How Boulder County screwed my friend out of ever owning firearms again.

[Ingman]

Please do not quote the below if you reply. I would like to maintain the ability to edit this for accuracy if needed.

I'm going to tell the story of how a friend of mine was screwed over by Boulder County. I have his permission to post about what happened. Many details are being glossed over or omitted, but this should be a fairly accurate account of the general facts.

To keep from typing "my friend" over and over, I'm going to call him "K" (after Josef K in The Trial by Kafka).

One evening K was in his apartment and had an unintended discharge of his firearm. I'm purposely using the word "unintended" as it sidesteps the "negligent" vs "accidental" discussion. There was never any evidence to the contrary of it being unintended. The bullet entered an adjacent apartment. There were no injuries and there was no property damage other than to the wall. K went to the neighbor's apartment, they had a brief discussion, and then K returned to his apartment. The neighbor called the police. When the police arrived K answered a few of their questions, including answering "yes" to "have you had anything to drink tonight?". He declined permission to police to enter his apartment. K was arrested, a warrant to search his apartment was obtained, and his firearm collection was seized. There was never any sort of test given to determine blood alcohol content.

Ask yourself what you would expect the legal outcome of these events to be?

After K obtained bail he hired an attorney to represent him. It took some time for the Boulder County District Attorney to decide what the charges would be, but eventually K was charged with a long list of violations. The key violations he was charged with were the felony charge of "Illegal discharge of a firearm" (CRS 18-12-107.5) and the misdemeanor charge of "Prohibited use of weapons" (CRS 18-12-106). The felony charge took K quite by surprise. While nobody ever wants to have an unintended discharge, one wouldn't expect that such an event would be treated as a felony.

CRS 18-12.107.5 was passed in 1993 as part of an act dealing with juvenile and gang-related crime. It applies to a person who "knowingly or recklessly discharges a firearm into any dwelling or any other building or occupied structure". There is Colorado court precedent that states it "was intended to punish random drive-by and walk-by gunfire directed at occupied structures or vehicles from outside such premises or vehicles".

CRS 18-12-106 applies to several things, including a person who "recklessly or with criminal negligence .. discharges a firearm" or "has in his or her possession a firearm while the person is under the influence of intoxicating liquor".

K instructed his attorney to seek a plea bargain that did not involve a felony charge. The DA offered a deferred sentence for the felony charge if K were to plead guilty to the misdemeanor.

At this point it is necessary to discuss what a deferred sentence is in the State of Colorado. The basic idea is that the defendant makes a guilty plea to the court, but that the court does not actually issue a judgment of guilty. The defendant then has to satisfy the particular terms of the deferred sentence; usually some period of time on probation, perhaps some amount of community service, perhaps pay some sort of restitution. After the completion of the terms of the deferred sentence the defendant withdraws the guilty plea and the charges involved are dismissed.

What you think the long-term consequences of a deferred sentence are, after the guilty plea has been withdrawn and the charges are dismissed?

It turns out that Colorado law makes a distinction between "conviction" and "judgment of conviction". Once that initial guilty plea is made, you are forever considered to be "convicted", even if the plea is later withdrawn and no "judgment of conviction" is ever issued by a court. Colorado precedent establishes that once you complete a felony deferred sentence you can never again possess firearms in Colorado. Federal law, at least as interpreted by the ATF, says that you can also never possess firearms in any other state.

So, back to my friend K. After some research he realizes what the full consequences of this plea bargain will be. Effectively, although the felony charges will ultimately be dismissed, he will forever be considered a felon by certain parts of the criminal code (there are other effects beyond firearms). K's attorney makes some attempts to obtain a more favorable plea bargain, but the DA does not budge from the initial offer.

At this point, K has spent approximately $30k on this unintended discharge case. He has been offered a plea bargain that will forever prohibit him from possessing firearms. Taking the case to court will cost an additional $100k, and while his attorney thinks the felony charge can be beat it isn't assured.

What would you do given this choice?

K took the plea.

When I look at this situation, as an outsider, I can't fault K for the decision he made. But I am astonished and outraged that the Boulder County District Attorney decided to treat this as a felony case and hold the threat of felony prosecution over K's head. In my opinion, the misdemeanor 18-12-106 statute is what should have covered this situation; it deals with both the discharge of a firearm and the accused possession while intoxicated. The felony 18-12.107.5 statute was not used as intended (to punish gang-related drive-by shootings) but was instead used to treat an unintended discharge as a felony.

And that, my friends, is how Boulder County screwed K out of ever owning firearms again.

Please do not quote the above if you reply. I would like to maintain the ability to edit this for accuracy if needed.

[flyingcouch]

Mistakes with firearms are not an option, for many reasons. This situations sucks on many levels.

[merl]

What would I do, I'll answer that if it happens.. damn.

Doubt it'd actually do anything but I suggest that goes to every newspaper and other media outlet with some minor changes (How Boulder County made my friend a Felon). Throwing every charge at someone knowing most wont stick is common though. Law knows you cannot afford to fight it and the more things they toss on initially the better the resulting plea.

[Sawin]

Thanks for the story and the insight into how terribly misaligned at least one DA in CO is... It thoroughly disgusts me but I am not exactly surprised.

I do have 1 question however... if K had answered "No", that he had not had any alcohol that evening, would the story and/or charges have ended differently?

[Great-Kazoo]

When the police arrived K answered a few of their questions, including answering "yes" to "have you had anything to drink tonight?".

The YES AND answering their questions, were his 1st mistake.

ATTORNEY.................. NEVER ADMIT TO ANYTHING................................ATTORNEY.

[newracer]

His first mistake was talking to the police without an attorney.

[Colorado_Outback]

His first mistake was talking to the police without an attorney.

Yep.

Nobody ever did 5-10 for asserting their right to remain silent.

[Ronin13]

It's a crap situation either way you slice it. Had he not taken the plea and actually taken the case to trial, I'm pretty sure, it being Boulder and all, he would run the risk of a felony conviction and not only lose the firearms right, but a host of others too... But is the risk worth it? He could have beaten the felony charge and only been convicted of the M2 which carries a county sentence of 3-12 months if the judge feels like imposing a jail sentence. Not sure what I would have done if I were in that situation, but odds are I'd probably take the fight to court instead of letting the DA screw me over (which I know a few here in Jeffco, odds are they'd probably work something more favorable out).

[hatidua]

If a school board can permanently put "sexual harassment" on a six year old's school records for merely kissing a classmates hand, no penalty for firearms offenses will surprise me, regardless of state/county/city.

[Squeeze]

When the police arrived K answered a few of their questions, including answering "yes" to "have you had anything to drink tonight?".

The YES AND answering their questions, were his 1st mistake.

ATTORNEY.................. NEVER ADMIT TO ANYTHING................................ATTORNEY.

^^^THIS.

This is a hell of a hard lessoned learned. ANY time I'm handling my firearms, I make sure there's been no drinking involved. Second, I also make sure I use "snap caps" or "dummy rounds" when conducting dry-fire practice. If you give Uncle Murphy an opportunity to walk in and shit on your day...he will.

[sniper7]

I would have fought it

[OneGuy67]

I am going to politely disagree with your assertion on the deferred and dismissed (D&D) felony charge.

I also have a friend charged with the same crimes in Boulder county that occurred in 2005 (ish). Almost same set of facts: intoxicated, playing with a loaded firearm, shot a round into the neighbors house. He pled the same way and after six months of weekend stayovers at the Boulder County jail, two years of probation, and other assorted classes he was required to take, the felony charge was withdrawn. He is able to purchase firearms and recently did so in my presence.

Can you provide any citation for the following statement as I would like to see where it is referenced:

"It turns out that Colorado law makes a distinction between "conviction" and "judgement of conviction". Once that initial guilty plea is made, you are forever considered to be "convicted", even if the plea is later withdrawn and no "judgement of conviction" is ever issued by a court. Colorado precedent establishes that once you complete a felony deferred sentence you can never again possess firearms in Colorado. Federal law, at least as interpreted by the ATF, says that you can also never possess firearms in any other state."

[Ingman]

Can you provide any citation for the following statement as I would like to see where it is referenced:

"It turns out that Colorado law makes a distinction between "conviction" and "judgment of conviction". Once that initial guilty plea is made, you are forever considered to be "convicted", even if the plea is later withdrawn and no "judgment of conviction" is ever issued by a court. Colorado precedent establishes that once you complete a felony deferred sentence you can never again possess firearms in Colorado. Federal law, at least as interpreted by the ATF, says that you can also never possess firearms in any other state."

See Hafelfinger v. Dist. Court which reads:


"In the context of a deferred judgment and sentence, a "conviction" occurs upon the acceptance by the trial court of the defendant's plea of guilty; whereas, a "judgment of conviction" occurs, if at all, when it is determined that the defendant has violated the conditions of the deferred judgment and sentence, in which case the trial court must impose a sentence."


See also People v. Allaire which reads:

"Section 18-12-108 applies to persons “previously convicted.” It contains no reference to judgment or judgment of conviction. We conclude that the phrase “previously convicted,” in § 18-12-108 does not refer to a previous judgment of conviction. The element is satisfied by proof of a guilty plea and deferred judgment; a judgment of conviction and sentencing are not required"



I am not a lawyer and I'm not going to speculate on how your friend and K may be different, but the precedent on this matter suggests that your friend may wish to consult an attorney regarding the legality of his firearm possession. My limited understanding is that this situation does not create an entry in any database that will prevent one from passing the background check, but that possession remains illegal unless (and this is a gray area) the court records are sealed. The specifics of K's case (and your friend's as you describe it) mean that those records aren't eligible for sealing. You can contact me via PM if you want more explanation.

[Dave_L]

All I know is this is why you don't mix any alcohol with firearms. No if/and/but's. Unfortunate for your friend but he's lucky the bullet didn't hit anyone. Most unintended discharge stories start with "I only had a couplefew beers...". Save it for when you're done.

[buckshotbarlow]

when i was a juvy, i got busted for shooting pdogs under reckless endangerment, but not the felony one in the people republic of boulder. First time dealing with the law...Took the deal with the da same thing as your buddy...Never again will i deal with crap of pleading and talking to the cops. It's call the lawyer for anything, and go into debt to pay off a fucking attorney...

[clublights]

I am not a lawyer and I'm not going to speculate on how your friend and K may be different, but the precedent on this matter suggests that your friend may wish to consult an attorney regarding the legality of his firearm possession. My limited understanding is that this situation does not create an entry in any database that will prevent one from passing the background check, but that possession remains illegal unless (and this is a gray area) the court records are sealed. The specifics of K's case (and your friend's as you describe it) mean that those records aren't eligible for sealing. You can contact me via PM if you want more explanation.

Bolded part


Not True. Any felony arrest will show on NCIC and will show the court result of said arrest including deferred sentences.

[Hummer]

I read about the case when it was reported in the news. I'd take it to trial, anything to avoid a felony. If I were on the jury, he'd beat the felony BS. It would also be worth appeal on grounds of malicious prosecution. DA's often see part of their job as lining the pockets of their fellow attorneys by pushing inappropriate charges and thus spreading the work (spoils) around. Stealing from the poor is a game to them, and it sure beats making an honest living. From what I've seen, the vast majority of the Boulder lawyer community is a corrupt cabal of liars, cheats and thieves.

[clublights]

From what I've seen, the vast majority of the Boulder lawyer community is a corrupt cabal of liars, cheats and thieves.


And those are the good ones [ROFL2]

[crashdown]

So.....
Something happened, and was left out regarding the "discussion" with the neighbors.
They didn't call the police when a bullet entered their apartment, but did after the "discussion" with K?
Sounds like something was said or done during that encounter that escalated this whole thing.

[asmo]

I'm purposely using the word "unintended" as it sidesteps the "negligent" vs "accidental" discussion.


There is no such thing as "unintended" and "accidental" discharge... There is only negligent and intentional.

That's it - nothing else.

Decisions and actions have consequences.

[OneGuy67]

See Hafelfinger v. Dist. Court which reads:

"In the context of a deferred judgment and sentence, a "conviction" occurs upon the acceptance by the trial court of the defendant's plea of guilty; whereas, a "judgment of conviction" occurs, if at all, when it is determined that the defendant has violated the conditions of the deferred judgment and sentence, in which case the trial court must impose a sentence."


See also People v. Allaire which reads:

"Section 18-12-108 applies to persons “previously convicted.” It contains no reference to judgment or judgment of conviction. We conclude that the phrase “previously convicted,” in § 18-12-108 does not refer to a previous judgment of conviction. The element is satisfied by proof of a guilty plea and deferred judgment; a judgment of conviction and sentencing are not required"



I am not a lawyer and I'm not going to speculate on how your friend and K may be different, but the precedent on this matter suggests that your friend may wish to consult an attorney regarding the legality of his firearm possession. My limited understanding is that this situation does not create an entry in any database that will prevent one from passing the background check, but that possession remains illegal unless (and this is a gray area) the court records are sealed. The specifics of K's case (and your friend's as you describe it) mean that those records aren't eligible for sealing. You can contact me via PM if you want more explanation.

Hafelfinger is a 1984 decision and there have been a number of decisions since based upon it. None of them are indicative of how you are interpreting it from what I've read so far.

Upon charging in court, there is a record of the original charges that are available in CCIC/NCIC that the Instacheck techs in CBI immediately see, to include whether they are felonies or misdemeanors. They then have to research the finality of the case to its conclusion through the same court record. If that record shows a dismissal, they will authorize a purchase. Court records are only sealed from the general public, not law enforcement, so your point about sealing isn't correct.

[clublights]

Hafelfinger is a 1984 decision and there have been a number of decisions since based upon it. None of them are indicative of how you are interpreting it from what I've read so far.

Upon charging in court, there is a record of the original charges that are available in CCIC/NCIC that the Instacheck techs in CBI immediately see, to include whether they are felonies or misdemeanors. They then have to research the finality of the case to its conclusion through the same court record. If that record shows a dismissal, they will authorize a purchase. Court records are only sealed from the general public, not law enforcement, so your point about sealing isn't correct.


Incorrect.

The NCIC has the court stuff on it .


I know because that is what is on mine.

[OneGuy67]

Incorrect.

The NCIC has the court stuff on it .


I know because that is what is on mine.

Sigh...isn't that what I said "They then have to research the finality of the case to its conclusion through the same court record." If you've ever actually seen a court record in CCIC/NCIC, you would know one has to scroll through the court record until you obtain the conclusion of the court case. At the end of the court record, it will show the plea, the conviction, the court's determination, any fees, etc.

And just to be clear, I look at these court records nearly every single day.

[OneGuy67]

Maybe one of our member attorneys like spqrzilla can assist in the interpretation of the state supreme court decision...

[flogger]

I'd fight the felony charges for all it's worth. You have to ask yourself what you would have done if you were the neighbor.

[clublights]

Sigh...isn't that what I said "They then have to research the finality of the case to its conclusion through the same court record." If you've ever actually seen a court record in CCIC/NCIC, you would know one has to scroll through the court record until you obtain the conclusion of the court case. At the end of the court record, it will show the plea, the conviction, the court's determination, any fees, etc.

And just to be clear, I look at these court records nearly every single day.


My NCIC ( which I have a copy of right here )


has the arrest .. then the court out come. all on the same piece of paper ( well technically it is on a second sheet but that is because of the first one running out of lines) not much to research it is literally right there.

[JM Ver. 2.0]

I'd fight the felony charges for all it's worth. You have to ask yourself what you would have done if you were the neighbor.

Went ape shit and probably called the police.

People like "K" are the ones that give gun owners a bad name.....

Alcohol and guns don't mix...

Sent from my teepee using smoke signals.

[OneGuy67]

My NCIC ( which I have a copy of right here )


has the arrest .. then the court out come. all on the same piece of paper ( well technically it is on a second sheet but that is because of the first one running out of lines) not much to research it is literally right there.

And not to beat a dead horse, but NCIC actually doesn't keep any records; it is a clearinghouse for state held and federally held records. When one accesses NCIC, it will provide you with information on that particular party and whether they have a criminal history and in what state and provide a state Criminal History ID number for that person. You then request information from that particular state.

[OneGuy67]

Some states do put dispositions on their criminal histories, but not all do and they are not always accurate. In Colorado, it is hit or miss. The actual court case is looked up in COCourts or ICON or CCIC to determine the disposition.

So what you possess is actually a copy of that particular state's record.

[clublights]

Ok Fair ..


I should have said " FBI Report" ( FBI Letter head and watermark thru out)

since I went had prints taken and sent them to the FBI and they sent me this report ( well sent it to the folks that took my prints... then they gave it to me ... took all of 20 mins)

And the case was in New Mexico . so maybe that is why we are " butting heads"

[RonMexico]

I know a guy who shoot a handgun in his apartment when he was attempting to clean his gun.Yep, didn't inspect the chamber after dropping the mag. He called the cops on himself bc he couldn't get a hold of his neighbor below him..... They took his gun and charges him with a single count of something( forget). Goes to court and has to take a class and pay a fine but otherwise all charges were drop. 6 months later he got his firearm back. His only real punishment was he got evicted but still had to pay off his lease.
This was arapahoe county I think

btw this wasn't me

[hatidua]

I haven't touched one off unintentionally but this thread should be a reminder that checking, and re-checking, and re-checking the chamber AGAIN is time well spent.

[clublights]

I haven't touched one off unintentionally but this thread should be a reminder that checking, and re-checking, and re-checking the chamber AGAIN is time well spent.

+1

[CapLock]

Just ask to whom you give the money. That's all they really want.

[spqrzilla]

Two lessons - one is to understand the actual effect of a plea bargain. The second is to never live in Boulder County.

[jerrymrc]

I haven't touched one off unintentionally but this thread should be a reminder that checking, and re-checking, and re-checking the chamber AGAIN is time well spent.

+2 The statement "I thought it was unloaded" holds no water. It is sad what happened but always check and re-check.

[Ingman]

I didn't post the story to start a debate about what is or isn't in CCIC/NCIC records, I've never seen one of those records and can't claim first hand to know what is there. The information about a Colorado deferred sentence being a permanent disqualifier for firearm possession is from an attorney and precedent is available online.

My understanding of the conversation with the neighbor was that it was cordial, the neighbor did not know there had been a discharge until K explained, and that K offered to pay for any damages.

There is no evidence that alcohol was a factor in the discharge other than the admission that alcohol had been consumed at some point in the evening.


I haven't touched one off unintentionally but this thread should be a reminder that checking, and re-checking, and re-checking the chamber AGAIN is time well spent.


Without going into details, the discharge occurred while in the process of following your above suggestion.

[BPTactical]

Without going into details, the discharge occurred while in the process of following your above suggestion.

Keep yo booger hook offada bang switch when clearing the firearm.

[gnihcraes]

Some states do put dispositions on their criminal histories, but not all do and they are not always accurate. In Colorado, it is hit or miss. The actual court case is looked up in COCourts or ICON or CCIC to determine the disposition.

So what you possess is actually a copy of that particular state's record.

Yep.

ICON is referenced when doing a background check. (integrated colorado online network) - Courts Database of each case, every day.

[kidicarus13]

My take on the story as you explained it... Your friend had an accidental discharge and the DA was overzealous during prosecution. Sounds about right for a left leaning county.

[ben4372]

Its happening. Who said it was easier to rule criminals?

[rbeau30]

I haven't touched one off unintentionally but this thread should be a reminder that checking, and re-checking, and re-checking the chamber AGAIN is time well spent.

+1

can NEVER be too sure. I think I read a reply in here about dummy rounds. I own ZERO dummy rounds. IMHO Dummy rounds are a recipe for disaster and another way to complicate things.

[ray1970]

"K" sounds like a pretty irresponsible individual. He's lucky he didn't kill somebody. I fully support people like him being denied the right to own firearms.

[tmckay2]

certainly all of us feel bad for the guy, but honestly what happened, whether an accident or not, is extremely serious. accidental discharge that goes through the wall and could have easily killed a neighbor? thats some serious stuff. revocation of firearm ownership isn't all that drastic, even though it was an accident. lots of people have had accidents with all sorts of things and sadly the punishment is sometimes severe. i don't even keep guns loaded in my house for this very reason, meaning no round in the chamber. it doesn't take long to rack the slide and the risk isn't worth it in my opinion.

[KestrelBike]

1st step: go to neighbor's house "OMG WHAT THE FUCK DID YOU DO???"

[james_bond_007]

At this point, it seems you are using this site and its members for opinions (seems reasonable) and legal advice (not such a good idea, IMHO, to seek legal advice from a public forum, especially when only your version of the story, which is also an abbreviated, opinionated, and non-professional/civilian interpretation of the facts and statutes, 2nd and 3rd hand at that, is made available). In short, even though your intention was to describe this accurately, you have not presented all the "facts".

Before deciding on how to proceed, I'd look for another criminal attorney and get a 2nd opinion, regarding the current/future ability to possess and purchase firearms.
Asking the attorneys on this forum for a recommendation of a good criminal attorney they respect and trust (even if it would be themselves) would be a great benefit, IMHO.

Please don't interpret this as my thinking the attorney involved doesn't know what he's taking about.

It's pretty much what I'd do if my doctor told me I had cancer...I'd first "double check it" with another doctor or two.

[spqrzilla]

I certainly had no intention of offering legal advice. [hahhah-no]

[beast556]

+1 I'm gonna have to agree with ray on this. He could of killed some one because he got drunk and decided to finger fuck his guns. Its a hard lesson to learn but when you do dumb shit that can kill some one you have to pay the price.




"K" sounds like a pretty irresponsible individual. He's lucky he didn't kill somebody. I fully support people like him being denied the right to own firearms.

[rockhound]

hmmm, drinking and handling your weapon is just not wise, anyone who owns a firearm should know better that to handle a weapon after even one beer. put the gun down,

In my opinion the DA was over zealous, but your friend brought this on himself. living in an aprtment i think you would have an even greater responsibility.

[MED]

when i was a juvy, i got busted for shooting pdogs under reckless endangerment, but not the felony one in the people republic of boulder. First time dealing with the law...Took the deal with the da same thing as your buddy...Never again will i deal with crap of pleading and talking to the cops. It's call the lawyer for anything, and go into debt to pay off a fucking attorney...

This reminds me of my then seven year old son who fashioned a bow out of some sticks and was stalking prairie dogs in the field next to my old house. One of the neighbor's went off on him and called the police so he came home. There were several squad cars out there and a SWAT van. Fortunately, they didn't know where he went so we just hung out in the house and watched the show. People are really ridiculous sometimes.

[MED]

I am not too sure about your friend: drinking, firearms, loaded, apartment, Boulder. ...doesn't sound like very good decision making to me, which is why they probably were aggressive in charging him. Seriously, what in the hell was he thinking? I agree the outcome is harsh and a painful lesson, but there are consequences in life. He can still purchase black powder firearms.

[crashdown]

Hey Ingman....

Never saw you post anything about the question I asked a few pages back.
Why did the neighbors call the cops after the "discussion" with your buddy, not after a bullet flew into their home?

[davsel]

Hey Ingman....

Never saw you post anything about the question I asked a few pages back.
Why did the neighbors call the cops after the "discussion" with your buddy, not after a bullet flew into their home?

Answered in post # 37

[davsel]

Having lost my legal ability to own firearms for a 5 year period over BS DV statutes, I sympathize with "K."
If I had it to do over again, and my advice to "K" would have been, to fight it in court before a jury and pay the fees to a good attorney.
Losing a lot of money is one thing, losing your rights is much more difficult.

[Colorado_Outback]

At the end of the day "K" screwed himself, multiple times.

[crashdown]

Answered in post # 37


Damn... never even noticed the numbers before.
So neighbors did not even know he had fired a round, but then called the cops?
Sounds strange.

[BuffCyclist]

Stupid games, stupid prizes.

Reminds me of this story: http://www.huffingtonpost.com/2013/05/17/anastasia-adair-dead-dies-assault-rifle_n_3293336.html

Girl dies after being shot with an AK-47 at a house party.

Guns and alcohol don't mix. Period. I refuse to touch a firearm if I've had anything to drink, even to move one from over here to over there.

Sure, your friend may have felt like he was being honest to his neighbor (talking to them after it happened), and he may have thought he was being honest with the cops (admitting to drinking), but in this day and age, being honest doesn't get you anything.

eta: And yes, I also refuse to get behind the wheel of a car even if I've had one beer.

[hatidua]

It's often interesting to consider the event from different angles...including that of the apartment next door. Imagine if you were sitting at home watching TV with your spouse, and a bullet came zipping through the apartment wall.



-now how do y'all feel about K losing his right to own firearms?

Boulder "screwed your friend out of owning firearms"? -nope, your friend did the screwing all by his lonesome.

[Ingman]

At this point, it seems you are using this site and its members for opinions (seems reasonable) and legal advice (not such a good idea, IMHO, to seek legal advice from a public forum, especially when only your version of the story, which is also an abbreviated, opinionated, and non-professional/civilian interpretation of the facts and statutes, 2nd and 3rd hand at that, is made available). In short, even though your intention was to describe this accurately, you have not presented all the "facts".

Thanks for the comment. Definitely not asking for legal advice here. The events are in the past and it is up to K to seek his own legal counsel. Given that I'm posting the story third hand I hope it is clear to all that at best I'm writing based on limited and partial knowledge.


So neighbors did not even know he had fired a round, but then called the cops?

My understanding: Neighbor learned about the round after K came to check on neighbor. Not sure what neighbor's thought process was after K left. K and neighbor have not spoken since the event.

Interesting watching the comments added to the thread. It is natural for people to take a limited set of facts and apply their preconceptions to them, which leads to things being assumed that aren't necessarily true. I can be as guilty of that as the next person.

[Great-Kazoo]

Thanks for the comment. Definitely not asking for legal advice here. The events are in the past and it is up to K to seek his own legal counsel. Given that I'm posting the story third hand I hope it is clear to all that at best I'm writing based on limited and partial knowledge.



My understanding: Neighbor learned about the round after K came to check on neighbor. Not sure what neighbor's thought process was after K left. K and neighbor have not spoken since the event.

Interesting watching the comments added to the thread. It is natural for people to take a limited set of facts and apply their preconceptions to them, which leads to things being assumed that aren'tnecessarily true. I can be as guilty of that as the next person.

When you "report" something THIRD HAND. What the fuk do you expect? [facepalm]

[hatidua]

Interesting watching the comments added to the thread. It is natural for people to take a limited set of facts and apply their preconceptions to them

-he fired a round into someone else's residence. If one of my neighbors did that to my home, I would hope they lose their right to own firearms as I would not want to see if I could win the lottery twice and live through the next discharge.

[Great-Kazoo]

-he fired a round into someone else's residence. If one of my neighbors did that to my home, I would hope they lose their right to own firearms as I would not want to see if I could win the lottery twice and live through the next discharge.

Don't waste your time. the OP post less than 5x a month, has a fit because we're USING A LIMITED SET OF FACTS. [panic]

[Snowman78]

I am an insurance adjuster, so just for some compare and contrast I am attaching a police report for a claim I am working.

THIS IS ALL PUBLIC RECORD
AND I HAVE REDACTED ALL PERSONAL INFO

3803538037

[MarkCO]

"It turns out that Colorado law makes a distinction between "conviction" and "judgement of conviction". Once that initial guilty plea is made, you are forever considered to be "convicted", even if the plea is later withdrawn and no "judgement of conviction" is ever issued by a court. Colorado precedent establishes that once you complete a felony deferred sentence you can never again possess firearms in Colorado. Federal law, at least as interpreted by the ATF, says that you can also never possess firearms in any other state."

I waited a while after reading this thread and after having spoken with a criminal attorney and a ex-county prosecutor, they both think the above assertion is incorrect, as did I. I personally know more than one person who had felony deferred sentences and who are not currently prohibited from the owning, possession or purchase of firearms. I think your friend needs to focus on this issue and get better advice to be sure. A plea to a non-felony charge, as deferred would be better of course, but I understand why a DA would not offer that.

Neither one of your case summary quotes supports your assertion either. The judgement of conviction only kicks in if the probation terms are not satisfied.

[Ingman]

I am an insurance adjuster, so just for some compare and contrast I am attaching a police report for a claim I am working.

THIS IS ALL PUBLIC RECORD
AND I HAVE REDACTED ALL PERSONAL INFO

3803538037

Interesting. This is more what I would have expected. Thanks.

[Ingman]

I waited a while after reading this thread and after having spoken with a criminal attorney and a ex-county prosecutor, they both think the above assertion is incorrect, as did I. I personally know more than one person who had felony deferred sentences and who are not currently prohibited from the owning, possession or purchase of firearms. I think your friend needs to focus on this issue and get better advice to be sure. A plea to a non-felony charge, as deferred would be better of course, but I understand why a DA would not offer that.

Neither one of your case summary quotes supports your assertion either. The judgement of conviction only kicks in if the probation terms are not satisfied.


At the risk of sounding like I was seeking advice, I will pass this information along. Thanks.

[Ingman]

Don't waste your time. the OP post less than 5x a month, has a fit because we're USING A LIMITED SET OF FACTS. [panic]

What fit? I've enjoyed the thread and pretty much all the posts. I think some of the comments are interesting in saying "oh, X clearly must have happened" when X didn't happen. But that's human nature.

[DavieD55]

I know a state trooper from Jeffco County who did the same thing. He had negligent discharge while drinking and handling a pistol. The Arvada policia showed up and just told him not to do it again.

[flogger]

When things like this happen it should make everyone think about safety when even THINKING about handling guns. It's a story I wont forget for a while. Kind of like driving by bad car wreck, it's a refresher if not a wake-up call. TAKE NOTE!

Even though no one was hurt, the law is not going to go the 'no harm, no foul' route on this one. Best of luck to K.

[Ah Pook]

Boulder "screwed your friend out of owning firearms"? -nope, your friend did the screwing all by his lonesome.
From the info given, that is what I'm coming up with as well. Doesn't make for an inflammatory title though.

[JM Ver. 2.0]

Please do not quote the below if you reply. I would like to maintain the ability to edit this for accuracy if needed.

I'm going to tell the story of how a friend of mine was screwed over by Boulder County. I have his permission to post about what happened. Many details are being glossed over or omitted, but this should be a fairly accurate account of the general facts.

To keep from typing "my friend" over and over, I'm going to call him "K" (after Josef K in The Trial by Kafka).

One evening K was in his apartment and had an unintended discharge of his firearm. I'm purposely using the word "unintended" as it sidesteps the "negligent" vs "accidental" discussion. There was never any evidence to the contrary of it being unintended. The bullet entered an adjacent apartment. There were no injuries and there was no property damage other than to the wall. K went to the neighbor's apartment, they had a brief discussion, and then K returned to his apartment. The neighbor called the police. When the police arrived K answered a few of their questions, including answering "yes" to "have you had anything to drink tonight?". He declined permission to police to enter his apartment. K was arrested, a warrant to search his apartment was obtained, and his firearm collection was seized. There was never any sort of test given to determine blood alcohol content.

Ask yourself what you would expect the legal outcome of these events to be?

After K obtained bail he hired an attorney to represent him. It took some time for the Boulder County District Attorney to decide what the charges would be, but eventually K was charged with a long list of violations. The key violations he was charged with were the felony charge of "Illegal discharge of a firearm" (CRS 18-12-107.5) and the misdemeanor charge of "Prohibited use of weapons" (CRS 18-12-106). The felony charge took K quite by surprise. While nobody ever wants to have an unintended discharge, one wouldn't expect that such an event would be treated as a felony.

CRS 18-12.107.5 was passed in 1993 as part of an act dealing with juvenile and gang-related crime. It applies to a person who "knowingly or recklessly discharges a firearm into any dwelling or any other building or occupied structure". There is Colorado court precedent that states it "was intended to punish random drive-by and walk-by gunfire directed at occupied structures or vehicles from outside such premises or vehicles".

CRS 18-12-106 applies to several things, including a person who "recklessly or with criminal negligence .. discharges a firearm" or "has in his or her possession a firearm while the person is under the influence of intoxicating liquor".

K instructed his attorney to seek a plea bargain that did not involve a felony charge. The DA offered a deferred sentence for the felony charge if K were to plead guilty to the misdemeanor.

At this point it is necessary to discuss what a deferred sentence is in the State of Colorado. The basic idea is that the defendant makes a guilty plea to the court, but that the court does not actually issue a judgment of guilty. The defendant then has to satisfy the particular terms of the deferred sentence; usually some period of time on probation, perhaps some amount of community service, perhaps pay some sort of restitution. After the completion of the terms of the deferred sentence the defendant withdraws the guilty plea and the charges involved are dismissed.

What you think the long-term consequences of a deferred sentence are, after the guilty plea has been withdrawn and the charges are dismissed?

It turns out that Colorado law makes a distinction between "conviction" and "judgment of conviction". Once that initial guilty plea is made, you are forever considered to be "convicted", even if the plea is later withdrawn and no "judgment of conviction" is ever issued by a court. Colorado precedent establishes that once you complete a felony deferred sentence you can never again possess firearms in Colorado. Federal law, at least as interpreted by the ATF, says that you can also never possess firearms in any other state.

So, back to my friend K. After some research he realizes what the full consequences of this plea bargain will be. Effectively, although the felony charges will ultimately be dismissed, he will forever be considered a felon by certain parts of the criminal code (there are other effects beyond firearms). K's attorney makes some attempts to obtain a more favorable plea bargain, but the DA does not budge from the initial offer.

At this point, K has spent approximately $30k on this unintended discharge case. He has been offered a plea bargain that will forever prohibit him from possessing firearms. Taking the case to court will cost an additional $100k, and while his attorney thinks the felony charge can be beat it isn't assured.

What would you do given this choice?

K took the plea.

When I look at this situation, as an outsider, I can't fault K for the decision he made. But I am astonished and outraged that the Boulder County District Attorney decided to treat this as a felony case and hold the threat of felony prosecution over K's head. In my opinion, the misdemeanor 18-12-106 statute is what should have covered this situation; it deals with both the discharge of a firearm and the accused possession while intoxicated. The felony 18-12.107.5 statute was not used as intended (to punish gang-related drive-by shootings) but was instead used to treat an unintended discharge as a felony.

And that, my friends, is how Boulder County screwed K out of ever owning firearms again.

Please do not quote the above if you reply. I would like to maintain the ability to edit this for accuracy if needed.

Just because I'm an asshole and I don't believe your reason for wanting no one to quote the original......

Sent from my teepee using smoke signals.

[ray1970]

You're not an asshole, JM. You just like causing trouble.

[Beer]

[JM Ver. 2.0]

You're not an asshole, JM. You just like causing trouble.

[Beer]

That's not even it this time....


Stuff like this pisses me off.


Gun owners get a bad name because of stupid shit like this.

The dude could have killed someone. Obviously the dude isn't responsible enough to own a gun.

The same goes for cops. I've seen some stupid ones.

To try and defend this dude's actions and say that he should still be allowed to own a gun is down right stupid.

These are the people that cause the bad name we get. These are the people that will be used as examples by the anti gun crowd.

You really want to give this guy another chance at being a moron?

Maybe next time he can live next door to you.

Sent from my teepee using smoke signals.

[ray1970]

You really want to give this guy another chance at being a moron?

Maybe next time he can live next door to you.


Certainly, these comments weren't directed at me.

If you look back through all this crap at my original response you'll see I am in favor of keeping firearms out of the hands of idiots.

[ChunkyMonkey]

Yep.. another +1 for the Boulder County imho.

[ben4372]

Everyone needs a second chance. This guy is likely young. Does this really need to follow him forever. This is a big mistake, but we should all be worried about the government making so many felons.

[funkymonkey1111]

$130K for a this case? man, i'm in the wrong line of work