Temporary Injunction against Colorado “gun control” legislation shelved as plaintiffs, state reach compromise on key terms
A hearing in U.S. District Court on a Motion for Temporary Restraining Order and Preliminary Injunction against enforcement of controversial (and, as alleged in the underlying lawsuit filed by 55 Colorado Sheriffs and other plaintiffs, unconstitutional) “gun-control” legislation enacted in the 2013 Colorado legislative session, failed to produce the expected legal drama and fireworks this morning as the plaintiffs and state reached an 11th-hour compromise the previous night in defining key terminology in the language of the challenged legislation.
The “compromise” resulted in withdrawal of the plaintiffs’ Motion to wholly block implementation and enforcement of the magazine ban legislation in exchange for additional “clarification” in the Attorney General’s previously-issued “Technical Guidance on the Interpretation and Application of HB13-1224, ‘Large-capacity magazine ban’ legislation.”
Two key provisions in the statutory language of HB13-1224, ‘Concerning Prohibiting Large-Capacity Ammunition Magazines’ were “clarified” in a forthcoming update to the “Technical Guidance” issued by the Attorney General on behalf of the Governor’s office:
- Language banning magazines “designed to be readily converted” and
- Language requiring maintenance of “continuous possession” of magazines owned prior to the legislation’s effective date (1 July 2013)
The revised “Guidance” specifies that magazines with removable base plates (the vast majority of magazines in production and circulation) will not be considered to violate the law unless they have actually been altered to hold more than 15 rounds. “Unless so altered, they are not prohibited.”
Additionally, the definition of “continuous possession” under the law will be construed to exist so long as the owner does not ‘voluntarily relinquish’ dominion and control of any magazines owned prior to the legislation’s effective date (1 July 2013). (The term “dominion” is a specific legal term meaning “ownership or right to property… which arises from the power of disposition [right to buy/sell] and the right of claiming it.”)
Although the “Technical Guidance” is considered legally binding for the governor and state agencies so long as it remains in effect, as reported by 9News in quoting Colorado Solicitor General Dan Domenico (“Sheriff, state agree on gun-law language“)
“The governor and everybody under his authority is bound by what is in this guidance,” Colorado Solicitor General Dan Domenico said. “We intend to comply with it, and there would be no reason for anybody in the state apparatus to do anything inconsistent with it.”
it falls short of providing complete legal assurance for Colorado citizens, on two counts:
- Although binding on the executive branch of state government, it does NOT necessarily constrain municipal and/or county law enforcement or other government agencies; and
- As legal guidance only, it does NOT protect against enforcement at the point of contact with law enforcement, only as an affirmative defense at trial (i.e. at considerable personal burden & expense).
Furthermore, although the current governor’s current position is to “intend to comply with it” there is no legal guarantee that a future administration might not issue different legal guidance (or that the current governor and/or attorney general might simply change his mind at some future date).
Although the “compromise” holds some of the worst features of the legislation in abeyance and forestalls enforcement (at least by the state) under the most likely conditions in which it could apply, Colorado citizens remain unable to engage in lawful commerce (buying, selling, or trading) in standard-capacity ammunition magazines and associated firearms – a clear and ongoing violation of individual rights under the Colorado Constitution (Article II Section 13) and U.S. Constitution (2nd Amendment).
Unfortunately, Colorado citizens will have to wait until the trial considers the legal challenge on the merits (currently scheduled for December 2013, although the plaintiffs have urged an earlier trial date – potentially as early as August – which U.S. District Judge Marsha Krieger, presiding over the case, has hinted would be welcomed).
Ultimately, of course, the case is likely to proceed through the 10th Circuit on appeal and all the way to the U.S. Supreme Court for final resolution – impacting not just Colorado, but the nation as a whole.
Read more about the Colorado gun case in these articles:
- “Gov. Hickenlooper, sheriffs compromise on Colorado gun law” (Colorado Springs Gazette)
- “Challenge to Colorado’s new gun regs remain, but agreement reached on some” (Denver Post)
- “Sheriff, state agree on gun-law language” (9News)
- “First Major Success in Lawsuit Challenging New Gun Control Laws” (Independence Institute)
- Colorado Gun Case (reference site with complete legal filings and official statements)
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
Ultimately, though – it’s worth the effort.