Sheriffs, state agree on magazine rules

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Sheriffs, state agree on magazine rules

Second Amendment issue is still contested

By Joe Hanel Journal Denver Bureau

Thursday, July 11, 2013 10:58 PM

DENVER – A lawsuit against gun control laws signed by Gov. John Hickenlooper dissolved into confusion in a federal courtroom Wednesday morning, but by the day’s end, Coloradans received a lot more clarity on the future of their new gun laws.

A group of gun rights advocates led by 55 county sheriffs, including every sheriff in Southwest Colorado, sued Hickenlooper in May over bills to require background checks for private gun sales and to ban the sale of ammunition magazines larger than 15 rounds.

They have two basic arguments in their case: First, they say the laws violate the Second Amendment. Next, they say the magazine bill was so vague that it could ban nearly all ammunition magazines and prevent gun owners from letting anyone else handle their weapons, even professional gunsmiths for cleaning and maintenance.

Hickenlooper has always argued that the common-sense interpretation of the law would not turn ordinary gun owners into criminals. He and Attorney General John Suthers issued memos on how the law should be enforced narrowly.

But the plaintiffs doubted the effectiveness of the memos, and they were ready for a daylong battle in court Wednesday in an attempt to get Chief U.S. District Judge Marcia Krieger to block parts of the law from being enforced.

However, email negotiations late Tuesday produced a compromise. Both sides agreed that Suthers’ memo, with some additional tweaks, could be used as a temporary injunction that Krieger could issue to prevent overzealous enforcement of the law.

But Krieger shocked everyone Wednesday morning when she opened the hearing by saying she would not sign off on the injunction.

Using the tone of voice that college professors adopt when students don’t do their homework, Krieger told plaintiffs’ lawyers that they hadn’t given her any reason to block the law.

“If the governor says this is how it’s going to be enforced, then what does an injunction by this court add to that?” Krieger asked attorneys for the plaintiffs.

David Kopel, the lead lawyer for the plaintiffs, said an injunction by a federal court would offer additional comfort to gun owners.

But Krieger wouldn’t accept the argument.

“Sounds like you don’t trust the governor,” she told Kopel.

Despite the judge’s refusal to issue an injunction, both sides hailed that Tuesday night’s agreement as a step forward.

Hickenlooper and the state’s legal team got the plaintiffs to accept, with a few modifications, the original plan the governor and attorney general released for enforcing the law. (For a full text of the proposed injunction, go to www.CortezJournal.com.)

“This is what was intended all the way along,” Hickenlooper said at an afternoon news conference.

The case now turns to the larger Second Amendment issue. Hickenlooper’s lead lawyer, Solicitor General Dan Domenico, said in general he was pleased by how things went this week.

“As far as we’re concerned, the baseplate issue should be off the table, and we can be talking now about whether the high-capacity magazine ban violates the Second Amendment,” Domenico said.

Kopel called the rewritten memo by Suthers “very satisfactory.” He, too, is looking forward to arguing the case on Second Amendment grounds at a trial in Krieger’s courtroom. Kopel’s side is ready to go to trial as soon as next month, he said, although the current schedule calls for a trial sometime in December.

joeh@cortezjournal.com

The proposed injunction

Lawyers for gun rights advocates and Gov. John Hickenlooper reached this agreement Tuesday night on enforcement of a bill banning the sale of high-capacity ammunition magazines. U.S. District Judge Marcia Krieger refused to issue an injunction based on the agreement, but lawyers on both sides say the agreement will still be the law of the land, even without Krieger’s endorsement.
Case 1:13-cv-01300-MSK-MJW
Document 56-1
Filed 07/09/13
USDC Colorado
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01300-MSK-MJW
JOHN B. COOKE, Sheriff of Weld County, Colorado, et al.
Plaintiffs,
v. JOHN W. HICKENLOOPER, Governor of the State of Colorado,
Defendant.
STIPULATED PRELIMINARY INJUNCTION
1. Upon signing HB 13-1224 into law, the Governor requested the Colorado Attorney General and the Colorado Department of Public Safety to provide to all law enforcement agencies in the State of Colorado official written guidance on how HB 13-1224 is to be interpreted and applied in Colorado. That official guidance is attached to this Order as Attachment 1 (“Technical Guidance”).
2. The Governor is the chief executive of the State of Colorado, and the Attorney General is the chief legal officer and law enforcement official of the state. See Colo. Const., art. IV § 2 (“The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.”); Colo. Rev. Stat. § 24-31-101(1)(a) (“The attorney general of the state shall be the legal counsel and advisor of each department, division, board, bureau, and agency of the state government other than the legislative branch. . . . He . . . shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor . . . .”).
3. The Technical Guidance is an“official written interpretation”ofHB13-1224. It has been adopted by the Governor and the Colorado Department of Public Safety. Official written interpretations of criminal laws are binding and create an affirmative defense for individuals charged under those laws. See Colo. Rev. Stat. § 18-1-504(2)(c) (providing an affirmative defense to criminal prosecutions contrary to “official written interpretation of the statute or law relating to the offense, made or issued by a public servant, agency, or body legally charged or empowered with the responsibility of administering, enforcing, or interpreting” it).
4. Pursuant to Fed. R. Civ. P. 65(d),and pursuant to the agreement of the parties, the Court hereby issues a preliminary injunction binding the Governor, and any of his officers, agents, servants, employees, and attorneys, as follows:
a. Consistent with the Technical Guidance, a magazine that accepts fifteen or fewer rounds may not be considered a “large capacity magazine” simply because it includes a removable baseplate which may be replaced with one that allows the magazine to accept additional rounds.
b. Magazines with a capacity of 15 or fewer rounds are not large capacity magazines as defined in HB 13-1224 whether or not they have removable base plates. The baseplates themselves do not enable the magazines to be expanded, and they serve functions aside from expansion—notably, they allow the magazines to be cleaned and repaired. To actually convert them to higher capacity, one must purchase additional equipment or permanently alter their operation mechanically. Unless so altered, they are not prohibited.
c. The grandfather clause in HB 13-1224 may not be construed as barring the temporary transfer of a large-capacity magazine by an individual who remains in the continual physical presence of the temporary transferee, unless that temporary transfer is otherwise prohibited by law.
d. The phrase “continuous possession” in HB1224 shall be afforded its reasonable, every-day interpretation, which is the fact of having or holding property in one’s power or the exercise of dominion over property, that is uninterrupted in time, sequence, substance, or extent. “Continuous possession” does not require a large-capacity magazine owner to maintain literally continuous physical possession of the
magazine. “Continuous possession” is only lost by a voluntary relinquishment of dominion and control.
5. This preliminary injunction shall remain in force until this Court reaches a decision on the merits in this case.
6. Accordingly, the Court GRANTS Plaintiffs’ Stipulated Motion to Dismiss the Motion for Preliminary Injunction [Doc. 29].
DATED this day of July, 2013.
(name)
United States District Judge

Agreement on guns

The law: House Bill 1224, which bans the sale of ammunition magazines larger than 15 rounds.
The problem: Opponents said the law’s language would ban magazines with removable baseplates, because they can be expanded to hold more bullets. They also said language requiring gun owners to maintain “continuous possession” of their magazines would forbid anyone else from even touching them. Gov. John Hickenlooper said these fears were overblown.
The agreement: Colorado Attorney General John Suthers will slightly modify the memo he issued in May on how to enforce the law in a common-sense way. All sides now agree that no one will be prosecuted for selling magazines with removable baseplates. And they agree that “continuous possession” means ownership, not physical possession.