May 25, 2019

Colorado Court of Appeals: Involuntary Short-term Mental Health Commitment Is Not Equivalent to Court Order

The Colorado Court of Appeals issued its opinion in Interest of Ray v. People on Thursday, February 21, 2019.

Mental Health—Certification for Short-Term Treatment—Physician—National Instant Criminal Background Check System—Firearm Prohibitions—Court Order.

Ray voluntarily sought mental health treatment from a hospital. After he was admitted, a physician certified Ray for involuntary short-term mental health treatment under C.R.S. § 27-65-107, finding that he was a danger to himself or others and would discontinue mental health treatment absent such a certification. That certification caused Colorado officials to report Ray to the National Instant Criminal Background Check System (NICS) as a person subject to federal firearm prohibitions. The certifying physician terminated the mental health certification days after it was entered, and Ray was discharged from the hospital. Ray petitioned the probate court for removal from the NICS. The probate court denied the petition.

On appeal, Ray argued that because he was involuntarily certified by a physician, rather than a court, Colorado officials should not have reported his certification to the NICS. Colorado law requires certain persons and entities to make NICS reports for persons with respect to whom a court has entered an order for involuntary certification for short-term mental health treatment. The plain meaning of the term “court order” does not encompass certification by a professional person. Therefore, the certification made by the physician does not meet the plain definition of a court order.

The order was reversed and the case was remanded for the probate court and the parties to take reasonable steps to cause any record of Ray’s certification submitted by them under CRS § 13-9-123(1)(c) to be rescinded.

Summary provided courtesy of Colorado Lawyer.

SB 15-086: Repealing Requirement of Criminal Background Check Prior to Gun Sales

On January 14, 2015, Sen. Kent Lambert and Rep. Janak Joshi introduced SB 15-086 – Concerning Criminal Background Checks Performed Pursuant to Transfer of FirearmsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the requirement that before any person who is not a licensed gun dealer transfers possession of a firearm to a transferee, he or she must require that a criminal background check be conducted of the prospective transferee and must obtain approval of the transfer from the Colorado bureau of investigation (CBI). The bill repeals the requirement that CBI impose a fee for performing an instant criminal background check pursuant to the transfer of a firearm. The bill makes conforming amendments.

The bill was assigned to the Senate Judiciary Committee.

Governor Hickenlooper Signs Three Firearms Bills

At a press conference on Wednesday, March 20, 2013, Governor Hickenlooper solemnly signed three bills designed to help control gun violence in Colorado. The bills prohibit large-capacity ammunition magazines, require criminal background checks for all transfers of firearms (including private transfers), and allow the CBI to recoup the cost of the background checks. The bills are:

  • HB 13-1224 – Concerning Prohibiting Large-Capacity Ammunition Magazines, by Rep. Rhonda Fields and Sen. Mary Hodge. Effective July 1, 2013, the bill prohibits manufacture or purchase of any magazine capable of accepting more than 15 rounds of ammunition. 
  • HB 13-1228 – Concerning Requiring the Colorado Bureau of Investigation to Recoup the Cost of Performing an Instant Background Check Prior to the Transfer of a Firearm, and, in Connection Therewith, Making and Reducing an Appropriation, by Rep. Lois Court and Sen. Rollie Heath. The bill allows the CBI to assess a charge for performing instant background checks.
  • HB 13-1229 – Concerning Criminal Background Checks Performed Pursuant to the Transfer of a Firearm, and in Connection Therewith, Making an Appropriation, by Reps. Rhonda Fields and Beth McCann and Sen. Morgan Carroll. The bill mandates criminal background checks for all transfers of firearms, including those between private parties.

Governor Hickenlooper issued a statement about the most controversial of the bills, HB 13-1224, noting that he acknowledges the concerns about the bill and stating

In considering the language of HB13-1224, we have consulted with the Office of the Attorney General and we concur with its advice that the large-capacity magazine ban should be construed narrowly to ensure compliance with the requirements of the Second Amendment and the Due Process Clause of the 14th Amendment. We have signed HB13-1224 into law based on the understanding that it will be interpreted and applied narrowly and consistently with these important constitutional provisions.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.