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Colorado Civil Protection Orders And The Loss Of The Right To Bear Firearms – 13-14-105.5

By H. Michael Steinberg Colorado Domestic Violations Criminal Defense Lawyer – Attorney

Colorado Civil Protection Orders And The Loss Of The Right To Bear Firearms – 13-14-105.5 – As a result of some important and significant changes to Colorado’s Civil Protection Order Laws – there are provisions that restrict, sometimes permanently, the “restrained party’s” right to bear arms.

The loss of the right to bear arms will result if a person loses the Permanent Restraining Order hearing and certain findings are made by the Judge when the permanent restraining order occurs.

Put differently, whether or not a loss of the right to bear arms happens in your Colorado Permanent Restraining Order case will depend on whether two findings made by the Judge at the restraining order hearing.

The significance of this law – 13-14-105.5 is that the permanent restraining order procedure is a civil, not a criminal process. Therefore, under Colorado law, you can now lose the precious right to bear arms under the Second Amendment even if you have never been charged with or convicted of a criminal offense.

Understanding The “Firearm Prohibition” Following A Colorado Permanent Restraining Order – CRS 13-14-105.5

Commonly referred to as the “Firearm Prohibition,” the entire law is found in CRS § 13-14-105.5 (See reprint of the law – below):

This relatively new law is not well understood.

CRS § 13-14-105.5 has a hidden “collateral effect” on the restrained party of a Colorado Civil Protection Order. This impact is based on a finding of domestic violence, or – in some rare cases, child abuse.

The statute – 13-14-105.5 – states that the law applies to those protection orders that qualify as domestic violence under federal law. 13-14-105.5 specifically refers to the federal law in question – 18 USC § 922(d)(8) or (g)(8) – (see sections reprinted far below).

The issue here turns on whether the Judge finds – at your hearing – that the reasons for the issuance of the permanent restraining order arose from an act or acts of domestic violence. An act of domestic violence requires that the protected person who benefits from the permanent restraining order is, or was, an “intimate partner” when the act of domestic violence allegedly occurred.

What Is An Intimate Partner For The Purposes O Federal Firearms Laws?

Under Federal Firearms Laws…

The term “intimate partner” means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.

The Two Findings That Will Lead To The Loss Of The Right To Bear Arms

If, at the time of the issuance of the permanent restraining order, the Judge makes the following findings, you will lose your right to bear arms. If the permanent restraining order is never modified (see below) this loss of the right to bear arms is permanent.

The Judge must find:

1. That that represent a credible threat to the physical safety of your intimate partner or your child.

AND

2. that the restraining is required to explicitly prohibits the use, attempted use, or threatened use of physical force against your intimate partner or child because you could, in the absence of such an order, reasonably be expected to cause bodily injury.

If these findings are made – under CRS § 13-14-105.5, you will lose your right to possess, own, or purchase a firearm or ammunition for the duration of the protection order.

The Same Impact As A Felony Or An Conviction For Domestic Violence

Even if you have never been charged or convicted of a crime involving an act of domestic violence and have never been convicted of a felony, you will lose your right to bear arms.

Under Colorado law, a permanent civil protection order under Title 13 is imposed for life. The only possible relief from this restriction is the right to seek modification of the Order every two years under CRS § 13-14-108. (See below)

Also Applies To Child Abuse In The Absence Of Child Abuse

The way the new law is written, it has the potential to apply, not only to acts of domestic violence it can also apply to non-domestic-violence situations. If you are restrained from contact with your child, and if that child was born to an intimate relationship that is the subject of the restraining order, even in the absence of an act of domestic violence upon that intimate partner, you can lose your right to bear arms.

But this is rarely the case. While there may be a fact pattern where there is an absence of an act of domestic violence but there are facts that involve child abuse, this is almost never the case. Usually the two fact patterns occur at the same time.

One Escape Hatch: Petitioning The Court To “Lift” The Permanent Protection Order- 13-14-108.

While a contemporaneous change to CRS 13-14-108 decreased the waiting period to attempt to lift a restraining order from four years to two years – which seems like an improvement to those impacted by a Colorado Civil Permanent Restraining Order – it is not when placed against the background of the newly added factors below.

While the law decreased the time frame for seeking a modification of the restraining order, it also sets up significant new roadblocks to the successful “lifting” of that order.

The key test under the modification section of the law is the creation of a key consideration a Judge must apply before modifying or terminating a permanent protection order.

That key consideration reads as follows:

…whether the continued safety of the protected person depends upon the protection order remaining in place because the order has been successful in preventing harm to the protected person.

What follows are the key factors, the burdens of proof, and important time frames in CRS § 13-14-108.

To be successful on your request to modify or terminate the permanent protection order you must show by “preponderance of the evidence” that the modification or termination you seek “is appropriate.”

Here are the factors that must be analyzed by the Court as outlined in C.R.S. §13-14-108(6)(a – j),:

The questions the Judge will use to analyze your case are:

1. Has the restrained party complied with the orders of the protection order, if any?

2. Was the restrained party ordered to participate in and has completed treatment such as domestic violence or sex offender treatment program?

3. Did the restrained party voluntarily participate in any treatment programs?

4. How much time that has elapsed since protection order was issued?

5. Has the restrained party plead guilty to any misdemeanor or any felony offense involving the protected party?

6. Have any other restraining orders been entered against the restrained person in Colorado or any other state?

7. What is the proximity of the parties to one another and do they have minor children together?

8. Does the safety of the protected person depend upon the protected order remaining in the effect?

After considering these factors and any others the Judge may deem appropriate, the Judge applies the preponderance of the evidence burden of proof and determines if is “appropriate” to modify or dismiss the permanent protection order.

Here Are The Relevant Laws Referenced In This Article

§ 13-14-105.5. Civil Protection Orders – Prohibition on Possessing or Purchasing a Firearm

(1) If the court subjects a person to a civil protection order pursuant to a provision of this article and the protection order qualifies as an order described in 18 U.S.C. sec. 922 (d) (8) or (g) (8), the court, as part of such order:

(a) Shall order the person to:

(I) Refrain from possessing or purchasing any firearm or ammunition for the duration of the order; and

(II) Relinquish, for the duration of the order, any firearm or ammunition in the respondent’s immediate possession or control or subject to the respondent’s immediate possession or control; and

(b) May require that before the person is released from custody on bond, the person shall relinquish, for the duration of the order, any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control.

(2) (a) Except as described in paragraph (b) of this subsection (2), upon issuance of an order pursuant to subsection (1) of this section, the respondent shall relinquish any firearm or ammunition:

(I) Not more than twenty-four hours after being served with the order in open court; or

(II) Not more than forty-eight hours after being served with the order outside of the court.

(b) A court may allow a respondent up to seventy-two hours to relinquish a firearm or up to five days to relinquish ammunition pursuant to paragraph (a) of this subsection (2) if the respondent demonstrates to the satisfaction of the court that he or she is unable to comply within the time frame set forth in said subsection (2).

(I) Sell or transfer possession of the firearm or ammunition to a federally licensed firearms dealer described in 18 U.S.C. sec. 923, as amended; except that this provision shall not be interpreted to require any federally licensed firearms dealer to purchase or accept possession of any firearm or ammunition;

(II) Arrange for the storage of the firearm or ammunition by a law enforcement agency; except that this provision shall not be interpreted to require any law enforcement agency to provide storage of firearms or ammunition for any person; or

(III) Sell or otherwise transfer the firearm or ammunition to a private party who may legally possess the firearm or ammunition; except that a person who sells or transfers a firearm pursuant to this subparagraph (III) shall satisfy all of the provisions of section 18-12-112, C.R.S., concerning private firearms transfers, including but not limited to the performance of a criminal background check of the transferee.

(3) If a respondent is unable to satisfy the provisions of subsection (2) of this section because he or she is incarcerated or otherwise held in the custody of a law enforcement agency, the court shall require the respondent to satisfy such provisions not more than twenty-four hours after his or her release from incarceration or custody or be held in contempt of court.

Notwithstanding any provision of this subsection (3), the court may, in its discretion, require the respondent to relinquish any firearm or ammunition in the respondent’s immediate possession or control or subject to the respondent’s immediate possession or control before the end of the respondent’s incarceration. In such a case, a respondent’s failure to relinquish a firearm or ammunition as required shall constitute contempt of court.

….

(I) The failure constitutes a violation of the protection order pursuant to section 18-6-803.5 (1) (c), C.R.S.; and

(II) The court shall issue a warrant for the respondent’s arrest.

(b) In any subsequent prosecution for a violation of a protection order described in this subsection (9), the court shall take judicial notice of the defendant’s failure to file a receipt or written statement, which will constitute prima facie evidence of a violation of the protection order pursuant to section 18-6-803.5 (1) (c), C.R.S., and testimony of the clerk of the court or his or her deputy is not required.

(10) Nothing in this section shall be construed to limit a respondent’s right to petition the court for dismissal of a protection order.

(11) A person subject to a civil protection order issued pursuant to section 13-14-104.5 (1) (a) who possesses or attempts to purchase or receive a firearm or ammunition while the protection order is in effect violates the order pursuant to section 18-6-803.5 (1) (c), C.R.S.

(12) (a) A law enforcement agency that elects in good faith to not store a firearm or ammunition for a person pursuant to subparagraph (II) of paragraph (c) of subsection (2) of this section shall not be held criminally or civilly liable for such election not to act.

(b) A law enforcement agency that returns possession of a firearm or ammunition to a person in good faith as permitted by subsection (6) of this section shall not be held criminally or civilly liable for such action.

Federal Laws – (excerpted) 18 U.S.C. sec. 922 (d) (8) – (and) (g) (8),

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—

…

(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

(B) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) has been convicted in any court of a misdemeanor crime of domestic violence.

This subsection shall not apply with respect to the sale or disposition of a firearm or ammunition to a licensed importer, licensed manufacturer, licensed dealer, or licensed collector who pursuant to subsection (b) of section 925 of this chapter is not precluded from dealing in firearms or ammunition, or to a person who has been granted relief from disabilities pursuant to subsection (c) of section 925 of this chapter.

….

(g) It shall be unlawful for any person—

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

Colorado Civil Protection Orders And The Loss Of The Right To Bear Firearms – 13-14-105.5

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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Civil Protection Orders And The Loss Of The Right To Bear Firearms – 13-14-105.5.

Summary

Article Name

Colorado Civil Protection Orders And The Loss Of The Right To Bear Firearms - 13-14-105.5

Description

As a result of some important and significant changes to Colorado’s Civil Protection Order Laws - there are provisions that restrict, sometimes permanently, the "restrained party’s" right to bear arms.

Author

H. Michael Steinberg