Colorado man charged for having high-capacity magazine

[jdranchman]

http://www.9news.com/story/news/crime/2015/11/02/large-magazine-charge/75033338
(http://www.9news.com/story/news/crime/2015/11/02/large-magazine-charge/75033338/)
It looks like that had to do something after the psychologist report about his intentions...

[Skip]

Well, they found their edge case. And the way the story is written is sounds like that law really saved the day. "See, the law worked!"

Never mind the involuntary hold, threats against the school, etc... And we're not supposed think past what happens once he's out. I'm sure "high capacity" magazines are the only way this crazy guy can hurt people.

I don't see a way we can defend our rights with so many crazies and the willingness of the media to hype every story. Between this and the Co Springs story it's shaping up to get a lot worse here.

[Great-Kazoo]

Well, they found their edge case. And the way the story is written is sounds like that law really saved the day. "See, the law worked!"

Never mind the involuntary hold, threats against the school, etc... And we're not supposed think past what happens once he's out. I'm sure "high capacity" magazines are the only way this crazy guy can hurt people.

I don't see a way we can defend our rights with so many crazies and the willingness of the media to hype every story. Between this and the Co Springs story it's shaping up to get a lot worse EVERYWHERE.

[Danimal]

Deleted

[Great-Kazoo]

I just read this too. By the way it is written, I cannot tell what they have. Did they find a date stamped mag? That is the only way that I can see this happening.

But the bigger picture is that the successfully followed up on some death threats? If that is the case it did not matter if he had 50 round drum mags or a single shot break action shot gun.

I would be really interested to know the specifics of these death threats. It could go either way. Either this guy was crazy and the the correct steps happened to prevent a shooting, or maybe he got a little too talkative about his shooting hobby and someone got scared resulting in a search and seizure of his property. Kinda a scary thought if it was the latter.

The guy was a felon who was just RELEASED on bond, after making threats to FRCC. Why he was let out when the "evidence" was supposedly overwhelming is beyond me. YET there's how many "bikers" stuck with $$ Million dollar bail in TX.

[newracer]

He is a convicted felon and a prohibited person. So anything he had was illegal anyways. It will be interesting to see if the magazine charge stands.

http://www.coloradoan.com/story/news/2015/10/27/man-arrested-allegedly-threatening-front-range-cc/74692168/

[Rooskibar03]

No mention of felony record from our friends at the Denver post. Just a headline screaming "we got one" with a magazine charge.

[colorider]

"Moscow was taken into police custody from the 72-hour hold on suspicion of educational interference, illegal possession of a weapon and possession of a large-capacity magazine, which is illegal in Colorado"

Media getting it wrong once again. They need a refresher course on the magazine law. So freaking irritating.

[Martinjmpr]

"Moscow was taken into police custody from the 72-hour hold on suspicion of educational interference, illegal possession of a weapon and possession of a large-capacity magazine, which is illegal in Colorado"

Media getting it wrong once again. They need a refresher course on the magazine law. So freaking irritating.

This. The fact that he was "under suspicion" of violating the law doesn't mean he will actually be charged or that even if he is charged that the charges won't later be dropped. Seems to me that unless there's some objective evidence that he acquired the mag AFTER 1 JUL 13 (like a receipt from a gun store in Cheyenne dated 9/30/15 for a 30 round mag) the only way they can convict him is if he is dumb enough to admit that he acquired the mag after that date (and I'll acknowledge that he may, in fact, be just that dumb.)

Also felons can't possess firearms but there's no law against felons possessing magazines or other firearm parts.

[Great-Kazoo]

This. The fact that he was "under suspicion" of violating the law doesn't mean he will actually be charged or that even if he is charged that the charges won't later be dropped. Seems to me that unless there's some objective evidence that he acquired the mag AFTER 1 JUL 13 (like a receipt from a gun store in Cheyenne dated 9/30/15 for a 30 round mag) the only way they can convict him is if he is dumb enough to admit that he acquired the mag after that date (and I'll acknowledge that he may, in fact, be just that dumb.)

Also felons can't possess firearms but there's no law against felons possessing magazines or other firearm parts.

They cannot be in possession of anything firearm related. Including items such as Mace / pepper spray, all parole violations.

[colorider]

The biggest fail of the reporting is the fact they are implying that a high capacity magazine is not legal in colorado. Their statements and headlines are wrong. Either they forgot to write down some details, or they are simply spewing false information. Which is more likely the case. Anymore, facts and accurate reporting are not important. Rushing news out with eye grabbing headlines is.

[Martinjmpr]

They cannot be in possession of anything firearm related. Including items such as Mace / pepper spray, all parole violations.

Apples and oranges.

Convicted felon =/= on parole. Not all people on parole are convicted felons (some have only committed misdemeanors) and not all convicted felons are on parole.

Parole/Probation is essentially a contract between someone convicted of a crime and the State/DOC. The state can set the conditions and if the convict doesn't like it, he can sit in his cell until his sentence is over and then (assuming he hasn't done something to warrant being sentenced to a longer time) he is free to go. So in that circumstance, conditions like no alcohol, no associating with known felons, etc, can apply because parole is basically the person being released early from prison subject to certain conditions.

Once their sentence has been served and they are released from the custody of the DOC the only restrictions on their behavior are those written in law.

18 U.S.C section 922 (g) prohibits convicted felons from possessing "firearms" and ammunition only. And 18 U.S.C section 921 defines "firearm" as follows:


(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.


Even under state law CRS 18-12-108 makes it a crime for a felon to possess a "Firearm" which is defined pretty much the same way as it's defined in 18 U.S.C section 921.

There's no provision under the mag ban CRS 18-12-303 that specifically applies to felons.

So a convicted felon who is not on parole certainly can possess a high capacity magazine legally as long as he possessed it before 1 July 2013.

He can't possess the weapon that magazine goes to, nor can he possess ammo, but he can possess the magazine. Also every other part of the gun except the receiver.

[RblDiver]

I think it's a case of them throwing as much at him as possible in the hopes that stuff sticks. Sort of like when, I want to say ~6 months ago, a homeowner shot a bear in his backyard, they threw a ton of rather bogus charges in the hopes that one'd go through (iirc, they ended up throwing out each of those charges).

[battle_sight_zero]

Good points. Yes he is bad guy. But once they start pushing the mag law charges others in law enforcement will start to use it in other cases and situations.

[battle_sight_zero]

This. The fact that he was "under suspicion" of violating the law doesn't mean he will actually be charged or that even if he is charged that the charges won't later be dropped. Seems to me that unless there's some objective evidence that he acquired the mag AFTER 1 JUL 13 (like a receipt from a gun store in Cheyenne dated 9/30/15 for a 30 round mag) the only way they can convict him is if he is dumb enough to admit that he acquired the mag after that date (and I'll acknowledge that he may, in fact, be just that dumb.)


Sad state of affairs for Colorado that any legal no threat to society would have to worry about a magazine date stamp or owning a so called high capacity magazine. I personally believe marijuana is more harmful to society.

Also felons can't possess firearms but there's no law against felons possessing magazines or other firearm parts.

[Gman]

I read the article...and can't figure out where he violated the law by possessing a "high capacity magazine" based on the information provided.

The magazines described are not illegal by themselves depending on when they were obtained. There is also no mention of this individual having a criminal record prior to these charges.

[vossman]

Another poorly written news article IMO. Leaves out lots of info.

[blacklabel]

I read the article...and can't figure out where he violated the law by possessing a "high capacity magazine" based on the information provided.

The magazines described are not illegal by themselves depending on when they were obtained. There is also no mention of this individual having a criminal record prior to these charges.
The second article mentions his prior record but neither addresses why the magazines themselves were illegal.

[MarkCO]

Um, this was not the first time. There have been at least 9 other times, and in this case, as well as all the others except one, it was an add-on charge. In the other one, the prosecutor was in error and the charge was dismissed for that reason. No one has yet been convicted as far as I can tell either.

Looks like an add-on charge here too. Nonetheless, the prosecutor will still have to prove that the complete magazines were obtained after 7-1-13. Possession of a firearm by a felon will likely be where it will land, and they will likely plead him out on that too.

[sniper7]

I'm glad they got the guy, potentially saved a school shooting. Obviously guy isn't right in the head!

[Gman]

The second article mentions his prior record but neither addresses why the magazines themselves were illegal.
Thanks. Makes sense for the firearms and drug possession, but this sentence is garbage; "Moscow was taken into police custody from the 72-hour hold on suspicion of educational interference, illegal possession of a weapon and possession of a large-capacity magazine, which is illegal in Colorado."

Not sure if they're referring to "illegal possession" or "large-capacity magazine" as being illegal. This isn't California.....yet.

[Bailey Guns]

There is plenty of precedence in Colorado that allows convicted felons to possess a firearm for self defense and defense of home and property as long as it's been 10 years (I think it's 10 years) since the final adjudication of their case/sentence.

[BPTactical]

Nvm

[Ah Pook]

Wasn't there another case where the suspect was charged with possession of a high capacity mag? Bad guy they were trying to pile on as many charges as possible. Never heard any more after the initial report.

[BushMasterBoy]

He is still doing stuff according this article...

http://www.9news.com/story/news/crime/2015/10/31/front-range-community-college-on-lockout-saturday/74950946/

[theGinsue]

Interesting, and agenda telling differences, in reporting styles:

While searching his home, police found a New Frontier AR-15 .223 assault rifle


Investigators searched his home and vehicle and located an AR-15 semi-automatic rifle...

[RblDiver]

Interesting, and agenda telling differences, in reporting styles:

Eh, I wouldn't put too much stock in that. The Coloradoan isn't COMPLETELY biased, but there's still a definite left-wing slant.

[Great-Kazoo]

Eh, I wouldn't put too much stock in that. The Coloradoan isn't COMPLETELY biased, but there's still a definite left-wing slant.

You think? They've drifted so far left, i hear they're changing the name to The Collins Daily Camera

[Gman]

Interesting, and agenda telling differences, in reporting styles:
The quoted sources were both Gannett holdings until recently when the print media was left under Gannett and Channel 9 and the other TV stations were put under TEGNA.

[colorider]

He is still doing stuff according this article...

http://www.9news.com/story/news/crime/2015/10/31/front-range-community-college-on-lockout-saturday/74950946/

Bond was set too low. This guy is a direct threat and easily could have caused some serious harm while out on bond. He easily could have acted on his threats as his fancy ankle monitor did not blow him up when he got within the designated area of the schools. Maybe that's a good idea. Just like in the movies.

[KAPA]

Anyone know what Law Enforcement office this is that is dealing with this guy? I have a feeling it is not the Larmier County Sheriff's Office. Gotta be some local PD getting pushed by a liberal somewhere.

[RblDiver]

You think? They've drifted so far left, i hear they're changing the name to The Collins Daily Camera
Well, as evidenced above, they at least try to hide it a bit better :P

(Although, now that I remember, in a letter to the editor I wrote a while back using the proper term illegal aliens, they did decide to change it to "illegal immigrants," so eff 'em)

[newracer]

Anyone know what Law Enforcement office this is that is dealing with this guy? I have a feeling it is not the Larmier County Sheriff's Office. Gotta be some local PD getting pushed by a liberal somewhere.

Fort Collins PD

[10x]

Sounds like the PD intervened before something bad happened. The mag issue seems odd. I guess we will see if remains a legit charge. Anyone know if anyone has been charged for failure to do the background check on private sales?

[james_bond_007]

This. The fact that he was "under suspicion" of violating the law doesn't mean he will actually be charged or that even if he is charged that the charges won't later be dropped. Seems to me that unless there's some objective evidence that he acquired the mag AFTER 1 JUL 13 (like a receipt from a gun store in Cheyenne dated 9/30/15 for a 30 round mag) the only way they can convict him is if he is dumb enough to admit that he acquired the mag after that date (and I'll acknowledge that he may, in fact, be just that dumb.)

Also felons can't possess firearms but there's no law against felons possessing magazines or other firearm parts.

There is another clause in the Mag law :

(2) (a) A person may possess a large-capacity magazine if he or she:

(I) Owns the large-capacity magazine on July 1, 2013; and

(II) Maintains continuous possession of the large-capacity magazine.

We'd have to determine if the part about him being in jail is true or not, but consider this

He legally owns and possesses mags before 01JUL13
He then gets convicted (of anything) and serves jail time after 01JUL13
During time in jail, he owns the mags but cannot possess them (because he's in jail)
Likewise he also owns the rest of his property, but cannot posses any of it while in jail
He gets released and can once again posses his mags and other property, but...


The fact that he was in jail AFTER 01JUL13 MAY arguably constitute loss of 'continuous possession' of any mags he once legally owned/possessed.Thus if that is true, than ANY mags >15 rounds that he acquired or re-acquired after he was released would be in violation of the Mag Law.

The burden of proof is on the government, but since they CAN (assuming there is loss of 'continuous possession', in regards to being incarcerated) prove he lost 'continuous possession' of the mags while in jail, and they CAN prove he was in jail after 01JUL13, then they CAN say with 100% confidence that ANY >15 mags in his possession (date stamped or not) would be contraband.

If this is true about 'continuous possession', then it is a far more reaching law than we had once imagined.[panic]

I see 1-year jail time different than taking a 1-year vacation.
Yes, in both cases you are separated from your mags for a year but...
With a 1-year vacation, you can, at your discretion, stop your vacation at any time and go back and access your mags.
It might be inconvenient or expensive, but you can do it.
With 1-year jail time, you have no option to go back to access the mags while in jail. You may still OWN them, but you cannot POSSESS them and may have violated the 'CONTINUOUS POSSESSION' clause.

Your thoughts ?

[SuperiorDG]

noun
noun: possession; plural noun: possessions


1.
the state of having, owning, or controlling something.




2.

an item of property; something belonging to one.






He didn't loose ownership of his property just because he was in jail. Let's say someone is arrested and ends up in jail. A search warrant is issued and the police find an illegal item in is his house. Can he say it is not his possession because he is in jail?

[Circuits]

Magazine possession, sans ammunition, is not regulated in any way by jail time. They're not firearms, and in the absence of ammunition, are not subject to any kind of current regulation, other than pre-7/1/13 possession.

[Martinjmpr]

If this is true about 'continuous possession', then it is a far more reaching law than we had once imagined.[panic]

I see 1-year jail time different than taking a 1-year vacation.
Yes, in both cases you are separated from your mags for a year but...
With a 1-year vacation, you can, at your discretion, stop your vacation at any time and go back and access your mags.
It might be inconvenient or expensive, but you can do it.
With 1-year jail time, you have no option to go back to access the mags while in jail. You may still OWN them, but you cannot POSSESS them and may have violated the 'CONTINUOUS POSSESSION' clause.

Your thoughts ?

I would say that ownership/possession of magazines is no different from any other personal property. You owned it before going to jail, you own it while in jail (even though you may not be able to access it) and you still own it after you get out.

I'm not an expert on law regarding incarceration but I think that would be a really, really weak argument to for the prosecution to try and make. And honestly, is any prosecutor going to work that hard to try and convict someone of a misdemeanor?

That kind of legal hair-splitting might make sense if the stakes were higher, but given the other charges that the guy is up against, trying to get him on the mag charge would probably not be a good use of the prosecutor's time.

[MarkCO]

Interesting the similarities between this case and the Colorado Springs shooting last week.

[james_bond_007]

"Possession" might be clear to Mr. Webster, but certainly not to the courts.

As I said, to me, it depends on how the courts interpret 'continuous possession'. This phrase is not clear to me, in a legal sense.
And most of us agree the Mag Bill was hastily and poorly written.
I do not question nor argue ownership.
I don't understand the courts interpretation of 'continuous possession' and have become more confused after researching it a bit.

Some items I found before posting my Original Post. (Emboldened, reddened, and underlined text, titles notwithstanding, were added by me)


The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]) Depending on how and when it is used, the term possession has a variety of possible meanings. As a result, possession, or lack of possession, is often the subject of controversy in civil cases involving real and personal property and criminal cases involving drugs and weapons—for example, whether a renter is entitled to possession of an apartment or whether a criminal suspect is in possession of stolen property.

Possession versus Ownership

Although the two terms are often confused, possession is not the same as ownership. No legal rule states that "possession is nine-tenths of the law," but this phrase is often used to suggest that someone who possesses an object is most likely its owner. Likewise, people often speak of the things they own, such as clothes and dishes, as their possessions. However, the owner of an object may not always possess the object. For example, an owner of a car could lend it to someone else to drive. That driver would then possess the car. However, the owner does not give up ownership simply by lending the car to someone else.
The myriad distinctions between possession and ownership, and the many nuances of possession, are complicated even for attorneys and judges. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types. Many times these modifiers are combined, as in "joint constructive possession." All these different kinds of possession, however, originate from what the law calls "actual possession."

Actual Possession

"Actual possession is what most of us think of as possession—that is, having physical custody or control of an object" (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y. 1988]). Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. For example, a person wearing a watch has actual possession of the watch. Likewise, if you have your wallet in your jacket pocket, you have actual possession of your wallet. This type of possession, however, is by necessity very limited. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it. To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.

Constructive Possession

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has [1]knowledge of an object plus [2] the ability to control the object, even if the person has no physical contact with it (United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]). For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. Constructive possession is frequently used in cases involving criminal possession.


Do the courts interpret 'continuous possession' as ACTUAL or CONSTRUCTIVE or Webster's or something else ? It is not clear to me.
It is also not clear that 2 different courts would interpret it the SAME way.

My opinion is that, barring no other definitions of possession, CONSTRUCTIVE POSSESSION may apply.
The accused likely had (1) knowledge of the object but while incarcerated did not have (2) the ability to control the object; therefore, he did NOT have constructive possession and did not satisfy BOTH clauses of the Mag (own/possess before 01JUL13 and continuous possession) ban necessary for an affirmative defense.

Whether the DA would or would not prosecute on the mag charge alone is not germane to the interpretation of clause (ii) of the Mag Ban.

But if CONSTRUCTIVE POSSESSION were used as the definition, there would be hardy any effort needed to prove it did not exist.

Remember, I'm just bringing this up for discussion and asking
" Even though you are still the owner of objects, do you lose 'continuous possession' of things when you are in jail ?"


I'm not stating it as a fact one way or the other.

[Martinjmpr]

My opinion is that, barring no other definitions of possession, CONSTRUCTIVE POSSESSION may apply.
The accused likely had (1) knowledge of the object but while incarcerated did not have (2) the ability to control the object; therefore, he did NOT have constructive possession and did not satisfy BOTH clauses of the Mag (own/possess before 01JUL13 and continuous possession) ban necessary for an affirmative defense.

Whether the DA would or would not prosecute on the mag charge alone is not germane to the interpretation of clause (ii) of the Mag Ban.

But if CONSTRUCTIVE POSSESSION were used as the definition, there would be hardy any effort needed to prove it did not exist.

Remember, I'm just bringing this up for discussion and asking
" Even though you are still the owner of objects, do you lose 'continuous possession' of things when you are in jail ?"


I'm not stating it as a fact one way or the other.

The real answer is that we won't know until and unless this issue is brought up in an actual court case since the legislation, as written, can't possibly account for every scenario. Generally what courts do in circumstances like this is they either look for laws with similar wording in the same jurisdiction (in this case, in Colorado) or they look for laws with similar wording in other jurisdictions, and examine how the courts have treated those laws.

A non-punitive example of this would be someone who is deployed overseas with the military, or someone who is hospitalized for a serious medical condition. Like the incarcerated person, they, too, don't have the actual ability to control or access the object, so in that circumstance does the person lose right to continuous ownership of the magazine? I seriously doubt it since the court could not infer anything from the law that indicated that the legislature intended such an obviously unfair result.

Such determination would also put the courts in the position of having to legally split hairs: If the rule is "incarceration means you lose possession" then at what point does "possession" cease under such a rule? If the person is incarcerated for a single day do they lose possession? Two days? Three days? A weekend? A month? And does arrest and pre-trial detention count as "incarceration" under such a rule?

Courts generally don't like to get this deep into the weeds, especially on minor misdemeanor charges like this. Since the burden is on the state to show that there was NOT continuous possession, a court would likely say that unless the prosecution can show proof that the accused acquired the mag after the ban went into effect (like the aforementioned receipt from a store in Cheyenne with last week's date on it showing a purchase of a hi-capacity magazine that is among the defendant's personal belongings) then this charge would likely get tossed.

[WETWRKS]

That would be like a druggie claiming that he is not in possession of drugs because they are in his house and he is standing on the street...courts won't buy that line of logic.

[Great-Kazoo]

That would be like a druggie claiming that he is not in possession of drugs because they are in his house and he is standing on the street...courts won't buy that line of logic.

You just lost an easy 50% of the country with that one.

[newracer]

Charges have been dropped.


As part of the federal prosecution, the large-capacity magazine count has been dropped "to facilitate the federal prosecution of the firearm charges," the DOJ said in a statement.

Spokesman Jeff Dorschner added that, from a legal standpoint, there are stipulations that prevent Moscow from being charged simultaneously at the state and federal level for the same crime. In the world of gun-related offenses, a double-jeopardy situation could have unfolded, so federal prosecutors will handle the firearm-related charges, and state attorneys will handle the rest.

http://www.coloradoan.com/story/news/2015/11/19/grand-jury-indicts-front-range-threat-suspect/76058440/

[Great-Kazoo]

Charges have been dropped.



http://www.coloradoan.com/story/news/2015/11/19/grand-jury-indicts-front-range-threat-suspect/76058440/

AS they would be. Was anyone surprised while it made HEADLINES. Charging him for it wasn't going to happen if they wanted to put him in prison for a few years.

[Skip]

AS they would be. Was anyone surprised while it made HEADLINES. Charging him for it wasn't going to happen if they wanted to put him in prison for a few years.

So you're saying we didn't need the mag ban to prosecute a felon in a possession of a firearm (not to mention the other offenses)?

One wouldn't have known from the headlines...

[BPTactical]

In other words the Colorado law is useless.

[OneGuy67]

Or the feds came in and decided they would take over the prosecution from the lowly state officials and of course, they cannot prosecute a state law. He will get more time federally.

[Great-Kazoo]

Or the feds came in and decided they would take over the prosecution from the lowly state officials and of course, they cannot prosecute a state law. He will get more time federally.

OR......................... the spinmeisters for Hick and the D's will say the law works. However the feds took over, preventing the state from prosecuting. What has shown , to date, to be an effective law. Keeping senseless mass shootings from happening.
WIN, WIN, SPIN, SPIN

IMO, NOTHING is beneath the D's when it comes to keeping folks believing what they do works. Just as the WH today is spinning the UHC withdrawal as nothing serious.

[OneGuy67]

No argument Jim. Just explaining the how and the why of what most likely happened. Seen it before.