Chaffee County Board of Commissioners                    March 26, 2019

As you know HB19-1177, The Red Flag Bill, is currently passing through the legislative process having voted on and approved by the state legislature and is now in the state senate. Approval is expected within the next few days and it will then be on the governor’s desk.

The Red Flag Law provides for a petitioner to ask the court for temporary and eventually permanent orders for a person to be deemed an extreme risk to either himself/herself, to the petitioner or to the public. Also provided in this bill is a mechanism where law enforcement can become involved in the process and ask for a search warrant through an affidavit process seeking to seize weapons that a respondent has in his/her possession, control, may purchase or receive. The bill provides for a hearing process which can be held up to 14 days after the initial hearing with the petitioner where the respondent can plead their case. If weapons are seized the bill allows seizure of weapons for up to 364 days, but a petitioner can request extensions for the ERPO, including the extended period for confiscation of weapons. There appears to be no limit for the number of extensions that may be requested and granted. During this same process the respondent has one opportunity to plead his/her case to convince the court that they are no longer a danger to himself/herself, an individual or the community.

Aside from the fact that there is no funding attached to the bill for mental health resources for persons dealing with mental health issues there are several possible violations to the U.S. Constitution which not only subject all of our citizens to possible civil rights violations it also subjects our law enforcement personnel to undue dangerous situations.

When a petitioner initially identifies a respondent who possibly presents a risk to himself or others a temporary ERPO is issued and a search warrant can also be requested by the law enforcement agency where the respondent resides. All of this can be done without notice to the respondent. Law enforcement then can request a search warrant based on a preponderance of the evidence, our lowest level of burden of proof. Law enforcement can then go search the place identified in the warrant for any weapons that is in the custody or control of the respondent or can be obtained by purchasing, possessing or receiving the same firearms. All of this is done by affidavit based on a preponderance of the evidence as stated above. This search is then civil in nature and does not require probable cause, a much higher standard of proof. After the search the respondent then must wait for a hearing date, possibly another 13 days before they have a chance to face their accusers and learn of the allegations. Their weapons can be seized for an original period of 364 days however this can be extended if the petitioner requests extensions. Due to vague language in the bill it appears that the seizure can be indefinite. During this entire process the respondent has (1) chance to prove to the court that they pose no risk to themselves or others and at which time the weapons can be ordered to be released.

The 5^th and 14^th amendments to the U.S, Constitution guarantee all citizens the right of due process. Throughout the proceedings in the Red Flag Bill there appears to be several areas that violate the respondent’s constitutional right to due process.

The 4^th amendment to the U.S. Constitution protects our citizens from unreasonable search and seizure and it further provides that all warrants shall be based on probable cause.

If law enforcement is to request a search warrant based on a preponderance of the evidence and hearsay is allowed we are asking to search a persons home or business quite possibly on third hand information. How is it possible to rely on evidence that contains third party information. Hearsay is not admissible in criminal court because of reliability issues, how is it any more reliable in this instance. Let alone that a preponderance of the evidence is our lowest form of burden of proof. If we allow search warrants to be issued based on our lowest standard of proof and further allow information to be contained within an affidavit that is based on third party or possibly unreliable information we are exposing our citizens to unreasonable searches and seizures which is a violation of the 4^th amendment to the U.S. Constitution. Then consider the fact that the 4^th amendment provides that all searches be based on probable cause and the Red Flag Bill clearly does not meet this standard this is another violation to a respondents 4^th amendment rights.

Considering the above if these are clearly violations to a person’s 4^th, 5^th and 14^th amendment rights and we have no right to carry out this law then we are also quite possibly violating a person’s 2^nd amendment rights.

When a person considers a preponderance of the evidence process hearsay evidence is allowed. Hearsay is not allowed in criminal proceedings because it can lack credibility however it is allowed here where a person’s home can be entered, quite possibly by force, and have their affects seized for an undetermined amount of time. This not only violates a person’s constitutional rights it exposes our men and women in law enforcement to a very undue risk. We are asking our law enforcement personnel to risk their safety for a search warrant that is based on our lowest burden of proof and maybe rumor and innuendo because hearsay rises to this level. Hearsay is third hand information. It lacks credibility and reliability but is used in this process where we as law enforcement executives are to ask our people to risk their lives and livelihood to enter a person’s dwelling or place of business, exposing this person and our personnel to extreme danger, based on our lowest standard of proof. This bill was drafted to hopefully avoid danger and violence and look what we may accomplish.

There are many other areas in this legislation that clearly lacks definition and is far too broad in scope.

The Chaffee County Board of Commissioners and the Chaffee County Sheriff’s Office has enjoyed a very positive working environment. We have always felt a tremendous level of trust and support from our BOCC and continue to do so.

I now stand here as the Chaffee County Sheriff requesting from our BOCC to consider drafting a resolution to join 30 other Colorado counties in becoming a sanctuary county in regards to HB19-1177. I do so with two very important issues in mind. Those issues are protecting our citizens from overzealous legislation that to me clearly violates their constitutional rights as referenced above. I also ask that you consider this to protect the safety of our law enforcement personnel and our citizens as well. I am confident that if this bill clears the senate and it is signed into law the incidents of armed confrontations between citizens and law enforcement will in fact increase in number and we could quite possibly experience tragedy on one side or the other.

Thank you for your consideration.

Respectfully

John A. Spezze

Sheriff

Chaffee County