Magazine senario question

[belizejet]

Say I go hunting in another state and I have a magazine over 15 round capacity with me. I own the magazine before July 1 but take it out of state after that date. I should be able to bring it back into the state if it was a grandfathered mag. How is this proven if the State Police stop you?

[Zundfolge]

Say I go hunting in another state and I have a magazine over 15 round capacity with me. I own the magazine before July 1 but take it out of state after that date. I should be able to bring it back into the state if it was a grandfathered mag.
The magazine would be legal because you maintained "continuous possession" (it's my understanding that people that are not currently residents of Colorado can move here with their >15 rd mags assuming they owned them before next 7/1/13 as well).

How is this proven if the State Police stop you?
It can't ... which is why the law is unenforceable (and will eventually be overturned in court).


Ironically, if you own some >15 round magazines, go on vacation out of state for a month (leaving the mags at home) and come back it could be argued that you're now in violation of the law.

[james_bond_007]

Ironically, if you own some >15 round magazines, go on vacation out of state for a month (leaving the mags at home) and come back it could be argued that you're now in violation of the law.

Right you are. That would be one side of the argument.

Another side that YOU can argue is that you maintained constructive possession.

There are at least 2 types of "possession" recognized by the courts:
1) ACTUAL possession - You have physical possession of an item
2) CONSTRUCTIVE possession - You have the means to control access to an item to achieve physical (aka actual) possession

EX:
Someone steals your credit card number. They did not steal your physical card, though.
They have constructive possession of your credit card...that is using the CC number, they can act in a manner as if they had your physical CC in hand.
They can be charged with CC theft even though they did not actually steal the CC.

EX: Leave home for a month and leave your mags in your house.
You will still maintain constructive possession, by having the key to access your house and those mags, as you meet the requirements for grandfathered mags.
1) You OWNED them before 01JUL13
2) You maintained continuous possession (either ACTUAL or CONSTRUCTIVE)

This post is my opinion and is not to be regarded as "official legal advice" .

[james_bond_007]

Likewise the law says "a person may own" , thus defining the rules for a single-person owner.

It does NOT say "there cannot be co-owners, trusts as owners, companies as owners", etc.
It says nothing about the rules for "co-owners" of a magazine.

While one might think that the law implies "there cannot be co-owners" becuse of the "a" in "a person", laws are very explicit about what is and is not allowed and try to leave little to be "implied": i.e. the "letter" of the law versus the "spirit" of the law.

If the law was intended to prohibit "co-owners" a clause such as "magazines may only be owned by a single person" or "multi-party ownership of mags is prohibited" or "magazines may NOT be owned by a trust having multiple beneficiaries" etc.

Again, the law describes the rules for "a [single] person".

As such, it is plausible to have co-owners of a mag, provided they also meet the "a [single] person" grandfathering criteria to allow single perosn usage of the mags:
1) Own before 01JUL13
2) Maintain continuous possession (actual or constructive)

In theory, one can have co-owners of a mag.
EX:
1) You declare you, your wife, and kids are co-owners of some mags today to meet the "owned before 01JUL13" condition
2) You, your wife, and kids all have keys to your house and can access the mags at any time to meet the "Maintain continuous [constructive] possession" clause
Note: If the mags are also locked in your safe to which only YOU had the key/combination, (2) would not be met by your family, your family would not meet the "grandfather clause" and could not legally be considered as owners of the mags

While this seems like a "loophole", there are drawbacks to this as well.

Yes, the law is silly and poorly written. Hopefully it will "go away and never come back to haunt us in any re-written/revised form".

No, I'm not trying to stir up an argument...

...those of you that know me, know I just like to open up discussions that "test" the boundaries of things, such as this goofy law.
...those of you that don't know me, probably think I have too much time on my hands [ROFL1]

This post is my opinion and is not to be considered "official legal advice" .

[OneGuy67]

Since we don't have a state police in Colorado, it shouldn't be an issue.

[newracer]

http://www.coloradoguncase.org/051613_technical_guidance_large_cap_magazine_ban.p df

[vossman]

It can't ... which is why the law is unenforceable (and will eventually be overturned in court.

Or they will be banned completely. I thinks that's a possibility.

[Great-Kazoo]

Your first mistake would be a consenting to a search of your vehicle.

[spqrzilla]

Don't rely too much on the Attorney General's "guidance", its debatable what that memo's actual effect is. I believe it has no legal significance.

[MarkCO]

Don't rely too much on the Attorney General's "guidance", its debatable what that memo's actual effect is. I believe it has no legal significance.

So are we to believe the attorney general, whose staff researched and came up with a position based on legal precedent, who is providing basis for charging or not charging persons in Colorado based on 1224, or a dude on the internet who believes it is insignificant? Hmm, that is a tough one.

[O2HeN2]

Ironically, if you own some >15 round magazines, go on vacation out of state for a month (leaving the mags at home) and come back it could be argued that you're now in violation of the law.

Depends on how you store them. In a safe with no access by anyone else, you're good to go.

Also a careful reading of the law reveals that there is no "residency requirement", either for the owner or the magazine. Which means ten years from now someone can move to Colorado with magazines that hold more than 15 rounds -- if and only if they possessed the magazines before July 1st, 2013.

O2

[merl]

Your first mistake would be a consenting to a search of your vehicle.

or having them in plain view. A-friggin-mazing that you are more likely to get arrested for having a beta mag on the passenger seat than a brick of weed.

[Great-Kazoo]

or having them in plain view. A-friggin-mazing that you are more likely to get arrested for having a beta mag on the passenger seat than a brick of weed.

The weed's hiding 1/2 kilo of tar heroin. win - win.

[def90]

So are we to believe the attorney general, whose staff researched and came up with a position based on legal precedent, who is providing basis for charging or not charging persons in Colorado based on 1224, or a dude on the internet who believes it is insignificant? Hmm, that is a tough one.

Actually it does matter. The AG's memo is only that, legally it is only a "suggestion" and local law enforcement can make what they want of it. The "suggestion" can also be changed at any time. In the end the only law that matters is what the text of the original bill states.

Essentially based on your logic an AG would be able to write whatever law they want by simply putting out a "memo".

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[MarkCO]

Actually it does matter. The AG's memo is only that, legally it is only a "suggestion" and local law enforcement can make what they want of it. The "suggestion" can also be changed at any time. In the end the only law that matters is what the text of the original bill states.

Essentially based on your logic an AG would be able to write whatever law they want by simply putting out a "memo".

Sent from my XT907 using Tapatalk 2

Yes, legally it bears no weight. However, it is constructed in much the same way as a supreme court weighs their decisions and IS based on legal precedents, not internet assumptions.

My logic???...you are not even in left field with that one. To see the game you at least have to be in the stadium. I never said it was law nor that the memo had legal authority. However, the AG, with a team of clerks researches legal decisions with similar words, phrases or impact and provides guidance based on that research. However, a few of you would rather believe some guy on the internet. Does you not realize how absurd your position is? Guess not.

[spqrzilla]

So are we to believe the attorney general, whose staff researched and came up with a position based on legal precedent, who is providing basis for charging or not charging persons in Colorado based on 1224, or a dude on the internet who believes it is insignificant? Hmm, that is a tough one.
There is no "legal precedent" involved.

Oh, and it was the previous Attorney General who issued an opinion that said that University of Colorado could ban concealed carry on campus.

So it may actually be a tough one for you.

[Circuits]

The AG's memo has the force of law, FOR NOW, because a judge granted a preliminary injunction that says so, in the sheriff's lawsuit vs the state over HB1224.

[MarkCO]

There is no "legal precedent" involved.

HOGWASH! The entire process involved researching legal precedent in order to form the guidance. Do you speak english???

[MarkCO]

12.The Technical Guidance is an “official written interpretation” of HB13-1224.
It has been adopted by the Governor and the Colorado Department of Public
Safety. Official written interpretations of criminal laws are binding and
create an affirmative defense for individuals charged under those laws. See
Colo. Rev. Stat. § 18-1-504(2)(c) (providing an affirmative defense to criminal
prosecutions contrary to “official written interpretation of the statute or law
relating to the offense, made or issued by a public servant, agency, or body
legally charged or empowered with the responsibility of administering,
enforcing, or interpreting” it).

But nevermind, spqrzilla and def90 are certainly smarter and better informed than the AG or the judge, so you all should listen to them.[hahhah-no]

[def90]

But nevermind, spqrzilla and def90 are certainly smarter and better informed than the AG or the judge, so you all should listen to them.[hahhah-no]


Feel free to be the 1st person to challenge this.. good luck. Once again, the state AG can write whatever they want but unless you are being tried in their court it doesn't mean much.

The Boulder County DA can do what he wants regardless of some recommendation that the Co AG writes up and all he has to do is cite the bill that was passed by the state legislators.

As far as legal precedent goes there is none
Why do you think the Colorado sheriffs are suing the state in Federal court?

It's going to eventually come down to how much money are you willing to spend to defend yourself for a $20 piece of metal/plastic.


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[lowbeyond]

So are we to believe the attorney general, whose staff researched and came up with a position based on legal precedent, who is providing basis for charging or not charging persons in Colorado based on 1224, or a dude on the internet who believes it is insignificant? Hmm, that is a tough one.

Technical guidance means nothing under the law

[hurley842002]

Feel free to be the 1st person to challenge this.. good luck. Once again, the state AG can write whatever they want but unless you are being tried in their court it doesn't mean much.

The Boulder County DA can do what he wants regardless of some recommendation that the Co AG writes up and all he has to do is cite the bill that was passed by the state legislators.

As far as legal precedent goes there is none
Why do you think the Colorado sheriffs are suing the state in Federal court?

It's going to eventually come down to how much money are you willing to spend to defend yourself for a $20 piece of metal/plastic.


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That about sums it up...

[MarkCO]

Technical guidance means nothing under the law

This is like arguing with a 2 year old. Go get your dictionary out and then read the judges order. It is really pretty simple.


Feel free to be the 1st person to challenge this.. good luck. Once again, the state AG can write whatever they want but unless you are being tried in their court it doesn't mean much.

Since you apparently can't understand the English language or understand the Judges order, if you are anything close to begin the average juror, then you are right, probably screwed. However, in my experience on the stand, most jurors can understand the Judges orders and jury instructions.

At least with Liberals, I know what they are trying to do. With these guys, who knows...maybe liberal plants to make all the gun owners skered.[shithitsfan]

PS. Did you even read the quote (from the Judges order) in post #19 that says you are totally wrong?

[spqrzilla]

HOGWASH! The entire process involved researching legal precedent in order to form the guidance. Do you speak english???
You know, I've tried to be polite to you. I guess that was wasted time and energy.

You claim that the Attorney General's guidance was based on reading of "legal precedent". In legal terms, a "precedent" is a prior decision of a court. Binding precedent would be a decision of a court that has appellate authority over the sitting court. In the entire three pages of the "guidance", the Attorney General cites not a single court decision for any purpose at all. The guidance is merely filled with repetitions of the phrase "cannot reasonably be read". Moreover, the applicability of CRS 18-1-504(c)(2) is a grey area because the legislation itself did not designate the Attorney General as the official with the authority to issue regulations, interpret or enforce it as its a general criminal law. The legislation actually gives authority to the CBI to create rules regarding the required markings on magazines but there is no authority in the legislation for rule making on the meaning of the terms "continuous possession" nor language on convertibility. CRS 18-1-504(c)(2) has little case law on the scope of things like an Attorney General's interpretation as applied to criminal laws. Lastly, CRS 18-1-504(c)(2) when it does apply creates an "affirmative defense" which means the defendant has to present evidence that they relied upon the interpretation to prevail.

And of course, when the Attorney General is replaced and his replacement issues a different "guidance" ...

Now I wrote that in English, but I don't know if the words were small enough.

[spqrzilla]

And by the way, the District Court that issued the temporary injunction is a Federal District Court - which does not have the jurisdiction to make binding precedent upon Colorado state district courts when interpreting Colorado state law.

[Sharpienads]

I'm so confused [panic]

[MarkCO]

I'm so confused [panic]

[tmckay2]

heres my question. i used to live in illinois. all my family lives there. i still have some mags and various assorted items there. can they mail them to me? or can i go home to illinois for xmas and bring them back with me? they can't prove i didn't own them, but i can't prove i did.

[spqrzilla]

heres my question. i used to live in illinois. all my family lives there. i still have some mags and various assorted items there. can they mail them to me? or can i go home to illinois for xmas and bring them back with me? they can't prove i didn't own them, but i can't prove i did.

Not sure what you expect for an answer to that question. If you are asking whether or not its possible for you to get away with what is apparently an illegal act ... well, the probability is that you can. How does that answer help you out?

[Ronin13]

heres my question. i used to live in illinois. all my family lives there. i still have some mags and various assorted items there. can they mail them to me? or can i go home to illinois for xmas and bring them back with me? they can't prove i didn't own them, but i can't prove i did.
See? It's questions like this- technically you own them, right? So if "they" (prosecutor) can't prove you didn't own them prior to, then there's no case and you're g2g.

[tmckay2]

Not sure what you expect for an answer to that question. If you are asking whether or not its possible for you to get away with what is apparently an illegal act ... well, the probability is that you can. How does that answer help you out?

its illegal to have someone mail your property to you that you legally owned before hand? its illegal to bring property back with you that you legally owned before hand? where is the illegal act? thats the question. don't have to be such a dick jesus.

[kidicarus13]

but i can't prove i did.

It's not your responsibility to prove anything, it's the prosecutions responsibility.

[james_bond_007]

It's not your responsibility to prove anything, it's the prosecutions responsibility.
Well, YES you are right from a legal perspective...and NO you are not right from a practical perspective.

Please allow me to explain where I'm going with this...

The law CRS -18-12-302(2)(b) (http://www.leg.state.co.us/clics/clics2013a/csl.nsf/fsbillcont/7E6713B015E62E6F87257B0100813CB5?Open&file=1224_01.pdf) DOES say that "IF A PERSON WHO IS ALLEGED TO HAVE VIOLATED SUBSECTION (1) OF THIS SECTION ASSERTS THAT HE OR SHE IS PERMITTED TO LEGALLY POSSESS A LARGE CAPACITY MAGAZINE PURSUANT TO PARAGRAPH (a)OF THIS SUBSECTION (2), THE PROSECUTION HAS THE BURDEN OF PROOF TO REFUTE THE ASSERTION".

So if and when it goes to court, you are correct.
At the scene, it is not likely that the arresting officer will take kindly to your "Prove it, bud." They are NOT the prosecution and don't have to prove anything to arrest you...they just need probably cause and will let the courts decide if they arrest was valid or not.

However, by that time you've probably spent a bunch of money, MAY have been arrested, and MAY have had your weapons confiscated, as well, for "evidence". This could be similar to the practice Denver has used when finding >21 round mags prior to this goofy law. However in Denver, it has been common practice to plea bargain "You give up your mags and weapons, and we'll let you off with no charges and no need for litigation in court."

Weighing the cost of surrendering some mags and guns vs. the cost of an attorney to defend you, the former is often FAR cheaper than the latter.

On the other hand, if you can supply some sort of proof of ownership and AVOID arrest and even getting that far, you MAY be able to nip the incident in the bud and same a LOT of time and cash, as well as preventing your mags/weapons from being confiscated. (This is the practical "and NO" part I was referring to.)

The problem is that it is nearly impossible to prove ownership of a "specific" mag prior to 01JUL13. You may have a receipt for 10 mags dated 01MAY13, but have no practical way to prove the mags in your possession are the same mags listed on the receipt. The mags are not unique (i.e. they don't have a serial number on them you can match to a serial number on the receipt). You could have just as easily taken your 01MAY13 receipt with you to Wyoming, picked up 10 new mags, and claim they are the ones purchased on 01MAY13. No one can easily tell the difference between the contraband mags on the legal mags.

On the positive side, it will be just as difficult for the prosecution to prove that the mags you have ARE NOT the ones from the receipt. In fact, as you (KIDICARUS13) said, from a legal perspective, it would be up to the prosecution to prove it.

However, if it were me, I'd really try hard to prove legal ownership (even though nothing in the law says I have to) when questioned by the officer, to try and avoid arrest, confiscation of weapons, and costly litigation, from a practical perspective.

NOTE: This post is my opinion and is not to be construed as legal advice.
.

[james_bond_007]

"bond" - you approach from the logical perspective which is not the perspective the Court uses. What DA is going to bring someone to court and announce to the judge "I think hes' suspicious!". Doesn't happen. No evidence, no case. No case, no court. Give them something to work with though and then there is always the possibility. Expert witness says your receipt appears to be altered. Store cant pull original. etc. etc. obscure examples but they are to the point.

Nothing goes to court with nothing to work with.

"I don't have any obligations to answer your questions".

TROT: I appreciate your comments.

I must agree with you that the DA won't have much to go on and MAY not bring it to trial, but it would be the arresting officer that says "I think he is suspicious"...the DA then decides if it goes farther.

...then there's the rookie Jr DAs that get the case and want to prove how good they are to their superiors and just drag things out and make them "expensive" for you. It may never make it to trial, but it and your lawyer bill drags on until it is dismissed...$$$ cha-ching $$$

And as I pointed out, the receipt could actually be valid...but there is no way to prove the possessed mags DO or DO NOT correspond to the receipt. So the receipt thing is VERY weak, for both you AND the DA.

But it seems I still might try it anyway, to prevent things from getting on the docket, and "try" to convince the officer to NOT arrest me.

Optimum word is "try". If I succeed, I'm far better off.

If the attempt fails, I'm right where you describe, and will suffer some damage (arrest/lawyer cost/confiscation), but I (as you pointed out) also don't see enough evidence for a successful prosecution. (Unless you do something stupid like post pictures of yourself on FACEBOOK buying mags at the Cheyenne Cabella's ) [fail]

Analogy:
We've all tried to talk our way out of a speeding (or other) ticket...sometimes successful, sometimes not...sometimes we even get off with a warning.
I see this as an attempt to do the same thing...

I do like your position of "I don't have to answer any questions" and the other poster's "I do not consent to a search of my car."
Less info volunteered (including the receipt I proposed) is often a legally safer route.
The law has so many holes....let's hope the sheriffs are successful at gettng it addressed for us[Beer]

[Great-Kazoo]

its illegal to have someone mail your property to you that you legally owned before hand? its illegal to bring property back with you that you legally owned before hand? where is the illegal act? thats the question. don't have to be such a dick jesus.

Your first mistake is publicly inquiring if what you want to do is legal or not. Your second one is not consulting with an attorney.
All my paperwork was lost in the tornado 5 years ago.

[flogger]

So whats happening with the lawsuit filed by the 50 + Colorado Sherrifs against the State on the gun law? I know it's mentioned in another post but, wont that have some impact on inforcement of the magazine 'ban'? The State had 30 days and I haven't heard a peep.

[MarkCO]

There was an injunction granted by the Judge based on the lawsuit, but the lawsuit is still pending. However several on here say that the Judges order, nor the AGs memo, which is specifically included in the injunction, has the weight of law. If you read the court records, you can understand what is and is not being enforced and the status. Heck even the guys on ARFcom were able to make sense of it correctly.

[spqrzilla]

its illegal to have someone mail your property to you that you legally owned before hand? its illegal to bring property back with you that you legally owned before hand? where is the illegal act? thats the question. don't have to be such a dick jesus.
Your description of how you've had your magazines kept does not appear to match even the Attorney General's "guidance" - which we've been discussing - on the meaning of continuous possession, that's the point.

[spqrzilla]

However several on here say that the Judges order, nor the AGs memo, which is specifically included in the injunction, has the weight of law. If you read the court records, you can understand what is and is not being enforced and the status. Heck even the guys on ARFcom were able to make sense of it correctly.

If you are referring to my comments, you did not correctly paraphrase them.

[tmckay2]

Your description of how you've had your magazines kept does not appear to match even the Attorney General's "guidance" - which we've been discussing - on the meaning of continuous possession, that's the point.

so if a soldier is out of state or better yet out of country on business (war) for several months, he can no longer possess magazines? what if he lives in a different state now and gets transferred to colorado? not much different than my situation except i don't work for the government.

[spqrzilla]

so if a soldier is out of state or better yet out of country on business (war) for several months, he can no longer possess magazines? what if he lives in a different state now and gets transferred to colorado? not much different than my situation except i don't work for the government.

Well, its one of the reasons that the law is so oppressive and objectional. You can try to conform to the AG's "guidance" whether or not you accept my opinion that its not really worth much.

[tmckay2]

i realize everyone is in freak mode and i agree its not safe to just assume anything with the gov, but i really don't forsee people getting into serious legal trouble when they have zero record and the gov can't prove they didn't own them all along. obviously the law is stupid, we all know that, but good luck being able to prosecute just about anyone on it. its nearly impossible. the only thing it really does is make it impossible for us to openly buy them both locally and online.

[def90]

It's not your responsibility to prove anything, it's the prosecutions responsibility.

Yes.. but your defense and your attorney bills will kill you. My take on all of this is yes, it is up to the state to prove you are guilty but at what expense will it cost out of your pocket? I'm guessing someone will be charged, their mags and maybe even gun will be seized and charges will be filed. At that point you will contact a lawyer and the lawyer will tell you what it will cost to go to trial or what it will cost to plea to some lesser charge. At that point it will become a decision based on economics and even though you never end up at trial the gov keeps your stuff.

[spqrzilla]

i realize everyone is in freak mode and i agree its not safe to just assume anything with the gov, but i really don't forsee people getting into serious legal trouble when they have zero record and the gov can't prove they didn't own them all along. obviously the law is stupid, we all know that, but good luck being able to prosecute just about anyone on it. its nearly impossible. the only thing it really does is make it impossible for us to openly buy them both locally and online.

You are 99.5% right. And the day that the local cop decides he's gonna jam you for something because he does not like your attitude? And the District Attorney decides that he's not gotten enough TV time recently? That's the 0.5% day.

[belizejet]

How about I just leave my magazine with my buddy in Texas. Drive back to Colorado be totally legal, get to keep my gun, no hassle. The firearms are not illegal, only the magazine. Next time I go back hunting with him I can use my magazine I left at his place.