Despite ban, high-capacity magazines still sold in Colorado

DENVER (AP) — A state law banning the sale and transfer of large-capacity gun magazines has not stopped the sale and transfer of magazines that hold more than 15 rounds of ammunition.

An undercover investigation by 9Wants to Know found examples of gun stores in Colorado either ignoring the law altogether or finding a loophole to get around the law.

"It's shocking to see that people are doing this," said state Sen. Rhonda Fields, D-Aurora.

In 2013, a Democratically-controlled state legislature passed four comprehensive bills dealing with guns, including the bill sponsored by Fields banning magazines that hold more than 15 bullets.

The bill, signed into law by then-Gov. John Hickenlooper, banned the sale, transfer and possession of a large-capacity magazine as of July 1, 2013.

"We decided that we were going to go out and take on the NRA," Hickenlooper said during the second presidential debate July 30 in Detroit. "We passed universal background checks, we limited magazine capacity, we did the basic work, that for whatever reason, doesn't seem to be able to get done in Washington."

Yet, six years later, magazines that hold more than 15 rounds of ammunition are still being sold in Colorado. Legislators thought that they banned them, but gun store employees describe a loophole in the law.

"It's just poor wording with the law, which benefits us. We can work around it," said an employee at Centennial Gun Club at 11800 E. Peakview Ave. in Arapahoe County. "It's a loophole in the wording that they gave that lets us keep selling."

A gun owner contacted 9Wants to Know asking why gun stores were able to sell large-capacity magazines despite the state's ban. A 9Wants to Know producer, wearing a hidden camera, went into 10 stores in six Front Range counties to find out what type of magazines were being sold.

In those visits, all of which occurred during business hours, employees at one store after another offered to sell a large-capacity magazine disassembled in parts.

Our undercover investigation found gun stores selling these "parts kits" in Arapahoe, Douglas, El Paso and Larimer counties. The kits are large-capacity magazines sold in pieces, ready to be assembled after they are purchased.

"This is a 30-round mag; we have to sell it as parts," said the employee at Iron Horse Armory. "That's one of Colorado's retarded laws."

"But, you know how to get around them, so that's good," said an Iron Horse Armory customer who was nearby.

"I'm a little stunned by how open it is and how blatantly they're saying, 'You know, this is a stupid law, but this is the way you can get around it,'" Fields said.

Fields sponsored House Bill 13-1224, banning the sale, transfer or possession of a large-capacity magazine, which was defined as holding more than 15 rounds of ammunition. However, a person can continue to have a large-capacity magazine if he or she owned it prior to July 1, 2013, and maintains continuous possession of the magazine.

"Seeing those businesses operating under a loophole that's in our statute, is just sickening to me," Fields said after seeing the undercover video shot inside Colorado gun stories in October.

Fields said this is not what she had in mind when she sponsored the bill.

"The whole goal, when I ran the bill in 2013, was to limit that capacity," she said.

"If this is what the intent of the law was and we know that this loophole exists now, it's time for the legislature to go back and reword it or work through whatever process they need to, to either close that or re-address something else here in Colorado," said Arapahoe County Sheriff Tyler Brown.

Brown, a Democrat elected as sheriff in Arapahoe County in 2018, was aware stores were selling parts kits before viewing the undercover video.

"I went in to purchase these in uniform and he took them apart right in front of me. And I said, 'Well, you don't have to do that, I'm a law enforcement officer.' They say, 'We do this with all of our magazine sales,'" said Brown.

Law enforcement officers are exempt under the 2013 law.

"It's a slippery slope of 'What's their intent'? Are they rebuilding a magazine that they owned previously? Or are they buying it to put together as a magazine right then and there?" Brown asked. "Parts kits are not magazines."

If the item, sold as pieces, is put together, it would hold more bullets than the state law allows.

"If somebody puts it together, it becomes a magazine," Brown said.

"It doesn't take a college education — not even an eighth-grade education," a customer at Iron Horse Armory said after looking at the 30-round magazine kits.

"It's such a gray area, but it's pretty easy," said the employee at Iron Horse Armory. "It's at your discretion once you walk out the door to how you use it."

What magazine ban?

Our investigation also found two gun stores, one in Weld County and another in El Paso County, selling the large-capacity magazines as though the law did not exist.

"We're a sanctuary county, we don't give a f---. We just sell everything as is, preassembled," said an employee at Family Firearms Sales at 3882 Maizeland Road in Colorado Springs.

"We sell up to 60-round drums for the AR-15, 50-round drums for the .308 and the AR-10s, 75 rounds for the AK," said an employee of Tacticool Arms at 928 13th St. in Greeley, the county seat for Weld County. "Our sheriff has openly stated he does not agree with the magazine ban, he believes it's unconstitutional and will not enforce it."

"No, that's not a statement that I've made, that we're not going to enforce gun laws," Weld County Sheriff Steve Reams said. "There are some issues with gun ownership that we take very serious, especially if someone is committing a violent act with a firearm."

Reams, a Republican elected as sheriff in 2014 and reelected in 2018, has been outspoken about a different gun law in Colorado. He declared Weld County a "sanctuary county" as it relates to the state's new "red flag" law that will take effect next year.

That law allows a judge to order someone's weapons be seized if they are deemed a threat to themselves or others. He said this was the first time he had ever been asked about the state's large-capacity magazine ban, which took effect before he was elected as sheriff. After watching the undercover video, he thought the gun store employee might be confusing his stance on the red flag law with the large-capacity magazine ban.

"I don't know where that individual is getting his direction," Reams said. "I would encourage people to understand the law and to understand how it applies to them. I do know who the owner is, so I'll probably have a conversation with him and talk about business practices. You don't want to put one of your potential customers in a situation where they could be in trouble with the law."

Whether selling parts kits is against the law appears to be open to interpretation, but the gun store in Weld County told an undercover producer they sell the magazines outright.

"We're not going out and making this a primary issue that we're looking for in Weld County, but that doesn't mean that this person (can't) be picked up at any place at any time and have that magazine called into question," Reams said.

If a person is caught with a magazine, the law puts the burden of proof on law enforcement to prove when the magazine was purchased. If the person owned it prior to July 1, 2013, it would be legal. Essentially, all it would take is for someone to lie about when they got the magazine to try to avoid punishment.

"I don't think the governor (Hickenlooper) realizes that, at least the magazine ban had, I would say, almost zero effect," Reams said.

Asked if this is proof that we don't need the law or that it might as well be repealed, Reams said "absolutely."

"That's proof that you don't need the law, and that's been the proof since it was passed in 2013," Reams said. "This law, while it made some people feel like, 'Hey, we've addressed the situation in Colorado,' it's wholly ineffective, which your video shows."

In July, Hickenlooper referenced the large-capacity magazine ban on a national stage during the second presidential debate. He was unaware of what was happening in Colorado gun stores until he saw the undercover video.

"Certainly, the intention was that you shouldn't be able to buy a 60-round magazine," Hickenlooper said. "I'm probably as surprised as you are."

Hickenlooper is no longer running for president, instead he's trying to win the Democratic nomination to challenge Sen. Cory Gardner for U.S. Senate. If he were still governor, he said he would close the loophole.

"Obviously, I would go to the legislature and say, 'this is not the intention of what we worked so hard to get passed, and let's go back and try and find what that loophole is, where the language is not sufficient and improve it,'" Hickenlooper said.

"This is the point of good media. Good journalism is because when you point something like this out it becomes our responsibility to fix it."

Who's been punished under this ban?

Just because the magazines are still being sold in Colorado does not mean the law has never been enforced.

In two of the stores our producer visited, employees provided similar, albeit inaccurate, stories.

"There's only been one prosecuted case of it ever even recorded, and he had 12 other charges in front of the one," said the employee at Iron Horse Armory.

"There's never been anybody prosecuted in our state for having a bigger magazine," said an employee at Sportsman's Warehouse at 5125 N. Elizabeth St. in Pueblo. "They did do one of them, it was an add-on charge. I don't know if it was a burglary or something, but they added those charges, plus he had a high-cap magazine, so they added it on to him, but nobody's ever been actually charged for that."

Someone has been charged with the large-capacity magazine ban more than once. However, the employees were accurate in saying it's not the primary offense.

The law has mainly been used similarly to a seatbelt violation; not a primary violation. The large-capacity magazine ban has been used as a charge 128 times in six years. The majority of the time, the person was charged with another crime, such as a drug or traffic offense, and then the large-capacity magazine violation was included when a large-capacity magazine was discovered as part of the offense. There were at least three instances where the large-capacity magazine violation was the only charge.

In 12 of the 128 cases, the person was sentenced for having a magazine holding more than 15 rounds of ammunition.

Six of those cases resulted in time behind bars.

— Five of those cases resulted in probation and not time in jail or prison.

— All were required to pay into the Victims Assistance Fund.

— Most paid court fines.

In 2015, Nicholas Motley was the first person sentenced under the ban. According to court documents, he served 24 days in jail and was fined $1,363.50.

Motley did not respond to repeated attempts to contact him for comment.

Arrest affidavits or probable cause statements in all 12 cases that resulted in convictions showed that in six of the cases, responding officers and deputies were made aware of a gun with a large-capacity magazine during a traffic stop.

Those traffic stops were conducted because of an invalid license plate or a turn without a signal. The circumstances of the six cases are different, but in each case, law enforcement conducted a search of the vehicle, and that's when the large-capacity magazine(s) was found. In three other traffic stops, the car search was the result of a 911 call reporting a suspicious person or car.

In one case, law enforcement returned large-capacity magazines, even after the person was sentenced under the state's ban.

Cardell Hardy pled guilty to violating the large-capacity prohibition. Police officers found two 70-round magazines, a 30-round magazine, an M11-A1 gun, ammunition and a silencer in Hardy's car during a traffic stop.

Those illegal magazines were returned to Hardy by the Idaho Springs Police Department. That should not have happened, according to Idaho Springs Police Department Chief of Police Christian Malanka.

"The magazines were returned in error," Malanka said.

Malanka blamed the mistake on a misinterpretation of a stamp from the district attorney's office.

"The DA stamp said either return or destroy evidence," Malanka said. "It's up to me: The stamp said either/or. I should have interpreted (it) correctly (and) not return(ed) illegal magazines (he was) found guilty of being in possession of. He pled guilty to (having) it unlawfully. It's obviously an accident."

While it was a different officer that made the blunder, Malanka took responsibility for it. The police chief said the officer that made the error is generally "very meticulous." Going forward, Malanka said any similar scenarios will go through him first.

"(We're) going to add another level of scrutiny so this doesn't happen again," Malanka said. "Any firearm-related dispositions will come across my desk."

Hardy hung up when first asked about the case, and he did not respond to further attempts for comment.

A Colorado Bureau of Investigation (CBI) background check showed Hardy has not committed another crime since he pleaded guilty to this charge.

This law cost lawmakers' jobs

Colorado became the center of the gun debate in 2013. It was the legislative session after the Aurora theater shooting and the Sandy Hook Elementary School shooting in Connecticut. Both mass shootings involved suspects who used guns with large-capacity magazines.

"We want bad guys to have to reload on a regular basis, because when they are reloading, (that) means that gun is a paperweight, and that is your opportunity to get away and overpower that assailant," said former Senate President John Morse, a Colorado Springs Democrat.

The top Democrat in the Senate in 2013, Morse, along with Sen. Angela Giron, D-Pueblo, faced recall elections and were voted out of office on Sept. 10, 2013. Sen. Evie Hudak, D-Westminster, resigned on Nov. 27, 2013, before petitions to force a recall were submitted.

Morse is now living in Denver and working as an accountant. 9Wants To Know showed him the undercover video from inside the gun stores to find out if what he saw was what he intended when he supported the large-capacity magazine ban.

"No. Absolutely, this was not what was intended," Morse said. "What was intended was you don't get to sell these magazines in Colorado under any circumstances. I guarantee you that was not our intent. And if we did make that mistake, the legislature needs to go back and fix that forth with, like call a special session, and fix it."

A special session is the type of legislative session called for by the governor, with a specific focus by the governor.

"I have no doubt that Gov. Polis will lead the charge to do what needs to be done," Morse said. "If, in fact, there's a loophole here, Gov. Polis will lead the charge to get this fixed."

Who's avoided talking about what we found?

Despite multiple attempts to arrange an interview with Polis and show him the undercover video, his spokesman, Conor Cahill, refused unless the governor's staff was able to see the undercover video ahead of time. None of the other elected representatives interviewed for this story made this request.

Colorado Attorney General Phil Weiser's office first agreed to an interview on the topic of large-capacity gun magazines, but then declined the next day. His spokesman said any interview with Weiser would have to wait until after Nov. 13, when the state Supreme Court hears oral arguments on the constitutionality of the state's large-capacity magazine ban.

Morse said he believes both the store and the customer are violating the law.

"It'll be interesting to see if any arrests...come out of your reporting, and then see what the courts think," Morse said.

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Watch the story here: https://youtu.be/z3iUXRcVhG4

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Information from: KUSA-TV, http://www.9news.com