State Dems mull new gun legislation

How many gun control bills do Democrats intend to support in Colorado’s 2023 legislative session? The number appears to range from a minimum of seven to as many as a dozen.

But it’s unlikely all of those bills, with Democratic sponsors, will reach the governor’s desk, even in a Legislature with a Democratic supermajority in the House and one vote shy of that status in the state Senate.

What’s so far surfaced, at least as discussion points at the state Capitol, include:

• Strengthening the state’s red-flag law.

• A ban on “assault weapons,” defined in the bill as semi-automatic rifles with certain capacity or other specified characteristics.

• A ban on ghost guns.

• Raising the minimum age for purchase of certain firearms.

• Creating a waiting period for purchase

of firearms.

• Banning unlawful possession of firearms by certain felons.

Another talking point among the gun violence prevention caucus, a group formed last year made up of at least two dozen Democratic lawmakers, is on liability.

Federal law prohibits lawsuits against gun manufacturers and dealers, dating back to the 2005 Protection of Lawful Commerce in Arms Act, or PLCAA. It’s the only industry with such protections in federal law.

In Colorado, however, state law is even more protective of the gun industry, according to Sen. Sonya Jaquez Lewis, D-Longmont.

Colorado Revised Statute 13-21-504.5 says that except in the case of a product liability issue, no one can bring a lawsuit against a firearms or ammunition manufacturer, importer, or dealer “for any remedy arising from physical or emotional injury, physical damage, or death caused by the discharge of a firearm or ammunition.” In addition, manufacturers and dealers cannot be named as third parties in a lawsuit for the actions of another person. Only when that manufacturer or dealer is in violation of state or federal law can they be sued.

Given that federal law provides blanket immunity, it’s a high hurdle to cross, but one that in several states, even Texas, courts are starting to examine.

In 2019, the Connecticut Supreme Court allowed families of those massacred at Sandy Hook to sue Remington-Bushmaster, the manufacturer of the weapon used at Sandy Hook. The lawsuit was based in part on claims the manufacturer marketed its firearms to young, at-risk males. Remington, which has twice filed for bankruptcy protection, settled with the families last year for $73 million.

The Texas Supreme Court last year denied a request for a motion for temporary relief and stay of proceedings from Lucky Gunner, an online ammunitions dealer, in a lawsuit filed against the company when it sold ammunition to an underage buyer. The ammunition was then used in a shooting in 2018 at a Santa Fe, Texas, high school that killed eight students and two teachers. The shooter was a 17-year-old who has been declared incompetent to stand trial.

Finally, a lawsuit filed against Glock last year, tied to a subway shooting in New York, is proceeding under a law passed in that state in 2021.

In 2021, the New York Legislature passed a law that held gun industry members civilly liable for a public nuisance. That law, S-7196, signed by thenGov. Andrew Cuomo, was a way of getting around the 2005 federal blanket immunity.

The law earned a quick challenge from pro-gun organizations. Last May, a federal court dismissed a lawsuit filed by the National Shooting Sports Foundation and 14 gun organizations against the state of New York over the legislation. The decision is now on appeal.

Along with signing the law, Cuomo signed an executive order declaring gun violence a disaster emergency.

Repealing the liability ban on lawsuits against gun manufacturers and dealers is also favored by President Joe Biden. In a statement on gun violence just after the shooting at the Boulder King Soopers in 2021, he called on Congress to repeal the 2005 immunity law.

The liability issue is among the top priority of the anti-gun-violence group Giffords. In a statement to The Denver Gazette, Nico Bocour, vice president for state initiatives, said “Giffords supports the repeal of the federal PLCAA law and the current law in Colorado, and we also supported the NY law.”

Bocour noted that Colorado’s gun industry immunity law is broader than PLCAA and one of the three most extreme anti-victim laws in the country.

“We support Colorado taking steps to both repeal the current law and also create a broader victims’ access to justice law because victims of gun violence should have the opportunity to seek fair justice in court when they are harmed by illegal and wrongful conduct by the corporate gun industry,” he said.

Red flag

The shooting at Club Q in Colorado Springs on Nov. 19 exposed gaps in the state’s red-flag law, one that state Sen. Tom Sullivan, D- Centennial, intends to address.

Among the ideas being considered are to add physicians, district attorneys, attorney generals or health care professionals to the list of people who can seek an extreme risk protection order, which would remove firearms from someone who may pose a danger to themselves or to others.

Gov. Jared Polis appears to support at least adding district attorneys, which he mentioned in his State of the State address earlier this month.

Speaker of the House Julie McCluskie, D-Dillon, in her opening day remarks, also indicated support for changes to the red-flag law.

Ghost guns

Another gun bill likely to win favor with the governor includes a ban on

ghost guns. These are weapons assembled from parts or kits, or even a 3-D printer, but with one unfinished piece, such as a frame or receiver, that requires the purchasers to drill to make the gun functional. A loophole in federal law means these firearms don’t need serial numbers or a background check to purchase.

Ghost guns are also a target for the Biden administration, which called on the Justice Department to issue a proposed rule to help stop their proliferation. The new rule requires the parts to have serial numbers.

In a White House statement, the president said criminals “are buying kits containing nearly all of the components and directions for finishing a firearm within as little as 30 minutes and using these firearms to commit crimes. When these firearms turn up at crime scenes, they often cannot be traced by law enforcement due to the lack of a serial number.”

Polis also expressed support during his state of the state address for legislation that would attempt to get rid of ghost guns. Denver City Council has already passed an ordinance banning ghost guns within city limits.

Raising age limit

Federal law dictates that someone must be at least 18 years old to buy a shotgun or rifle, including what are referred to as “assault weapons,” and age 21 for handguns.

The concept being floated is to raise the age to 21 for purchases of all firearms, including rifles and shotguns, which is also backed by the president. That bill could come from Sullivan, who has favored raising the age limit for several years.

A bill introduced in the U.S. Senate last week, the Age 21 Act, would require anyone purchasing an “assault weapon” to be at least 21 years old.

Felon firearm possession

Polis also in his State of the State mentioned a prohibition on unlawful possession of firearms by felons, and that bill has already materialized. The measure is Senate Bill 22, sponsored by Sen. Nick Hinrichsen, D-Pueblo, and would include aggravated motor vehicle theft to the list of convictions that would prohibit someone from possessing a firearm.

Waiting periods

Colorado has no waiting period for purchasing firearms. But that could change under one of the ideas under consideration by the gun violence prevention caucus.

Just how long a waiting period could there be? Ten states and the District of Columbia have waiting periods, and in Hawaii, which has the longest waiting period in the country, it’s 14 days. But Rep. Meg Froelich, D-Englewood, a co-leader of the gun violence prevention caucus, said they’re looking at something less than 10 days.

Democrats talked about a five-day waiting period law in 2021, but never introduced the bill.

‘Assault weapons’ ban

The concept proposed by Rep. Andrew Boesenecker, D-Fort Collins, a member of the gun violence prevention caucus, has generated a lot of angst for gun rights groups since before the session started. It’s also been less than warmly received by the governor and the speaker of the House.

Days after the Club Q shooting in Colorado Springs, the president called for an assault weapons ban.

“The idea we still allow semi-automatic weapons to be purchased is sick. It has no socially redeeming value …except as profit for gun manufacturers,” Biden said.

A little more than a week later, Polis was asked on “Meet the Press” if he supported an assault weapons ban. He dodged the question, instead stating support to expand the red-flag law, and for further looks at mental health.

House Speaker Julie McCluskie, D-Dillon, also dodged the question in a recent interview with KDVR. In an appearance on “Colorado Point of View,” McCluskie was directly asked if she supported an assault weapons ban. She said she’d heard about it.

“The legislation that comes forward has to be about saving lives,” she responded, adding that there will be a number of bills around gun violence, the red-flag law, and other bills on waiting periods or a high age limit for purchasing.

“I will take a position on a bill when it is introduced,” she said. “It’s unfortunate that a draft of the bill was shared in a public way when it is a work in progress. When a bill is introduced, has gone through the process and has input from stakeholders, I’ll let you know.”

Boesenecker said that even after several drafts, the bill is still not ready for prime time.

“A draft is a snapshot in time,” he said, adding when a draft is released and inflammatory arguments are made, it becomes difficult.

The Fort Collins Democrat indicated he would continue to work with stakeholders to prohibit the sale, transfer, manufacture or import of an “assault weapon.” The bill does not prohibit the possession of “assault weapons,” he said.

His bill would create “a moment in time, space between the motive to do something horrific in our community and the ready availability of a firearm to do that. It will save lives,” he told The Denver Gazette.

A September 2022 poll from Everytown for Gun Safety asked Coloradans about an “assault weapons” ban, ghost guns and raising the age for purchasing guns. The survey reported 70% of respondents favored an “assault weapons” ban; 73% supported raising the age limit for purchasing any firearm and 78% supported a ban on ghost guns.

The most recent draft of Boesenecker’s bill, which would be carried in the Senate by Sen. Rhonda Fields, D-Aurora, includes a laundry list of the kinds of weapons that would be banned:

• Semi-automatic rifles that can accept or be modified to accept a detachable magazine, with a pistol grip; a folding, telescoping, thumbhole or detachable stock; a grenade launcher and other mechanisms.

• A semi-automatic rifles with fixed large-capacity magazine stocks.

• A .50-caliber rifle.

• A semi-automatic pistol that can accept or be modified to accept detachable magazines.

• Shotguns, including semi-automatic shotguns.

• Parts that can convert a firearm to an assault weapon already defined in the bill.

The bill also prohibits the possession of a “rapid fire trigger activator,” a device that increases the speed by which a trigger can be fired.

On the other side of the aisle, Republicans are gearing up for the fight against many of these measures, with the assault weapons ban at the top of the list.

State Sen. Rod Pelton, R- Cheyenne Wells, said the assault weapons ban bill has resulted in the most emails and phone calls he’s received so far this year.

“Protecting the Second Amendment is big in my district,” he said. “If we want to drill down and work on the problem, it’s a mental health issue.”

Rep. Matt Soper, R-Delta, said his concern is on the bill’s definition of an assault weapon. For rural Coloradans, the definitions sound like a ban on the kinds of firearms they use, not just rapid-fire weapons.

Rep. Marc Catlin, R-Montrose, said his constituents are worried their guns will be taken away or they won’t be allowed to buy them. This isn’t coming from just the gun enthusiasts, Catlin said.

“They see it as a major threat,” he said, referring to rural residents.

Both versions of the bill have drawn the ire of Rocky Mountain Gun Owners, which has started a petition to the governor to oppose the bill.

RMGO has been involved in several efforts to recall Democratic lawmakers over gun bills in the past decade. That paid off only in 2013, with the recall of two Democratic senators, including the Senate president, and the resignation of a third, who didn’t want to face a recall.

Another effort in 2019, to recall Sullivan over the red-flag law, didn’t get enough signatures to go to the ballot. RMGO and its allies have tried for years to overturn the red-flag law, without success.

So far however, just one bill has surfaced from the Republican caucuses in support of gun rights: a “Second Amendment Preservation Act” from Rep. Ken DeGraaf, R- Colorado Springs.

DeGraaf’s bill would prohibit Colorado law enforcement from enforcing federal laws that could infringe on the Second Amendment, although he said it could apply more broadly than that. The bill, HB 1044, has been assigned to the “kill” committee: House State, Civic, Military and Veterans Affairs, with a Monday, Feb. 6 hearing date.