From manufacturer liability to 'assault weapons' ban, Colorado Democrats set sights on gun bills
photo from Denver City Attorney's Office
email@example.com Marianne Goodland, Colorado Politics Jan 31, 2023 Updated 6 hrs ago
Just how many gun bills do Democrats intend to support in the 2023 session? The number appears to range from a minimum of seven to as many as a dozen.
But it's unlikely all of those bills, with Democratic sponsors, will reach the governor's desk, even in a legislature with a Democratic supermajority in the House and one vote shy of another in the state Senate.
On the other side of the aisle, Republicans are gearing up for a fight against many of these measures, with the "assault weapons" ban at the top of the list.
As discussion points at least, these ideas have surfaced among Democrats at the state Capitol:
Strengthening the state’s red flag law
A ban on the sale or transfer of so-called "assault weapons," a nonstandard term defined in the bill as semiautomatic rifles with a certain magazine capacity or other specified characteristics
A ban on “ghost” guns
Raising the minimum age for purchase of certain firearms
Creating a waiting period for purchase of firearms
Banning unlawful possession of firearms by certain felons
Increasing liability for gun manufacturers and dealers
Many of the bills being considered are from the Democrats on the gun violence prevention caucus, formed last year. Senate Majority Leader Dominick Moreno, D-Commerce City, said this week they envision a "package" of bills as a response to the gun violence. What makes it into that package, he said, will depend on priorities, sponsorship and timing.
Kaegan Mays-Williams, counsel at Everytown for Gun Safety, also touted the legislation under consideration.
"We are excited about the possibility of the Colorado legislature passing critical gun violence prevention bills, including legislation regulating ghost guns, expanding Colorado's Extreme Risk law, creating a state firearm dealer licensing system, and legislation to hold the gun industry accountable," said Mays-Williams. "These critical safety measures will go far in saving Coloradan lives and preventing future mass shootings like the tragedy we saw at Club Q in Colorado Springs, and more recently in California. These measures have proven effective, and have stood up against unfounded legal challenges across the country. We urge Colorado lawmakers to be bold in combating the gun violence epidemic and pass these lifesaving measures during the 2023 legislative session."
'Assault weapons' ban
The concept proposed by Rep. Andrew Boesenecker, D-Fort Collins, a member of the gun violence prevention caucus, has generated a lot of angst for gun rights groups since before the session started. It’s also been less than warmly received by the governor and the House speaker.
Days after the Club Q shooting in Colorado Springs, the American president called for an "assault weapons" ban.
“The idea we still allow semi-automatic weapons to be purchased is sick. It has no socially-redeeming value ... except as profit for gun manufacturers," Biden said.
A little more than a week later, Polis was asked on Meet the Press if he supports an "assault weapons" ban. He dodged the question, instead declaring support to expand the red flag law and looking further into mental health.
Speaker of the House Julie McCluskie, D-Dillon, also dodged the question in a recent interview with KDVR. In an appearance on Colorado Point of View, McCluskie was directly asked if she supports an "assault weapons" ban. She said she’d heard about it.
“The legislation that comes forward has to be about saving lives,” she replied, adding there will be a number of bills around gun violence, the red flag law, and other bills on waiting periods or a high age limit for purchasing.
“I will take a position on a bill when it is introduced,” she said. “It’s unfortunate that a draft of the bill was shared in a public way when it is a work in progress. You can be passionate about an issue, very committed to making change in a public policy space, language on that bill paper matters. When a bill is introduced, has gone through the process and has input from stakeholders, I’ll let you know.”
Boesenecker, the Fort Collins Democrat, told Colorado Politics that, even after several drafts, the bill is still not ready for prime time.
“A draft is a snapshot in time,” he said, adding when a draft is released and "inflammatory" arguments are made, it becomes difficult.
The Fort Collins Democrat indicated he would continue to work with groups to prohibit the sale, transfer, manufacture or import of an "assault weapon."
The bill does not prohibit the possession of "assault weapons," he said.
His bill would create “a moment in time, space between the motive to do something horrific in our community and the ready availability of a firearm to do that. It will save lives,” he told Colorado Politics.
A September 2022 poll from Everytown for Gun Safety asked Coloradans about an "assault weapons" ban, "ghost guns" and raising the age for purchasing guns. The survey reported 70% of respondents favored an "assault weapons" ban; 73% supported raising the age limit for purchasing any firearm and 78% supported a ban on "ghost guns."
The most recent draft of Boesenecker’s bill, which would be carried in the Senate by Sen. Rhonda Fields, D-Aurora, includes a laundry list of the kinds of weapons that would be banned:
Semi-automatic rifles that can accept or be modified to accept a detachable magazine, with a pistol grip; a folding, telescoping, thumbhole or detachable stock; a grenade launcher and other mechanisms
A semi-automatic rifles with fixed large-capacity magazine stocks
A .50 caliber rifle
A semi-automatic pistol that can accept or be modified to accept detachable magazines
Shotguns, including semi-automatic shotguns
Parts that can convert a firearm to an "assault weapon" already defined in the bill
The bill also prohibits the possession of a “rapid fire trigger activator,” a device that increases the speed by which a trigger can be fired.
State Sen. Rod Pelton, R-Cheyenne Wells, said the assault weapons ban bill has resulted in the most emails and phone calls he's received so far this year.
“Protecting the Second Amendment is big in my district,” he said. “If we want to drill down and work on the problem, it’s a mental health issue."
Rep. Matt Soper, R-Delta, said his concern revolves around the bill's definition of an assault weapon. For rural Coloradans, the definitions sound like a ban on the kinds of firearms they use, not just rapid-fire weapons.
Rep. Marc Catlin, R-Montrose, said his constituents are worried their guns will be taken away or they won’t be allowed to buy them. This isn’t coming from just the gun enthusiasts, Catlin said.
“They see it as a major threat,” he said, referring to rural residents.
Both versions of the bill have drawn the ire of Rocky Mountain Gun Owners, which has started a petition to the governor to oppose the bill.
RMGO has been involved in several efforts to recall Democratic lawmakers over gun bills in the past decade. That paid off only in 2013 with the recall of two Democratic senators, including the Senate president, and the resignation of a third, who didn’t want to face the recall.
Another effort in 2019 to recall Sullivan over the red flag law didn’t get enough signatures to go to the ballot. RMGO and its allies have tried for years to overturn the red flag law, without success.
So far, however, just one bill has surfaced from the Republican caucuses in support of gun rights, a "Second Amendment Preservation Act" from Rep. Ken DeGraaf, R-Colorado Springs.
DeGraaf told Colorado Politics earlier this month the bill would prohibit Colorado law enforcement from enforcing federal laws that could infringe on the Second Amendment, although he said it could apply more broadly than that. The bill, HB 1044, has been assigned to the "kill" committee — House State, Civic, Military and Veterans Affairs, with a Monday, Feb. 6 hearing date.
A major talking point within the Gun Violence Prevention Caucus, a group formed last year made up of at least two dozen Democratic lawmakers, is on liability.
Federal law prohibits lawsuits against gun manufacturers and dealers, dating back to the 2005 Protection of Lawful Commerce in Arms Act, or PLCAA. It’s the only industry with such protections in federal law.
In Colorado, however, state law is even more protective of the gun industry, according to Sen. Sonya Jaquez Lewis, D-Longmont.
Colorado Revised Statute 13-21-504.5 says that, except in the case of a product liability issue, no one can bring a lawsuit against a firearms or ammunition manufacturer, importer, or dealer “for any remedy arising from physical or emotional injury, physical damage, or death caused by the discharge of a firearm or ammunition.”
In addition, manufacturers and dealers cannot be named as third parties in a lawsuit for the actions of another person. Only when manufacturers or dealers are in violation of state or federal law can they be sued.
Given that federal law provides blanket immunity, it’s a high hurdle to cross. But courts in several states, including in Texas, are starting to examine the issue.
In 2019, the Connecticut Supreme Court allowed families of those massacred at Sandy Hook to sue Remington-Bushmaster, the manufacturer of the weapon used at Sandy Hook. The lawsuit was based in part on claims the manufacturer marketed its firearms to young, at-risk males. Remington, which has twice filed for bankruptcy protection, settled with the families last year for $73 million.
The Texas Supreme Court last year denied a request for a motion for temporary relief and stay of proceedings from Lucky Gunner, an online ammunitions dealer, in a lawsuit filed against the company when it sold ammunition to an underage buyer. The ammunition was then used in a shooting in 2018 at a Santa Fe, Texas high school that killed eight students and two teachers. The shooter was a 17-year-old who has been declared incompetent to stand trial.
Finally, a lawsuit filed against Glock last year, tied to a subway shooting in New York, is proceeding under a law passed in that state in 2021.
In 2021, the New York State Legislature passed a law that held gun industry members civilly liable for a public nuisance. That law, S7196, signed by then-Gov. Andrew Cuomo, was a way of getting around the 2005 federal blanket immunity.
The law earned a quick challenge from pro-gun organizations. Last May, a federal court dismissed a lawsuit filed by the National Shooting Sports Foundation and 14 gun organizations against the state of New York over the legislation. The decision is now on appeal.
Along with signing the law, Cuomo issued an executive order declaring gun violence a disaster emergency.
President Joe Biden also favors repealing the liability ban on lawsuits against gun manufacturers and dealers. In a statement on gun violence just after the shooting at the Boulder King Soopers in 2021, the president called on Congress to repeal the 2005 immunity law.
The liability issue is also among the top priority of the group Giffords, which seeks gun restrictions. In a statement to Colorado Politics, Nico Bocour, vice president for state initiatives, said Giffords "supports the repeal of the federal PLCAA law and the current law in Colorado, and we also supported the NY law.” The group is named after former U.S. Rep. Gabrielle Giffords, who was shot in the head and survived a mass shooting in Tucson, Arizona that killed six people and injured six people and wounded 13, including the then-congresswoman representing the area.
Bocour noted that Colorado’s gun industry immunity law is broader than PLCAA and described it as one of the three "most extreme anti-victim" laws in the country.
“We support Colorado taking steps to both repeal the current law and also create a broader victims’ access to justice law because victims of gun violence should have the opportunity to seek fair justice in court when they are harmed by illegal and wrongful conduct by the corporate gun industry,” he said.
The National Shooting Sports Foundation, however, notes that courts have stood behind the PLCCA in its 18-year history, and that efforts to allow lawsuits against manufacturers are an abuse of the legal system.
Mark Oliva, director of public affairs for NSSF, told Colorado Politics the basic problem of public nuisance lawsuits fly in the face of understanding of tort law.
"If you're trying to sue a firearm manufacturer or retailer for the lawful sale of a firearm that's criminally misused by a remote third party, that's exactly what the [PLCCA] stops. That law has been upheld in U.S. courts of appeal several times," he pointed out. "The person who commits the criminal act is responsible for the damage, not someone who made a constitutionally- and lawfully-protected product."
Were a bill to tackle liability to come forward in the Colorado legislature, it wouldn't be the first time.
In 2013, then-Senate President John Morse, D-Colorado Springs, offered a liability bill tied primarily to damages resulting from the discharge of "an assault weapon," but it also included a repeal of the state statutes protecting the gun industry from lawsuits. Senate Bill 196 was one of the few in the 2013 session on guns, sponsored by Democrats, that didn't make it to the governor's desk.
Many argue that the shooting at Club Q in Colorado Springs on Nov. 19 exposed gaps in the state’s red flag law, one that state Sen. Tom Sullivan, D-Centennial, intends to address.
Among the ideas being considered are to add physicians, district attorneys, attorney generals or health care professionals to the list of people who can seek an extreme risk protection order, which removes firearms from individuals who may pose a danger to themselves or to others.
Gov. Jared Polis appears to support at least adding district attorneys, which he mentioned in his State of the State address earlier this month.
In her opening day remarks, Speaker of the House Julie McCluskie, D-Dillon, also indicated support for changes to the red flag law.
Another gun bill likely to win favor with the governor is a ban on so-called “ghost guns.”
These are weapons assembled from parts or kits or even a 3-D printer, but with one unfinished piece, such as a frame or receiver, that requires the purchasers to drill to make the gun functional. A loophole in federal law means these firearms don’t need serial numbers or a background check to purchase.
Ghost guns are also a target for the Biden administration, which called on the Justice Department to issue a proposed rule to help stop their proliferation. The new rule requires the parts to have serial numbers.
In a White House statement, the president said criminals “are buying kits containing nearly all of the components and directions for finishing a firearm within as little as 30 minutes and using these firearms to commit crimes." He added that when these firearms turn up at crime scenes, law enforcement often cannot trace them due to the lack of a serial number.
Polis also expressed support during his State of the State address for legislation that would attempt to get rid of "ghost guns." Denver City Council already passed an ordinance banning "ghost guns" within city limits.
Raising the age limit to purchase certain kinds of firearms
Federal law dictates that someone must be at least 18 years old to buy a shotgun or rifle, including what are referred to as "assault weapons," and age 21 for handguns.
The concept being floated is to raise to the age of 21 to purchase firearms, including rifles and shotguns. That bill could come from Sullivan, who has favored raising the age limit for several years.
Biden also backs the proposal. A bill introduced in the U.S. Senate last week, the Age 21 Act, would require anyone purchasing an "assault weapon" to be at least 21 years old.
Unlawful possession of firearms by felons
In his state address, Polis also mentioned a prohibition on unlawful possession of firearms by felons, and that bill has already materialized. The measure is Senate Bill 22, sponsored by Sen. Nick Hinrichsen, D-Pueblo, and would include aggravated motor vehicle theft to the list of convictions that would prohibit someone from possessing a firearm. The bill is assigned to the Senate Judiciary Committee but no hearing date has yet been announced.
Waiting periods to purchase a firearm
Colorado has no waiting period for purchasing firearms. But that could change under one of the ideas under consideration by the Gun Violence Prevention Caucus.
Just how long a waiting period could there be? Ten states and the District of Columbia have waiting periods, and in Hawaii, which has the longest waiting period in the country, it’s 14 days. But Rep. Meg Froelich, D-Englewood, a co-leader of the caucus, said members are looking at a timeframe fewer than 10 days.
Democrats talked about a five-day waiting period law in 2021, but they never introduced the bill.