Open Carry in Boulder, Colorado (Disorderly conduct?)

[aleeb]

Forgive me if I'm just beating a dead horse, but I've been searching this forum for about an hour, and haven't found a definitive answer yet.

Basically, here's the situation: In 2003 (IIRC) CO passed a preemption law essentially stating that local governments could not regulate firearms through local laws (CRS 29-11.7-104 and CRS 29-11.7-103). Unfortunately, my fair city of Boulder seems to be ignoring this preemption and still has a law on the books stating that you cannot be in possession of a loaded firearm with exceptions for CHL, etc (BRC 5-8-8). The effect of this law is that OC is essentially outlawed, according to Boulder law.

Anyway, my question is this: Despite the state preemption, has anyone ever been prosecuted for OCing in Boulder? Mostly I'm wondering if any peaceful cooperative OCers have ever been successfully convicted of "Disorderly Conduct" (CRS 18-9-106 f) Plenty of posts have brought up the preemption, but none have really talked about people being prosecuted under non-firearm laws (eg Disorderly conduct).

A post on here (which I can't find again) briefly mentioned that packing.org claimed that some have been charged with disorderly conduct for OCing. Does anyone know the details of these cases? Unfortunately, the site seems to be defunct, so I can't look it up myself. Also, the RMGO cautions against OCing in "Prohibiting Municipalities" (Link, scroll down) but neglects to even mention the 2003 preemption law (maybe their website is out of date?).

Any comments, opinions, or annecdotes are appreciated, but please no "here's a solution: get the hell out of that hippie town." I quite like Boulder, except for its gun laws.

EDIT: So the RMGO sort of mentions the preemption. The only municipal bans that the RMGO mentions are the ones that have bans in accordance with the state preemption law. They only ban in specific posted areas, etc (except for denver which has 'home rule').

 

[Bhamrichard]

Food for thought: Since CO passed their pre-emption statute so recently, it's possible that Boulder had these laws on the books prior to the preemption. Under such circumstances, the Boulder law may be in a grandfathered situation, and perfectly legal.

Denver had some laws on the books prior to preemption, and they still stand.

 

[scottgun]

It wouldn't necessarily fall under a "grandfathered" law, as that what state wide preemption specifically addresses. However, Denver, Boulder and several other cities fall under the 'Home Rule' status. This basically means that the city can decide that any state or federal law does not apply, and they can make their own rule overriding the state or fed law. Denver does this with their own version of an Assault Weapons Ban.

There's actually quite a few home rule municipalities in Colorado:
http://en.wikipedia.org/wiki/Colorado_municipalities

Its the home rule status that gives them the authority to ignore State laws and the US Constitution.

 

[NavyLCDR]

In regards to firearms preemption, the CO State Supreme Court has ruled that Denver is the only home rule municipality that does not fall under preemption. Outside Denver county, preemption stands.

Might want to look at the Colorodo section of www.opencarry.org forums. You might find more info there.

 

[aleeb]

Hi guys,

Thanks for the replies. I definitely didn't realize that Boulder was 'home rule.' That does seem to suggest that Boulder has a decent chance of enforcing its firearms laws. Darn.

Also, I actually did try to post on opencarry.org, but their forum was down at the time. It's back up now, and, luckily enough, there's a debate over this going on right now! Link.

There's a whole lot in there, but here's a summary of the Boulder situation:
1) There is a law pertaining specifically to open carry in Boulder (BRC 5-8-21 "Open Carriage of Firearms in Carrying Cases Required"). This states that any openly carried firearm must be in a 'carrying case.' Someone contacted two different attorneys about this, and they both said one could plausibly argue that a holster is a 'carrying case,' thus making OC legal in Boulder. Unfortunately, I don't think there's any case law to support this. It's just two attorneys interpretations (but I think that does carry some weight).
2) I don't think the discussion addressed the loaded firearm law, so it's plausible that OCing w/o a permit it only legal for unloaded guns.
3) 2 out of 3 boulder cops said that OC is legal. It's troubling that the cops don't know the law.

My own conclusion: Don't OC unless you're ok with possibly being a test-case for Boulder law.

EDIT: I should add that, despite my own opinion, the general consensus is that OC in Boulder is legal.

 

[PTK]

I'm going to be as frank as I can.

Please do not OC in Colorado. It's ended poorly for myself three different times. I no longer live in CO due to those incidents.

 

[Art Eatman]

If you live in Boulder, why not call the office at Soldier of Fortune magazine? If anybody in town has tried open carry, or has researched the local ordinances, I'd think they'd have done it.

 

[NavyLCDR]

I'm going to be as frank as I can.

Please do not OC in Colorado. It's ended poorly for myself three different times. I no longer live in CO due to those incidents.

Yes, absolutely. Inappropriate and illegal actions taken by local law enforcement officers are definitely reasons to stop exercising rights protected by Constitutions and state statutes. Certainly.

Let me go back and read that part of the oath that says, "to support and defend the Constitution of the United States against all enemies, foreign and domestic..."

 

[CoRoMo]

he he, good one.

I open carry whenever I want, and have never been bothered. I wouldn't set foot in Boulder or Denver without dire reason either.

 

[aleeb]

Hi all,

After a PM discussion on OpenCarry.org with DocNTexas, who has talked with several lawyers and done lots of research, it's his opinion that OC of a loaded firearm is legal in Boulder. There's an exception to "Possession of a Loaded Firearm" which states (BRC 5-8-22):

It is an affirmative defense to a charge of violating [...] 5-8-8, "Possession of Loaded Firearms," B.R.C. 1981, that the defendant was: [...]
(2) Reasonably exercising the right to keep and bear arms in defense of the defendant's or another's home, person, and property, or in aid of the civil power when legally thereto summoned.

It's the opinion of him and his lawyers that OCing falls under that defense.

PTK,
If you're comfortable with sharing your experiences, I'd like to hear about them. I also completely understand where you're coming from. As awful as it sounds, not all of us have the time or money to stand up for our rights. I wish that weren't true, but that's the way our legal system is set up. If you're in the grey area of our current law, you better be prepared to hire a good lawyer and take time off from work for going to court (and also possibly go to jail). Not all of us can make those sacrifices.

SoF,
I'm actually not familiar with SoF magazine, but I'll be sure to look them up!