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 start with the addition of C.R.S. 18-12-301, having to do with “Large Capacity Ammunition Magazines”.
We will first begin with the name of the bill. As many of you know, a magazine which holds more than 15 rounds is not a “Large Capacity” magazine but in many cases just the stock or standard magazine that comes with the firearm. However, if you asked my mother, who is not a gun owner, “Do you think people should have access to “large capacity magazines”, she would answer,”No, why do you need any more bullets than a standard capacity ammunition magazine can hold? ”. So without knowing about magazines, she would say she is in favor of such a law. Same could hold true with a jury, more on that below.
Next, this piece of legislation was passed without guidance or suggestions from those who would be most affected. The politicians did not care about input from the citizens of Colorado. They knew their window of time was limited and they had to get this passed post haste. Whenever this occurs, we get bad law. This is bad law.
Some of the people tasked with having to enforce this law, namely law enforcement and district attorneys, have come out against it. For example, El Paso County Sheriff Terry Maketa and Weld County Sheriff John Cooke have stated that this law will do nothing to protect the citizens of Colorado and that they will not enforce it. El Paso County District Attorney Dan Mays has come out recently being critical of the law stating, “Quite frankly, that’s what this is, window dressing”.
I am not so naïve to believe that the sponsors of this bill had our best interests in mind when creating this law. This law was created for other purposes. As is coming out in the news in New York, Mayor Bloomberg’s group has been writing these laws or openly “assisting” with their creation. As such, they are heavily flawed and designed to be able to remove guns from the public. The true effect of the recent New York laws are coming to light and the citizens are not happy. New Yorkers have found that what was sold to them in the name of safety is making life for them more dangerous. The New York politicians are placing the blame on Mayor Bloomberg’s people and stating that they did not fully understand the impact of the laws when enacted. I feel the same will happen in Colorado.
But for now, we have these laws and we will be impacted by them so you need to know how they can affect you. As usual, I am not providing the reader with legal advice. I am just educating you on what the law is and how I will respond to them. You will choose on your own how you will choose to respond.
DEFINITIONS UNDER THE NEW LAW
Most statutes begin with certain definitions so that it is clear when we use words contained within the statute, we all understand how the word is to be used.
C.R.S. 18-12-301 (2)(a) defines the term, “Large Capacity Magazine”. It states, (I) A fixed or detachable magazine, box, drum, feed strip or similar device capable of accepting, or that is designed to be readily converted to accept, more than fifteen rounds of ammunition.
As you can see, there is a huge problem with this definition. The wording, “or that is designed to be readily converted to accept”, is flawed at best. Why? With this definition, a police officer or prosecutor could expand the definition of a magazine.
If I am a prosecutor who is deciding whether to charge someone with a violation of this law, I would want to see what magazine the person had on his person when arrested. If the magazine had the capacity to hold fifteen or less rounds of ammunition, I would not charge the person. But if I did not like citizens possessing guns or magazines with fifteen rounds because of my personal agenda, I would use the defining language to state that the magazine “could be readily converted” to hold more than fifteen rounds so it is a chargeable offense.
As many of you know, a magazine has a certain capacity for the number of rounds it holds. But on many magazines, you can remove the bottom plate and add a device that will extend the magazine. By doing so, you allow for more rounds to be loaded into the magazine.
So in the hands of a district attorney, jury or Judge who are against a citizen’s Second Amendment’s rights and do not like people having the ability to protect themselves with firearms, it could be argued that all magazines that people possess are designed to be “readily converted” to accept more than fifteen rounds of ammunition. If so, you can be found guilty of a Class 2 Misdemeanor for possession of standard magazine. Incredible coincidence or the grand plan all along? You decide. [JWR Adds: Magazine extensions are indeed available for a wide variety of pistol magazines. See for example, those made by Taylor Freelance and Scherer.]
There are two other points to note from the definition section of this law. First, if the magazine is only capable of operating with .22 caliber rimfire ammunition it is not affected by this law. Perhaps the discussion of the capability of the .22 round will become more popular again. Second, a magazine that is contained on a “lever-action” firearm is not affected. This would include the cowboy style rifles that were used in the movies and old tv shows.
PENALTIES FOR VIOLATING THE LAW
C.R.S. 18-12-302 deals with the penalties and exceptions to the law. Section (1)(a) states as follows:
Except as otherwise provided in this section, on and after July 1, 2013, a person who sells, transfers, or possesses a large capacity magazine commits a Class 2 Misdemeanor.
This means starting on July 1, 2013, if you have what is defined as a “large capacity magazine”, you cannot sell, transfer or possess it legally. We will talk about the exceptions to this below but for now we will start with the definitions again.
For the individual, I think we all understand what it means to “sell”. But what does “transfer” mean in this circumstance? Does this mean that we cannot give away such a magazine when we die through a will or trust? I think that is what could and will be argued by a prosecutor. What if I am at the range and someone offers to me a chance to shoot their firearm and they have a non-compliant magazine? By allowing me to borrow the firearm to shoot for a minute or two, is that a “transfer”? Again, it could be argued that way.
The same holds true for the word, “possesses”. Who “possesses” a magazine if the non-compliant magazine is found in a house or car? Will my children be charged with such a violation if I am found to have a non-compliant magazine in my home? Can more than one person possess a magazine?
In People v. Garcia, 595 P. 2d 228, the Colorado Supreme Court stated “The common sense definition of “possession,” as it is used in this statute, is the actual or physical control of a firearm.[4] However, they included a footnote to that statement. That footnote reads:
[4] The determination of whether or not a firearm is within one’s actual or physical control is a question of fact for the jury. However, it is clear that the mere ownership of a firearm is not sufficient to constitute “possession” under the statute. Some of the factors which could be considered by the trier of fact in making this determination are: (1) the proximately of the defendant to the firearm; (2) the ordinary place of storage of the firearm; (3) the defendant’s awareness of the presence of the firearm; (4) locks or other physical impediments which preclude ready access to the firearm.
Using this legal precedent, a prosecutor could use those four factors to charge anyone with a violation of this statute. Not just the owner of the firearm but anyone near or aware of the magazine(s). I hope you can see how in the hands of an overzealous Government agent, this could become ugly very quickly.
The first conviction of the statute will be a Class 2 Misdemeanor. If you are convicted a second time, you will be facing a Class 1 Misdemeanor. If you should use such a magazine during the commission of a felony or any crime of violence, you will be committing a Class 6 Felony as well. Crimes are divided into two categories, Misdemeanors and Felonies. Within each type of crimes, there are different classes. Class 1 is the highest class within that crime category and a Class 6 class is the lowest.
THE EXCEPTIONS TO THE LAW
While there is a grandfather clause within this statute, it is limited or conditional. In order to possess a large capacity magazine, you must have owned the large capacity magazine before July 1, 2013 and you must have maintained “continuous possession” of the magazine. See section (2)(a).
So again, we start with the definitions: what does it mean to “own”? Can more than one person “own” a magazine? Again, back to my previous example- if a non-compliant magazine is found in my house who owns it? Me, my wife, my children? In Colorado, it is illegal for someone under the age of 18 to possess a firearm, unless certain exemptions apply. Since my children can not possess a firearm, they cannot own the magazine that comes with the firearm. In that circumstance can my children be charged with possessing a non compliant magazine found at my house even though they do not own it? Or what about my wife? Will I be forced to say that my wife “owns” the magazine so I get arrested for not having the exception apply to me?
For the exception to apply, we must have also “continuously possessed the magazine”. So what does that mean? If we take the firearm and magazine to be worked on by a gunsmith have we lost our continuous possession? If we loan the firearm and magazine to a friend, have we broken the possession? Again, can more than one person continuously possess a magazine? If the magazine is listed within a gun trust, has the possession be broken? As an NRA certified instructor, if I let a student shoot my firearm, have I broken my continuous possession? I do not know.
Remember that the exception only allows you to possess a large capacity magazine. It is still a violation of the law if you “sell” or “transfer” a large capacity magazine.
ASSERTION OF THE EXCEPTION
In order for the exception to apply, the person who is charged must assert the exception mentioned above, i.e., you owned the magazine as of July 1, 2013 and you maintained continuous possession of the magazine.
Unlike the provisions of C.R.S. 18-1-704.5(2), the so called “Make my Day” law, this law does not allow for a defendant to raise the assertion and receive immunity from further criminal prosecution. Instead, in order to raise the assertion it reads to be an affirmative defense. This means that in order to assert the exception and not be found guilty, you must fight the charge. This means that you will have to go to trial. Once there, you will be required to raise the exceptions by presenting some credible evidence supporting the exceptions. Once done, the prosecution must then refute your assertions beyond a reasonable doubt. This is a higher burden of proof than the defendant’s burden of proof when asserting the exceptions. While is this better for the defendant, you still must go to trial to assert the exceptions.
But how can a person prove such an assertion? Will your personal statement that you owned and maintained continuous possession of the magazine satisfy the Judge or jury? I don’t know. I, for one, will be finding and keeping any and all receipts that I have for any large capacity magazine(s) that I own. No receipts? I would suggest that you take a photograph or video of any of the large capacity magazines that you now currently own. Make sure that the video or photograph includes a date stamp.
After you assert the exception, the burden of proof shifts back to the prosecution to refute your assertion. How will they refute my assertion? Calling my wife or my children as a witness against me? Subpoena my credit card statements to show when the purchase occurred? Call friends that I shoot with to determine if I allowed them to borrow the magazine? If in the hands of a biased prosecutor, this law could provide them with the backing to abuse the gun owner and his/her family.
PROBLEMS WITH THIS LAW
To conclude, here are some of the areas where I could see the police and district attorneys using this statute to abuse gun owners:
Police:
1. If you are open carrying a semi-automatic handgun, this law will provide the police probable cause to stop and detain you while they determine if you are violating this statute (which the police could not do legally before this law);
2. This law will provide the police the ability to disarm you while they determine the capacity of your magazine (which was not legal before this law);
3. If you inform the police that you are conceal carrying a handgun, you can be stopped and detained to determine the capacity of the magazine (which before this law was not a valid reason to detain you);
4. If your magazine carries more than 15 rounds of ammunition, you could be arrested or cited for a violation of this law and your firearm and magazine taken as evidence while you prove your innocence. Remember, in order to fully assert your exemptions, you must go to trial. This will take time and you will be without your handgun and magazine until after the trial.
5. Should you now claim your Fifth Amendment right if asked by a police officer whether you are carrying a firearm? Perhaps if your magazine holds more than 15 rounds of ammunition. If you do so, what will be the police officer’s response? Arrest you? Let you go?
6. As stated above, who possesses a magazine when it is found in a person’s home or car? And, for the exception, who owns and maintains continuous possession of a large capacity magazine when it is located in an area where multiple people are?
Prosecutors:
1. After receiving the firearm and magazine as evidence, the district attorney could use the threat of a trial on defendants to make them accept a plea deal that will include the loss of your firearm and magazine forever.
2. What will they do when you die owning a large capacity magazine? Would they charge the executor of your will if a transfer per your will takes place after you die? What actually is that executor to do with the magazine at that point? Turn it in to the police? Given that, it will not be that long before all of the current owners of large capacity magazines pass away and their magazines destroyed after being turned in the police. Call it self- directed gun confiscation.
3. Going on a “fishing expedition” trying to refute my exception assertions. This can be accomplished by requesting any and all documents, people, etc that could be used to refute my exception assertions.
4. Tying up the defendant in a long, expensive trial while at the same time not allowing the defendant to have possession of their handgun(s) while the trial is ongoing.
5. With the way that this law is written, if you plan on asserting the exceptions you will be waiving your 5th Amendment rights to self incrimination. By that I mean you will have to testify to assert the exemptions. This will give the prosecutor the ability to cross examine you as they attempt to refute your assertions.
What can you do right now? First, support your local Sheriff if they are opposed to these gun laws. Call them and voice your support. They need to hear from their supporters. Second, join the effort to recall Senator John Morse. He was the gang leader in the creation of this legislation. As we all remember from grade school, if you do not fight back hard when the bully picks on you, he will return again and again. A message must be sent to our local legislators. You can look up the recall effort on Facebook for more information. Alternatively, you can go to www.bfdf.org.
I will continue to update my blog as more information about this statute becomes available. Visit Legal-Tactics.com and leave me your questions.
