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    Colorado Criminal Domestic Violence Laws – Firearms and Domestic Violence Cases

    This area – Federal Right to Bare Arms Laws as they relate to Colorado Domestic Violence Cases – more than any other – generates calls to my law firm.  For that reason – I have included – yet another article on the topic.

    This chapter will address firearms and the various federal and state laws that affect a person¡|s ability to possess firearms when domestic violence issues arise.

    Introduction  to Colorado Criminal Domestic Violence Laws – Firearms and Domestic Violence Cases

    In 1994, the Colorado Legislature passed sweeping legislation impacting a person¡|s ability to possess a firearm following either a conviction for a crime of domestic violence or when restrained by a protection order.

    In 1996, the Gun Control Act of 1968 was amended by Congress to significantly restrict the possession of firearms by domestic violence offenders and those subject to protection orders.

    Federal Domestic Violence Gun Control Legislation – Gun Control Act of 1968 (Lautenberg Amendment)

    In 1996, the Gun Control Act of 1968 was amended by Congress in what has become known as the Lautenberg Amendment (introduced by Senator Lautenberg of New Jersey). This act made the possession of a firearm or ammunition by a domestic violence offender illegal. There are two major parts of this amendment. 18 U.S.C. 922(g)(9).

    18 U.S.C. 922(g)(8).

    It makes it illegal for a person convicted of a §misdemeanor crime of domestic violence¨ to possess, sell, dispose of, ship, transport, or receive a firearm or ammunition.

    The amendment makes it illegal for a person to possess a firearm or ammunition if they are subject to a qualified protection order and are not part of an official use exemption.

    These two amendments were adopted in 1997 with an effective date of September 30, 1996.

    Conviction of Colorado Misdemeanor Crimes of Domestic Violence 18 U.S.C. 921(a)(33).

    C.R.S.16-7-206(3). C.R.S. 18-1.3-102(1). 18 U.S.C. 921(a)(33); 27 C.F.R. 178.11

    Possession/Transfer of a Firearm or Ammunition When Convicted of a Qualified Misdemeanor Crime of Domestic Violence

    In order for a person to be subject to the firearms disability under 18 U.S.C. § 922, they must be convicted of a qualifying MCDV.

    Under Federal Law, the definition of domestic violence is different that the state definition. The term §misdemeanor crime of domestic violence¨ (§MCDV¨) means an offense that meets the following criteria:

    (1) Type of Crime V a misdemeanor under Federal or State law; and has, as an element, the use of attempted use of physical force, or the threatened use of a deadly weapon

    (2) Relationship Requirement – the perpetrator must be a:

    a. Current or former spouse, parent, or guardian of the victim;

    b. Person with whom the victim shares a child in common;

    c. Person who is cohabitating with or has cohabited with the victim as a spouse, parent, or guardian; or

    d. Person similarly situated to a spouse, parent, or guardian of the victim.

    (3) Right of Counsel the perpetrator must be represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case;

    (4) Right to Jury Trial V If the perpetrator is entitled to a jury trial, then the case is either tried by a jury or the person knowingly and intelligently waived the right to have the case tried by a jury by guilty plea or otherwise.

    While the federal definition of MCDV establishes what conviction means, there are specific applications to Colorado law that need to be addressed.

    Under Colorado law, the entry of a guilty plea acts as a conviction.

    This means that a deferred sentence to a MCDV would necessarily implicate a federal firearms disability as a guilty plea is required to enter into a deferred sentence.

    A defendant is only subject to the federal disability as long as the guilty plea is in place. Should the guilty plea be vacated, either by the dismissal of a deferred sentence or otherwise, the disability no longer applies.

    There is no official use exemption for person convicted of MCDV. That means employers, including state, federal, or military employers, may need to terminate employees and confiscate weapons of those employees who become subject to this disability.

    Qualifying Protection Order in Colorado 8 U.S.C. § 922(g)(8). 18 U.S.C. § 925(a)(1).

    Official Use Exception

    The term “qualified protection order¨ is defined under the Federal Law to include any court order that meets the following criteria:

    (1) Due Process – the person must have actual notice of a hearing and the opportunity to participate at that hearing.

    (2) Relationship Requirement the person must be an “intimate partner¨ which is a current or former spouse, a parent of a child of the defendant/respondent, or a person who co-habitates or has cohabitated with the defendant/respondent.

    (3) Clear terms of the Order – the order must restrain the person from harassing, stalking, or threatening an intimate partner of such person or a child of such intimate partner or defendant/respondent, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.

    (4) Finding of Credible Threat or Prohibiting Conduct V court must either find that defendant/respondent represents a credible threat to the physical safety of the intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.¨

    If a person is subject to a qualifying protection order, it is illegal for them to possess a firearm or ammunition.

    However, unlike the domestic violence conviction, there is an exception under the Federal Law for someone to possess a firearm and ammunition while subject to a qualified protection order.

    The disability to possess a firearm and ammunition does not apply when the United States government or any of its departments or agencies; or any State government or any of its departments or agencies issues the firearm for the use in one of those groups.

    This means that agencies such as police departments, the National Guard, and other governmental units can issue firearms to people subject to a qualified protection order so long as it is for official use.

    Personal weapons are not covered by this exemption.

    Length of Disability

    For qualifying MCDV convictions, the disability is a lifetime ban. However, under several circumstances, the right to possess a firearm may be restored. If the conviction is expunged or set aside, a person may be able to restore their ability to possess a firearm.

    For qualifying protection orders, the length of disability under a qualified protection order lasts as long as the protection order is in place.

    Colorado Waiting Period / InstaCheck  – C.R.S. § 12-26.1-101

    Gunshow  – C.R.S. § 24-33.5-424

    National instant criminal background check system–state point of contact–grounds for denial of firearm transfer–appeal–rule-making–unlawful acts

    The Brady Handgun Violence Prevention Act of 1993 established a five day waiting period for the purchase of firearms in order to complete a background check.

    This waiting period expired in 1998 with the creation of the National Instant Criminal Background Check System (NICS). While there may still be a wait of up to three business days, in many cases the approval or denial of the sale of the firearm is much faster.

    For purchases of firearms either through a licensed retailer or at a gunshow in Colorado, purchasers are required to undergo a background check, which is reviewed by the InstaCheck Unit within the Colorado Bureau of Investigation.

    It is a federal law violation to sell a firearm without a license.

    Problems of Colorado State Enforcement  – C.R.S. § 16-2.5-101 et seq.

    It is a federal crime to violate the conditions of the Lautenberg Amendment and other provisions of the Gun Control Act of 1968.

    Local and State law enforcement cannot enforce federal law unless they possess the ability to under an agreement with a federal law enforcement agency.

    Safety of an alleged victim is an important consideration in any case involving domestic violence and domestic abuse. While local law enforcement cannot arrest or investigate violations of the federal gun control laws, the Courts have the ability to impose conditions on protection orders and conditions of probation that can be enforced either by law enforcement or through contempt proceedings. In some Colorado jurisdictions, the Courts issue orders in cases involving protection orders and domestic violence probation where a Defendant is ordered to turn over all firearms.

    The federal firearm disability is a retroactive statute and applies in cases where the MCDV conviction happened prior to September 30, 1996.

    Relevant Case Law

    Courts must look to the governing state law to determine if a conviction qualifies as a MCDV. If the form of adjudication is considered a conviction under state law, it will qualify as a conviction and support prosecution under 18 U.S.C. § 922(g)(9).

    A deferred sentence is considered a conviction under federal law.

    A specific element of the nature of the relationship is not required in order to trigger the federal firearm prohibition. The nature of the domestic relationship does, however, need to be proven to find someone guilty of a Gun Control Act violation.

    In order to meet the relationship requirement under a qualified misdemeanor crime of domestic violence, the defendant must be:

    (1) A current or former spouse, parent, or guardian of the victim;

    (2) A person with whom the victim shared a child in common;

    (3) A person who was cohabiting with or had cohabited with as a spouse, parent, or guardian; or

    (4) A person who was or had been similarly situated to a spouse, parent, or guardian of the victim.

    For Example, in Woods v. City and County of Denver, appellant appealed from a decision by the City of Denver to not hire him as a police officer after he was found to have a domestic violence conviction.

    The Appellant was involved in a relationship with a woman for a year.

    The relationship was a sexual relationship.

    The woman spent most of her evenings at the Appellant|s home and occasionally used his credit cards.

    There was also evidence that some of the furniture in the shared residence belonged to the woman.

    The Appellant admitted to cohabitating with the woman.

    The Court of Appeals upheld the ruling that the appellant and the woman were similarly situated to a spouse.

    Relevant Colorado Criminal Statutes

    Possession of Weapons by a Previous Offender – C.R.S. § 18-12-108(6)(c)(I)(A).

    A person commits the crime of possession of a weapon by a previous offender in violation of this section if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901(3)(h), or any other weapon that is subject to the provisions of this title subsequent to the person|s conviction K for a misdemeanor crime of domestic violence as defined in 18 U.S.C. sec. 921 (a)(33)(A), or subsequent to the person|s conviction for attempt or conspiracy to commit such misdemeanor crime of domestic violence.¨

    However, this section is part of the written warning all inmates from the department of corrections receive upon discharge from their custody. Closer examination of the elements of possession of weapons by previous offenders does not reveal a state level crime of possession of a weapon by a person convicted of a MCDV.

    Conditions of Probation

    In 1994, the Colorado Legislature adopted mandatory conditions of probation

    C.R.S. § 18-1.3-204(2)(b).

    C.R.S. § 18-1.3-102. – in all cases where a person is being supervised for a crime with an underlying factual basis that includes a crime of domestic violence as defined in §18-6-800.3.

    When granting probation, in addition to the consideration of the provisions set forth in paragraph (a) or this subsection (2), the court shall order as a condition of probation in cases in which the defendant was convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3(1), that the defendant:

    I. Comply with existing court orders regarding family support;

    II. Comply with any existing court orders concerning a proceeding to determine paternity, custody, the allocation of decision-making responsibility, parenting time, or support;

    III. Comply with the terms of any protection order in effect against the defendant during the probation period;

    IV. Refrain from possessing a firearm, destructive device, or other dangerous weapon, unless granted written permission by the court or probation officer which shall not be granted in such domestic violence cases unless:

    (a) It is required by the defendant|s employment; and

    (b) The court finds that the defendant|s possession of the weapon does not endanger the victim or the victim|s children; and

    (c) The weapon is stored away from the home and the yard surrounding the home.

    This section clearly imposes a mandatory ban on all firearms while a defendant is on domestic violence probation unless that firearm is required for the defendant|s employment and other findings are made by the court. This includes firearms used for hunting unless, of course, the defendant|s employment is as a hunter.

    Application

    This ban includes defendants who are convicted at trial and who plead guilty to such offenses.

    A person who enters into a plea agreement involving a deferred sentence must also abide by the conditions of probation involving firearms.

    A person entered into a deferred sentence must enter a guilty plea.

    The statute does not allow pleas of no contest or nolo contendere in order to take advantage of a deferred sentence. The acceptance by the court of a plea of guilty acts as a waiver by the defendant of the right to trial by jury on all issues including the determination of the penalty to be assessed, and the acceptance of such plea also acts as a conviction for the offense.¨

    C.R.S. § 16-7-206(3).

    The conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation. Any person convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3(1), shall stipulate to the conditions specified in section 18-1.3-204(2)(b) above.

    Colorado Protection Orders and Firearms – C.R.S. § 13-14-101 et seq.

    C.R.S. § 13-14-102(15)(f) – C.R.S. § 18-1-1001(3).

    The trial court, both in the context of a civil protection orders contained under Title 13 and criminal protection order contained under Title 18, has the ability to impose conditions designed to protect the victim and the victim|s children from domestic abuse and domestic violence.

    Pursuant to the civil protection order statutes found at section, the trial court is authorized to issue a civil protection order to prevent the actions complained of in the complaint. The statute does not limit a trial court in the conditions it can impose.

    Some courts in Colorado, when issuing either a temporary or permanent protection order, will order a restrained party to surrender their firearms and to provide a sworn affidavit stating they are not in possession of a firearm. These courts will often follow-up to ensure the restrained party has complied with the court|s order to relinquish any firearms.

    Courts are required to use the state form for protection orders.

    The municipal courts (provided there is authorization from its municipal governing body), county courts, and district courts all have original concurrent jurisdiction to issue orders regarding weapons and firearms.

    The Court may impose “such other relief as the court deems appropriate.¨

    The Court is authorized to include a condition of no weapons as part of a criminal protection order.

    Upon motion of the district attorney, or on the court|s motion to protect the alleged victim, the court may, in cases involving domestic violence as defined in C.R.S. § 18-6-800.3(1), enter an order prohibiting possession or control of firearms or other weapons.

    Court Enforcement of a “No Weapons¨ Provision

    The court is provided great latitude under the various statutes to protect the alleged victim and the alleged victim|s children from violence in both the criminal and civil context. The imposition of a no weapons¨ or “no firearms or other weapons¨ condition in either a civil or criminal protection order serves the purpose of providing extra protections to a victim.

    In addition to ordering “no weapons¨ or “no firearms or other weapons,¨ some courts in Colorado require a restrained party to relinquish firearms and to provide proof to the Court through affidavit that they are no longer in possession of these weapons. By using these forms, the courts can use contempt proceedings under C.R.C.P. 107.

    The Colorado State Court Administrator|s Office adopted a recognizable first page for its civil and criminal protection orders.

    In 2005, the Colorado State Court Administrator|s Office participated in Westward Bound: Extending Project Passport. Project Passport originally was an effort by Kentucky and its seven bordering states to develop a model template for a recognizable first page for protection orders in order to strengthen the safety for victims of domestic violence and their children. This recognizable first page would make it easier for local law enforcement to recognize foreign protection orders and would allow for more uniform enforcement of those orders.

    One of the areas of the recognizable front page contains a set of check boxes asking the trial court to determine the following:

    The Court Finds that the Defendant is not governed by the Brady Handgun Violence Prevent Act, 18 U.S.C. §922(d)(8) and (g)(8).

    The purpose of a court’s finding of whether a restrained party is subject to the federal firearm disability was to allow the protection order to be entered a federal database, NICS, which is used when authorizing the sale of guns. However, on January 23, 2009 the State Court Administrator issued a memorandum to all judges stating that due to a recent change of Federal Law, the courts no longer were required to enter a finding on the Brady issue on protection orders. See Memorandum titled §An Update to Transferring Brady Information from Court to CBI¨ under section VIII.

    Despite this change in procedure, it is still recommended that when a court does have information to make a finding of either “yes¨ or “no¨ as to the Brady findings that it completes that section of the protection order.

    Brady Memo to the Courts

    To: Judges, Magistrates, Clerks of Court and Unit Supervisors

    From: Carol Hailer

    Date: January 23, 2009

    RE: An Update to Transferring Brady Information from Court to CBI

    Beginning in May, 2006, certain protection orders entered on ICON/Eclipse had a code for a Brady indicator that transferred to CBI. The protection orders at issue were permanent protection orders under § 13-14-102, C.R.S., and mandatory protection orders under 18-1-1001, C.R.S., and § 19-2-707, C.R.S. If you recall, there was a requirement to either find “yes, the court|s order is a qualifying order under the Brady Act” or “no, this order is not a qualifying order.” Judges were advised to select “no” both when the order positively did not qualify under Brady to prevent the possession of firearms and where the court could not make a positive finding or lacked information. For a full discussion of Brady indicators, please use the following link to access

    New Protection Order Codes.

    Due to a change in the Federal law, it is no longer mandatory to enter a finding on the Brady issue on protection orders. In August 2008, the FBI entered new rules regarding the Brady finding on state court protection orders:

    First, making a finding is not required. The Brady fields may be left blank. The clerk will no longer have to enter a “yes” or “no” to exit the screen.

    Second, a blank field will no longer transfer as a “no” to the NCIC database. Instead, the federal database will accept a protection order without a finding on the Brady flag.

    The fields for Brady findings will remain on the protection orders but, if no finding is made, the court’s case management system will not transfer any information to CBI. However, even though a protection order can now be transferred without a “yes” or “no” Brady finding, it is still important to enter a finding in those cases where the court does have information to make a finding of either “yes” or “no”.


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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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