Battleground Colorado: Sheriffs Resist

posted on July 5, 2013
Michael Ives

Most of the county sheriffs in Colorado and New York are refusing to sit back and simply enforce bad gun laws. They’re standing up for you and for freedom. To understand their points of view and where the legal challenges are going, there’s no better place to start than with Sheriff John Cooke of Weld County, Colo.

“Make no mistake about where I stand in this debate,” Sheriff Cooke says with a voice so clear and resonant he could be a radio host. “The Bill of Rights was written to protect the rights of the individual, not that of the state or the federal government. I am a fervent proponent of the individual’s right to bear arms.”

Then he pauses, showing he’s an old-school rural Westerner all right. He picks his words carefully and speaks them with conviction.

But he’s hardly standing alone like Gary Cooper in “High Noon.” Actually, 55 of 64 Colorado sheriffs—Republicans and Democrats—put their names on a lawsuit filed in federal court to overturn Colorado’s new package of gun control laws (House Bills 1224 and 1229).

Colorado’s sheriffs are the elected officials who issue concealed-carry permits to applicants. Cooke believes his constituents see the new gun bans, magazine bans and more the same way he does.

“They’re with me,” he said. “The support for the position I’ve taken has been overwhelming.”

Then he deepens his tone even more and adds, “What galls me is that the Senate Democrats here in Colorado called us criminals. They sent out a Tweet—if that’s what you call it, I don’t Tweet, I speak—right after we announced we’re joining a lawsuit to overturn this unenforceable and unconstitutional gun control law.”

Cooke has a right to be insulted. The Tweet from the Colorado Senate Democrats said, “2day co sheriffs stood in opposition of CO’s new gun laws, but not w/law-abiding citizens, but with criminals.”

“It’s exactly the opposite,” Sheriff Cooke said. “We’re standing with law-abiding citizens who want to defend themselves and their loved ones. We’re standing for our Bill of Rights.”

The suit challenging the constitutionality of Colorado’s gun control law was filed in the U.S. District Court for the District of Colorado by the Independence Institute, a Colorado-based think tank founded on the principles of the Declaration of Independence, representing the 55 sheriffs, and by others representing additional plaintiffs. The suit begins: “Peace officers and peaceable citizens join together to bring this action in defense of public safety, the Second and 14th Amendments of the Constitution of the United States, and the Americans with Disabilities Act. Plaintiffs are 55 Colorado elected sheriffs, retired law enforcement officers, disabled individuals, civil rights and disability rights organizations, licensed firearms dealers, associations of law-abiding gun owners, hunting outfitters, and the firearms industry, and a manufacturer of firearm accessories.”[[H.B. 1224 and 1229] criminalizes law-abiding behavior. Just consider the magazine-size restriction. It bans any magazine that can be readily converted to hold more ammunition. 

Asked what bothers him most about H.B. 1224 and 1229, Sheriff Cooke says, “It criminalizes law-abiding behavior. Just consider the magazine-size restriction. It bans any magazine that can be readily converted to hold more ammunition. That’s very subjective. Most magazines have floor plates that can be removed so someone can clear a jam or clean the inside of the magazine.”

He explains that this vague definition can be read to mean that most gun owners are now breaking the law; after all, nearly every magazine can arguably be readily converted to exceed the capacity limit set by H.B. 1224 and 1229. The actual language of the law specifies: “A fixed or detachable magazine, box, drum, feedstrip, or similar device capable of accepting, or that is designed to be readily converted to accept, more than 15 rounds of ammunition.” 

This vague wording also potentially bans more than just magazines. Some lever-action rifles have fixed tube magazines that have removable end caps. Extenders can be added to these magazine tubes.

“That’s one reason why I refuse to enforce this legislation,” Sheriff Cooke said.

Another reason, he explains, is a provision that allows people who own the banned magazines as of July 1 to keep them only if they maintain “continuous possession” of the magazines. What does “continuous possession” mean? Can you leave your guns at home when you travel? Can someone borrow a magazine at the range? If there’s a forest fire—a relevant threat in Colorado—can another person remove a gun or magazine from a relative or friend’s home? Can a gunsmith work on a magazine or firearm in his shop without the owner present? From a law enforcement perspective, how can a police officer determine whether a magazine has been in “continuous possession” of its owner?

Finally, Sheriff Cooke explained that the suit draws on the Supreme Court decision D.C. v. Heller(2008) by pointing out that in Heller the court adopted a rule saying that the Second Amendment prohibits the banning of arms “typically possessed by law-abiding citizens for lawful purposes.” Because magazines, like ammunition, are part of the Second Amendment right to “arms,” Sheriff Cooke feels this law, signed by Democratic Colorado Gov. John Hickenlooper, is obviously unconstitutional.

It’s not often that what’s going on in Colorado can be closely compared to what’s happening in New York. Yet some 52 of 58 New York sheriffs signed a letter asking for changes to the New York gun control laws passed in January (called the SAFE Act). In fact, the New York State Sheriffs Association has filed a “friend of the court” brief in support of the New York State Rifle and Pistol Association’s motion for preliminary injunction against the SAFE Act.

Outspoken New York sheriffs, however, were threatened with more than a Tweet. Democratic New York Gov. Andrew Cuomo summoned the sheriffs to Albany last spring. The sheriffs thought they were coming to the state capitol to discuss ideas they’d offered in a letter for rewriting parts of the safe Act. Those who attended the meeting included the Sheriffs’ Association Executive Director Peter Kehoe and Chemung County Sheriff Christopher Moss. They thought they were coming to talk about their suggestions; instead, Gov. Cuomo reportedly told them to shut up.

“We didn’t get a response [to the analysis of the SAFE Act] from him, but we could tell after the budget was passed that none of those recommendations were taken into consideration,” Sheriff Moss told the Albany Times Union. “When we got there, we never got to the contents of the letter.”

Instead, Moss said, “The governor was of the opinion that the sheriffs around the state should not be interjecting their personal opinions in reference to the law.”

Some reports say Gov. Cuomo even threatened to remove sheriffs from office—this is a reference to a little-used power granted the governor by the state constitution. The governor’s spokesperson has denied this allegation.

Despite the pressure from Gov. Cuomo, some New York sheriffs say they won’t enforce the law’s vague and unconstitutional provisions. Actually, the gun debate in New York has heated up even more since the law was rushed through the legislature. Since January, numerous counties have passed non-binding resolutions condemning the measure. Some have asked for its repeal. For example, the board of supervisors in Schoharie County, a rural county located west of Albany, said it wouldn’t spend any funds to enforce the law.

To get a flavor of what the New York sheriffs and resident gun owners are so worked up about; consider just a few things the law does.

For starters, the New York law broadened the definition of banned “assault weapons” and created a registry for those already in possession—the registry began on April 15, and by law must be completed before Jan. 15, 2014. It requires gun owners to report thefts of guns within 24 hours. It requires background checks for all gun sales, including those by private sellers—there’s an exception for sales to members of a person’s immediate family.

The SAFE Act bans any magazine with the capacity to accept more than 10 rounds. Magazines owned before passage of the safe Act that hold 10 rounds can be possessed, but cannot be loaded with more than seven rounds. The magazine limit took effect April 15. A clarification had to be made to this provision, as many popular firearms don’t accept magazines that can hold less than 10 rounds. This provision even originally prevented police officers from having so-called “high-capacity” magazines.This provision empowers these providers (both private and public) to take away an individual right protected in the U.S. Bill of Rights without due process.

The SAFE Act requires retailers to call in background checks on people who want to buy ammo. Dealers are also required to report all ammo sales, including amounts, to the state. These ammunition background checks are due to begin on Jan. 15, 2014.

Perhaps the most constitutionally destructive provision in the Safe Act is a requirement for medical or mental-health professionals (nurses, doctors, licensed clinical social workers, etc.) to report any gun owner they believe might be a threat to themselves or others. This provision empowers these providers (both private and public) to take away an individual right protected in the U.S. Bill of Rights without due process.

Technically, the New York State Office of Mental Health reviews each case and decides whether to report the person to the New York State Division of Criminal Justice Services (DCJS); nevertheless this decision to report someone is made at the health-care professional’s discretion and without the patient being notified. The DCJS instructs a county sheriff to take a person’s concealed-carry permit and firearms away. To get his Second Amendment rights back, a gun owner would somehow have to prove he is not a threat after being found guilty in the mind of a doctor.

In case you’re thinking someone could sue a health-care professional, think again: The SAFE Act specifically provides that if a professional uses “reasonable professional judgment” and “good faith” when making a determination, their decision cannot be the basis for any civil or criminal liability. How many gun owners in New York will want a health-care professional in their home now?

As lawmakers obviously knew much of the SAFE Act would be challenged in court, the legislation contains a number of severability provisions. This way, in case the broad prohibitions against gun rights are indeed invalidated by the courts, it won’t necessarily repeal the entire package of gun-rights-eating provisions.

With all that in mind, realize that the safe Act was rushed through via a “message of necessity” that waived a three-day waiting period before a vote can take place. The Senate passed the bill 43-18 just hours after the text became public. The Assembly passed it the next day, and Gov. Cuomo signed it right away.

The SAFE Act was passed in such haste that Tom King, president of the New York State Rifle & Pistol Association, says, “At 4:30 p.m. on the day the New York Senate passed the bill, I was in New York state Sen. Dean Skelos’ office. He assured me there was no deal. I hung out speaking to legislators that evening until 9:45 p.m. I then left to go home. By the time I got home, around 10 p.m., they’d already started a roll call on the vote. The whole thing was kept secret from the people, from some legislators and even from law enforcement agencies. It was literally rammed through with no debate under the cover of darkness.”

King says the lawsuit challenging the safe Act is due for a preliminary hearing in federal court this August.

“The New York courts have not been the friendliest to the Second Amendment, but we believe this is going to be a landmark case that is going to eventually be heard by the U.S. Supreme Court,” King said.

In a friend-of-the-court brief, a group of New York sheriffs say:

“Law enforcement’s work is made more difficult attempting to enforce unclear laws that harm, rather than promote, public safety. The laws appear willfully blind to legitimate safety interests, and instead are tailored to impact, and negatively impact, law-abiding firearm owners. …  The Supreme Court has confirmed that the Second Amendment protects arms typically possessed by law-abiding citizens, and identified that the right of self-defense is ‘core’ protected conduct that is at its zenith in the home.”

The sheriffs’ brief later adds: “At a minimum, laws that criminalize the most common rifle in America today, a rifle that is often selected precisely for its self-defense capabilities, impinge upon that core right. The same is true of laws banning standard-capacity magazines.”

The sheriffs point out that several provisions of the safe Act are “fatally vague.” They also say that there are measures that “law enforcement officers are inherently unable to fairly and uniformly enforce.”

Meanwhile, in Colorado, David Kopel, research director for the Independence Institute and frequent America’s 1st Freedom contributor, is the attorney representing the sheriffs in Colorado. The Independence Institute is representing the Colorado sheriffs pro bono, and is asking for donations to help with litigation costs. Kopel reports that the federal court’s scheduling order sets up the possibility for a trial in mid-December. In the meantime, the sheriffs and other plaintiffs have filed a motion for a preliminary injunction against the “designed to be readily converted” and “continuous possession” language.

Republican Colorado State Sen. Greg Brophy summed up the political situation well when he said, “We’re all in shock here. It turns out this guy [Colorado Gov. John Hickenlooper] who everybody thought was a moderate Democrat is actually a gun-control governor.”

Brophy then added, “I think the governor will be replaced by someone who has Colorado values instead of New York City values. If Republicans are returned to control, we will repeal these bills immediately.”


How Many Rounds Are In Your Magazine? Showing the absurdity of the SAFE Act’s magazine limit, New York State Police charged Gregory Dean Jr., a resident of Dutchess County, with a misdemeanor after he was pulled over and found with nine rounds in his handgun’s magazine—the SAFE Act only allows seven.

Police said their investigation showed Dean’s handgun was legally possessed, but his handgun’s magazine contained two rounds too many. Fortunately for Dean, the charges were soon dropped, but how many other legal gun owners won’t be so lucky in the future?

The sheriffs pictured: First row: Terry Maketa, El Paso County; John Cooke, Weld County; Justin Smith, Larimer County. Second row: Shayne Heap, Elbert County; Bruce Hartman, Gilpin County; Ken Putnam, Cheyenne County; Chad Day, Yuma County; Third row: Dennis Spruell, Montezuma County; Undersheriff Charlene Abdella, representing Moffat County Sheriff Tim Jantz; Amos Medina, Costilla County; Fourth row: Garrett Wiggins, Routt County; Fred McKee, Delta County; James Faull, Prowers County; Forrest Frazee, Kiowa County; Brian Norton, Rio Grande County; Mike Ensminger, Teller County; Fifth row: Lou Vallario, Garfield County; Larry Kuntz; Washington County; Undersheriff Jack McGrath, Weld County; Si Woodruff, Rio Blanco County; Division Chief Mike McIntosh representing Adams County Sheriff Douglas Darr; Undersheriff Rich Valdez, representing Archuleta County Sheriff Peter Gonzalez; Sixth row: Jim Beicker, Fremont County; David Weaver, Douglas County; Chris Johnson, Otero County; Fred Jobe, Custer County; Ron Bruce, Hinsdale County; Top row: Rick Dunlap, Montrose County.

Sheriffs participating in the lawsuit but not pictured: David Weaver, Douglas County; Tim Jantz, Moffat County; Jerry Martin, Dolores County; Fred Hosselkus, Mineral County; Brett Powell, Logan County; Brian Norton, Rio Grande County; Duke Schirard, La Plata County; Donald Krueger, Clear Creek County; James Crone, Morgan County; Tom Ridnour, Kit Carson County; Tom Nestor, Lincoln County; Stan Hilkey, Mesa County; Ted Mink, Jefferson County; Dave Stong, Alamosa County; Fred Wegener, Park County; Bruce Newman, Huerfano County; Randy Peck, Sedgwick County; Dominic Mattivi, Jr., Ouray County; John Minor, Summit County; Scott Fischer, Jackson County; Peter Gonzalez, Archuleta County; Rick Besecker, Gunnison County; Charles “Rob” Urbach, Phillips County; Rod Fenske, Lake County; Grayson Robinson, Arapahoe County; David Campbell, Baca County; Mike Norris, Saguache County; Miles Clark, Crowley County; David Encinias, Bent County; Sue Kurtz, San Juan County; James Casias, Las Animas County; Douglas Darr, Adams County.



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