Fun and guns in Colorado

[NeuroTypical]

We're all sad about the recent news out of New Zealand.  Speaking of well-intentioned people trying to address the gun problem, Colorado is setting itself up to have a repeat of 2013.  For those who don't know what happened in 2013 (which is probably all of you), here's a recap:

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Here in Colorado, after the Aurora theater killing, our blue legislature and blue governor went on a legislating spree and pushed through a bunch of horrible gun bills, including one of these 'high cap magazine bans'.  Wikipedia has a fairly good summary:

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On March 20, 2013, Hickenlooper signed bills HB1224, HB1228 and HB1229. HB1224 created a limit of 15 rounds in magazines that could be bought, sold or transferred within the state. HB1229 requires background checks for any firearm transfer within the state, and HB1228 taxes firearm transfers to recover costs of the background checks from HB1229. 

Opponents of these bills gathered enough signatures to trigger special recall elections that resulted in the recall of Democratic Senate President John Morse, and Democratic Senator Angela Giron. Democratic Senator Evie Hudak later resigned rather than face her own recall election on this issue.

 

What Wiki fails to mention here, is that just about every single county Sheriff in the state joined together in a lawsuit against several of these bills, especially the magazine limit bill.  Totally unenforceable.  It made just about every legal gun owner in potential hot water - including me.  Last I heard, the DA's office and law enforcement had an informal agreement, that everyone would just ignore these stupid bills and not bother trying to enforce any of them.

What Wiki also fails to mention, is that if we had recalled Hudak (which we were on track to do), the whole state legislature would have flipped from democrat to republican.  Hudak's resignation meant the dems could appoint their own replacement.   The whole issue made international news, and had a (welcome and needed) chilling effect on dumb gun control attempts across the nation.  

We sent a pretty clear message: "Hey politician!  You want to get in front of the latest gun outrage and start legislating from a position of emotional idiocy?  Well, prepare to spend some time running for your own job in a non-election year, because we'll fire you like we fired Morse and Giron."

Good times.  So, as I said, we're gearing up for a repeat of 2013.  Our (first ever openly gay) governor, and fresh blue and progressive legislators, are trying to get a "red flag law" passed.   Basically, a family member or law enforcement officer can ask the court to issue a temporary extreme risk protection order (ERPO).   And,

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Upon issuance of the ERPO, the respondent shall surrender all of his or her firearms and his or her concealed carry permit if the respondent has one. The respondent may surrender his or her firearms either to a law enforcement agency or a federally licensed firearms dealer. If a person other than the respondent claims title to any firearms surrendered to law enforcement, the firearm shall be returned to him or her.

 You can read about it here: https://leg.colorado.gov/bills/hb18-1436

 

Sounds good, right?  Hothead Joe just lost his job, his truck, and his dog.  He's running around muttering "they gonna pay, they all gonna pay big".  Last night, his wife ran screaming into a police station with a bruise on her forehead, saying "He's going to shoot everybody!"  So she and the cops go to court, gets an ERPO, and Joe has to hand over his guns, even though he has committed no crime.  After 182 days, Joe gets his guns back unless his wife can provide clear convincing evidence Joe is still an immediate threat.

The folks opposed to this, raise various points.  

1- You can't remove Joe's 2nd amendment rights without affording him his 6th amendment rights (trial, witnesses, attorney, conviction).   First thing Joe hears about it, is when he's notified the ERPO got put into place. The thing is unconstitutional at it's very core. No really, are we a nation of laws, or aren't we?  Do we value due process, or don't we?  The state doesn't get to do jack squat to people who have done nothing wrong, just based on some vague guess at what they might do.  What do you mean "except for just this one time"?  No, that's not acceptable!

2- False reporting is a thing.  Go ask any cop with more than 1 year on the force about all the "Joe's wives" they've encountered, who have hit themselves on the head and lied to the cops because they're mad, not because they've been abused.  It's why we have courts, to protect the rights of the accused, until they are judged guilty.  All you need is a ticked-off person and an anti-gun judge, and any peaceful, law-abiding citizen is at risk of having their guns taken by the state.

3- When you look at who is doing the dying, and who is doing the killing, even if this law works perfectly, it will only address the tiniest fraction of gun violence.  We all think about the mass shooter and the guy who breaks, because the very, very, very few that do, get pushed into our headlines.  But they are pretty much 99.9% eclipsed by the real issues of gang warfare, mental illness, or the correlation with poverty/no father figure/race.   An ERPO does not address the underlying causes, just a handy tool.  The underlying causes remain.

4- The act of enforcing an ERPO will create gun violence that would otherwise not happen.  In the words of one county Sheriff, "This could easily escalate, rather than de-escalate, volatile situations. I fear this bill will increase the chances of a law enforcement officers getting into dangerous, armed confrontations with citizens who have committed no crimes."

Anyway, 30+ out of 64 counties (and growing) are adopting "2nd amendment sanctuary" measures.  Anything from lobbying against the bill's passage, to vowing to fight it in court should it pass, to outright "we will not enforce" promises.  So here's a very real risk - Our shiny new governor and the fresh blue legislators pass a bill that local law enforcement refuses to enforce.  This is bad press for Governor Polis.  How is he going to try to urge/force people to comply?  This could turn into an armed standoff between various sides wearing various badges, like the Little Rock crisis of 1957 when it was federal troops vs Arkansas national guard.  I'm thinking it'll just be 2013 all over again, but it could be worse.

Edited March 27, 2019 by NeuroTypical

[Guest Godless]

I'm all for gun reform and improved measures for identifying and dealing with at-risk individuals, but you and I are in agreement that this solution is unconstitutional and unenforceable. I'm for common sense gun reform, and this ain't it.

[Colirio]

13 minutes ago, Godless said:

 I'm for common sense gun reform, and this ain't it.

 

If they aren't a convicted felon, is there any reason that someone's right to keep and bear arms should be limited? 

 

[unixknight]

21 minutes ago, Godless said:

I'm all for gun reform and improved measures for identifying and dealing with at-risk individuals, but you and I are in agreement that this solution is unconstitutional and unenforceable. I'm for common sense gun reform, and this ain't it.

I agree also about it being unconstitutional and unenforceable.  I do get twitchy whenever I hear/see someone say "common sense gun reform" because the term means nothing.  Everybody has their own idea of what "common sense" means.  That's why it's such a great political marketing term.

4 minutes ago, Colirio said:

If they aren't a convicted felon, is there any reason that someone's right to keep and bear arms should be limited? 

I can see in cases of certain types of mental illness.

[Just_A_Guy]

Ok, @NeuroTypical, walk me through this:

In Utah, I can get a protective order ex parte against a member of my family or former romantic partner if I have a well-founded fear of imminent harm.  (I don’t remember the exact legal language, but it’s something along those lines).  It goes to the judge immediately.  If the judge signs it there will be a hearing within ten days, but the order is effective now.  That order, by law, makes the defendant ineligible to possess firearms—he doesn’t have to turn them over to law enforcement, but he has to give them to *someone*.  If the defendant prevails at the hearing, then the whole thing goes away and he can go get his guns back.  It has been thus, I believe, as long as I’ve been practicing (2008).

How is this meaningfully different than the proposed Colorado regimen?

Edited March 27, 2019 by Just_A_Guy

[anatess2]

3 minutes ago, Just_A_Guy said:

Ok, @NeuroTypical, walk me through this:

In Utah, I can get a protective order ex parte against a member of my family or former romantic partner if I have a well-founded fear of imminent harm.  (I don’t remember the exact legal language, but it’s something along those lines).  It goes to the judge immediately.  If the judge signs it there will be a hearing within ten days, but the order is effective now.  That order, by law, makes the defendant ineligible to possess firearms—he doesn’t have to turn them over to law enforcement, but he has to give them to *someone*.  It has been thus, I believe, as long as I’ve been practicing (2008).

How is this meaningfully different than the proposed Colorado regimen?

It's not.  Colorado doesn't want to be Utah.  And my hope is that they wouldn't as far as gun laws are concerned.  In my opinion (just basing off  your description of the law), the Utah law is unconstitutional.

Edited March 27, 2019 by anatess2

[Just_A_Guy]

8 minutes ago, anatess2 said:

It's not.  Colorado doesn't want to be Utah.  And my hope is that they wouldn't as far as gun laws are concerned.  In my opinion (just basing off  your description of the law), the Utah law is unconstitutional.

So (not trying to be snarky, just exploring the issue) is the idea of jailing an accused criminal pending trial also unconstitutional?  Or do accused offenders have a greater right to gun ownership, than they do to liberty?  

Or do we excuse pre-trial jailing because the suspect has the theoretical ability to make bail; and if that’s the case, would it be unconstitutional to require accused offenders to post a bond in order to keep their guns pending hearing?

Edited March 27, 2019 by Just_A_Guy

[Guest Godless]

Lol, JAG beat me to it. ^

My only other concern is to ensure that there is an effective and responsible reporting method to prevent false reports as much as possible. 

Edited March 27, 2019 by Godless

[Guest Mores]

1 hour ago, NeuroTypical said:

Sounds good, right?  Hothead Joe just lost his job, his truck, and his dog.  He's running around muttering "they gonna pay, they all gonna pay big".  Last night, his wife ran screaming into a police station with a bruise on her forehead, saying "He's going to shoot everybody!"  So she and the cops go to court, gets an ERPO, and Joe has to hand over his guns, even though he has committed no crime.  After 182 days, Joe gets his guns back unless his wife can provide clear convincing evidence Joe is still an immediate threat.

Colorado already has civil asset forfeiture on the books and is showing no signs of repeal (unless something has happened in the past 6 months I'm unaware of).  With that on the books, then I don't see this as any worse.  In fact, I see it as an improvement.  At least there is a time limit on it.  CAF can be indefinite.

[anatess2]

2 minutes ago, Just_A_Guy said:

So (not trying to be snarky, just exploring the issue) is the idea of jailing an accused criminal pending trial also unconstitutional?  Or so accused offenders have a greater right to gun ownership, than they do to liberty?      

No.  The bill of rights does not specify "the right of a person to be located where he wants to be located shall be protected".  So, here's the counter question - do you believe that preventing an accused criminal from speaking from his jail cell is constitutional?

There's no "greater right".  C'mon, Mr. lawyer!  The government doesn't grant you rights such that it is possible to have greater or lesser of it.  There is simply - "bound to protect" or "not bound to protect".

 

2 minutes ago, Just_A_Guy said:

Or do we excuse pre-trial jailing because the suspect has the theoretical ability to make bail; and if that’s the case, would it be unconstitutional to require accused offenders to post a bond in order to keep their guns pending hearing?

Here's your dilemma - a spouse filed for protection because she felt in danger.  The state took the guy's firearm.  A violent criminal broke into his house and shot him dead because he was left defenseless.  THAT's your constitutional dilemma.

 

[Guest Godless]

24 minutes ago, Colirio said:

 

If they aren't a convicted felon, is there any reason that someone's right to keep and bear arms should be limited? 

 

Domestic abusers often aren't convicted of felonies, and they tend to be the most common perpetrators of fatal domestic shootings. I'd say that definitely needs to be looked at.

18 minutes ago, unixknight said:

I agree also about it being unconstitutional and unenforceable.  I do get twitchy whenever I hear/see someone say "common sense gun reform" because the term means nothing.  Everybody has their own idea of what "common sense" means.  That's why it's such a great political marketing term.

That's because we're so polarized on the issue that we have been unable to reach agreement on comprehensive measures that level-headed citizens on both sides of the issue can agree on. They exist, but they often get drowned out by "ban all teh gunz" on one side and "background checks violate muh rights" on the other. 

18 minutes ago, unixknight said:

I can see in cases of certain types of mental illness.

My take is that if you are on medication for anxiety, depression, or any kind of disorder that lends a person to emotional instability, your right to own a firearm should be evaluated. Probably not a popular opinion, but I think it's worth exploring.

[Guest Mores]

4 minutes ago, anatess2 said:

No.  The bill of rights does not specify "the right of a person to be located where he wants to be located shall be protected". 

Really?

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...nor shall (he)... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken.

It's all the same. Liberty is infringed when a person is taken into custody pending trial.  Property is infringed when a person's property is taken into custody pending trial.  They're on the same level.

[Guest Mores]

Just now, Godless said:

Domestic abusers often aren't convicted of felonies, and they tend to be the most common perpetrators of fatal domestic shootings.

I'm not doubting this.  I can fully believe it.  But do you have a source for that statistic?

[Guest Godless]

2 minutes ago, Mores said:

I'm not doubting this.  I can fully believe it.  But do you have a source for that statistic?

https://lawcenter.giffords.org/gun-laws/policy-areas/who-can-have-a-gun/domestic-violence-firearms/

 

[Just_A_Guy]

21 minutes ago, anatess2 said:

No.  The bill of rights does not specify "the right of a person to be located where he wants to be located shall be protected".  So, here's the counter question - do you believe that preventing an accused criminal from speaking from his jail cell is constitutional?

There's no "greater right".  C'mon, Mr. lawyer!  The government doesn't grant you rights such that it is possible to have greater or lesser of it.  There is simply - "bound to protect" or "not bound to protect".

Umm . . . How about the fifth, sixth, and eighth amendments?

Pardon any snarkiness, but if I’m reading your assertion right, it shocks me.  I really don’t know what to do with the argument that the constitution doesn’t protect my right to . . . not . . . be . . . in . . . jail.

Edited March 27, 2019 by Just_A_Guy

[unixknight]

9 minutes ago, Godless said:

That's because we're so polarized on the issue that we have been unable to reach agreement on comprehensive measures that level-headed citizens on both sides of the issue can agree on. They exist, but they often get drowned out by "ban all teh gunz" on one side and "background checks violate muh rights" on the other. 

I just mean that what I regard as common sense may or may not be the same as what you do, or anyone else.  Even so, people often use the phrase as if it held a universal definition.

9 minutes ago, Godless said:

My take is that if you are on medication for anxiety, depression, or any kind of disorder that lends a person to emotional instability, your right to own a firearm should be evaluated. Probably not a popular opinion, but I think it's worth exploring.

Yeah mental health is an area where we as a society have lagged behind severely.  Until our understanding of mental health issues gets a LOT better, it is extremely difficult to come up with legislation of this kind that is both effective, fair, and doesn't unduly interfere with Constitutional rights..

[anatess2]

4 minutes ago, Mores said:

Really?

Yes.  Really.  The key phrase is "without due process of law".  You are not put into jail pending bail without due process.  There's tons of substantial processes that has to be proven first before you can be held before trial.

 

4 minutes ago, Mores said:

It's all the same. Liberty is infringed when a person is taken into custody pending trial.  Property is infringed when a person's property is taken into custody pending trial.  They're on the same level.

Firearms is not under the 5th.  Firearms is under the 2nd.  There's no "without due process" clause on the 2nd amendment.

[anatess2]

7 minutes ago, Just_A_Guy said:

Umm . . . How about the fifth, sixth, and eighth amendments?

Pardon any snarkiness, but if I’m reading your assertion right, it shocks me.  I really don’t know what to do with the argument that the constitution doesn’t protect my right to . . . not . . . be . . . in . . . jail.

Read my response above.

 

[Guest Mores]

2 minutes ago, anatess2 said:

Yes.  Really.  The key phrase is "without due process of law".  You are not put into jail pending bail without due process.  There's tons of substantial processes that has to be proven first before you can be held before trial.

And this bill is outlining a process of law.  So, how is that different?

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Firearms is not under the 5th.  Firearms is under the 2nd.  There's no "without due process" clause on the 2nd amendment.

Firearms are property.  Therefore, they are covered under the 5th as well.

Look up "probable cause".

Edited March 27, 2019 by Mores

[Just_A_Guy]

6 minutes ago, anatess2 said:

Read my response above.

 

So . . . Colorado can incarcerate people, as long as they let ‘em keep their guns in jail with them? 

Edited March 27, 2019 by Just_A_Guy

[anatess2]

1 minute ago, Mores said:

And this bill is outlining a process of law.  So, how is that different?

Firearm:  Covered by 2nd.

Not firearm:  Not covered by 2nd.

That's the difference.

That's what I meant when I told JAG - there's no constitutional provision that explicitly binds the Constitution to protect your right to a desired location.  That means - you can give up your right to your desired location to the government if you wish to do so without having to amend the Constitution.

 

1 minute ago, Mores said:

Firearms are property.  Therefore, they are covered under the 5th as well.

Look up "probable cause".

Firearm:  Covered by 2nd.

Not Firearm:  Not covered by 2nd.

[anatess2]

2 minutes ago, Just_A_Guy said:

So . . . Colorado can incarcerate people, as long as they let ‘em keep their guns in jail with them? 

Hah hah.  Funny.

[Guest Mores]

2 minutes ago, anatess2 said:

Firearm:  Covered by 2nd.

Not Firearm:  Not covered by 2nd.

So, there is no condition under which we can take someone's gun away from them?

Ahem...

4 minutes ago, Just_A_Guy said:

So . . . Colorado can incarcerate people, as long as they let ‘em keep their guns in jail with them? 

Due process AND probable cause.

Edited March 27, 2019 by Mores

[estradling75]

Question about the Colorado law...  What options are in place for someone accused to challenge the accusation in Court?

In the Utah Law the accused will have a court date within 10 days (assuming I understand what @Just_A_Guy posted), does the Colorado offer something similar?

It is a simple fact that when we get accused our rights become limited...  Which is why one of our protected rights is to a speedy trial. 

[anatess2]

3 minutes ago, Mores said:

So, there is no condition under which we can take someone's gun away from them?

Of course there is.  You simply have to prove that the person has lost his Constitutional Protections.  For example - a non-US citizen does not have full Constitutional protections.  A mentally incapacitated person does not have full Constitutional protections.  An incarcerated person does not have full Constitutional protections.

3 minutes ago, Mores said:

Ahem...

Due process AND probable cause.

under 5th but you also have to give cause to remove protections for 2nd.  So, you have to prove that a spouse telling you she's afraid he'll go berserk rises to the level of removing protections for the 2nd.