A Firearm Rights Chronicle: The Colorado Gun Purchase Universal Background Checks Statute

HOUSE BILL 13-1229

BY REPRESENTATIVE(S) Fields and McCann, Buckner, Court, Duran,

Exum, Fischer, Foote, Ginal, Hamner, Hullinghorst, Kagan, Labuda, Lee,

Levy, McLachlan, Melton, Mitsch Bush, Moreno, Pabon, Pettersen,

Rosenthal, Schafer, Williams, Young, Ferrandino, Salazar, Tyler;

also SENATOR(S) Carroll, Aguilar, Giron, Guzman, Heath, Hodge, Hudak,

Johnston, Jones, Kerr, Newell, Nicholson, Steadman, Todd, Ulibarri,

Morse.

CONCERNING CRIMINAL BACKGROUND CHECKS PERFORMED PURSUANT TO

THE TRANSFER OF A FIREARM, AND, IN CONNECTION THEREWITH,

MAKING AN APPROPRIATION.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, add 18-12-112 as

follows:

18-12-112. Private firearms transfers - background check

required - penalty - definitions. (1) (a) ON AND AFTER JULY 1, 2013,

EXCEPT AS DESCRIBED IN SUBSECTION (6) OF THIS SECTION, BEFORE ANY

PERSON WHO IS NOT A LICENSED GUN DEALER, AS DEFINED IN SECTION

12-26.1-106(6), C.R.S., TRANSFERS OR ATTEMPTS TO TRANSFER POSSESSION

OF A FIREARM TO A TRANSFEREE, HE OR SHE SHALL:

(I) REQUIRE THAT A BACKGROUND CHECK, IN ACCORDANCE WITH

SECTION 24-33.5-424, C.R.S., BE CONDUCTED OF THE PROSPECTIVE

TRANSFEREE; AND

(II) OBTAIN APPROVAL OF A TRANSFER FROM THE BUREAU AFTER A

BACKGROUND CHECK HAS BEEN REQUESTED BY A LICENSED GUN DEALER, IN

ACCORDANCE WITH SECTION 24-33.5-424, C.R.S.

(b) AS USED IN THIS SECTION, UNLESS THE CONTEXT REQUIRES

OTHERWISE, "TRANSFEREE" MEANS A PERSON WHO DESIRES TO RECEIVE OR

ACQUIRE A FIREARM FROM A TRANSFEROR. IF A TRANSFEREE IS NOT A

NATURAL PERSON, THEN EACH NATURAL PERSON WHO IS AUTHORIZED BY

THE TRANSFEREE TO POSSESS THE FIREARM AFTER THE TRANSFER SHALL

UNDERGO A BACKGROUND CHECK, AS DESCRIBED IN PARAGRAPH (a) OF THIS

SUBSECTION (1), BEFORE TAKING POSSESSION OF THE FIREARM.

(2) (a) A PROSPECTIVE FIREARM TRANSFEROR WHO IS NOT A

LICENSED GUN DEALER SHALL ARRANGE FOR A LICENSED GUN DEALER TO

OBTAIN THE BACKGROUND CHECK REQUIRED BY THIS SECTION.

(b) A LICENSED GUN DEALER WHO OBTAINS A BACKGROUND CHECK

ON A PROSPECTIVE TRANSFEREE SHALL RECORD THE TRANSFER, AS PROVIDED

IN SECTION 12-26-102, C.R.S., AND RETAIN THE RECORDS, AS PROVIDED IN

SECTION 12-26-103, C.R.S., IN THE SAME MANNER AS WHEN CONDUCTING A

SALE, RENTAL, OR EXCHANGE AT RETAIL.THE LICENSED GUN DEALER SHALL

COMPLY WITH ALL STATE AND FEDERAL LAWS, INCLUDING 18 U.S.C. SEC.

922, AS IF HE OR SHE WERE TRANSFERRING THE FIREARM FROM HIS OR HER

INVENTORY TO THE PROSPECTIVE TRANSFEREE.

FOR A PROSPECTIVE FIREARM TRANSFEROR PURSUANT TO THIS SECTION

SHALL PROVIDE THE FIREARM TRANSFEROR AND TRANSFEREE A COPY OF THE

RESULTS OF THE BACKGROUND CHECK, INCLUDING THE BUREAU'S APPROVAL

OR DISAPPROVAL OF THE TRANSFER.

(d) A LICENSED GUN DEALER MAY CHARGE A FEE FOR SERVICES

RENDERED PURSUANT TO THIS SECTION, WHICH FEE SHALL NOT EXCEED TEN

DOLLARS.

(3) (a) A PROSPECTIVE FIREARM TRANSFEREE UNDER THIS SECTION

SHALL NOT ACCEPT POSSESSION OF THE FIREARM UNLESS THE PROSPECTIVE

FIREARM TRANSFEROR HAS OBTAINED APPROVAL OF THE TRANSFER FROM

THE BUREAU AFTER A BACKGROUND CHECK HAS BEEN REQUESTED BY A

LICENSED GUN DEALER, AS DESCRIBED IN PARAGRAPH (b) OF SUBSECTION (1)

OF THIS SECTION.

(b) A PROSPECTIVE FIREARM TRANSFEREE SHALL NOT KNOWINGLY

PROVIDE FALSE INFORMATION TO A PROSPECTIVE FIREARM TRANSFEROR OR

TO A LICENSED GUN DEALER FOR THE PURPOSE OF ACQUIRING A FIREARM.

(4) IF THE BUREAU APPROVES A TRANSFER OF A FIREARM PURSUANT

TO THIS SECTION, THE APPROVAL SHALL BE VALID FOR THIRTY CALENDAR

DAYS, DURING WHICH TIME THE TRANSFEROR AND TRANSFEREE MAY

COMPLETE THE TRANSFER.

(5) A PERSON WHO TRANSFERS A FIREARM IN VIOLATION OF THE

PROVISIONS OF THIS SECTION MAY BE JOINTLY AND SEVERALLY LIABLE FOR

ANY CIVIL DAMAGES PROXIMATELY CAUSED BY THE TRANSFEREE'S

SUBSEQUENT USE OF THE FIREARM.

(6) THE PROVISIONS OF THIS SECTION DO NOT APPLY TO:

(a) A TRANSFER OF AN ANTIQUE FIREARM, AS DEFINED IN 18 U.S.C.

SEC. 921(a) (16), AS AMENDED, OR A CURIO OR RELIC, AS DEFINED IN 27CFR

478.11, AS AMENDED;

(b) A TRANSFER THAT IS A BONA FIDE GIFT OR LOAN BETWEEN

IMMEDIATE FAMILY MEMBERS, WHICH ARE LIMITED TO SPOUSES, PARENTS,

CHILDREN, SIBLINGS, GRANDPARENTS, GRANDCHILDREN, NIECES, NEPHEWS,

FIRST COUSINS, AUNTS, AND UNCLES;

OF THE DEATH OF A PERSON FOR WHOM THE PROSPECTIVE TRANSFEROR IS AN

EXECUTOR OR ADMINISTRATOR OF AN ESTATE OR A TRUSTEE OF A TRUST

CREATED IN A WILL;

(d) A TRANSFER THAT IS TEMPORARY AND OCCURS WHILE IN THE

HOME OF THE UNLICENSED TRANSFEREE IF:

(I) THE UNLICENSED TRANSFEREE IS NOT PROHIBITED FROM

POSSESSING FIREARMS; AND

(II) THE UNLICENSED TRANSFEREE REASONABLY BELIEVES THAT

POSSESSION OF THE FIREARM IS NECESSARY TO PREVENT IMMINENT DEATH

OR SERIOUS BODILY INJURY TO THE UNLICENSED TRANSFEREE;

(e) A TEMPORARY TRANSFER OF POSSESSION WITHOUT TRANSFER OF

OWNERSHIP OR A TITLE TO OWNERSHIP, WHICH TRANSFER TAKES PLACE:

(I) AT A SHOOTING RANGE LOCATED IN OR ON PREMISES OWNED OR

OCCUPIED BY A DULY INCORPORATED ORGANIZATION ORGANIZED FOR

CONSERVATION PURPOSES OR TO FOSTER PROFICIENCY IN FIREARMS;

(II) AT A TARGET FIREARM SHOOTING COMPETITION UNDER THE

AUSPICES OF, OR APPROVED BY, A STATE AGENCY OR A NONPROFIT

ORGANIZATION; OR

(III) WHILE HUNTING, FISHING, TARGET SHOOTING, OR TRAPPING IF:

(A) THE HUNTING, FISHING, TARGET SHOOTING, OR TRAPPING IS

LEGAL IN ALL PLACES WHERE THE UNLICENSED TRANSFEREE POSSESSES THE

FIREARM; AND

(B) THE UNLICENSED TRANSFEREE HOLDS ANY LICENSE OR PERMIT

THAT IS REQUIRED FOR SUCH HUNTING, FISHING, TARGET SHOOTING, OR

TRAPPING;

(f) A TRANSFER OF A FIREARM THAT IS MADE TO FACILITATE THE

REPAIR OR MAINTENANCE OF THE FIREARM; EXCEPT THAT THIS PARAGRAPH

(f) DOES NOT APPLY UNLESS ALL PARTIES WHO POSSESS THE FIREARM AS A

RESULT OF THE TRANSFER MAY LEGALLY POSSESS A FIREARM;

(g) ANY TEMPORARY TRANSFER THAT OCCURS WHILE IN THE

CONTINUOUS PRESENCE OF THE OWNER OF THE FIREARM;

(h) A TEMPORARY TRANSFER FOR NOT MORE THAN SEVENTY-TWO

HOURS. A PERSON WHO TRANSFERS A FIREARM PURSUANT TO THIS

PARAGRAPH (h) MAY BE JOINTLY AND SEVERALLY LIABLE FOR DAMAGES

PROXIMATELY CAUSED BY THE TRANSFEREE'S SUBSEQUENT UNLAWFUL USE

OF THE FIREARM; OR

(i) A TRANSFER OF A FIREARM FROM A PERSON SERVING IN THE

ARMED FORCES OF THE UNITED STATES WHO WILL BE DEPLOYED OUTSIDE OF

THE UNITED STATES WITHIN THE NEXT THIRTY DAYS TO ANY IMMEDIATE

FAMILY MEMBER, WHICH IS LIMITED TO A SPOUSE, PARENT, CHILD, SIBLING,

GRANDPARENT, GRANDCHILD, NIECE, NEPHEW, FIRST COUSIN, AUNT, AND

UNCLE OF THE PERSON.

(7) FOR PURPOSES OF PARAGRAPH (f) OF SUBSECTION (6) OF THIS

SECTION:

(a) AN OWNER, MANAGER, OR EMPLOYEE OF A BUSINESS THAT

REPAIRS OR MAINTAINS FIREARMS MAY RELY UPON A TRANSFEROR'S

STATEMENT THAT HE OR SHE MAY LEGALLY POSSESS A FIREARM UNLESS THE

OWNER, MANAGER, OR EMPLOYEE HAS ACTUAL KNOWLEDGE TO THE

CONTRARY AND MAY RETURN POSSESSION OF THE FIREARM TO THE

TRANSFEROR UPON COMPLETION OF THE REPAIRS OR MAINTENANCE WITHOUT

A BACKGROUND CHECK;

(b) UNLESS A TRANSFEROR OF A FIREARM HAS ACTUAL KNOWLEDGE

TO THE CONTRARY, THE TRANSFEROR MAY RELY UPON THE STATEMENT OF

AN OWNER, MANAGER, OR EMPLOYEE OF A BUSINESS THAT REPAIRS OR

MAINTAINS FIREARMS THAT NO OWNER, MANAGER, OR EMPLOYEE OF THE

BUSINESS IS PROHIBITED FROM POSSESSING A FIREARM.

(8) NOTHING IN SUBSECTION (6) OF THIS SECTION SHALL BE

INTERPRETED TO LIMIT OR OTHERWISE ALTER THE APPLICABILITY OF SECTION

18-12-111 CONCERNING THE UNLAWFUL PURCHASE OR TRANSFER OF

FIREARMS.

(9) (a) A PERSON WHO VIOLATES A PROVISION OF THIS SECTION

COMMITS A CLASS 1 MISDEMEANOR AND SHALL BE PUNISHED IN

ACCORDANCE WITH SECTION 18-1.3-501. THE PERSON SHALL ALSO BE

PROHIBITED FROM POSSESSING A FIREARM FOR TWO YEARS, BEGINNING ON

THE DATE OF HIS OR HER CONVICTION.

(b) WHEN A PERSON IS CONVICTED OF VIOLATING A PROVISION OF

THIS SECTION, THE STATE COURT ADMINISTRATOR SHALL REPORT THE

CONVICTION TO THE BUREAU AND TO THE NATIONAL INSTANT CRIMINAL

BACKGROUND CHECK SYSTEM CREATED BY THE FEDERAL "BRADY HANDGUN

VIOLENCE PREVENTION ACT" (PUB.L. 103-159), THE RELEVANT PORTION OF

WHICH IS CODIFIED AT 18 U.S.C. SEC. 922 (t). THE REPORT SHALL INCLUDE

INFORMATION INDICATING THAT THE PERSON IS PROHIBITED FROM

POSSESSING A FIREARM FOR TWO YEARS, BEGINNING ON THE DATE OF HIS OR

HER CONVICTION.

SECTION 2. In Colorado Revised Statutes, 13-5-142, amend (1)

introductory portion, (2), (3) introductory portion, (3) (a), and (3) (b) (II);

and add (1.5) and (4) as follows:

13-5-142. National instant criminal background check system -

reporting. (1) ~~Beginning July 1, 2002~~ ON AND AFTER THE EFFECTIVE DATE

OF THIS SECTION, the ~~clerk of the court of every judicial district in the~~ state

COURT ADMINISTRATOR shall ~~periodically report~~ SEND ELECTRONICALLY the

following information to the ~~national instant criminal background check~~

~~system created by the federal "Brady Handgun Violence Prevention Act"~~

~~(Pub.L. 103-159), the relevant portion of which is codified at 18 U.S.C. sec.~~

~~922 (t)~~ COLORADO BUREAU OF INVESTIGATION CREATED PURSUANT TO

SECTION 24-33.5-401, C.R.S., REFERRED TO WITHIN THIS SECTION AS THE

"BUREAU":

(1.5) NOT MORE THAN FORTY-EIGHT HOURS AFTER RECEIVING

NOTIFICATION OF A PERSON WHO SATISFIES THE DESCRIPTION IN PARAGRAPH

(a), (b), OR (c) OF SUBSECTION (1) OF THIS SECTION, THE STATE COURT

ADMINISTRATOR SHALL REPORT SUCH FACT TO THE BUREAU.

(2) Any report made by the ~~clerk of the court of every judicial~~

~~district in the~~ state COURT ADMINISTRATOR pursuant to this section shall

describe the reason for the report and indicate that the report is made in

accordance with 18 U.S.C. sec. 922 (g) (4).

(3) The ~~clerk of the court of every judicial district in the~~ state COURT

ADMINISTRATOR shall take all necessary steps to cancel a record made by

that clerk THE STATE COURT ADMINISTRATOR in the national instant criminal

background check system if:

(a) The person to whom the record pertains makes a written request

to the clerk STATE COURT ADMINISTRATOR; and

(b) No less than three years before the date of the written request:

(II) The period of commitment of the most recent order of

commitment or recommitment expired, or the A court entered an order

terminating the person's incapacity or discharging the person from

commitment in the nature of habeas corpus, if the record in the national

instant criminal background check system is based on an order of

commitment to the custody of the unit in the department of human services

that administers behavioral health programs and services, including those

related to mental health and substance abuse; except that the clerk STATE

COURT ADMINISTRATOR shall not cancel any record pertaining to a person

with respect to whom two recommitment orders have been entered under

section 27-81-112 (7) and (8), C.R.S., or who was discharged from

treatment under section 27-81-112 (11), C.R.S., on the grounds that further

treatment will not be likely to bring about significant improvement in the

person's condition; or

(4) PURSUANT TO SECTION 102 (c) OF THE FEDERAL "NICS

IMPROVEMENT AMENDMENTS ACT OF 2007" (PUB.L. 110-180), A COURT,

UPON BECOMING AWARE THAT THE BASIS UPON WHICH A RECORD REPORTED

BY THE STATE COURT ADMINISTRATOR PURSUANT TO SUBSECTION (1) OF THIS

SECTION DOES NOT APPLY OR NO LONGER APPLIES, SHALL:

(a) UPDATE, CORRECT, MODIFY, OR REMOVE THE RECORD FROM ANY

DATABASE THAT THE FEDERAL OR STATE GOVERNMENT MAINTAINS AND

MAKES AVAILABLE TO THE NATIONAL INSTANT CRIMINAL BACKGROUND

CHECK SYSTEM, CONSISTENT WITH THE RULES PERTAINING TO THE

DATABASE; AND

(b) NOTIFY THE ATTORNEY GENERAL THAT SUCH BASIS DOES NOT

APPLY OR NO LONGER APPLIES.

SECTION 3. In Colorado Revised Statutes, add 13-5-142.5 as

follows:

13-5-142.5. National instant criminal background check system

- judicial process for awarding relief from federal prohibitions -

legislative declaration. (1) Legislative declaration. THE PURPOSE OF THIS

SECTION IS TO SET FORTH A JUDICIAL PROCESS WHEREBY A PERSON MAY

APPLY OR PETITION FOR RELIEF FROM FEDERAL FIREARMS PROHIBITIONS

IMPOSED PURSUANT TO 18 U.S.C. SEC. 922 (d) (4) AND (g) (4), AS

PERMITTED BY THE FEDERAL "NICS IMPROVEMENT AMENDMENTS ACT OF

2007" (PUB.L. 110-180, SEC. 105).

(2) Eligibility. A PERSON MAY PETITION FOR RELIEF PURSUANT TO

THIS SECTION IF:

(a) (I) HE OR SHE HAS BEEN FOUND TO BE INCAPACITATED BY ORDER

OF THE COURT PURSUANT TO PART 3 OF ARTICLE 14 OF TITLE 15, C.R.S.;

(II) HE OR SHE HAS BEEN COMMITTED BY ORDER OF THE COURT TO

THE CUSTODY OF THE UNIT IN THE DEPARTMENT OF HUMAN SERVICES THAT

ADMINISTERS BEHAVIORAL HEALTH PROGRAMS AND SERVICES, INCLUDING

THOSE RELATED TO MENTAL HEALTH AND SUBSTANCE ABUSE, PURSUANT TO

SECTION 27-81-112 OR 27-82-108, C.R.S.; OR

(III) THE COURT HAS ENTERED AN ORDER FOR THE PERSON'S

INVOLUNTARY CERTIFICATION FOR SHORT-TERM TREATMENT OF MENTAL

ILLNESS PURSUANT TO SECTION 27-65-107, C.R.S., FOR EXTENDED

CERTIFICATION FOR TREATMENT OF MENTAL ILLNESS PURSUANT TO SECTION

27-65-108, C.R.S., OR FOR LONG-TERM CARE AND TREATMENT OF MENTAL

ILLNESS PURSUANT TO SECTION 27-65-109, C.R.S.; AND

(b) HE OR SHE IS A PERSON TO WHOM THE SALE OR TRANSFER OF A

FIREARM OR AMMUNITION IS PROHIBITED BY 18 U.S.C. SEC. 922 (d) (4), OR

WHO IS PROHIBITED FROM SHIPPING, TRANSPORTING, POSSESSING, OR

RECEIVING A FIREARM OR AMMUNITION PURSUANT TO 18U.S.C. SEC. 922 (g)

(4).

(3) Due process. IN A COURT PROCEEDING PURSUANT TO THIS

SECTION:

(a) THE PETITIONER SHALL HAVE AN OPPORTUNITY TO SUBMIT HIS OR

HER OWN EVIDENCE TO THE COURT CONCERNING HIS OR HER PETITION;

(b) THE COURT SHALL REVIEW THE EVIDENCE; AND

RECORD OF THE PROCEEDING.

(4) Proper record. IN DETERMINING WHETHER TO GRANT RELIEF TO

A PETITIONER PURSUANT TO THIS SECTION, THE COURT SHALL RECEIVE

EVIDENCE CONCERNING, AND SHALL CONSIDER:

(a) THE CIRCUMSTANCES REGARDING THE FIREARMS PROHIBITIONS

IMPOSED BY 18 U.S.C. SEC. 922 (g) (4);

(b) THE PETITIONER'S RECORD, WHICH MUST INCLUDE, AT A

MINIMUM, THE PETITIONER'S MENTAL HEALTH RECORDS AND CRIMINAL

HISTORY RECORDS; AND

DEVELOP, AT A MINIMUM, THROUGH CHARACTER WITNESS STATEMENTS,

TESTIMONY, OR OTHER CHARACTER EVIDENCE.

(5) Proper findings. (a) BEFORE GRANTING RELIEF TO A PETITIONER

PURSUANT TO THIS SECTION, THE COURT SHALL ISSUE FINDINGS THAT:

(I) THE PETITIONER IS NOT LIKELY TO ACT IN A MANNER THAT IS

DANGEROUS TO PUBLIC SAFETY; AND

(II) GRANTING RELIEF TO THE PETITIONER IS NOT CONTRARY TO THE

PUBLIC INTEREST.

(b) (I) IF THE COURT DENIES RELIEF TO A PETITIONER PURSUANT TO

THIS SECTION, THE PETITIONER MAY PETITION THE COURT OF APPEALS TO

REVIEW THE DENIAL, INCLUDING THE RECORD OF THE DENYING COURT.

(II) A REVIEW OF A DENIAL SHALL BE DE NOVO IN THAT THE COURT

OF APPEALS MAY, BUT IS NOT REQUIRED TO, GIVE DEFERENCE TO THE

DECISION OF THE DENYING COURT.

(III) IN REVIEWING A DENIAL, THE COURT OF APPEALS HAS

DISCRETION, BUT IS NOT REQUIRED, TO RECEIVE ADDITIONAL EVIDENCE

NECESSARY TO CONDUCT AN ADEQUATE REVIEW.

SECTION 4. In Colorado Revised Statutes, 13-9-123, amend (1)

introductory portion, (2), (3) introductory portion, (3) (a), and (3) (b) (II);

and add (1.5) and (4) as follows:

13-9-123. National instant criminal background check system -

reporting. (1) ~~Beginning July 1, 2002~~ ON AND AFTER THE EFFECTIVE DATE

OF THIS SECTION, the ~~clerk of the probate court~~ STATE COURT

ADMINISTRATOR shall periodically report SEND ELECTRONICALLY the

following information to the ~~national instant criminal background check~~

~~system created by the federal "Brady Handgun Violence Prevention Act",~~

~~Pub.L. 103-159, the relevant portion of which is codified at 18 U.S.C. sec.~~

~~922 (t)~~ COLORADO BUREAU OF INVESTIGATION CREATED PURSUANT TO

SECTION 24-33.5-401, C.R.S., REFERRED TO WITHIN THIS SECTION AS THE

"BUREAU":

(1.5) NOT MORE THAN FORTY-EIGHT HOURS AFTER RECEIVING

NOTIFICATION OF A PERSON WHO SATISFIES THE DESCRIPTION IN PARAGRAPH

(a), (b), OR (c) OF SUBSECTION (1) OF THIS SECTION, THE STATE COURT

ADMINISTRATOR SHALL REPORT SUCH FACT TO THE BUREAU.

(2) Any report made by the ~~clerk of the probate court~~ STATE COURT

ADMINISTRATOR pursuant to this section shall describe the reason for the

report and indicate that the report is made in accordance with 18 U.S.C. sec.

922 (g) (4).

(3) The ~~clerk of the probate court~~ STATE COURT ADMINISTRATOR

shall take all necessary steps to cancel a record made by that clerk THE

STATE COURT ADMINISTRATOR in the national instant criminal background

check system if:

(a) The person to whom the record pertains makes a written request

to the clerk STATE COURT ADMINISTRATOR; and

(b) No less than three years before the date of the written request:

(II) The period of commitment of the most recent order of

commitment or recommitment expired, or the court entered an order