The right to own a firearm in the United States has a long, historical tradition and protections for gun ownership are enshrined in the United States[1] and Colorado[2] Constitutions. The right to own firearms, however, is not absolute. The government is permitted to put a variety of restrictions on gun ownership.[3] For instance, juveniles may not possess firearms without certain restrictions and people with felony records are also not permitted to possess a firearm.[4][5] So, what happens when you are arrested and the police take possession of your firearms? Can you have them returned?
Generally speaking, if you are not convicted of a crime involving the use of a firearm, an act of Domestic Violence, or a State or Federal felony offense, then the answer is “yes.” Federal law prohibits the possession of a firearm for those with domestic violence convictions.[6] Colorado and Federal law prohibit possession of a firearm for those with any felony convictions.[7][8] It is important to note that the definitions of a felony in Colorado and a felony under federal law are different. For instance, if you plead to a misdemeanor in Colorado, it is considered a felony under federal law for the purposes of firearm possession if the crime is punishable by more than a year in jail.[9] Assuming you do not plead to a crime involving the use of a gun, a felony, or a domestic violence offense, you have a right to have your gun returned once the case is concluded.
What if you plead guilty to a charge involving the use of a weapon, but it is not a felony under Colorado or federal law and it is not a crime involving domestic violence? You can still get your firearm back if the Prosecution does not follow the proper procedures to have your firearm forfeited.
The controlling law for firearm forfeiture can be found in Colorado Revised Statutes 18-12-110 and 16-13-311. C.R.S. 18-12-110 allows a court to order forfeiture of “any firearms which were used by a defendant during the course of a criminal episode” which resulted in a conviction “as an element of sentencing or as a condition of probation or of a deferred sentence.”.[10]
C.R.S. 16-13-311 allows a prosecutor to seek to have a firearm forfeited and destroyed if the prosecutor petitions the court and can show: (1) that the subject weapon is required by law to be destroyed; (2) the possession of the subject weapon is illegal; or (3) that the subject weapon is not properly the subject of a sale.[11]
Considering both statutes, a prosecutor must petition the court to have a weapon destroyed and show that the return of the firearm would be illegal or that destruction of the firearm is required by law. If the prosecutor fails to follow this procedure, the firearm should be returned. Assuming the person seeking the firearm does not have a felony or a domestic violence conviction, and assuming the person is otherwise permitted to use a firearm and that the firearm was not used as a part of a charge in which the person pleaded guilty, then the firearm should be returned once the case is completely resolved.
If you or someone you know is interested in finding out if you are eligible to have your gun rights reinstated, contact The Juba Law Office at 303-974-1080, or go online at JubaLawOffice.com to schedule a consultation with our firm.
[1] https://constitution.congress.gov/constitution/amendment-2/#:~:text=A%20well%20regulated%20Militia%2C%20being,Arms%2C%20shall%20not%20be%20infringed.
[2] https://codes.findlaw.com/co/colorado-constitution-of-1876/co-const-art-ii-sect-13.html
[3] https://supreme.justia.com/cases/federal/us/597/20-843/
[4] https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-12-108-5/
[5] https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-12-108.html
[6] https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-922/
[7] https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-12-108/
[8] https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-922/
[9] https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-922/
[10] https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-12-110/
[11] https://codes.findlaw.com/co/title-16-criminal-proceedings/co-rev-st-sect-16-13-311/
