The Crested Butte News Serving the Gunnison Valley since 1999
Exemptions and variables make
enforcement challenging if not impossible
A year ago, in the wake of the Aurora theater shootings, Colorado passed new gun laws that mandated background checks for all gun sales and restrict ammunition magazines to 15 bullets.
A lawsuit against Colorado governor John Hickenlooper was filed shortly after the law was passed. Plaintiffs included gun shop and shooting range owners, and sheriffs from around the state. In June, a district judge ruled to uphold the new law, so for now, it sticks.
The Denver Post reported a statement made by the state attorney general immediately after the judge’s ruling: “’Like Judge Krieger, the Colorado Attorney General’s Office has never asserted that the laws in question are good, wise or sound policy. As it does in all cases, the AG’s Office has fulfilled its responsibility to defend the constitutionality of the Colorado law in question,” says Colorado Attorney General John Suthers in a news release.”
“I believe in the spirit of the law,” says Gunnison County Sheriff Rick Besecker. “There’s a sense of urgency that we have to do something. But it’s been my experience that when you make a decision that’s emotion-based, you’re going to miss some of the squares that you need.”
It’s the ammo magazine restrictions that has Besecker concerned.
To Besecker, the idea behind the magazine restrictions makes sense on the surface. If a shooter intends to kill large numbers of people in a crowd and can only buy magazines with 15 rounds versus 20, that’s five victims who might get away while the killer reloads. That’s provided the gunman doesn’t also have a shell in the chamber of his gun and hasn’t crammed an additional one or two into the magazine. It also supposes he doesn’t already own a larger magazine that he purchased before July 2013, have access to one that someone else legally owns, or buys one across state lines where it’s legal to do so. That’s a lot of ifs.
Besecker says passing unenforceable gun laws does nothing to get at the cultural and societal roots of the mass shootings that have plagued the nation since before the high-profile Columbine school shootings.
“There are several elements that need research,” he says, imploring a deeper exploration of what’s changed in our society and what’s causing the violence.
“Mental health is a medical circumstance, and access to mental health care is still lacking or inaccessible to many.”
“There are also the psychological effects of movies and video games,” says Besecker, citing instances of kids playing hour upon hour of graphic, violent games, no longer using the joysticks of the 80s, but replicas of guns that look and feel real, while their parents are at work or in the other room. This, along with financial pressures many parents face, two parents working long hours, often limits quality time with kids. Cultural and societal shifts, he says, should also be examined.
“I hate to question people’s values,” he adds, “because I think people’s hearts are in the right place. I’d say it’s more an issue of distractions.”
Besecker says Governor Hickenlooper signed the law with a thorough understanding of its limitations. “He admitted to us that he knew it would make no difference, that it was unenforceable.”
The trouble with the magazine restriction law, from Besecker’s perspective, is that it does not address a wide variety of likely scenarios. An example of a law easy to enforce is DUI. If you’re observed weaving across the center line and an officer pulls you over and gets a huge hit of your whiskey breath, he has good cause for making you walk the line and blow into a breathalyzer. If you test .05 blood alcohol content or higher, you’ve violated the law and are arrested. If you are caught red-handed in possession of heroin, you are arrested for illegal possession of a controlled substance. These laws are clear, unambiguous and easy to enforce.
Being able to tell how many bullets a magazine holds at first glance, or when an ammo clip was made, is not as straightforward.
“Which one was made before July 2013?” asks Besecker, holding two magazines in front of him. “Which holds 15 and which holds 20?”
Magazines come with anywhere from five to 100 bullets. Most common, however, are magazines that hold 10 to 30 shells. The new mandate makes it illegal to manufacture, sell or transfer ownership, by sale or gift, of ammo magazines that hold more than 15 bullets. However, it’s not illegal to own a larger one if you purchased it before the new law was enacted.
“By the letter of the law, [the magazine size restriction] does not address exemptions,” says Besecker. “If I ask somebody, ‘When did you get that?’ and they say, ‘Oh, I’ve had that for years,’ then the conversation is over.”
“Say we’re at the shooting range,” he says. “You and I are related. Can I hand you my gun to use, one with an extended magazine that has 20 shells? The answer is ‘no.’ But let’s say I do. Now, a police officer comes on the scene. How does he determine ownership of that magazine?”
Here’s another scenario: A driver is pulled over for speeding. The officer spies a handgun with a magazine clip in plain view on the passenger’s seat. It’s legal for that driver to possess that gun in Colorado, and to carry it in his car. It’s also legal for him to have that magazine, unless it holds more than 15 rounds and was purchased after July 2013. If the driver is obviously drunk or otherwise impaired, the officer can confiscate the weapon and examine the situation surrounding ownership more closely. But if the driver has no criminal record and appears in no way impaired, if his only shortcoming is a lead foot, the officer has no probable cause to investigate the gun. The magazine may be legal. It may not. There’s no way for the officer to know where or when the magazine was purchased, or how long ago, and no good reason for him to inquire. These instances represent possible illegal possession of a magazine, but in either case, an officer has no power to enforce the law.
Besecker says some guns come from the manufacturer packaged with a magazine made to go with them. “If I’m a gun shop owner, I cannot sell or transfer ownership of these magazines, even if they came with the gun originally,” he says, “and the law doesn’t address whether I can sell them out of state.”
Even among law enforcement personnel, there’s confusion by omission in the law. The sheriff’s department provides each officer a standard-issue weapon; however, some officers opt to supplement their armaments with a boot gun or additional hardware and bullets. This is both common and legal.
Besecker presents this scene: “We get out in the field and are engaged in a firefight. I toss a weapon to a fellow officer who has run out of ammunition. The weapon belongs to me. The magazine belongs to me, but it holds more than 20 rounds. I can possess it legally, but cannot transfer it to someone else. So, if I do that, am I in violation of the law? Good sense would say, ‘No, you’re acting in your capacity as an officer.’ But those issues have not been addressed here.”
According to the Denver Post, the attorney general’s office expects the judge’s ruling on the new law to be appealed. Until then, law enforcement officers must grapple with the challenge of enforcing it.
