A Colorado Republican on his failed red flag law and the blowback that followed

Geoff Bennett:

Recent history suggests new gun reforms are more likely to emerge out of statehouses, rather than Washington, D.C.

Over the coming days, we will explore some of the proposed and recently enacted policy experiments across the states.

William Brangham begins our coverage with an examination of extreme risk prevention orders, more commonly known as red flag laws. The measures, which are in use in 19 states, allow guns to be temporarily seized if family or law enforcement believes someone is a risk to themselves or to others.

William Brangham:

On New Year's Eve four years ago, a sheriff's deputy was shot and killed in a suburb south of Denver by a man suffering serious mental distress.

That killing prompted a Republican state representative to introduce a red flag law in the Colorado legislature. But that lawmaker then came under attack from a conservative gun rights group. His law didn't pass, and the representative lost his next election.

His name is Cole Wist. He's now a lawyer in private practice. And he joins me now from Colorado.

Cole, great to have you on the "NewsHour."

Just playing off this example that motivated you to introduce this bill, can you help us understand how your law would have worked? Who contacts the authorities? Who judges this? Who makes the decision that it's OK that someone should have their guns taken?

Fmr. State Rep. Cole Wist (R-CO):

Well, good evening, William. It's great to be with you.

I will talk about how this would have played out under the 2018 bill that I introduced. And that is that the family members or law enforcement could apply for an extreme risk protection order.

And they would swear out an affidavit, submit that to a judge. And if the judge agreed that it met a threshold determination that the individual posed a risk to himself or herself or others, then the judge could issue a temporary order that would allow law enforcement to remove firearms from that individual.

Under our bill in 2018, there was a three-day period that the court would then hear whether or not that order would be made permanent. And we had a very high level of due process that was required to be met by the movement, by the movement, or the person that was seeking the protective order.

And under our bill, the person seeking to remove those firearms would have to — would have had to have proven beyond a reasonable doubt that that individual posed a risk to themselves or others, and that removal of weapons from that person's possession was necessary to accomplish those means.

There then would have been an opportunity, if the order was granted, six months later to then consider whether or not that order should be renewed or dissolved, and the person could receive their firearms back.

In the version of the bill that passed in 2019, those periods were extended quite a bit, in fact, doubled to 364 days, if an ERPO is entered against someone.

William Brangham:

So you were a Republican legislator, a strong supporter of the Second Amendment, and yet this conservative gun rights group came after you. They called you a gun grabber. They called you Cole the mole.

And they passed out flyers attacking you. How did that sit with you, having this kind of blowback?

Fmr. State Rep. Cole Wist:

Well, it strikes me that we miss the mark when we talk about mass shootings or incidents like the one that motivated me to sponsor this legislation.

And that is, these are matters of public safety. And in all other cases, and if you look at cases of domestic terrorism, in the mass shootings that we have seen in the United States over just the last week, these are domestic terrorist incidents.

And when we look at domestic terrorism, our government has not been hesitant to make sure that we're doing everything that we can, in a proactive fashion to make sure that we protect public safety. But when you enter the word gun in this conversation, it freezes the parties.

And, in my particular circumstance, I guess, if you could identify a sin that I committed as a legislator, and that is having the willingness to talk to folks on the other side across the political spectrum about solutions that we can put into place to protect constitutional rights, to make the burden of proof very, very high for someone seeking to deprive someone of the possession of a weapon, and yet, at the same time, recognizing that there is an important public safety concern here that's not being addressed by our current laws.

And that's the reason I was motivated to introduce this piece of legislation.

William Brangham:

Given your experience, as someone who tried to reach across the aisle and introduce something that, again, to many people listening to, you would think, that seems like a reasonable, sensible approach, does that give you a sense of pessimism that anything is going to come out at the national level?

Because leaders here in Washington, D.C., right now are trying to do exactly what you did, to reach across the aisle to try to figure out, how can we stop these tragedies from occurring?

Given your experience, do you think that there's going to be any hope here?

Fmr. State Rep. Cole Wist:

William, I'm always hopeful.

But I will give us an example an exchange I saw on Twitter last night between a radio show host and Senator Cornyn from Texas. And Senator Cornyn, in the past few days, has expressed some willingness and openness to talking to folks about expanded background checks, red flag laws, things that we can do to try to protect public safety.

He was called out for those efforts last night, and he immediately retreated back to his corner and said: No, I'm not going to introduce anything that relates to guns.

So, again, if we really talked about this as a public safety issue, as trying to address domestic terrorism, and not focusing on the gun issue, then I think we would make a whole lot more progress. But, unfortunately, when political tensions become high, as they are, particularly with this issue, folks retreat to their comfortable corners.

And whenever folks are in their corners, they're not talking to folks across the political spectrum and, frankly, they're not solving problems that we need to have solved.

William Brangham:

In just the last few seconds that we have, do you have — do you feel strongly that red flag laws should be passed nationally? Do they really work to prevent these cases, these tragedies?

Fmr. State Rep. Cole Wist:

Well, we have red flag laws in 19 states.

And one of the first states to pass one of these laws was Indiana. And I don't think anyone would suggest that Indiana is a blue state, by any means. But I think they paved the way and showed that you can do this in a way that protects constitutional rights and still protects public safety.

In the couple of years that Colorado has passed this law, there's been a lot of analysis done in terms of whether or not the laws have been abused or whether or not this law has been abused. And I think, if you look at the data, it shows that, to the extent that folks have sought these orders with frivolous facts or without a legal basis, those have been denied.

So, the law is working. The law can function.

William Brangham:

Former Colorado state legislator Cole Wist, thank you so much for joining us.

Fmr. State Rep. Cole Wist:

Thank you. My pleasure.