Courtesy of our friends at Rally for Our Rights.
[Note: hyperlinks can be found at the linked story website]
Colorado Sheriff and Red Flag Critic Gets ERPO'd by Same Inmate Twice in Two Months \
Posted on April 16, 2020 by Lesley Hollywood
On Februrary 25,2020 one of Colorado’s most outspoken critics of Colorado’s Red Flag ERPO law, Weld County Sheriff Steve Reams, was red flagged using the state’s Extreme Risk Protection Order (ERPO) law – and it was an inmate who has been incarcerated in his jail since 2016 on serious drug trafficking charges who filed it – from jail.
According to a post on Reams’ Facebook page, on April 15, 2020 an Extreme Risk Protection Order petition was filed by inmate Leo Crespin against Sheriff Steve Reams, which is public record. The inmate claims he falls under the law’s extremely broad definition of ‘household or family member’ by marking the box “I regularly reside or have resided with the respondent in the last 6 months”, citing that he lives in Reams’ jail.
In the body of the petition the inmate states that Sheriff Reams arms his S.O.G. officers with 12 gauge shotguns. The Weld County jail S.O.G. (Special Operations Group) is responsible for maintaining order in situations involving enhanced security risk. The “shotguns” they carry are actually devices that fire less-than-lethal projectiles and are only carried by the specialized team of officers.
The petition was immediately dismissed by district court Judge Vicente Vigil.
You can read the petition and the ruling in the images below, but it is along the same lines as the February ERPO that was filed. Read all about that here.
[Note: multiple hyperlinks and article comments at linked website]
Greenlee: ‘Safe storage’ gun laws unnecessary and unconstitutional
January 8, 2020 By Joseph Greenlee
Among the measures being considered by Colorado Democrats for the 2020 legislative session is a so-called “safe storage” law requiring that firearms be locked in a safe when not in use. Like many gun control laws, “safe storage” requirements may sound reasonable at first blush, but in practice are unnecessary, counterproductive, and unconstitutional.
“Safe storage” laws are unnecessary because the firearms community has already accomplished the objective of reducing firearm accidents on its own volition—without burdensome government restrictions. Through safety programs like the National Shooting Sports Foundation’s Project ChildSafe and the NRA’s award-winning Eddie Eagle GunSafe initiative, the firearms community has successfully raised awareness of safe practices and dramatically reduced firearm accidents.
While the number of firearms in America has skyrocketed to an all-time high, the number of accidents has plummeted to an all-time low. Federal data show that the estimated number of civilian-owned firearms in America is 423,000,000. Yet, the most recent statistics from the Centers for Disease Control show that only 486 deaths were caused by accidental discharges in 2017.
These 486 firearm deaths made up only 0.3 percent of all 169,936 accidental deaths. By comparison, there were 64,795 accidental fatal poisonings, 40,231 deaths from motor vehicle accidents, 36,338 deaths from accidental falls, 6,946 deaths from accidental hanging, strangulation, and suffocation, and 3,709 accidental drownings.
While the number of firearms per capita has increased 256 percent since 1948 (from 0.36 guns per person to 1.28), the fatal gun accident rate has decreased 90 percent in that same time (from 1.55 fatal accidents per 100,000 persons to 0.15). And since 1950 (when data first became available for children), the accidental fatality rate for children (ages 0 to 14) has dropped 91 percent (from 1.10 per 100,000 persons to 0.10). For every firearm used in an accidental fatality, roughly 870,370 firearms are not.
“Safe storage” laws are counterproductive—and misnamed—because they more often endanger than protect gun owners. During a home invasion, every second counts. For example, for an elderly homeowner who must get out of bed, find the light, find her glasses, find the key to her gun safe, open the safe, find the ammunition in the safe, and load her firearm—all while groggy and under the distress of having violent criminals lurking through her home—the additional steps of the storage requirement could be fatal. Especially in a home with no children present, why should a responsible adult have to accept that burden on her chances of survival?
In comparison to the 486 accidents (only a portion of which occur in the home), firearms are used for home defense over 950,000 times per year. “Safe storage” requirements necessarily make it more difficult to defend one’s home by making it more difficult to access a defensive firearm.
Moreover, many would-be home invasions never occur because the invaders are deterred by the possibility of an armed homeowner. Seventy-four percent of felons in a survey agreed that “burglars avoid houses when people are home [because] they fear being shot.” This is an important reason why victims are home in a relatively low 28 percent of burglaries in America. With a “safe storage” law, that deterrent effect is diminished.
A government mandate that all firearms be locked in a safe requires self-regulation by gun owners, as any discovery of a violation would be made only after misuse of the firearm. A more appropriate approach then would be to persuade gun owners that keeping firearms locked in a safe is the best practice. And if that argument cannot be made persuasively, then a mandate to that effect would be misguided anyway.
“Safe storage” laws are unconstitutional because they prohibit immediate self-defense in the home. In 2008, the Supreme Court struck down a law requiring that firearms be kept inoperable in the home, because it “makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.” A “safe storage” law is another “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense,” and is unconstitutional for the same reason.
Moreover, the Supreme Court has placed strict limitations on the government’s ability to regulate private conduct within the home. For example, the sanctity of the home prevents government from criminalizing the in-home possession of obscene materials (Stanley v. Georgia), homosexual conduct within the home (Lawrence v. Texas), and the use of contraception (Griswold v. Connecticut).
Indeed, the Supreme Court has acknowledged that the Constitution provides “protection against all governmental invasions of the sanctity of a man’s home and the privacies of life.” How Americans decide to store their arms inside their homes is therefore layers of constitutional protection beyond the reach of government.
Joseph Greenlee is an attorney in Steamboat Springs, Director of Research for the Firearms Policy Coalition, and a Policy Advisor for Legal Affairs at the Heartland Institute.
Despite a $3.5 billion state budget shortfall debate, it looks like the recently re-convened legislature has made the time to pursue gun control legislation.
UPDATE: Due to last night's Antifa riot, as well as their protests planned for this weekend, the legislature has changed their plans and will not be in session today or Saturday.
[note: hyperlinks at linked website article]
Gun storage mandate, loss/theft reporting bills up for legislative action in Saturday session
May 28, 2020 By Scott Weiser
DENVER–After a long delay thanks to the COVID-19 virus, the Democrat-controlled Colorado legislature is back at work.
In an unusual Saturday session the House State, Veterans and Military Affairs Committee will act on two gun-related bills in the Old State Library, room 271 in the Capitol upon adjournment of the House floor session.
House Bill 20-1355 makes it a crime to not store a firearm in such a way that juveniles cannot access or use the firearm without permission of the parent or guardian. It also makes it a crime to store a firearm in a manner that allows a person ineligible to possess a firearm under state or federal law to do so. There is no exception for such persons to lawfully possess a firearm in a self-defense situation as there is regarding juvenile possession of a firearm, something the bill explicitly authorizes.
Additionally, it requires a licensed gun dealer to provide a “locking device capable of securing the firearm” each time the firearm is “sold or otherwise transferred.” Failing to do so is an “unclassified misdemeanor punishable by a maximum $500 fine.”
The bill also requires the Colorado Department of Public Health and Environment “to develop and implement a firearms storage education campaign to educate the public about the safe storage of firearms and state requirements related to firearms safety and storage.”
House Bill 20-1356 makes it a crime to fail to report loss or theft of a firearm within 48 hours after the loss or theft is discovered. The bill makes it a “petty offense punishable by a twenty-five dollar fine and a second or subsequent offense is a class 3 misdemeanor.”
The bill fails to address Fifth Amendment self-incrimination issues that protect gun owners from being compelled to incriminate themselves if they miss the 48 hour deadline for reporting.
This is the first hearing for both bills.
Public testimony will be taken both in person at the hearing and may also be submitted in writing through a new portal on the general assembly’s website. Interested persons may sign up to speak in person at the hearing on the same link above.
Written testimony may be submitted at any time, including during the hearing, up to the end of the committee hearing in order to be made part of the public record. Testimony submitted after the hearing is adjourned will not be included in the public record.
No remote testimony will be taken, and all members of the committee are required to be in the room. Recently passed resolutions authorizing remote participation by legislators for other matters do not include public hearings by committees of reference.This message has been edited. Last edited by: Modern Day Savage,
Much as I'd like to attend and testify at the
Due to the pandemic, the legislature has modified the 2020 hearing rules and is allowing both in person testimony as well allowing written statements to be entered into the public record.
Those that are unable to attend, please consider taking the time to make a written statement in opposition to the proposed "Safe Storage" and "Stolen Firearms" bills.
For those who may plan on attending the hearing Saturday please plan accordingly.
UPDATE: Due to last night's Antifa riot, as well as their protests planned for this weekend, the legislature has changed their plans and will not be in session today or Saturday.This message has been edited. Last edited by: Modern Day Savage,
After first having a TERPO granted in January, this individual had an ERPO granted recently, which greatly exceeds the allotted time under the law...however the pandemic is the reason given for the delay. In this instance the individual apparently didn't own any firearms or ammo, and the order was granted based, at least partially, on text messages.
[Note: an embedded video of the booking process and hyperlinks can be found at the linked article]
Red flag petition granted for Larimer County man accused of threatening mass shooting
Fort Collins ColoradoanPublished 4:12 p.m. MT May 28, 2020
Larimer County's first red flag petition has been granted against a man accused of threatening in text messages to commit mass shootings.
The red flag petition, also called an extreme risk protection order, was granted for David Gatton, 32, after the judge reviewed text messages Gatton allegedly sent to his father that threatened a mass shooting.
Gatton is currently in custody at the Larimer County Jail awaiting criminal proceedings for a pending case relating to these allegations, and he has a separate mental health case pending in Larimer County courts. The extreme risk protection order hearing has been delayed a few times due to the coronavirus outbreak.
Eighth Judicial District Judge Stephen Jouard approved a permanent extreme risk protection order for Gatton on Wednesday after approving a temporary order in January. Jouard said there is “clear and convincing evidence” that Gatton is a threat.
“Mr. Gatton has made credible threats of violence that are well documented in text messages,” Jouard said. “... Mr. Gatton is a danger to at least himself, if not to others.”
Larimer County Sheriff’s Office Investigator Stephen Pastecki briefly testified in Wednesday’s hearing about the text messages between Gatton and his adoptive father in January and March 2019.
In the texts — which Gatton admitted to sending — he said he was struggling to find work and that if his adoptive parents didn't stop asking him to pay back money he owed them, he would enact his “master plan” to "kill a lot of people."
The plan included Gatton doing something to get arrested, purchase two handguns after he’s released from jail, then become a “serial campus shooter” by committing mass shootings at two campuses. His texts did not name any specific schools as part of his plan, according to arrest documents.
Jouard also said Gatton’s clear statement that he planned to purchase firearms also justified the issuance of an extreme risk protection order.
Larimer County attorney David Ayraud said, in addition to Gatton’s pending mental health case, he was also previously placed on a three-day mental health hold, in Michigan in 2017. Pastecki said when he interviewed Gatton on March 18, 2019, after his arrest, Pastecki had concerns that Gatton was suffering from a mental condition.
Gatton’s attorney Sarah Cure argued Gatton’s statements were not credible threats. He has no history of physical violence, does not currently own a firearm and completely cooperated with law enforcement, allowing them to search his house, Cure said.
During the search of Gatton's house, investigators did not find a firearm, ammunition or any evidence of planning for a mass shooting, Pastecki said.
Ayraud attempted to call Gatton as a witness in this civil case hearing, but Cure and Gatton’s criminal defense attorney, Kathryn Hay, objected. They both argued the details of this civil case intertwine too much with the criminal case for Gatton to be able to answer any questions.
“This is a civil proceeding now infringing on his rights in the criminal case,” Hay told Jouard.
Cure, after saying Gatton would “plead the Fifth” Amendment, allowing him to remain silent when asked questions that could be incriminating, also claimed Gatton may not be competent to testify in the civil case.
After briefly closing the courtroom to the public to discuss Gatton’s mental health case, Jouard said he would take notice of Gatton’s mental health case file.
Cure said Gatton invoked his right to remain silent to any questions asked of him in the hearing.
In his ruling, Jouard also ordered Gatton be sent to the Colorado Mental Health Institution in Pueblo for evaluation.
Ayraud said doctors who have conducted previous mental health evaluations on Gatton have diagnosed him with several mental conditions. One doctor’s report said Gatton has “lethal impulses” and is prone to violence.
“We put all these together, and this is exactly why the extreme risk protection order was implemented,” Ayraud said.
All suspects are presumed innocent until proven guilty in court. Arrests and charges are merely accusations by law enforcement until, and unless, a suspect is convicted of a crime.
Sady Swanson covers crime, courts, public safety and more throughout Northern Colorado. You can send your story ideas to her at firstname.lastname@example.org or on Twitter at @sadyswan
I'm happy to report a little good news for a change of pace.
Both HB20-1355 Secure Storage of Firearms and HB20-1356 Lost or Stolen Firearms bills were referred to the House Committee on State, Veterans, & Military Affairs and Postponed Indefinitely.
I'm not certain what events took place to make this happen...but I'd guess the legislature has set their eyes on bigger agenda items in the remaining time left in the session, or maybe they figure they have done enough damage for this session and their reputation has taken enough of a hit...but either way I'll take it.
You can be certain that they will back to take another shot at these bills in the future.
Dan May is the Republican 4th Judicial District Attorney for Teller and El Paso counties. His reputation is as a law and order tough on crime DA, with both a Conservative and Christian leaning. He is a 2A and concealed carry supporter. He is term-limited and will be stepping down shortly.
In a recent radio interview DA May discussed SB20-217 Enhance Law Enforcement Integrity, and explained that while the bill has some good provisions in it, it was rammed through so quickly, and amended multiple times, that it contains many clerical errors, conflicting provisions, not to mention outright bad provisions and negative impacts. One of his several concerns about the bill, recently signed into law, is that the law now requires law enforcement to first retreat before using force, including lethal force.
Per state self defense statutes, Colorado is currently a Stand your Ground state, however his concern is that by now forcing LE to first retreat before using force, by logical extension, it will set the precedent for changing Colorado self defense statutes to Duty to Retreat for non-LE and CHP holders.
Duty to Retreat is a significant burden for both LE and non-LE when circumstances require use of force to defend themselves or others...this would be a real game changer, both legally speaking and defensive tactics wise.
I find this particular talk show host virtually unlistenable, and I wish I could find another way to post the interview or at least edit out the host's portion of the interview...but for those who want to hear DA Dan Mays comments on the bill and his concerns, you will simply have to suffer through it. In my opinion, his comments on the law are worth considering.
To listen to the 22 minute long interview click on the link, select the 6-18-20 interview, and jump to the 28:30 mark.
Richard Randall Show
Well...damn. I had read an article in the last year or two that indicated that, should the Colorado Supreme Court rule
Local news is giving this ruling plenty of air time, and pointing out that while "parts kits" are commonplace, this ruling doesn't address them...which I interpret as their effort to push for legislation on this in the future.
[note: there is a hyperlink to the ruling in the linked website article, but I haven't had time to read it.]
Colorado Supreme Court upholds 2013 large-capacity gun magazine ban as constitutional
By: Blair Miller
Posted at 10:34 AM, Jun 29, 2020 and last updated 12:10 PM, Jun 29, 2020
DENVER – The Colorado Supreme Court upheld the state’s ban on large-capacity gun magazines as constitutional in a ruling issued Monday nearly seven years after the law passed in the wake of the Aurora theater shooting.
“The legislation is a reasonable exercise of the police power that has neither the purpose nor effect of nullifying the right to bear arms in self-defense. Accordingly, the court affirms the judgment of the court of appeals,” Justice Monica M. Márquez wrote in the opinion.
Rocky Mountain Gun Owners and other gun advocates in 2016 sued over the law, which banned gun magazines that hold more than 15 rounds, in 2016, arguing that Coloradans’ constitutional right to bear arms was violated by the magazine ban contained in House Bill 13-1224, which was passed by lawmakers and signed by then-Gov. John Hickenlooper in 2013.
The law, and others related to guns in Colorado, were passed after the 2012 Aurora theater shooting, in which the shooter used a large-capacity magazine and killed 12 people.
But RMGO challenged the law under Article II, Section 13 of the Colorado Constitution rather than the Second Amendment to the U.S. Constitution, meaning that the Colorado Supreme Court’s ruling cannot be appealed to the U.S. Supreme Court.
The attorneys for the gun groups had argued that the law could be construed to “ban practically all detachable magazines,” as Márquez wrote. About half of the state’s sheriffs had filed briefs in support of overturning the ban, though law enforcement agencies are exempt from the law.
But she wrote in the court’s opinion, “We disagree. We conclude that Plaintiff’s interpretation of the definition of ‘large-capacity magazine’ is inconsistent with the provision’s plain text because it ignores the narrowing language, ‘designed to be readily converted to accept more than fifteen rounds of ammunition.”
“Because Plaintiffs do not challenge HB 1224 under the Second Amendment, we do not address whether the legislation runs afoul of the federal constitution. That separate question is simply not before us,” the court wrote.
Colorado Attorney General Phil Weiser said he was “pleased” by the court’s decision.
“The large-capacity magazine law will decrease the deadly impacts of mass shootings by reducing the number of people who will be shot during a mass shooting incident, and it will save lives,” Weiser said in a statement. “It also honors Coloradans’ right to bear arms for personal defense. Today’s ruling is a win for public safety and for the rule of law.”
A district court and the Colorado Court of Appeals both previously found that the law was constitutional, so the Supreme Court’s ruling upheld the court of appeals’ ruling.
“I’m encouraged to see the Supreme Court uphold the 2013 large capacity magazine ban,” said Rep. Tom Sullivan, D-Centennial, whose son was killed in the Aurora shooting. “Gun violence has ravaged our state and our nation, and I came to the legislature to work to put an end to it. Large capacity magazines like the 100 round drum that was used on the night my son Alex was murdered can cause devastating carnage and have absolutely no place on our streets. I’ll keep working day in and day out to fight the epidemic of gun violence.”
An email requesting comment from Rocky Mountain Gun Owners was not immediately returned Monday.
This is a developing story and will be updated.
Edited: Goofed up. Opening sentence should have read "if the Supreme Court ruled for the ban that it was possible that the case might advance to SCOTUS. Corrected.This message has been edited. Last edited by: Modern Day Savage,
Sigh. This is disappointing. Not surprising, mind you, just very disappointing. From what I understand, the opposition was well argued.
I'm hesitant to use this news source given Denver's 9 News track record for biased reporting and their involvement in and reporting of the Patriot Muster Rally murder last Fall, but I'll assume for the moment that the numbers given are accurate, even given their "see, I told you so" style of reporting. Per the law, various statistics are required to be tallied and reported on an annual basis.
Interesting to note that the Colorado AG has made the decision not to prosecute the Shelby case (a Black Panther member who planned elected officials and police chiefs murders), and instead seems satisfied with the Red Flag law remedy of simply confiscating his firearms.
[note: there is an embedded news report video depicting several of the legal documents and county map at the linked article website]
Year 1 of Colorado's red flag gun control law, by the numbers
More than 100 cases were filed in 2020 under the extreme risk protection order law.
Author: Marshall Zelinger
Published: 8:34 PM MST January 5, 2021
Updated: 8:34 PM MST January 5, 2021
DENVER — A Denver man's guns were ordered seized last year under Colorado's red flag law after he plotted to kill state Attorney General Phil Weiser and threatened other public officials, according to court records.
Bryce Shelby, 28, self-identified with the Black Panther Party, expressed the desire to join a nationalist paramilitary organization, and posted violent and threatening posts to social media, according to a petition for an extreme risk protection order.
The Denver Police Department (DPD) filed the petition for the protection order with the Denver Probate Court on Nov. 3. The court approved an order on Nov. 12 that required Shelby to surrender his firearms or they would be seized, according to records.
DPD confirmed on Tuesday that they seized the guns.
RED FLAG LAW BY THE NUMBERS
Shelby's was one of 111 cases filed in 2020 under the state's extreme risk protection order law. The law allows a family member, household member, a roommate, legal guardian or even a member of law enforcement to petition a judge to have someone's guns seized if they are deemed a threat to themselves or others.
Out of the 111 cases, a judge approved a temporary restraining order, requiring a person to hand over their guns, 66 times. That's about three-in-five cases.
Following a temporary restraining order, a hearing is supposed to be held within two weeks to determine if the order will be issued for a year.
A judge issued a year-long extreme risk protection order in 47 cases.
In 39 cases, the judge denied the request to seize weapons. That's about one-in-three cases.
Cases were filed in 24 of Colorado's 64 counties.
Most cases were filed in Denver. Out of 39 cases, 29 restraining orders were granted and 10 petitions were denied.
Jefferson County courts heard 13 cases. In seven of them, the restraining order was granted, and in six cases, the petition was denied.
El Paso County had 11 cases with 10 denials, and another case where a temporary order was issued, but the year-long request was denied.
Weld County had seven cases, with five denials, including a sixth where a temporary order was issued, but the year-long request was denied.
WEISER CASE EXPLAINED
In the Denver case involving the threats to Weiser, DPD and the FBI investigated Shelby after they became aware of his social media posts. During the investigation, Shelby told an undercover FBI agent that he planned to shoot Weiser and didn't mind getting "blood on his hands," according to the DPD petition.
He had "scoped out" Weiser's residence by driving past it on more than one occasion, the petition says.
DPD also said Shelby told the undercover FBI agent that he wanted to eliminate Denver Mayor Michael Hancock, Aurora Mayor Mike Coffman and the police chiefs for both those cities.
Shelby was observed with two firearms -- an AR-15 style rifle and an SKS/AK style rifle -- that he brought with him in his vehicle and to protests in Denver and Aurora, according to the petition. One of the rifles was described as a "ghost gun" that was built by a friend and has no serial number.
On Nov. 12, the Denver Probate Court ordered Shelby to surrender his guns under the state's red flag law.
While he has turned over his weapons, which is a civil matter, no criminal charges have been filed.
"Isn't that amazing, but that's the world that we live in now," said Troy Eid, former U.S. Attorney for the District of Colorado. "Federal investigations take a long time, I know from experience. It may well be that this investigation is continuing just the way you would expect it to, you can't read anything into it."
Eid explained that federal law is limited on non-specific threats to people.
"There is not a general federal criminal threat law. There are specific laws. You can threaten to kill the President of the United States, that's a separate federal crime. You can threaten to kidnap somebody and to hurt them if they don't go with you in the kidnapping, if they try to escape or don't cooperate. You can say, 'I will kill you if you don't pay me $1 million,' that's extortion," said Eid. "But the U.S. criminal code doesn't have just a general criminal threat statute that says if you make a threat, that's enough to charge someone with a federal crime."
A statement from the Attorney General's spokesman explains why there may be no criminal charges in this case.
“This past summer, various law enforcement agencies identified a serious threat to the Attorney General and other public officials. After they conducted an investigation, the Attorney General decided not to press for charges. Those law enforcement agencies sought and received an extreme risk protection order against the individual who posed the threat. Given the risk, the Attorney General believes that was the appropriate response," wrote Attorney General spokesman Lawrence Pacheco.
Spokespeople for Hancock, Coffman, Denver Police Chief Paul Pazen and Aurora Police Chief Vanessa Wilson all declined to comment on this case.
Hope everyone had a good holiday recently and enjoyed some family time R&R...but it's time to gear up, update those legislative contact lists, and get your game face on, because the 2021 legislative session begins today and the Democrats have their legislative anti-gun agenda lined up.
A quick note on the this legislative session; given that the Governor continues to issue emergency orders and last year's state supreme court ruling that allowed the Democrats to push past the 120 consecutive day session, they will be following a similar schedule. The current plan is for the General Assembly to gavel-in today and continue with various swearing-ins and administrative tasks, then adjourn and return sometime in February. But, of course, that is subject to the whims and political agendas of the Democrats.
The 2021 legislative gun control agenda has been announced. As expected, both the previous so called "safe storage" and reporting of lost or stolen guns bills are re-introduced...but, the Democrats are going for a trifecta and are now introducing a mandatory waiting period for buying/ transferring of guns.
[note: multiple hyperlinks, pictures, and a video found at the linked article]
Colorado Democrats will pursue mandatory waiting period for gun buyers, safe-storage measure in 2021
The legislation is modeled after policies passed in other states, but it's sure to draw Republican objections
JAN 11, 2021 2:30AM MST
The Colorado Sun — email@example.com Desk: 720-432-2229
Democratic state lawmakers in Colorado are planning to introduce at least three pieces of gun-control legislation this year, including a measure that would require a waiting period — potentially of five days — between when someone purchases a firearm and when they can access that weapon.
The other two bills would require gun owners to safely store their weapons and to report to authorities if one of their firearms is lost or stolen.
“This isn’t going to end the crisis of gun violence in our society,” said state Rep. Tom Sullivan, a Centennial Democrat whose son, Alex, was murdered in the 2012 Aurora theater shooting. “But it will help to curtail it.”
While other gun-control policies run by Colorado Democrats in the past decade have been focused on mass shootings, the bills this year mainly are aimed at reducing accidental shootings and suicides, the legislative sponsors say. Sullivan says he will champion the bills enacting a mandatory waiting period and requiring that people report lost or stolen firearms.
Gun-control legislation used to be a politically fraught topic for Colorado Democrats. In 2012, two Democratic state senators were recalled and a third resigned after lawmakers passed a series of gun-control bills. Republicans also took over the state Senate majority in the wake of measures.
But after the 2019 passage of a so-called red flag bill that allows judges to order the temporary seizure of guns from someone who is deemed a risk to themselves or others, Republicans tried to recall several Democratic lawmakers — including Sullivan — and failed. Democrats have retained their statehouse majority and are emboldened to press forward with more new gun regulations.
The main challenge for the sponsors of the three gun-control bills set to be introduced this year will be convincing their fellow Democrats to vote “yes” on them.
The proposed waiting period in Colorado would be shorter than in other state
Of the three measures set to be introduced this year, the waiting-period bill is likely to be the most controversial.
Ten states and the District of Columbia have waiting periods that apply to purchase of guns, according to the Giffords Law Center to Prevent Gun Violence. Hawaii has the most stringent of those laws, requiring 14 days between when someone buys a gun and when they can access it. In California, the waiting period is 10 days.
Rep. Steven Woodrow, a Denver Democrat, is working with Sullivan on the waiting-period measure. The plan is to push for a five-day waiting period in Colorado, though that hasn’t been finalized.
“I believe that the data show that waiting-period bills help reduce suicide by firearms as well as overall firearm-related violence,” Woodrow said.
The RAND Corporation found that waiting periods can have a moderate effect on reducing suicides and other violent crime.
Sullivan pointed to the case of Jennifer Laber as evidence of why waiting-period bills are necessary. The Highlands Ranch mom of two young boys purchased a firearm hours before removing her children from school and then fatally shooting them and herself in the loading dock area of a closed Sports Authority store.
He also highlighted the case of Sol Pais, who flew from Florida to Colorado and caused a panic up and down the Front Range because of her alleged infatuation with the 1999 Columbine High School massacre. When Pais arrived in Colorado, she quickly purchased a shotgun. She later died from a self-inflicted gun wound at the base of Mount Evans.
Sullivan said delaying someone’s ability to access a firearm by even just a few days will make a big difference in stopping suicides.
“If we can keep the most lethal means of them completing that, if we can keep (guns) out of their hands for just a couple of days, there’s a good chance we can save some lives,” he said.
The National Rifle Association disagrees. The group says “waiting period are arbitrary impositions with no effect on crime or suicide.”
Rep. Dave Williams, a Colorado Springs Republican and fierce opponent of firearm regulations, said the bills represent “onerous restrictions” on gun owners.
“I haven’t read the bills, but just from the general concept of it I think it’s very likely that I would be opposed to all of them,” said Rep. Dave Williams, a Colorado Springs Republican. “I don’t think that’s the way we need to address the issue. Violence will happen regardless of the weapons that are available on the street.”
He thinks Colorado voters will push back on Democrats if they are successful in passing the legislation. “If they attempt to engage in this overreach it could very well harm their prospects in 2022,” Williams said.
Safe-storage, reporting bills will be very similar to legislation brought in 2020
Rep. Kyle Mullica, a Northglenn Democrat, will bring the safe-storage bill. The measure is almost identical to one he introduced last year, which was spiked after the coronavirus pandemic shortened the 2020 lawmaking term.
The legislation would impose fines and potentially even jail time on gun owners who don’t use a safe, trigger lock or cable lock when their weapons are being stored. It also would also require gun shops to distribute trigger or cable locks with every sale or transfer of a firearm.
Mullica said the idea is to send a message to gun owners that keeping a firearm under their pillow is not OK.
“At the end of the day, we really wrote this bill in a way that isn’t infringing on people’s rights,” Mullica said.
Other states already have safe-storage laws, including Connecticut, California and New York. Even Texas, a conservative, gun-loving state, has statutes aimed at keeping firearms out of the hands of children.
The measure requiring gun owners to report a lost or stolen firearm is being championed by Sullivan and state Sen.-elect Sonya Jaquez Lewis, a Boulder County Democrat. It, too, is modeled after legislation in other states.
The bill would require gun owners to report a lost or stolen gun to authorities in a set period of time — likely a few days — or else they would face a $25 fine and have committed a petty offense.
“We know the vast majority of Colorado gun owners are being responsible, but we still have, unfortunately, folks that don’t know where their firearms are,” Jaquez Lewis said. “It’s an awareness bill. It’s an education bill.”
Like the safe-storage bill, the mandatory reporting measure is similar to one brought last year and then spiked because of the pandemic.
Jaquez Lewis thinks her measure could have prevented the fatal shooting of 21-year-old Isabella Thallas in downtown Denver last year. The alleged gunman is accused of using an AK-47-style rifle that he stole from a Denver police sergeant in the shooting, according to 9News. The gun wasn’t reported missing until after the police sergeant realized it may have been used in a crime, the TV station says.
The main message she is trying to send: “If you have a gun, we’re asking you to know where it is at all times.”
The National Rifle Association opposed both the safe-storage and the mandatory reporting bills last year. Greg Brophy, a former state senator who was representing the group, said the storage requirements criminalizes a law-abiding gun owner’s right to self protection while the reporting mandate could make a criminal out of someone who was the victim of theft.
Jaquez Lewis said she’s not concerned about political blowback from bringing the measure.
“I think that the community is asking for this,” she said. “I know my constituents are.”
Sullivan, the state representative whose son was murdered in the Aurora theater shooting, says he is expecting blowback from conservatives.
“I tell people all the time, ‘I’m planning to get recalled again,’” he said.
But Sullivan said he’s not worried and the political threats won’t change him or how he thinks and speaks about gun-control legislation.
“I’m not afraid of them,” he said.
This could be a pivotal case in regards to limitations placed on Colorado's Castle Doctrine, including which parts of a structure constitute a dwelling.
[note: Colorado vs. Rao appeal document under review and hyperlinks found at linked website article.]
Lawyer for Colorado Man Argues in State’s High Court That ‘Make My Day’ Law Shields His Client from Murder Charge
Nov 8th, 2021, 7:40 pm
The Colorado Supreme Court heard arguments Monday in the case of a man who says the state’s “Make My Day” law protects him from being prosecuted for shooting a man to death in his building’s shared basement.
The legal controversy is whether a basement shared by all tenants of a seven-unit apartment home is considered a “dwelling” for purposes of the state statute that allows people to use deadly force if they feel they are being threatened in their home.
Two lower courts in Colorado believe that it did and granted the accused’s motion to dismiss the murder charges against him.
Patrick Rau shot and killed Donald Russell, 37, in January 2017 during a confrontation in the basement of the house where Rau lived. The home had been subdivided into seven apartments; Rau and his girlfriend lived in one of them. All tenants shared access to the basement, which was uninhabitable, but also provided access to the apartments’ water and heat supply were kept.
On Jan. 19, 2017, Rau’s girlfriend noticed the door to the basement was open, and she told Rau that she believed a homeless person was there. Rau went to the basement wearing a headlamp and armed with a gun, finding Russell sleeping in the basement.
Using his foot to wake Russell, Rao told the man to leave. Russell became aggressive and began to yell and throw things around the basement, but not directly at Rau. Rau warned Russell that he would “count to five” before shooting him and if didn’t leave, and that’s exactly what happened: Rao counted to five; Russell didn’t leave, and Rao fatally shot him.
Rau was charged with second-degree murder.
In a motion to dismiss the case, Rau invoked the state’s so-called “Make My Day” law, which allows occupants to use deadly force in response to any physical force used against them in their home. It’s Colorado’s version of the Castle Doctrine, which is an exception to rules that require someone to retreat to before using deadly force. If a defendant is in his home—his “castle,” the thinking goes—he doesn’t have to retreat before using deadly force in self-defense.
The law, passed in 1985, hasn’t been amended to specifically address common areas in apartment buildings, leaving that interpretation up to the courts.
Rau’s defense attorney Timothy R. Bussey told the high court he is not fond of the statute’s name.
“Quite honestly, I don’t like the term ‘make my day,'” Bussey said. “It comes from an old Clint Eastwood movie. When you look at the title of the law [use of deadly physical force against an intruder], it’s really more appropriate to call it that, but I’ve also called it ‘Make My Day’ because that’s what’s been picked up.”
As a 1990 New York Times story noted: “The law’s nickname comes from the 1983 movie ‘Sudden Impact,’ in which Clint Eastwood, as Detective Harry Callahan, holds a gun on a criminal suspect and says, ‘Go ahead, make my day,’ daring the suspect to give him an excuse to shoot.”
Colorado’s law says that the state recognizes Colorado citizens’ “right to expect absolute safety within their own homes,” and allows them to use deadly force in response to even the slightest physical force:
"[A]ny occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant."
The law protects occupants from both criminal prosecution and civil liability.
“Almost an Unheard of Grant of Authority”
The qualms Rau’s counsel expressed about its name aside, the statute turned out to be a boon for his client. The trial court said the statute applied to Rau, and dismissed the murder charge.
In June 2020, the appeals court affirmed the dismissal, finding that the basement of the building where Rau lived was part of his dwelling for purposes of the statute, even though it was also a common area.
Prosecutors had largely relied on a 1992 Colorado case that found that a basement of an apartment building wasn’t part of a resident’s dwelling for purposes of the statute, because all tenants had access to it.
The defense argued that, even though all tenants had access to the basement, it was a key part of each tenant’s dwelling, because it was the only way for each tenant to access controls for heat and water. The appellate court agreed.
On Monday, Rau’s defense lawyer said that the analysis of whether something is a dwelling could be done on a case-by-case basis, and that in this case, the lower court correctly found plenty of support for its finding.
“Only tenants could access [the basement],” Bussey argued. “It was locked. The room where the intruder was found had an additional lock that was broken off.”
Bussey also said that he didn’t like the name of the law, although he recognized its widespread use.
Deputy District Attorney Doyle Baker argued that judicial interpretation could provide important guidance to Colorado citizens who need to know whether they are in an area considered to be their dwelling, before deciding whether to use lethal force in self-defense.
“This is almost an unheard of grant of authority to people to use a lethal amount of force,” Baker said. “Because of that, it makes sense to put clear parameters on when it can be used. The question is, if you’re in a common area and you see somebody that you don’t recognize, and you’re not sure who they are, what if you make this decision—assuming other things happen, like you have a belief that a crime is being committed and [you anticipate physical force]—what if you guess wrong? What if this person is not an intruder?”
Parsing the language of the statute, the justices and attorneys debated whether the determination of what is considered a dwelling for purposes of the statute should be up to the courts, or the legislature.
While the state’s general assembly hasn’t amended the statute to address common spaces in apartment buildings, the assembly has come back to amend the statute to clearly state that it did not extend protection to people living in detention centers.
The Colorado Supreme Court panel adjourned the arguments without a ruling.
You can read the order of the intermediate appellate court whose decision they are reviewing, below.
This lawsuit is in regards to whether the Democrat controlled legislature violated two G.O.P. lawmakers' Constitutional rights as legislators when it violated its own rules by not reading the "Red Flag" bill in its entirety during session, with the goal of nullifying the law.
[Note: hyperlinks found at linked website article]
Appeals court finds lawmakers can challenge red flag law's validity
By MICHAEL KARLIK firstname.lastname@example.org Nov 10, 2021 Updated 21 hrs ago
Colorado's second-highest court has ruled that two Republican legislators may proceed with their challenge to a landmark gun safety law after allegedly being denied their constitutional right to have the legislation read at length.
A three-judge panel for the Court of Appeals on Wednesday partially reversed a Denver judge's decision that initially labeled the lawsuit a "political question," in which courts should not intrude on the prerogatives of the other branches of government. Since his decision, the state Supreme Court decided in an unrelated case that the judicial branch may, in fact, review whether the legislature complied with the constitutional mandate for the reading of bills.
The appellate panel relied on that case in ruling that Reps. Dave Williams, R-Colorado Springs, and Lori Saine, now a Weld County commissioner, could litigate whether the presiding officer of the House of Representatives infringed on their state constitutional right to have a bill be read at length in the absence of unanimous consent otherwise.
"'Unanimous' isn’t an ambiguous term. It means 'having the agreement and consent of all without dissent'," wrote Judge Jerry N. Jones for that panel. "It follows that both Representative Saine and Representative Williams had a legally protected interest in having the bill read in full at their request."
The bill at issue is the 2019 "red flag law," which established extreme risk protection orders for surrendering firearms in the event that a person poses a significant risk of causing harm to themselves or others. The legislation took effect in January 2020, and the attorney general's office reported that it was invoked 111 times during the calendar year, mostly involving individuals with mental health or substance abuse issues.
A 2020 review of extreme risk protection order studies by the RAND Corporation found no conclusive evidence that they decrease the incidence of violent crime or mass shootings, but some findings suggest that the red flag protocols may lower suicide rates.
The advocacy group Rocky Mountain Gun Owners, along with then-House Minority Leader Patrick Neville, R-Castle Rock, filed a lawsuit with Saine and Williams at the end of the 2019 legislative session. The plaintiffs claimed that Saine and Williams attempted to have the Deputy Zackari Parrish III Violence Prevention Act, as the bill was titled, read in its entirety on the House floor. The denial of those requests, they alleged, violated the rights given to legislators in the state constitution.
In opposing the lawsuit, the Colorado Attorney General's Office asserted that the presiding officer of the House of Representatives, then-Rep. Jovan Melton, D-Aurora, ruled Williams' request improper and Saine's request out of order for not stating a proper motion. Rep. Stephen Humphrey, R-Ault, did successfully make a motion to read the bill at length, but he withdrew it after the reading began.
Saine, Williams and Neville claimed they had standing as legislators to sue and vindicate their constitutional right to a full reading of the bill. Rocky Mountain Gun Owners argued it had standing as a taxpayer.
Denver District Court Judge Eric M. Johnson dismissed the lawsuit after determining he did not have jurisdiction to rule on the political question. But while the appeal was pending, the Colorado Supreme Court decided in Markwell v. Cooke that the judicial branch may review alleged violations of the constitution's bill-reading clause.
The appellate panel relied heavily on the Markwell decision in ruling that the red flag litigation can continue on the merits. Saine, who in 2020 sponsored a bill to repeal the red flag law, said on Wednesday that the lawsuit's ultimate goal is to nullify the legislation.
"This just makes my point all along: essentially an unconstitutional bill was passed unconstitutionally," she said. "If they’re willing to abuse my constitutional rights as a state legislator, they will almost certainly abuse citizens’ rights with the red flag law."
During oral arguments, the government asserted that the lawmakers needed to show how the lack of a bill reading had caused them to remain in the dark about what the red flag legislation said. The appellate panel pushed back on the notion that Saine and Williams needed to suffer that specific injury in order to sue.
"The drafters of the constitution, using that language — unanimous consent — in my view that implies that each individual legislator has the right to not consent," said Judge Rebecca R. Freyre. "And so doesn’t the constitution give each elected official the right to either consent or not consent? And depriving them of that right that the drafters of the constitution saw fit to put in, isn’t that the injury?"
At one point, Assistant Solicitor General Grant T. Sullivan suggested that the plaintiffs were more concerned about overturning the legislation than addressing a constitutional violation, given that they waited two months to file a civil complaint. His comments prompted a rebuke from Jones.
"It sounds like a deflection, frankly," Jones said. "That complaint has a clear allegation of injury by virtue of failing to read the bill in accordance with the constitution. So why don’t you focus on that?"
The panel also rejected the government's argument that Saine and Williams should have turned to the House's own procedures for appealing rulings of the presiding officer, as doing otherwise would force courts to second-guess the decisions of legislative leaders.
The appellate judges did agree, however, that neither Rocky Mountain Gun Owners nor the Republican lawmakers had standing to sue only as taxpayers.
In a statement after the ruling, the gun-rights group indicated it was a step closer to overturning the "egregious gun confiscation scheme." A signature gun safety achievement of Democratic lawmakers, the Violence Prevention Act drew opposition from some Republican sheriffs who vowed not to enforce it.
The case is Rocky Mountain Gun Owners et al. v. Polis.
[note: hyperlinks found at linked website article.]
Final gun bill from 2021 session goes into effect
By PAT POBLETE email@example.com Sep 7, 2021 Updated Nov 10, 2021
Retail firearms and gunsmithing shops are ready to temporarily store personal guns for residents who may be suicidal or violent, vacationing or having children over. Jake Tyrrell, owner of JT Tactical Firearms and Gunsmithing, works with a customer at his shop on Thursday, Jan. 30, 2020. Colorado is the first state in the nation to compile an online list of safe storage sites, to help prevent deaths by suicide and create a safe environment for children and adults. (Photo by Jerilee Bennett, The Gazette) JERILEE BENNETT, THE GAZETTE
A bill approved by state lawmakers in April requiring gun owners to report lost or stolen weapons goes into effect on Tuesday, the final piece of gun-related legislation passed during a record-breaking session for firearm bills to begin carrying the weight of law.
Under Senate Bill 78, firearm owners are required to report to law enforcement within five days of learning their gun has been lost or stolen. The relevant information in the report would include model, serial number, caliber and manufacturer, if known. Failing to report would merit a $25 fine for the first incident and would be a misdemeanor crime on subsequent occasions with a fine of up to $500.
The measure from Democratic Sens. Sonya Jaquez Lewis of Longmont and Jessie Danielson of Wheat Ridge and Reps. Tom Sullivan of Centennial and Leslie Herod of Denver passed on party line votes in both the House and Senate.
The so-called Isabella Joy Thallas Act – renamed late in the legislative process to honor a Denver woman murdered with a stolen gun in 2020 – is one of 169 pieces of legislation passed during this year’s legislative session that go into effect on Tuesday, which marks 90 days since the legislature has adjourned.
It was also one of a pair of gun bills that moved through the General Assembly midway through in the 2021 legislative session and was signed into law by Gov. Jared Polis in early April in the wake of the mass shooting at a Boulder King Soopers. The other piece of legislation, House Bill 1106, requires safe storage of guns and went into effect in early July . Rep. Don Valdez, D-La Jara, was the only lawmaker to buck the party line, voting with Republicans against that bill.
Democratic lawmakers also passed a trio of gun bills proposed in the aftermath of the King Soopers shooting. Those include:
• House Bill 1298 from Reps. Judy Amabile, D-Boulder, and Steven Woodrow, D-Denver, and Sens. Julie Gonzales, D-Denver, and Brittany Pettersen, D-Lakewood, which expands and tightens background check requirements
• House Bill 1299 from Sullivan, Rep. Jennifer Bacon, D-Denver, and Sens. Rhonda Fields, D-Aurora, and Chris Hansen, D-Denver, creating the Office of Gun Violence Prevention
• Senate Bill 256 from Sens. Stephen Fenberg, D-Boulder, and Dominick Moreno, D-Commerce City, and Reps. Edie Hooton, D-Boulder, and Lindsey Daugherty, D-Arvada, which lifts Colorado's ban on local governments passing stricter gun laws than the state's
All three of those bills contained safety clauses, meaning they went into effect immediately after being signed into law by Polis in June.
The final gun bill from the session, House Bill 1255 from Reps. Monica Duran, D-Wheat Ridge, and Matt Gray, D-Broomfield, and Jaquez Lewis and Pettersen, is aimed at strengthening Colorado’s process to get firearms out of the hands of domestic abusers. That piece of legislation also included a safety clause but some elements of the bills involving the state court administrator don't go into effect until next year.
Those bills mark a stark departure from what has become standard operating procedure for state lawmakers in Colorado, who have largely been cautious to take up legislation on guns over the course of the past decade.
Prior to this year’s session, the last substantive gun-related policy to be signed into law came in 2019 with the so-called “red flag” bill backed by Democrats. Going back to 2011, it’s twice as likely to find a legislative session without a bill on guns signed into law than to stumble across the sessions in 2019, 2014 (Senate Bill 135) or 2013 (Senate Bills 195 and 197 and House Bills 1224 and 1229).
Denver wants to regulate ‘ghost guns.’ Here’s how it might work
Dec. 08, 2021, 4:29 p.m.
Legislation that would effectively ban the creation and use of such guns is moving through city government
Denver is hoping to get ahead of the national “ghost guns” trend by banning them outright through a new bill working its way through city committees. Ghost guns — firearms assembled using parts or kits of firearm components made at home — are essentially untraceable and unregulated. The number of them is going up nationwide.
“Across the country, we are seeing an increase in the number of crimes where ghost guns are used,” city attorney Kristin Bronson explained during a meeting with city councilors on Wednesday. “We have seen ghost guns used in high school shootings in California, in hundreds of homicides and attempted homicides, and in suicides and attempted suicides as well.”
So, what exactly is a ghost gun?
It all comes down to how different parts of a weapon are classified. Nearly all components of a gun can legally be created by a 3D printer and then sold.
“They’re not regulated as firearms, despite the fact that they can be used to assemble a firearm quite easily,” Bronson said.
The only parts of a gun that always have serial numbers and are regulated are the frame and the receiver. Those are the portions of the weapon that bring together the trigger with the barrel to make firing a bullet possible. Under federal law, these pieces are considered a firearm in and of themselves. Therefore, they have a serial number and owners may have to undergo a background check before purchase.
Here’s the loophole: if a person buys an incomplete frame or receiver (colloquially called 80%ers because they are generally only 80% complete), they can build a complete firearm while bypassing all other regulations.
Ghost guns also make solving crimes much more difficult, because serial numbers contain a slew of valuable information.
“We can figure out the maker of the weapon. We can figure out the distributor. We can find out the purchaser,” assistant city attorney Reginald Nubine said during the meeting. “We lose all that information when we find one of these ghost guns.”
About 2% of the guns confiscated in the city of Denver since 2019 have been classified as ghost guns, although the Bureau of Alcohol, Tobacco, Firearms and Explosives says this number is likely an undercount because law enforcement agencies sometimes trace ghost guns incorrectly — or don’t keep track of them at all.
So what would this legislation do?
This bill makes it unlawful to possess, carry, transport, discharge, manufacture, or sell non-serialized firearms. Unfinished frames and receivers will be classified as full firearms. Additionally, “affirmative defenses” that permit otherwise illegal uses of guns (say, a minor using a gun in a shooting range, or transporting a gun to take it in for repairs) don’t apply to ghost guns, since they are banned outright.
Consequences include immediate forfeiture of the weapon, a fine of up to $999 and up to 300 days in jail.
The overall strategy is also to disrupt the manufacturing market through local laws.
“Our ultimate goal is to have them sell the [gun manufacturing] kits with a serial number,” Nubine said. “The more jurisdictions that have these laws on the books will cause a change in the market for these weapons.”
An opinion piece on "ghost guns", by Jon Caldara of the Independence Institute.
[Note: hyperlinks at the linked website article.]
Caldara: Beware media malpractice around ‘ghost guns’
December 15, 2021
By Jon Caldara
My very favorite social media meme is a picture of a car’s manual-transmission gear shift. It reads, “millennial anti-theft device.”
Wouldn’t it be weird if people who’ve never driven a stick shift tried to outlaw them? Well, that’s the anti-gun movement.
One of my favorite moments of gun-hating ignorance was when Denver U.S. Rep. Diana DeGette wrote a bill to outlaw what she called “large capacity” magazines. At a town hall meeting she was asked what would happen to all the magazines that are already out there. She said, once people shoot off the bullets and empty the magazines, they’ll be used up and thrown away.
If you know little about firearms, you’d be forgiven for not knowing how colossally stupid that is. A gun magazine is like a Pez candy dispenser. Once you eat all the candy, you don’t throw away the dispenser. You put more candy into it.
Anyone who is working the anti-gun push against so-called “ghost guns” is pulling a DeGette (and likely can’t drive a stick shift).
First, I gotta say I love whatever public relations team came up with the frightening term “ghost gun.” It’s right up there with “assault rifle,” an insincere term designed for the media to run with and create a false narrative.
Because ghost guns are obviously the biggest problem in Denver right now, City Council wants to ban them.
And the media is doing their bidding. You’ve recently read that ghost guns have no serial numbers, therefore no background check, and are created when someone just buys all the parts of a gun and puts it together at home.
If only it were true.
You have a constitutional right to own a gun, meaning you have the right to make one. And if you do, you don’t have to put the serial number on it because you’re not Smith and Wesson. You’re not selling it to anyone. You made it for yourself.
However, if you sold or gave away that gun, you would then have to put a serial number on it and register yourself as a gun manufacturer. You’d be Smith & Wesson.
So, technically speaking, what exactly is a gun? Can’t use the “I know it when I see it” method. The law requires something non-subjective.
Like folks do with their motorcycles and sports equipment, gun enthusiasts modify their guns all the time — a different barrel, smoother trigger, better sights, superior hand grips and so on. They swap out parts all the time. Imagine needing a background check to buy a spring.
One of those components must, legally speaking, be called “the gun” so you can’t just buy all the parts and make a gun. So, the government decided the receiver (the frame) shall be labeled “the gun.”
If you want to make that one part, that frame, you might buy a hunk of polymer plastic and whittle it all the way down to make a frame.
Basically, what the ghost gun fearmongers want to do is outlaw buying any piece of polymer, or aluminum, or steel because it could be turned into a gun frame. Pure silliness.
The Bureau of Alcohol, Tobacco, Firearms and Explosives came up with an “80% rule.” If that hunk of plastic (or aluminum or steel) is more than 80% to its way of becoming a frame, then it’s legally considered a gun.
And if someone sells it to you, you need a background check, and it needs a serial number.
Think of it as Michelangelo’s sculpture of David, but not fully sculpted. If David is less than 80% complete, it’s not David yet. It’s just marble.
If you want it to be David, you must take it home, and perfectly chip away all the unneeded marble, and not a chip more, in order to make it David. And that takes real skill to do. That’s why when I hear our president say that these ghost guns can be assembled in a half-hour, I laugh.
Joe, you might be able to still drive a stick shift, but I’ll bet all I own you can’t build a “ghost gun” in 30 minutes.
The media should be ashamed of their sloppy reporting. Or they should cop to the fact they’re working for anti-gun propaganda efforts.
Jon Caldara is president of the Independence Institute, a free market think tank in Denver.
Smoke 'em if you got 'em.
I can hear Democrat heads in the legislature exploding, from miles away. I have no doubt that the Democrats will be plotting their work-arounds to this ruling very soon... but I am savoring the moment.
Not to throw any cold water on this ruling, but the judge ruling in the case only issued a Temporary Restraining Order (TRO), and so this case will undoubtedly be eventually appealed upwards to the 10th Circuit court.
The author of the piece below is noted Constitution and 2A lawyer David Kopel, one of the lawyers who argued in support of the SCOTUS Heller case. There is some interesting historical gun control measures that apparently influenced this case, in addition to previous rulings on challenges to these bans.
[Note: hyperlinks found at linked website article.]
Emphasis added in bold.
Colorado U.S. District Court issues TRO against magazine and gun ban
Ruling against town of Superior's law is the first post-Bruen decision on arms bans
7.22.2022 9:02 PM
Today U.S. District Judge Raymond P. Moore issued a temporary restraining order against the ban on so-called "assault weapons" recently enacted by the town of Superior, Colorado, in Boulder County. The case is Rocky Mountain Gun Owners v. Superior.
Lead attorney for the plaintiffs was Barry Arrington, one of Colorado's top lawyers on education law, and now the victor in a major Second Amendment case. Arrington previously served in the Colorado House of Representatives, and as a trustee of the Independence Institute, where I work.
Judge Moore formerly was a corporate lawyer (Davis, Graham and Stubbs, Denver), and then head Federal Public Defender for Colo. and Wyoming. He was appointed to the bench by President Obama in 2013, and confirmed unanimously.
Like several other towns in Boulder County, Superior recently outlawed semiautomatic centerfire rifles that have at least one supposedly bad characteristic, such as an adjustable stock; various semiautomatic shotguns; various semiautomatic handguns; and magazines with a capacity of over 10 rounds.
It was obvious that such arms are "commonly used by law-abiding citizens for lawful purposes," which is the Supreme Court's rule from District of Columbia v. Heller (2008) for which arms are protected by the Second Amendment. First, the Colorado Attorney General and plaintiffs in an earlier case challenging the state of Colorado's ban on magazines over 15 rounds had so stipulated. Colorado Outfitters Ass'n v. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D. Colo. 2014), vacated in part on other grounds and remanded, 823 F.3d 537 (10th Cir. 2016). (I represented 55 Colorado Sheriff plaintiffs in the case, which ended up with the 10th Circuit declaring that neither the Sheriffs nor the many other individual and organizational plaintiffs had standing.) Commonality was also found in the undisputed facts set forth in Fourth Circuit Judge Traxler's dissenting opinion in Kolbe v. Hogan, 849 F.3d 114, 153-55 (4th Cir. 2017). The opinions of many other Circuit Courts provide additional, irrefutable proof of commonality; the banned firearms number in the millions, at least, and the banned magazines comprise over half of all magazines.
Pursuant to the Supreme Court's recent decision in New York State Rifle & Pistol Association v. Bruen, courts are supposed to decide Second Amendment cases on text, history, and tradition. Judge may not decide based on their own opinions about good policy, nor should they defer to legislative policy judgements. The policy balancing was already conducted by the American people when they adopted the Second Amendment.
In Bruen's historical approach, the most important periods are the Founding Era and Reconstruction (when the Fourteenth Amendment made the Second Amendment enforceable against state and local governments). English history is relevant to the extent that is shows an unbroken tradition that was adopted in America and continued to the Founding. Colonial history is also relevant. So is 19th century history, and (Reconstruction excepted), the earlier the better. The late 19th century is weaker, and the 20th century is far too late to show a historical tradition that could override the text of the Second Amendment.
Judge Moore wrote: "the Court is unaware of historical precedent that would permit a governmental entity to entirely ban a type of weapon that is commonly used by law-abiding citizens for lawful purposes, whether in an individual's home or in public."
To be precise, there are a few precedents pre-1900, but none are valid any longer.
After incidents in which armed black people deterred lynch mobs, Florida in 1893 enacted a license requirement an exorbitant bond to carry or possess a "Winchester rifle or other repeating rifle." Fla. Laws 1893, ch. 4147, §1. In a 1941, a Florida Supreme Court Justice explained that the statute was enacted to control black laborers:
The statute was never intended to be applied to the white population and in practice has never been so applied…. [T]here has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and nonenforceable if contested.
Watson v. Stone, 4 So. 2d 700, 703 (1941) (Buford, J., concurring) (agreeing with majority holding that the statute does not apply to automobile carry).
Once "redeemed" white racist governments regained control over Tennessee and Arkansas after the end of Reconstruction, they banned concealable handguns, and the bans were upheld by state courts. State v. Wilburn, 66 Tenn. (7 Bax.) 57 (1872), Fife v. State, 31 Ark. 455 (1876). Given that Bruen affirms the right to carry a concealed handgun, these precedents are invalid.
The controlling case law of Bruen being clear, and the exercise of a constitutional right being suppressed, the appropriateness of a TRO was plain.
The Colorado plaintiffs also challenged Superior's ban on open carry of handguns. Judge Moore denied the TRO motion against the open carry ban. As he accurately stated, Bruen affirms the right to bear arms, but also allows governments to decide whether the mode of carry shall be open or concealed. Since 2003 in Colorado, concealed carry permits have been available to adults with safety training who pass a fingerprint-based background check. A system that bans open carry while allowing concealed carry does not violate the Second Amendment.
After Bruen, the Supreme Court granted, vacated, and remanded California and New Jersey cases on the confiscation of magazines over 10 rounds. Also GVR'd was a case about Maryland's ban on common rifles. Additionally, new cases on similar bans have been filed in a variety of jurisdictions.
The Superior case is the first one to result in a judicial opinion, and could be persuasive, albeit not binding, precedent in cases nationwide.
Legal stuff usually goes over my head.
But one positive in this ruling is that it seems that is some integrity in judges on the left. Decisions based on precedence, not bias.
"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - B.Franklin
"Wrong does not cease to be wrong because the majority share in it." L.Tolstoy
"A government is just a body of people, usually, notably, ungoverned." Shepherd Book
Dang, this thread is old.
Endure the present, and watch for better things. - Virgil
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