The Colorado Springs shooting, in which a gunman killed five people and wounded more than a dozen at a queer nightclub on November 19, has already been framed as a failure of red flag laws, policies designed to allow law enforcement to disarm people considered a clear risk to themselves or others.

But in this case, it appears a red flag order could have been used against the suspect — and local officials may have chosen not to.

Of 64 counties in the state, El Paso County, home to Colorado Springs, is one of at least 37 counties that have declared themselves a “Second Amendment sanctuary” and openly defied the state’s gun laws. El Paso County’s commissioners did so in response to the state’s proposed red flag law in 2019.

“We’re not going to pursue these on our own,” El Paso County Sheriff Bill Elder said as the law was being debated in the state Legislature, “meaning the Sheriff’s Office is not going to run over and try to get a court order.” Elder has said that the Sheriff’s Office would enforce court orders, but that it wouldn’t pursue petitions on its own, except in some extreme circumstances.

Data suggests that Elder has been true to his word. In Colorado, red flag petitions can be filed by law enforcement, or a family or household member. An analysis of court records by 9News found that, between January 2020, when the law went into effect, and November 2021, just 39 risk protection order petitions were filed in El Paso County, the most populous county in the state, with more than 737,000 residents. Only eight of those petitions — or 21 percent — were granted.

None of the approved petitions were filed by law enforcement, the 9News analysis shows. Unlike most counties in the state, they were all initiated by family and household members.

“Oftentimes, law enforcement are the people who are coming into contact with individuals who pose a danger to themselves or others,” said Allison Anderman, senior counsel and director of local policy at the Giffords Law Center to Prevent Gun Violence. “If they’re not using them, they’re going to be less effective.”

In the case of the Club Q shooting, the suspect — who was charged Monday with multiple murder and hate crimes charges — allegedly threatened in June 2021 to detonate a bomb and harm his mother with “multiple weapons.” He was arrested and charged with multiple felonies, although the charges were later dropped. 

The suspect’s history made him an ideal candidate for a gun removal order under a red flag law. Yet he was never subject to one, and legally purchased the two guns he allegedly used in the shooting.

Colorado’s Extreme Risk Protection Orders law is not an automatic process and requires cooperation from local law enforcement and from the community members it aims to protect. Unlike other states that have removed guns from thousands of people deemed dangerous, as in Florida, Colorado’s state courts have issued relatively few risk protection orders.

Under Colorado law, for an order to be granted barring someone from possessing or purchasing firearms, a law enforcement official or agency, or a family or household member, must file a petition in court and show that a person is a risk to themselves or others. A judge can then grant a temporary risk protection order lasting up to 14 days, after which point they can grant a final extreme risk protection order lasting up to one year, though the order can be extended further if warranted.

But, according to its website the El Paso Sheriff’s Office will not petition for a red flag order except in some “exigent circumstances,” or if there is probable cause that a crime has been or will be committed. Elder has said that he believes the law violates the Fourth and Fourteenth Amendments.

“It is the policy of the Sheriff’s Office to respect and protect the constitutional rights of all those we serve,” reads a post on its website. “The El Paso County Sheriff’s Office will ensure that the rights of people to be free from unreasonable search and seizures, and to receive due process of law, are safeguarded and maintained.”

By contrast, in less populous Denver County to the north, law enforcement and family filed some 63 petitions, and judges issued a risk protection order in 79 percent of those cases. Of the 50 orders approved, 47 were filed by law enforcement.

Denver County’s statistics, unlike El Paso County’s, reflect a national trend, according to Anderman: Law enforcement officers and agencies are more likely to file and be granted a red flag petition, she said, in part because family members are often intimidated by the process of going to court, and in at least seven states, only law enforcement officials are allowed to petition for a red flag order.

But leaving the implementation of red flag laws to local, elected law enforcement officials like sheriffs allows politics to interfere. Unlike city or state police, county sheriffs are elected and, according to a national survey, many of them believe that gun laws go too far and, in several cases, have refused to implement them.

“There is a pattern of sheriffs trying to step in and proclaim their authority to both set policy, as well as enforce policy,” said Emily Farris, an associate professor of political science at Texas Christian University. Along with Mirya Holman, of Tulane University and the Marshall Project, Farris surveyed more than 500 sheriffs about their views of their authority. “They themselves feel that they get to interpret whether or not something is constitutional, and what their office is or is not going to do.”

Some states have taken steps to train law enforcement officials and residents on how to file red flag petitions. In New York, where a mass shooting at a supermarket in Buffalo prompted questions about the state’s red flag law, Governor Kathy Hochul ordered State Police to file for red flag orders whenever they have probable cause. The directive, along with a new law passed by the state Legislature requiring all law enforcement agencies to increase their use of red flag orders, led to a substantial increase in red flag petitions.

While Hochul’s order appears to have increased red flag applications among the agencies she can control, it may not affect county sheriffs. Governors can control state police, and city councils can control city police, but sheriffs offices lack that same oversight.

“Sheriffs have really been overlooked in their role in gun control because it’s these kinds of laws, like red flag laws, that either involve law enforcement doing the petition, or rely on law enforcement’s right to enforce the petition,” Farris said. “So you can have this uneven enforcement even within one state because sheriffs are individually asserting themselves. It underscores the importance of paying attention to who your sheriff is. If they choose not to [enforce red flag laws], if they just disagree, there’s very little oversight mechanisms to make them.”

The sheriff in El Paso County is not the only local official who opposed the red flag law. Republican District Attorney Michael Hall, who assumed office in January 2021, took an even tougher stance against the law when campaigning for the office in 2020. “This law is a poor excuse to take people’s guns and is not designed in any way to address real concrete mental health concerns,” he wrote on Facebook in January of that year.

A month later, he went even further, writing that those living in his judicial district “can rest easy” knowing that the District Attorney’s Office “will not participate in ‘red flag’ confiscation.”