Gun Control and the Elastic Meaning of “Transfer”— Colorado Court Moves the Needle

One of laws championed by the gun-grabbing crowd is the so-called universal background check, in which private sales of firearms are subjected to a criminal background check, fees, and paperwork. What gun control advocates fail to make clear, though, is that their concept of “sale” extends to firearm “transfers,” being gifts, loans and any other transaction, regardless of how temporary, where possession but not ownership of the firearm changes.

A failed background check initiative in Maine adopted a definition of “transfer” that meant “to sell, furnish, give, lend, deliver or otherwise provide with or without consideration.” The Washington Alliance for Gun Responsibility (WAGR), which drafted the law in Washington State, defined a “transfer” as the “intended delivery of a firearm to another person without consideration of payment or promise of payment including, but not limited to, gifts and loans.” The proponents of the Maine law misleadingly packaged the initiative as one that applied “to private sales.” WAGR likewise maintained that “simply handing someone your gun … is not a transfer” under their language, and scoffed that concerns about the law applying to temporary transfers between law-abiding gun owners were farfetched fear-mongering over “invented scenarios.” After the WAGR-drafted law was passed, it became obvious that opponents were correct and it did apply to “simply handing someone” a gun, as instructors and students in hunter safety classes for the state’s fish and wildlife department quickly learned.

The elastic concept of “transfer” was stretched even further in a Colorado criminal case, People v. Johnson, No. 18CA1212, 2021 COA 102 (Colo. Ct. App. July 29, 2021).

A state law on straw purchasing, Colo. Rev. Stat. § 18-12-111(1), provides that “[a]ny person who knowingly purchases or otherwise obtains a firearm on behalf of or for transfer to a person who the transferor knows or reasonably should know is ineligible to possess a firearm” commits a felony.

Sylvia Johnson was charged with violating the law after she purchased and stored a firearm in an apartment she shared with her common-law husband, Jaron Trujillo. Johnson was not herself under a firearm disability, but Trujillo was a convicted felon, and subject to a protection order that both barred him from Johnson’s apartment and – as Johnson knew – prohibited him from possessing firearms.

Johnson purchased the gun after she went to a pawnbroker with Trujillo to look for jewelry and a gun for herself. Her evidence was that she bought the gun to protect her children and her “whole family,” including Trujillo. She paid for the gun, and testified that she was not acting as a straw purchaser or middleman for Trujillo and had never given the gun to him. She did, however, keep it in a closet in the apartment where she lived with Trujillo. The evidence on how Trujillo knew where the gun was kept was inconsistent: Johnson said she told him, while Trujillo testified he guessed its location.

Sixteen days after Johnson bought the gun, a manager at the apartment building called police after seeing Trujillo on the premises in violation of the protection order. Officers located Trujillo outside the apartment with Johnson’s gun in his pocket. Trujillo admitted he took the gun while Johnson was at work and away from the apartment. There was no indication that Trujillo had previously accessed or taken the gun, or that Johnson was even aware that he had taken it.

The Colorado Court of Appeals found Johnson guilty of violating Section 18-12-111(1), concluding that she “knowingly purchased the firearm for the purpose of ‘transferring’ it to Trujillo.”

The “purpose” element was apparently satisfied because the court determined Johnson purchased the gun “with the knowledge that Trujillo… would access it to protect himself.” The law Johnson was charged with violating does not include a definition of “transfer,” so the court referred to the state’s universal background check law. “Transfer” in that context includes temporary transfers without a change in ownership or title, and without an exception for “temporary transfers of a firearm in the form of shared use.” According to the court, it necessarily followed that “the General Assembly gave ‘transfer’ a broad definition for purposes of the prohibition against the ‘transfer’ of firearms by ‘straw purchasers,’” a prohibition found in an unrelated and separate law.

Although there is no indication in the decision that Johnson had given Trujillo permission to access the gun – and she expressly denied ever having given the gun to him – the court determined that a “transfer” had indeed occurred. Johnson had “shared possession of the firearm” with Trujillo, and the two of them had “‘transferred’ the firearm by conveying, moving, and shifting it between themselves. Thus, a ‘transfer’ of the firearm occurred when Trujillo picked it up from the closet, where Johnson had left it.” Essentially, a “transfer” had occurred because Trujillo had access to the gun by virtue of the fact that they shared a roof.

In hindsight, Sylvia Johnson was unwise in sharing her home with her common-law spouse. Her lapse in judgment means she now faces up to six years in prison and a potential fine of up to $500,000, and her felony conviction means she joins Trujillo as a person barred from possessing or purchasing a firearm.

For others in the gun-owning community, the court’s interpretation of “transfer” raises real questions and concerns. If, as the court appears to say, a “transfer” occurs by passively allowing others to access places where a firearm is kept and another person takes possession of the gun, regardless of the custodian’s knowledge or consent, the requirement for an actual positive act of “simply handing someone your gun” is eliminated. Building a case of a “transfer” based on passive access potentially has wider repercussions.

The court’s ruling is based on the Colorado straw purchase law but “borrowed” from the law on private transfers and background checks. Will future courts “circle back” by using the new interpretation from this straw purchase case when dealing with violations of the background check law? That law prohibits “transfers or attempts to transfer possession of a firearm” unless the person first complies with the mandatory background check requirements using a licensed dealer, and as the Johnson court indicated, that law has no exception for temporary transfers of a firearm in the home where shared possession based on access is presumed.

This may be a case of alarmist thinking – and we hope it is – but as the past has shown, it’s not unlikely that predicted gun control scenarios summarily dismissed as outlandish later materialize into reality.

© 2021 National Rifle Association of America, Institute for Legislative Action. This may be reproduced. This may not be reproduced for commercial purposes.