The controversial "red flag" measure allowing the court-ordered seizure of guns from people deemed a threat passed the Colorado Senate on Thursday by a single vote.
Senate President Leroy Garcia was the only Democrat to vote against House Bill 1177, which passed by an 18-17 margin in a chamber where Democrats hold a slim majority. Garcia, D-Pueblo, who signaled earlier in the week that he would vote no, joined every Senate Republican in opposing the bill.
The measure now moves back to the House of Representatives, where Democrats hold a larger majority.
The House previously approved an earlier version of the bill, but needs to vote again on Senate amendments before the bill can advance to Gov. Jared Polis for his signature.
Polis has said he will sign the measure.
The measure was given preliminary approval by the Senate on a voice vote late Friday after hours of debate, but final action was delayed until Thursday amid uncertainty over Garcia's vote.
Garcia, who in the past has taken conservative stands on some gun-control measures, revealed his opposition Tuesday to his hometown newspaper, the Pueblo Chieftain.
“I took a hard look at this bill and while I strongly believe in its intent of preventing gun violence, this is simply not the right legislation for the people of Pueblo and southern Colorado,” he told the paper.
“Make no mistake -- as a Marine veteran, I firmly believe that we can work together while respecting the rights of responsible gun owners and addressing the issues at hand. I want to continue working with my colleagues to find a Colorado solution.”
A similar measure last year did have a modest amount of GOP support, although it was defeated anyway, but critics called this year's version more extreme and say it poses a greater threat to Second Amendment gun rights because, in their view, it would make it too easy to seize guns and too difficult for someone to get them back.
But during Thursday's debate ahead of the final vote, Senate President Pro tem Lois Court of Denver, one of the bill’s two prime sponsors, said HB 1177 will save lives and is “totally constitutional."
At one point during Thursday's debate, Democrat Sen. Brittany Pettersen of Lakewood, the bill's other prime sponsor, claimed the bill wasn’t contentious, although about 30 of the state’s 64 counties have vowed not to enforce the bill, which is also been opposed by several elected sheriffs. Recall petitions are being discussed for up to a dozen lawmakers.
“Thank you for fighting against fear mongering,” Pettersen said. “This is widely supported by Coloradans, asking us if we will fight for them or cave to misinformation.”
She added: “It’s unfathomable that this is not already in law." She said the measure is for the woman whose sister died in the Sandy Hook Elementary School shooting in 2012, or for the student who is now part of the “active shooter drill” generation.
Opponents on Thursday spent about four hours decrying what they claim is the lack of due process under the measure for gun owners. They also complained that the bill lacks a process for providing mental health treatment for those whose firearms are seized.
An amendment from state Sen. Jerry Sonnenberg of Sterling, offered during last Friday’s debate, would have struck the bill in its entirety and instead set up a process for ensuring mental health treatment, not dissimilar from an existing state law that allows a person to be placed in a 72-hour mental health hold.
That amendment was not allowed because it did not fall under the bill’s title of “Extreme Risk Protection Order.” That didn’t stop Republicans from continuing to argue for it, or to seek that the bill be amended to include a petition clause that would allow voters to decide the issue.
Senate Minority Leader Chris Holbert of Parker pleaded with Democrats to either amend the bill or kill it outright.
If the measure becomes law, someone can make an accusation, the courts would issue a search warrant, and firearms could be seized without a crime being committed, Holbert said. He also noted that both the Denver and Aurora police unions have come out against the measure in recent days.
According to Colorado Ceasefire, 14 other states and the District of Columbia have similar laws. In two states, the laws have been deemed constitutional. And five Republican governors have signed similar bills into law.
Tom Mauser, a spokesman for Colorado Ceasefire, said in a statement that "ERPO will prevent people who are a threat to the public from causing more tragedies ... It would have been tragic, after listening to all the testimony by victims and survivors, to have this bill fail again.” Mauser's son, Daniel, was one of the students murdered at Columbine High School in 1999.
Under HB 1177, a family or household member or a police officer could ask a court for a "temporary extreme risk protection order," or ERPO, if they can establish "by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody ..."
Under the bill, "the petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist."
Under the ERPO, "the respondent shall surrender all of his or her firearms and his or her concealed carry permit if the respondent has one," the bill says.
If a court agrees to issue a temporary ERPO requiring that weapons be surrendered, "the court must schedule a second hearing no later than 14 days following the issuance to determine whether the issuance of a continuing ERPO is warranted," the bill says. "The court shall appoint counsel to represent the respondent at the hearing. If a family or household member or a law enforcement officer establishes by clear and convincing evidence that 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 may issue a continuing ERPO. The ERPO prohibits the respondent from possessing, controlling, purchasing, or receiving a firearm for 364 days."