Republican Senators Give Criminals 72 Hours to Stalk Victims

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Republican Senators Give
Criminals 72 Hours to Stalk Victims

by Ari Armstrong, January 26, 2000

If you're threatened or stalked by a violent criminal, you may have to wait 72 hours before you can buy a gun for self-defense, even if you've never had criminal charges filed against you. Thanks to four Republican Senators and three Democrats, this provision -- SB-125 -- passed the Senate Judiciary Committee January 24 on a 7-1 vote.

The three-day wait, though, only counts "business days." If you're unlucky enough to need a gun in the latter part of the week, the Colorado Bureau of Investigation can wait up to five days before granting permission. Unfortunately, criminals don't take weekends off.

SB-125 was introduced by Republican Senator Dave Owen. In the Judiciary Committee, Republicans Ken Arnold, John Andrews, Mary Ellen Epps, and John Evans voted to pass the bill, along with Democrats Ed Perlmutter, Dorothy Rupert, and Bill Thiebaut. Republican Senator Dottie Wham registered the sole vote against the bill.

In 1993, the federal government passed the so-called "Brady Handgun Violence Protection Act," or the Brady Act. (Gun Owners of America provides information about that law at http://www.gunowners.org/bitb.htm.) The law requires the FBI to run background checks on every citizen who attempts to purchase a gun from a licensed dealer. Despite a lack of Constitutional justification for the Act, Colorado legislators agreed to implement the federal Act via the CBI, which ran background checks until November 30, 1998, when the FBI system was completed.

On July 1, 1999, Governor Bill Owens reinstituted CBI checks by executive order. During his State of the State 2000 address, Owens said:

During a four-month period last year when only the FBI conducted background checks -- meaning Colorado was not conducting checks -- 67 individuals who committed crimes such as homicide, domestic violence, aggravated assault and drug trafficking, and were prohibited from owning firearms, were permitted to purchase one. Had the Colorado Bureau of Investigation been conducting background checks in conjunction with the FBI, these criminals would not have been permitted to purchase guns.

Owens' comments are misleading. Even if the 67 criminals had been denied permission to purchase a gun by the CBI, they would have been able to obtain a gun from an unlicensed seller, the black-market, or through theft. In addition, Owens conflates violent crimes with drug sales, even though many of the drug cases did not involve a violent or threatening use of a gun.

Another point Owens failed to mention is that CBI checks have also wrongfully denied hundreds of lawful Coloradans their right to bear arms because of flawed or incomplete records. The Colorado Freedom Report published the story of one man who failed a CBI check because he had once used a gun in justified self-defense http://www.freecolorado.com/1999/12/cbichecks.html). According to The Rocky Mountain News (January 22), 329 Coloradans have successfully appealed CBI denials since August. Probably hundreds more were also wrongfully denied but chose not to undergo the arduous process of proving themselves innocent to the CBI.

Legislative action is required to extend Owens' policy beyond April, 2000. A July 12 memorandum from the Office of Legislative Legal Services found that Owens' order wasn't even legal. That memo said "the Governor has no inherent powers that authorize executive orders which go beyond the administration of government and call for action that would affect private citizens."

Troy Eid, Owens' chief counsel, took issue with the memo in a September 13, 1999 editorial in The Rocky Mountain News. He said the Joint Budget Committee agreed to fund Owens' executive order, thus providing legislative consent. However, Eid fails to explain how a committee can bypass the normal legislative process in which both the entire House and the entire Senate must vote to approve a bill.

Eid attempts to give a secondary justification for Owens' actions, writing, "FBI regulations enacted [in 1998] provide that governors may issue executive orders designating law enforcement agencies within their respective states to be 'points of contact' to conduct the firearms background checks required by the federal Brady Law." However, according to the Tenth Amendment of the U.S. Constitution, only powers directly "delegated to the United States by the Constitution" are legally binding upon the states. In other words, no FBI regulation can countermand Colorado law.

Eid cites the main case that prompted Owens' executive order:

It is worth remembering what prompted the governor's order and the JBC's decision to fund it. On June 22nd, Simon Gonzales bought a gun from a federally licensed dealer. He passed a federal "Brady" background check -- despite a restraining order against him -- and murdered his three daughters before dying in a gun fight with Castle Rock police.

Eid adds that CBI checks access information not contained in FBI databases. Eid never mentions that Gonzales might have purchased a gun from a non-licensed seller (or stolen one) if he had failed a background check. Nor does Eid come to terms with the problem of denying a person his or her Constitutionally recognized civil rights. Restraining orders are easy to place on law-abiding citizens. The Gonzales murders were a horrible tragedy, but is one tragedy sufficient cause to over-ride the Constitutionally protected civil liberties of every citizen in Colorado? At the very least, that sets a dangerous precedent.

In 1999, Senator Owen introduced a bill (SB99-058) to make CBI the "point of contact" for the federal background check program. That bill was killed ("postponed indefinitely") on February 1, 1999.

In an early draft of his 2000 bill, Owen would have continued CBI checks as they currently exist. However, because of concerns raised about CBI checks placing the burden of proof on citizens who are denied permission, Owen added provisions to his bill before introducing it requiring CBI to allow the gun transfer to take place after three business days, even if the agency is unable to determine the legality of the sale within that time.

But that is not the end of the story. If, after the three-day waiting period, CBI finds that the sale was indeed illegal, the agency is then required by SB-125 to notify federal, state, and local law enforcers about the infraction, and to help retrieve the illegal gun. At that point, because the sale was illegal, the purchaser is automatically guilty of a felony gun purchase, a purchase the CBI allowed to proceed based on incomplete records.

Senator Ken Arnold introduced an amendment January 24 that would have taken out the three-day issue requirement, reverting CBI checks to their current form. Arnold, a retired police officer, said in a January 26 interview he didn't want to see CBI or police agents faced with the task of retrieving guns from those found to have purchased the gun illegally. Arnold said that, besides endangering the lives of police officers, the bill as written would require more money and more personnel to administer.

Owen's bill and Arnold's amendment each pose separate problems. If CBI can deny permission based on incomplete arrest records, as it does now, many honest citizens will be wrongfully denied permission to buy a gun. The burden of proof is then placed on the citizen, who must provide evidence to CBI demonstrating his or her innocence. On the other hand, if Owen successfully requires CBI to allow a gun purchase to proceed after three days, that relieves the honest citizen from costly legal work, but it enables some to purchase a gun who are legally prohibited. Then law enforcement officials are responsible for retrieving the illegal gun and pursuing criminal charges for the purchase.

In any form, CBI background checks jeopardize civil liberties and due process. These days, police may make arrests on a wide range of pretexts. In cases of self-defense, arrests are routine. An arrest by no means indicates criminal charges, even less a criminal conviction. To the extent that arrests are racially motivated (such as those made for "driving while black" or Hispanic), CBI checks extend racial inequality. In some cases, police arrest entire crowds, such as when a few rowdies at a sporting event get an entire group in trouble, including those who were just minding their own business. It's also possible to be arrested because one's name or vehicle is similar to that of a criminal. The point is, it's not too difficult to get an arrest record in our society (especially since, increasingly, "everything not mandated is prohibited"). There's nothing about an arrest record per se that should result in the denial of one's Constitutionally protected civil liberties.

In addition, SB-125 explicitly makes federal restrictions part of state law. Owen's bill refers to 18 USC 922, subsections (g) and (n). That federal law denies guns to those who, among other things, have a misdemeanor domestic violence conviction or who have a restraining order placed on them. It's tough to make the case that misdemeanor convictions should invalidate Constitutional liberties.

It's even harder to justify the invalidation of Constitutional rights based on the existence of a restraining order. Many divorce lawyers request restraining orders as a matter of course, and many judges pass them out like candy. No doubt a politician could successfully place a restraining order on practically anyone (but perhaps I shouldn't give politicians such ideas). A restraining order in no way indicates criminal behavior, or even a predisposition to violence.

Under Owen's bill, it would even be possible for a person to unknowingly purchase a firearm feloniously in Colorado. Here's one possible scenario. A Colorado Springs man divorces his wife, who places a restraining order on him. The man moves to Grand Junction before the local officials can notify him of the restraining order. The man attempts to purchase a gun from a licensed dealer, but because of an old arrest record that says "disposition unknown" -- no criminal charges were ever filed -- the man is denied permission to purchase the gun. Three business days later, CBI has not researched the case, so the gun sale is allowed to proceed. At that point, the man has become a felon for purchasing the firearm. When CBI finds out about the restraining order, the agency is required by law to notify the FBI as well as local police agents. Then, either federal or state prosecutors can charge the man with a felony firearm purchase.

From the perspective of the man in the previous example, Arnold's amendment would be a vast improvement to Owen's bill. Those who really can lawfully buy a gun, on the other hand, would much prefer Owen's bill as-is.

Constitutional Constraints

"What's the Constitution among friends?" -- Historical Quote Recorded in the Capitol Dome

Some Colorado legislators seem to have forgotten the oaths they took to uphold the Colorado Constitution.

That Document says:

Right to bear arms. The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question... (Article 2, Section 13)

CBI checks certainly "call into question" the right of lawful citizens to keep and bear arms. Hence, CBI checks and SB-125 are illegal, according to the Colorado Constitution.

Inalienable rights. All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness. (Article 2, Section 3)

CBI checks violate the right to defend one's life and property, as well as the right of acquiring property.

Due process of law. No person shall be deprived of life, liberty or property, without due process of law. (Article 2, Section 25)

"Due process" doesn't mean the legislature can pass any law it wants to over-ride the rest of the Constitution. "Due process" means the government cannot violate the rights of a citizen before proving that that citizen specifically has run afoul of the law. CBI checks force lawful citizens to prove themselves innocent before they can exercise their "essential and inalienable rights," hence CBI checks are Unconstitutional.

In addition, Article 7, Section 10 can reasonably be interpreted to guarantee felons their full rights as soon as they finish serving their prison sentence. SB-125 invokes CRS 18-12-108, which denies felons their rights for ten years following the end of their prison sentences.

The U.S. Constitution provides that "the right of the people to keep and bear arms shall not be infringed." In conjunction with the Fourteenth Amendment, the Second Amendment poses a serious legal challenge to CBI checks, and indeed the entire Brady Act. Even by itself, the Second Amendment is the recognition of civil rights by the federal government; it appeals to a moral principle as well as a legal one.

According to the Tenth Amendment, Colorado is not bound by the Brady Act anyway. The Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Nowhere does the Constitution delegate power to the federal government to pass laws pertaining to the purchase of firearms. Indeed, the Constitution specifically limits the sphere of federal criminal law. Article 1, Section 8 enables the federal government "to define and punish piracies and felonies committed on the high Seas, and Offenses against the Law of Nations." Last time I checked, Colorado was a land-locked state, hundreds of miles from the nearest "high sea." Not only does the Constitution fail to grant the federal government authority to pass laws such as the Brady Act, but it specifically leaves to states the matter of criminal law. Article 4, Section 2 discusses matters of "a person charged in any State with Treason, Felony, or other Crime" (emphasis added).

So, by supporting CBI honest-citizen background checks, Colorado legislators not only violate the Colorado Constitution, they violate the U.S. Constitution as well by enshrining Unconstitutional federal law in the state's statutes. If Colorado legislators had any integrity, if they cared more about upholding the Constitution than sucking up to the myopic media, if any bone in their bodies resonated to the call of FREEDOM, they would tell the federal government the Brady Act is null and void in Colorado, rather than make the Unconstitutional federal program worse by adding CBI checks.

The Colorado Freedom Report--www.FreeColorado.com