Colorado: "Council starts work on posting gun bans"

[cuchulainn]

from the Rocky Mountain News

http://rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_1996161,00.html

Council starts work on posting gun bans

By Michele Ames, Rocky Mountain News
May 29, 2003

No firearms allowed.

Denver City Council members took their first steps toward making sure those words are posted outside all city buildings, recreation centers, libraries, parks and other places.

The move was prompted by two state laws approved this year by the legislature that Denver officials say throw existing city gun rules into question.

The first new state law requires cities to issue concealed-weapons permits to qualified applicants and says permit holders can carry weapons anyplace that doesn't directly forbid them or have metal detectors, such as courts.

The second was aimed at pre-empting all local gun laws that are more restrictive than existing state law. That could trump a Denver ban on carrying a gun openly, though cities and private property owners can post "no guns" signs venue by venue.

Before the changes, "We didn't need to post specific properties because we had a blanket ban," said Assistant City Attorney David Broadwell at a council committee meeting. "Now we do."

"Post them tomorrow," City Councilwoman Ramona Martinez fired back.

But they won't go up right away. The proposal must go to the full council.

Broadwell told council members that even if they post firearms bans, they might not be able to stop people with a concealed-weapons permit from carrying their gun into a building.

"We want to post and attempt to enforce it for both (open and concealed carry)," Broadwell said.

But whether Denver can enforce most of its gun laws - from assault weapons bans to safe storage requirements - is at issue.

Last week, the city sued the state of Colorado and Gov. Bill Owens in an attempt to ensure that the city's gun laws stay on the books. That case still is pending and is expected to be lengthy.

The city is not challenging the permitting process, which is already under way.

Broadwell said police are being told to stick primarily to enforcing state gun laws. But he acknowledged it's not clear what would happen if someone walks around the city with a gun on his hip.

"We still believe we should be able to regulate where people carry weapons," Broadwell said. "But if people do want to test us and just walk around with open carry, that's going to be the flash point."

[email protected] or (303) 892-2327

2003 © The E.W. Scripps Co.

 

[Zak Smith]

Here's the deal.

SB24 is the shall-issue law that was passed. It says, in 18-12-214,

(1)(a) 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 authorise the permitee to use a handgun in a manner that would violate 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) paraphrased: except where it violates federal law

(3) paraphrased: except into K12 schools

(4)A permit does not authorize a person to carry a concealed handgun intoa public building at which

(a) security personnel and screening equipment are permanently in place at each entrance, and

(b)security personnel electronically screen each person who enters to determine if they are carrying a weapon, and

(c) security personnel require each person who is carrying a weapon to leave it in the possession of security personnel while 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, tenant, empoyer, or private business entity.

So in summary, besides federal restrictions and K12, the only public places you cannot carry are buildings which have permanent security personnel and scanning devices at every entrance. A "No CCW" sign won't cut it.

My non-lawyer brain concludes that a property owner can still ask you to leave and you'd be trespassing if you didn't, but it's concealed, right?

SB25 is the state preemption. The relevant portion is

29-11.7-104. A local gov't 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 gov't's jurisdiction. If a local gov't enacts and ordinance, etc, that prohibits the open carrying of a firearm in a building or other specific area, the local gov't shall post signs at the public entrances to the building, etc, informing persons that the open carrying of firearms is prohibited.

So under SB25, a local gov't can ban the open carrying of firearms in specific locations, but they have to post them. And private owners or owners of "public property" can't do it, unless they have the backing of local law. (They can still ask you to leave.)

I am not a lawyer, but the language is fairly straightforward.

-z

 

[Morgan]

Note that the building in question must have manned security posts with metal detection equipment at ALL entrances, and must have the ability to store your weapon.

Judging from the majority of the security personnel at most city buildings, I can see why they're unarmed security, and I don't think we want them securing anyone's pistol.

 

[Zak Smith]

Morgan,

So, if I go for a walk in downtown Denver open-carrying, am I going to be arrested or hassled by Denver Police?



-z

 

[coorsleftfield]

(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, tenant, empoyer, or private business entity.


So it seems like business can still put up signs saying no weapons, and because of this section of the law, you have to respect it.. right?

 

[Morgan]

Zak - yeah, you'd get hassled, and possibly arrested for disturbance, though I doubt it - and I don't believe it'd hold up in court. Keep it discrete & concealed and we're all better off.

CoorsLeftField - you'd be in violation of trespassing, which is a jailable offense, if you ignored private signage. If you keep it properly concealed no-one would ever know. Best to just not patronize those businesses - I won't, for my own reasons, and I don't have such restrictions on carrying in Denver.

 

[Zak Smith]

Morgan,

I always thought a private property owner would have to ask you to leave before you could be arrested for trespassing? SB24 says it doesn't give property owners more rights than they already had.. which I thought was to just tell you to leave.

With regard to keeping it concealed. I agree it's probably more "tactically correct" to do so, however, if it's allowed by law, I should be able to do it. Sometimes it's easier, or more comfortable.

-z

 

[Justin]

Zak-
Yes, you will get arrested. Awhile back a Libertarian senatorial candidate by the name of Rick Stanley got arrested for openly carrying in Denver.

 

[Zak Smith]

Justin,

Rick did so before SB25 was passed. The law is now changed.

-z

 

[Morgan]

Zak - a "NO TRESPASSING" sign is grounds for arrest (as is an enclosed area, but that's moot for this), so I would consider a "NO GUNS" sign, conspiciously displayed, to show that a person with a gun has no permission or consent from the property owner to be on the premises.

I believe you should be able to carry openly, but I won't be the one signing (or not) the disturbance complaint.

Neither of these would be a weapons arrest, and it would be the cop's discretion as to whether to arrest or order-in the subject.

 

[Zak Smith]

Morgan,

Thanks.

Do you think the same applies to CCW?

edit:

For example, in Texas, "no gun" signs are irrelevant and meaningless unless they conform to "30.06".

-z

 

[Morgan]

Zak - I don't know if it would apply to CCW or not. Up to the courts, I guess, but it could certainly earn you an arrest, especially if you're an ??? about it. The law in Texas specifically states how the sign must be, making all others moot under the law, and we don't have that here, so...

Personally, I'd respect the property owners wishes unless I had a really good reason not to, and then just stay concealed, do my business, and get out.

 

[Zak Smith]

Morgan,

I did a little digging about the signage/trespass issue. Here's what I found in the CRS:

18-4-201. Definitions.

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

(1) "Premises" means any real estate and all improvements erected thereon.

(2) "Separate building" means each unit of a building consisting of two or more units separately secured or occupied.

(3) A person "enters unlawfully" or "remains unlawfully" in or upon premises when the person is not licensed, invited, or otherwise privileged to do so. A person who, regardless of his or her intent, enters or remains in or upon premises that are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to him or her by the owner of the premises or some other authorized person. A license or privilege to enter or remain in a building that is only partly open to the public is not a license or privilege to enter or remain in that part of the building that is not open to the public. Except as is otherwise provided in section 33-6-116 (1), C.R.S., a person who enters or remains upon unimproved and apparently unused land that is neither fenced nor otherwise enclosed in a manner designed to exclude intruders does so with license and privilege unless notice against trespass is personally communicated to the person by the owner of the land or some other authorized person or unless notice forbidding entry is given by posting with signs at intervals of not more than four hundred forty yards or, if there is a readily identifiable entrance to the land, by posting with signs at such entrance to the private land or the forbidden part of the land. In the case of a designated access road not otherwise posted, said notice shall be posted at the entrance to private land and shall be substantially as follows:

The interesting part is italicized. It says that you lose "license and priviliege" to enter a premise open to the public only when the owner or authorized person personally communicates it to you.

Note that this only applies to places that are "open to the public", e.g. not houses, not fenced property, etc, etc.

Comments?

-z

 

[El Tejon]

I wish our friends in Red all the best. Don't let up. Remember, follow up your victory with a counterattack.

I am enjoying tremendously watching the mommies scramble. Good to see the sheople on the defensive (for once).

 

[Morgan]

Hmm... Denver RMC sez:

Sec. 38-115. Trespass.

(a) It is unlawful for any person knowingly to enter or remain upon the premises of another when consent to enter or remain is absent, denied, or withdrawn by the owner, occupant, or person having lawful control thereof.

(b) It shall be prima facie evidence that consent is absent, denied, or withdrawn, to enter or remain upon the premises of another when:

(1) Any person fails or refuses to remove himself from said premises when requested to leave by the owner, occupant or person having lawful control thereof; or

(2) Such premises are fenced or otherwise enclosed in a manner designed to exclude intruders; or

(3) Private property or public property, which is not then open to the public, is posted with signs which give notice that entrance is forbidden.

(c) For purpose of subsection (b)(3):

(1) A "conspicuous sign" shall mean a sign that is at least one (1) square foot in size and sufficiently lighted to be clear and visible and that is posted in a conspicuous location.

(2) "Sufficient notice" that entrance is forbidden shall be established when the lettering on a conspicuous sign is at least one (1) inch in height and contains language that is substantially similar to the following: "Private property: Keep out . . . . Violators subject to arrest" or "Private property . . . . Violators subject to arrest between the hours of ________ and ________."

So, still clear as mud. It seems that a sign has some power, prima facie, in a closed area. Note that just because the above list is prima facie evidence by law, it does not mean that a simple "No Guns" sign would not meet the criteria in 38-115 (a).

It is unlawful for any person knowingly to enter or remain upon the premises of another when consent to enter or remain is absent, denied, or withdrawn by the owner...

I'd read that to say if a big sign is posted it shows that the person KNOWS (knowingly) that the owner does not want them there.

I believe an arrest on these grounds would be good (probable cause). Who knows if it would stand in court.

 

[Battler]

Back during Colorado's non-shall-issue days. . . .

Weren't there still people running around with CHLs from non-Denver areas?

Weren't they still able to carry in Denver?

And could they then carry in all these unposted places?

Sounds like the city of Denver is putting up barriers to carry in response to their DENVER residents being able to carry, not the Non-Denver residents.

That's a he** of a compliment to Denver residents from their own council

 

[Zak Smith]

Hmm.. Damn Denver!

This is totally unclear. Consent to enter a public place is implied. The signs would have to constitute "the owner withdrawing" consent. I wonder if there's any case law here...

While browsing the Denver muni. code, I did find this:

Sec. 38-96. Irritants.

(a) It shall be unlawful for any person to open, break, expose, convey or place, or cause to be opened, broken, exposed, conveyed or placed, in any street, place which is public in nature, building or enclosure, any container having therein any substance, powder, fluid, material or a combination thereof, which will or may cause the emission of obnoxious odors, fumes, gases or irritants which may cause injury, discomfort or prejudice to any other person; provided, however, that the provisions of this section shall not apply to the use thereof by a law enforcement agency of the federal, state or municipal government, or where the use of the same is for the protection of life, limb or property.

So using pepper spray / CS is illegal in Denver? It just keeps getting better, don't it?

-z

 

[Zak Smith]

Battler,

Technically, I think not, since there was no statewide pre-emption. In practice, yes...

-z

 

[justice4all]

Has anyone been anywhere with metal detectors, etc., where they could check their gun? I asked the other day at the Weld County Courthouse, and was told that they do not have facilities for doing so. Any suggestions on what I should do, since I work there a few days a week.

 

[Standing Wolf]

You can always count on the leftist extremists in Denver to demonstrate the latest techniques in sore-loserism.

I avoid the city whenever possible.

 

[Zak Smith]

justice4all,

It sounds like they are required to check it.

-z

 

[GSB]

Looks to me like it all boils down to this: "Yes, it's technically legal to CCW, but we're going to make it so inconvenient and annoying to do so in compliance with the law, nobody will ever want to actually do it."

 

[Zak Smith]

I think courthouses have always had metal detectors and security personnel. How many other buildings do you think are going to add them?

-z

 

[wumpus]

justice4all,

If you pack into the Larimer County Courthouse, they tell you to leave it back in the car. If you make up a big sob story about being late for a court appearance, you parked 10 blocks away, etc., they'll look the other way while you lock up the gun in one of those 25 cent rental lockers outside the security area.

They maintain that they're simply not equipped to be checking ordinary citizens' guns. I think police have a separate bank of lockers, and do get full "valet" pistol checking service.

 

[Morgan]

GSB - I wouldn't be nearly so cynical. Most of what we're talking about is so rare as to be a non-issue, and some (like the "No Guns" sign on/in a store or restaurant) is academic, so long as you keep it concealed. For many, this is a good law, and the media attention is making a lot more people think about the real issues behind guns and CCW.

Battler - yes, prior to this new law Denver recognized out of county CCW permits.

Zak - note the "where the use of the same is for the protection of life, limb or property" bit near the end. Pepper spray is okay, as long as its used in a defensive manner.

Wumpus - Looks like they're going to have to equip themselves to hold your gun, or let you carry it in. In my experience most cops carry in court.