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What happens if a sheriff refuses to enforce Colorado's red flag law?

With his signature, Gov. Polis turned the red flag bill into the red flag law, but dozens of Colorado counties have declared themselves '2nd Amendment sanctuaries.' Would there be legal consequences for sheriffs who don't follow the law?

DENVER — This story was originally published in April 2019.

As supporters of Colorado’s red flag bill gathered at the state capitol to watch it become law, opponents were vowing to fight it.

Colorado Governor Jared Polis (D) signed the Extreme Risk Protection Orders law, as it’s formally known, on Friday afternoon. Not one Republican in the legislature voted in favor of the law before it passed.

RELATED: Governor signs Red Flag gun bill

RELATED: Here are all the new Colorado laws going into effect in 2020

The red flag law allows a family or household member to petition the court to have someone’s guns taken away. If a judge finds that person is dangerous, the judge could then have that person’s guns temporarily seized. The nonpartisan Legislative Council Staff estimates that 170 Coloradans will have their guns taken away each year under this law. Staffers arrived at that calculation based on the frequency of red flag gun seizures in other states with similar regulations.

But it’s still unclear how many counties in Colorado will put resources into enforcing the law. Dozens of counties have declared themselves “2nd Amendment sanctuaries” and have passed resolutions to that effect.

Weld County is one of them.

RELATED: These Colorado counties have declared themselves '2nd Amendment sanctuaries' as Red Flag bill progresses

The county commissioners in Weld said Friday that they will work with other county governments, sheriffs and their own attorneys to conduct a legal review of the measure.

“With his signature, the Governor weakened our 2nd and 4th Amendment Rights, compromised our right to due process, and will force our sheriffs across the state to decide whether to uphold the United States Constitution or to turn their backs on the oath they took when accepting their elected position,” the commissioners said in a statement.

Weld County Government updated their cover photo.

They also offered their full support to Sheriff Steve Reams. Reams became nationally-known recently after a CNN article was published with the headline: "This Colorado Sheriff is willing to go to jail rather than enforce a proposed gun law." 

“I’ve said that, in the worst-case scenario, that’s what could happen, and I believe that I’m willing to stand to that bitter end,” he told 9NEWS earlier this month.

Jail time is a real possibility. A sheriff doesn't have to enforce immigration detainer requests from federal agents because they aren't mandatory court orders. "Sanctuary cities" like Denver often tell ICE to secure a judicial order if they want the sheriff to comply with their requests. The same isn't true regarding this law. If a judge issues a gun seizure order, and the sheriff refuses to enforce it, the judge could haul in the sheriff and hold them in contempt.

“Sheriffs cannot pick and choose the laws they want to enforce,” said Whitney Traylor, a 9NEWS legal expert. “So right now, they’re supposed to enforce it… and if they don’t, then we’ll have a legal battle, and a court will ultimately make the decision."

Reams has said this measure could put law enforcement at risk, if they're going to the home of someone deemed dangerous. Critics also feel this law violates constitutional rights, and that’s the argument they would take to the courts.

But if they choose not to enforce the law while courts conduct a review, it’s unclear how severe the consequences would be. In addition to being held in contempt, a sheriff could be sued for not following through with a court order. However, Scott Robinson, also a 9NEWS legal expert, thinks the threat of litigation against a sheriff or county that ignores a court order may not hold much weight.

"Probably the most significant precedent on this issue was a case out of Castle Rock, Colorado, where the police did not enforce a restraining order and deaths ensued," he said, referring to a case from 1999.

Jessica Gonzales had a restraining order against her estranged husband, who kidnapped three of the couple's children one night. Police didn't enforce the restraining order, and hours later the children were found dead in their father's truck. He was killed in a shoot-out with police.

Jessica's lawsuit against Castle Rock went all the way to the Supreme Court, where she lost.

"The U.S. Supreme Court has ruled, and our Colorado Supreme Court has agreed, you don’t have a constitutional right to have law enforcement do its job right, even when there’s a court order compelling them to do so," Robinson said.

Reams said he’s considered the possibility of someone getting hurt if he refuses to follow the law. He feels he can use existing rules to keep citizens safe.

“I’ll tell you, I’ve gone through hundreds of scenarios in my mind, and quite frankly, there’s plenty of options for dealing with a situation without using the red flaw law. We currently use those now, and that’s my intent in the future. I believe we’ll still address people that have mental health issues, or we’ll address the root problem, which is the person,” he said.

And while sheriffs are expected to uphold the law, they probably won't lose their jobs for choosing not to in a case like this. They can't be fired; the Denver sheriff is appointed, but everywhere else, voters elect their county sheriffs. Recalling a sheriff and getting a new one elected would take time, petitions and money, and in many conservative counties where sheriffs have come out against the law, they likely have voter support.

Polis has been asked if he’d use state resources to enforce the law if necessary. He said only that he believes sheriffs will do their jobs.

“Law enforcement are executive agencies. Everyone has to follow the law. I am one, and I will follow the law. Even laws I personally disagree with, we follow those laws,” the governor said. “I know sheriffs have the highest professional standards and will do so, as well.”

RELATED: Polis says sheriffs have discretion to set priorities

Colorado Attorney General Phil Weiser told 9NEWS previously that his office is reviewing what these sheriffs’ refusals mean.

The law does not go into effect until next year. Before it does, a law enforcement advisory group called the Colorado Peace Officer Standards and Training (POST) Board will decide how the law should be implemented.

This article draws on previous reporting from 9NEWS.

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