Colorado Firearm Laws

1. Before a gun show vendor transfers or attempts to transfer a firearm at a gun show, he or she shall:
   1. require that a background check, in accordance with section 24-33.5-424, C.R.S., be conducted of the prospective transferee; and
   2. obtain approval of a transfer from the Colorado Bureau of Investigation after a background check has been requested by a licensed gun dealer, in accordance with section 24-33.5-424, C.R.S.
2. A gun show promoter shall arrange for the services of one or more licensed gun dealers on the premises of the gun show to obtain the background checks required by this article.
3. If any part of a firearm transaction takes place at a gun show, no firearm shall be transferred unless a background check has been obtained by a licensed gun dealer.
4. Any person violating the provisions of this section commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.L. 2002: (4) amended, p. 1476, §63, effective October 1.

1. A licensed gun dealer who obtains a background check on a prospective transferee shall record the transfer, as provided in section 12-26-102, C.R.S., and retain the records, as provided in section 12-26-103, C.R.S., in the same manner as when conducting a sale, rental, or exchange at retail.
2. Any individual who gives false information in connection with the making of such records commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.L. 2002: (2) amended, p. 1476, §64, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (2), see section 1 of chapter 318, Session Laws of Colorado 2002.

For each background check conducted at a gun show, a licensed gun dealer may charge a fee not to exceed ten dollars.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.

1. A gun show promoter shall post prominently a notice, in a form to be prescribed by the executive director of the department of public safety or his or her designee, setting forth the requirement for a background check as provided in this article.
2. Any person violating the provisions of this section commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.L. 2002: (2) amended, p. 1476, §65, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (2), see section 1 of chapter 318, Session Laws of Colorado 2002.

The provisions of this article shall not apply to the transfer of an antique firearm, as defined in 18 U.S.C. sec. 921(a)(16), as amended, or a curio or relic, as defined in 27 CFR sec. 178.11, as amended.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.

As used in this article, unless the context otherwise requires:

1. "Collection" means a trade, barter, or in-kind exchange for one or more firearms.
2. "Firearm" means any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges.
3. "Gun show" means the entire premises provided for an event or function, including but not limited to parking areas for the event or function, that is sponsored to facilitate, in whole or in part, the purchase, sale, offer for sale, or collection of firearms at which:
   1. twenty-five or more firearms are offered or exhibited for sale, transfer, or exchange; or
   2. not less than three gun show vendors exhibit, sell, offer for sale, transfer, or exchange firearms.
4. "Gun show promoter" means a person who organizes or operates a gun show.
5. "Gun show vendor" means any person who exhibits, sells, offers for sale, transfers, or exchanges, any firearm at a gun show, regardless of whether the person arranges with a gun show promoter for a fixed location from which to exhibit, sell, offer for sale, transfer, or exchange any firearm.
6. "Licensed gun dealer" means any person who is a licensed importer, licensed manufacturer, or dealer licensed pursuant to 18 U.S.C. sec. 923, as amended, as a federally licensed firearms dealer.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.

The General Assembly shall appropriate funds necessary to implement this article.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.

This article shall take effect March 31, 2001.

HISTORY: Source: Initiated 2000: Entire article added, effective March 31, 2001, proclamation of the Governor issued December 28, 2000.

1. On and after March 20, 2013, the state court administrator shall send electronically the following information to the Colorado bureau of investigation created pursuant to section 24-33.5-401, C.R.S., referred to within this section as the "bureau":
   1. The name of each person who has been found to be incapacitated by order of the court pursuant to part 3 of article 14 of title 15, C.R.S.;
   2. The name of each person who has been committed by order of the court to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 27-81-112 or 27-82-108, C.R.S.; and
   3. The name of each person with respect to whom the court has entered an order for involuntary certification for short-term treatment of mental illness pursuant to section 27-65-107, C.R.S., for extended certification for treatment of mental illness pursuant to section 27-65-108, C.R.S., or for long-term care and treatment of mental illness pursuant to section 27-65-109, C.R.S.
   1.5. Not more than forty-eight hours after receiving notification of a person who satisfies the description in paragraph (a), (b), or (c) of subsection (1) of this section, the state court administrator shall report such fact to the bureau.
2. Any report made by the state court administrator pursuant to this section shall describe the reason for the report and indicate that the report is made in accordance with 18 U.S.C. sec. 922 (g) (4).
3. The state court administrator shall take all necessary steps to cancel a record made by the state court administrator in the national instant criminal background check system if:
   1. The person to whom the record pertains makes a written request to the state court administrator; and
   2. No less than three years before the date of the written request:
      1. The court entered an order pursuant to section 15-14-318, C.R.S., terminating a guardianship on a finding that the person is no longer an incapacitated person, if the record in the national instant criminal background check system is based on a finding of incapacity;
      2. The period of commitment of the most recent order of commitment or recommitment expired, or a court entered an order terminating the person's incapacity or discharging the person from commitment in the nature of habeas corpus, if the record in the national instant criminal background check system is based on an order of commitment to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse; except that the state court administrator shall not cancel any record pertaining to a person with respect to whom two recommitment orders have been entered under section 27-81-112 (7) and (8), C.R.S., or who was discharged from treatment under section 27-81-112 (11), C.R.S., on the grounds that further treatment will not be likely to bring about significant improvement in the person's condition; or
      3. The record in the case was sealed pursuant to section 27-65-107 (7), C.R.S., or the court entered an order discharging the person from commitment in the nature of habeas corpus pursuant to section 27-65-113, C.R.S., if the record in the national instant criminal background check system is based on a court order for involuntary certification for short-term treatment of mental illness.
4. Pursuant to section 102 (c) of the federal "NICS Improvement Amendments Act of 2007" (Pub.L. 110-180), a court, upon becoming aware that the basis upon which a record reported by the state court administrator pursuant to subsection (1) of this section does not apply or no longer applies, shall:
   1. Update, correct, modify, or remove the record from any database that the federal or state government maintains and makes available to the national instant criminal background check system, consistent with the rules pertaining to the database; and
   2. Notify the attorney general that such basis does not apply or no longer applies.

HISTORY: Source: L. 2002: Entire section added, p. 753, §1, effective January 1, 2003.L. 2010: (1)(b), (1)(c), (3)(b)(II), and (3)(b)(III) amended, (SB 10-175), ch. 188, p. 780, §15, effective April 29.L. 2013: IP(1), (2), IP(3), (3)(a), and (3)(b)(II) amended and (1.5) and (4) added, (HB 13-1229), ch. 47, p. 131, §2, effective March 20.

1. Legislative declaration. The purpose of this section is to set forth a judicial process whereby a person may apply or petition for relief from federal firearms prohibitions imposed pursuant to 18 U.S.C. sec. 922 (d) (4) and (g) (4), as permitted by the federal "NICS Improvement Amendments Act of 2007" (Pub.L. 110-180, sec. 105).
2. Eligibility. A person may petition for relief pursuant to this section if:
   1. 1. He or she has been found to be incapacitated by order of the court pursuant to part 3 of article 14 of title 15, C.R.S.;
      2. He or she has been committed by order of the court to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 27-81-112 or 27-82-108, C.R.S.; or
      3. The court has entered an order for the person's involuntary certification for short-term treatment of mental illness pursuant to section 27-65-107, C.R.S., for extended certification for treatment of mental illness pursuant to section 27-65-108, C.R.S., or for long-term care and treatment of mental illness pursuant to section 27-65-109, C.R.S.; and
   2. He or she is a person to whom the sale or transfer of a firearm or ammunition is prohibited by 18 U.S.C. sec. 922 (d) (4), or who is prohibited from shipping, transporting, possessing, or receiving a firearm or ammunition pursuant to 18 U.S.C. sec. 922 (g) (4).
3. Due process. In a court proceeding pursuant to this section:
   1. The petitioner shall have an opportunity to submit his or her own evidence to the court concerning his or her petition;
   2. The court shall review the evidence; and
   3. The court shall create and thereafter maintain a record of the proceeding.
4. Proper record. In determining whether to grant relief to a petitioner pursuant to this section, the court shall receive evidence concerning, and shall consider:
   1. The circumstances regarding the firearms prohibitions imposed by 18 U.S.C. sec. 922 (g) (4);
   2. The petitioner's record, which must include, at a minimum, the petitioner's mental health records and criminal history records; and
   3. The petitioner's reputation, which the court shall develop, at a minimum, through character witness statements, testimony, or other character evidence.
5. Proper findings.
   1. Before granting relief to a petitioner pursuant to this section, the court shall issue findings that:
      1. The petitioner is not likely to act in a manner that is dangerous to public safety; and
      2. Granting relief to the petitioner is not contrary to the public interest.
   2. 1. If the court denies relief to a petitioner pursuant to this section, the petitioner may petition the court of appeals to review the denial, including the record of the denying court.
      2. A review of a denial shall be de novo in that the court of appeals may, but is not required to, give deference to the decision of the denying court.
      3. In reviewing a denial, the court of appeals has discretion, but is not required, to receive additional evidence necessary to conduct an adequate review.

HISTORY: Source: L. 2013: Entire section added, (HB 13-1229), ch. 47, p. 132, §3, effective March 20.

1. On and after March 20, 2013, the state court administrator shall send electronically the following information to the Colorado bureau of investigation created pursuant to section 24-33.5-401, C.R.S., referred to within this section as the "bureau":
   1. The name of each person who has been found to be incapacitated by order of the court pursuant to part 3 of article 14 of title 15, C.R.S.;
   2. The name of each person who has been committed by order of the court to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 27-81-112 or 27-82-108, C.R.S.; and
   3. The name of each person with respect to whom the court has entered an order for involuntary certification for short-term treatment of mental illness pursuant to section 27-65-107, C.R.S., for extended certification for treatment of mental illness pursuant to section 27-65-108, C.R.S., or for long-term care and treatment of mental illness pursuant to section 27-65-109, C.R.S.
   1.5. Not more than forty-eight hours after receiving notification of a person who satisfies the description in paragraph (a), (b), or (c) of subsection (1) of this section, the state court administrator shall report such fact to the bureau.
2. Any report made by the state court administrator pursuant to this section shall describe the reason for the report and indicate that the report is made in accordance with 18 U.S.C. sec. 922 (g) (4).
3. The state court administrator shall take all necessary steps to cancel a record made by the state court administrator in the national instant criminal background check system if:
   1. The person to whom the record pertains makes a written request to the state court administrator; and
   2. No less than three years before the date of the written request:
      1. The court entered an order pursuant to section 15-14-318, C.R.S., terminating a guardianship on a finding that the person is no longer an incapacitated person, if the record in the national instant criminal background check system is based on a finding of incapacity;
      2. The period of commitment of the most recent order of commitment or recommitment expired, or the court entered an order terminating the person's incapacity or discharging the person from commitment in the nature of habeas corpus, if the record in the national instant criminal background check system is based on an order of commitment to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse; except that the state court administrator shall not cancel any record pertaining to a person with respect to whom two recommitment orders have been entered under section 27-81-112 (7) and (8), C.R.S., or who was discharged from treatment under section 27-81-112 (11), C.R.S., on the grounds that further treatment will not be likely to bring about significant improvement in the person's condition; or
      3. The record in the case was sealed pursuant to section 27-65-107 (7), C.R.S., or the court entered an order discharging the person from commitment in the nature of habeas corpus pursuant to section 27-65-113, C.R.S., if the record in the national instant criminal background check system is based on a court order for involuntary certification for short-term treatment of mental illness.
4. Pursuant to section 102 (c) of the federal "NICS Improvement Amendments Act of 2007" (Pub.L. 110-180), a court, upon becoming aware that the basis upon which a record reported by the state court administrator pursuant to subsection (1) of this section does not apply or no longer applies, shall:
   1. Update, correct, modify, or remove the record from any database that the federal or state government maintains and makes available to the national instant criminal background check system, consistent with the rules pertaining to the database; and
   2. Notify the attorney general that such basis does not apply or no longer applies.

HISTORY: Source: L. 2002: Entire section added, p. 754, §2, effective January 1, 2003.L. 2010: (1)(b), (1)(c), (3)(b)(II), and (3)(b)(III) amended, (SB 10-175), ch. 188, p. 781, §16, effective April 29.L. 2013: IP(1), (2), IP(3), (3)(a), and (3)(b)(II) amended and (1.5) and (4) added, (HB 13-1229), ch. 47, p. 134, §4, effective March 20.

1. Legislative declaration. The purpose of this section is to set forth a judicial process whereby a person may apply or petition for relief from federal firearms prohibitions imposed pursuant to 18 U.S.C. sec. 922 (d) (4) and (g) (4), as permitted by the federal "NICS Improvement Amendments Act of 2007" (Pub.L. 110-180, sec. 105).
2. Eligibility. A person may petition for relief pursuant to this section if:
   1. 1. He or she has been found to be incapacitated by order of the court pursuant to part 3 of article 14 of title 15, C.R.S.;
      2. He or she has been committed by order of the court to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 27-81-112 or 27-82-108, C.R.S.; or
      3. The court has entered an order for the person's involuntary certification for short-term treatment of mental illness pursuant to section 27-65-107, C.R.S., for extended certification for treatment of mental illness pursuant to section 27-65-108, C.R.S., or for long-term care and treatment of mental illness pursuant to section 27-65-109, C.R.S.; and
   2. He or she is a person to whom the sale or transfer of a firearm or ammunition is prohibited by 18 U.S.C. sec. 922 (d) (4), or who is prohibited from shipping, transporting, possessing, or receiving a firearm or ammunition pursuant to 18 U.S.C. sec. 922 (g) (4).
3. Due process. In a court proceeding pursuant to this section:
   1. The petitioner shall have an opportunity to submit his or her own evidence to the court concerning his or her petition;
   2. The court shall review the evidence; and
   3. The court shall create and thereafter maintain a record of the proceeding.
4. Proper record. In determining whether to grant relief to a petitioner pursuant to this section, the court shall receive evidence concerning, and shall consider:
   1. The circumstances regarding the firearms prohibitions imposed by 18 U.S.C. sec. 922 (g) (4);
   2. The petitioner's record, which must include, at a minimum, the petitioner's mental health records and criminal history records; and
   3. The petitioner's reputation, which the court shall develop, at a minimum, through character witness statements, testimony, or other character evidence.
5. Proper findings.
   1. Before granting relief to a petitioner pursuant to this section, the court shall issue findings that:
      1. The petitioner is not likely to act in a manner that is dangerous to public safety; and
      2. Granting relief to the petitioner is not contrary to the public interest.
   2. 1. If the court denies relief to a petitioner pursuant to this section, the petitioner may petition the court of appeals to review the denial, including the record of the denying court.
      2. A review of a denial shall be de novo in that the court of appeals may, but is not required to, give deference to the decision of the denying court.
      3. In reviewing a denial, the court of appeals has discretion, but is not required, to receive additional evidence necessary to conduct an adequate review.

HISTORY: Source: L. 2013: Entire section added, (HB 13-1229), ch. 47, p. 135, §5, effective March 20.

1. Unless inconsistent with other provisions of sections 18-1-702 to 18-1-710, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by a provision of law or a judicial decree binding in Colorado.
2. A "provision of law" and a "judicial decree" in subsection (1) of this section mean:
   1. Laws defining duties and functions of public servants;
   2. Laws defining duties of private citizens to assist public servants in the performance of certain of their functions;
   3. Laws governing the execution of legal process;
   4. Laws governing the military service and conduct of war;
   5. Judgments and orders of court.

HISTORY: Source: L. 71: R&RE, p. 407, §1. C.R.S. 1963: §40-1-801.

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Law reviews: For article, "Criminal Law", which discusses Tenth Circuit decisions relating to criminal law, see 61 Den. L.J. 255 (1984); for article, "Criminal Law", which discusses Tenth Circuit decisions dealing with criminal law, see 62 Den. U. L. Rev. 125 (1985); for a discussion of Tenth Circuit decisions dealing with criminal law, see 66 Den. U. L. Rev. 711 (1989) and 67 Den. U. L. Rev. 691 (1990); for article, "Felony Sentencing in Colorado", see 18 Colo. Law. 1689 (1989); for article, "1990 Criminal Law Legislative Update", see 19 Colo. Law. 2049 (1990).

ANNOTATION

Defense not available to penitentiary guard accused of aiding escape. A penitentiary guard, accused of aiding an escape, whose theory of the case is that he was attempting to apprehend an escaped criminal by using undercover techniques is not entitled to a jury instruction on the affirmative defense of execution of public duty when his authority to make an arrest is limited to penitentiary grounds and there is no evidence he had any authorization to engage in undercover activities. People v. Roberts, 43 Colo. App. 100, 601 P.2d 654 (1979).

Defense not available to deputy sheriff when directed to perform an unauthorized act by sheriff. Deputy sheriff's installation of an eavesdropping device at the direction of the sheriff was not an execution of a public duty when sheriff did not have legal authority to place electronic listening device without court order. People v. Lesslie, 24 P.3d 22 (Colo. App. 2000).

1. Unless inconsistent with other provisions of sections 18-1-703 to 18-1-707, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
2. The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

HISTORY: Source: L. 71: R&RE, p. 407, §1. C.R.S. 1963: §40-1-802.

ANNOTATION

Law reviews. For comment, "Civil Disobedience as the Lesser Evil", see 59 U. Colo. L. Rev. 961 (1988). For article, "Choice of Evils in Colorado", see 18 Colo. Law. 1117 (1989).

The "choice of evils" defense has its roots in the common-law doctrine of necessity, and has long been recognized in criminal law under the latter description. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975).

This section is really no more than a codification of the common law on "justification defenses". United States v. Best, 476 F. Supp. 34 (D. Colo. 1979).

The statutory codification of the choice of evils defense has its roots in the common-law doctrine of necessity. People v. Strock, 623 P.2d 42 (Colo. 1981); Andrews v. People, 800 P.2d 607 (Colo. 1990).

Choice of evils defense may be found even though defendant has requisite intent of "knowingly" with respect to offense charged. People v. Trujillo, 682 P.2d 499 (Colo. App. 1984).

For this defense to be available, it must first be shown that defendant's conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative other than the violation of the law for which he stands charged. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975); People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979); People v. Strock, 623 P.2d 42 (Colo. 1981); Andrews v. People, 800 P.2d 607 (Colo. 1990).

Normal conditions of confinement will not support a defense of choice of evils pursuant to this section. People v. McKnight, 626 P.2d 678 (Colo. 1981).

Defense is available in prison escape situation where the prisoner is motivated by a definite, specific, and imminent threat of death or substantial bodily injury. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 (Colo. 1981).

The choice of evils defense may be available to justify a prison escape if the facts of the case, as a matter of law, satisfy the conditions stated in this section. People v. McKnight, 626 P.2d 678 (Colo. 1981).

But only if escapee immediately reports duress, or choice of evils, which he faced to the proper authorities when a position of safety is reached. People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979).

Where the charge is escape, the defendant must also show that the escape was committed without violence and that he voluntarily submitted to authorities as soon as a position of safety was reached. People v. McKnight, 626 P.2d 678 (Colo. 1981).

As condition for admitting evidence relating to defense, proper foundation must be laid. As a condition to the admission of evidence relating to the choice of evils defense, a proper foundation must be laid, as indicated by this section. People v. Strock, 623 P.2d 42 (Colo. 1981).

The choice of evils defense may only be invoked when an offer of proof is made that establishes the requisite statutory foundation. Andrews v. People, 800 P.2d 607 (Colo. 1990); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).

Court may refuse to give choice of evils instruction when defendant fails to comply with procedural requirements of statute and was given reasonable opportunity to comply. People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006).

Choice of evils is potentially available as a defense to any criminal charge unless it is inconsistent with other enumerated affirmative defenses or other explicit provisions of the law. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).

Once defense credibly raised, burden of proof shifts to prosecution. Choice of evils is an affirmative defense covered by §18-1-407, which provides that once "some credible evidence" is presented to raise a defense, the burden is on the prosecution to disprove the defense beyond a reasonable doubt as to that issue as well as all other elements of the offense. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 (Colo. 1981).

Evidence entitling defendant to choice of evils instruction. Where defense testimony indicated that three men wearing masks and carrying knives attempted to kill the defendant a few nights prior to the escape, that defendant was informed that there was a "contract on his life", and that defendant's cellmates received notes the night of the escape threatening them and the defendant, these facts, if believed by the jury, would show that the defendant was faced with specific and imminent threats mandating a choice of evils instruction. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 (Colo. 1981); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).

"Morality" and "advisability" of statute are not to be tried to jury. Subsection (2) of this section does nothing but emphasize that "morality" or "advisability" of a statute are not things to be tried to a jury. United States v. Best, 476 F. Supp. 34 (D. Colo. 1979).

Preliminary determination of admissibility to be decided by court rather than by the jury. United States v. Best, 476 F. Supp. 34 (D. Colo. 1979).

And preliminary ruling by court required. It was well within the province of the general assembly to require that a preliminary ruling by the court would serve as a prerequisite in invoking the defense of choice of evils. People v. Strock, 623 P.2d 42 (Colo. 1981).

Defense of choice of evils is very similar to duress and the foundation requirements set forth in the choice of evils statute was intended as a safeguard against abuse of the defense. People v. Strock, 623 P.2d 42 (Colo. 1981).

Before a choice of evils defense may be presented to the jury, the trial court must make an initial determination of whether the allegations of facts by the defendant, if proven, would constitute legal justification for the prohibited conduct. Andrews v. People, 800 P.2d 607 (Colo. 1990); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).

The threat to defendant's person must be so definite, specific, and imminent as to rise beyond mere speculation. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975); People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979).

The felon with a gun statute, §18-12-108, must be read in pari materia with this section. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

Trial court finding that no emergency existed to justify a choice of evils defense did not conflict with a finding of an emergency sufficient to permit a reduced sentence. People v. Weiser, 789 P.2d 454 (Colo. App. 1989).

Test for sufficiency of offer of proof. A sufficient offer of proof must establish that: (1) All other potentially viable and reasonable alternative actions were pursued or shown to be futile; (2) the action taken had a direct causal connection with the harm sought to be prevented and would bring about the abatement of the harm; and (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur. Andrews v. People, 800 P.2d 607 (Colo. 1990).

Offer of proof is insufficient if the defendants fail to show that their criminal actions, rather than legal actions taken by themselves and others, brought about the abatement of the harm or if the offer merely alleges that other persons have attempted to pursue reasonable alternatives or that the criminal action taken was a more effective alternative. Andrews v. People, 800 P.2d 607 (Colo. 1990).

Evidence of a generalized fear of future injury is not sufficient to warrant the invocation of a choice of evils defense. The evidence must affirmatively demonstrate the existence of a specific threat or likelihood of an imminent injury necessitating the actor's conduct. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990); People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).

A choice of evils defense cannot be based upon economic necessity. People v. Fontes, 89 P.3d 484 (Colo. App. 2003).

If a reasonable legal alternative was available to defendants as a means to avoid the threatened injury, they properly may be foreclosed from asserting a choice of evils defense. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).

A defendant who seeks to assert a choice of evils defense must offer evidence that his conduct did not exceed that reasonably necessary to avoid the impending injury. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).

1. The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
   1. A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person.
   2. A superintendent or other authorized official of a jail, prison, or correctional institution may, in order to maintain order and discipline, use reasonable and appropriate physical force when and to the extent that he reasonably believes it necessary to maintain order and discipline, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious bodily injury.
   3. A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use reasonable and appropriate physical force when and to the extent that it is necessary to maintain order and discipline, but he may use deadly physical force only when it is reasonably necessary to prevent death or serious bodily injury.
   4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious bodily injury upon himself may use reasonable and appropriate physical force upon that person to the extent that it is reasonably necessary to thwart the result.
   5. A duly licensed physician, advanced practice nurse, or a person acting under his or her direction, may use reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if:
      1. The treatment is administered with the consent of the patient, or if the patient is a minor or an incompetent person, with the consent of his parent, guardian, or other person entrusted with his care and supervision; or
      2. The treatment is administered in an emergency when the physician or advanced practice nurse reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

HISTORY: Source: L. 71: R&RE, p. 408, §1. C.R.S. 1963: §40-1-803.L. 76: (1)(b) amended, p. 534, §15, effective April 9.L. 81: (1)(b) to (1)(d) amended, p. 980, §2, effective May 13.L. 2008: IP(1)(e) and (1)(e)(II) amended, p. 128, §8, effective January 1, 2009.

Cross references: For the justified use of weapons or other aid to enforce obedience at state correctional facilities, see §17-20-122; for the use of force in preventing escape from a detention facility, see §18-1-707 (8); for provisions concerning child abuse, see §§18-6-401 and 19-3-102 and part 3 of article 3 of title 19; for the use of force in administering medication to persons with mental illness, see §27-65-111 (5).

ANNOTATION

Parental privilege is common-law principle codified. The parental privilege set out in subsection (1)(a) and the definition of criminal child abuse in §18-6-401 codify common-law principles concerning the limits of permissible parental chastisement. People v. Jennings, 641 P.2d 276 (Colo. 1982).

At common law, so long as the chastisement was moderate and reasonable in light of the child's age and condition, the misconduct being punished, the kind of punishment inflicted, the degree of harm done to the child and other relevant circumstances, the parent or custodian would incur neither civil nor criminal liability, even though identical behavior against a stranger would be grounds for an action in tort or prosecution for assault and battery or a similar offense. People v. Jennings, 641 P.2d 276 (Colo. 1982).

Prosecution must establish guilt of child abuse defendant beyond reasonable doubt. Where in a prosecution for child abuse the evidence raises the affirmative defense of justified physical force for disciplinary purposes, the prosecution must establish the guilt of the defendant beyond a reasonable doubt as to that issue as well as all other elements of the offense. People v. Taggart, 621 P.2d 1375 (Colo. 1981).

Acts similar in character admissible to negate claim of justification. Where all the prior acts of child abuse the prosecution sought to introduce into evidence were committed against the same person, each act was occasioned by normal childhood behavior on the part of the victim, each act was similar in severity in that noticeable bruises and marks were left on the child's body, each act took place while the child's mother was absent, and, finally, each act was followed by the defendant's explanation that it was for disciplinary purposes, the acts were sufficiently similar in character to be admissible for purposes of establishing criminal culpability and of negating any claim of accident or justification. People v. Taggart, 621 P.2d 1375 (Colo. 1981).

Where statutory affirmative defense of reasonable and appropriate discipline was not raised by defense, failure to include the phrase "without justifiable excuse" in a jury instruction on crime of child abuse was not error. People v. Lybarger, 700 P.2d 910 (Colo. 1985).

Applied in People v. R.V., 43 Colo. App. 349, 606 P.2d 1311 (1979).

1. Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
2. Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
   1. The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
   2. The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or
   3. The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.
3. Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
   1. With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
   2. He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
   3. The physical force involved is the product of a combat by agreement not specifically authorized by law.
4. In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.

HISTORY: Source: L. 71: R&RE, p. 409, §1. C.R.S. 1963: §40-1-804.L. 72: p. 274, §1.L. 75: (2)(c) amended, p. 632, §4, effective July 1.L. 79: (2)(c) amended, p. 726, §1, effective July 1.L. 81: (2)(a) and (3)(a) amended, p. 981, §3, effective May 13.L. 2000: (2)(c) amended, p. 703, §27, effective July 1.L. 2003: (4) added, p. 795, §1, effective March 25.

Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see §13-80-119.

ANNOTATION

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 38 Dicta 65 (1961). For comment on Vigil v. People (143 Colo. 328, 353 P.2d 82 (1960)), see 33 Rocky Mt. L. Rev. 430 (1961). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963). For article, "Homicides Under the Colorado Criminal Code", see 49 Den. L.J. 137 (1972). For note, "True Equality for Battered Women: The Use of Self-Defense in Colorado", see 70 Den. U. L. Rev. 117 (1992). For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).

Annotator's note. Since §18-1-704 is similar to former §40-2-15, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Doctrine of retreat is from common law. There is no statutory provision regarding the duty of a person to retreat before countering the use of force with force. The doctrine derives from the common law. People v. Watson, 671 P.2d 973 (Colo. App. 1983).

The common-law doctrine of retreat to the wall has been modified and is applicable in this jurisdiction only to cases where the defendant voluntarily enters into a fight, or the parties engage in mutual combat, or the defendant, being the assailant, does not endeavor in good faith to decline any further struggle before firing the fatal shot, and possibly to other similar cases. Harris v. People, 32 Colo. 211, 75 P. 427 (1904); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).

The defendant, if he did not provoke the assault, is not obliged to retreat or flee to save his life, but may stand his ground, and even, in some circumstances, pursue his assailant until the latter has been disarmed or disabled from carrying into effect his unlawful purpose, and this right of the defendant goes even to the extent, if necessary, of taking human life. Boykin v. People, 22 Colo. 496, 45 P. 419 (1896); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).

Court was correct in not instructing the jury on the mutual combat limitation. There must be a definite agreement to fight in place for the court to issue the instruction. Kaufman v. People, 202 P.3d 542 (Colo. 2009).

Subsection (2)(a) does not require the innocent victim of an assault to retreat before defending himself or herself. People v. Willner, 879 P.2d 19 (Colo. 1994).

The right of self-defense is a natural right and is based on the natural law of self-preservation. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

Right to kill in self-defense is not limited to cases where assailant intends to commit a felony. Ritchey v. People, 23 Colo. 314, 47 P. 272 (1896).

Defendant was entitled to a jury instruction specifying that the defendant was justified in using deadly physical force if she reasonably perceived that the aggressor appeared about to commit a sexual assault upon her and a degree of force less than deadly physical force was inadequate. This section does not limit the actor's right to use deadly force to those situations in which the aggressor is committing or is about to commit sexual assault on someone other than the actor. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 (Colo. 2001).

Right to kill in defense of another. Where a known felony is attempted upon a person, the party assaulted may repel force by force, and any other person present may interpose for preventing mischief, and if death ensues the party so interposing will be justified. The right thus to assist applies with peculiar force where a relationship exists, such as father, son, brother, or husband. Bush v. People, 10 Colo. 566, 16 P. 290 (1887).

A party who seeks a difficulty cannot avail himself of the doctrine of self-defense. Bush v. People, 10 Colo. 566, 16 P. 290 (1887).

The one invoking the right of self-defense cannot be the aggressor or assailant. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

Right of self-defense is not lost if danger develops from mild argument. The mere fact that one has interjected himself into a crowd or into a mild situation, does not deprive him of the right of self-defense if the situation beginning with only an argument, develops to a point where he is being subjected to or threatened with such physical violence that he might have to resort to justifiable homicide to protect his person. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

In order to justify theory of self-defense where the defendant used deadly force, he must have reasonably believed that a lesser degree of force was inadequate and that he or another person was in imminent danger of being killed or of receiving great bodily harm (now great bodily injury). People v. Ferrell, 200 Colo. 128, 613 P.2d 324 (1980).

Apparent necessity may justify application of doctrine of self-defense. The doctrine applies whether the danger is actual or only apparent; actual danger is not necessary in order to justify one in acting in self-defense. Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances, as being sufficient to require action, justifies the application of the doctrine of self-defense to the same extent as actual or real necessity. Young v. People, 47 Colo. 352, 107 P. 274 (1910).

Person assailed may act on appearances. When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed or of receiving great bodily harm is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real or actual danger. Young v. People, 47 Colo. 352, 107 P. 274 (1910); People v. La Voie, 155 Colo. 551, 395 P.2d 1001 (1964).

One is entitled to act on appearances in using a deadly weapon to defend himself, but the appearances must be such as, taking into consideration the circumstances at the particular instant, would have caused a reasonable and prudent man to use such weapon for his protection. Henwood v. People, 57 Colo. 544, 143 P. 373, 1916A Ann. Cas. 1111 (1914).

Person coming to the aid of a third party is entitled to assert defense of others even if the third party is not entitled to assert self-defense. Person must only have a reasonable belief that intervention is necessary to protect the third party whom he or she believed was under attack. People v. Silva, 987 P.2d 909 (Colo. App. 1999).

Character of threat or provocation must be shown. To support the defense of self-defense, it must be shown that the provocation or threat occurred immediately prior to the homicide, and must be of such a character as to place the accused in sudden fear of his life or in fear of great bodily injury. English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

Belief that lesser degree of force is inadequate must be reasonable, and a reckless perception that defendant needed to use the force he did was inconsistent with a reasonable perception, thus, court did not err in ruling that a self-defense instruction was unavailable. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).

In construing subsection (3)(b), according words their plain and ordinary meaning, it is apparent that "initial" means first. People v. Beasley, 778 P.2d 304 (Colo. App. 1989).

When an initial aggressor withdraws from an encounter and effectively communicates his withdrawal to the initial victim, the aggressor becomes a victim entitled to act in self-defense should the initial victim retaliate for the attack. Thus, if the initial victim continues the attack, the victim then becomes the aggressor and is no longer entitled to act in self-defense. People v. Goedecke, 730 P.2d 900 (Colo. App. 1986).

In determining whether "initial aggressor" jury instruction is appropriate in case in which hostilities commence among a group of individuals and escalate to a conclusion without interruption, the conduct of the defendant in the context of the developing situation must be the focus of any analysis of defendant's right to self-defense. People v. Beasley, 778 P.2d 304 (Colo. App. 1989).

Not error for trial court to instruct jury on the initial aggressor exception to self-defense once the court determined to give the self-defense instruction requested by the defendant. People v. Montoya, 928 P.2d 781 (Colo. App. 1996); People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).

Court may give an initial aggressor instruction if there is an inference that defendant initiated the physical conflict by using or threatening the imminent use of unlawful force. Although defendant's initial confrontation was insufficient to make defendant an initial aggressor, returning to the argument with a gun was sufficient. People v. Griffin, 224 P.3d 292 (Colo. App. 2009).

Court did not err in failing to define initial aggressor. Although the court may define the term, there is no basis for error in not defining it when it is unlikely the jury would have relied on the wrong event to apply the initial aggressor doctrine. People v. Griffin, 224 P.3d 292 (Colo. App. 2009).

When evidence is sufficient to raise a question of fact concerning defendant's right to come to the defense of another person who might have been the initial aggressor, it would be proper for the court to instruct the jury concerning the limitation on an initial aggressor's right to assert self-defense, and the right of defendant to act upon a reasonable belief under the circumstances. People v. Silva, 987 P.2d 909 (Colo. App. 1999).

If a participant determines to withdraw from combat and he effectively communicates that intent to his opponent or opponents, then the requisite intent to commit the crime charged has been abandoned. Under these circumstances, the right of self-defense must be reinstated because there is no requirement in Colorado that one "retreat to the wall" before defending himself. People v. Beasley, 778 P.2d 304 (Colo. App. 1989).

Even if a person is a trespasser, the person does not have to "retreat to the wall" before using deadly force to defend himself, unless the person was the initial aggressor. The pattern jury instruction, COLJI-Crim No. 7:68-7 (15) (1983), improperly suggests that a person who is not an initial aggressor may not use physical force to defend himself if the person is not "where he had a right to be". People v. Toler, 981 P.2d 1096 (Colo. App. 1998), aff'd, 9 P.3d 341 (Colo. 2000).

But a trespasser who is subjected to lawful physical force by a property owner has no privilege under this section to use physical force in self-defense because the privilege applies only when the defendant faces unlawful force. Whether a defendant faces unlawful force will depend on whether the defendant entered the property unlawfully. In such a case, it is the better practice for the trial court to give an instruction to the jury indicating that, in determining whether a defendant unlawfully entered a dwelling and whether the defendant reasonably believed that unlawful force was used or imminent, the "make-my-day" provision in §18-1-704.5 should be considered. People v. Hayward, 55 P.3d 803 (Colo. App. 2002).

Question for jury. Evidence held to clearly justify the submission to the jury of the question as to whether or not the deceased was a person who manifestly intended and endeavored in a violent, riotous, or tumultuous manner to enter the habitation of the defendant for the purpose of assaulting or offering personal violence to any person dwelling or being therein. Bailey v. People, 54 Colo. 337, 130 P. 832 (1913).

Use of word "enormous" instead of "great" in instruction is improper. In an instruction defining the bodily harm to prevent which one may justifiably kill his assailant, the use of the word "enormous" instead of "great" is improper. Ritchey v. People, 23 Colo. 314, 47 P. 272 (1896).

Instruction on use of deadly physical force is to be used only if the victim died. Because no victim died, instruction that defendant was justified in use of physical force if he used that degree of force which he reasonably believed to be necessary was proper. People v. Silva, 987 P.2d 909 (Colo. App. 1999).

Defendant entitled to instruction on lesser offense of manslaughter. Where during the trial for first degree murder defendant presented a plausible case for self-defense, which even if the jury deemed it to be an overreaction, nevertheless would negate the elements of murder, the trial court should have instructed the jury on the lesser offense of manslaughter, as defendant requested. People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

Defendant entitled to have jury instructed on self-defense. A person charged with homicide and defending upon the ground of self-defense is entitled, upon request, to have the jury instructed, when there is conflicting testimony upon the evidence of apparent danger and apparent necessity to kill, as well as upon real danger and actual necessity, and in every aspect of the testimony. To refuse the instruction is a determination by the court of matter of fact, and deprives the accused of his constitutional right to a trial by jury. Young v. People, 47 Colo. 352, 107 P. 274 (1910).

A defendant is entitled to a self-defense instruction if there is any evidence in the record to support the theory that he acted in self-defense. People v. Dillon, 631 P.2d 1153 (Colo. App. 1981), rev'd on other grounds, 655 P.2d 841 (Colo. 1982); People v. Smith, 682 P.2d 493 (Colo. App. 1983).

There is an intent element in the consideration of "deadly" physical force. Since defendant's testimony created a dispute about whether he intended to produce death by use of force, the defendant is entitled to self-defense instructions related to both ordinary physical force and deadly physical force. People v. Vasquez, 148 P.3d 326 (Colo. App. 2006).

Defendant not entitled to jury instruction on self-defense where defendant did not admit to having engaged in the conduct that led to the charge and then offer self-defense as justification for his action. Also, defendant produced no evidence that he reasonably believed that unlawful force was about to be or was being used against him. People v. Whatley, 10 P.3d 668 (Colo. App. 2000).

The prosecution bears no burden in disproving self-defense when self-defense is not an affirmative defense. Self-defense is not an affirmative defense if the crime's mental state is recklessness, criminal negligence, or extreme indifference; rather, it is an element-negating traverse. The court did not err in instructing the jury that the prosecution did not bear the burden of disproving self-defense in relation to the reckless manslaughter charge. People v. Pickering, 276 P.3d 553 (Colo. 2011) (overruling People v. Lara, 224 P.3d 388 (Colo. App. 2009) and People v. Taylor, 230 P.3d 1227 (Colo. App. 2009)).

Defense of others is an element-changing defense against extreme indifference murder, rather than a mere circumstance for the jury to consider, and must be portrayed as such in instructions to the jury. People v. Lara, 224 P.3d 388 (Colo. App. 2009), overruled on other grounds in People v. Pickering, 276 P.3d 553 (Colo. 2011).

Prosecution must disprove that defendant acted in reasonable defense of a person in order to prove the elements of extreme indifference murder when that defense is asserted with credible evidence at trial. People v. Lara, 224 P.3d 388 (Colo. App. 2009), overruled in People v. Pickering, 276 P.3d 553 (Colo. 2011).

Court violated defendant's due process right by instructing jurors that prosecution "shall not have the burden of disproving self-defense", when defense of others is asserted with credible evidence at trial. People v. Lara, 224 P.3d 388 (Colo. App. 2009), overruled in People v. Pickering, 276 P.3d 553 (Colo. 2011).

Self-defense instruction is not necessary in every case where force or the threat of force is used, but only where there is evidence in the record to support it. People v. Dillon, 655 P.2d 841 (Colo. 1982); People v. Janes, 962 P.2d 315 (Colo. App. 1998).

The trial court properly refused to instruct the theory of self-defense because there was no evidence that the defendant reasonably believed that unlawful physical force was imminent against him. People v. Laurson, 15 P.3d 791 (Colo. App. 2000).

Even though the general assembly has defined self-defense in this section, it is not improper for the courts to instruct further upon the issue of self-defense. People v. Berry, 703 P.2d 613 (Colo. App. 1985).

The court's instruction for physical self-defense was sufficient. Generally, a jury instruction that tracks the statutory language is considered to be sufficient. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).

Self-defense instruction required for case involving unreasonable or excessive force during an arrest. Self-defense instruction is required when evidence has been presented that officers displayed weapons and were commanded to discharge them in course of effecting arrest and that their conduct was unreasonable or excessive under the circumstances. People v. Fuller, 781 P.2d 647 (Colo. 1989).

Defendant asserting self-defense, who was not initial aggressor, was entitled to jury instruction regarding no duty to retreat so as to dispel inference that lesser force would have been adequate. Idrogo v. People, 818 P.2d 752 (Colo. 1991); Cassels v. People, 92 P.3d 951 (Colo. 2004).

Defendant was entitled to a jury instruction on the doctrine of no retreat where, on cross examination, the prosecution elicited evidence that defendant had other choices besides killing her husband, implying that she could have retreated rather than kill him. Also, in closing, the prosecution argued that defendant had many choices besides using force upon her husband, including withdrawal from the situation. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 (Colo. 2001).

Self-defense is available as an affirmative defense against charge of heat of passion manslaughter. The general assembly has recognized a reasonable person, suddenly and unexpectedly confronted with potentially deadly or gravely injurious conduct does not act unreasonably by instinctively and passionately striking out at the source of such provoking conduct. Sanchez v. People, 820 P.2d 1103 (Colo. 1991).

Instructions on self-defense held proper. Hinton v. People, 169 Colo. 545, 458 P.2d 611 (1969); People v. Willner, 879 P.2d 19 (Colo. 1994).

In a case where some of the evidence indicated that defendant killed in self-defense to protect his person, an instruction to the effect that a defendant may safely act upon appearances to avoid apprehended danger even though it develops later that the appearances were false and that there was in effect no danger to do him serious injury is appropriate. People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973).

Instruction held denial of right of self-defense. An instruction to the effect that in order for the doctrine of self-defense to apply, the jury must believe that deceased intended to assault or kill the inmates of the house is error as a denial of the right of self-defense as defined in this section. Bailey v. People, 54 Colo. 337, 130 P. 832 (1913).

Instruction held denial of right to present a defense. When no evidence was presented at trial that defendant intended to provoke a fight with the victims or their friend for the purpose of inflicting injury upon them under a guise of provocation, an instruction on the issue of provoking the victim as an exception to self-defense violated the defendant's right to present a defense. People v. Silva, 987 P.2d 909 (Colo. App. 1999).

Instruction on self-defense held deficient because it only stated that self-defense is an affirmative defense to the crime of manslaughter if the defendant had reasonable grounds to believe, and did believe, that he or another person was in imminent danger or being killed or receiving great bodily injury; the instruction failed to inform the jury that self-defense is an affirmative defense if the deceased had been committing or reasonably appeared about to commit first or second degree assault. People v. Janes, 982 P.2d 300 (Colo. 1999).

An instruction that defendant must retreat to the wall is erroneous. Where the jury is instructed that the defendant in every case must retreat to the wall before he is entitled to resort to self-defense, the error is manifest. Ritchey v. People, 23 Colo. 314, 47 P. 272 (1896); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).

Instruction on combat by agreement held deficient because it provided no guidelines as to elements which must be proved by prosecution. People v. Cuevas, 740 P.2d 25 (Colo. App. 1987).

Self-defense may be asserted as a defense to attempted heat of passion manslaughter. Thomas v. People, 820 P.2d 656 (Colo. 1991).

Defendant charged with heat of passion manslaughter may assert a claim of self-defense. Evidence of low IQ and physical and sexual abuse of the defendant in the past is admissible to prove the claim of self defense. People v. Young, 825 P.2d 1004 (Colo. App. 1991).

Self-defense is an available defense against a charge of obstructing a peace officer when a defendant reasonably believes that unreasonable or excessive force is being used by the peace officer. People v. Barrus, 232 P.3d 264 (Colo. App. 2009).

As is instruction that slayer must have had no other probable means of escape. It was error to charge the jury to the effect that to justify homicide on the plea of self-defense it must appear that the slayer had no other possible, or at least probable, means of escaping. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).

When the "make-my-day" statute (§18-1-704.5) is being used as an affirmative defense, it is error for a jury instruction to place the burden on the defendant to prove the affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).

Assertion of error for failure to give instruction not well taken. Where the record discloses that the defendant did not tender nor request the giving of an instruction on self-defense, nor did he assign the court's failure to give the instruction as a ground for new trial, nor was there evidence to support the giving of such an instruction, for all these reasons the assertion of error for failure to give such instruction is not well taken. People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974).

Instruction on provocation of the victim given over defense objection held reversible error because the court failed to determine which issues were raised by the evidence prior to giving the instruction; accordingly, the error was not harmless because the giving of the instruction created a situation that could have been misleading and confusing to the jury. People v. Silva, 987 P.2d 909 (Colo. App. 1999).

Limitation of right to emergencies is erroneous. In a prosecution for murder an instruction on self-defense which advised the jury that the right of self-defense is based upon the law of necessity, and is only given in emergencies to persons who are attacked, was erroneous. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

Limitation right of self-defense to persons who do not bring on the difficulty themselves is too broad a statement. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

Defendant is entitled to present evidence of prior violent act of victim if: (1) The defendant contends that he acted in self-defense and there is competent evidence to support the contention; (2) either the act occurred or the defendant became aware of its occurrence within a reasonable time of the homicide; and (3) the defendant knew of the victim's prior violence at the time of the homicide. People v. Ferrell, 200 Colo. 128, 613 P.2d 324 (1980).

Spouse justified in aiding victimized spouse. A wife is clearly justified in attempting to aid her husband when he is the victim of an assault, and the husband's assailant who, as a result, then assaults the wife cannot claim that his actions were justified on the basis of self-defense. People v. Schliesser, 671 P.2d 993 (Colo. App. 1983).

Self-defense instruction is not appropriate where defendant presents evidence of "battered woman syndrome" but is on trial for contract-for-hire murder of her husband. People v. Yaklich, 833 P.2d 758 (Colo. App. 1991).

Self-defense instruction based on battered woman syndrome is not available in murder for-hire cases, regardless of the definition of "imminent" under this section. A defendant is entitled to an instruction embodying the defendant's theory of the case only if there is evidence to support the theory. In case where a wife hired her husband's killers, the wife's evidence that she suffered from battered woman syndrome was insufficient as a matter of law to support her theory that she was in imminent danger at the time her husband was killed. The trial court, therefore, erred in allowing a self-defense instruction. People v. Yaklich, 833 P.2d 758 (Colo. App. 1992).

Lay witness may offer opinion testimony on intent of victim if witness had sufficient opportunity to observe the person and draw a rational conclusion about the person's state of mind. People v. Jones, 907 P.2d 667 (Colo. App. 1995).

Whether use of knife in defense is excessive force is a jury question. People v. Smith, 682 P.2d 493 (Colo. App. 1983).

No error in refusing to instruct the jury regarding felony menacing where the record was devoid of any evidence or indication that the defendant could have held a reasonable belief that the man he threatened with a knife was engaged in the imminent use of unlawful physical force against defendant's brother. People v. Williams, 827 P.2d 612 (Colo. App. 1992).

Applied in Hardy v. People, 133 Colo. 201, 292 P.2d 973 (1956); Maes v. People, 166 Colo. 15, 441 P.2d 1 (1968); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979); People v. Jones, 675 P.2d 9 (Colo. 1984); People v. Reed, 695 P.2d 806 (Colo. App. 1984), cert. denied, 701 P.2d 603 (Colo. 1985).

1. The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
2. Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
3. Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
4. Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

HISTORY: Source: L. 85: Entire section added, p. 662, §1, effective June 6.

Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see §13-80-119.

ANNOTATION

Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).

Prerequisite for immunity under this section is an unlawful entry into the dwelling, meaning a knowing, criminal entry. People v. McNeese, 892 P.2d 304 (Colo. 1995).

To be immune from prosecution under this section a defendant must establish by a preponderance of the evidence that he or she had a reasonable belief that the intruder was committing or intended to commit a crime against a person or property in addition to the uninvited entry. This inquiry focuses on the reasonable belief of the occupant, not on the actual conduct of the intruder. People v. McNeese, 892 P.2d 304 (Colo. 1995).

Sufficient evidence existed to support trial court's denial of defendant's pre-trial motion to dismiss on the basis defendant had not met his burden as established by the supreme court. People v. Janes, 962 P.2d 315 (Colo. App. 1998).

Trial court is authorized to dismiss criminal prosecution at pretrial stage when conditions of statute are satisfied, and this does not infringe upon prosecution's discretion to file charges. People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987).

Defendant bears burden of establishing right to immunity by preponderance of evidence when issue of immunity is raised at pre-trial stage. People v. Guenther, 740 P.2d 971 (Colo. 1987); People v. Eckert, 919 P.2d 962 (Colo. App. 1996).

Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).

Defendant may still raise immunity as defense at trial when pretrial motion to dismiss is denied. People v. Guenther, 740 P.2d 971 (Colo. 1987).

For purposes of this section, the common areas of an apartment building do not constitute a dwelling. People v. Cushinberry, 855 P.2d 18 (Colo. App. 1993).

Where pretrial motion to dismiss on grounds of statutory immunity provided in this section is denied, defendant may raise it as an affirmative defense at trial. In such case, the burden of proof which is generally applicable to affirmative defenses would apply. People v. Malczewski, 744 P.2d 62 (Colo. 1987).

Section does not authorize an appeal from a pretrial order denying immunity. An order denying defendant's pretrial motion to dismiss under the "make-my-day" statute is not a final judgment and therefore not subject to appeal. In general, the jury's verdict subsumes the trial court's pretrial ruling. A defendant may, however, seek review prior to trial under C.A.R. 21. Wood v. People, 255 P.3d 1136 (Colo. 2011).

Because this section creates an immunity defense as well as an affirmative defense, and because the burden of proof for each defense is different, when raised at trial, this section poses special problems when instructing a jury. In such a case, instruction based on language from People v. McNeese, which dealt with pretrial immunity, must be put into context so as not to confuse or mislead the jury about the burden of proof with respect to an affirmative defense raised at trial. People v. Janes, 982 P.2d 300 (Colo. 1999).

Defendant did not establish by a preponderance of the evidence that he was entitled to immunity under this section where he could not show the struggle and wounding of the victim took place in defendant's bedroom of the house he shared with the victim. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).

Trial court did not commit reversible error by refusing to instruct the jury that it need only determine whether the victim made an unlawful entry into a part of a dwelling that was occupied by defendant, as defendant failed to show that the bedroom was exclusively his province and that the victim's entry into the bedroom was unlawful. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).

Instruction requiring jury to find that defendant had a reasonable belief that victim "had committed" a crime and omitting "was committing or intended to commit" a crime was erroneous but did not constitute plain error. There was no evidence that the victim's entry into defendant's house was unlawful and, therefore, no basis on which a reasonable jury could have otherwise acquitted defendant under this section. People v. Phillips, 91 P.3d 476 (Colo. App. 2004).

Jury instructions in error. Jury instruction that states that entry into a dwelling "must have been made in knowing violation of the law" could mislead the jury and thus is in error. Language is misleading in that it could be taken to mean that an intruder must know his or her conduct violates a criminal statute rather than that the intruder must not have a reasonable belief that his or her entry is licensed, invited, or otherwise privileged. People v. Zukowski, 260 P.3d 339 (Colo. App. 2010).

Jury instruction that states "[a]n entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law" allows an interpretation that the entry would not be unlawful under the make-my-day statute, and, thus, the instruction is also in error. An intruder may act under a mistaken belief of fact that he or she was lawfully on the premises and that this type of entry would not be unlawful under the make-my-day statute. A mistaken belief that an entry, although uninvited, is lawful does not make it lawful. People v. Zukowski, 260 P.3d 339 (Colo. App. 2010).

Trial court erred in interpreting subsection (2) as including the concept of "remain lawfully" within the statutory phrase "unlawful entry". Defendant failed to establish the legal elements of this section to bar prosecution where the victim was initially invited into defendant's residence and, after arguing, was later asked to leave. People v. Drennon, 860 P.2d 589 (Colo. App. 1993).

The reference to "uninvited entry" in subsection (2) refers back to the term "unlawful entry" used in the same subsection. People v. McNeese, 892 P.2d 304 (Colo. 1995).

Victim's entry was unlawful and uninvited for the purposes of statute providing immunity for use of force where wife of murder victim did not have authority to invite the decedent into defendant's apartment and was staying with the defendant on the condition that she not invite the victim into defendant's apartment. People v. McNeese, 865 P.2d 881 (Colo. App. 1993).

When this section is being used as an affirmative defense, it is error for a jury instruction to place the burden on the defendant to prove the affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).

Applied in People v. Arellano, 743 P.2d 431 (Colo. 1987).

A person in possession or control of any building, realty, or other premises, or a person who is licensed or privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person when and to the extent that it is reasonably necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, realty, or premises. However, he may use deadly force only in defense of himself or another as described in section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit first degree arson.

HISTORY: Source: L. 71: R&RE, p. 409, §1. C.R.S. 1963: §40-1-805.

Cross references: For first degree arson, see §18-4-102.

ANNOTATION

Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).

Common-law doctrine of retreat not applicable. Where the jury was told that though the defendant was in his place of business, and was in no way the aggressor, a deadly and unprovoked assault was made upon him by one armed with a loaded pistol, he was under duty to flee unless it was more dangerous to retreat than to fight, it was held a pernicious application of the common-law doctrine of retreat to the wall long since abrogated in this jurisdiction. Enyart v. People, 67 Colo. 434, 180 P. 722 (1919) (decided under R.S. 08, §1634).

One cannot instantly kill in defense of property. While a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot instantly carry his defense to the extent of killing the aggressor. If no other way is open, he must yield and get himself righted by resort to the law. Bush v. People, 10 Colo. 566, 16 P. 290 (1887) (decided under G. S. §721).

This section is not, by its terms, inapplicable to unlawful entries where the trespassers happen to be police officers. People v. Lutz, 762 P.2d 715 (Colo. App. 1988).

A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704.

HISTORY: Source: L. 71: R&RE, p. 409, §1. C.R.S. 1963: §40-1-806.

Cross references: For theft, see part 4 of article 4 of this title; for criminal mischief, see §18-4-501; for criminal tampering, see §§18-4-505 and 18-4-506.

ANNOTATION

Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).

One cannot instantly kill in defense of property. While a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot instantly carry his defense to the extent of killing the aggressor. If no other way is open, he must yield and get himself righted by resort to the law. Bush v. People, 10 Colo. 566, 16 P. 290 (1887) (decided under G. S. §721).

When instruction on defense appropriate. A defendant is entitled to a jury instruction on an affirmative defense only if evidence in the record supports it. Here record does not support entitlement to instruction. People v. Goedecke, 730 P.2d 900 (Colo. App. 1986).

1. Except as provided in subsection (2) of this section, a peace officer is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary:
   1. To effect an arrest or to prevent the escape from custody of an arrested person unless he knows that the arrest is unauthorized; or
   2. To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect such an arrest or while preventing or attempting to prevent such an escape.
2. A peace officer is justified in using deadly physical force upon another person for a purpose specified in subsection (1) of this section only when he reasonably believes that it is necessary:
   1. To defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or
   2. To effect an arrest, or to prevent the escape from custody, of a person whom he reasonably believes:
      1. Has committed or attempted to commit a felony involving the use or threatened use of a deadly weapon; or
      2. Is attempting to escape by the use of a deadly weapon; or
      3. Otherwise indicates, except through a motor vehicle violation, that he is likely to endanger human life or to inflict serious bodily injury to another unless apprehended without delay.
3. Nothing in subsection (2) (b) of this section shall be deemed to constitute justification for reckless or criminally negligent conduct by a peace officer amounting to an offense against or with respect to innocent persons whom he is not seeking to arrest or retain in custody.
4. For purposes of this section, a reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the believed facts or circumstances would not in law constitute an offense, an erroneous though not unreasonable belief that the law is otherwise does not render justifiable the use of force to make an arrest or to prevent an escape from custody. A peace officer who is effecting an arrest pursuant to a warrant is justified in using the physical force prescribed in subsections (1) and (2) of this section unless the warrant is invalid and is known by the officer to be invalid.
5. Except as provided in subsection (6) of this section, a person who has been directed by a peace officer to assist him to effect an arrest or to prevent an escape from custody is justified in using reasonable and appropriate physical force when and to the extent that he reasonably believes that force to be necessary to carry out the peace officer's direction, unless he knows that the arrest or prospective arrest is not authorized.
6. A person who has been directed to assist a peace officer under circumstances specified in subsection (5) of this section may use deadly physical force to effect an arrest or to prevent an escape only when:
   1. He reasonably believes that force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or
   2. He is directed or authorized by the peace officer to use deadly physical force and does not know, if that happens to be the case, that the peace officer himself is not authorized to use deadly physical force under the circumstances.
7. A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force.
8. A guard or peace officer employed in a detention facility is justified:
   1. In using deadly physical force when he reasonably believes it necessary to prevent the escape of a prisoner convicted of, charged with, or held for a felony or confined under the maximum security rules of any detention facility as such facility is defined in subsection (9) of this section;
   2. In using reasonable and appropriate physical force, but not deadly physical force, in all other circumstances when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be the escape of a prisoner from a detention facility.
9. "Detention facility" as used in subsection (8) of this section means any place maintained for the confinement, pursuant to law, of persons charged with or convicted of an offense, held pursuant to the "Colorado Children's Code", held for extradition, or otherwise confined pursuant to an order of a court.

HISTORY: Source: L. 71: R&RE, p. 410, §1. C.R.S. 1963: §40-1-807.L. 75: (2)(b) R&RE, p. 616, §2, effective July 21.

Cross references: For the "Colorado Children's Code", see title 19.

ANNOTATION

Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995). For article, "Constitutional Issues in the Criminal Prosecution of Law Enforcement Officers", see 33 Colo. Law. 55 (March 2004). For article, "Police Use of Force Standards Under Colorado and Federal Law", see 36 Colo. Law. 47 (May 2007).

Annotator's note. Since §18-1-707 is similar to former §40-2-16, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Officer may use reasonable force to protect himself or detain offender. An officer who is making a lawful arrest, or has made an arrest, is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and to protect himself from bodily harm; but he is never justified in using unnecessary force or treating his prisoner with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise. People ex rel. Little v. Hutchinson, 9 F.2d 275 (8th Cir. 1925).

Officer cannot use excessive force in making an arrest or bringing one into submission. McDaniel v. People, 179 Colo. 153, 499 P.2d 613, cert. denied, 409 U.S. 1060, 93 S. Ct. 558, 34 L. Ed. 2d 512 (1972).

Officer is not required to retreat. A police officer who is assaulted by one whom he is lawfully attempting to arrest is not required to retreat to the wall before resorting to such defensive measures as may reasonably seem necessary to protect himself against loss of life or great bodily injury. Boykin v. People, 22 Colo. 496, 45 P. 419 (1896).

Authority to take life based on apparent necessity. This section does not clothe an officer with authority to judge arbitrarily that it is necessary to take life in order to prevent the rescue of his prisoner. He is not warranted in taking life unless there is an apparent necessity for it and if he does so he is not permitted to take shelter behind his official character. Campbell v. People, 55 Colo. 302, 133 P. 1043 (1913).

Use of force is ordinarily a question for jury. An officer who intentionally uses more force than is reasonably necessary in making an arrest is oppressively discharging the duties of his office. What amounts to reasonable force depends upon the facts of each particular case and is ordinarily a question of fact for the jury. People ex rel. Little v. Hutchinson, 9 F.2d 275 (8th Cir. 1925); People v. Fuller, 756 P.2d 390 (Colo. App. 1987), aff'd in part and rev'd in part on other grounds, 781 P.2d 647 (Colo. 1989).

The question of the absence or existence of the necessity to take the life of a prisoner is finally for the jury. Campbell v. People, 55 Colo. 302, 133 P. 1043 (1913).

Police officer's actions were not within section. Where complaining witness remarked that the police officer was "some kind of a pig" when the officer twice refused to tell the complaining witness why he was being arrested and the officer reacted by pulling his revolver on the complaining witness, the officer's actions were not within the statute authorizing the use of deadly physical force. Johns v. District Court, 192 Colo. 462, 561 P.2d 1 (1977).

Before a private person can use physical force to effect an arrest pursuant to subsection (7), the arrest must first be authorized under §16-3-201. People v. Joyce, 68 P.3d 521 (Colo. App. 2002).

In addition, the person on whom physical force is used under subsection (7) must have either committed a crime in the presence of or attempted escape from custody in the presence of the person using the physical force. People v. Joyce, 68 P.3d 521 (Colo. App. 2002).

A person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof. The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application.

HISTORY: Source: L. 71: R&RE, p. 411, §1. C.R.S. 1963: §40-1-808.L. 88: Entire section amended, p. 712, §15, effective July 1.

ANNOTATION

Defense of choice of evils is very similar to duress and the foundation requirements set forth in the choice of evils statute was intended as a safeguard against abuse of the defense. People v. Strock, 623 P.2d 42 (Colo. 1981).

Defense available where imminent threat of use of unlawful force. Generally, where the threat of unlawful use of force is alleged, this defense is available only if the threat is one of present, impending, and imminent use of force, and a threat of future injury is not enough. People v. Maes, 41 Colo. App. 75, 583 P.2d 942 (1978).

Defendant must show specific and imminent threat. The defense of duress is unavailable unless a defendant shows a specific and imminent threat of injury to his person under circumstances which leave him no reasonable alternative other than the violation of the law for which he stands charged; mere speculation that injury may occur is not sufficient. Bailey v. People, 630 P.2d 1062 (Colo. 1981); People v. Speer, 255 P.3d 1115 (Colo. 2011).

A defendant must make a threshold showing of: (1) An immediate threat of death or bodily injury; (2) a well-grounded fear the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm. People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002); People v. Speer, 255 P.3d 1115 (Colo. 2011).

Any threat must be more than mere speculation or a veiled threat of unspecified future harm. People v. Trujillo, 586 P.2d 235 (Colo. App. 1978); People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002).

Prosecution to establish lack of duress. Because duress is an affirmative defense, the prosecution must establish, beyond a reasonable doubt, the defendant's guilt as to that issue. Bailey v. People, 630 P.2d 1062 (Colo. 1981).

When an accused presents some credible evidence on the issue of duress, the prosecution must establish beyond a reasonable doubt the defendant's guilt as to that issue as well as all other elements of the offense. People v. Quintana, 665 P.2d 605 (Colo. 1983).

Whether threat is imminent is question of fact. The question whether a threat is imminent is, in all but the clearest of cases, to be decided by the trier of fact after considering all of the surrounding circumstances, including the defendant's opportunity and ability to avoid the harm. People v. Maes, 41 Colo. App. 75, 583 P.2d 942 (1978); People v. Speer, 216 P.3d 18 (Colo. App. 2007).

Where defendant improperly denied opportunity to present evidence on issue. Where a defendant was allowed to testify only about the most recent of a series of events occurring over a five-month period, he was unreasonably deprived of the opportunity to detail the evidence that would lend credence to his affirmative defense under this section. People v. Trujillo, 41 Colo. App. 223, 586 P.2d 235 (1978).

Where evidence goes to defendant credibility rather than submissibility of defense. Where a defendant testifies that he was specifically threatened with injury to himself and to his family if he refused to hold contraband or if he reported the incident to the authorities, his failure to identify the person who threatened him goes to the credibility of the explanation, rather than to the submissibility of the defense to the jury. People v. Maes, 41 Colo. App. 75, 583 P.2d 942 (1978).

Defense not available to escapee unless he immediately reports duress, or choice of evils, which he faced to the proper authorities when a position of safety is reached. People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979).

The trial court erred in allowing jury instruction on the affirmative defense of duress in a contract for murder case where a wife claiming that she suffered from battered woman syndrome hired her husband's killers. There was no evidence that the defendant acted at the direction of another person. Although this section did not require that person act at the direction of another person at the time of the murder, case law required such a condition to exist. People v. Yaklich, 833 P.2d 758 (Colo. App. 1992).

No error in district court's rejection of defendant's proffered jury instruction concerning duress. Where it was undisputed that defendant had a gun and drove himself to the scene of the crime, the court found that there was no evidence from which a reasonable jury could conclude that defendant acted under duress. People v. Speer, 255 P.3d 1115 (Colo. 2011).

The common-law theory that control by the husband is presumed was abolished by statute. The law of this state requires the coercion by the husband to be proved. Dalton v. People, 68 Colo. 44, 189 P. 37 (1920) (decided under R. S. 08, §1616).

Applied in People v. DeJesus, 184 Colo. 230, 519 P.2d 944 (1974); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978).

The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used.

HISTORY: Source: L. 71: R&RE, p. 411, §1. C.R.S. 1963: §40-1-809.

ANNOTATION

Law reviews. For article, "Criminal Law", which discusses a Tenth Circuit decision dealing with the entrapment defense, see 61 Den. L.J. 272 (1984). For article, "The Entrapment Defense in Colorado", see 40 Colo. Law. 47 (January 2011).

Entrapment may be asserted as an affirmative defense only to acts that would otherwise constitute an offense and is not applicable to sentencing provisions such as the sentence enhancing provisions of §18-18-107, which merely impact the degree of punishment imposed. Vega v. People, 893 P.2d 107 (Colo. 1995).

The defense of entrapment has long been recognized in Colorado when the prosecution, through its agents, in fact, induces, instigates, and causes a criminal offense to be committed. People v. Bucher, 182 Colo. 211, 511 P.2d 895 (1973).

States are free to define defense of entrapment as they choose, since it is not of constitutional stature. Bailey v. People, 630 P.2d 1062 (Colo. 1981).

This section is patterned upon §40.05 of article 40 N.Y. Penal Law Consol. Bailey v. People, 630 P.2d 1062 (Colo. 1981).

Detection of crime distinguished from entrapment. A suspected person may be tested by being offered the opportunity to transgress the law in such a manner as is usual in the activity alleged to be unlawful. However, law enforcement officers may not induce persons, who would not otherwise have committed the crime, to violate the law. The former is legitimate "detection" of crime. The latter is "entrapment" to commit the crime in which the officer's conduct instigates the offense, the commission of which was nonexistent in the mind of the intended victim of the entrapment. Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969).

To prove entrapment, the defense must show that the prosecution played the primary role. People v. Bucher, 182 Colo. 211, 511 P.2d 895 (1973).

Test of entrapment focuses on defendant's conduct. In determining whether the affirmative defense of entrapment exists, the court focuses on the conduct of the defendant. An examination is made of the circumstances surrounding the sale to see whether the officers merely afforded the defendant the opportunity to commit the offense, or whether the defendant had been improperly induced to do something he otherwise would not have done. People v. Williams, 654 P.2d 319 (Colo. App. 1982).

Entrapment is a subjective test that focuses on a defendant's state of mind. This section does not set forth general standards for police conduct. Thus, evidence of federal drug enforcement agency's system for rewarding and promoting agents was irrelevant to a narcotics case where entrapment issue was raised. People v. Aponte, 867 P.2d 183 (Colo. App. 1993); Vega v. People, 893 P.2d 107 (Colo. 1995).

While police methods are relevant to the defense of entrapment, police motives are not relevant because they do not impact the subjective state of mind of the defendant. However, such motives may be relevant for the purpose of establishing bias in DEA agents' testimony. Vega v. People, 893 P.2d 107 (Colo. 1995).

This section codifies subjective test, as the defendant's predisposition to commit the crime, rather than the conduct of the government agent, remains the dispositive factor in determining whether entrapment has occurred. People v. Sanchez, 40 Colo. App. 552, 580 P.2d 1270 (1978); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 (Colo. 1981).

However, the carefully crafted requirements of the entrapment statute are swept aside by a jury instruction which selectively excerpted the statement from Bailey v. People (630 P.2d 1062 (Colo. 1981)) that "the defendant's predisposition to commit the crime, rather than the conduct of the [police, is] the dispositive factor.", because statements from opinions do not necessarily translate with clarity into jury instructions. Evans v. People, 706 P.2d 795 (Colo. 1985).

This section creates a subjective test which is concerned with the state of mind of a particular defendant; it does not set general standards for police conduct. Thus, evidence of a law enforcement agency's internal reward system generally would not be relevant to whether a particular defendant was entrapped. People v. Vega, 870 P.2d 549 (Colo. App. 1993).

Section requires the defendant to admit committing the acts before being entitled to assert the defense of entrapment. The court did not err in refusing to give an instruction on the defense when the defendant denied committing the acts. People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001); People v. Grizzle, 140 P.3d 224 (Colo. App. 2006).

Elements of the defense: (1) The defendant must be a person who, but for the offered inducement offered, would not have conceived of or engaged in conduct of the sort induced; (2) the defendant must in fact have engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and not as a result of the defendant's own predisposition; (3) the methods used to obtain such evidence must have been such as to create a substantial risk that this particular defendant would engage in the sort of conduct induced; and (4) the methods used must have been more persuasive than merely affording the defendant an opportunity to commit an offense, even when such an opportunity was coupled with representations or inducements calculated to overcome the defendant's fear of detection. Evans v. People, 706 P.2d 795 (Colo. 1985).

Predisposition and inducement are inextricably interwoven within the first three elements of the defense. Evans v. People, 706 P.2d 795 (Colo. 1985).

Existence of any predisposition on the part of the defendant must be determined first; then the extent of any such predisposition must be considered in relation to the character of the inducements to determine whether the second and third elements have been satisfied. Evans v. People, 706 P.2d 795 (Colo. 1985).

Prosecution must prove defendant not entrapped. The prosecution must prove beyond a reasonable doubt that the defendant was not entrapped. People v. Williams, 654 P.2d 319 (Colo. App. 1982).

Prosecution may rely solely on the defendant's predisposition only if they are able to prove that the defendant would have committed the crime even if the police had offered no inducement more persuasive than merely affording the defendant an opportunity to commit the crime. Evans v. People, 706 P.2d 795 (Colo. 1985).

In reviewing the sufficiency of predisposition evidence, courts may rely upon evidence obtained after the government's initial contact with the defendant, so long as such evidence is relevant to the defendant's state of mind as it existed prior to the government's suggestion of the crime. People v. Sprouse, 983 P.2d 771 (Colo. 1999).

Intent to commit the crime must originate with the defendant. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).

Entrapment operates where police originate criminal intent. Entrapment occurs only when the criminal conduct is the product of the creative activity of law enforcement officials, that is, only where the criminal design originates in the mind of the police officer and not with the accused. Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969); People v. Hankin, 179 Colo. 70, 498 P.2d 1116 (1972).

One who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of entrapment. Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969).

Notwithstanding aim of capturing old offenders. When detectives suggest the commission of a crime and instigate others to take part in its commission in order to arrest them while in the act, although the purpose may be to capture old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked rather than encouraged by the courts. Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969).

And not where officer merely supplies opportunity for crime. Defense of entrapment is not available where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent. Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 (Colo. 1981).

The Colorado courts have drawn a strong distinction between the seduction by a government agent of an innocent person into doing an unlawful act not contemplated by him, and a government agent affording an opportunity to one who has the intent and design to commit a criminal offense to do so. The first situation affords a complete defense to one charged with a crime under those circumstances, but the second is a perfectly proper tool in the arsenal of law enforcement agents. People v. Simmons, 179 Colo. 431, 501 P.2d 119 (1972).

Entrapment does not occur when government agent merely offers person the opportunity to commit the offense. People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973).

When an undercover police agent merely provides one with the opportunity to transgress the law, there is no entrapment. People v. Ross, 182 Colo. 267, 512 P.2d 1154 (1973).

There is no entrapment when the representations of a government agent merely afford an opportunity for the defendant to commit a criminal act in the belief that the representations were true. People v. Adler, 629 P.2d 569 (Colo. 1981).

There is no entrapment if the police agent merely furnishes an opportunity for the criminal act to one ready and willing to commit it. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).

The plain wording of this section indicates that the defense of entrapment cannot be established in those cases where the police merely furnish the defendant with an opportunity to commit a crime. People v. Jackson, 627 P.2d 741 (Colo. 1981).

The mere use of an undercover agent does not prove that the prosecution induced the crime and thereby vitiated any subsequent conviction of the crime. People v. Bucher, 182 Colo. 211, 511 P.2d 895 (1973).

Question of fact. Where many of the elements of entrapment are in the record in a libel case, but on the issue of good faith and belief in the truth of the statements made there is at least a doubt, summary judgment should not be granted. Abrahamsen v. Mountain States Tel. Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972).

Entrapment defense available where agent induced, instigated, and caused commission of offense. The defense of entrapment is available only where the defendant shows that law enforcement agents, in fact, induced, instigated, and caused a criminal offense to be committed. People v. Jackson, 627 P.2d 741 (Colo. 1981).

Entrapment not present simply because defendant initially approached victim with humanitarian intentions. When the defendant testified that although he approached the apparent drunk (decoy police officer) with humanitarian intentions, he later decided that if dead the drunk would have no further use of his money, the police agents provided only an opportunity for a thief who was ready and willing and thus entrapment was not present as a matter of law. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).

Entrapment in narcotics cases. Where released narcotics suspect agrees to make arrangements for undercover police agents to purchase dangerous drugs, and where he notifies police that defendant has LSD for sale and arranges a meeting which results in defendant's selling LSD to police, entrapment is not established. People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973).

Entrapment does not consist of mere act of making sale to person who has offered to purchase narcotics. People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973).

Defense of entrapment is not intended to be escape hatch for those who mistakenly sell narcotics to police officer. When person who has narcotics for sale is ready, willing, and able to effect sale with no more than ordinary persuasion, he has not been entrapped and must suffer consequences for dispensing or selling narcotics. People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973).

Encouragement by police informant for a defendant to import cocaine into this state did not amount to outrageous conduct. People v. Aponte, 867 P.2d 183 (Colo. App. 1993).

Even if undercover police agent sought out drugs and asked defendant if she had any or knew where she could get some, this behavior did not constitute entrapment. People v. Ross, 182 Colo. 267, 512 P.2d 1154 (1973); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 (Colo. 1981).

Fourteenth amendment violated when a jury instruction could lead a jury to believe that it was enough for the prosecution to prove that the defendant has some predisposition to commit the crime. Evans v. People, 706 P.2d 795 (Colo. 1985).

Court did not err in refusing to instruct jury on entrapment as an affirmative defense. Since entrapment is an affirmative defense, it only applies if the defendant admits to committing the crime. In this case, the only contested issue was whether the substance was a controlled substance. Since defendant had to distribute a controlled substance to commit the crime, by disputing that the substance was a controlled substance, defendant did not admit to all elements of the crime. Thus, defendant was not entitled to an entrapment defense instruction. People v. Santana, 240 P.3d 302 (Colo. App. 2009), rev'd on other grounds, 255 P.3d 1126 (Colo. 2011); People v. Taylor, 2012 COA 91, -- P.3d --.

Evidence held insufficient to establish entrapment. People v. Simmons, 179 Colo. 431, 501 P.2d 119 (1972).

The issues of justification or exemption from criminal liability under sections 18-1-701 to 18-1-709 are affirmative defenses.

HISTORY: Source: L. 71: R&RE, p. 412, §1. C.R.S. 1963: §40-1-810.

Cross references: For the affirmative defense of impaired mental condition, see §§16-8-103.5 and 18-1-803; for other provisions concerning affirmative defenses generally, see §§18-1-407 and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title.

ANNOTATION

Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).

If evidence is intended to show entrapment, it should be presented in defendant's case-in-chief, since entrapment is an affirmative defense. People v. McKay, 191 Colo. 381, 553 P.2d 380 (1976).

Heat of passion is not an affirmative defense to first-degree or second-degree murder and no jury instruction regarding heat of passion needs to be given. People v. Carrier, 791 P.2d 1204 (Colo. App. 1989).

Applied in Bailey v. People, 630 P.2d 1062 (Colo. 1981); People v. Rex, 636 P.2d 1282 (Colo. App. 1981).

A person commits a class 6 felony if, without legal authority, he has any loaded firearm or explosive or incendiary device, as defined in section 9-7-103, C.R.S., in his possession in, or carries, brings, or causes to be carried or brought any of such items into, any facility of public transportation, as defined in section 18-9-115 (4).

HISTORY: Source: L. 77: Entire section added, p. 976, §7, effective June 29.L. 89: Entire section amended, p. 841, §89, effective July 1.

1. As used in this article, unless the context otherwise requires:
   1. "Adult" means any person eighteen years of age or older.
      • a.3. "Ballistic knife" means any knife that has a blade which is forcefully projected from the handle by means of a spring-loaded device or explosive charge.
      • a.5. "Blackjack" includes any billy, sand club, sandbag, or other hand-operated striking weapon consisting, at the striking end, of an encased piece of lead or other heavy substance and, at the handle end, a strap or springy shaft which increases the force of impact.
   2. "Bomb" means any explosive or incendiary device or molotov cocktail as defined in section 9-7-103, C.R.S., or any chemical device which causes or can cause an explosion, which is not specifically designed for lawful and legitimate use in the hands of its possessor.
      • b.5 "Bureau" means the Colorado bureau of investigation created in section 24-33.5-401, C.R.S.
   3. "Firearm silencer" means any instrument, attachment, weapon, or appliance for causing the firing of any gun, revolver, pistol, or other firearm to be silent or intended to lessen or muffle the noise of the firing of any such weapon.
   4. "Gas gun" means a device designed for projecting gas-filled projectiles which release their contents after having been projected from the device and includes projectiles designed for use in such a device.
   5. "Gravity knife" means any knife that has a blade released from the handle or sheath thereof by the force of gravity or the application of centrifugal force.
      • e.5. "Handgun" means a pistol, revolver, or other firearm of any description, loaded or unloaded, from which any shot, bullet, or other missile can be discharged, the length of the barrel of which, not including any revolving, detachable, or magazine breech, does not exceed twelve inches.
      • e.7. "Juvenile" means any person under the age of eighteen years.
   6. "Knife" means any dagger, dirk, knife, or stiletto with a blade over three and one-half inches in length, or any other dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds, but does not include a hunting or fishing knife carried for sports use. The issue that a knife is a hunting or fishing knife must be raised as an affirmative defense.
   7. "Machine gun" means any firearm, whatever its size and usual designation, that shoots automatically more than one shot, without manual reloading, by a single function of the trigger.
   8. "Short rifle" means a rifle having a barrel less than sixteen inches long or an overall length of less than twenty-six inches.
   9. "Short shotgun" means a shotgun having a barrel or barrels less than eighteen inches long or an overall length of less than twenty-six inches.
      • i.5. "Stun gun" means a device capable of temporarily immobilizing a person by the infliction of an electrical charge.
   10. "Switchblade knife" means any knife, the blade of which opens automatically by hand pressure applied to a button, spring, or other device in its handle.
2. It shall be an affirmative defense to any provision of this article that the act was committed by a peace officer in the lawful discharge of his duties.

HISTORY: Source:. L. 71: R&RE, p. 481, §1. C.R.S. 1963: §40-12-101.L. 73: p. 540, §12.L. 87: (1)(a) R&RE and (1)(a.5) and (1)(i.5) added, p. 674, §§1, 2, effective May 16.L. 91: (1)(b) amended, p. 407, §17, effective June 6.L. 93, 1st Ex. Sess.: (1)(a) amended and (1)(a.3), (1)(e.5), and (1)(e.7) added, p. 1, §1, effective September 13.L. 2007: (1)(e) amended, p. 1688, §6, effective July 1.L. 2013: (1)(b.5) added, (HB 13-1229), ch. 47, p. 137, §6, effective March 20.

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading.

Cross references: For affirmative defenses generally, see §§18-1-407, 18-1-710, and 18-1-805.

ANNOTATION

Definition of "knife" in subsection (1)(f) is not void for vagueness or overbreadth. Where defendant possessed a screwdriver with specific intent to use it as a weapon, elements of crime defined in §18-12-108 were present. People v. Gross, 830 P.2d 933 (Colo. 1992).

Defendant's intent to use an object as a weapon is not established by the object's appearance alone, even if the appearance demonstrates that its primary use is as a weapon; this test does not follow Gross and is contrary to the plain language of the concealed weapons statute. A.P.E. v. People, 20 P.3d 1179 (Colo. 2001).

The definition of "knife" in subsection (1)(f) is sufficiently specific to give fair warning of the proscribed conduct and is therefore constitutional. In applying the definition under §18-12-108, the prosecution must prove that one of the intended uses of the instrument by the defendant was as a weapon. People v. Gross, 830 P.2d 933 (Colo. 1992).

As the term "knife" is not specifically defined in the deadly weapons statute, the meaning of "knife" anywhere it is used in this article is specifically limited by the definition contained in subsection (1)(f) regardless of cross reference to the broader deadly weapons statute. People ex rel. J.W.T., 93 P.3d 580 (Colo. App. 2004).

Applied in Miller v. District Court, 193 Colo. 404, 566 P.2d 1063 (1977).

1. As used in this section, the term "dangerous weapon" means a firearm silencer, machine gun, short shotgun, short rifle, or ballistic knife.
2. As used in this section, the term "illegal weapon" means a blackjack, gas gun, metallic knuckles, gravity knife, or switchblade knife.
3. A person who knowingly possesses a dangerous weapon commits a class 5 felony. Each subsequent violation of this subsection (3) by the same person shall be a class 4 felony.
4. A person who knowingly possesses an illegal weapon commits a class 1 misdemeanor.
5. It shall be an affirmative defense to the charge of possessing a dangerous weapon, or to the charge of possessing an illegal weapon, that the person so accused was a peace officer or member of the armed forces of the United States or Colorado National Guard acting in the lawful discharge of his duties, or that said person has a valid permit and license for possession of such weapon.

HISTORY: Source:. L. 71: R&RE, p. 482, §1. C.R.S. 1963: §40-12-102.L. 72: p. 276, §9.L. 73: p. 540, §13.L. 79: Entire section R&RE, p. 729, §10, effective July 1.L. 87: (1) amended, p. 674, §3, effective May 16.

Cross references: For affirmative defenses generally, see §§18-1-407, 18-1-710, and 18-1-805.

ANNOTATION

Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to unloaded guns as dangerous weapons, see 15 Colo. Law. 1612 (1986).

The prohibition against possession of illegal weapons in subsection (4) is neither facially void for vagueness as to the prohibition of possession of "metallic knuckles", nor unconstitutionally vague as applied to the defendant. People ex rel. A.P.E., 988 P.2d 172 (Colo. App. 1999), rev'd on other grounds, 20 P.3d 1179 (Colo. 2001).

Possession of an illegal weapon under subsection (4) is a lesser included offense of possession of weapon by a previous offender under §18-12-108 (1) when the same weapon is alleged in each charge. People v. Brown, 119 P.3d 486 (Colo. App. 2004).

Whether inoperable weapon is a dangerous one is question of fact. When a prosecution under this section involves a weapon that is inoperable for some reason, whether the weapon is a dangerous one is a question of fact. In considering this question, the trier of fact must weigh a variety of factors, including the time required, the changes that have to be made in the weapon, the parts which have to be inserted, and all the other attendant factors and circumstances. People v. Vigil, 758 P.2d 670 (Colo. 1988).

"A firecracker in a beer bottle" could constitute a molotov cocktail, ergo a bomb, which under former section was an illegal weapon. Miller v. District Court, 193 Colo. 404, 566 P.2d 1063 (1977).

Defendant could not be convicted of carrying a concealed weapon without the prosecution proving that defendant intended to use this short-bladed knife as a weapon. While the characteristics of an instrument may be an important factor in determining the intended purpose of an instrument, the language of the concealed weapons statute and established precedent establishes that a knife's design does not, by itself, prove that the person carrying it intended to use it as a weapon. A.P.E. v. People, 20 P.3d 1179 (Colo. 2001).

Applied in People v. Taylor, 647 P.2d 682 (Colo. 1982).

A person commits a class 1 misdemeanor if he knowingly and unlawfully possesses a firearm, the manufacturer's serial number of which, or other distinguishing number or identification mark, has been removed, defaced, altered, or destroyed, except by normal wear and tear.

HISTORY: Source:. L. 71: R&RE, p. 482, §1. C.R.S. 1963: §40-12-103.L. 81: Entire section amended, p. 976, §18, effective July 1.

ANNOTATION

Statute as basis for jurisdiction. See People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

1. After a judgment of conviction under section 18-12-103 or 18-12-104 has become final, any defaced firearm upon which the judgment was based shall be deemed to be contraband, the possession of which is contrary to the public peace, health, and safety.
2. Defaced firearms that are deemed to be contraband shall be placed in the possession of the bureau or of a local law enforcement agency designated by the bureau and shall be destroyed or rendered permanently inoperable.

HISTORY: Source: L. 81: Entire section added, p. 977, §19, effective July 1..L. 2013: (2) amended, (HB 13-1229), ch. 47, p. 137, §8, effective March 20.

A person commits a class 1 misdemeanor if such person knowingly removes, defaces, covers, alters, or destroys the manufacturer's serial number or any other distinguishing number or identification mark of a firearm.

HISTORY: Source: L. 71: R&RE, p. 482, §1. C.R.S. 1963: §40-12-104.L. 77: Entire section amended, p. 970, §62, effective July 1.L. 81: Entire section amended, p. 977, §20, effective July 1.L. 89: Entire section amended, p. 842, §101, effective July 1.L. 93: Entire section amended, p. 968, §2, effective July 1.

1. A person commits a class 2 misdemeanor if such person knowingly and unlawfully:
   1. Carries a knife concealed on or about his or her person; or
   2. Carries a firearm concealed on or about his or her person; or
   3. Without legal authority, carries, brings, or has in such person's possession a firearm or any explosive, incendiary, or other dangerous device on the property of or within any building in which the chambers, galleries, or offices of the general assembly, or either house thereof, are located, or in which a legislative hearing or meeting is being or is to be conducted, or in which the official office of any member, officer, or employee of the general assembly is located.
   4. (Deleted by amendment, L. 93, p. 964, §1, effective July 1, 1993.)
2. It shall not be an offense if the defendant was:
   1. A person in his or her own dwelling or place of business or on property owned or under his or her control at the time of the act of carrying; or
   2. A person in a private automobile or other private means of conveyance who carries a weapon for lawful protection of such person's or another's person or property while traveling; or
   3. A person who, at the time of carrying a concealed weapon, held a valid written permit to carry a concealed weapon issued pursuant to section 18-12-105.1, as it existed prior to its repeal, or, if the weapon involved was a handgun, held a valid permit to carry a concealed handgun or a temporary emergency permit issued pursuant to part 2 of this article; except that it shall be an offense under this section if the person was carrying a concealed handgun in violation of the provisions of section 18-12-214; or
   4. A peace officer, as described in section 16-2.5-101, C.R.S., when carrying a weapon in conformance with the policy of the employing agency as provided in section 16-2.5-101 (2), C.R.S.; or
   5. (Deleted by amendment, L. 2003, p. 1624, §46, effective August 6, 2003.)
   6. A United States probation officer or a United States pretrial services officer while on duty and serving in the state of Colorado under the authority of rules and regulations promulgated by the judicial conference of the United States.

HISTORY: Source: L. 71: R&RE, p. 482, §1. C.R.S. 1963: §40-12-105.L. 73: p. 683, §3.L. 77: (2)(c) amended and (2)(d) added, p. 976, §8, effective July 1.L. 81: (2)(c) amended, p. 1437, §3, effective June 8.L. 86: (2)(d) amended and (2)(e) added, p. 774, §2, effective July 1.L. 89: (1)(d) added, p. 911, §1, effective April 15.L. 93: Entire section amended, p. 964, §1, effective July 1.L. 94: (2)(e) amended and (2)(f) added, p. 647, §1, effective July 1.L. 2000: IP(2) amended, p. 1009, §1, effective August 2.L. 2003: (2)(c) amended, p. 648, §3, effective May 17; (2)(d) and (2)(e) amended, p. 1624, §46, effective August 6.

Cross references: For affirmative defenses generally, see §§18-1-407, 18-1-710, and 18-1-805. ANNOTATION

Recognition of §13 of art. II, Colo. Const. Section 13 of art. II, Colo. Const., has limiting language dealing with defense of home, person, and property. These limitations have been recognized by the general assembly in the enactment of this section, which restricts the right to bear arms in certain circumstances, while permitting in other circumstances the carrying of a concealed weapon in defense of home, person, and property, and also when specifically authorized by written permit. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The words "about the person" means sufficiently close to the person to be readily accessible for immediate use. People in Interest of R.J.A., 38 Colo. App. 346, 556 P.2d 491 (1976).

"Concealed" means placed out of sight so as not to be discernible or apparent by ordinary observation. People ex rel. O.R., 220 P.3d 949 (Colo. App. 2008).

The scope of subsection (2)(b) is clarified in §18-12-105.6, which indicates the general assembly's intent that local ordinances on carrying weapons in private vehicles be preempted only insofar as they conflict with the provisions of §18-12-105.6. Trinen v. City & County of Denver, 53 P.3d 754 (Colo. App. 2002).

The local ordinance concerning carrying a weapon in a private vehicle is not preempted since it can be harmonized with subsection (2)(b). Trinen v. City & County of Denver, 53 P.3d 754 (Colo. App. 2002).

Pistol tucked under edge of car seat. Where uncontested evidence established that pistol was tucked under the edge of a car seat on which petitioner was sitting, where it was within his easy reach, these circumstances constitute carrying a "firearm concealed on or about his person". People in Interest of R.J.A., 38 Colo. App. 346, 556 P.2d 491 (1976).

Question of whether weapon is concealed is question of fact for the jury which should not be summarily determined by the trial judge at the time that he rules on the defendant's motion to suppress. People v. Vincent, 628 P.2d 107 (Colo. 1981).

Former subsection (2)(c) did not confer power to issue permits for carrying concealed weapons to police chiefs and sheriffs. Douglass v. Kelton, 199 Colo. 446, 610 P.2d 1067 (1980).

Person receiving permit to carry concealed weapon cannot be convicted. Once a person receives a permit to carry a concealed weapon in a county or city, he may not be convicted under subsection (2)(c). Douglass v. Kelton, 199 Colo. 446, 610 P.2d 1067 (1980).

Statute as basis for jurisdiction. See People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977).

Defendant could not be convicted of carrying a concealed weapon without the prosecution proving that defendant intended to use this short-bladed knife as a weapon. While the characteristics of an instrument may be an important factor in determining the intended purpose of an instrument, the language of the concealed weapons statute and established precedent establishes that a knife's design does not, by itself, prove that the person carrying it intended to use it as a weapon. A.P.E. v. People, 20 P.3d 1179 (Colo. 2001).

Applied in People v. Velasquez, 641 P.2d 943 (Colo. 1982); People v. Deschamp, 662 P.2d 171 (Colo. 1983).

1. A person commits a class 6 felony if such person knowingly and unlawfully and without legal authority carries, brings, or has in such person's possession a deadly weapon as defined in section 18-1-901 (3) (e) in or on the real estate and all improvements erected thereon of any public or private elementary, middle, junior high, high, or vocational school or any public or private college, university, or seminary, except for the purpose of presenting an authorized public demonstration or exhibition pursuant to instruction in conjunction with an organized school or class, for the purpose of carrying out the necessary duties and functions of an employee of an educational institution that require the use of a deadly weapon, or for the purpose of participation in an authorized extracurricular activity or on an athletic team.
2. (Deleted by amendment, L. 2000, p. 709, §45, effective July 1, 2000.)
3. It shall not be an offense under this section if:
   1. The weapon is unloaded and remains inside a motor vehicle while upon the real estate of any public or private college, university, or seminary; or
   2. The person is in that person's own dwelling or place of business or on property owned or under that person's control at the time of the act of carrying; or
   3. The person is in a private automobile or other private means of conveyance and is carrying a weapon for lawful protection of that person's or another's person or property while traveling; or
   4. The person, at the time of carrying a concealed weapon, held a valid written permit to carry a concealed weapon issued pursuant to section 18-12-105.1, as said section existed prior to its repeal; except that it shall be an offense under this section if the person was carrying a concealed handgun in violation of the provisions of section 18-12-214 (3); or
      • d.5. The weapon involved was a handgun and the person held a valid permit to carry a concealed handgun or a temporary emergency permit issued pursuant to part 2 of this article; except that it shall be an offense under this section if the person was carrying a concealed handgun in violation of the provisions of section 18-12-214 (3); or
   5. The person is a peace officer, as described in section 16-2.5-101, C.R.S., when carrying a weapon in conformance with the policy of the employing agency as provided in section 16-2.5-101 (2), C.R.S.; or
   6. and g. (Deleted by amendment, L. 2003, p. 1626, §51, effective August 6, 2003.)
   8. The person has possession of the weapon for use in an educational program approved by a school which program includes, but shall not be limited to, any course designed for the repair or maintenance of weapons.

HISTORY: Source:. L. 93: Entire section added, p. 965, §2, effective July 1.L. 94: (1) and (2) amended, p. 1721, §19, effective July 1.L. 2000: Entire section amended, p. 709, §45, effective July 1.L. 2003: (3)(d) amended and (3)(d.5) added, p. 649, §4, effective May 17; (3)(e), (3)(f), and (3)(g) amended, p. 1626, §51, effective August 6.

ANNOTATION

Unless the prosecution can also establish that the person used or intended to use the knife as a weapon, a person cannot be prosecuted under subsection (1) for carrying a knife with a blade less than three and one-half inches in length on school grounds. Even though subsection (1) references the deadly weapons statute, that statute does not specifically define "knife". The term "knife" is, however, specifically limited to a weapon with a blade longer than three and one-half inches in length by §18-12-101 (1), as applicable to this article. Thus, reading and harmonizing these provisions together, the plain language of both provisions establishes that, for purposes of this section, where the deadly weapon is a knife, it must qualify as a knife under >§18-12-101 (1)(f). People ex rel. J.W.T., 93 P.3d 580 (Colo. App. 2004).

1. The general assembly hereby finds that:
   1. A person carrying a weapon in a private automobile or other private means of conveyance for hunting or for lawful protection of such person's or another's person or property, as permitted in sections 18-12-105 (2) (b) and 18-12-105.5 (3) (c), may tend to travel within a county, city and county, or municipal jurisdiction or in or through different county, city and county, and municipal jurisdictions, en route to the person's destination;
   2. Inconsistent laws exist in local jurisdictions with regard to the circumstances under which weapons may be carried in automobiles and other private means of conveyance;
   3. This inconsistency creates a confusing patchwork of laws that unfairly subjects a person who lawfully travels with a weapon to criminal penalties because he or she travels within a jurisdiction or into or through another jurisdiction;
   4. This inconsistency places citizens in the position of not knowing when they may be violating local laws while traveling within a jurisdiction or in, through, or between different jurisdictions, and therefore being unable to avoid committing a crime.
2. 1. Based on the findings specified in subsection (1) of this section, the general assembly concludes that the carrying of weapons in private automobiles or other private means of conveyance for hunting or for lawful protection of a person's or another's person or property while traveling into, through, or within, a municipal, county, or city and county jurisdiction, regardless of the number of times the person stops in a jurisdiction, is a matter of statewide concern and is not an offense.
   2. Notwithstanding any other provision of law, no municipality, county, or city and county shall have the authority to enact or enforce any ordinance or resolution that would restrict a person's ability to travel with a weapon in a private automobile or other private means of conveyance for hunting or for lawful protection of a person's or another's person or property while traveling into, through, or within, a municipal, county, or city and county jurisdiction, regardless of the number of times the person stops in a jurisdiction.

HISTORY: Source:. L. 2000: Entire section added, p. 1009, §2, effective August 2.L. 2003: Entire section amended, p. 651, §1, effective March 18.

ANNOTATION

Law reviews: For article, "In the Crosshairs: Colorado's New Gun Laws", see 33 Colo. Law. 11 (January 2004).

This section clarifies the scope of §18-12-105 (2)(b) and indicates the general assembly's intent that local ordinances on carrying weapons in private vehicles be preempted only insofar as they conflict with the provisions of this section. Trinen v. City & County of Denver, 53 P.3d 754 (Colo. App. 2002).

The use of the limiting language "into or through" in subsection (2) reflects the general assembly's intent not to restrict local weapons ordinances insofar as they apply to travel wholly within local jurisdictions. Trinen v. City & County of Denver, 53 P.3d 754 (Colo. App. 2002). (Decided under law as it existed prior to the 2003 amendments to subsection (2)).

1. A person commits a class 2 misdemeanor if:
   1. He knowingly and unlawfully aims a firearm at another person; or
   2. Recklessly or with criminal negligence he discharges a firearm or shoots a bow and arrow; or
   3. He knowingly sets a loaded gun, trap, or device designed to cause an explosion upon being tripped or approached, and leaves it unattended by a competent person immediately present; or
   4. The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or of a controlled substance, as defined in section 18-18-102 (5). Possession of a permit issued under section 18-12-105.1, as it existed prior to its repeal, or possession of a permit or a temporary emergency permit issued pursuant to part 2 of this article is no defense to a violation of this subsection (1).
   5. He knowingly aims, swings, or throws a throwing star or nunchaku as defined in this paragraph (e) at another person, or he knowingly possesses a throwing star or nunchaku in a public place except for the purpose of presenting an authorized public demonstration or exhibition or pursuant to instruction in conjunction with an organized school or class. When transporting throwing stars or nunchaku for a public demonstration or exhibition or for a school or class, they shall be transported in a closed, nonaccessible container. For purposes of this paragraph (e), "nunchaku" means an instrument consisting of two sticks, clubs, bars, or rods to be used as handles, connected by a rope, cord, wire, or chain, which is in the design of a weapon used in connection with the practice of a system of self-defense, and "throwing star" means a disk having sharp radiating points or any disk-shaped bladed object which is hand-held and thrown and which is in the design of a weapon used in connection with the practice of a system of self-defense.

HISTORY: Source: L. 71: R&RE, p. 482, §1. C.R.S. 1963: §40-12-106.L. 77: (1)(a) and (1)(c) amended, p. 971, §63, effective July 1.L. 81: (1)(d) amended, p. 738, §25, effective July 1.L. 82: (1)(d) amended, p. 623, §18, effective April 2.L. 84: (1)(e) added, p. 539, §17, effective July 1.L. 2003: (1)(d) amended, p. 649, §5, effective May 17.L. 2012: (1)(d) amended, (HB 12-1311), ch. 281, p. 1620, §48, effective July 1.

ANNOTATION

This section is neither unconstitutionally overbroad nor unconstitutionally vague. People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979).

Right to bear arms is not absolute, and it can be restricted by the state's valid exercise of its police power. People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979).

Common sense definition of "possession", as it is used in subsection (1)(d) is the actual or physical control of a firearm. People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979).

Failure to define "under the influence of intoxicating liquor", if error, was harmless, where defendant, charged with violation of this section, testified that he was too drunk to drive. People v. Beckett, 782 P.2d 812 (Colo. App. 1989), aff'd, 800 P.2d 74 (Colo. 1990).

Possession of a firearm while intoxicated is a strict liability offense, therefore, the trial court did not err in refusing to instruct the jury that "knowingly" was an element of the offense. People v. Wilson, 972 P.2d 701 (Colo. App. 1998).

Self-defense is not a valid defense to the crime of prohibited use of weapons. People v. Beckett, 782 P.2d 812 (Colo. App. 1989), aff'd, 800 P.2d 74 (Colo. 1990).

Applied in People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980).

A person commits a class 5 felony if he knowingly and unlawfully uses a stun gun in the commission of a criminal offense.

HISTORY: Source: L. 87: Entire section added, p. 675, §4, effective May 16.

ANNOTATION

Section unambiguously creates a separate crime whenever a stun gun facilitates commission of the predicate offense, regardless of whether it is discharged. People v. Wheeler, 170 P.3d 817 (Colo. App. 2007).

Attempted robbery is not a lesser included offense of use of a stun gun. People v. Bass, 155 P.3d 547 (Colo. App. 2006).

Misdemeanor menacing is not a lesser included offense of use of a stun gun. People v. Wheeler, 170 P.3d 817 (Colo. App. 2007).

Any person who has within five years previously been convicted of a violation under section 18-12-103, , or 18-12-106 shall, upon conviction for a second or subsequent offense under the same section, be guilty of a class 5 felony.

HISTORY: Source:. L. 71: R&RE, p. 483, §1. C.R.S. 1963: §40-12-107.L. 87: Entire section amended, p. 616, §7, effective July 1.

1. Any person who knowingly or recklessly discharges a firearm into any dwelling or any other building or occupied structure, or into any motor vehicle occupied by any person, commits the offense of illegal discharge of a firearm.
2. It shall not be an offense under this section if the person who discharges a firearm in violation of subsection (1) of this section is a peace officer as described in section 16-2.5-101, C.R.S., acting within the scope of such officer's authority and in the performance of such officer's duties.
3. Illegal discharge of a firearm is a class 5 felony.

HISTORY: Source:. L. 93: Entire section added, p. 968, §1, effective July 1.L. 2003: (2) amended, p. 1616, §15, effective August 6.

ANNOTATION

This section was intended to punish random drive-by and walk-by gunfire directed at occupied structures or vehicles from outside such premises or vehicles. People v. Simpson, 93 P.3d 551 (Colo. App. 2003).

The plain language of this section does not require that a bullet actually end up inside a house. The court of appeals held that firing a bullet into materials of which the house is built, in this case the shingles on the roof, violates this section. There is no requirement in the section that the bullet pierce the exterior of the building and enter the interior of the house. People v. Serpa, 992 P.2d 682 (Colo. App. 1999).

The second clause of subsection (1) does not require proof that a bullet actually entered the passenger compartment of the vehicle and the absence of such a requirement is consistent with the general assembly's clear intention to criminalize the discharge of a firearm into an occupied vehicle irrespective of whether an occupant is endangered. People v. White, 55 P.3d 220 (Colo. App. 2002).

Illegal discharge of a firearm is not a lesser included offense of attempted first degree murder after deliberation. Discharge of a firearm is not an element of attempted first degree murder after deliberation. People v. Beatty, 80 P.3d 847 (Colo. App. 2003).

Court erred by failing to instruct on self-defense. Illegal discharge of a firearm is a general intent offense to the extent that it involves a defendant who acts "knowingly", and self-defense is an affirmative defense to a general intent crime. People v. Taylor, 230 P.3d 1227 (Colo. App. 2009), overruled on other grounds in People v. Pickering, -- P.3d -- (Colo. 2011).

1. A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3) (h) or any other weapon that is subject to the provisions of this article subsequent to the person's conviction for a felony, or subsequent to the person's conviction for attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.
2. 1. Except as otherwise provided by paragraphs (b) and (c) of this subsection (2), a person commits a class 6 felony if the person violates subsection (1) of this section.
   2. A person commits a class 5 felony, as provided by section 18-12-102, if the person violates subsection (1) of this section and the weapon is a dangerous weapon, as defined in section 18-12-102 (1).
   3. A person commits a class 5 felony if the person violates subsection (1) of this section and the person's previous conviction was for burglary, arson, or any felony involving the use of force or the use of a deadly weapon and the violation of subsection (1) of this section occurs as follows:
      1. From the date of conviction to ten years after the date of conviction, if the person was not incarcerated; or
      2. From the date of conviction to ten years after the date of release from confinement, if such person was incarcerated or, if subject to supervision imposed as a result of conviction, ten years after the date of release from supervision.
   4. Any sentence imposed pursuant to this subsection (2) shall run consecutively with any prior sentences being served by the offender.
3. A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3) (h) or any other weapon that is subject to the provisions of this article subsequent to the person's adjudication for an act which, if committed by an adult, would constitute a felony, or subsequent to the person's adjudication for attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.
4. 1. Except as otherwise provided by paragraphs (b) and (c) of this subsection (4), a person commits a class 6 felony if the person violates subsection (3) of this section.
   2. A person commits a class 5 felony, as provided by section 18-12-102, if the person violates subsection (3) of this section and the weapon is a dangerous weapon, as defined in section 18-12-102 (1).
   3. A person commits a class 5 felony if the person commits the conduct described in subsection (3) of this section and the person's previous adjudication was based on an act that, if committed by an adult, would constitute burglary, arson, or any felony involving the use of force or the use of a deadly weapon and the violation of subsection (3) of this section occurs as follows:
      1. From the date of adjudication to ten years after the date of adjudication, if the person was not committed to the department of institutions, or on or after July 1, 1994, to the department of human services; or
      2. From the date of adjudication to ten years after the date of release from commitment, if such person was committed to the department of institutions, or on or after July 1, 1994, to the department of human services or, if subject to supervision imposed as a result of an adjudication, ten years after the date of release from supervision.
   4. Any sentence imposed pursuant to this subsection (4) shall run consecutively with any prior sentences being served by the offender.
5. A second or subsequent offense under paragraphs (b) and (c) of subsection (2) and paragraphs (b) and (c) of subsection (4) of this section is a class 4 felony.
6. 1. Upon the discharge of any inmate from the custody of the department of corrections, the department shall provide a written advisement to such inmate of the prohibited acts and penalties specified in this section. The written advisement, at a minimum, shall include the written statement specified in paragraph (c) of this subsection (6).
   2. Any written stipulation for deferred judgment and sentence entered into by a defendant pursuant to section 18-1.3-102 shall contain a written advisement of the prohibited acts and penalties specified in this section. The written advisement, at a minimum, shall include the written statement specified in paragraph (c) of this subsection (6).
   3. The written statement shall provide that:
      1. 1. A person commits the crime of possession of a weapon by a previous offender in violation of this section if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3) (h), or any other weapon that is subject to the provisions of this title subsequent to the person's conviction for a felony, or subsequent to the person's conviction for attempt or conspiracy to commit a felony, or subsequent to the person's conviction for a misdemeanor crime of domestic violence as defined in 18 U.S.C. sec. 921 (a) (33) (A), or subsequent to the person's conviction for attempt or conspiracy to commit such misdemeanor crime of domestic violence; and
         2. For the purposes of this paragraph (c), "felony" means any felony under Colorado law, federal law, or the laws of any other state; and
      2. A violation of this section may result in a sentence of imprisonment or fine, or both.
   4. The act of providing the written advisement described in this subsection (6) or the failure to provide such advisement may not be used as a defense to any crime charged and may not provide any basis for collateral attack on, or for appellate relief concerning, any conviction.

HISTORY: Source: L. 71: R&RE, p. 483, §1. C.R.S. 1963: §40-12-108.L. 73: p. 542, §1.L. 75: Entire section amended, p. 621, §17, effective July 21.L. 93, 1st Ex. Sess.: Entire section added, p. 4, §3, effective September 13.L. 94: Entire section R&RE, p. 1464, §6, effective July 1.L. 2000: (2)(a) and (4)(a) amended and (2)(d), (4)(d), and (6) added, pp. 632, 633, §§1, 2, 3, effective July 1.L. 2002: (6)(b) amended, p. 1517, §208, effective October 1.L. 2003: (4)(b) amended, p. 1432, §19, effective April 29.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (6)(b), see section 1 of chapter 318, Session Laws of Colorado 2002. RECENT ANNOTATIONS

There is no requirement that an affirmative defense under §13, art. II, Colo. Const., be based on an imminent threat; therefore, the trial court erred in modifying the stock jury instruction to include a "threat of imminent harm" requirement. People v. Carbajal, 2012 COA 34, -- P.3d -- published March 1, 2012 . ANNOTATION

The purpose of this section is to limit the possession of firearms by those who, by their past conduct, have demonstrated an unfitness to be entrusted with such dangerous instrumentalities. People v. Gallegos, 193 Colo. 263, 563 P.2d 937 (1977); People v. Quintana, 707 P.2d 355 (Colo. 1985).

This section does not deny defendant equal protection, even though it may permit using a prior burglary conviction in another jurisdiction as the "previous offense" when the same conduct might not have resulted in a burglary conviction if committed in this state. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

Constitutionality of section upheld. People v. Marques, 179 Colo. 86, 498 P.2d 929 (1972).

The classification which prohibits certain previous offenders from carrying a weapon is not unreasonable in its relationship to the evil sought to be cured. To limit the possession of firearms by those who by their past conduct have demonstrated an unfitness to be entrusted with such dangerous instrumentalities is clearly in the interest of the public health, safety, and welfare and within the scope of the general assembly's police power, and, accordingly, the statute in question is not subject to constitutional attack on an equal protection basis. People v. Trujillo, 178 Colo. 147, 497 P.2d 1 (1972).

The felon with a gun statute is not unconstitutional. People v. Bergstrom, 190 Colo. 105, 544 P.2d 396 (1975).

This section as amended in 1994 and as applied to defendant does not violate the prohibition against ex post facto laws because defendant's possession of a firearm occurred in 2009, well after the 1994 amendment. It does not matter that defendant's predicate felonies occurred before the change in the law, because defendant was punished for conduct occurring after the change. There is no ex post facto violation where one or some of the elements of an offense are committed prior to the effective date of a new statute, but where the crime is not completed until after the effective date. People v. DeWitt, -- P.3d -- (Colo. App. 2011).

"Involving" not constitutionally imprecise. "Involving" is a common, readily understood word, and whatever imprecision its use may entail does not rise to the level of constitutional infirmity. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

Nor is "use of force or violence" extremely vague, though this phrase is not specifically defined by the Colorado criminal code, there can be little doubt that most persons would readily comprehend its import. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The time computation provision of this section is not too vague. Notwithstanding the fact that the wording of the time provision of this section might require more than a quick glance for full comprehension, its meaning is plain. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

This section is not an attempt to subvert the intent of section 13 of art. II, Colo. Const. The statute simply limits the possession of guns and other weapons by persons who are likely to abuse such possession. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

This section is legitimate and constitutional means of accomplishing the general assembly's obvious purpose. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

Limitations of section 13, art. II, Colo. Const., superimposed on section. In spite of the flat prohibition contained in this section, the specific limitations of section 13 of art. II, Colo. Const. must be superimposed on the section's otherwise valid language. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Because the right to bear arms is not absolute, nor is this section vague or overbroad. People v. Taylor, 190 Colo. 144, 544 P.2d 392 (1975).

The right to bear arms is not absolute as that right is limited to the defense of one's home, person, and property. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Affirmative defense under section 13, art. II, Colo. Const. A defendant charged under this section who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property as recognized by section 13 of art. II, Colo. Const., thereby raises an affirmative defense. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977); People v. DeWitt, -- P.3d -- (Colo. App. 2011); People v. Carbajal, 2012 COA 34, -- P.3d --.

Purpose in keeping weapons is question of fact which must be submitted to jury. The question of the defendant's purpose in keeping the weapons in order to establish the affirmative defense based on his constitutional right to keep and bear arms under section 13 of art. II, Colo. Const. is one for the fact finder to determine at trial. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

But burden of proof is still on prosecution. After the defendant by competent evidence has raised the affirmative defense under section 13 of art. II, Colo. Const., the prosecution will still have the overall burden of proving its case. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Trial court properly excluded affirmative defense based on section 13 of article II, Colo. Const., and a proposed jury instruction where the defendant's offer of proof was insufficient to support the proposed affirmative defense. People v. Barger, 732 P.2d 1225 (Colo. App. 1986).

Trial court's instruction to jury that second degree assault involved force or violence as a matter of law was proper for conviction under this statute notwithstanding fact that second degree assault could involve injury to another resulting from the administration of drug or other substance. People v. Allaire, 843 P.2d 38 (Colo. App. 1992).

Jury must find "knowing" possession to convict. To convict a previous offender of possessing a weapon, the jury must find, not mere possession, but that the defendant "knowingly" possessed the weapon and that he understood that the object possessed was a weapon. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

To convict under this section, the prosecution must prove that one of the defendant's intended uses for the instrument was as a weapon. As so construed, the section is not overbroad. People v. Gross, 830 P.2d 933 (Colo. 1992).

The mental state of "knowingly" applies only to the possession element of subsection (1), not to the prior felony conviction element. People v. DeWitt, -- P.3d -- (Colo. App. 2011).

This section is not void for vagueness in regard to the definitions of weapon cited therein. "Weapon" has a commonly understood meaning and the definition of "knife" cited in this section is sufficiently specific to give fair warning of the proscribed conduct. People v. Gross, 830 P.2d 933 (Colo. 1992).

Broad definition of "knife", incorporated into this section by reference to §18-12-101, is constitutional. Where defendant possessed a screwdriver with specific intent to use it as a weapon, elements of crime were present. But this section does not prohibit possession of such an instrument for an innocent purpose, so prohibition is neither unconstitutionally vague nor overbroad. People v. Gross, 830 P.2d 933 (Colo. 1992).

"Possession" means actual or physical control over a firearm and is a question of fact for the jury. People v. Rivera, 765 P.2d 624 (Colo. App. 1988).

"Previously convicted" element satisfied by proof of a guilty plea and deferred judgment; judgment of conviction and sentencing are not required. People v. Allaire, 843 P.2d 38 (Colo. App. 1992).

The term "possession" in this section is a common term which is to be given its generally accepted meaning. Where court imposed the requirement of exclusive control, the generally accepted meaning was altered, making it both unduly restrictive and a potential source of confusion for jurors. People v. Martinez, 780 P.2d 560 (Colo. 1989).

"Involve" has been defined as "to have within or as part of itself: contain, include"; "to require as a necessary accompaniment". People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The word "force" in this section includes more than actual, applied physical force. People v. Gallegos, 193 Colo. 108, 563 P.2d 937 (1977).

Valid exercise of police power. The use, concealment, or possession of weapons specified in this section by a felon who has previously been convicted of one of the crimes itemized in this section may be validly prohibited under the police power. People v. Trujillo, 184 Colo. 387, 524 P.2d 1379 (1974).

Balancing of rights. The conflicting rights of the individual's right to bear arms and the state's right, indeed its duty under its inherent police power, to make reasonable regulations for the purpose of protecting the health, safety, and welfare of the people prohibits granting an absolute right to bear arms under all situations. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The felon with a gun statute, this section, must be read in pari materia with §18-1-702. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

Statute may be violated by either concealing or using any of the specified weapons. People v. Trujillo, 184 Colo. 387, 524 P.2d 1379 (1974).

Prior conviction element of offense. Under this section, the prior conviction does not go merely to the punishment to be imposed, but rather is an element of the substantive offense charged and this distinction is critical. People v. Fullerton, 186 Colo. 97, 525 P.2d 1166 (1974); People v. Quintana, 707 P.2d 355 (Colo. 1985).

Defendant in a possession of weapon by prior offender trial may request limiting instruction or stipulate to the fact of conviction of another offense rather than requiring prosecution to agree to waive a trial by jury. People v. District Court, 953 P.2d 184 (Colo. 1998).

A prior conviction obtained in violation of a defendant's constitutional rights cannot be used as the underlying conviction in a prosecution under this section. People v. Quintana, 707 P.2d 355 (Colo. 1985).

Reference by name or description to crimes committed in other jurisdictions is a proper means for the general assembly to define which prior crimes satisfy the "previous offender" element of this statute and such references to crimes committed elsewhere do not constitute delegation of this state's legislative power. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

Conviction being challenged on appeal may be used as a predicate offense under statute prohibiting possession of firearms by previous offenders since a conviction becomes final and is valid for purposes of appeal when sentencing occurs. People v. Tramaglino, 791 P.2d 1171 (Colo. App. 1989).

Showing necessary for conviction under conspiracy provision. A conviction under the conspiracy provision of this section does not require a showing that the overt act of the conspiracy was an act of force or violence, but rather that, the crime which is the object of the conspiracy was one of force or violence. People v. Jenkins, 198 Colo. 347, 599 P.2d 912 (1979).

Where one is charged under this section with possession of a weapon, having previously been convicted of conspiracy to commit the crime of robbery, it is unnecessary to prove that the underlying robbery which was the object of the conspiracy did in fact involve the use of force or violence. People v. Jenkins, 198 Colo. 347, 599 P.2d 912 (1979).

Defendant to invoke procedural safeguards where substantive offense also charged. While procedural safeguards such as separate trials or a bifurcated procedure should be available to ensure a fair trial for a defendant charged with a substantive offense and with violation of this section, it is the defendant who must make a tactical decision whether to invoke such procedures, and the defendant must exercise the right to these procedures by means of a timely, pretrial motion. People v. Peterson, 656 P.2d 1301 (Colo. 1983).

Prior Colorado conviction not predicate felony for purposes of federal prohibition of possession of firearm by felon. Defendant was wrongly charged for possession of gun by felon, because at the time of his arrest he was once again entitled to possess a gun. Under this statute defendant's civil rights had been restored ten years after he served time on his prior conviction, such rights encompassing his ability to possess a firearm. U.S. v. Hall, 20 F.3d 1066 (10th Cir. 1994).

Plaintiff whose felony conviction in another state was set aside under that state's law and who was entitled to possess a handgun under that state's law was entitled to possess a handgun under this section. Seguna v. Maketa, 181 P.3d 399 (Colo. App. 2008).

The fact that defendant assisted in purchase of firearm and was within "arm's reach" of firearm at time of arrest constituted prima facie evidence of illegal possession of a firearm, which precluded defendant from judgment of acquittal. People v. Rivera, 765 P.2d 624 (Colo. App. 1988).

Evidence sufficient in prosecution for possession of weapon. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

Evidence including retrieval of gun from house where defendant arrested, witnesses' identifications of gun as belonging to defendant, and defendant's use of gun during previous threats provided ample support for verdict. People v. Jackson, 98 P.3d 940 (Colo. App. 2004).

An attempted robbery by threat is a felony involving the use of force under this section. People v. Gallegos, 193 Colo. 108, 563 P.2d 937 (1977).

Robbery is crime involving use of "force or violence". The offense of robbery, whether committed by actual force or by constructive force, i.e., threats or intimidation, is a crime involving the use of "force or violence" for the purposes of this section. People v. Jenkins, 198 Colo. 347, 599 P.2d 912 (1979).

Felony menacing is a felony involving the use of force or a deadly weapon and thus a class 5 felony. People v. Montez, -- P.3d -- (Colo. App. 2010).

When the same weapon is alleged in each charge, possession of an illegal weapon under §18-12-102 (4) is a lesser included offense of possession of a weapon by a previous offender under subsection (1) of this section. People v. Brown, 119 P.3d 486 (Colo. App. 2004).

Defendant may receive a separate conviction under this statute for each firearm defendant possesses. Defendant properly convicted of two counts under this section because he possessed two shotguns removed from a house. People v. Montez, -- P.3d -- (Colo. App. 2010).

1. 1. Except as provided in this section, it is unlawful for any person who has not attained the age of eighteen years knowingly to have any handgun in such person's possession.
   2. Any person possessing any handgun in violation of paragraph (a) of this subsection (1) commits the offense of illegal possession of a handgun by a juvenile.
   3. 1. Illegal possession of a handgun by a juvenile is a class 2 misdemeanor.
      2. For any second or subsequent offense, illegal possession of a handgun by a juvenile is a class 5 felony.
   4. Any person under the age of eighteen years who is taken into custody by a law enforcement officer for an offense pursuant to this section shall be taken into temporary custody in the manner described in section 19-2-508, C.R.S.
2. This section shall not apply to:
   1. Any person under the age of eighteen years who is:
      1. In attendance at a hunter's safety course or a firearms safety course; or
      2. Engaging in practice in the use of a firearm or target shooting at an established range authorized by the governing body of the jurisdiction in which such range is located or any other area where the discharge of a firearm is not prohibited; or
      3. Engaging in an organized competition involving the use of a firearm or participating in or practicing for a performance by an organized group under 501 (c) (3) as determined by the federal internal revenue service which uses firearms as a part of such performance; or
      4. Hunting or trapping pursuant to a valid license issued to such person pursuant to article 4 of title 33, C.R.S.; or
      5. Traveling with any handgun in such person's possession being unloaded to or from any activity described in subparagraph (I), (II), (III), or (IV) of this paragraph (a);
   2. Any person under the age of eighteen years who is on real property under the control of such person's parent, legal guardian, or grandparent and who has the permission of such person's parent or legal guardian to possess a handgun;
   3. Any person under the age of eighteen years who is at such person's residence and who, with the permission of such person's parent or legal guardian, possesses a handgun for the purpose of exercising the rights contained in section 18-1-704 or section 18-1-704.5.
3. For the purposes of subsection (2) of this section, a handgun is "loaded" if:
   1. There is a cartridge in the chamber of the handgun; or
   2. There is a cartridge in the cylinder of the handgun, if the handgun is a revolver; or
   3. The handgun, and the ammunition for such handgun, is carried on the person of a person under the age of eighteen years or is in such close proximity to such person that such person could readily gain access to the handgun and the ammunition and load the handgun.
4. Repealed.

HISTORY: Source:. L. 93, 1st Ex. Sess.: Entire section added, p. 2, §2, effective September 13.L. 96: (1)(d) amended, p. 1693, §28, effective January 1, 1997.L. 98: (4) repealed, p. 729, §15, effective May 18.

ANNOTATION

Possession of a handgun by a juvenile is a "status" offense, an offense consisting of conduct that would not constitute an offense if engaged in by an adult. People v. Juvenile Court, 893 P.2d 81 (Colo. 1995).

This section and the presumption statute (§19-2-204) were adopted to secure the safety of juveniles and the communities in which they reside. The Children's Code has consistently evidenced a legislative intent to accomplish both such purposes. People v. Juvenile Court, 893 P.2d 81 (Colo. 1995).

The parental permission language in subsection (2)(b) is an affirmative defense to the offense of unlawful possession of a handgun by a juvenile. People ex rel. L.M., 17 P.3d 829 (Colo. App. 2000).

1. 1. Any person who intentionally, knowingly, or recklessly provides a handgun with or without remuneration to any person under the age of eighteen years in violation of section 18-12-108.5 or any person who knows of such juvenile's conduct which violates >section 18-12-108.5 and fails to make reasonable efforts to prevent such violation commits the crime of unlawfully providing a handgun to a juvenile or permitting a juvenile to possess a handgun.
   2. Unlawfully providing a handgun to a juvenile or permitting a juvenile to possess a handgun in violation of this subsection (1) is a class 4 felony.
2. 1. Any person who intentionally, knowingly, or recklessly provides a handgun to a juvenile or permits a juvenile to possess a handgun, even though such person is aware of a substantial risk that such juvenile will use a handgun to commit a felony offense, or who, being aware of such substantial risk, fails to make reasonable efforts to prevent the commission of the offense, commits the crime of unlawfully providing or permitting a juvenile to possess a handgun. A person shall be deemed to have violated this paragraph (a) if such person provides a handgun to or permits the possession of a handgun by any juvenile who has been convicted of a crime of violence, as defined in section 18-1.3-406, or any juvenile who has been adjudicated a juvenile delinquent for an offense which would constitute a crime of violence, as defined in section 18-1.3-406, if such juvenile were an adult.
   2. Unlawfully providing a handgun to a juvenile or permitting a juvenile to possess a handgun in violation of this subsection (2) is a class 4 felony.
3. With regard to firearms other than handguns, no person shall sell, rent, or transfer ownership or allow unsupervised possession of a firearm with or without remuneration to any juvenile without the consent of the juvenile's parent or legal guardian. Unlawfully providing a firearm other than a handgun to a juvenile in violation of this subsection (3) is a class 1 misdemeanor.
4. It shall not be an offense under this section if a person believes that a juvenile will physically harm the person if the person attempts to disarm the juvenile or prevent the juvenile from committing a violation of section 18-12-108.5.

HISTORY: Source:. L. 93, 1st Ex. Sess.: Entire section added, p. 3, §2, effective September 13.L. 2000: Entire section amended, p. 642, §1, effective July 1; (4) added, p. 641, §1, effective July 1.L. 2002: (2)(a) amended, p. 1518, §209, effective October 1.

Editor's note: Amendments to this section by House Bill 00-1247 and House Bill 00-1243 were harmonized by renumbering (3) from House Bill 00-1247 as (4).

Cross references: For the legislative declaration contained in the 2002 act amending subsection (2)(a), see section 1 of chapter 318, Session Laws of Colorado 2002.

1. As used in this section:
   1. 1. "Explosive or incendiary device" means:
         1. Dynamite and all other forms of high explosives, including, but not limited to, water gel, slurry, military C-4 (plastic explosives), blasting agents to include nitro-carbon-nitrate, and ammonium nitrate and fuel oil mixtures, cast primers and boosters, R.D.X., P.E.T.N., electric and nonelectric blasting caps, exploding cords commonly called detonating cord or det-cord or primacord, picric acid explosives, T.N.T. and T.N.T. mixtures, and nitroglycerin and nitroglycerin mixtures;
         2. Any explosive bomb, grenade, missile, or similar device; and
         3. Any incendiary bomb or grenade, fire bomb, or similar device, including any device, except kerosene lamps, which consists of or includes a breakable container including a flammable liquid or compound and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound and can be carried or thrown by one individual acting alone.
      2. "Explosive or incendiary device" shall not include rifle, pistol, or shotgun ammunition, or the components for handloading rifle, pistol, or shotgun ammunition.
   2. 1. "Explosive or incendiary parts" means any substances or materials or combinations thereof which have been prepared or altered for use in the creation of an explosive or incendiary device. Such substances or materials may include, but shall not be limited to, any:
         1. Timing device, clock, or watch which has been altered in such a manner as to be used as the arming device in an explosive;
         2. Pipe, end caps, or metal tubing which has been prepared for a pipe bomb;
         3. Mechanical timers, mechanical triggers, chemical time delays, electronic time delays, or commercially made or improvised items which, when used singly or in combination, may be used in the construction of a timing delay mechanism, booby trap, or activating mechanism for any explosive or incendiary device.
      2. "Explosive or incendiary parts" shall not include rifle, pistol, or shotgun ammunition, or the components for handloading rifle, pistol, or shotgun ammunition, or any signaling device customarily used in operation of railroad equipment.
2. Any person who knowingly possesses, controls, manufactures, gives, mails, sends, or causes to be sent an explosive or incendiary device commits a class 4 felony.
   • 2.5. Any person who knowingly possesses, controls, manufacturers, gives, mails, sends, or causes to be sent a chemical, biological, or radiological weapon commits a class 3 felony.
3. Subsection (2) of this section shall not apply to the following persons:
   1. A peace officer while acting in his official capacity transporting or otherwise handling explosives or incendiary devices;
   2. A member of the armed forces of the United States or Colorado National Guard while acting in his official capacity;
   3. An authorized employee of the office of active and inactive mines in the division of reclamation, mining, and safety while acting within the scope of his or her employment;
   4. A person possessing a valid permit issued under the provisions of article 7 of title 9, C.R.S., or an employee of such permittee acting within the scope of his employment;
   5. A person who is exempt from the necessity of possessing a permit under the provisions of section 9-7-106 (5), C.R.S., or an employee of such exempt person acting within the scope of his employment;
   6. A person or entity authorized to use chemical, biological, or radiological materials in their lawful business operations while using the chemical, biological, or radiological materials in the course of legitimate business activities. Authorized users shall include clinical, environmental, veterinary, agricultural, public health, or radiological laboratories and entities otherwise licensed to possess radiological materials.
4. Any person who knowingly uses or causes to be used or gives, mails, sends, or causes to be sent an explosive or incendiary device or a chemical, biological, or radiological weapon or materials in the commission of or in an attempt to commit a felony commits a class 2 felony.
5. Any person who removes or causes to be removed or carries away any explosive or incendiary device from the premises where said explosive or incendiary device is kept by the lawful user, vendor, transporter, or manufacturer thereof, without the consent or direction of the lawful possessor, commits a class 4 felony. A person convicted of this offense shall be subjected to a mandatory minimum sentence of two years in the department of corrections.
   • 5.5. Any person who removes or causes to be removed or carries away any chemical, biological, or radiological weapon from the premises where said chemical, biological, or radiological weapon is kept by the lawful user, vendor, transporter, or manufacturer thereof, without the consent or direction of the lawful possessor, commits a class 3 felony. A person convicted of this offense shall be subject to a mandatory minimum sentence of four years in the department of corrections.
6. Any person who possesses any explosive or incendiary parts commits a class 4 felony.
   • 6.5. Any person who possesses any chemical weapon, biological weapon, or radiological weapon parts commits a class 3 felony.
7. Any person who manufactures or possesses or who gives, mails, sends, or causes to be sent any false, facsimile, or hoax explosive or incendiary device or chemical, biological, or radiological weapon to another person or places any such purported explosive or incendiary device or chemical, biological, or radiological weapon in or upon any real or personal property commits a class 5 felony.
8. Any person possessing a valid permit issued under the provisions of article 7 of title 9, C.R.S., or an employee of such permittee acting within the scope of his employment, who knowingly dispenses, distributes, or sells explosive or incendiary devices to a person who is not authorized to possess or control such explosive or incendiary device commits a class 4 felony.

HISTORY: Source:. L. 74: Entire section added, p. 256, §1, effective March 21.L. 77: (4) amended, p. 971, §64, effective July 1; entire section R&RE, p. 992, §1, effective July 1.L. 81: (1)(a)(I)(A) and (7) amended, p. 977, §21, effective July 1.L. 84: (8) added, p. 539, §18, effective July 1.L. 92: (3)(c) amended, p. 1970, §72, effective July 1.L. 2001: (2) amended, p. 857, §1, effective July 1.L. 2002: (2.5), (3)(f), (5.5), and (6.5) added and (4) and (7) amended, pp. 1195, 1196, §§1, 2, effective June 3.L. 2003: (5) and (5.5) amended, p. 1428, §11, effective April 29; (5.5) amended, p. 1433, §26, effective July 1.L. 2006: (3)(c) amended, p. 213, §3, effective August 7.

Editor's note: Amendments to subsection (5.5) by section 11 of House Bill 03-1236 and section 26 of House Bill 03-1236 were harmonized. ANNOTATION

This section is not unconstitutionally vague or overbroad. The prohibition of the possession of incendiary devices is reasonably related to the legitimate governmental interest of preventing harm to the public and such prohibition is within the state's police power. As a result, defendant's argument that the statute is unconstitutionally overbroad is without merit. The defendant's vagueness argument also fails because the statute provides reasonable notice of the prohibited conduct. People v. Rowerdink, 756 P.2d 986 (Colo. 1988).

1977 amendments harmonized. Two 1977 amendments were not irreconcilable and revisor of statute properly harmonized the amendments by adding "knowingly" and "or attempts to commit" in subsection (4); and defendant, who would not have been convicted under the language of either amendment as passed by the legislature, was properly convicted under the harmonized language. People v. Owens, 670 P.2d 1233 (Colo. 1983).

The existence of a wick is not only material, but essential, to a charge under this section. People v. Brown, 194 Colo. 553, 574 P.2d 92 (1978).

Incendiary device without a wick may be prosecuted despite any apparent language to the contrary in People v. Brown, (194 Colo. 553, 574 P.2d 92 (1978)). People v. Owens, 670 P.2d 1233 (Colo. 1983).

The prosecution's inability to produce the wick remnant does not require suppression of testimony regarding its existence where a good faith effort was made to preserve it pursuant to standard fire department procedures and the investigator who observed the wick remnant is available for examination. People v. Brown, 194 Colo. 553, 574 P.2d 92 (1978).

"Explosive or incendiary" includes items which in themselves are not explosive or incendiary, but which have been prepared or altered for use in the creation of an explosive or incendiary device. People v. Lovato, 630 P.2d 597 (Colo. 1981).

Blasting cap within ambit of "other forms of high explosives". The material in a blasting cap is classified as a high explosive and, thus, falls within the ambit of "other forms of high explosives" which are expressly included in this section's definition of explosive or incendiary devices. People v. Lovato, 630 P.2d 597 (Colo. 1981).

Phrase "including any device" defined. The phrase "which consists of or includes a breakable container including a flammable liquid or compound and a wick" is not a limitation on all devices proscribed by this section, but instead defines the phrase "including any device". The statute thus proscribes the use of any incendiary bomb or grenade, including one with a wick and a breakable container. People v. Owens, 670 P.2d 1233 (Colo. 1983).

Proscribed conduct unlike fourth degree arson. This section does not deny equal protection by proscribing the same conduct as the fourth degree arson statute yet carrying a substantially greater penalty; the elements of each offense and the mental states required are different. People v. Owens, 670 P.2d 1233 (Colo. 1983).

Applied in Miller v. District Court, 193 Colo. 404, 566 P.2d 1063 (1977); People v. Stoppel, 637 P.2d 384 (Colo. 1981).

Upon the motion of the prosecuting attorney after the conviction of a defendant, the court may order the forfeiture of any firearms which were used by the defendant during the course of the criminal episode which gave rise to said conviction as an element of sentencing or as a condition of probation or of a deferred sentence. Firearms forfeited under this section shall be disposed of pursuant to section 16-13-311, C.R.S.

HISTORY: Source: L. 83: Entire section added, p. 667, §11, effective July 1.

1. Any person who knowingly purchases or otherwise obtains a firearm on behalf of or for transfer to a person who the transferor knows or reasonably should know is ineligible to possess a firearm pursuant to federal or state law commits a class 4 felony.
2. 1. Any person who is a licensed dealer, as defined in 18 U.S.C. sec. 921 (a) (11), shall post a sign displaying the provisions of subsection (1) of this section in a manner that is easily readable. The person shall post such sign in an area that is visible to the public at each location from which the person sells firearms to the general public.
   2. Any person who violates any provision of this subsection (2) commits a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of two hundred fifty dollars.

HISTORY: Source: L. 2000: Entire section added, p. 638, §1, effective July 1.

1. 1. on and after july 1, 2013, except as described in subsection (6) of this section, before any person who is not a licensed gun dealer, as defined in section 12-26.1-106 (6), c.r.s., transfers or attempts to transfer possession of a firearm to a transferee, he or she shall:
      1. require that a background check, in accordance with section 24-33.5-424, c.r.s., be conducted of the prospective transferee; and
      2. obtain approval of a transfer from the bureau after a background check has been requested by a licensed gun dealer, in accordance with section 24-33.5-424, c.r.s.
   2. as used in this section, unless the context requires otherwise, "transferee" means a person who desires to receive or acquire a firearm from a transferor. if a transferee is not a natural person, then each natural person who is authorized by the transferee to possess the firearm after the transfer shall undergo a background check, as described in paragraph (a) of this subsection (1), before taking possession of the firearm.
2. 1. a prospective firearm transferor who is not a licensed gun dealer shall arrange for a licensed gun dealer to obtain the background check required by this section.
   2. a licensed gun dealer who obtains a background check on a prospective transferee shall record the transfer, as provided in section 12-26-102, c.r.s., and retain the records, as provided in section 12-26-103, c.r.s., in the same manner as when conducting a sale, rental, or exchange at retail. the licensed gun dealer shall comply with all state and federal laws, including 18 u.s.c. sec. 922, as if he or she were transferring the firearm from his or her inventory to the prospective transferee.
   3. a licensed gun dealer who obtains a background check for a prospective firearm transferor pursuant to this section shall provide the firearm transferor and transferee a copy of the results of the background check, including the bureau's approval or disapproval of the transfer.
   4. a licensed gun dealer may charge a fee for services rendered pursuant to this section, which fee shall not exceed ten dollars.
3. 1. a prospective firearm transferee under this section shall not accept possession of the firearm unless the prospective firearm transferor has obtained approval of the transfer from the bureau after a background check has been requested by a licensed gun dealer, as described in paragraph (b) of subsection (1) of this section.
   2. a prospective firearm transferee shall not knowingly provide false information to a prospective firearm transferor or to a licensed gun dealer for the purpose of acquiring a firearm.
4. if the bureau approves a transfer of a firearm pursuant to this section, the approval shall be valid for thirty calendar days, during which time the transferor and transferee may complete the transfer.
5. a person who transfers a firearm in violation of the provisions of this section may be jointly and severally liable for any civil damages proximately caused by the transferee's subsequent use of the firearm.
6. the provisions of this section do not apply to:
   1. a transfer of an antique firearm, as defined in 18 u.s.c. sec. 921(a) (16), as amended, or a curio or relic, as defined in 27 cfr 478.11, as amended;
   2. a transfer that is a bona fide gift or loan between immediate family members, which are limited to spouses, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles;
   3. a transfer that occurs by operation of law or because of the death of a person for whom the prospective transferor is an executor or administrator of an estate or a trustee of a trust created in a will;
   4. a transfer that is temporary and occurs while in the home of the unlicensed transferee if:
      1. the unlicensed transferee is not prohibited from possessing firearms; and
      2. the unlicensed transferee reasonably believes that possession of the firearm is necessary to prevent imminent death or serious bodily injury to the unlicensed transferee;
   5. a temporary transfer of possession without transfer of ownership or a title to ownership, which transfer takes place:
      1. at a shooting range located in or on premises owned or occupied by a duly incorporated organization organized for conservation purposes or to foster proficiency in firearms;
      2. at a target firearm shooting competition under the auspices of, or approved by, a state agency or a nonprofit organization; or
      3. while hunting, fishing, target shooting, or trapping if:
         1. the hunting, fishing, target shooting, or trapping is legal in all places where the unlicensed transferee possesses the firearm; and
         2. the unlicensed transferee holds any license or permit that is required for such hunting, fishing, target shooting, or trapping;
   6. a transfer of a firearm that is made to facilitate the repair or maintenance of the firearm; except that this paragraph (f) does not apply unless all parties who possess the firearm as a result of the transfer may legally possess a firearm;
   7. a ny temporary transfer that occurs while in the continuous presence of the owner of the firearm;
   8. a temporary transfer for not more than seventy-two hours. a person who transfers a firearm pursuant to this paragraph
   9. may be jointly and severally liable for damages proximately caused by the transferee' s subsequent unlawful use of the firearm; or
   10. a transfer of a firearm from a person serving in the armed forces of the united states who will be deployed outside of the united states within the next thirty days to any immediate family member, which is limited to a spouse, parent, child, sibling, grandparent, grandchild, niece, nephew, first cousin, aunt, and uncle of the person.
7. for purposes of paragraph (f) of subsection (6) of this section:
   1. an owner, manager, or employee of a business that repairs or maintains firearms may rely upon a transferor's statement that he or she may legally possess a firearm unless the owner, manager, or employee has actual knowledge to the contrary and may return possession of the firearm to the transferor upon completion of the repairs or maintenance without a background check;
   2. unless a transferor of a firearm has actual knowledge to the contrary, the transferor may rely upon the statement of an owner, manager, or employee of a business that repairs or maintains firearms that no owner, manager, or employee of the business is prohibited from possessing a firearm.
8. nothing in subsection (6) of this section shall be interpreted to limit or otherwise alter the applicability of section 18-12-111 concerning the unlawful purchase or transfer of firearms.
9. 1. a person who violates a provision of this section commits a class 1 misdemeanor and shall be punished in accordance with section 18-1.3-501. the person shall also be prohibited from possessing a firearm for two years, beginning on the date of his or her conviction.
   2. when a person is convicted of violating a provision of this section, the state court administrator shall report the conviction to the bureau and to the national instant criminal background check system created by the federal "brady handgun violence prevention act" (pub .l. 103-159), the relevant portion of which is codified at 18 u.s.c. sec. 922 (t). the report shall include information indicating that the person is prohibited from possessing a firearm for two years, beginning on the date of his or her conviction

HISTORY: Source: L. 2013: Entire section added, (HB 13-1229), ch. 47, p. 128, §1, effective March 20.

1. The general assembly finds that:
   1. There exists a widespread inconsistency among jurisdictions within the state with regard to the issuance of permits to carry concealed handguns and identification of areas of the state where it is lawful to carry concealed handguns;
   2. This inconsistency among jurisdictions creates public uncertainty regarding the areas of the state in which it is lawful to carry concealed handguns;
   3. Inconsistency results in the arbitrary and capricious denial of permits to carry concealed handguns based on the jurisdiction of residence rather than the qualifications for obtaining a permit;
   4. The criteria and procedures for the lawful carrying of concealed handguns historically has been regulated by state statute and should be consistent throughout the state to ensure the consistent implementation of state law; and
   5. It is necessary that the state occupy the field of regulation of the bearing of concealed handguns since the issuance of a concealed handgun permit is based on a person's constitutional right of self-protection and there is a prevailing state interest in ensuring that no citizen is arbitrarily denied a concealed handgun permit and in ensuring that the laws controlling the use of the permit are consistent throughout the state.
2. Based on the findings specified in subsection (1) of this section, the general assembly hereby concludes that:
   1. The permitting and carrying of concealed handguns is a matter of statewide concern; and
   2. It is necessary to provide statewide uniform standards for issuing permits to carry concealed handguns for self-defense.
3. In accordance with the findings and conclusions specified in subsections (1) and (2) of this section, the general assembly hereby instructs each sheriff to implement and administer the provisions of this part 2. The general assembly does not delegate to the sheriffs the authority to regulate or restrict the issuance of permits provided for in this part 2 beyond the provisions of this part 2. An action or rule that encumbers the permit process by placing burdens on the applicant beyond those sworn statements and specified documents detailed in this part 2 or that creates restrictions beyond those specified in this part 2 is in conflict with the intent of this part 2 and is prohibited.

HISTORY: Source: L. 2003: Entire part added, p. 635, §1, effective May 17.

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading.

Law reviews: For article, "In the Crosshairs: Colorado's New Gun Laws", see 33 Colo. Law. 11 (January 2004).

As used in this part 2, unless the context otherwise requires:

1. Repealed.
2. "Certified instructor" means an instructor for a firearms safety course who is certified as a firearms instructor by:
   1. A county, municipal, state, or federal law enforcement agency;
   2. The peace officers standards and training board created in section 24-31-302, C.R.S.;
   3. A federal military agency; or
   4. A national nonprofit organization that certifies firearms instructors, operates national firearms competitions, and provides training, including courses in personal protection, in small arms safety, use, and marksmanship.
3. "Chronically and habitually uses alcoholic beverages to the extent that the applicant's normal faculties are impaired" means:
   1. The applicant has at any time been committed as an alcoholic pursuant to section 27-81-111 or 27-81-112, C.R.S.; or
   2. Within the ten-year period immediately preceding the date on which the permit application is submitted, the applicant:
      1. Has been committed as an alcoholic pursuant to section 27-81-109 or 27-81-110, C.R.S.; or
      2. Has had two or more alcohol-related convictions under section 42-4-1301 (1) or (2), C.R.S., or a law of another state that has similar elements, or revocations related to misdemeanor, alcohol-related convictions under section 42-2-126, C.R.S., or a law of another state that has similar elements.
4. "Handgun" means a handgun as defined in section 18-12-101 (1) (e.5); except that the term does not include a machine gun as defined in section 18-12-101 (1) (g).
5. 1. "Handgun training class" means:
      1. A law enforcement training firearms safety course;
      2. A firearms safety course offered by a law enforcement agency, an institution of higher education, or a public or private institution or organization or firearms training school, that is open to the general public and is taught by a certified instructor; or
      3. A firearms safety course or class that is offered and taught by a certified instructor.
   2. Notwithstanding paragraph (a) Of this subsection(5),"handgun training class"does not include any firearms safetycourse that allows a person to complete the entire course:
      1. Via the internet or an electronic device;or
      2. In any location other than the physical location wherethe certified instructor offers the course.
6. "Permit" means a permit to carry a concealed handgun issued pursuant to the provisions of this part 2; except that "permit" does not include a temporary emergency permit issued pursuant to section 18-12-209.
7. "Sheriff" means the sheriff of a county, or his or her designee, or the official who has the duties of a sheriff in a city and county, or his or her designee.
8. "Training certificate" means a certificate, affidavit, or other document issued by the instructor, school, club, or organization that conducts a handgun training class that evidences an applicant's successful completion of the class requirements.

HISTORY: Source:. L. 2003: Entire part added, p. 636, §1, effective May 17.L. 2010: (3)(a) and (3)(b)(I) amended, (SB 10-175), ch. 188, p. 787, §32, effective April 29.L. 2013: (1) repealed, (HB 13-1229), ch. 47, p. 137, §7, effective March 20; (5) amended, (SB 13-195), ch. 278, p. 1450, §1, effective May 24.

1. Beginning May 17, 2003, except as otherwise provided in this section, a sheriff shall issue a permit to carry a concealed handgun to an applicant who:
   1. Is a legal resident of the state of Colorado. For purposes of this part 2, a person who is a member of the armed forces and is stationed pursuant to permanent duty station orders at a military installation in this state, and a member of the person's immediate family living in Colorado, shall be deemed to be a legal resident of the state of Colorado.
   2. Is twenty-one years of age or older;
   3. Is not ineligible to possess a firearm pursuant to section 18-12-108 or federal law;
   4. Has not been convicted of perjury under section 18-8-503, in relation to information provided or deliberately omitted on a permit application submitted pursuant to this part 2;
   5. 1. Does not chronically and habitually use alcoholic beverages to the extent that the applicant's normal faculties are impaired.
      2. The prohibition specified in this paragraph (e) shall not apply to an applicant who provides an affidavit, signed by a professional counselor or addiction counselor who is licensed pursuant to article 43 of title 12, C.R.S., and specializes in alcohol addiction, stating that the applicant has been evaluated by the counselor and has been determined to be a recovering alcoholic who has refrained from using alcohol for at least three years.
   6. Is not an unlawful user of or addicted to a controlled substance as defined in section 18-18-102 (5). Whether an applicant is an unlawful user of or addicted to a controlled substance shall be determined as provided in federal law and regulations.
   7. Is not subject to:
      1. A protection order issued pursuant to section 18-1-1001 or section 19-2-707, C.R.S., that is in effect at the time the application is submitted; or
      2. A permanent protection order issued pursuant to article 14 of title 13;
      3. A temporary protection order issued pursuant to article 14 of title 13, that is in effect at the time the application is submitted; or
      4. A temporary extreme risk protection order issued pursuant to section 13-14.5-103 (3) or an extreme risk protection order issued pursuant to section 13-14.5-105 (2);
   8. Demonstrates competence with a handgun by submitting:
      1. Evidence of experience with a firearm through participation in organized shooting competitions or current military service;
      2. Evidence that, at the time the application is submitted, the applicant is a certified instructor;
      3. Proof of honorable discharge from a branch of the United States armed forces within the three years preceding submittal of the application;
      4. Proof of honorable discharge from a branch of the United States armed forces that reflects pistol qualifications obtained within the ten years preceding submittal of the application;
      5. A certificate showing retirement from a Colorado law enforcement agency that reflects pistol qualifications obtained within the ten years preceding submittal of the application; or
      6. A training certificate from a handgun training class obtained within the ten years preceding submittal of the application. The applicant shall submit the original training certificate or a photocopy thereof that includes the original signature of the class instructor. To the extent permitted by Section 18-12-202 (5) In obtaining a training certificate from a handgun training class, the applicant shall have discretion in selecting which handgun training class to complete.
2. Regardless of whether an applicant meets the criteria specified in subsection (1) of this section, if the sheriff has a reasonable belief that documented previous behavior by the applicant makes it likely the applicant will present a danger to self or others if the applicant receives a permit to carry a concealed handgun, the sheriff may deny the permit.
3. 1. The sheriff shall deny, revoke, or refuse to renew a permit if an applicant or a permittee fails to meet one of the criteria listed in subsection (1) of this section and may deny, revoke, or refuse to renew a permit on the grounds specified in subsection (2) of this section.
   2. Following issuance of a permit, if the issuing sheriff has a reasonable belief that a permittee no longer meets the criteria specified in subsection (1) of this section or that the permittee presents a danger as described in subsection (2) of this section, the sheriff shall suspend the permit until such time as the matter is resolved and the issuing sheriff determines that the permittee is eligible to possess a permit as provided in this section.
   3. If the sheriff suspends or revokes a permit, the sheriff shall notify the permittee in writing, stating the grounds for suspension or revocation and informing the permittee of the right to seek a second review by the sheriff, to submit additional information for the record, and to seek judicial review pursuant to section 18-12-207.

HISTORY: Source:. L. 2003: Entire part added, p. 638, §1, effective May 17. L. 2004: (1)(g) amended, p. 1198, §52, effective August 4. L. 2008: (1)(e)(II) amended, p. 426, §27, effective August 5. L. 2013: (1)(h)(VI) amended, (SB 13-195), ch. 278, p. 1451, §2, effective May 24.

ANNOTATION

Plaintiff whose felony conviction in another state was set aside under that state's law and who was entitled to possess a handgun under that state's law was entitled to possess a handgun under §18-12-108 and was entitled to a concealed handgun permit under this section. Seguna v. Maketa, 181 P.3d 399 (Colo. App. 2008).

Sheriff's decision not to reissue concealed handgun permit was a quasi-judicial decision. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

Sheriff's refusal to reissue concealed handgun permit was based on proceedings and procedures that violated applicant's procedural due process rights. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

Applicant was denied due process because he was not apprised of or allowed to review adverse evidence or given the opportunity to confront adverse evidence and witnesses. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

Sheriff's findings of fact and conclusions of law, prepared on remand from the district court, did not satisfy statutory requirement for a written statement of the grounds for suspension or revocation. By the time case proceeded to district court, it was too late for sheriff to inform applicant of the evidence against him and the grounds for sheriff's decision in order to provide applicant with a reasonable opportunity to exercise his statutory rights to supplement the record or request a second review to confront such evidence. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

1. 1. Each permit shall bear a color photograph of the permittee and shall display the signature of the sheriff who issues the permit. In addition, the sheriffs of this state shall ensure that all permits issued pursuant to this part 2 contain the same items of information and are the same size and the same color.
   2. A permit is valid for a period of five years after the date of issuance and may be renewed as provided in section 18-12-211. A permit issued pursuant to this part 2, including a temporary emergency permit issued pursuant to section 18-12-209, is effective in all areas of the state, except as otherwise provided in section 18-12-214.
2. 1. A permittee, in compliance with the terms of a permit, may carry a concealed handgun as allowed by state law. The permittee shall carry the permit, together with valid photo identification, at all times during which the permittee is in actual possession of a concealed handgun and shall produce both documents upon demand by a law enforcement officer. Failure to produce a permit upon demand by a law enforcement officer raises a rebuttable presumption that the person does not have a permit. Failure to carry and produce a permit and valid photo identification upon demand as required in this subsection (2) is a class 1 petty offense. A charge of failure to carry and produce a permit and valid photo identification upon demand pursuant to this subsection (2) shall be dismissed by the court if, at or before the permittee's scheduled court appearance, the permittee exhibits to the court a valid permit and valid photo identification, both of which were issued to the permittee prior to the date on which the permittee was charged with failure to carry and produce a permit and valid photo identification upon demand.
   2. The provisions of paragraph (a) of this subsection (2) apply to temporary emergency permits issued pursuant to section 18-12-209.
3. 1. A person who may lawfully possess a handgun may carry a handgun under the following circumstances without obtaining a permit and the handgun shall not be considered concealed:
      1. The handgun is in the possession of a person who is in a private automobile or in some other private means of conveyance and who carries the handgun for a legal use, including self-defense; or
      2. The handgun is in the possession of a person who is legally engaged in hunting activities within the state.
   2. The provisions of this subsection (3) shall not be construed to authorize the carrying of a handgun in violation of the provisions of section 18-12-105 or 18-12-105.5.

HISTORY: Source: L. 2003: Entire part added, p. 639, §1, effective May 17.

1. 1. To obtain a permit, a person shall submit a permit application on a statewide standardized form developed by the sheriffs and available from each sheriff. The permit application form shall solicit only the following information from the applicant:
      1. The applicant's full name, date of birth, and address;
      2. The applicant's birth name, if different from the name provided pursuant to subparagraph (I) of this paragraph (a), and any other names the applicant may have used or by which the applicant may have been known;
      3. The applicant's home address or addresses for the ten-year period immediately preceding submittal of the application;
      4. Whether the applicant is a resident of this state as of the date of application and whether the applicant has a valid driver's license or other state-issued photo identification or military order proving residence; and
      5. Whether the applicant meets the criteria for obtaining a permit specified in section 18-12-203 (1).
   2. The permit application form shall not require the applicant to waive or release a right or privilege, including but not limited to waiver or release of privileged or confidential information contained in medical records.
2. 1. An applicant shall complete the permit application form and return it, in person, to the sheriff of the county or city and county in which the applicant resides, to the sheriff of the county or city and county in which the applicant maintains a secondary residence or owns or leases real property used by the applicant in a business. The applicant shall sign the completed permit application form in person before the sheriff. The applicant shall provide his or her signature voluntarily upon a sworn oath that the applicant knows the contents of the permit application and that the information contained in the permit application is true and correct. An applicant who knowingly and intentionally makes a false or misleading statement on a permit application or deliberately omits any material information requested on the application commits perjury as described in section 18-8-503. Upon conviction, the applicant shall be punished as provided in section 18-1.3-501. In addition, the applicant shall be denied the right to obtain or possess a permit, and the sheriff shall revoke the applicant's permit if issued prior to conviction.
   2. An applicant shall also submit to the sheriff a permit fee not to exceed one hundred dollars for processing the permit application. The sheriff shall set the amount of the permit fee as provided in subsection (5) of this section. In addition, the applicant shall submit an amount specified by the director of the bureau, pursuant to section 24-72-306, C.R.S., for processing the applicant's fingerprints through the bureau and through the federal bureau of investigation. Neither the permit fee nor the fingerprint processing fee shall be refundable in the event the sheriff denies the applicant's permit application or suspends or revokes the permit subsequent to issuance.
3. In addition to the items specified in subsection (2) of this section, an applicant, when submitting the completed permit application, shall submit the following items to the sheriff:
   1. Documentary evidence demonstrating competence with a handgun as specified in section 18-12-203 (1) (h); and
   2. A full frontal view color photograph of the applicant's head taken within the thirty days immediately preceding submittal of the permit application; except that the applicant need not submit a photograph if the sheriff photographs the applicant for purposes of issuing a permit. Any photograph submitted shall show the applicant's full head, including hair and facial features, and the depiction of the applicant's head shall measure one and one-eighth inches wide and one and one-fourth inches high.
4. 1. The sheriff shall witness an applicant's signature on the permit application as provided in subsection (2) of this section and verify that the person making application for a permit is the same person who appears in any photograph submitted and the same person who signed the permit application form. To verify the applicant's identity, the applicant shall present to the sheriff the applicant's valid Colorado driver's license or valid Colorado or military photo identification.
   2. After verifying the applicant's identity, the sheriff shall take two complete sets of the applicant's fingerprints. The sheriff shall submit both sets of fingerprints to the bureau, and the sheriff shall not retain a set of the applicant's fingerprints.
   3. After receipt of a permit application and the items specified in this section, the sheriff shall verify that the applicant meets the criteria specified in section 18-12-203 (1) and is not a danger as described in section 18-12-203 (2). The verification at a minimum shall include requesting the bureau to conduct a search of the national instant criminal background check system and a search of the state integrated criminal justice information system to determine whether the applicant meets the criteria specified in section 18-12-203 (1). In addition, if the applicant resides in a municipality or town, the sheriff shall consult with the police department of the municipality or town in which the applicant resides, and the sheriff may consult with other local law enforcement agencies.
5. The sheriff in each county or city and county in the state shall establish the amount of the new and renewal permit fees within his or her jurisdiction. The amount of the new and renewal permit fees shall comply with the limits specified in paragraph (b) of subsection (2) of this section and section 18-12-211 (1), respectively. The fee amounts shall reflect the actual direct and indirect costs to the sheriff of processing permit applications and renewal applications pursuant to this part 2.

HISTORY: Source: L. 2003: Entire part added, p. 640, §1, effective May 17; L. 2014: (2)(a) amended hb1166, §1.

1. Within ninety days after the date of receipt of the items specified in section 18-12-205, a sheriff shall:
   1. Approve the permit application and issue the permit; or
   2. Deny the permit application based solely on the ground that the applicant fails to qualify under the criteria listed in section 18-12-203 (1) or that the applicant would be a danger as described in section 18-12-203 (2). If the sheriff denies the permit application, he or she shall notify the applicant in writing, stating the grounds for denial and informing the applicant of the right to seek a second review of the application by the sheriff, to submit additional information for the record, and to seek judicial review pursuant to section 18-12-207.
2. If the sheriff does not receive the results of the fingerprint checks conducted by the bureau and by the federal bureau of investigation within ninety days after receiving a permit application, the sheriff shall determine whether to grant or deny the permit application without considering the fingerprint check information. If, upon receipt of the information, the sheriff finds that the permit was issued or denied erroneously, based on the criteria specified in section 18-12-203 (1) and (2), the sheriff shall either revoke or issue the permit, whichever is appropriate.
3. 1. Each sheriff shall maintain a list of the persons to whom he or she issues permits pursuant to this part 2. Upon request by another criminal justice agency for law enforcement purposes, the sheriff may, at his or her discretion, share information from the list of permittees with a law enforcement agency for the purpose of determining the validity of a permit. A database maintained pursuant to this subsection (3) and any database operated by a state agency that includes permittees shall be searchable only by name.
   2. 1. Notwithstanding the provisions of paragraph (a) of this subsection (3), on and after July 1, 2011, a sheriff shall not share information from the list of permittees with a law enforcement agency for the purpose of creating a statewide database of permittees, and any law enforcement agency that receives information concerning permittees from a sheriff shall not use the information to create or maintain a statewide database of permittees. Any information concerning a permittee that is included in a statewide database pursuant to paragraph (a) of this subsection (3) shall be removed from the database no later than July 1, 2011.
      2. Prior to the repeal in subparagraph (I) of this paragraph (b), the state auditor's office shall conduct a performance audit of the statewide database of permittees as provided in section 2-3-118, C.R.S.
   3. Except for suspected violations of sections 18-12-105 and 18-12-105.5, a peace officer may not use or search a database of permittees maintained by a law enforcement agency to establish reasonable suspicion for a traffic stop, or when contacting an individual, to justify probable cause for a search or seizure of a person or a person's vehicle or property.
4. Each sheriff shall annually prepare a report specifying, at a minimum, the number of permit applications received during the year for which the report was prepared, the number of permits issued during the year, the number of permits denied during the year, the reasons for denial, the number of revocations during the year, and the reasons for the revocations. The report shall not include the name of a person who applies for a permit, regardless of whether the person receives or is denied a permit. Each sheriff shall submit the report on or before March 1, 2004, and on or before March 1 each year thereafter, to the members of the general assembly. In addition, each sheriff shall provide a copy of the annual report prepared pursuant to this subsection (4) to a member of the public upon request.

HISTORY: Source:. L. 2003: Entire part added, p. 642, §1, effective May 17.L. 2007: (3)(b) amended and (3)(c) added, p. 777, §§1, 2, effective May 14.

ANNOTATION

Sheriff's decision not to reissue concealed handgun permit was a quasi-judicial decision. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

Sheriff's refusal to reissue concealed handgun permit was based on proceedings and procedures that violated applicant's procedural due process rights. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

Applicant was denied due process because he was not apprised of or allowed to review adverse evidence or given the opportunity to confront adverse evidence and witnesses. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

Sheriff's findings of fact and conclusions of law, prepared on remand from the district court, did not satisfy statutory requirement for a written statement stating the grounds for suspension or revocation. By the time case proceeded to district court, it was too late for sheriff to inform applicant of the evidence against him and the grounds for sheriff's decision in order to provide applicant with a reasonable opportunity to exercise his statutory rights to supplement the record or request a second review to confront such evidence. Copley v. Robinson, 224 P.3d 431 (Colo. App. 2009).

1. If a sheriff denies a permit application, refuses to renew a permit, or suspends or revokes a permit, the applicant or permittee may seek judicial review of the sheriff's decision. The applicant or permittee may seek judicial review either in lieu of or subsequent to the sheriff's second review.
2. The procedure and time lines for filing a complaint, an answer, and briefs for judicial review pursuant to this section shall be in accordance with the procedures specified in rule 106 (a) (4) and (b) of the Colorado rules of civil procedure.
3. Notwithstanding any other provision of law to the contrary, at a judicial review sought pursuant to this section, the sheriff shall have the burden of proving by a preponderance of the evidence that the applicant or permittee is ineligible to possess a permit under the criteria listed in section 18-12-203 (1) or, if the denial, suspension, or revocation was based on the sheriff's determination that the person would be a danger as provided in section 18-12-203 (2), the sheriff shall have the burden of proving the determination by clear and convincing evidence. Following completion of the review, the court may award attorney fees to the prevailing party.

HISTORY: Source: L. 2003: Entire part added, p. 644, §1, effective May 17.

1. Upon receipt of a permit applicant's fingerprints from a sheriff pursuant to section 18-12-205 (4) or upon a sheriff's request pursuant to section 18-12-211 (1), the bureau shall process the full set of fingerprints to obtain any available state criminal justice information or federal information pursuant to section 16-21-103 (5), C.R.S., and shall report any information received to the sheriff. In addition, within ten days after receiving the fingerprints, the bureau shall forward one set of the fingerprints to the federal bureau of investigation for processing to obtain any available state criminal justice information or federal information.
2. The bureau shall use the fingerprints received pursuant to this part 2 solely for the purposes of:
   1. Obtaining information for the issuance or renewal of permits; and
   2. Notifying an issuing sheriff that a permittee has been arrested for or charged with an offense that would require revocation or suspension of the permit or that a permittee has been convicted of such an offense.
3. On or before January 15, 2004, and on or before January 15 each year thereafter until January 15, 2007, the bureau shall provide to the general assembly a list of the jurisdictions in which the sheriff provides to the bureau the names of persons to whom the sheriff issues permits.

HISTORY: Source: L. 2003: Entire part added, p. 644, §1, effective May 17.

1. Notwithstanding any provisions of this part 2 to the contrary, a sheriff, as provided in this section, may issue a temporary emergency permit to carry a concealed handgun to a person whom the sheriff has reason to believe may be in immediate danger.
2. 1. To receive a temporary emergency permit, a person shall submit to the sheriff of the county or city and county in which the person resides or in which the circumstances giving rise to the emergency exist the items specified in section 18-12-205; except that an applicant for a temporary emergency permit need not submit documentary evidence demonstrating competence with a handgun as required under section 18-12-205 (3) (a), and the applicant shall submit a temporary permit fee not to exceed twenty-five dollars, as set by the sheriff. Upon receipt of the documents and fee, the sheriff shall request that the bureau conduct a criminal history record check of the bureau files and a search of the national instant criminal background check system. The sheriff may issue a temporary emergency permit to the applicant if the sheriff determines the person may be in immediate danger and the criminal history record check shows that the applicant meets the criteria specified in section 18-12-203; except that the applicant need not demonstrate competence with a handgun and the applicant may be eighteen years of age or older.
   2. 1. A temporary emergency permit issued pursuant to this section is valid for a period of ninety days after the date of issuance. Prior to or within ten days after expiration of a temporary emergency permit, the permittee may apply to the sheriff of the County or City and County in which the person resides or in which the circumstance giving rise to the emergency exist for renewal of the permit. The sheriff may renew a temporary emergency permit once for an additional ninety-day period; except that, if the permittee is younger than twenty-one years of age, the sheriff may renew the temporary emergency permit for subsequent ninety-day periods until the permittee reaches twenty-one years of age.
      2. if the sheriff is not the same sheriff who issued the temporary emergency permit to the permittee:
         1. the permittee shall submit to the renewing sheriff, in addition to the materials described in section 18-12-205, a legible photocopy of the temporary emergency permit; and
         2. the renewing sheriff shall contact the office of the sheriff who issued the temporary emergency permit and confirm that the issuing sheriff has not revoked or suspended the temporary emergency permit.

HISTORY: Source: L. 2003: Entire part added, p. 645, §1, effective May 17; L. 2014: (2)(b) amended hb1166, §2.

1. Within thirty days after a permittee changes the address specified on his or her permit or within three business days after his or her permit is lost, stolen, or destroyed, the permittee shall notify the issuing sheriff of the change of address or permit loss, theft, or destruction. Failure to notify the sheriff pursuant to this subsection (1) is a class 1 petty offense.
2. If a permit is lost, stolen, or destroyed, the permit is automatically invalid. The person to whom the permit was issued may obtain a duplicate or substitute therefor upon payment of fifteen dollars to the issuing sheriff and upon submission of a notarized statement to the issuing sheriff that the permit has been lost, stolen, or destroyed.
3. The provisions of this section apply to temporary emergency permits issued pursuant to section 18-12-209.

HISTORY: Source: L. 2003: Entire part added, p. 645, §1, effective May 17.

1. 1. Within one hundred twenty days prior to expiration of a permit, the permittee may obtain a renewal form from the sheriff of the county or city and county in which the permittee resides or from the sheriff of the county or city and county in which the permittee maintains a secondary residence or owns or leases real property used by the permittee in a business and renew the permit by submitting to the sheriff a completed renewal form, a notarized affidavit stating that the permittee remains qualified pursuant to the criteria specified in section 18-12-203 (1) (a) to (1) (g), and the required renewal fee not to exceed fifty dollars, as set by the sheriff pursuant to section 18-12-205 (5). The renewal form must meet the requirements specified in section 18-12-205 (1) for an application.
   2. If the sheriff is not the same sheriff who issued the permit to the permittee:
      1. the permittee shall submit to the renewing sheriff, in addition to the materials described in paragraph (a) of this subsection (1), a legible photocopy of the permit; and
      2. the renewing sheriff shall contact the office of the sheriff who issued the permit and confirm that the issuing sheriff has not revoked or suspended the permit.
   3. The sheriff shall verify pursuant to section 18-12-205 (4) that the permittee meets the criteria specified in section 18-12-203 (1) (a) to (1) (g) and is not a danger as described in section 18-12-203 (2) and shall either renew or deny the renewal of the permit in accordance with the provisions of section 18-12-206 (1). If the sheriff denies renewal of a permit, the permittee may seek a second review of the renewal application by the sheriff and may submit additional information for the record. The permittee may also seek judicial review as provided in section 18-12-207.
2. A permittee who fails to file a renewal form on or before the permit expiration date may renew the permit by paying a late fee of fifteen dollars in addition to the renewal fee established pursuant to subsection (1) of this section. No permit shall be renewed six months or more after its expiration date, and the permit shall be deemed to have permanently expired. A person whose permit has permanently expired may reapply for a permit, but the person shall submit an application for a permit and the fee required pursuant to section 18-12-205. A person who knowingly and intentionally files false or misleading information or deliberately omits material information required under this section is subject to criminal prosecution for perjury under section 18-8-503.

HISTORY: Source: L. 2003: Entire part added, p. 645, §1, effective May 17; L. 2014: (1) amended hb1166, §3.

1. This part 2 shall not apply to law enforcement officers employed by jurisdictions outside this state, so long as the foreign employing jurisdiction exempts peace officers employed by jurisdictions within Colorado from any concealed handgun or concealed weapons laws in effect in the foreign employing jurisdiction.
2. Notwithstanding any provision of this part 2 to the contrary, a retired peace officer, level I or Ia, as defined in section 18-1-901 (3) (l) (I) and (3) (l) (II), as said section existed prior to its repeal in 2003, within the first five years after retirement may obtain a permit by submitting to the sheriff of the jurisdiction in which the retired peace officer resides a letter signed by the sheriff or chief of police of the jurisdiction by which the peace officer was employed immediately prior to retirement attesting that the retired officer meets the criteria specified in section 18-12-203 (1). A retired peace officer who submits a letter pursuant to this subsection (2) is not subject to the fingerprint or criminal history check requirements specified in this part 2 and is not required to pay the permit application fee. Upon receipt of a letter submitted pursuant to this subsection (2), the sheriff shall issue the permit. A permit issued pursuant to this subsection (2) may not be renewed. Upon expiration of the permit, the permittee may apply for a new permit as provided in this part 2.

HISTORY: Source:. L. 2003: Entire part added, p. 646, §1, effective May 17.L. 2004: (2) amended, p. 1198, §53, effective August 4

Cross references: For additional provisions relating to peace officers, see article 2.5 of title 16.

1. A permit to carry a concealed handgun or a concealed weapon that is issued by a state that recognizes the validity of permits issued pursuant to this part 2 shall be valid in this state in all respects as a permit issued pursuant to this part 2 if the permit is issued to a person who is:
   1. Twenty-one years of age or older; and
   2. 1. A resident of the state that issued the permit, as demonstrated by the address stated on a valid picture identification that is issued by the state that issued the permit and is carried by the permit holder; or
      2. A resident of Colorado for no more than ninety days, as determined by the date of issuance on a valid picture identification issued by Colorado and carried by the permit holder.
2. For purposes of this section, a "valid picture identification" means a driver's license or a state identification issued in lieu of a driver's license.

HISTORY: Source:. L. 2003: Entire part added, p. 646, §1, effective May 17.L. 2007: Entire section amended, p. 956, §1, effective May 17.

1. 1. A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section. A permit does not authorize the permittee to use a handgun in a manner that would violate a provision of state law. A local government does not have authority to adopt or enforce an ordinance or resolution that would conflict with any provision of this part 2.
   2. A peace officer may temporarily disarm a permittee, incident to a lawful stop of the permittee. The peace officer shall return the handgun to the permittee prior to discharging the permittee from the scene.
2. A permit issued pursuant to this part 2 does not authorize a person to carry a concealed handgun into a place where the carrying of firearms is prohibited by federal law.
3. A permit issued pursuant to this part 2 does not authorize a person to carry a concealed handgun onto the real property, or into any improvements erected thereon, of a public elementary, middle, junior high, or high school; except that:
   1. A permittee may have a handgun on the real property of the public school so long as the handgun remains in his or her vehicle and, if the permittee is not in the vehicle, the handgun is in a compartment within the vehicle and the vehicle is locked;
   2. A permittee who is employed or retained by contract by a school district or charter school as a school security officer may carry a concealed handgun onto the real property, or into any improvement erected thereon, of a public elementary, middle, junior high, or high school while the permittee is on duty;
   3. A permittee may carry a concealed handgun on undeveloped real property owned by a school district that is used for hunting or other shooting sports.
4. A permit issued pursuant to this part 2 does not authorize a person to carry a concealed handgun into a public building at which:
   1. Security personnel and electronic weapons screening devices are permanently in place at each entrance to the building;
   2. Security personnel electronically screen each person who enters the building to determine whether the person is carrying a weapon of any kind; and
   3. Security personnel require each person who is carrying a weapon of any kind to leave the weapon in possession of security personnel while the person is in the building.
5. Nothing in this part 2 shall be construed to limit, restrict, or prohibit in any manner the existing rights of a private property owner, private tenant, private employer, or private business entity.
6. The provisions of this section apply to temporary emergency permits issued pursuant to section 18-12-209.

HISTORY: Source: L. 2003: Entire part added, p. 647, §1, effective May 17.L. 2014: (3)(b) amended, (HB 14-1291), ch. 165, p. 579, § 1, effective May 9.

ANNOTATION

Institutions of higher education not exempt from the express authorization of permittees to carry concealed handguns "in all areas of the state". The concealed carry act, §§18-12-201 to 18-12-216, satisfies the "unless otherwise provided by law" provision of article VIII, section 5(2), of the state constitution by manifesting a clear and unmistakable intent to subject the entire state to a single statutory scheme regulating concealed handgun carry, subject to specified exceptions. Students for Concealed Carry on Campus, LLC v. Regents of Univ. of Colo., -- P.3d -- (Colo. App. 2010).

1. The bureau and a local law enforcement agency and an individual employed by the bureau or a local law enforcement agency shall not be liable for any damages that may result from good faith compliance with the provisions of this part 2.
2. A law enforcement officer or agency, medical personnel, and an organization that offers handgun training classes and its personnel who in good faith provide information regarding an applicant shall not be liable for any damages that may result from issuance or denial of a permit.

HISTORY: Source: L. 2003: Entire part added, p. 648, §1, effective May 17.

1. A permit issued pursuant to section 18-12-105.1, as it existed prior to its repeal, shall permanently expire on June 30, 2007, or on the expiration date specified on the permit, whichever occurs first. A person who submitted a full set of fingerprints to obtain a permit prior to May 17, 2003, upon expiration of the permit, may apply for renewal of the permit as provided in this part 2. A person who did not submit a full set of fingerprints to obtain a permit prior to May 17, 2003, upon expiration of the permit, may apply for a new permit as provided in this part 2.
2. Within one hundred twenty days prior to the expiration of a permit issued pursuant to section 18-12-105.1, as it existed prior to its repeal, the issuing authority shall send a notice of expiration to the permittee to notify the permittee of the permit expiration as provided in subsection (1) of this section and of his or her ability to renew the permit or obtain a new permit as provided in subsection (1) of this section.

HISTORY: Source: L. 2003: Entire part added, p. 648, §1, effective May 17.

• as used in this part 3, unless the context otherwise requires:
  1. "bureau" means the colorado bureau of investigation created and existing pursuant to section 24-33.5-401, c.r.s.
  2. 1. "large-capacity magazine means:
        1. a fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to be readily converted to accept, more than fifteen rounds of ammunition;
        2. a fixed, tubular shotgun magazine that holds more than twenty-eight inches of shotgun shells, including any extension device that is attached to the magazine and holds additional shotgun shells; or
        3. a nontubular, detachable magazine, box, drum, feed strip, or similar device that is capable of accepting more than eight shotgun shells when combined with a fixed magazine.
     2. "large-capacity magazine" does not mean:
        1. a feeding device that has been permanently altered so that it cannot accommodate more than fifteen rounds of ammunition;
        2. an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition; or
        3. a tubular magazine that is contained in a lever-action firearm.

HISTORY: Source: L. 2013: Entire part added, (HB 13-1224), ch. 48, p. 144, §1, effective July 1.

1. 1. except as otherwise provided in this section, on and after july 1, 2013, a person who sells, transfers, or possesses a large-capacity magazine commits a class 2 misdemeanor.
   2. any person who violates subsection (1) of this section after having been convicted of a prior violation of said subsection (1) commits a class 1 misdemeanor.
   3. any person who violates subsection (1) of this section commits a class 6 felony if the person possessed a large-capacity magazine during the commission of a felony or any crime of violence, as defined in section 18-1.3-406.
2. 1. a person may possess a large-capacity magazine if he or she:
      1. owns the large-capacity magazine on the effective date of this section; and
      2. maintains continuous possession of the large-capacity magazine.
   2. 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.
3. the offense described in subsection (1) of this section shall not apply to:
   1. an entity, or any employee thereof engaged in his or her employment duties, that manufactures large-capacity magazines within colorado exclusively for transfer to, or any licensed gun dealer, as defined in section 12-26.1-106 (6), c.r.s., or any employee thereof engaged in his or her official employment duties, that sells large-capacity magazines exclusively to:
      1. a branch of the armed forces of the united states;
      2. a department, agency, or political subdivision of the state of colorado, or of any other state, or of the united states government;
      3. a firearms retailer for the purpose of firearms sales conducted outside the state;
      4. a foreign national government that has been approved for such transfers by the united states government; or
      5. an out-of-state transferee who may legally possess a large-capacity magazine; or
   2. an employee of any of the following agencies who bears a firearm in the course of his or her official duties:
      1. a branch of the armed forces of the united states; or
      2. a department, agency, or political subdivision of the state of colorado, or of any other state, or of the united states government; or
   3. a person who possesses the magazine for the sole purpose of transporting the magazine to an out-of-state entity on behalf of a manufacturer of large-capacity magazines within colorado.

HISTORY: Source: L. 2013: Entire part added, (HB 13-1224), ch. 48, p. 145, §1, effective July 1.

1. a large-capacity magazine that is manufactured in colorado on or after the effective date of this section must include a permanent stamp or marking indicating that the large-capacity magazine was manufactured or assembled after the effective date of this section. the stamp or marking must be legibly and conspicuously engraved or cast upon the outer surface of the large-capacity magazine.
2. the bureau may promulgate such rules as may be necessary for the implementation of this section, including but not limited to rules requiring a large-capacity magazine that is manufactured on or after the effective date of this section to bear identifying information in addition to the identifying information described in subsection (1) of this section.
3. a person who manufactures a large-capacity magazine in colorado in violation of subsection (1) of this section commits a class 2 misdemeanor and shall be punished in accordance with section 18-1.3-501.

HISTORY: Source: L. 2013: Entire part added, (HB 13-1224), ch. 48, p. 146, §1, effective July 1.

1. For purposes of this section:
   1. "18 U.S.C. sec. 922 (t)" means 18 U.S.C. sec. 922 (t) as it exists as of March 7, 2000, or as it may be amended.
   2. "Firearm" has the same meaning as set forth in 18 U.S.C. sec. 921 (a) (3), as amended.
   3. "NICS system" means the national instant criminal background check system created by Public Law 103-159, known as the federal "Brady Handgun Violence Prevention Act", the relevant portion of which is codified at 18 U.S.C. sec. 922 (t).
   4. "Transfer" means the sale or delivery of any firearm in this state by a transferor to a transferee. "Transfer" shall include redemption of a pawned firearm by any person who is not licensed as a federal firearms licensee by the federal bureau of alcohol, tobacco, firearms or any of its successor agencies. "Transfer" shall not include the return or replacement of a firearm that had been delivered to a federal firearms licensee for the sole purpose of repair or customizing.
   5. "Transferee" means any person who is not licensed as a federal firearms licensee by the federal bureau of alcohol, tobacco, firearms or any of its successor agencies, in accordance with the federal "Gun Control Act of 1968", chapter 44 of title 18 U.S.C., as amended, and to whom a transferor wishes to sell or deliver a firearm.
   6. "Transferor" means any licensed importer, licensed manufacturer, or licensed dealer as defined in 18 U.S.C. sec. 921 (a) (9), (a) (10), and (a) (11), as amended, respectively.
2. The bureau is hereby authorized to serve as a state point of contact for implementation of 18 U.S.C. sec. 922 (t), all federal regulations and applicable guidelines adopted pursuant thereto, and the NICS system.
3. 1. The bureau, acting as the state point of contact for implementation of 18 U.S.C. sec. 922 (t), shall transmit a request for a background check in connection with the prospective transfer of a firearm to the NICS system and may also search other databases. The bureau shall deny a transfer of a firearm to a prospective transferee if the transfer would violate 18 U.S.C. sec. 922 (g) or (n) or result in the violation of any provision of state law, including but not limited to section 18-12-108 (4) (c), C.R.S., involving acts which, if committed by an adult, would constitute a burglary, arson, or any felony involving the use of force or the use of a deadly weapon.
   2. 1. In addition to the grounds for denial specified in paragraph (a) of this subsection (3), the bureau shall deny a transfer of a firearm if, at any time the bureau transmits the request or searches other databases, information indicates that the prospective transferee:
         1. Has been arrested for or charged with a crime for which the prospective transferee, if convicted, would be prohibited under state or federal law from purchasing, receiving, or possessing a firearm and either there has been no final disposition of the case or the final disposition is not noted in the other databases; or
         2. Is the subject of an indictment, an information, or a felony complaint alleging that the prospective transferee has committed a crime punishable by imprisonment for a term exceeding one year as defined in 18 U.S.C. sec. 921 (a) (20), as amended, and either there has been no final disposition of the case or the final disposition is not noted in the other databases.
      2. Repealed.
   3. The bureau is authorized to cooperate with federal, state, and local law enforcement agencies to perform or assist any other law enforcement agency in performing any firearm retrievals, and to assist in the prosecution of any rescinded transfers.
   3.5
   1. On and after March 20, 2013, the bureau shall impose a fee for performing an instant criminal background check pursuant to this section. The amount of the fee shall not exceed the total amount of direct and indirect costs incurred by the bureau in performing the background check.
   2. The bureau shall transmit all moneys collected pursuant to this subsection (3.5) to the state treasurer, who shall credit the same to the instant criminal background check cash fund, which fund is hereby created and referred to in this subsection (3.5) as the "fund".
   3. The moneys in the fund shall be subject to annual appropriation by the general assembly for the direct costs associated with performing background checks pursuant to this section. The state treasurer may invest any moneys in the fund not expended for the purpose of this section as provided by law. The state treasurer shall credit any interest and income derived from the deposit and investment of moneys in the fund to the fund.
   4. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year shall remain in the fund and shall not be credited to any other fund. To the extent practicable, the bureau shall use any such remaining funds to reduce the amount of the fee described in paragraph (a) of this subsection (3.5).
   5. The bureau is authorized to contract with a public or private entity for services related to the collection of the fee described in paragraph (a) of this subsection (3.5).
   6. On January 15, 2014, and on January 15 of each calendar year thereafter, the bureau shall report to the joint budget committee concerning:
      1. The number of full-time employees used by the bureau in the preceding year for the purpose of performing background checks pursuant to this section; and
      2. The calculations used by the bureau to determine the amount of the fee imposed pursuant to this subsection (3.5).
   7. 1. The bureau is authorized to continue using general fund moneys appropriated to the bureau for the 2013-14 fiscal year for the purpose of performing criminal background checks pursuant to this section until the sooner of:
         1. A date six months after March 20, 2013; or
         2. A date upon which sufficient moneys exist within the fund to pay for the performing of criminal background checks pursuant to this section.
      2. This paragraph (g) is repealed, effective July 1, 2014.
4. Pursuant to section 16-21-103 (4) (c), C.R.S., and section 19-1-304 (1) (b.8), C.R.S., the bureau shall receive and process information concerning final case disposition data of any cases prosecuted in a court in this state within seventy-two hours after the final disposition of the case for purposes of carrying out its duties under this section.
5. 1. Upon denial of a firearm transfer, the bureau shall notify the transferor and send notice of the denial to the NICS system, pursuant to 18 U.S.C. sec. 922 (t). In addition, the bureau shall immediately send notification of such denial and the basis for the denial to the federal, state, and local law enforcement agencies having jurisdiction over the area in which the transferee resides and in which the transferor conducts any business.
   2. Upon denial of a firearm transfer, the transferor shall provide the transferee with written information prepared by the bureau concerning the procedure by which the transferee, within thirty days after the denial, may request a review of the denial and of the instant criminal background check records that prompted the denial. Within thirty days of receiving such a request, the bureau shall:
      1. Perform a thorough review of the instant criminal background check records that prompted the denial; and
      2. Render a final administrative decision regarding the denial within thirty days after receiving information from the transferee that alleges the transfer was improperly denied.
   3. In the case of any transfer denied pursuant to paragraph (b) of subsection (3) of this section, the inability of the bureau to obtain the final disposition of a case that is no longer pending shall not constitute the basis for the continued denial of the transfer.
   4. If the bureau reverses a denial, the bureau shall immediately request that the agency that provided the records prompting the denial make a permanent change to such records if necessary to reflect accurate information. In addition, the bureau shall provide immediate notification of such reversal to all agencies and entities that had been previously notified of a denial pursuant to paragraph (a) of this subsection (5).
6. If in the course of conducting any background check pursuant to this section, whether the firearms transaction is approved or denied, the bureau obtains information that indicates the prospective transferee is the subject of an outstanding warrant, the bureau shall immediately provide notification of such warrant to the federal, state, and local law enforcement agencies having jurisdiction over the area in which the transferee resides and in which the transferor conducts any business.
7. 1. The executive director or his or her designee shall adopt such rules as are necessary to:
      1. Carry out the duties of the bureau as the state point of contact, as those duties are set forth in federal law, and assist in implementing 18 U.S.C. sec. 922 (t), all federal regulations and applicable guidelines adopted pursuant thereto, and the NICS system; and
      2. Ensure the proper maintenance, confidentiality, and security of all records and data provided pursuant to this section.
   2. The rules adopted pursuant to paragraph (a) of this subsection (7) shall include, but need not be limited to:
      1. Procedures whereby a prospective transferee whose transfer is denied may request a review of the denial and of the instant criminal background check records that prompted the denial;
      2. Procedures regarding retention of records obtained or created for purposes of this section or for implementation of 18 U.S.C. sec. 922 (t); except that the bureau shall not retain a record for more than forty-eight hours after the day on which the bureau approves the transfer;
      3. Procedures and forms adopted by the bureau that request information from and establish proper identification of a prospective transferee and that may correspond with any firearms transaction record required by 18 U.S.C. sec. 922 (t). Such procedures and forms shall not preclude any person from making a lawful firearm transfer under this section.
      4. Procedures for carrying out the duties under this section, including at a minimum:
         1. That the bureau shall be open for business at least twelve hours per day every calendar day, except Christmas day and Thanksgiving day, in order to transmit the requests for a background check to the NICS system and search other databases;
         2. That the bureau shall provide a toll-free telephone number for any person calling from within the state that is operational every day that the office is open for business for the purpose of responding to requests from transferors in accordance with this section; and
         3. That the bureau shall employ and train personnel at levels that ensure prompt processing of the reasonably anticipated volume of inquiries received under this section.
8. Nothing in this section shall be construed to create any civil cause of action for damages in addition to that which is available under the "Colorado Governmental Immunity Act", article 10 of this title.
9. No act performed by the bureau or its agents in carrying out their lawful duties under this section shall be construed to be a violation of any provision of title 18, C.R.S.
10. 1. It is unlawful for:
       1. Any person, in connection with the acquisition or attempted acquisition of a firearm from any transferor, to willfully make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification that is intended or likely to deceive such transferor with respect to any fact material to the lawfulness of the sale or other disposition of such firearm under federal or state law;
       2. Any transferor knowingly to request criminal history record information or a background check under false pretenses or knowingly to disseminate criminal history record information to any person other than the subject of such information;
       3. Any agent or employee or former agent or employee of the bureau knowingly to violate the provisions of this section.
    2. Any person who violates the provisions of paragraph (a) of this subsection (10) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
11. Any transferor who complies with the provisions of this section shall not be subject to any civil or criminal liability or regulatory sanction that may arise from the lawful transfer or lawful denial of the transfer of a firearm.

HISTORY: Source: L. 2000: Entire section added, p. 8, §3, effective March 7.L. 2002: (10)(b) amended, p. 1533, §252, effective October 1.L. 2007: (1)(d) and (1)(e) amended, p. 2035, §53, effective June 1.L. 2010: (3)(b)(II) repealed, (HB 10-1391), ch. 363, p. 1718, §1, effective June 7; (5)(b) and (5)(c) amended, (HB 10-1411), ch. 370, p. 1737, §1, effective June 7.L. 2013: (3.5) added, (HB 13-1228), ch. 46, p. 125, §1, effective March 20.

Cross references: (1) For the legislative declaration contained in the 2000 act enacting this section, see section 1 of chapter 5, Session Laws of Colorado 2000.

(2) For the legislative declaration contained in the 2002 act amending subsection (10)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.

1. The general assembly hereby finds that:
   1. Section 3 of article II of the state constitution, the article referred to as the state bill of rights, declares that all persons have certain inalienable rights, which include the right to defend their lives and liberties;
   2. Section 13 of article II of the state constitution protects the fundamental right of a person to keep and bear arms and implements section 3 of article II of the state constitution;
   3. The general assembly recognizes a duty to protect and defend the fundamental civil rights set forth in paragraphs (a) and (b) of this subsection (1);
   4. There exists a widespread inconsistency among jurisdictions within the state with regard to firearms regulations;
   5. This inconsistency among local government laws regulating lawful firearm possession and ownership has extraterritorial impact on state citizens and the general public by subjecting them to criminal and civil penalties in some jurisdictions for conduct wholly lawful in other jurisdictions;
   6. Inconsistency among local governments of laws regulating the possession and ownership of firearms results in persons being treated differently under the law solely on the basis of where they reside, and a person's residence in a particular county or city or city and county is not a rational classification when it is the basis for denial of equal treatment under the law;
   7. This inconsistency places citizens in the position of not knowing when they may be violating the local laws and therefore being unable to avoid violating the law and becoming subject to criminal and other penalties.
2. Based on the findings specified in subsection (1) of this section, the general assembly concludes that:
   1. The regulation of firearms is a matter of statewide concern;
   2. It is necessary to provide statewide laws concerning the possession and ownership of a firearm to ensure that law-abiding persons are not unfairly placed in the position of unknowingly committing crimes involving firearms.

HISTORY: Source: L. 2003: Entire article added, p. 652, §2, effective March 18.

Law reviews: For article, "In the Crosshairs: Colorado's New Gun Laws", see 33 Colo. Law. 11 (January 2004).

1. A local government, including a law enforcement agency, shall not maintain a list or other form of record or database of:
   1. Persons who purchase or exchange firearms or who leave firearms for repair or sale on consignment;
   2. Persons who transfer firearms, unless the persons are federally licensed firearms dealers;
   3. The descriptions, including serial numbers, of firearms purchased, transferred, exchanged, or left for repair or sale on consignment.

HISTORY: Source: L. 2003: Entire article added, p. 653, §2, effective March 18.

A local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable.

HISTORY: Source: L. 2003: Entire article added, p. 653, §2, effective March 18.

A local government may enact an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area within the local government's jurisdiction. If a local government enacts an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area, the local government shall post signs at the public entrances to the building or specific area informing persons that the open carrying of firearms is prohibited in the building or specific area.

HISTORY: Source: L. 2003: Entire article added, p. 653, §2, effective March 18.

As used in this part 3, unless the context otherwise requires:

1. "Firearm" or "firearms" means any pistol, revolver, rifle, or other weapon of any description from which any shot, projectile, or bullet may be discharged.

HISTORY: Source: L. 66: p. 4, §1. C.R.S. 1963: §36-22-1.

Cross references: For definitions applicable to this article, see §30-26-301 (2)(d).

1. The board of county commissioners of any county in this state may designate, by resolution, areas in the unincorporated territory of such county in which it is unlawful for any person to discharge any firearms, except a duly authorized law enforcement officer acting in the line of duty, but nothing in this subsection (1) shall prevent the discharge of any firearm in shooting galleries or in any private grounds or residence under circumstances when such firearm can be discharged in such a manner as not to endanger persons or property and also in such a manner as to prevent the projectile from any such firearm from traversing any grounds or space outside the limits of such shooting gallery, grounds, or residence.
2. No area shall be so designated under authority of subsection (1) of this section unless it has an average population density of not less than one hundred persons per square mile in the area designated, and, before making any such designation, the board of county commissioners shall hold a public hearing thereon at which any interested person shall have an opportunity to be heard. The provisions of article 3 of title 33, C.R.S., concerning the state's liability for damages done to property by wild animals protected by the game laws of the state shall not apply to any area designated by a board of county commissioners under authority of this part 3.
3. Nothing in this section shall be construed to restrict or otherwise affect any person's constitutional right to bear arms or his right to the defense of his person, his family, or his property.

HISTORY: Source: L. 66: p. 4, §1. C.R.S. 1963: §36-22-2.

ANNOTATION

This section does not impliedly ban all firearm hunting within a designated county area. Moss v. Members of Colo. Wildlife Comm'n, 250 P.3d 739 (Colo. App. 2010).

It is unlawful for any person, except a person authorized by law or by the division, to possess or have under the person's control any firearm, other than a pistol or revolver, in or on any motor vehicle unless the chamber of the firearm is unloaded. Any person in possession or in control of a rifle or shotgun in a motor vehicle shall allow any peace officer, who is empowered and acting under the authority granted in section 33-6-101 to enforce articles 1 to 6 of this title 33 to inspect the chamber of any rifle or shotgun in the motor vehicle. For the purposes of this section, a "muzzle-loader" shall be considered unloaded if it is not primed, and, "primed" means having a percussion cap on the nipple or flint in the striker and powder in the flash pan. Any person who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars and an assessment of fifteen license suspension points.

HISTORY: Source: L. 84: Entire article R&RE, p. 876, §1, effective January 1, 1985.

Editor's note: This section is similar to former §33-6-115 as it existed prior to 1984.

Cross references: For offenses relating to firearms, see article 12 of title 18.

1. It is unlawful for any person to:
   1. Hunt any wildlife from a snowmobile;
   2. Operate or ride on any snowmobile with any firearm in his or her possession, unless such firearm is unloaded and enclosed in a carrying case or inserted in a scabbard, or with any bow unless it is unstrung or cased, but this paragraph (b) does not apply to any person to whom the division has issued a permit for the control of predators such as coyotes, foxes, bobcats, and the like;
   3. Pursue, drive, or otherwise intentionally disturb or harass any wildlife by use of a snowmobile, but this paragraph (c) shall not prevent any person from using a snowmobile to protect his crops and other property.
2. Permits to use snowmobiles for the control of predators such as coyotes, foxes, bobcats, and the like may be issued by the division or its district wildlife managers at no charge to persons applying therefor whose purpose is to protect livestock and other wildlife.
3. Any person who violates subsection (1) of this section is guilty of a class 2 petty offense and, upon conviction, shall be punished by a fine as follows:
   1. For a violation of paragraph (a) of subsection (1) of this section, two hundred dollars;
   2. For a violation of subsection (1)(b) of this section, one hundred dollars; and
   3. For a violation of paragraph (c) of subsection (1) of this section, two hundred dollars.

HISTORY: Source: L. 84: Entire article added, p. 912, §2, effective January 1, 1985.L. 95: (3) amended, p. 974, §30, effective July 1.L. 2003: (3) amended, p. 1951, §35, effective May 22.L. 2011: (1)(b) and (2) amended, (SB 11-208), ch. 293, p. 1391, §20, effective July 1.

Editor's note: This section is similar to former §33-7-116 as it existed prior to 1984.