Thank you for that!!
I have been looking for just such information.
The rest was just lovely. Again, thank you.
This subject is my pet project. I regularly monitor the status of case law dealing with the constitutional right to keep and bear arms under Colorado law . I think it is a subject that many Coloradoans are interested in.
As has been discussed previously in this forum Article VII, Section 10 of the Colorado Constitution provides for the automatic restoration of ALL (A-L-L) rights of citizenship once any convicted person has served out their sentence. The provision specifically addresses the suspension and restoration of the voting franchise - considered by the CO Constitution to be one of the rights of citizenship- but restores all rights of citizenship - without exception.
The U.S. Court of Appeals for the Tenth Circuit has held in numerous cases involving prosecution under 18 USC Section 921/922 (federal POWPO law) that the totality of Colorado law (Article VII, Sec 10 of CO Constitution,and CRS 18-12-108)restores the right to possess a firearm after 10 years following completion of sentence.
This is settled law within the 10th Circuit, and is recognized by the BATFE and U.S. attorneys.
Unfortunately the State of Colorado persists in applying CRS 18-12-108 as a lifetime disablement of the right to possess firearms, and D.A.'s will prosecute under CRS 18-12-108 whenever a collateral charge is available to support unlawful purpose for possession.
In the 2009 case of People v DeWitt in El Paso County the original arrest charge of felony menacing was actually dismissed while the prosecution proceeded on the POWPO charge under CRS 18-12-108. The Colorado Court of Appeals reversed DeWitt's 2010 jury trial conviction in September 2011 and remanded for retrial because the trial court did not allow defendent to enter into evidence his constitutional affirmative defense under Article II, Section 13- right to keep & bear arms for purpose of defense of home, person, and property.
Dewitt's prior nonviolent felony convictions were in 1985 and 1988 and CRS 18-12-108 did not apply to those convictions until 1994. Therefore DeWitt had his firearm right restored prior to 1994, and according to the 10th Circuit such convictions are not predicate for federal POWPO prosection under 18 USC 921/922 - holding that the subsequent amendment of CRS 18-12-108 can not negate the prior restoration of the right to possess firearms. There was no federal prosectution of DeWitt for this reason.
Many Coloradoans are affected by the State's insistance upon ignoring the Colorado Constitution's provision for restoration of the firearms possession right. I have found no instances wherein State prosecution under CRS 18-12-108 proceeded in the absence of some alleged collateral criminal offense.
Colorado case law has long held that the constitutional affirmative defense under Article II Section 13 right to keep & bear arms in defense of one's home, person, and property remains intact and available regardless of a person's conviction status , and D.A.'s have the burden of proof to establish otherwise.
Of course any previous offender is still subject to being arrested, charged, and put on trial under CRS 18-12-108 at which time they have the opportunity to tender the constitutional affirmative defense. The significance of the DeWitt case is that the appellate court has reversed the trial court's position that any affirmative defense must establish some identifiable eminent threat to one's home, person, and property as opposed to the general threat evidenced by crime statistics- i.e. the CSPD Police Blotter.
Just thought I would mention this for any who are affected by CRS 18-12-108. It would seem that the Heller/McDonald SCOTUS decisions establishing the RTKBA as a substantive fundamental right of citizenship would now open the door for federal civil rights violation options, given the federal recognition that Colorado law does in fact restore the firearm right at least after 10 years from completion of sentence for ANY conviction.
I would like to see the State of Colorado recognize, and respect it's Constitution, and if convicted persons are a danger to society maybe just keep them in prison. I dream - I know.
In the Seguna v Maketa decision in 2008 the resoration of the firearm right by Michigan was considered sufficient for the Colorado Court of Appeals to order the issuance of a CO Concealed Hangun Permit to Seguna - previously convicted of a felony in that State. Why is the Colorado restoration of the firearm right not recognized by the State of Colorado ???
I have found no court record of DeWitt being sceduled for a new trial - yet.
The State may have requested review by the CO Supreme Court, but I can't imagine the SC granting certiori pending retrial.
Last edited by rushcreek2; 05-06-2012 at 05:13 PM.
Thank you for that!!
I have been looking for just such information.
The rest was just lovely. Again, thank you.
Prior to the 1994 amendment of CRS 18-12-108 the statute ONLY applied to Colorado convictions when arson. burglary, use of force, or threat of use of force were covered by CRS 18-12-108. Therefore in those convictions (nonviolent) the statute did not apply prior to 1994. Accordingly persons with nonviolent convictions prior to 1994 had ALL of their rights of citizenship (without exception) restored upon completion of sentence/probation.
The Tenth Circuit held that federal law did not apply when rights had been restored prior to 1994 amendment of CRS 18-12-108 to include nonviolent convictions. The Tenth Circuit viewed the TOTALITY of Colorado law in determining the point at which ALL rights are restored- including the 10 year period that the 10th Circuit applied per CRS 18-12-108. The State's position is that the 10 year period only applies to violent convictions(Class 5 felony) after which the general Class 6 felony applies for LIFE.
The statute - CRS 18-12-108 is subject to confused interpretations. It can be read (correctly) as a 10 year disablement for all conviction - or as the State MIS construes the statute lifetime for all felonies - =Class 6 felony - and Class 5 felony ONLY for violent offenses. Problem is prior to the 1994 amendment - the 10year time computation was just that = a TEN YEAR disablement for violent convictions.
Last edited by rushcreek2; 11-16-2011 at 06:55 PM.
Furthermore, I'm guessing that I may need to petition a court here in IN for restoration of my rights to possess based on the CO conviction - and it would certainly help to show that CO has, based on what you're showing, already done so as a matter of their law/statute.
All in all, having all this ready to bring to a local attorney here would be helpful I think - I expect my 1st attempt at applying for a carry permit will be rejected and I'll have to appeal, so the more ready I am, the better - right?
JamesB/RustyNinja, if I remember correctly it does matter when your restoration would take place in your home/conviction state. For instance, a person convicted of a felony in the PRK can never possess a firearm anywhere because there it is a permanent ban on constitutional rights. Also, Rusty, you should be able to show the statute and that should be sufficient proof of automatic restoration.
My whole opinion on this is that once your sentence is up, you should be able to have and carry firearms again. I understand that there are some people that shouldn't be allowed to carry. But honestly, if we all were allowed to carry, how we saw fit (i.e. constitutional carry) and didn't have all these restrictions on it, I don't think that people would be able to commit the crimes they do now. It's been proven that the more well armed a population is, the lower the crime rate. I think it has something to do with the "Well, I could, but who is going to draw down on me if I do" thought.
I know people who have made mistakes in their life, and have worked very hard to turn their lives around, but they are still being persecuted for it years later.
Thank you for all of the information rushcreek. I look into this from time to time as well for the above mentioned people and this is very useful and interesting information.
Last edited by ZackL; 04-19-2012 at 01:14 PM.
I heard a policeman state on Thursday evening that anyone convicted of a felony is barred from the possession of a handgun for life. So obviously, they're not training law enforcement to the standards as stated in both written and case law.Unfortunately the State of Colorado persists in applying CRS 18-12-108 as a lifetime disablement of the right to possess firearms, and D.A.'s will prosecute under CRS 18-12-108 whenever a collateral charge is available to support unlawful purpose for possession.
Lautenberg (domestic violence conviction) is a case of a federal law over-arching state law.
The provision of Colorado law (the CO Constitution) restores rights of citizenship temporarily suspended under Colorado law due to conditions of incarceration, parole, or probation, etc.
I believe federal law on misdemeaor DV convictions is a separate issueand is independent of state-level restoration of rights regarding felony convictions.
Current Colorado case law addressing the issue of the restoration of the right to keep & bear arms for the purpose of defense of one's person, and property supports the application of an affirmative defense on those grounds.
Law enforcement authorities in Colorado still operate from the perspective that a previous offender found in possession of a weapon will have to make such an affirmative defense before the court. They do not like the Colorado restoration of the right, but the burden still rests upon the State to produce evidence that counters this constitutional affirmative defense. In other words the State can still make a previous offender's life miserable if found in possession.
This issue needs to find its way into the State courts so it can be resolved. Same applies to the issuance of CHP's. If the right of any person to bear arms in lawful self defense is restored under Colorado law, then that person should be eligible for a CHP.
The federal Lautenberg DV provision is another matter that deserves a federal constitutional challenge.
Just my two cents, but any restriction of civil rights once a sentence is fully served is a Bill of Attainder, something prohibited in the federal and state constitutions.
Please read more carefully! Thank you.
As an aside, the reason I have access to the officers is because I'm attending the Citizens Academy with the local police department. It's about three hours a week for a period of eight weeks. Very interesting stuff! We visited with their Bomb Squad folks last week. Next week: S.W.A.T.
What Lautenberg is, along with other post-conviction sentence enhancements, is an ex post facto law.
I think SCOTUS completely forgot the definition of ex post facto when they failed to overturn Clinton's '92 tax increase that was retroactive to January 1, before he even took office.
The State of Colorado has in the past argued that the amendment of CRS 18-12-108 in 1994 was not an ex post facto imposition of a penalty after the fact, but merely legislation establishing "public policy".
The 10 Circuit said in U.S. v Hall, and several similar decisions since 1994 -to paraphrase-
The amendment of that Colorado revised statute can not negate the PRIOR RESTORATION OF A RIGHT.
Ex post facto , or not - since CRS 18-12-108 is presumed to be constitutional, its provisions can not be applied to previous offenders whose right to bear arms for the purpose of defense of home, person, or property was restored prior to July 1994.
Persons convicted of nonviolent felony offenses under Colorado law having fulfilled the terms of their respective sentences ( incarceration, parole, probation, restitution, etc) prior to July 1994 when their convictions were first encompassed by the provisions of CRS 18-12-108 had already had ALL of their rights of citizenship restored without further action required, and without exception of their right to possess firearms.
Colorado law enforcement still persists in perpetuating the myth that CRS 18-12-108 merely imposes a penalty prescription intended to enforce a "public policy" which the State has a compelling public safety interest in maintaining.
Unfortunately, "public policy" , however so popular, or well intended, does not trump constitutionally protected civil rights.
Accordingly, these persons have every right to possess firearms, and open carry without being subjected to unlawful intimidation, arrest, and "punishment" in the form of protracted court docket harassment.
In Seguna v Maketa the CO appellate court remanded with instructions for the lower court to order the issuance of a CHP to a El Paso County resident who had a previous felony conviction in Michigan because his right to possess firearms had been restored under Michigan law.
Meanwhile, the State of Colorado will not recognize the automatic operation of its own law pertaining to the restoration of the right to bear arms in regards to issuance of the CHP .
In The People v DeWitt the CO appellate court remanded to the district court for a new trial in which DeWitt was to be afforded to right to tender his consitutional affirmative defense of his RESTORED right to bear arms for the purpose of defense of his home, person, or property. DeWitt, a 1988 previous nonviolent offender, was charged, and convicted under CRS 18-12-108 in the district court where his affirmative defense was rejected by the court for lack of merit due to his not having evidence of any immediate, and impending threat - which is of course impossible for anyone to anticipate. Now the State must produce evidence to counter his constitutionally protected purpose for carrying a weapon.
Only recently , as in the DeWitt case , has Colorado case law began to make a course correction by finally placing the burden upon the State to provide evidence that the purpose for possession of a firearm by a previous offender is not for defense of home, person, or property.
As it stands now there is no plan to disseminate a uniform law enforcement advisory policy regarding this restoration of the firearm right. The Colorado Bureau of Investigation is the primary law enforcement agency that should be tasked with this responsibility.
In the meantime this issue continues to be handled on a muddled case by case basis that imposes financial hardship, and emotional strain. Colorado LEO's operate under a policy that all previous offenders are "prohibited persons", and this is simply not the case.
This is a systemic transgression upon the free exercise of one of Coloradoan's most cherished, and constitutionally protected civil rights.
Last edited by rushcreek2; 05-06-2012 at 05:26 PM.
I remember Colorado denying me firearm purchases because I once was charged with a crime as a juvenile in another state.
I was never ever denied a purchase before, even in very strict states like MD and CA.
Yet, the people at CBI were extremely rude and convinced that I should be allowed to buy firearms.
I was NEVER convicted for any crime. In juvenile court its mere "Adjudication" which under legal definitions is defined as "Any court proceeding with an outcome".
Now thats a broad and gray term isnt it?
So, I had to buy all my long guns in Wyoming.
Needless to say I was disgusted with CO gun law and the CBI.
I was never convicted of anything, what gave them the right to deny me?
Oh well, I dont live there anymore. But I know this is still hurting many law abiding gun owners that are residents of Colorado.
Last edited by Sig229; 05-06-2012 at 10:15 PM.
"Let your gun be your constant companion during your walks" ~Thomas Jefferson
Colorado Bureau of Investigation reports as a "prohibited person" without undertaking any review of the actual status of that person's criminal record under State law. Issues involving the existence of criminal records in other states are another matter altogether, and require some degree of affirmative action. In the matter of Colorado convictions, the principle consistently upheld since 1994 by the 10th Circuit in U.S. v Hall is that SUBSEQUENT amendment of CRS 18-12-108 can not negate PRIOR restoration of the right to possess firearms under the operation of Colorado law.
C.B.I. as an agency tasked with performing administrative due process under Colorado law has a due diligence duty to process background checks in a manner consistent with Colorado law. Currently a reported "prohibited person" must seek judicial review in order to receive official State recognition of the operation of a rights restoration provision that explicitly states ..."WITH NO FURTHER ACTION REQUIRED."(Article VII, Sec. 10)
Some more recent cases may be complicated, however those cases not encompassed by CRS 18-12-108, and fully adjudicated prior to July 1994, are not the least bit complicated. Those previous offenders whose convictions were not encompassed by CRS 18-12-108 prior to July 1994 already had their firearm possession right fully restored if their sentences were completed prior to July 1994.
Unfortunately, the State seems to be intent upon remaining stuck on stubborn (and stupid) pending case by case judicial review. The State of Colorado is engaging in the deliberate obstruction of a constitutional immunity under Colorado law.
Last edited by rushcreek2; 05-11-2012 at 10:14 AM.
What is POWPO?
Also, there is a case that should be of interest to you- Colorado v. Kem, 2007.
Lifetime member, Gun Owners of America (http://gunowners.org/)
Lifetime member, Jews for the Preservation of Firearm Ownership (http://jpfo.org/)
Member, Fraternal Order of Eagles since 8/02 (http://www.foe.com/)
Registering gun owners to prevent crime, is like registering Jews to prevent a HOLOCAUST.
I am not a lawyer in real life, or in play life. So anything I say is for debate and discussion only.
Prior to 1994 persons charged with nonviolent felonies were regularly induced into accepting plea arrangements with the understanding that Colorado law provided for the full restoration of ALL of their rights of citizenship (without exception) upon completion of their sentence. Then in July 1994 the entire scope of CRS 18-12-108 was amended to effectively renege on those legally binding plea arrangements still on file that are implicitly embodied by that guarantee of full rights restoration. When I was a kid that was called "Indian giving" ( strange since it was always the Great White Father who reneged on promises).
I believe this orchestrated enforcement policy is akin to other societal manifestations of "feelings" about issues being allowed to override the ACTUAL LAW governing the subject matter. ( "Well... it MAY NOT BE ILLEGAL - BUT....I just don't FEEL like people should be running around with guns on their hips.")
Last edited by rushcreek2; 05-15-2012 at 10:12 AM.
here is the situation completed sentence aug 4, 1994 all non violent felony.
would the original 18-12-108 still apply?
Your RTKBA FOR THE PURPOSE OF DEFENSE OF YOUR HOME, PERSON, OR PROPERTY under Colorado law IS RESTORED under Colorado law, but C.B.I. will still report you as a "prohibited person" per a background check for gun purchase, or a CHP. Court action needs to be taken naming C.B.I. as the primary defendent responsible for obstructing the exercise of your restored civil right.
If you exercise your RTKBA under Colorado law you are still required to have a CHP in order to conceal. You will not be issued a CHP unless C.B.I.'s current policy is changed through court order.
So - All you need is about $20,000 to pursue your case - unless you can interest the Colorado A.C.L.U. in representing you. I find it hard to believe that no one in Colorado has pursued court action regarding this "fix" in effect that violates a restored civil right.
The essence of federal case law under the U.S. v Hall precedent seems to rest primarily on the issue decided that the amendment of CRS 18-12-108 in JULY 1994 does not negate the PRIOR RESTORATION of the RTKBA. You missed the benchmark for PRIOR restoration by one month.
The 10th Circuit did however interpret CRS 18-12-108 as imposing ONLY A TEN YEAR disablement of the your restored right that was restored in August 1994, but this is for purposes of FEDERAL LAW under 18 USC 921/922 application to your conviction.
This issue needs serious State court attention. It is a gross injustice for this travesty to be perpetuated by State agencies whose officials are sworn to uphold the Colorado Constitution that clearly restores your right.
You, and other citizens like yourself should not have to live under a cloud of uncertainty about this issue. It really needs to be settled in court. Presently, you would still be subject to being ran through the criminal justice "ringer" even though Colorado case law supports restoration of your right - and you would be exonerated after spending thousands of dollars on attorney fees, and enduring months - if not years- of emotional stress for daring to exercise your restored right.
Upon further reflection - Perhaps there are valid reasons why we are not aware of any court action regarding C.B.I.'s refusal to abide by Colorado law regarding restoration of the right to keep & bear arms.
One would be the obvious financial cost in attorney fees. Another reason could be concern for the cost in damage to the one's personal and professional reputation in the community since court action would be a matter of public record. A third reason could be that perhaps such court actions have been initiated - only to be immediately resolved by the State (C.B.I.) quickly correcting the "error" in order not to allow the issue to gain public attention.
Last edited by rushcreek2; 07-11-2012 at 12:40 PM.
Kind of long, but (I think) interesting read. I only post this for the enlightment of others, and it does pertain to RC's statement of a persons rights per the CRS.
I'll throw in my experience from Colorado that dates back to 1981. (I was 15 years old)
In 1981 I was charged as a juvenile with reckless endangerment because of a richochet from a .22 caliber rifle that damaged a building. (I personally...at 15 years old, paid for the minor damage)
I ended up getting 1 year of probation, and was also told by the Judge at the time if I completed the probation successfully, my record would be cleared.
Fast forward to around 1994 or 1995. I successfully purchased my first handgun (92FS) from a friend of mine who was an FFL.
All things went through just fine and I took it home that day.
I continued with some additional purchases until 2003 and beyond.
I only mention 2003 because that is the year that Colorado passed the conceal carry and pre-emption law.
I applied for and was granted my carry permit in 2003, good for 5 years.
Made some additional purchases between 2003 and 2008 when the permit was up for renewal.
I filled out the stuff, paid the 50 bucks to renew my permit and away the paperwork went...Adams County where I reside.
As a treat to myself, a week or two later, I went to SW in Thornton to look at getting my first 1911.
Found a really nice Kimber with night sights and the Crimson Trace grips on it. :-)
Filled out the 4473, and after about a half hour, it came back as 'delayed'
I figured that since I had just gotten my U.S. Citizenship (I was a Canuck) a month previous, maybe there was something going on there.
Called back everyday to check on status, and on the 3rd day, they told me that I was denied.
I was devastated and confused. WTF!!!!!!!
I immediately filed the paperwork with CBI to figure out what was going on and to have them send me the reason for the denial.
A week later I received the stuff from CBI that had my juvenile case listed from back in 1981.
What the heck? I had been purchasing stuff and getting approved by both CBI and FEDGOV(out of state rifle stuff) for a long time. Why the denial now?
I called the ADCO Sheriff's office and let them know what was going on, and that I had just submitted my renewal.
The police officer I spoke with told me (duh) that my current permit was now invalid.
I then started doing research on Mitchie (great resource for the CRS) and figured out that I had to:
1. Get my juvenile record expunged. (free.....no attorney required)
2. Refile the paperwork with ADCO for said permit.
3. Get ready for a fight with the Adams County Sheriff Department. (I had all the CRS statutes almost memorized by this point)
Filed the expungement stuff.....waited for court date in JeffCO and things were fine and everything was done. Got copies of everything from the clerk.
Called back ADCO about permit renewal, and was told that I now had to have a meeting with Sheriff Doug Darr himself to discuss whether or not I was a suitable candidate.
By this time, I had received all copies of the approved 4473's from the folks I buy stuff from, and had a huge folder of things ready for the meeting, which they delayed 3 or 4 times....hmmm.
Took the stuff in and had my meeting with Sheriff Darr (in one of my nice custom tailored suits) and walked out an hour later with my permit and no new fees at all. Took my mug for the permit, printed it and away I went.
My main point to the Sheriff was that if someone had done their damn job to begin with, I wouldn't have received that first 92FS, gotten things taken care of and we wouldn't be sitting in his conference room even having the conversation to begin with. I told hom that the CBI and others totally dropped the ball....for a bunch of years.
It seems to me that this should have been a non-starter to begin with based on RC's reading of the CRS as it was back then.
Sorry for the long post, but I hope it helps some folks down the road.
I went through the exact same thing you did when I lived in CO.
Only I didnt get a happy conclusion like you did.
Since my Juvenile charge (never convicted) was from another state, and that state doesn't allow juvenile expungements I was screwed and the CBI did NOTHING to help me.
But the saddest part about it all was that a week earlier my transmission went up and the only way for me to afford getting it fixed so I could get to work was to get a loan at the pawn shop on a couple of my guns.
And one of those guns was the very first gun I had ever bought and it was very sentimental.
I never got that or the other gun in loan back either because CBI denied me.
Pisses me off at this very moment thinking about it.
Colorado was the only state that EVER gave me problems with purchasing. And I have lived in some very anti gun states.
After getting my transmission fixed and saved up some money I moved out of Colorado.
Hell with 'em.
Last edited by Sig229; 07-11-2012 at 09:14 PM.
"Let your gun be your constant companion during your walks" ~Thomas Jefferson
Then again, the number of background checks I've had to go through to get my stuff back from the police evidence room makes even less sense. That is not a sale either, there isn't even any money changing hands. They do not have any statutory authority to perform a check just for the fun of it, there must be a sale...
Must be nice to have a shiny badge so you don't have to follow the rules.
This is interesting stuff. I'm going to have to sit back, and try to digest the previous commentary.
Folks we are on the right track. The Colorado Bureau of Investigation is NOT FOLLOWING COLORADO LAW.
I contacted the C.B.I. background check section in 2008 regarding this restoration of the firearm right under Colorado law, and I was told that they " ....do not report as "prohibited persons". They claimed that they merely report the existence of a record. That was a LIE at that time, and continues to be a LIE. C.B.I. personnel know perfectly well what they are doing. As I said court action is very much needed to educate C.B.I. regarding Colorado law.
Article VII, Section 10 of the Colorado Constitution is unambiguous. Any person convicted of a criminal offense under Colorado law has their right to VOTE, as well as ALL of their rights of citizenship restored, WITHOUT EXCEPTION upon completion of their sentence-period.
Colorado case law recognizes this fact, and further -the provisions of CRS 18-12-108 are presumed to be constitutional. Therefore the provisions of CRS 18-12-108 do not apply unless the State can prove that the previous offender having completed their sentence possessed a firearm for purposes other than the constitutionally protected right to defend their home, person, or property.
Unfortunately, as I have previously mentioned, policies in place within law enforcement agencies in Colorado will result in a CRS 18-12-108 previous offender being "racked-up", and run through the CJ "grist-mill". The net result is that a prudent previous offender will probably confine their firearm possession to home-defense needs rather than risk being arrested, posting bail, and having to endure a year's worth of court appearances. This is wrong. That does not equate to ALL RIGHT OF CITIZENSHIP being restored - AND RESPECTED by State officials sworn to abide by the Colorado Constitution.
I have had discussions with one Colorado Springs attorney regarding this issue. He quoted me a figure of $20,000 to pursue this issue to the Colorado Supreme Court on behalf of a family member.
Unfortunately that family member does not wish to subject themselves, or their family to the public record exposure.
I believe the State of Colorado is DEATHLY AFRAID of this issue making its way into the courts.
The State's reasoning is I think pretty obvious- all of those violent habitual criminals that the State releases into our communities from the Colorado Department of Corrections each year. That's WHY the State of Colorado systemically engages in a concerted effort to deny, obstruct, obscure, and violate the civil rights of Coloradoans on a regular basis.
I would just add one further note. Colorado courts will do everything in their power to defend the State's status quo position in the event that a constitutional challenge to CRS 18-12-108 is presented. That is why any challenge must necessarily go all the way to the CO Supreme Court.
Last edited by rushcreek2; 07-12-2012 at 06:27 PM.