking a presiding officer to explain his or her rulings in front of a judge would show “disrespect” to the legislative branch, Johnson decided.
More precisely, Johnson wrote that the mere allegation that two representatives made requests for a parliamentary ruling were not proof of a constitutional violation.
Johnson briefly mentioned Cooke v. Markwell, another 2019 court case arising from Democratic Senate leaders’ employment of a variety of tactics to speed up the reading of bills, including multiple computers reading aloud at a rapid, unintelligible pace. Republican senators had requested the full-length reading of a bill in excess of 2,000 pages to slow down the legislative process.
In that instance, Judge David H. Goldberg ruled that the Democrats’ tactic was a constitutional violation of the unanimity clause, and directed the Senate to “employ a methodology that is designed to read legislation in an intelligible and comprehensive manner, and at an understandable speed.”
In contrast to that case, where the constitutional requirement to “read” a bill was likely implicated by the Senate’s actions, the red flag matter was a question of “legislative authority and prerogative.”
“As this case is not about whether or not the House fulfilled specific constitutional mandates, but rather about the manner in which the House fulfilled it [sic] obligations to the constitution,” Johnson concluded, he dismissed the lawsuit as a “nonjusticiable political question.”
After the suit was filed in 2019, House Majority Leader Alec Garnett, D-Denver, said that “This is not about what happened on the floor. This is about the gun lobby trying to unwind a very popular measure to help protect and save lives here in Colorado.”
The red flag law went into effect on New Year's Day.
Saine on Wednesday said that the plaintiffs will appeal. "Just because this court wants to punt the issue doesn't change the Colorado constitution," she said, adding that Johnson, in her opinion, disregarded "the instruction of the Colorado Supreme Court that the legislature must follow the state constitution."
The case is Rocky Mountain Gun Owners et al. v. Jared Polis.