Colorado lawmakers this year, in the wake of a mass shooting at a Boulder King Soopers, passed a bill barring people convicted of certain misdemeanor crimes from purchasing a gun for five years.
The measure, House Bill 1298, was hailed as a way to prevent bloodshed and keep weapons out of the hands of dangerous and potentially unstable people. A few years before the shooting, the alleged King Soopers gunman was convicted of third-degree assault, one of the misdemeanors that can now temporarily keep a person from purchasing a gun.
But the legislature and Gov. Jared Polis also passed a measure loosening the state’s prohibition on firearm possession by felons, allowing those who pleaded guilty or were convicted of crimes such as criminal impersonation, theft and drug offenses, to have a gun.
“It just seems inconsistent,” said George Brauchler, a Republican and the former 18th Judicial District Attorney, who first highlighted the discrepancy in a Denver Post opinion piece this week.
The change to Colorado’s felon-in-possession law was made through Senate Bill 271, a 304-page measure that mostly altered the state’s misdemeanor code by lowering penalties and reclassifying crimes. The legislation had bipartisan support and even passed through the state Senate unanimously after being referred to lawmakers by the Commission on Criminal and Juvenile Justice, which is made up of prosecutors, law enforcement, victim rights advocates and defense attorneys.
Rep. Dylan Roberts, an Avon Democrat and prime sponsor of the measure, defended the change to the law, pointing out that the bill was supported by district attorneys.
The alteration means that only felons convicted of a crime that falls under the Victims Rights Act are now prohibited from possessing a gun. People convicted of murder, robbery and felony assault, for instance, are still barred for life from having a firearm.
Senate Bill 271 also made being a felon in possession of a firearm a Class 5 felony, up from a Class 6 felony. That increased the maximum penalty for those who violate the law to three years in prison from 18 months.
The legislation also requires judges to impose a prison sentence and not just probation if, during the commission of a crime, the offender brandishes or uses the weapon.
Tristan Gorman, legislative policy coordinator for the Colorado Criminal Defense Bar, worked on Senate Bill 271. Gorman points out that the CCJJ process is onerous and includes a lot of input from sometimes conflicting interests.
“Nothing radical is coming out of CCJJ,” Gorman said.
As for changing Colorado the felon-in-possession law, “I think that it’s a statute that has long been in need of reform,” Gorman said, arguing that it’s too broad and needed paring down.
“I’ve seen the most (previous offender in possession of a weapon) charges in cases where my client is pulled over for driving while Black or driving while Latino and there is a firearm found,” Gorman said.
Being a convicted felon in possession of a firearm — no matter the felony — continues to be illegal under federal law, where it carries a maximum prison sentence of 10 years. Federal prosecutors enforce the law in a targeted way, however, often reserving charges for people suspected of other crimes or being in a gang.
Because of the federal statute, any felon in Colorado may still be prohibited from purchasing a gun as they wouldn’t pass a federal background check.
The Colorado Bureau of Investigation, which handles gun background checks in Colorado, was trying to determine this week if the change in the law would let people convicted of felonies who are now able to possess a gun to also buy one.
But that’s not the only confusion the new law is causing. The alteration allowing some felons to legally possess a firearm appears to create conflict in the state’s criminal code.
For instance, someone convicted of felony animal abuse is now able to possess a gun under Senate Bill 271. But because of House Bill 1298, someone convicted of misdemeanor animal abuse would not be able to purchase a weapon for five years after their conviction.
House Bill 1298 placed the five-year purchasing restriction on people convicted of the following misdemeanors:
- Third-degree assault
- Sexual assault
- Unlawful sexual contact
- Child abuse
- Violation of a protection order
- A crime against an at-risk person
- A bias-motivated crime
- Possession of an illegal weapon
- Unlawfully providing a firearm other than a handgun to a juvenile
House Bill 1298 does not prohibit people from continuing to possess firearms they owned before they were convicted of a misdemeanor that temporarily blocks them from purchasing a gun.
Gorman says the Criminal Defense Bar didn’t support House Bill 1298.