On March 10, 2013, the Governor of Colorado signed into law three new statutes that pertain to gun and magazine owners throughout the state. In this post, I will address the addition of C.R.S. 18-12-112, having to do with “Private Firearms Transfer”. No reader should consider this post to be legal advice for themselves or anyone else. My intent is to educate you on the law and for you to make your own decisions.
On and after July 1, 2013, a person who is not a licensed gun dealer, before they transfer or attempt to transfer possession of a firearm to a transferee, they must:
1. Require that a background check be conducted of the prospective transferee;
2. Obtain approval of a transfer from CBI after a background check has been requested by a licensed gun dealer.
In order to understand the law you must start with the definitions. A “Transferee” means a person who desires to receive or acquire a firearm from the “Transferor”. A “Transferor” is the person who either owns or has possession of the firearm for a number of reasons.
If you are not a licensed gun dealer and you want to transfer possession of a firearm to a transferee, you will have to utilize the services of a licensed gun dealer for the purpose of having them provide you a background check of the transferee. The licensed gun dealer will provide the same background check and fill out the same paperwork as if they were selling the transferee the firearm themselves. For this service, the licensed gun dealer may not charge more than ten dollars.
Once the licensed gun dealer completes the background check of the transferee, they shall provide the transferor a copy of the results of the background check, including CBI’s approval or disapproval of the transfer. The approval will be valid for 30 days and valid only for the transferor and transferee.
The licensed gun dealer will be required to record the transfer and retain the records as they would on any retail gun purchase.
VIOLATIONS OF THE LAW
A person who violates this statute shall be guilty of a Class 1 Misdemeanor. This is the highest level of Misdemeanor and is punishable by six months to eighteen months imprisonment and/or a Five hundred dollars and up to a Five thousand dollar fine or both. There is an additional punishment associated with a violation of this statute. The violator shall also be prohibited from possessing a firearm for two years, beginning on the date of his or her conviction. If convicted, the State Court Administrator will report the conviction to National Instant Criminal Background Check System. You will not be able to legally possess a firearm in Colorado during the prohibition time. What is not clear is how other states will view this restriction. Will they too also determine that you are not to carry in their state?
Remember prohibition time period starts at the time of your conviction. That means if you go to trial on the matter, it could be anywhere from six months to a year before your conviction actually occurs.
Additionally, if you violate this statute you MAY be jointly and severally liable for any civil damages proximately caused by the transferee’s subsequent use of the firearm. I will expound on this below.
EXCEPTIONS TO THE LAW
There are numerous exceptions within this statute. The background requirement does not apply to the following:
1. The transfer of an antique firearm; [JWR Adds: See my FAQ page on antique guns. I predict that pre-1899 antiques will become increasingly important, as gun laws expand in some states in coming years.]
2. A bona fide gift or loan between immediate family members;
3. A transfer that occurs by operation of law or because of the death of a person for whom the transferor is an executor of a will or trust;
4. A transfer that is temporary and occurs while in the home of the unlicensed transferee if, the transferee is not prohibited from possessing firearms and the unlicensed transferee reasonably believes that the possession of the firearm is necessary to prevent imminent death or serious bodily injury to the unlicensed transferee;
5. A temporary transfer of possession without transfer of ownership or a title to ownership occurs at:
a. At a shooting range;
b. At a target firearm shooting competition;
c. While hunting, fishing, target shooting or trapping if:
1. All hunting, fishing, target shooting or trapping is legal in all places where the unlicensed transferee is possessing the firearm; and
2. The unlicensed transferee holds any license or permit that is required
d. Any temporary transfer occurs while in the continuous presence of the owner of the firearm;
e. A temporary transfer cannot be for more than 72 hours. Should the transferee use your firearm unlawfully, you may be jointly and severally liable for damages proximately caused by the transferee’s use.
f. A transfer that is made to facilitate the repair or maintenance of the firearm.
g. A transfer from a person who is serving in the Armed Forces of the US who will be deploying within 30 days and the transfer go to an immediate family member.
All I have heard over and over from the politicians in Colorado is that this is not a gun registry. Yet, now all private guns sales will be recorded in the books of licensed gun dealers. These records are required to be kept for twenty (20) years after the transfer occurs and the records are open for inspection at any time by the ATF. Additionally, should the licensed gun dealer go out of business or decides to retire, he/she is required to forward all of their gun records to the ATF. Knowing this, please tell me how this is not a gun registry.
The punishment for the violation of this statute is severe. A Class 1 misdemeanor can include jail time if the Judge chooses to sentence you with such and the monetary fine can range from five hundred to five thousand dollars. But the addition of the loss of possession of ANY firearm for two years is well beyond what I would consider to be fair punishment.
As with the Large Capacity Magazine law, it appears that the goal of these laws are to disarm and remove guns from citizens as opposed to punishing them for not completing paperwork. I would like to see the true statistics relating to how many criminals are buying guns from private citizens before committing their crimes. Using common sense, we know that is not how they are arming themselves. The criminals are acting as criminals by stealing the guns and then using them in the commission of crimes. This law does nothing more than regulate (control) law abiding citizens when selling their own private property.
Another punishment for violation of this statute is the attachment of joint and several liability for any civil damages proximately caused by the transferee’s subsequent use of the firearm. Joint and several liability means that if three people were involved in the matter and all three were found to be liable, the damaged party could pursue all three people or just one to recover the whole amount. Given this, the person with the deepest pocket looses.
Read alongside the Large Capacity Magazine law, this law will allow firearms that utilize Large Capacity Magazines to be transferred but just without the Large Capacity Magazines. Again, just a coincidence or the grand plan all along?
Currently, 40 out of 62 Sheriffs in Colorado will be filing suit against the state of Colorado to determine whether this law and the large capacity magazine law are constitutional. While this is good, it will be a long and expensive route to take in order to get a resolution.
I will continue to update my blog as more information about this statute becomes available. Visit www.legal-tactics.com and leave me your questions.