How Boulder County screwed my friend out of ever owning firearms again.
Please do not quote the below if you reply.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.
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Originally Posted by jim
