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Clarification on Colorado Preemption

denwego

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I lived in Boulder for 3.5 years recently, and had two Boulder PD interactions for OC (if you go back to around 2006 or so here in the forums, you'll find them). The second one involved a sergeant saying "if you don't conceal that right now, I'm going to arrest you, and call the sheriff to have your permit revoked." I responded by, "go ahead, and you can be named as a defendant in the civil suit I file, and you can pay for my lawyer and expenses after I win court costs."

I didn't get arrested, surprise surprise. Boulder PD loves to bluff thanks to all the 20-30 year old college kids, no matter how old you happen to be, because they think everyone is as gullible and easy to manipulate as a drunk undergraduate. Stand up for your rights and you'll be fine.
 

ozzy43

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rights vs practicality and legality

Sounds like bluff vs bluff. If in fact the Boulder code authorizes local cops to arrest those who OC, then the cop is not liable in a civil suit - the city is. Glad it panned out for you, but I don't think one data point proves anything. The question remains: what is the legality of this? And what are the practical implications? Reading through this thread, there are way too many posts blithely suggesting people OC without a care in the world anywhere but Denver. That's bad advice.

My point in posting, as I think I made clear, is NOT to argue against OC. It is to rebuff the suggestion that you can OC anywhere in CO except Denver without any problems. That's flat out bad advice, without some qualification, to wit:

OC'ing in Arvada and Boulder may be within one's rights, but that doesn't mean it is supported by the law of those cities, and it would be wise to obtain LEGAL ADVICE prior to such actions. Laws and rights are vastly different things, and local law enforcement often doesn't have a solid grasp of the former, let alone the latter.

I'd further note that most of those I know who OC recognize that rights have very little to do with carrying guns in America these days. A simplistic appeal to rights often carries no weight with the agents of the State intent upon total infringement of those rights.
 

cscitney87

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"Thus, the folks in this thread who are blithely "guaranteeing" that open carry is fine everywhere but Denver - and explicitly that OC in Arvada is okey-dokey based on the fact that they're not (yet) been arrested - seem to me to be way off base."

Your type is very common around here. We often have this type of posting from time to time.

You'll grow up.

Then you'll realize you can OC anywhere in CO except Denver.
 

cscitney87

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to add- it's been covered 10000 times that all the city and local statutes are **OLDER*** than the Supreme Court Judge Meyer's decision and are also OLDER than the Senate Bill covering CC.

Of course the localities never remove the old statute from the books- and they are unenforceable. This includes Golden, Arvada, Boulder, and anywhere else that is Not Denver.

Duh....

But like I said.. You'll grow up.

Go ahead and LIMIT Yourself if you want to. I'll carry about my business- Openly.
 

ozzy43

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Your aggressive, self-righteous tone adds little to the debate. I'm sure we're all impressed by your 'I'll do as I please and face the consequences like a free man' attitude, but it doesn't answer the question.

The *practical* question is: what consequences can one expect to face should one choose to OC in various cities and towns around Colorado?

For my part, I OC just about everywhere - including Arvada yesterday, so please, csctiney, do not think to lecture me from some presumed moral high ground. I don't respond well to sanctimony and moral judgmentalism and neither do most of the people I know, especially fans of gun rights.

I would also add I consider it foolish to alienate your fellow OCers thusly. There are not that many of us around, and encouragement rather than divisiveness would seem to be called for. Just one man's opinion.

Your assertion that city codes against OC (not statutes - that's state law) being "unenforceable" is ambiguous, as you must know.

In Boulder, one can expect to be accosted by the police and threatened with arrest. We know this. We have one data point that this was a bluff. My read of the Boulder code supports OC there. Consider, we have:

5-8-8 Possession of Loaded Firearms.
(a) Except as set forth in this chapter, no person shall possess a loaded firearm or a loaded gas or mechanically operated gun.

But then we have:

5-8-22 Defenses.
(a) It is an affirmative defense to a charge of violating sections ... 5-8-8, "Possession of Loaded Firearms," B.R.C. 1981, that the defendant was:

(1) Reasonably engaged in lawful self-defense under the statutes of the State of Colorado; or

(2) Reasonably exercising the right to keep and bear arms in defense of the defendant's or another's home, person, and property, or in aid of the civil power when legally thereto summoned.

So 5-8-22.a.2 would SEEM to negate 5-8-8. BUT that depends - we have the weasel word 'reasonably' to worry about, at the very least. Could a cop arrest you without concern for a civil suit? May depend on case law, which I don't know, not being a lawyer. At least, you could probably be arrested, and then the upper management types - perhaps upon advice from the district attorney's office - may choose not to charge. Unless they are looking to establish another 2nd amendment-free zone in Boulder, which, because such an attempt would play well politically there, might well be the case. Thus, someone who chooses to OC in Boulder may well have RIGHTS on their side, they may even have STATE law on their side, but nevertheless be arrested, charged, and cast in the starring role in a political case - which could go nowhere or all the way up. Who knows. They say a patent it not a patent until it's been litigated - same thing goes for obscure city ordinances.

Bottom line: there are possibly significant consequences to OC in Boulder - flat out.

As to Arvada, I have no idea. Maybe the same argument applies? The case is less clear since I can't find affirmative defenses like the one on the Boulder code. That means to me that there is a higher likelihood that an Arvada LEO could arrest you at his discretion without fear of a civil suit: he was just enforcing the law, and courts grant wide latitude to a cop's discretion. Again, they may choose not to charge you, but then again, they may - and the consequences of arrest itself let alone being charged should be considered.

For example, there may be folks visiting this board who at some point may need to get a security clearance for a job, and an arrest - however frivolous, however "unenforceable" the charge - could mean they don't get it. So as someone said earlier, asserting legal advice based solely upon one's preferences in a post here is inexcusably reckless, and anyone reading these threads should consult a lawyer so they know just where they stand.

Everybody has the right, and SHOULD have the freedom, to make their own choices in this regard, free from sanctimonious moral judgements.
 

ozzy43

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State pre-emption language?

Does anyone know where I can find the Constitutional language regarding pre-emption? I'm looking through the CO Constitution and it's not immediately apparent. In fact, in a number of places, it says things like:

"The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters."

Which seems to be the opposite of pre-emption. In section 6, I find:

No provision in this article deprives the state of its unquestioned power in declaring what the public policy of the state shall be in matters of taxation as well as in other matters of statewide importance.

But then I'd guess we'd need case law to specify that the right to keep and bear arms has been found to be a matter of statewide importance?

I print up and laminate relevant statutes, portions of muni-code and so forth so that if I am accosted by LEOs, I can demonstrate that the law is on my side. Thus, having the pre-emption language would be quite helpful in the cases of Arvada and Boulder, in particular. Any pointers would thus be greatly appreciated.
 

ozzy43

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State preemption is not constitutional it seems. I can't find a statute. All I see is this one:

18-12-105.6. Limitation on local ordinances regarding firearms in private vehicles.

Anyone know the statute, assuming it's statutory? Also, anyone have a pointer to the case law wherein Denver won the right to ban OC? Case is:

State v. City and County of Denver, 139 P.3d 635 2006

But I can't find details on the web.
 

ozzy43

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Got it - details on state preemption

Everything I needed to know about state preemption, below.

Go to indicated sections of CO Revised Statutes if you want more details. I just copied what I needed for carrying with me.

Note that the key statement in 29-11.7-101 is the finding that the regulation of firearms is a "matter of statewide concern" - this means that the case law referenced at the bottom applies, because the term 'statewide concern' is the term which appears in the Home Rule part of Colorado's state Constitution. Thus, Constitutional authority is the basis for that case law.

From a practical standpoint, this means that you can show any LEO who accosts you - in Arvada or Boulder, for example - the specific statutory authority and case law that not only supports your right to OC in those cities, but that renders any ordinances or statutes or other municipal code elements which restrict that right a violation of state law. I suggest printing out the info below - along with other state statutes which regulate firearm carry (e.g. 18-12-105, 18-12-105.5, 18-12-105.6, 18-12-214) - and then having those printouts laminated at your local kinko's. Providing this documentary evidence in an interaction with an uninformed LEO will take away their ability to bluff, or even better will provide you with the ability to call that bluff.

I'd also suggest carrying along an audio recorder so that you can record any interaction with LEOs (not sure about recording law in CO so would suggest you inform them as soon as you begin recording them else you could be charged later on).

It seems likely to me - though note I am NOT a lawyer!! - that any cop who is recorded being informed on specific and applicable statutes and case law (which they can easily verify after all - you could print out URLs just to be helpful in this regard), will probably not be stupid enough to arrest you, because you may then have the grounds and evidence to press a civil suit against not only him or her personally, but his agency, and so on.

Then again, maybe you need none of these. Maybe I'm just paranoid when it comes to agents of government at all levels. So be it.

I want to make it clear that these are MY conclusions only, and you should always consult with a local lawyer to facilitate your own choices in regard to OCing.

29-11.7-101. Legislative declaration.
(1) The general assembly hereby finds that:
...
(b) Section 13 of article II of the state constitution protects the fundamental right of a person to keep and bear arms and implements section 3 of article II of the state constitution;
...
(d) There exists a widespread inconsistency among jurisdictions within the state with regard to firearms regulations;

(e) This inconsistency among local government laws regulating lawful firearm possession and ownership has extraterritorial impact on state citizens and the general public by subjecting them to criminal and civil penalties in some jurisdictions for conduct wholly lawful in other jurisdictions;

(f) Inconsistency among local governments of laws regulating the possession and ownership of firearms results in persons being treated differently under the law solely on the basis of where they reside, and a person's residence in a particular county or city or city and county is not a rational classification when it is the basis for denial of equal treatment under the law;
...
(2) Based on the findings specified in subsection (1) of this section, the general assembly concludes that:

(a) The regulation of firearms is a matter of statewide concern;

(b) It is necessary to provide statewide laws concerning the possession and ownership of a firearm to ensure that law-abiding persons are not unfairly placed in the position of unknowingly committing crimes involving firearms.

29-11.7-104. Regulation - carrying - posting.

A local government may enact an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area within the local government's jurisdiction. If a local government enacts an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area, the local government shall post signs at the public entrances to the building or specific area informing persons that the open carrying of firearms is prohibited in the building or specific area.

Case Law:

In matters of exclusively statewide concern, state statutes will always supersede conflicting local enactments. DeLong v. City & County of Denver, 195 Colo. 27, 576 P.2d 537 (1978).

Where the subject matter of a municipal ordinance is of statewide concern and the terms of the ordinance authorize what the general assembly has forbidden, or forbid what the general assembly has expressly authorized, the ordinance must fail. Bennion v. City & County of Denver, 180 Colo. 213, 504 P.2d 350 (1972).

With respect to matters of statewide concern, home rule cities are subject to state legislation. City of Colo. Springs v. State, 626 P.2d 1122 (Colo. 1980).

In the field of local and municipal matters, the authority granted home rule cities by this article may be taken away by subsequent amendments to the constitution or by legislative acts broadening the concept of what constitutes matters of statewide concern. City & County of Denver v. Sweet, 138 Colo. 41, 329 P.2d 441 (1958).
 

cscitney87

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Lakewood, Colorado, USA
Everybody has the right, and SHOULD have the freedom, to make their own choices in this regard, free from sanctimonious moral judgements.

The answers to your queries are found within this very forum. How many "I got arrested for OCing in _______!" threads have there been? None. A few folks get hassled in Boulder and guess what- nothing ever comes of it.

You can park your attitude at the curb, mister. We don't have that problem here in CO. That's the ******* bottom line.
 

cscitney87

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Joined
Aug 13, 2009
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Lakewood, Colorado, USA
Lets just post this again to be sure you read it thoroughly



How many... "I got arrested in ______!" posts are there in our forum? How many? Go ahead.. . search... go ahead.. use your browers Back button and go look through our section. Do it.

All right you're back.. Good...

You'll have found Zero (0).

You may have noticed a few folks were hassled in Boulder and One guy in Castle Rock. NEVER AMOUNTED TO ANYTHING. The one guy in Castle Rock even basically told the cop to **** Off. He was only walking down the sidewalk with his son.

Yeah so like I said.. Sorry to burst your bubble but this is a dead horse. You can post and post and post and beat it some more.. but you Aren't getting any answers. You know why? Not because folks don't frequent this forum.. but because your questions are assassin. It's been settled before- you can OC anywhere but Denver City/County. I can't tell you how many times I've had to post that last sentence....


But let me guess.. your next post is going to be all about A) How I have a bad attitude and B) How you can't OC in blah blah blah and how you'll get arrested and what to do about it.
 
M

McX

Guest
i got the shi* scared out of me, lined up on by 8 cops- with more lurking in view in their cars, looking like they were just waiting for orders to shoot us, threatened with arrest, intimidated into producing ID, terrorized for what seemed hours on end, illegally detained, and then mailed a ticket for disorderly conduct on the basis of 'totality of circumstances' in Madison Wisconsin......is that kinda what your looking for?
 
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