First Run-In with an Anti

[DocNTexas]

imported post

Count wrote:

Isn't state law uniform (except Denver) and the only thing municipalities can do is to prohibit in specific areas or buildings open carry by posting a sign at every entrance? I didn't think municipalities can do that, but if I go to a bar I will probably conceal (have a permit in Texas...and live in Texas....I know now Colorado only recognizes resident permits....).

No, that is a misconception. Many believe that preempting prevents other cities from having ordinances against carry and that only Denver is exempt by the ruling they received from the state supreme court, but this is not the case.

The preemption law basically serves to give state laws authority over local statutes only. In other words, if a state law exists, then no local authority can make a law that supersedes the state law. In the case of open carry, there is no state law that allows one to open carry in Colorado, there is merely no state law that prohibits it. Since there is no law expressly allowing one to open carry, there is nothing to preempt local ordinances. This is the basis of the high courts ruling in the Denver case and the same hold true for any other local government that wishes to pass a law against such carry.

While few places have ordinances against open carry in general, numerous towns have ordinances against carry of any kind inbars. Since a law actually exists allowing one to conceal carry with a permit, local ordinances can not regulate that, however, they can regulate open carry and carry without a permit.

Hope this helps,

Doc

 

[Count]

imported post

http://www2.michie.com/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0

 

[Count]

imported post

29-11.7-103. Regulation - type of firearm - prohibited.
Statute text
A local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable.

History
Source: L. 2003: Entire article added, p. 653, § 2, effective March 18.

 

[Count]

imported post

29-11.7-104. Regulation - carrying - posting.
Statute text
A local government may enact an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area within the local government's jurisdiction. If a local government enacts an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area, the local government shall post signs at the public entrances to the building or specific area informing persons that the open carrying of firearms is prohibited in the building or specific area.

History
Source: L. 2003: Entire article added, p. 653, § 2, effective March 18.

 

[Count]

imported post

29-11.7-101. Legislative declaration.
Statute text
(1) The general assembly hereby finds that:

(a) Section 3 of article II of the state constitution, the article referred to as the state bill of rights, declares that all persons have certain inalienable rights, which include the right to defend their lives and liberties;

(b) Section 13 of article II of the state constitution protects the fundamental right of a person to keep and bear arms and implements section 3 of article II of the state constitution;

(c) The general assembly recognizes a duty to protect and defend the fundamental civil rights set forth in paragraphs (a) and (b) of this subsection (1);

(d) There exists a widespread inconsistency among jurisdictions within the state with regard to firearms regulations;

(e) This inconsistency among local government laws regulating lawful firearm possession and ownership has extraterritorial impact on state citizens and the general public by subjecting them to criminal and civil penalties in some jurisdictions for conduct wholly lawful in other jurisdictions;

(f) Inconsistency among local governments of laws regulating the possession and ownership of firearms results in persons being treated differently under the law solely on the basis of where they reside, and a person's residence in a particular county or city or city and county is not a rational classification when it is the basis for denial of equal treatment under the law;

(g) This inconsistency places citizens in the position of not knowing when they may be violating the local laws and therefore being unable to avoid violating the law and becoming subject to criminal and other penalties.

(2) Based on the findings specified in subsection (1) of this section, the general assembly concludes that:

(a) The regulation of firearms is a matter of statewide concern;

(b) It is necessary to provide statewide laws concerning the possession and ownership of a firearm to ensure that law-abiding persons are not unfairly placed in the position of unknowingly committing crimes involving firearms.

History
Source: L. 2003: Entire article added, p. 652, § 2, effective March 18

 

[Count]

imported post

Basically those city ordinances that made null and void open carry before 2003 were eliminated in that legislative session. The only city that overturned car carry and open carry, but lost on so-called assault weapons is Denver. The only thing localities can do is to post on a building or in specific areas within their jurisdiction that open carry is illegal, but not for the entire city or locality

 

[DocNTexas]

imported post

Count wrote:

Basically those city ordinances that made null and void open carry before 2003 were eliminated in that legislative session. The only city that overturned car carry and open carry, but lost on so-called assault weapons is Denver. The only thing localities can do is to post on a building or in specific areas within their jurisdiction that open carry is illegal, but not for the entire city or locality

Count,

I am aware of the statutes that you have listed and I even believe that your understanding of the intent of these statutes was the intent of the legislators when they were written, however, the driving force is the interpretation set by the high court in the Denver case.

Courts do notapply lawson an individual or case by case basis. They are applied to the merits of the case and are binding on all cases that havesimilar merits. This is the basis of case law and the reason the court only hears cases with new or substantially different merits than have been ruled on previously.

In the Denver case, the high court ruled for the state on two parts:

1.) DRMC §§38-117(a), 38-117(f) and 38-118, insofar as these ordinances regulate the carrying of firearms in automobiles without a permit, are preempted by C.R.S. §§18-12-204(2)(a), 18-12-214(1)(a) and 18-12-105.6 (2003) to the extent their language is mare restrictive than state e law as described above. These ordinances remain valid and enforceable in all other respects.

2.) DRMC § 38-124, insofar as this ordinance prohibits the furnishing of firearms to minors without exceptions, is preempted by C.R.S. §18-12-108.5 (2003).

The court ruled in favor of Denver on the remaining four parts:

1.)DRMC §§38-117(b) and 38-118, insofar as these ordinances regulate the open carrying of firearms, remain valid and enforceable by the City and are not preempted by C.R.S. §29-11.7-103 (2003).

2.) DRMC §38-130, concerning assault weapons, remains valid and enforceable by the City and is not preempted by C.R.S. §29-11.7-103 (2003).

3.) DRMC § 38-122(b) and (c), prohibiting the sale of Saturday night specials, remains valid and enforceable by the City, and is not preempted by C.R.S. §29­11.7-103 (2003).

4.) DRMC §38-131, concerning the safe storage of firearms, remains valid and enforceable by the City and is not preempted by C.R.S. § 18-12-108.5 or §29­11.7-103.

The last part, Carry inParks,was a split ruling:

A. Remains valid and enforceable by the City in regard to all firearms other than concealed handguns carried with a pen[suP]-[/suP]nit, and is not preempted by C.R.S. 29-1 1.7-103 (2003).

B. Is preempted in regard to concealed handguns carried with a permit by C.R.S. §§18-12-204(2)(a), 18-12-214(1)(a) and 18-12-105.6 (2003).

In short, the court ruled that 29-11.7-103 was not the catch-all law that most had held it to be. The court determined that it did not expressly allow for carry in public places without a license or other specific state law allowing for carry. The court ruled that since no specific state law exists the expressly allows one to open carry or to carry without a permit, then there was no law to preempt loval statutes against such activity.

This ruling was not only for Denver in this case, it set high court standard for ALL municipalities in Colorado to do the same. This means that any local law against the unlicensed open carry of firearms is valid.

While I agree with you on the intent of the legislators in drafting the cited statutes, the high court ended this argument with their Denver ruling. For a better understanding of the courts ruling, I suggest reading the final ruling on the case and the explanations the justice cites for each ruling.

http://www.rmgo.org/alerts/2004-denverruling.htm#Vehicles

Take care all and be safe,

Doc

 

[Count]

imported post

Was this an appellate level court or just the regular district court?

 

[DocNTexas]

imported post

Count wrote:

Was this an appellate level court or just the regular district court?

The Colorado Supreme Court

Doc

 

[DocNTexas]

imported post

I do like to point out that had one Justice not recused herself from the case (due to being the original state attorney in the case) the vote would have be in favor of the the state on all counts. Having recused herself, however, left the court in a tie and by law, all ties revert back the the decision of the immediate lessor court, thus the decision was in favor of Denver by default, not an actual win.

Nevertheless, this is the final word on the issue as it stands. The only way to change it now is for the Colorado legislature to rewrite the statute to be more inclusive.

Take care all and be safe,

Doc