This story by Faith Miller appeared on Colorado Newsline on March 7, 2022.
Debate over which crimes should prohibit someone from possessing a firearm in Colorado has created an interesting political dynamic at the Capitol — forcing Republicans and Democrats to weigh public safety interests and gun rights.
House Bill 22-1257, which passed the Colorado House of Representatives on Friday, is the product of months of debate and compromise among the members of the Colorado Commission on Criminal and Juvenile Justice. The commission includes representatives of state and local law enforcement, Republican and Democratic district attorneys, criminal justice reform advocates, victims rights workers and state lawmakers from both major parties.
But despite bipartisan support from district attorneys and law enforcement, almost every House Republican voted to oppose HB-1257.
One of the more controversial sections of HB-1257 would expand the list of prior convictions tied to the crime known as possession of a weapon by a previous offender, or POWPO for short. POWPO makes it illegal to own a firearm for people with one or more of these convictions on their record.
“This I think is out of the recognition that some fairly serious offenses are prone to be committed with firearms, and we’re trying to speak to a bit of a public safety issue here,” Rep. Mike Weissman, an Aurora Democrat who is the prime sponsor of HB-1257, explained to lawmakers on the House Judiciary Committee on Tuesday.
HB-1257 follows bipartisan legislation passed last year that reformed misdemeanor sentencing laws. That legislation, Senate Bill 21-271, also came from the Commission on Criminal and Juvenile Justice.
Among other changes and updates to Colorado’s criminal code, SB-271 narrowed the list of past convictions that make it illegal for someone in Colorado to possess a weapon, while toughening the penalties associated with doing so. Whereas previously, any felony conviction made it illegal for someone to possess a firearm, SB-271 limited the applicable felonies to those that fall under the Victim Rights Act, such as assault, robbery, rape or murder.
SB-271 took effect on March 1 of this year, drastically limiting the number of felony convictions that make it illegal for someone to possess a firearm in Colorado. Notably, it didn’t affect the background check process — since Colorado laws that dictate who can acquire a firearm are different from those that say who can possess one.
HB-1257 would add certain felony offenses, such as criminal extortion, enticement of a child, unlawful termination of pregnancy and arson, back onto the POWPO list. All of the offenses that would be added to POWPO under HB-1257 were agreed upon by members of the Commission on Criminal and Juvenile Justice.
Weissman and Rep. Matt Soper, a Delta Republican, are sponsoring HB-1257 along with Sen. Julie Gonzales, a Denver Democrat.
While leading state Republicans have recently sought to portray Democrats as “soft on crime,” and have called for tougher consequences for people who break the law, a few argued vehemently against expanding the current POWPO list. They claimed that barring people with certain convictions from possessing a firearm would violate their Second Amendment rights.
“If you will look at the offenses in the bill, there are some of them that can be construed as being non-violent,” Rep. Rod Bockenfeld, a Republican from Watkins, said on the House floor Thursday, naming animal cruelty as one. As an example, he suggested that a rancher who shot and killed a dog for harassing his livestock might be found guilty of felony animal cruelty and therefore prohibited from possessing a firearm.
Other Republicans, including Soper, say the policy would help address the increase in violent crime that Colorado is experiencing.
“One thing that we have seen over the last number of years in this body is an element to be soft on crime, and to now move to the direction of being tough on crime is something that I fully support,” Soper said Thursday. “Once you’ve been found guilty, it’s our duty as a state to make sure that that felon is adequately punished for victimizing Coloradans.”
Soper also quoted state statutes suggesting that Bockenfeld’s example of a rancher shooting a dog in the defense of livestock would not constitute felony animal cruelty, which involves repeated torture, mutilation or needless killing.
In 2020, the state’s violent crime rate was slightly above the national average and reached its highest point since 1995, according to a recent analysis of FBI data by the Colorado Division of Criminal Justice. Colorado Republicans blame the increase in violent crime on Democratic-led policies, while Democrats attribute it to social factors such as poverty, homelessness, and the lack of access to mental health care and substance use treatment.
District Attorney Michael Dougherty, the top prosecutor in Boulder’s 20th Judicial District, said the list of 110 POWPO convictions included in HB-1257 offers something for everyone.
“For victims, offenders who use or threaten the use of a weapon while committing POWPO will now face mandatory prison instead of probation,” Dougherty wrote in an email.”For public safety, this focused and targeted list of offenses will give law enforcement and prosecutors the ability to distinguish between individuals who are an active threat to the community and those who possessed a firearm for self-defense or recreation.”
Dougherty noted that HB-1257 would include a smaller number of offenses than were under POWPO prior to March 1, when SB-271 took effect and made POWPO only applicable to Victims Rights Act crimes. Before March 1, any of the approximately 600 felony crimes made it illegal for someone to possess a firearm, while HB-1257 includes 110 felonies. The reduced number should appeal to gun-rights advocates and those opposed to increased criminalization, Dougherty argued.
One Republican prosecutor, 18th Judicial District Attorney Brian Kellner, wanted more crimes to be added back to POWPO. During testimony on HB-1257, Kellner argued that people convicted of motor vehicle theft or drug distribution should be barred from possessing firearms, too.
Those concerns didn’t lead to any amendments to the bill in the House of Representatives, though it’s possible that more changes could come in the Senate if they are approved by the Commission on Criminal and Juvenile Justice. Dougherty testified that some Democratic district attorneys, including him, would have preferred more convictions to preclude someone from possessing a firearm, while other Republicans wanted fewer. The list included in HB-1257 was the product of compromise, he said.
Possession of a weapon by a previous offender is and would remain a felony under HB-1257. A guest commentary in The Denver Post, by Denver Mayor Michael Hancock and Colorado Springs Mayor John Suthers, incorrectly suggested that SB-271 had made POWPO a misdemeanor. POWPO is either a class 5 or class 6 felony, depending on the type of firearm possessed by a person with one or more eligible convictions on their record.
The Colorado Commission on Criminal and Juvenile Justice, which worked to reach a compromise on the list of penalties to be included under POWPO, includes Republican District Attorneys Dan Rubinstein and Michael Rourke, as well as state Rep. Terri Carver, a Colorado Springs Republican. Carver, however, spoke against HB-1257 on Thursday, saying she opposed a separate section on probation.
Under current Colorado law, when a person on probation commits a new crime or tests positive for a controlled substance, they can be arrested by their probation officer. In an attempt to make it harder for people to have to go back to prison because of what’s known as a technical violation, HB-1257 would remove the ability for a probation officer to make an arrest in those circumstances. They must issue a court summons instead.
HB-1257 would also require the state court administrator to develop an evidence-based matrix of responses to guide probation officers’ decisions in a way that will motivate positive behavior change for people on probation. This would replace the current Colorado law that provides probation officers with different disciplinary actions they can choose to take.
There are approximately 68,000 people under probation in Colorado, Weissman said during Tuesday’s hearing, and “we should have updated guidance and best current criminal justice science guiding all of that.”
But while the state’s work to develop the new matrix is underway, it’s not finished yet — leading Carver to oppose the bill.
“We want to incentivize (people) finishing their probation, moving back into society and being successful because we have a very high recidivism rate,” Carver said on the House floor. “These are all valid concerns, but we don’t have that individualized behavioral system in front of us … We should not allow a system to be put into place that we have not vetted through the legislative process.”
Another part of HB-1257 would make it a class 6 felony to practice certain professions without a license or certification while representing oneself as a licensed professional. Those would include professional engineering, architecture, audiology, dentistry, direct-entry midwifery, medicine, physician assistant, anesthesiologist assistant, professional nursing, nursing home administration, optometry, pharmacy, pharmacy technician and respiratory therapy. It’s currently a class 2 misdemeanor to practice those professions without a license. In Colorado, a class 6 felony conviction comes with up to 18 months in prison and a fine of up to $100,000, while a class 2 misdemeanor comes with up to 120 days in jail and a fine up to $750.
Indra Lusero, founder and director of The Elephant Circle, which advocates for pregnant people, birth doulas and midwives, raised concerns about the criminalization of practicing midwifery without a license.
“We aren’t suggesting you eliminate penalties altogether, but increasing the penalty for unlicensed direct-entry midwifery would make things worse, not better,” Lusero said during the Tuesday hearing, explaining that birth doulas and midwives “are often sought out by people who choose them because they distrust the available licensed providers and seek bodily autonomy… Direct entry midwife is not a status symbol in the way that other professional titles may be. It does not confer benefits.”
Partly in response to those concerns, Weissman introduced an amendment on Thursday that clarified the felony would only apply to someone who “intentionally and fraudulently represents oneself as a licensed, certified or registered professional.”
On Friday, the House passed HB-1257 on a vote of 41 to 23, with Rep. David Ortiz, a Littleton Democrat, excused. All Republicans other than Soper voted against the bill, while Democrats were united in support.
The bill now heads to the Senate for consideration…