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The Consequences of the Colorado Ban on Non-FFL Transfers

Charles C.W. Cooke relays a story of a Colorado woman who had a firearm taken by police after she was involved in a serious car accident. So far so good, I would hope if I’m involved in a bad car accident the police would take care to secure the firearm so I could retrieve it at a later date. But that part ended up being the problem. Given that Colorado law doesn’t make any exception for someone picking a firearm up from police custody, the police weren’t sure how to go about it, so they just kept the gun.

Remember that this crap about Universal Background Checks has nothing at all to do with background checks. It’s about making gun ownership complex and risky, and trapping unwitting gun owners like this woman. The police can easily run a check on her to ensure she’s not a prohibited person. In fact, they probably did this early on. But yet they can’t return the gun to her easily because the law is stupid and incomprehensible, and was written by people who didn’t care what kind of burden they were forcing on ordinary Americans.

This woman didn’t know they had passed these laws, but once she found out, she got angry, and got active. I keep saying this 90% figure is completely bogus. People will tell pollsters anything they think sounds good. When you explain what the actual consequences of the law will be, people suddenly stop supporting it.

27 Responses to “The Consequences of the Colorado Ban on Non-FFL Transfers”

  1. Archer says:

    My understanding is that the police can run all the background checks on her they want, but it won’t do any good: the new law specifically states that all firearms transfers must go through a FFL holder, and the police department does not have a FFL. There’s no exception in the law for the release of evidence or material from police custody (so if a gun is stolen and recovered, that owner can’t get it back either).

    As the saying goes, “Never attribute to malice that which is adequately explained by stupidity,” but then again the people who right laws like this are openly malicious. Stupidity plays a role (i.e. NY SAFE Act had no exemption for police magazine limits; cops had to carry 7-rounders for a while, too), but by itself is not an adequate explanation for this crap.

    • Jake says:

      But don’t forget Clark’s Law: “Any sufficiently advanced incompetence is indistinguishable from malice.”

      I would also point out the expanded version of Hanlon’s Razor: “Never attribute to malice that which can be adequately explained by stupidity. But don’t rule out malice.

  2. AndyN says:

    I’m curious as to what the law says about police conducting a background check to receive a firearm. While I agree that it should make more sense for an accident victim’s gun to be in police possession than on the seat of their car in some towing company’s lot, unless there’s an explicit exception for cops taking guns away from people who haven’t committed any crime, they should have to do a background check. I mean, isn’t their insistence that they can’t just give her back her gun an implicit admission that they can’t perform a transfer without a background check?

    It’s worthwhile to point out to people who don’t care about gun ownership that this isn’t really a 2nd Amendment issue, it’s a 4th Amendment issue. With the expansion of eminent domain, civil forfeiture laws, and now increasingly repressive gun laws, due process involving property rights is starting to look more and more like a quaint anachronism that our government can ignore on a whim. It seems to me that we should be able to win some allies by pointing out that if gun owners don’t have the right to be secure against unreasonable seizures, neither does anyone else who owns anything that government officials might find objectionable. Maybe we should work on making “what part of shall not be violated don’t you understand?” as much of a catchphrase as “what part of shall not be infringed don’t you understand?” is.

    And I note the appearance of the ‘most cops are good guys’ line. “Warren is keen to stress that the police officer she has been dealing with is a ‘good guy.'” No, he isn’t. He’s a government official who was willing to deprive you of your rights under color of law simply because that was a more appealing alternative to him than to risk losing his job or suffering some other form of professional sanction.

    • Zermoid says:

      You make a good point, is not a cop confiscating a gun also a transfer of ownership? Which would be illegal under this law as well?

    • Jake says:

      He’s a government official who was willing to deprive you of your rights under color of law simply because that was a more appealing alternative to him than to risk losing his job or suffering some other form of professional sanction.

      Actually, it looks like the real bad guy here is the City Attorney, who threatened the cop with criminal charges if he returned her gun. That’s not just losing his job or “professional sanctions”, that’s a threat to ruin his life forever from someone who definitely has the power to do so. I can’t really blame him for backing down in the face of that kind of threat, especially with the likelihood that the CA would also go after the person he was trying to help if he did.

      That CA needs to looking down the barrel of a lawsuit and criminal charges for deprivation of rights under color of law.

      • Sigivald says:

        18 USC 242 is going to be a tough sell to a Judge in this case.

        The law in question, while stupid, is not obviously unconstitutional under Heller or any other precedent.

        Thus you’ll have a very hard time convincing a Federal judge that there’s a civil right being deprived here.

  3. sayuncle says:

    Use the wapo method and call this a confiscation loophole

  4. KM says:

    Why didn’t the police need an FFL to *take* the gun in the first place?
    It’s not like was a threat to anyone sitting in her purse and it sure as hell wasn’t involved in any crime.
    As she stated – “they could have just given it to my husband”.

    • Jack says:

      Because: Cop.

      It’d be interesting to see if this law meant that the police could not even collect guns for evidential purposes.

      Course nullification via “this law is stupid” is much easier if you have a badge.

  5. RetMSgt says:

    The medics transporting the lady never touched the gun. No FFL-required transfer here.

    The hospital took possession of the gun for safekeeping until they could hand it off to the police. By law, this required an FFL transfer. It didn’t happen. Violation #1.

    The police took possession of the gun for safekeeping. By law, this required an FFL transfer. It didn’t happen. Violation #2.

    The police then gave the gun to the department’s property clerk for safekeeping until it could be returned to its owner. By law, this required an FFL transfer. It didn’t happen. Violation #3.

    The lady went to retrieve her property. Only now does someone insist on requiring an FFL transfer.

  6. Did they secure other valuables in the car and her purse too?

    Guns are just property. There is nothing special about them.

    • Archer says:

      Ask any anti. We can’t compare guns with cars, baseball bats, power tools, knives, machetes, or anything else people use to hurt/kill each other, because guns are different.

      Guns are different, because they are different.

  7. IllTemperedCur says:

    Can’t help thinking that someone in the PD saw the gun and decided that it would look downright comfortable in his personal gun safe. But I’m a cynical, misanthropic curmudgeon.

  8. Richard says:

    “because the law is stupid and incomprehensible, and was written by people who didn’t care what kind of burden they were forcing on ordinary Americans.”

    This is not correct. The writers (Bloomberg’s staff) did care and did it deliberately.

    • SPQR says:

      Exactly, recall that we analysed here the Schumer legislation which originated from Bloomberg too.

  9. Zermoid says:

    Just a FYI, I had an accident in PA a few years ago, and had to leave my gun in my wrecked vehicle as the State Cops who showed up refused to take it for safe keeping, and the medics wouldn’t take me to the Hosp with it either, so it was either leave it in the vehicle and hope it was still there later, or not go to the hospital for treatment and be left on the turnpike with a dead vehicle and hope the tow truck would give me a lift to town.

    • J. Gassert says:

      I’ve been that medic, my apologies for your medics refusal to transport you with the gun. Understand the hospital wouldn’t let you have the possession so that’s probably why, it then creates a bigger issue similar to the article presented.

      Not sure where you had your accident, but if it was anywhere near the Philly area, I can tell you that guns scare most people…despite being an open carry state I have been told by police to cover my weapon because they didn’t want to get calls and have to explain the law to my neighbors…

    • Geodkyt says:

      The VA state troopers that dealt with my accident last year decided, since I had a CCW (but no pistol on me, because I was going to be driving through Maryland to get where I was going), they needed to unload EVERYTHING in my car (packed for a weekend trip. . . but the rifles were in the trunk UNDER everything.

      They grabbed the rifles, and a display pistol (one of those pot metal jobs with fully moving parts – much better than slapping an expensive and easily lifted pistol on a table where a visitor can grab a “memento”). Would NOT turn them over to my wife, who showed up on the scene after I had been extracted and transported out, but before the inventory.

      Questioned me in the hospital as to why I had two WWII Enfields, an M1 Carbine, and an “unknown” pistol (they didn’t recognize the P08 Luger), “Was I planning on doing anything with them?” while I was waiting for the pain meds to kick in. (I guess the fact that the car was loaded with WWII uniforms, a cot, and several signs discussing the WWII history of the unit I was portraying wasn’t a clue. . . )

      However, they were nice enough to bring them to my house a few days later and turn them over to me, needing only a hand receipt signature on the property form. But they never did figure out where the serial number is on the M1 Carbine, never figured out the pot metal replica P08 wasn’t actually a real gun, and thought the “FTR” depot rebuild marking on the Enfields was part of their S/N. . .

      Quite a few cops DO NOT know how to handle “innocent” citizen’s guns, as the ones they generally encounter (other than their own) are usually suspect’s guns or evidence.

  10. Kristophr says:

    Sue the hospital and the PD for conducting a transfer without an FFL.

    • Geodkyt says:

      No standing — transfer without an FFL isn’t a civil matter, and she isn’t the proper complaintant – the STATE is. A prosecutor would have to file a criminal case as “Colorado vs.” the hospital personnel and the individual police officers (and the cops would rightly invoke limited immunity).

      Catch-22.

      She could sue to challenge this particular interpretation of teh law, and I’ll bet the cops would gleefully hand deliver her gun, if they had some court paperwork telling them to do so — that would cover their butts, even if the order was later overturned. right now, they’re either playing it safe, or underhandidly setting up this lady to get the stupid law challenged or have a public outcry to dump it to the legislature.

      • Jake says:

        right now, they’re either playing it safe, or underhandidly setting up this lady to get the stupid law challenged or have a public outcry to dump it to the legislature.

        I’ll go with “playing it safe”, since the City Attorney has threatened to prosecute the cops if they give her gun back. Since he’d probably prosecute her, too (for being the receiving party in the “illegal” transfer), they’d be risking felony convictions for themselves AND the person they’re trying to help on the chance that a court would rule in their favor and not side with the CA.

  11. emdfl says:

    Report the gun to the local sheriff as stolen. That gets it into the system. When it eventually leaves the custody of the local popo, it will show up as hers and be returned.
    I had one stolen and darn near 20 years later it came back to me.

  12. Jake says:

    One big question here is at what point does CO consider a change in possession to be a “transfer” requiring an FFL – is it a change of ownership, a mere change of physical possession, or a change of physical possession for a certain length of time?

    If it’s the first one, then since actual ownership never changed to the police, no FFL is necessary – she is still the lawful owner. If it’s either of the other two, then (absent a specific statutory exemption) the police violated the law by taking possession without going through an FFL.

    In either case, I have to wonder what’s preventing them from conducting the transfer through an FFL like any other citizens could do for a private or inter-state sale. CO does still allow that, don’t they?

    • Geodkyt says:

      Exactly. “Securing” a gun is generally not considered “transferring” it, unless the law specifies.

      Also, since the cops ended up with the gun without her permission AND she didn’t do anything wrong to create the situation, they ought to pay any transfer fee if they have to go through an FFL.

    • Sigivald says:

      Hoping to expedite the return of her gun, Warren offered to bring all of the necessary forms to the police station and, if need be, to pay the $10 transfer fee herself. The powers-that-be declined to take her up on the offer, fretting that they did not know whether this satisfied the rules.

      As written over there, it looks like the City Attorney’s interference has made them all anxious over wording and compliance.

      I haven’t read the statute; perhaps it really is terribly vague.

  13. Scott says:

    I continue to count myself as so lucky to live in AZ.

    Back in 2005 I was broadsided on my way to work. The first thing I did as I crawled out of the over-turned truck was tell the officer (who witnessed my vehicle rolling) that he needed to find the .45 that was in the truck.

    Later at the hospital the officer showed up with a gun and put it in my wife’s car (he wouldn’t hand it to her, but he would put it in her car).

    I said great, but that wasn’t the right gun – it was my gun but it was my “back-up” gun from my carry bag which of course had divulged all its contents while the vehicle rolled.

    So, the officer went back to the scene, found the .45 and brought it and put it in my wifes car.

    What service!

    I wish that everyone in the country enjoyed that kind of attitude toward guns and gun-owners as we generally have here (realizing of course that I’m sure the PPD did a wants and warrants on me and came up empty otherwise they wouldn’t have been as accomodating).

  14. Windy Wilson says:

    I think there is an action here and she does have standing, as she is out her property. It may only be a small claims case, but she doesn’t have her property, and the PD has it.
    It was taken from her without a transfer through an FFL, and the police refuse to transfer it via an FFL, something, as Jake said, other persons (and entities) transfer guns every year even though they themselves are not FFL holders.
    As EMDFL said, report it stolen; it. Geodkyte points out correctlly that it was taken without her permission or consent, and she did not do anything to create the situation, so, it was stolen. When it surfaces again in inventory, THEN there is procedure for returning stolen guns.

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