February 27, 2013

SB 196

Here's a .pdf of Colorado Senate Bill 196. This is the "assault weapons" liability act. & it's a doozie.

Really, it's so ridiculous I had to stop reading to take a momentary incredulity break. But I'll try to give a summation of what all this entails:

The "legislative declaration" section will peg your bullshit meter in one sitting:

"(c) Because these weapons were originally intended for combat and were specifically designed to kill large numbers of people in a short period of time, they made it possible for the shooters in those tragedies to kill or injure between 9 and 70 people in a single incident"

"(d) Any private benefit for persons to own such weapons must be weighed against the great danger they pose tot he public, and"

"(e) the right to manufacture, sell or own an assault weapon must carry with it some of the responsibility for damage, injury, and death that results from the discharge of that weapon"

This is really comical. One would think that while some people will disagree with just about any law proposed, one should craft laws that are immune from good old fashion fisking. This sort of "legislative declaration" can serve 3 purposes:

To quell certain legal defenses, as an attorney arguing to protect or enforce this law could claim that such issues raised in the "legislative declaration" section are political issues, not ones to be considered by the judiciary or a jury, and a judge seeking cover could duck behind that real quickly.

To prepare the way for future legislation affecting such weapons. Since it's already established in one law (if this bill becomes law that is) giving an increased level of legislative scrutiny to such weapons may be a bit easier.

To rub our noses in it.

Moving on to the meat of the bill:

It defines a bolt action rifle as, among other qualifiers, being "Loaded by a manually operated bolt, pump, lever or slide action" !?!?!??!eleventyplusone!?

For the purposes of this act a handgun cannot have a barrel longer than 12 inches. So if you have a handgun such as a Mare's Leg, a T/C Contender, Remington XP-100, or a Colt Buntline and the barrel is greater than 12 inches then it's not a handgun.

A shotgun, as defined, mentions only smooth bores, fired from the shoulder, has one or more barrels and "loaded manually by a pump action". So if you have a double barrel pump action shotgun you're covered. If you just have a break open double barrel, or a break open single shot, a dedicated slug gun with a rifled barrel, or a bolt action shotgun you have officially been thrown under the bus of legislative ignorance.

These exceptions are important, because unless it's excepted within those 3 categories, then it's an "assault weapon" To reiterate, an "assault weapon" is any firearm that does not conform to the definition of a bolt action rifle, handgun or shotgun as explained in this act. An L.C. Smith double barrel shotgun (and that's a downright pretty example right there - click to embiggen that pic at your own credit card's risk) does not meet the definition of shotgun, hence it's an "assault weapon". An H&R Sportser or Handirifle is an "assault weapon" under this bill as it does not meet the definitions for a bolt action rifle. Of course that scourge of New Jersey, the dreaded Marlin Model 60 is an "assault weapon" as is the Ruger 10/22.

The bill goes on to establish strict liability for the owner of an "assault weapon" if the owner fires said weapon causing damage or harm. It excepts the use of an "assault weapon" if used within a dwelling in response to a reasonable threat of physical force against said owner of a weapon or against a reasonably perceived use of force against a 3rd party within the dwelling. Outside the dwelling the strict liability resumes though.

Folks, that mean the make my day law (I covered the use of force laws in Colorado at this post) is negated partially if you use an "assault weapon" to defend your home. That also means if you step outside the home with an "assault weapon" you could be sued if you use said weapon, even if such use was lawful. So protecting your yard, or while taking a hike or camping, or while at work is extremely hazardous if you use what this law describes as an "assault weapon", which again is any weapon not specifically exempted.

It goes on to establish that negligent storage or negligent transfer means your liability continues. It does not define what a non-negligent storage method will be. In the definition section it does mention "negligent entrustment" which is a vague explanation of "reasonably" knowing someone was up to no good when you let them have access to said evil object. It does say that if you took "reasonable measures" and either reported the weapon(s) stolen before it was used criminally or lacked sufficient time or didn't notice it despite keeping "diligent" track of your inventory then you won't be held liable. It does use the word "building" to explain the "reasonable" storage exception, so likely a trunk gun would not be excepted if stolen.

To add more insult to more injury, it outlines a way for you to hand over your evil "assault weapon" to a law enforcement agency or to a gun store, but either may charge you a "reasonable" fee to cover their costs. If you elect this course, you must "maintain written evidence of the surrender" (an apt way to describe it).

The next section talks about sales and transfers. It of course establishes strict liability if the "assault weapon" was negligently entrusted or the sale violated state or federal law.

More insult:

(2) A person who sells or transfers assault weapons is deemed to be aware

(a) That assault weapons are sought after by and are useful for criminals, mass criminals killers and those with criminal intent but are rarely necessary for lawful purpose, and

(b) of the extreme likelihood that an assault weapon that is sold or transferred will be used in a crime or will result in serious injury or death"

It goes on to include sellers, distributors and manufacturers of "assault weapons" in the strict liability camp.

"(2) (a) Because of the dangerous nature of assault weapons, seller, distributors and manufacturers of assault weapons are required to

(I) Exercise the highest degree of care in selling, transferring, distributing and storing assault weapons, and

(II) Sell, transfer or distribute an assault weapon only after receiving sufficient communication and information to have reasonable grounds to believe that the weapon will not be possessed or used by a person who may use it unsafely or unlawfully"

It continues that violating the above will constitute a knowing violation of the law.

That right there is the mechanism they hope will get them by the lawful commerce in arms act, as that does not protect against manufacturers or sellers who violate federal or state law int he course of their business. The drafter of this bill is thinking that if it can be proved that someone violated this section of the law, then that opens them up to civil liability under the other applicable section of the law.

Of course the next section excepts law enforcement officers as well as state and local governments, including the military, from this law. Curiously it does not exempt the feds (unless a federal agent would be a "peace officer" under another section of existing Colorado law).

This bill specifies that it's in addition to, not in place of any other applicable laws, and that 2 or more people can file for joint action status if they're harmed by the same "assault weapon".

What's equally troubling is the sections of law that it repeals, which deal with civil liability resulting from the use of a firearm. Currently you cannot sue a manufacturer, seller, etc. unless the injuries from a firearm are caused by some improper action, such as a defective firearm being produced or sold. This eliminates all of that.

If I'm reading this correctly, the bill would take effect upon passage (including the governor signing it or having a veto proof majority of course) except for the parts dealing with sellers, distributors and manufacturers. That would take effect on September 1rst, 2013.

For the halibut, I called my insurance agent to see what kind of premium would be required to cover someone who possessed an "assault weapon" as described herein. He said he never heard of a policy to cover a gun owner from liability, much less to cover liability like this, but he'd dig around and see if he could find anything and get back to me with a quote. Not that I'd actually pay for such a policy because of this law, but I'm curious to see the rough dollar impact they're trying to impose. If he gets back to me I'll try to mention it here.

I can see a multitude of problems with the law as written. Of course there'll be challenges regarding the apparent conflict with the PLCAA, but I think they're banking on it creating a crime of "negligent entrustment" to claim it complies with the PLCAA, since criminal behavior on the part of the manufacturer or seller isn't covered. The 10th circuit hasn't been really friendly to gun owners, so I could see them falling for this.

As written - and it will likely be cleaned up in committee a little bit - it'd take an awfully obtuse judge to let a suit proceed if a double barrel shotgun was used justifiably to defend a business or even a campsite. But that's not saying we don't have a plethora of obtuse judges around here.

It shows Morse and Fields respectively as the sponsors. I assume Rep. Fields will introduce a companion version int he House. This one is slated for the senate judiciary committee, but no hearing date has been set that I see. I'll try to keep track of this one. as written I can't see how it would appeal to moderates of either party, but I hesitate to make any predictions about its chances of passage.

Seldom have I seen a bill so badly written concerning its purpose, or so insulting to the folks it is seeking to regulate. This definitely isn't about winning hearts and minds; it's a culture war, and this is yet another salvo.

Update 03-02-13 2:30 a.m. MST corrected an error. somehow I typed "mass criminals" instead of "mass killers" in the second legislative declaration quote. Fixed

Posted by Publicola at February 27, 2013 06:27 PM | TrackBack

"That assault weapons are sought after by and are useful for criminals, mass criminals and those with criminal intent.."

What on earth is a "mass criminal"? Fat burglars? Mr. Big? Criminals who only strike during Catholic services?

Posted by: Nate at March 1, 2013 10:57 AM

Actually that was my error. Somehow I inserted criminals instead of killers. Fixed. & thanks for pointing that out.

Sadly, as ridiculous as the rest of the legislative declaration was, the correction didn't really make it sound much better.

Posted by: Publicola at March 2, 2013 02:52 AM
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