Restoration of all rights of citizenship under persons convicted under Colorado law.

[rushcreek2]

Restoration of all rights of citizenship of persons convicted under Colorado law.

This subject is my pet project. I regularly monitor the status of case law dealing with the constitutional right to keep and bear arms under Colorado law . I think it is a subject that many Coloradoans are interested in.

As has been discussed previously in this forum Article VII, Section 10 of the Colorado Constitution provides for the automatic restoration of ALL (A-L-L) rights of citizenship once any convicted person has served out their sentence. The provision specifically addresses the suspension and restoration of the voting franchise - considered by the CO Constitution to be one of the rights of citizenship- but restores all rights of citizenship - without exception.

The U.S. Court of Appeals for the Tenth Circuit has held in numerous cases involving prosecution under 18 USC Section 921/922 (federal POWPO law) that the totality of Colorado law (Article VII, Sec 10 of CO Constitution,and CRS 18-12-108)restores the right to possess a firearm after 10 years following completion of sentence.

This is settled law within the 10th Circuit, and is recognized by the BATFE and U.S. attorneys.
Unfortunately the State of Colorado persists in applying CRS 18-12-108 as a lifetime disablement of the right to possess firearms, and D.A.'s will prosecute under CRS 18-12-108 whenever a collateral charge is available to support unlawful purpose for possession.

In the 2009 case of People v DeWitt in El Paso County the original arrest charge of felony menacing was actually dismissed while the prosecution proceeded on the POWPO charge under CRS 18-12-108. The Colorado Court of Appeals reversed DeWitt's 2010 jury trial conviction in September 2011 and remanded for retrial because the trial court did not allow defendent to enter into evidence his constitutional affirmative defense under Article II, Section 13- right to keep & bear arms for purpose of defense of home, person, and property.

Dewitt's prior nonviolent felony convictions were in 1985 and 1988 and CRS 18-12-108 did not apply to those convictions until 1994. Therefore DeWitt had his firearm right restored prior to 1994, and according to the 10th Circuit such convictions are not predicate for federal POWPO prosection under 18 USC 921/922 - holding that the subsequent amendment of CRS 18-12-108 can not negate the prior restoration of the right to possess firearms. There was no federal prosectution of DeWitt for this reason.

Many Coloradoans are affected by the State's insistance upon ignoring the Colorado Constitution's provision for restoration of the firearms possession right. I have found no instances wherein State prosecution under CRS 18-12-108 proceeded in the absence of some alleged collateral criminal offense.

Colorado case law has long held that the constitutional affirmative defense under Article II Section 13 right to keep & bear arms in defense of one's home, person, and property remains intact and available regardless of a person's conviction status , and D.A.'s have the burden of proof to establish otherwise.

Of course any previous offender is still subject to being arrested, charged, and put on trial under CRS 18-12-108 at which time they have the opportunity to tender the constitutional affirmative defense. The significance of the DeWitt case is that the appellate court has reversed the trial court's position that any affirmative defense must establish some identifiable eminent threat to one's home, person, and property as opposed to the general threat evidenced by crime statistics- i.e. the CSPD Police Blotter.

Just thought I would mention this for any who are affected by CRS 18-12-108. It would seem that the Heller/McDonald SCOTUS decisions establishing the RTKBA as a substantive fundamental right of citizenship would now open the door for federal civil rights violation options, given the federal recognition that Colorado law does in fact restore the firearm right at least after 10 years from completion of sentence for ANY conviction.

I would like to see the State of Colorado recognize, and respect it's Constitution, and if convicted persons are a danger to society maybe just keep them in prison. I dream - I know.
In the Seguna v Maketa decision in 2008 the resoration of the firearm right by Michigan was considered sufficient for the Colorado Court of Appeals to order the issuance of a CO Concealed Hangun Permit to Seguna - previously convicted of a felony in that State. Why is the Colorado restoration of the firearm right not recognized by the State of Colorado ???

I have found no court record of DeWitt being sceduled for a new trial - yet.
The State may have requested review by the CO Supreme Court, but I can't imagine the SC granting certiori pending retrial.

 

[JamesB]

Thank you for that!!
I have been looking for just such information.

Dewitt's prior nonviolent felony convictions were in 1985 and 1988 and CRS 18-12-108 did not apply to those convictions until 1994. Therefore DeWitt had his firearm right restored prior to 1994, and according to the 10th Circuit such convictions are not predicate for federal POWPO prosection under 18 USC 921/922 - holding that the subsequent amendment of CRS 18-12-108 can not negate the prior restoration of the right to possess firearms. There was no federal prosectution of DeWitt for this reason.

You lost me a little here... If convicted in '88, it's only six years to get to '94, not ten, and that doesn't even account for time spent in sentance. How were his rights restored prior to '94. Can you elaborate please?

The rest was just lovely. Again, thank you.

 

[rushcreek2]

Prior to the 1994 amendment of CRS 18-12-108 the statute ONLY applied to Colorado convictions when arson. burglary, use of force, or threat of use of force were covered by CRS 18-12-108. Therefore in those convictions (nonviolent) the statute did not apply prior to 1994. Accordingly persons with nonviolent convictions prior to 1994 had ALL of their rights of citizenship (without exception) restored upon completion of sentence/probation.

The Tenth Circuit held that federal law did not apply when rights had been restored prior to 1994 amendment of CRS 18-12-108 to include nonviolent convictions. The Tenth Circuit viewed the TOTALITY of Colorado law in determining the point at which ALL rights are restored- including the 10 year period that the 10th Circuit applied per CRS 18-12-108. The State's position is that the 10 year period only applies to violent convictions(Class 5 felony) after which the general Class 6 felony applies for LIFE.

The statute - CRS 18-12-108 is subject to confused interpretations. It can be read (correctly) as a 10 year disablement for all conviction - or as the State MIS construes the statute lifetime for all felonies - =Class 6 felony - and Class 5 felony ONLY for violent offenses. Problem is prior to the 1994 amendment - the 10year time computation was just that = a TEN YEAR disablement for violent convictions.

 

[RustyNinja]

This is settled law within the 10th Circuit, and is recognized by the BATFE and U.S. attorneys.

Can you point to the specific opinions/decisions that support this? I was convicted 15 years ago of harassment as dv with a deferred sentence. The court records show that the case was CLOSED on 7/24/2000 - I've lived in Indiana since 2003. Assuming you're correct (and I have zero reason to think you aren't), then Lautenberg Amendment no longer prohibits me from possession of a firearm - however, in order to process my application for a carry permit here, I think I would need to show that my rights were restored in the jurisdiction where I was convicted. If this is "automatic", then I have nothing to show - and a court here, or at least the people deciding the fate of my permit application, probably want to see something of substance.

Furthermore, I'm guessing that I may need to petition a court here in IN for restoration of my rights to possess based on the CO conviction - and it would certainly help to show that CO has, based on what you're showing, already done so as a matter of their law/statute.

All in all, having all this ready to bring to a local attorney here would be helpful I think - I expect my 1st attempt at applying for a carry permit will be rejected and I'll have to appeal, so the more ready I am, the better - right?

 

[JamesB]

Can you point to the specific opinions/decisions that support this? I was convicted 15 years ago of harassment as dv with a deferred sentence. The court records show that the case was CLOSED on 7/24/2000 - I've lived in Indiana since 2003. Assuming you're correct (and I have zero reason to think you aren't), then Lautenberg Amendment no longer prohibits me from possession of a firearm - however, in order to process my application for a carry permit here, I think I would need to show that my rights were restored in the jurisdiction where I was convicted. If this is "automatic", then I have nothing to show - and a court here, or at least the people deciding the fate of my permit application, probably want to see something of substance.

Furthermore, I'm guessing that I may need to petition a court here in IN for restoration of my rights to possess based on the CO conviction - and it would certainly help to show that CO has, based on what you're showing, already done so as a matter of their law/statute.

All in all, having all this ready to bring to a local attorney here would be helpful I think - I expect my 1st attempt at applying for a carry permit will be rejected and I'll have to appeal, so the more ready I am, the better - right?

My understanding of this is that it really would not apply as you are not (anymore) a resident of Colorado. I am not a lawyer however, and I do not provide any referance for my information. It is just what I remember from somewhere, sometime ago.

 

[ZackL]

JamesB/RustyNinja, if I remember correctly it does matter when your restoration would take place in your home/conviction state. For instance, a person convicted of a felony in the PRK can never possess a firearm anywhere because there it is a permanent ban on constitutional rights. Also, Rusty, you should be able to show the statute and that should be sufficient proof of automatic restoration.

My whole opinion on this is that once your sentence is up, you should be able to have and carry firearms again. I understand that there are some people that shouldn't be allowed to carry. But honestly, if we all were allowed to carry, how we saw fit (i.e. constitutional carry) and didn't have all these restrictions on it, I don't think that people would be able to commit the crimes they do now. It's been proven that the more well armed a population is, the lower the crime rate. I think it has something to do with the "Well, I could, but who is going to draw down on me if I do" thought.

I know people who have made mistakes in their life, and have worked very hard to turn their lives around, but they are still being persecuted for it years later.

Thank you for all of the information rushcreek. I look into this from time to time as well for the above mentioned people and this is very useful and interesting information.

 

[since9]

The U.S. Court of Appeals for the Tenth Circuit has held in numerous cases involving prosecution under 18 USC Section 921/922 (federal POWPO law) that the totality of Colorado law (Article VII, Sec 10 of CO Constitution,and CRS 18-12-108)restores the right to possess a firearm after 10 years following completion of sentence.

That's my understanding.

Unfortunately the State of Colorado persists in applying CRS 18-12-108 as a lifetime disablement of the right to possess firearms, and D.A.'s will prosecute under CRS 18-12-108 whenever a collateral charge is available to support unlawful purpose for possession.

I heard a policeman state on Thursday evening that anyone convicted of a felony is barred from the possession of a handgun for life. So obviously, they're not training law enforcement to the standards as stated in both written and case law.

 

[JamesB]

I heard a policeman state on Thursday evening that anyone convicted of a felony is barred from the possession of a handgun for life. So obviously, they're not training law enforcement to the standards as stated in both written and case law.

ummm, ya.

Since9, that's the reason that you are the only one actually using police oficers as a resource when questons of law arise.

The number of times that I have personally proven that cops don't know the law, specifically firearm law, is immense.

 

[rushcreek2]

Lautenberg (domestic violence conviction) is a case of a federal law over-arching state law.
The provision of Colorado law (the CO Constitution) restores rights of citizenship temporarily suspended under Colorado law due to conditions of incarceration, parole, or probation, etc.

I believe federal law on misdemeaor DV convictions is a separate issueand is independent of state-level restoration of rights regarding felony convictions.

Current Colorado case law addressing the issue of the restoration of the right to keep & bear arms for the purpose of defense of one's person, and property supports the application of an affirmative defense on those grounds.

Law enforcement authorities in Colorado still operate from the perspective that a previous offender found in possession of a weapon will have to make such an affirmative defense before the court. They do not like the Colorado restoration of the right, but the burden still rests upon the State to produce evidence that counters this constitutional affirmative defense. In other words the State can still make a previous offender's life miserable if found in possession.

This issue needs to find its way into the State courts so it can be resolved. Same applies to the issuance of CHP's. If the right of any person to bear arms in lawful self defense is restored under Colorado law, then that person should be eligible for a CHP.

The federal Lautenberg DV provision is another matter that deserves a federal constitutional challenge.

 

[Statkowski]

Just my two cents, but any restriction of civil rights once a sentence is fully served is a Bill of Attainder, something prohibited in the federal and state constitutions.

 

[since9]

ummm, ya.

Since9, that's the reason that you are the only one actually using police oficers as a resource when questons of law arise.

The number of times that I have personally proven that cops don't know the law, specifically firearm law, is immense.

JamesB, I wasn't saying that was the law. I was commenting that the policeman didn't know the law, as I explained in the last line of my post: "So obviously, they're not training law enforcement to the standards as stated in both written and case law."

Please read more carefully! Thank you.

As an aside, the reason I have access to the officers is because I'm attending the Citizens Academy with the local police department. It's about three hours a week for a period of eight weeks. Very interesting stuff! We visited with their Bomb Squad folks last week. Next week: S.W.A.T.

 

[KBCraig]

Just my two cents, but any restriction of civil rights once a sentence is fully served is a Bill of Attainder, something prohibited in the federal and state constitutions.

A bill of attainder is aimed at a specific individual.

What Lautenberg is, along with other post-conviction sentence enhancements, is an ex post facto law.

I think SCOTUS completely forgot the definition of ex post facto when they failed to overturn Clinton's '92 tax increase that was retroactive to January 1, before he even took office.

 

[rushcreek2]

The State of Colorado has in the past argued that the amendment of CRS 18-12-108 in 1994 was not an ex post facto imposition of a penalty after the fact, but merely legislation establishing "public policy".

The 10 Circuit said in U.S. v Hall, and several similar decisions since 1994 -to paraphrase-

The amendment of that Colorado revised statute can not negate the PRIOR RESTORATION OF A RIGHT.

Ex post facto , or not - since CRS 18-12-108 is presumed to be constitutional, its provisions can not be applied to previous offenders whose right to bear arms for the purpose of defense of home, person, or property was restored prior to July 1994.

Persons convicted of nonviolent felony offenses under Colorado law having fulfilled the terms of their respective sentences ( incarceration, parole, probation, restitution, etc) prior to July 1994 when their convictions were first encompassed by the provisions of CRS 18-12-108 had already had ALL of their rights of citizenship restored without further action required, and without exception of their right to possess firearms.

Colorado law enforcement still persists in perpetuating the myth that CRS 18-12-108 merely imposes a penalty prescription intended to enforce a "public policy" which the State has a compelling public safety interest in maintaining.

Unfortunately, "public policy" , however so popular, or well intended, does not trump constitutionally protected civil rights.

Accordingly, these persons have every right to possess firearms, and open carry without being subjected to unlawful intimidation, arrest, and "punishment" in the form of protracted court docket harassment.

In Seguna v Maketa the CO appellate court remanded with instructions for the lower court to order the issuance of a CHP to a El Paso County resident who had a previous felony conviction in Michigan because his right to possess firearms had been restored under Michigan law.

Meanwhile, the State of Colorado will not recognize the automatic operation of its own law pertaining to the restoration of the right to bear arms in regards to issuance of the CHP .

In The People v DeWitt the CO appellate court remanded to the district court for a new trial in which DeWitt was to be afforded to right to tender his consitutional affirmative defense of his RESTORED right to bear arms for the purpose of defense of his home, person, or property. DeWitt, a 1988 previous nonviolent offender, was charged, and convicted under CRS 18-12-108 in the district court where his affirmative defense was rejected by the court for lack of merit due to his not having evidence of any immediate, and impending threat - which is of course impossible for anyone to anticipate. Now the State must produce evidence to counter his constitutionally protected purpose for carrying a weapon.

Only recently , as in the DeWitt case , has Colorado case law began to make a course correction by finally placing the burden upon the State to provide evidence that the purpose for possession of a firearm by a previous offender is not for defense of home, person, or property.

As it stands now there is no plan to disseminate a uniform law enforcement advisory policy regarding this restoration of the firearm right. The Colorado Bureau of Investigation is the primary law enforcement agency that should be tasked with this responsibility.

In the meantime this issue continues to be handled on a muddled case by case basis that imposes financial hardship, and emotional strain. Colorado LEO's operate under a policy that all previous offenders are "prohibited persons", and this is simply not the case.

This is a systemic transgression upon the free exercise of one of Coloradoan's most cherished, and constitutionally protected civil rights.

 

[Sig229]

I remember Colorado denying me firearm purchases because I once was charged with a crime as a juvenile in another state.

I was never ever denied a purchase before, even in very strict states like MD and CA.
Yet, the people at CBI were extremely rude and convinced that I should be allowed to buy firearms.

I was NEVER convicted for any crime. In juvenile court its mere "Adjudication" which under legal definitions is defined as "Any court proceeding with an outcome".
Now thats a broad and gray term isnt it?

So, I had to buy all my long guns in Wyoming.
Needless to say I was disgusted with CO gun law and the CBI.

I was never convicted of anything, what gave them the right to deny me?

Oh well, I dont live there anymore. But I know this is still hurting many law abiding gun owners that are residents of Colorado.

 

[rushcreek2]

Colorado Bureau of Investigation reports as a "prohibited person" without undertaking any review of the actual status of that person's criminal record under State law. Issues involving the existence of criminal records in other states are another matter altogether, and require some degree of affirmative action. In the matter of Colorado convictions, the principle consistently upheld since 1994 by the 10th Circuit in U.S. v Hall is that SUBSEQUENT amendment of CRS 18-12-108 can not negate PRIOR restoration of the right to possess firearms under the operation of Colorado law.

C.B.I. as an agency tasked with performing administrative due process under Colorado law has a due diligence duty to process background checks in a manner consistent with Colorado law. Currently a reported "prohibited person" must seek judicial review in order to receive official State recognition of the operation of a rights restoration provision that explicitly states ..."WITH NO FURTHER ACTION REQUIRED."(Article VII, Sec. 10)

Some more recent cases may be complicated, however those cases not encompassed by CRS 18-12-108, and fully adjudicated prior to July 1994, are not the least bit complicated. Those previous offenders whose convictions were not encompassed by CRS 18-12-108 prior to July 1994 already had their firearm possession right fully restored if their sentences were completed prior to July 1994.

Unfortunately, the State seems to be intent upon remaining stuck on stubborn (and stupid) pending case by case judicial review. The State of Colorado is engaging in the deliberate obstruction of a constitutional immunity under Colorado law.

 

[Logan 5]

What is POWPO?

Also, there is a case that should be of interest to you- Colorado v. Kem, 2007.

 

[PikesPeakMtnMan]

What is POWPO?

Also, there is a case that should be of interest to you- Colorado v. Kem, 2007.

"Possession of Weapons by Previous Offender"...I wondered the same thing once

 

[rushcreek2]

Prior to 1994 persons charged with nonviolent felonies were regularly induced into accepting plea arrangements with the understanding that Colorado law provided for the full restoration of ALL of their rights of citizenship (without exception) upon completion of their sentence. Then in July 1994 the entire scope of CRS 18-12-108 was amended to effectively renege on those legally binding plea arrangements still on file that are implicitly embodied by that guarantee of full rights restoration. When I was a kid that was called "Indian giving" ( strange since it was always the Great White Father who reneged on promises).

I believe this orchestrated enforcement policy is akin to other societal manifestations of "feelings" about issues being allowed to override the ACTUAL LAW governing the subject matter. ( "Well... it MAY NOT BE ILLEGAL - BUT....I just don't FEEL like people should be running around with guns on their hips.")

 

[foster]

here is the situation completed sentence aug 4, 1994 all non violent felony.

would the original 18-12-108 still apply?

 

[rushcreek2]

here is the situation completed sentence aug 4, 1994 all non violent felony.

would the original 18-12-108 still apply?

NO. CRS 18-12-108 was amended effective one month before your sentence completion date, imposing a misdemeanor penalty which was then upgraded to a Class 6 felony when the statute was again amended in 2000.

Your RTKBA FOR THE PURPOSE OF DEFENSE OF YOUR HOME, PERSON, OR PROPERTY under Colorado law IS RESTORED under Colorado law, but C.B.I. will still report you as a "prohibited person" per a background check for gun purchase, or a CHP. Court action needs to be taken naming C.B.I. as the primary defendent responsible for obstructing the exercise of your restored civil right.

If you exercise your RTKBA under Colorado law you are still required to have a CHP in order to conceal. You will not be issued a CHP unless C.B.I.'s current policy is changed through court order.

So - All you need is about $20,000 to pursue your case - unless you can interest the Colorado A.C.L.U. in representing you. I find it hard to believe that no one in Colorado has pursued court action regarding this "fix" in effect that violates a restored civil right.

The essence of federal case law under the U.S. v Hall precedent seems to rest primarily on the issue decided that the amendment of CRS 18-12-108 in JULY 1994 does not negate the PRIOR RESTORATION of the RTKBA. You missed the benchmark for PRIOR restoration by one month.
The 10th Circuit did however interpret CRS 18-12-108 as imposing ONLY A TEN YEAR disablement of the your restored right that was restored in August 1994, but this is for purposes of FEDERAL LAW under 18 USC 921/922 application to your conviction.

This issue needs serious State court attention. It is a gross injustice for this travesty to be perpetuated by State agencies whose officials are sworn to uphold the Colorado Constitution that clearly restores your right.

You, and other citizens like yourself should not have to live under a cloud of uncertainty about this issue. It really needs to be settled in court. Presently, you would still be subject to being ran through the criminal justice "ringer" even though Colorado case law supports restoration of your right - and you would be exonerated after spending thousands of dollars on attorney fees, and enduring months - if not years- of emotional stress for daring to exercise your restored right.
___________________
Upon further reflection - Perhaps there are valid reasons why we are not aware of any court action regarding C.B.I.'s refusal to abide by Colorado law regarding restoration of the right to keep & bear arms.

One would be the obvious financial cost in attorney fees. Another reason could be concern for the cost in damage to the one's personal and professional reputation in the community since court action would be a matter of public record. A third reason could be that perhaps such court actions have been initiated - only to be immediately resolved by the State (C.B.I.) quickly correcting the "error" in order not to allow the issue to gain public attention.