In the Crosshairs: Colorado's New Gun Laws

• Jurisdiction: Colorado,United States
• Citation: Vol. 33 No. 1 Pg. 11
• Pages: 11
• Publication year: 2004

33 Colo.Law. 11 Colorado Lawyer 2004.

2004, January, Pg. 11. In the Crosshairs: Colorado's New Gun Laws

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Vol. 33, No. 1, Pg. 11

The Colorado Lawyer
January 2004
Vol. 33, No. 1 [Page 11]

Features

In the Crosshairs: Colorado's New Gun Laws
by Thomas E. J. "Tobie" Hazard

Colorado's new "shall issue" concealed handgun statute and firearms preemption law have prompted a showdown between state and local authorities over gun regulation. This article provides an overview of the new gun laws Denver's challenge to their constitutionality, and issues private employers and firms face in controlling guns in the workplace

Thomas E. J. "Tobie" Hazard is a partner in the Labor & Employment Practice Group at Holland & Hart LLP - (303) 295-8000, tehazard@hollandhart.com.

On March 18, 2003, Governor Bill Owens signed two bills that limit the discretion and authority of cities and counties in Colorado to regulate the carry and transport of firearms within their jurisdictions. The first bill, Senate Bill 03-024 ("S.B. 24"), which became effective May 17, 2003, revises Colorado's concealed carry weapons statute by setting uniform state standards for the approval of permits to carry concealed handguns.1

Prior to the enactment of S.B. 24, Colorado had a discretionary, or "may issue," system for concealed weapons permits. Under that system, a county sheriff or chief of police could, but was not required to, issue a concealed handgun permit to an applicant based on the sheriff's or police chief's subjective evaluation of the applicant's qualifications and need for a permit.2 Under the new "shall issue" law, once it is determined that the applicant has met specified objective criteria for obtaining a concealed handgun permit, the sheriff or police chief must issue the applicant a concealed carry permit.3

The second bill, Senate Bill 03-025 ("S.B. 25"), is significantly broader in scope. S.B. 25, which went into effect March 18, 2003, prohibits any city or county in the state from enacting regulations relating to the sale, purchase, or possession of firearms that are more restrictive than state or federal law.4 Any previously enacted local ordinance, regulation, or other gun law that is more restrictive than state or federal law is deemed void and unenforceable.5 S.B. 25 also expands the right of individuals to transport weapons in private automobiles.6

Under prior state law, although local municipalities could not restrict the transport of weapons in private automobiles traveling into or through their local jurisdictions, cities and counties were free to set restrictions on the carrying of weapons in private vehicles that were traveling wholly within the local jurisdiction.7 S.B. 25 invalidates these local regulations and ordinances. Individuals now are permitted a largely unrestricted right to carry a weapon, whether concealed or not, in their private automobiles while traveling anywhere in the state.8

Critics of the new laws fear that more concealed carry permits and the preemption of stringent local gun control laws will result in "Wild West" shootouts on every street corner in Colorado. Furthermore, they argue that the two laws are unconstitutional because they violate the rights of cities and counties to govern their own affairs under the Colorado Constitution's home-rule provisions. Indeed, the City and County of Denver ("Denver") currently is challenging the laws on these constitutional grounds.9 The state of Colorado filed a motion to dismiss Denver's constitutional challenge, but the judge hearing the case denied the motion.10 A decision on Denver's constitutional challenge to S.B. 24 and S.B. 25 is likely to be announced sometime in 2004.

Supporters of the new laws respond with statistics showing that "shall issue" permit laws like S.B. 24 pose no threat to public safety and, in fact, may result in a decline in violent crime in the state.11 They add that gun regulation is a matter of statewide concern and that, as such, the state may enact laws preempting what is now a confusing patchwork of local gun regulations.12 Caught in the crossfire of this debate are business owners and individuals who are still uncertain about their legal rights and responsibilities under the two new laws.

This article first provides an overview of S.B. 24 and S.B. 25, describing how the two measures change state laws relating to firearms. The article then looks at the practical and legal issues facing local governments as a result of the new gun legislation, including Denver's challenge to the constitutionality of the new laws. The article concludes with a discussion of issues that private employers and business owners should consider in light of the new gun laws.

S.B. 24: THE "SHALL ISSUE" HANDGUN PERMIT STATUTE

The right of a Colorado citizen to keep and bear arms is recognized by the Colorado Constitution:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid to the civil power when thereto legally summoned, shall be called into question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.13

Therefore, although the Colorado Constitution recognizes a right of its citizens to keep and bear arms for defense of home, person, or property, it expressly excludes the carrying of concealed weapons from this right.14 In Colorado, the right to carry a concealed weapon is a right created by statute, not by the Constitution.

Under Colorado's Criminal Code, an individual who knowingly carries a concealed weapon commits a class 2 misdemeanor, punishable by up to one year in prison and $1,000 in fines.15 Nevertheless, it is an affirmative defense to the charge if, prior to the time of carrying the concealed weapon, the individual was issued a written permit to carry the weapon by a chief of police of a city or sheriff of a county.16 This affirmative defense to the criminal charge had been available for years. However, in 1980, the Colorado Supreme Court, in Douglass v. Kelton,17 held that, the affirmative defense notwithstanding, in the absence of appropriate enabling legislation, a police chief or county sheriff does not have the power to issue a concealed weapons permit.

The General Assembly responded to the Kelton decision in 1981 by passing legislation delegating to county sheriffs and chiefs of police the power to issue concealed weapons permits.18 In addition to expressly authorizing sheriffs and police chiefs to issue permits, the 1981 legislature enacted separate legislation that left the decision of whether to issue a concealed weapons permit to the discretion of the sheriff or police chief.19

Other than instructing the sheriff or police chief to make an inquiry whether the applicant would present a danger to himself or others if the permit were issued, the 1981 statute provided no guidelines for a sheriff or police chief to follow in determining whether to issue a permit. As a result, the ease (or difficulty) of obtaining a concealed weapons permit depended largely on the agent issuing the permit and the permitting office's policies, practices, and predilections.

For example, within three months of taking office in 1994, La Plata County Sheriff Duke Schirard issued approximately 250 concealed weapons permits to county residents, honoring his campaign pledge to issue permits to anyone whom he deemed qualified.20 By contrast, Schirard's predecessor, Bill Gardner, issued only five concealed weapons permits during the eight years he was La Plata County Sheriff.21 In Denver, former Police Chief Ari Zavaras granted only forty-five permits during his tenure.22 The detective who administered Zavaras's permitting program said that only applicants with a "true and compelling need" would be granted concealed weapons permits, adding, "[F]ear for your life is not a compelling reason to have a permit."23

This widespread inconsistency among jurisdictions within the state regarding issuance of concealed weapons permits is the stated rationale for S.B. 24. S.B. 24 revises Colorado's concealed carry law by guaranteeing issuance of a concealed handgun permit to any individual who is:

1) a current legal resident of the state;

2) at least 21 years old;

3) not otherwise ineligible to possess a firearm as a convicted felon under federal or state law;

4) not convicted of perjury under state law in relation to information provided on an application for a concealed carry permit;

5) not a chronic or habitual user of alcohol, as evidenced by having two or more convictions for driving under the influence of alcohol or having been committed as an alcoholic under alcohol and drug abuse treatment laws within the previous ten years;

6) not addicted to or using a controlled substance;

7) not subject to a restraining order at the time of the application; and

8) able to produce evidence of competence with a firearm, either by having completed a handgun training class within the last ten years, being a certified firearm instructor, having firearms experience through shooting competitions or the military, or being a retired Colorado law enforcement officer.24

If the applicant meets all of the eligibility criteria for the permit, the applicant then submits a completed application, as well as a recent color photograph and payment for licensing fees and background and fingerprint checks to the sheriff of the county in which he or she resides maintains a second home, or owns or leases property used for the applicant's business.25 At the time the application is submitted, the sheriff will take two sets of the applicant's fingerprints, which will be sent to the...