Court-ordered gun transfers complicated by 2013 law
September 22, 2016
It's not unusual for a fishing buddy to ask a favor. Maybe he needs a ride home from the bar or help moving an old refrigerator. Less common, however, is your buddy asking you to go claim the gun he surrendered to the sheriff's office and deliver it back to him in the parking lot.
That's the situation a local man found himself in a couple of weeks ago. But he got uncomfortable when he was asked to sign a raft of documents swearing he wouldn't transfer the gun back to its owner, who pleaded down a felony menacing charge two years ago.
The man signed the papers and got the gun, he said, but didn't want to break any laws by giving it back to his friend. He also didn't want to hang onto a gun he didn't need, so the signer later went back to the sheriff's office and surrendered it.
Even if his friend had a squeaky-clean record, part of a gun law passed in Colorado in 2013 would have required the man who picked up the gun to run a background check on anyone, except immediate family, before transferring ownership of it. But it's unclear what exactly was stopping him — except his own conscience — from returning it to his friend after claiming the gun.
“I think people are just ignoring the law and no one is enforcing it.”Robert WarehamOwner of Citizen Armory
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The rule has been touted as a way to seal the private gun sale loophole, through which people who couldn't pass a gun store background check could buy from a private seller. But in the eyes of the law, a private seller is just about anyone giving ownership of a gun to someone else. That means selling your old rifle to Uncle Billy without getting a background check and approval from the Colorado Bureau of Investigation technically makes you a gunrunner.
The trouble is, regulating private transactions between individuals is extremely difficult. Twenty months after the law's passage, The Coloradoan reported that only three people had been convicted for violating it. This has led opponents to derisively call it a "feel good law," or one that gives the illusion of accomplishing something while merely creating a line of red tape that most people sidestep. Proponents counter that it has been successful in keeping guns out of the hands of people who shouldn't have them.
Lawmen in a bind
If people are skirting the new requirement, accidentally or otherwise, law enforcement agencies don't have that luxury. Many across the state realized that, per Colorado Bureau of Investigation standards, the checks they did on people before returning temporarily surrendered guns were inadequate.
"Between the time the law was passed and when it became active, many law enforcement agencies just came out and said, 'We're not going to be in this business anymore,'" said Robert Wareham, a Denver lawyer who testified during deliberation on the law.
"Taking guns was already a big job — every now and then it would be 50 or so at once — and we did some investigation before handing them back over," said former Summit County Sheriff John Minor, who now heads the Silverthorne Police Department. "But after the law changed, it was a whole new level."
For the guns the sheriff does take, Minor had to direct a deputy to come up with new procedures and forms.
The situation has led to some strange scenarios. In 2014, the Loveland Reporter-Herald reported that police took possession of a pistol they found in a woman's car after she got in an accident and was taken to the hospital.
She had not broken any laws and was legally entitled to carry the weapon, but under the new law police couldn't return it to her unless they had someone with a Federal Firearms License (FFL) perform a background check on her first. No one in the department was qualified.
Let me take those off your hands
The new gun law also included a provision requiring people to temporarily surrender their guns when accused of domestic violence. This had been a standard practice in Summit County, said Minor, but often the process was more informal.
"We used to say, 'Hey, do you have someone like an uncle down in Denver that could take these for you?' But that wouldn't fly anymore," said Minor.
Similarly, on domestic violence calls, officers used to ask victims to gather up any weapons in the house and have a friend or neighbor hold onto them. Now, unless the victim happens to be FLL-certified and runs a background check on the neighbors, that would be illegal.
Due to the added paperwork, as well as the mere logistical headaches of packing, cataloging and storing scores of guns in the evidence room, the sheriff's office usually doesn't take surrendered weapons anymore.
Now when judges issue orders to hand over weapons, they give defendants a leaflet for Citizen Armory, a company run by Robert Wareham in Denver. He's FLL-licensed and keeps a former FBI agent on the payroll to run background checks before returning weapons. His fee is a flat $50 for the first five guns and $5 for each additional gun, then monthly fees ranging $25 to $45 depending on box size.
He set up the operation right after the state passed the new gun laws, thinking he could capitalize on the fact that the law compelled judges to order more gun surrenders, while at the same time nudging law enforcement agencies out of the process.
Warehem was astonished, however, at how few guns trickled in, even though sheriffs statewide had told him they weren't accepting temporary gun surrenders anymore.
Where are the guns going?
Summit County judge Edward Casias said he issues roughly 10 to 20 surrender orders a month. According to the latest estimates from the Bureau of Alcohol, Tobacco and Firearms, the average gun owner has eight guns. That would suggest a flow of anywhere from 80 to 160 guns a month from Summit County alone, and a big payoff for a company like Citizen Armory, which according to Wareham is the only facility of its kind in the state. Instead, the business has become a loss leader of sorts for his legal practice.
"When people come in to surrender guns, I say, 'Well, since the court made you give up your guns, you probably need a lawyer, don't you?'" said Wareham.
Judge Casias said he demands a notarized receipt from whomever the guns are transferred to, whether it's an immediate family member or an FLL-licensed facility like Citizen Armory, although he couldn't speak for all courts.
So where are all the guns going?
It's difficult to say. One possibility is that some judges don't require the receipts to indicate that the recipient of the weapons (if they weren't an immediate family member) got a background check from an FLL licensee, as required by the law. It could be onerous for someone embroiled in legal trouble and a domestic dispute to get someone to come with them to an FLL-licensee and perform the background check and transfer — and get a notary to sign off on the transaction.
Wareham has a theory: If you create a burdensome process and don't adequately enforce it, people will tend to cheat.
"I think people are just ignoring the law and no one is enforcing it," he said. "They can just hand over their guns to a friend or neighbor with no background check and there's no mechanism to verify it."
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