KOA's Rosen, GOP lawmaker misinformed regarding gun-security bill

Summary: Discussing legislative developments under the state's Democratic majority, Newsradio 850 KOA's Mike Rosen on February 19 falsely claimed that Colorado Senate Bill 49 requires "mandatory storage of all firearms under lock and key," while his guest, state Rep. Cory Gardner (R), similarly claimed that the legislation "says you must keep your firearms under lock and key or face a misdemeanor action by the state of Colorado." In fact, the text of the measure makes clear that misuse of the unsecured firearm by a minor who causes death or bodily injury is a necessary condition for prosecution.

On his February 19 Newsradio 850 KOA broadcast, Mike Rosen mischaracterized Colorado Senate Bill 49 as one "requiring mandatory storage of all firearms under lock and key." Rosen went on to make the misleading suggestion -- supported by his guest, Republican state Rep. Cory Gardner -- that under the bill, a homeowner who defended himself against an intruder could be prosecuted if "it's determined that the gun wasn't under lock and key" beforehand. In fact, a gun owner would be criminally liable under the bill only if a minor who accessed the unsecured firearm then "uses the firearm to cause death or serious bodily injury to himself, herself, or another person or carries the firearm to a public or private school or to any school-sponsored event."

Rosen and Gardner were criticizing several legislative developments under Colorado's Democratic majority. After Gardner referred to Senate Bill 49 as "the 'Let's-disarm-citizens-so-criminals-can-have-their-way-with-you' bill," he similarly claimed that the legislation "says you must keep your firearms under lock and key or face a misdemeanor action by the state of Colorado."

From the February 19 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

ROSEN: All right, let's talk about another one. This is the one sponsored by Democrat Senator Sue Windels, Senate Bill 49, requiring mandatory storage of all firearms under lock and key.

GARDNER: Senate Bill 49 is the "Let's-disarm-citizens-so-criminals-can-have-their-way-
with-you" bill. It's an incredible piece of legislation that says you must keep your firearms under lock and key or face a misdemeanor action by the state of Colorado. But again, it's one of those bills that says to criminals, "Go ahead, do whatever you want, because we have disarmed citizens of this state."

ROSEN: Now, I wouldn't be disarmed. I could still have the gun in my house, but I'd have to have it under lock and key, which would make it that much more difficult for me to get access to it in an emergency.

GARDNER: Yeah, you'd better be quick on the combination dial of the safe, because you're gonna have to ask the person breaking in the house to take a little time, because you've got to be able to protect yourself, and you have to get the combination on the safe right.

ROSEN: Now, how would a bill like this be enforced? If I'm required to keep firearms under lock and key, certainly the police aren't gonna come in and inspect my firearms to see if they're under lock and key, are they?

GARDNER: Well, it's a great question. I think it opens the door to whether people, police, others would be able to inspect people's homes for compliance with this bill to see whether or not guns are indeed kept under lock and key. Of course, the government has registration information on most people who have purchased a firearm, and so they know where those weapons are and whose houses they're in. And so, I think this bill opens the door to a complete -- an entire number of things.

[...]

ROSEN: Now, obviously, we're protected under the U.S. Constitution by the Fourth Amendment from unreasonable search and seizures. And under Senate Bill 49, this requirement that firearms be kept under lock and key -- police couldn't come into your house without probable cause to inspect the conditions of your firearms.

GARDNER: Well, I would certainly hope not. But again, it opens the door to what they could secure a warrant for, what they could do a search for. I think the Fourth Amendment says that yes, they indeed, police do have the power to go into people's homes under certain conditions. Senate Bill 49 says that you have to keep your protection devices under lock and key.

ROSEN: My guess on 49 -- if this were to be signed by the governor into law, Cory -- is that this could be used if there were an accident in your home involving, let's say, a child who got a hold of a firearm and did some damage. A subsequent investigation could produce evidence that the gun wasn't kept under lock and key, and then the parents could be prosecuted.

GARDNER: Certainly that could happen, yes.

ROSEN: Or somebody breaks into your home and you defend yourself, and in defending yourself it's determined that the gun wasn't under lock and key, and you might be prosecuted.

GARDNER: Now, isn't that the shame of the law?

Contrary to Rosen and Gardner's misrepresentations, the bill, which passed the Committee on State, Veterans & Military Affairs on February 4, would not compel all gun owners to keep their firearms "under lock and key." The summary of the bill -- which bears the official title "A Bill for An Act Concerning Measures To Prevent Injuries Resulting From the Unsupervised Access to Firearms by Minors, And, In Connection Therewith, Reducing The Incidence Of Teenage Suicide" -- makes clear that misuse of the unsecured firearm by a minor that results in injury or death is a necessary condition for prosecution:

Makes it an unclassified misdemeanor if:

• A person keeps a firearm within any premises that are under his or her custody or control; and

• He or she knows or reasonably should know that a minor is able to gain access to the firearm without the permission of the minor's parent or legal guardian; and

• The minor obtains access to the firearm; and

• The minor uses the firearm to cause death or serious bodily injury to himself, herself, or another person or carries the firearm to a public or private school or to any school-sponsored event. [emphases added]

The summary contained in the fiscal note that accompanies the bill similarly makes clear that misuse of the firearm by a minor that results in injury or death is a necessary condition for prosecution:

Summary of Legislation

This bill specifies that a person commits the crime of criminal storage of a firearm and is guilty of an unclassified misdemeanor if he or she:

• keeps a firearm within any premises that are under his custody or control; and

• knows or should know that a minor is able to gains access to the firearm without the permission of the minor's parent or legal guardian; and

• the minor obtains access to and uses the firearm to cause death or serious bodily injury to himself or another person, or carries the firearm into a school of school-sponsored event. [emphases added]

Under the bill, gun owners can protect themselves against liability by keeping the firearm in a secure place, by disabling the gun with a gun lock, or by storing ammunition for the gun separately or "in a locked and secure location":

(3) Subsection (1) of this section shall not apply if:

[...]

(f) The firearm is kept in a locked container or in a location that a reasonable person would believe to be secure;

(g) The firearm is locked with a locking device that has rendered the firearm inoperable;

(h) The firearm is kept on premises that are under the person's custody or control and the person has no reasonable expectation, based on objective facts and circumstances, that a minor is likely to be present on the premises; or

(i) The firearm and corresponding ammunition are stored separately, or, if stored together, the ammunition is stored in a locked and secure location.

Later in the broadcast, a caller asked for clarification of his understanding that the measure (which he misidentified as a House bill) requires that firearms be secured by lock "only if there's, like, a minor in the house":

CALLER: Yes, I have a quick question about the House Bill 49.

ROSEN: OK.

CALLER: And if that -- if, they have to be under lock and key only if there's, like, a minor in the house.

GARDNER: That's correct. I mean, it says that if -- but not just in the house. If you have a reasonable belief that a minor will have access to the house, or to the weapon, and so if you're -- to the firearm. And so if you are -- if your neighbors have kids, if you have kids, and somebody may come over, you're a grandparent, this basically says that anytime that it could be possible for a minor to be around a firearm, that has to be locked up.

CALLER: OK, all right, that was -- that answers the question.

Although Gardner acknowledged that a minor having access to the firearm is a condition for criminal liability, he still failed to clarify that the gun owner would incur such liability only if a minor misused the firearm to harm himself or another, or by bringing the gun into a school setting.

—E.B. & J.F.B.