Gun battle continues: Montezuma County commissioners explain their ‘sanctuary’ resolution as Colorado’s legislature passes HB-1177

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Following their passage of a resolution naming Montezuma County a “sanctuary county for the right to keep and bear arms,” the county commissioners have expounded on their decision, both verbally and in print.

The resolution, passed Feb. 28, is not legally binding, but it has prompted a considerable amount of both praise and criticism. It came in response to a bill in the Colorado legislature, HB 19-1177, which allows the issuance of “extreme risk protection orders” that enables law enforcement to temporarily take away someone’s firearms.

The bill is intended to reduce suicides (more than half of which are committed using firearms) as well as homicides. The bill had passed both the state House and Senate at press time and was headed to Gov. Jared Polis to be signed into law.

Commissioner Keenan Ertel told the Four Corners Free Press by phone that the commissioners wanted to send a message that they are standing up for constitutional rights. “Our intent was to reinforce the Second Amendment,” he said. “The Second Amendment guarantees every legal citizen of this country the right to bear arms in their home to protect themselves from enemies foreign and domestic.”

Ten or more other counties in Colorado have passed similar resolutions, including Weld and El Paso. And in other states where similar “red flag” legislation is under consideration, some counties and municipalities are also proclaiming themselves gun sanctuaries. More than 25 of New Mexico’s 33 counties have reportedly passed such resolutions.

The issue of gun safety vs. gun rights continues to spark furious debate. The Farmington Daily-Times reported that when the Aztec, N.M., City Commission voted 3-2 on March 26 against a “Second Amendment Preservation City” resolution, the crowd became so unruly that the Aztec police captain shut down the meeting.

The Feb. 28 public meeting at which the Montezuma County commissioners approved their resolution was standing-room- only, but the crowd remained civil, though some people who spoke against the resolution said they were nervous about publicly calling for gun safety in a venue packed with Second Amendment advocates.

The majority of that audience was clearly supportive of the commissioners’ resolution, many of them speaking out in praise of the board.

However, there has been some backlash from the portion of Montezuma County – roughly 40 percent, judging from votes in local elections – that is more progressive in its political views.

“While you guys are at it, how about making Montezuma County a sanctuary for survivors of domestic violence?” wrote Carol Bylsma of Dolores in a letter to The Journal.

“How about making our county a sanctuary for our children so they can attend school without fear of a gunman murdering them? . . .

“Nope, not our county commissioners, they just want to promote fear.”

On March 12, local resident Wayne Schoefter came to the commission meeting to argue that the resolution could harm the county’s image and prove bad for tourism.

He also said it was inappropriate for the board to take such a stance, arguing that their role is primarily “fiduciary.”

Some residents have questioned what a “gun sanctuary” actually entails, asking whether it means no gun restrictions are to be enforced and that felons could possess firearms in such localities.

A yawning chasm

The chasm between viewpoints on gun control is reflective of the partisan divide stretching across the country. That divide is being felt keenly in counties such as Montezuma – where all three commissioners are deeply conservative despite a significant portion of the populace that isn’t – and San Juan County, Utah. There, a judge’s ruling has caused a shift in control of the three-member county commission, giving a majority to Navajo Democrats after decades of white Republican control. The change has so angered the Republicans, who feel disenfranchised, that there is talk of splitting the county into three counties.

HB 19-1177 may seem like a fairly innocuous piece of legislation to spark such a furious debate.

The measure provides a framework under which a family or household member, or a law-enforcement officer, can petition the court for a temporary order to seize the firearms of someone believed to pose a significant risk to himself or others.

It comes as the U.S. firearm suicide rate has surged 61 percent over the past decade among children and teens, and increased 19 percent among the population overall, according to the Centers for Disease Control.

Research shows that the use of firearms greatly increases the chance that a suicide attempt will succeed.

The bill is also intended to prevent mass shootings. One of its sponsors is state Rep. Tom Sullivan, whose son was gunned down in the Aurora theater shooting in 2012.

But Ertel told the Four Corners Free Press he believes the legislature is taking the wrong approach. “They’re trying to conflate mental-illness and domestic-violence problems with weapons or gun ownership, and I think they’re two very distinct concepts,” he said.

Ertel said HB-1177 violates the concept of due process.

“When you take a person that’s angered or in a mentally unstable state of mind, you say, ‘We’re going to protect the people from that person that’s in that frame of mind by making a phone call or a statement to a judge prior to any due process’. You allow somebody the right to come into that person’s home and remove anything.

“They’re trying to use mental illness to control the ownership of guns in our country. I think it’s an atrocity. They’re trying to circumvent the Second Amendment by using mental illness. They’re taking away due process.”

Due process?

The legislation does establish a process for taking someone’s firearms. The person petitioning must show “by a preponderance of the evidence” that the subject of concern “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 petitioner is required to submit a signed affidavit stating facts to support the issuance of a temporary ERPO. A hearing is held; if the court decides to issue a temporary order, it must schedule a second hearing no more than 14 days later to decide whether to issue a continuing ERPO. Counsel is to be appointed to represent the respondent at the hearing.

Anyone who presents a “malicious or false petition” for a temporary ERPO can be sued for actual damages, attorney fees, and costs.

“This is a sound improvement to ensure respondents have the opportunity for proper legal representation to safeguard their rights and interests,” stated Colorado Attorney General Philip Weiser in testimony supporting the bill.

He noted that currently a person can lose access to his or her children without being given representation.

But critics of the bill still believe it will likely be misused by people such as vindictive ex-spouses and that it violates the Fifth Amendment’s prohibition against the taking of “life, liberty, or property” without due process.

‘Missing the boat’

When someone poses a threat to himself or others, Ertel said, there are other options for dealing with the matter. “I think any time you have a person that is publicly exhibiting instability, anger or an endangerment to the family or public, that’s where your health professionals and law enforcement come in, if it’s to that point,” he said.

“They step in and say, ‘We need to have this person evaluated, taken into a hospital situation, a mental-assessment facility’. Give them some time to be evaluated. You have mental-health professionals temporarily remove that person from that situation. By all means you have a mental-health professional or law enforcement remove them from the ability to harm anybody or harm themselves. Some sort of intervention. “I think that’s where the state is missing the boat. Our state government and possibly federal government are overlooking mental health. So many people have mental issues that adversely affect themselves and society. That’s where the battle needs to be waged – intervention, psychological help, psychological evaluations.”

Ertel noted that the county, in addition to passing the sanctuary resolution, sent the Colorado General Assembly a letter “that clearly explains we feel that mental health is the issue.”

“Montezuma County recognizes the legitimate need to help those struggling with issues pertaining to mental health,” says the letter, dated Feb. 28.

It refers to an Jan. 29 article in The Journal headlined, “State looks to expand opioid treatment centers, but not in Southwest Colorado,” in which Montezuma County is mentioned as having one of the state’s highest overdose death rates.

“The County’s elected officials urge the assembly to spend resources to aid the mental health and substance use crisis rather than compromise the rights of law-abiding citizens,” says the letter, which was signed by the three commissioners and County Administrator Shak Powers.

“Mental health is the issue,” Ertel told the Free Press. “That’s where we need to focus our attention.”

Taking an oath

At the Feb. 28 meeting, Commissioner Larry Don Suckla had suggested eventually passing an actual ordinance, which would have the force of law, stating that the county protects constitutional freedoms. So far, no such measure has been put before the board.

Suckla did not return a phone call seeking comment.

Commissioner Jim Candelaria was out of town at press time and could not be reached. However, he sent a letter to a local citizen in which he explained the board’s vote.

“It is our belief that resolution 4-2019 upholds the oath that we took while also making the statement to our state legislators that we, Montezuma County, believe HB-1177 is unconstitutional,” wrote Candelaria in the March 26 letter.

He said it violates the Second, Fourth, and Sixth amendments to the Constitution.

The Second Amendment concerns the right to bear arms. The Fourth protects people against “unreasonable searches and seizures.” The Sixth involves criminal prosecutions and ensures, among other things, “the right to a speedy and public trial” and the right for a person accused of a crime to be confronted with witnesses against him or her.

Gala Pock of Pleasant View had written the commissioners a letter dated March 19. “If the Commissioners were to be invited to address the students at a local high school, recognizing that school students seem to [be] a major target of shooters, what would the Commissioners say about their reasoning for passing Resolution 4-2019?” she asked.

In the response, Candelaria cited the oath taken by the county commissioners and other elected officials in which they swear to “support the constitution of the United States, the constitution of the state of Colorado, and the laws of the state of Colorado. . .”

“If the BOCC were to be invited to a local high school to explain our adoption of resolution 4-2019, it would closely resemble the above paragraph,” Candelaria’s letter stated. “We would take delight in offering an educational assembly to our young citizens.”

He added, “We believe that resolution 4-2019 is not merely a statement that deems [the county to be a sanctuary county]. We believe it to be a statement that the BOCC is well aware of our oath and we intend to uphold it. It is our understanding that HB-1177 infringes upon the Second, Fourth and Sixth Amendments of the constitution of the United States. Ultimately, our passing of resolution 4-2019 is not about firearms, it is about the protection of all of our constituents’ constitutional rights.”

‘Typical of the Democrats’

But Attorney General Weiser has said he believes HB-1177 IS constitutional.

“Justice Antonin Scalia noted that the Second Amendment, like other amendments in the Bill of Rights. . . does not create an unlimited and absolute right,” Weiser said in his testimony.

He added that there is precedent establishing that “reasonable restrictions on categories of persons, including those struggling with mental illness, are permissible under the Second Amendment.”

Ertel disagrees.

He said Democratic legislators are “trying to circumvent and nullify” the right to bear arms. “That’s where our ire was raised,” he said. “This is a political maneuvering-around to try to reach an end goal of gun control.”

He said such behavior is “typical of the Democrats.”

“They do it all the time,” he said, adding that he was worried about what else might be coming, with both houses of the legislature and the governor’s office under Democratic control. “They’re going to be shoving it down our throat. This is just the beginning.”

Ertel mentioned what was called the “51st State Initiative,” a 2013 ballot measure in which 11 rural counties, most in northeastern Colorado, sought to secede and form their own state because of their political differences with the Front Range. Six of the counties failed to pass the measure, and even if all had voted for it, it would have needed approval by the state legislature and then both houses of Congress in order to take effect.

“If this state keeps going the way it’s going, I don’t know,” Ertel said. “I don’t know if that’s something Montezuma County should think about.”

He speculated that if things ever got that bad, Montezuma County might want to become part of Utah, New Mexico or Arizona.

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From April 2019.