On the books: The two laws at the center of debate:
 

by Tracy Chamberlin

Unenforceable. Unconstitutional. Those are the words echoed by law enforcement officers concerned with two gun bills recently signed into law by the governor.

A majority of Colorado’s sheriffs have banded together and are considering filing suit against the state over these new laws.

Of the 62 Colorado counties, 37 sheriffs have officially joined the effort. La Plata County Sheriff Sydney “Duke” Schirard, Dolores County Sheriff Jerry Martin and Montezuma County Sheriff Dennis Spruell are among those coming out in official opposition.

San Juan County Sheriff Sue Kurtz is still reviewing the complaints, and plans to make a decision in the near future.

“It’s a really complicated issue,” she said. “How enforceable are these (laws)? And, that’s really what the lawsuit is all about.”

At the center of the potential suit is HB13-1224, which defines and prohibits large-capacity magazines, and HB13-1229, which is about the transfer of private firearms.

The magazine law defines a large-capacity magazine as “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 15 rounds of ammunition.”

Schirard called the ammunition limit of 15 rounds “arbitrary.” He said “the problem here is not the tools, but the state of mind of the people that use them.”

Another concern with the definition is that, according to Martin, it could potentially include all magazines because “any magazine could be increased in capacity.”

This is one of the reasons he is supporting the potential suit, and thinks the laws should be examined and clarified. “We need to have a decision made by the courts,” he added.

The law also allows for someone to possess a large-capacity magazine if he or she “owns (one) on the effective date,” essentially grandfathering in larger magazine sizes.

Spruell said this is one of the reasons the law is unenforceable.

For example, if an individual was in possession of a large magazine, law enforcement officials would have only the individual’s word that it was purchased prior to the law’s implementation. The only other alternative would be for the individual to self-incriminate, which could cause additional issues.

The transfer law defines the process for transferring private firearms, including background checks, penalties and exemptions. It does allow for the transfer of weapons in specific situations or between specific individuals.

For example, a firearm may be transferred as a “bona fide gift or loan between immediate family members, which are limited to spouses, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts and uncles.”

This means a father-in-law could not gift his firearm to his son-in-law without going through the proper authorities, filling out the paperwork and submitting to a background check.

The potential for confusion, Spruell said, is another reason this law is unenforceable.

David Kopel, research director for the Independence Institute and adjunct law professor at the University of Denver, said he would be representing the sheriffs pro bono. If the group goes ahead with the suit, it will likely be filed within the next few weeks; however, a decision has not been made on whether it will be filed in state or federal court.

Kopel and some of the sheriffs involved in the potential suit testified during hearings ahead of the two laws’ passage but did not feel their concerns were heard.

“It was like a deaf ear was turned,” Martin said. He added that he commended state lawmakers for looking at the problem but was frustrated with the outcome.

The first draft of the complaint was sent out to the sheriffs this week for review. According to Schirard, the arguments would focus on the two laws violating the 2nd and 14th amendments of the U.S. Constitution.

The Second Amendment concerns “the right of the people to keep and bear Arms.” The fourteenth amendment concerns equal protection, due process and the citizenship clause.

Schirard said one subject that was missing from these two laws is mental health. “The whole nature of this thing is not addressing the problems,” he added.

This was something echoed by State Sen. Ellen Roberts (R-Durango). Roberts said that she understood the sheriffs’ implementation and constitutional concerns with the laws, but has not been approached to support or oppose their suit. “I don’t really have a role to play,” she said.

She voted against the two bills at the center of the potential suit. “I think it’s a good idea to have a conversation about public safety,” she added.

However, she thought the laws were “rushed through … with no conversation with the people who would enforce them,” and would do little to improve public safety. “Just doing something is not a good way to make good policy,” she said.

Although the Legislature will adjourn May 8, Roberts has joined other senators in co-sponsoring a bill that she said could begin to address the issue of mental health.

The bill, SB13-266, would direct the state’s human services department to look for ways to create a statewide behavioral health-crisis response system.

“It’s a first step,” she said.

State Rep. Mike McLachlan (D-Durango), who voted in support of the two laws at the center of the potential suit, did not immediately return a request for comment.