Originally Published: 27 NOV 22 14:30 ET

Updated: 28 NOV 22 11:44 ET

By Emma Tucker, CNN

(CNN) -- The prior arrest of the 22-year-old suspected gunman who allegedly opened fire in a Colorado Springs LGBTQ nightclub last weekend has put the spotlight on a state law which can be utilized to temporarily remove gun access from those deemed a danger to themselves or others.

Colorado's controversial red flag law, also known as an extreme risk protection order, allows law enforcement, family members or a roommate to petition a judge to temporarily seize a person's firearms if they are deemed a risk. But one caveat is they must start the process.

If the public is uninformed of the potential risk, or rejects gun control measures, or law enforcement refuses to enforce the law, it could be rendered useless, some observers said.

The year before Anderson Lee Aldrich, whose attorneys say uses they/them pronouns, allegedly entered Club Q with an AR-style weapon and a handgun, killing five people and injuring at least 19 others, they were arrested in June 2021 on two counts of felony menacing and three counts of first-degree kidnapping, according to a news release from the El Paso County Sheriff's Office at the time.

Aldrich allegedly threatened to harm their mother with a homemade bomb and other weapons. But no charges were filed, and the case has since been sealed. It is unclear why the records were sealed.

When asked last week why the red flag law was not used in Aldrich's case, Colorado Attorney General Phil Weiser said it was "too early" to say.

"I don't have enough information to know exactly what the officers knew," Weiser said.

The sheriff's office did not respond to requests for comment, but it does not appear that anyone, including law enforcement, triggered the process to obtain an extreme risk protection order after Aldrich allegedly made the threat.

Law enforcement sources told CNN the suspect purchased the two weapons brought to Club Q, however, police have not provided details about when the transaction took place. Aldrich's arrest in connection to the bomb threat would not have shown up in background checks, according to the law enforcement sources.

It is unclear whether the state's red flag law could have been used in Aldrich's case, or if, ultimately, it would have prevented the mass shooting last weekend.

Following the 2021 arrest, there was an indication Aldrich was someone who posed a risk of harm, Jeffrey Swanson, a professor at Duke University School of Medicine who led the research group that published the first evaluations of red flag laws, told CNN.

"The law could have been used. It's a great sort of parable of how you can pass a law and if it's not implemented or used, it's not going to do any good," he continued.

Red flag order valid for a year

Red flag laws can be useful in cases where an individual shows an inclination to harm themselves or others or have had encounters with police, but charges were never pursued, according to Swanson.

"It's designed for cases where there's a clear indication of someone who poses an imminent risk to others or themselves, but otherwise would be qualified to buy a gun," he said.

The law allows for a type of restraining order, which does not have any criminal penalties associated with it, unless a person violates the order, according to Allison Anderman, senior counsel and director of local policy at the Giffords Law Center to Prevent Gun Violence.

Under the law, a court can issue an order valid for up to a year, restraining a person from accessing guns if the petitioner has met the "standard of proof" to demonstrate a credible and substantial risk, said Anderman, who worked with Colorado lawmakers as they were drafting the bill.

"It's minimally invasive, yet it restrains a person from obtaining lethal weapons if they're in a period of crisis," Anderman told CNN. "And when the laws are used, they work."

Extreme risk laws have been shown to reduce firearm suicide rates in Connecticut by 14% and Indiana by 7.5%, according to the Giffords Law Center, data up to 2015.

County is a 'Second Amendment Sanctuary'

After the 2021 arrest, Aldrich was booked into the El Paso County Jail, the same facility where they were transferred on Tuesday after the Club Q shooting. El Paso County, home to Colorado Springs, has openly rejected the state's red flag law.

During the debate in 2019 over the Colorado bill, opponents argued the law would allow vindictive people to take guns away from others for no good reason, CNN previously reported.

The formal legal process to temporarily remove a person's firearms if they are deemed a risk to themselves or others under the state's law, which went into effect in 2020, has never been initiated by the El Paso County Sheriff's Office, according to reporting by The Colorado Sun.

Sgt. Jason Garrett, a spokesman for the sheriff's office, told the Sun Wednesday the office has never requested an extreme risk protection order but did not respond to a question asking why it has not been used, according to the Sun.

El Paso County Sheriff Bill Elder, who declined an interview request from The Sun, publicly denounced the law in 2019, telling CNN affiliate KOAA that it violates citizens' constitutional rights.

"We're going to be taking personal property away from people without having due process," Elder told KOAA.

"We're not going to pursue these on our own, meaning the sheriff's office isn't going to run over and try to get a court order," Elder told KOAA in 2019. However, Elder said if a judge issues an order, "then it is up to law enforcement to execute that order."

CNN has reached out to the El Paso County Sheriff's Office for comment but did not receive a response.

In 2019, a year before the law came into effect, the Board of El Paso County Commissioners approved a resolution to designate the county a so-called Second Amendment Sanctuary. The county was among dozens in the state to make the declaration, pledging to "actively resist" the bill, arguing it violates Second Amendment rights.

"It's a highly suspect action from beginning to end," said Robert Spitzer, a professor in the political science department at SUNY Cortland, referring to the county's decision to declare itself a Second Amendment Sanctuary. "But it raises the question of whether the police, if they had information, would be willing to take action on their own."

Spitzer said the Second Amendment Sanctuary movement, prompted by the enactment of the red flag law in Colorado, "really has nothing to do with actual law and a lot more to do with a statement of political defiance."

There is a "very big question mark" on whether the sanctuary declaration had a tangible effect on law enforcement in the county or not, Spitzer said. "But the implication certainly suggests that it could have," he added.

Lack of awareness impedes law

One of the major reasons red flag laws are not enforced is because people are not aware of them or do not know what steps to take when someone shows signs of dangerous behavior.

"It's incumbent on the stakeholders, officials in a state when a law is passed, to have careful thought and some investment and thinking about how to implement this," said Swanson. "It involves educating the right people about it and law enforcement are key."

In his response to a question about red flag laws last week, after the Club Q shooting, Colorado Attorney General Weiser said state officials are "working hard to educate and to bring more awareness about the Red Flag Law."

"We've got to do better and we're going to work on educating law enforcement to make sure that again, for everyone who is [a] responsible gun owner, this red flag law is not about you. This is about people who are dangerous, who we know should not have firearms," Weiser added.

Another barrier to the law can be police discretion, according to Spritzer. The nature of policing relies on a "great deal of discretion," which allows officers to decide whether to give a speeding ticket, for example, or not to use an existing law because they don't support it.

"It opens the door to perhaps not enforcing laws that could have a profound effect on people's lives and safety," Spritzer said.

People who have an involuntary commitment history from years ago are banned from buying or possessing firearms, even if they aren't dangerous. But those who are alienated, display anger, impulsivity or an inclination to harm others might not have a record that disqualifies them from buying a gun, Swanson said.

"What do we know about people who have impulsive anger and possess a gun? If you could think about that compared to the tiny group of people who are getting these risk protection orders, there's a long way to go," Swanson said.

"It's just too small a pebble to make much of a ripple in such a big pond," he added.