April 03, 2024 10:39 AM UTC

Gun-Toting Republican Senators: We Are Above The Law

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• by: Colorado Pols

Marianne Goodland at the Colorado Springs Gazette’s political blog reports on debate yesterday in the Colorado Senate over legislation that would–among a few other defined “sensitive spaces”–further prohibit firearms inside the Colorado State Capitol building. Presently, security at the Capitol operates under an unusual status quo that prohibits the public from carrying firearms in the Capitol, with all visitors to the building required to pass through metal detectors and their bags X-rayed, yet lawmakers and staff take advantage of alternate entrances to the building bypassing security with their weapons. Over the years, this has resulted in at least two instances of lawmakers leaving or dropping their weapons in public areas of the building. In 2018 during the proceeding to expel Rep. Steve Lebsock for serial sexual misconduct, lawmakers testified about having to wear bulletproof vests out of fear of armed retaliation.

Senate Bill 24-131 as originally introduced didn’t include the Capitol as a designated “sensitive space” where guns would be banned, and the bill’s original scope was pared back considerably from the original language–but adding the Capitol to the list changed the whole debate over the bill to focus on the longstanding practice of lawmakers bringing guns into the building even though the public is prohibited from doing so. We’ve talked about this loophole on several occasions, but this appears to be the first legislative attempt to actually address the issue.

And the heat-packing Republican lawmakers directly targeted by the amended bill are not happy:

The practical effect is that it would ban lawmakers from bringing weapons into the state Capitol.

Jaquez Lewis said after the hearing that “legislative spaces” are considered “sensitive places.”

But that didn’t go over well with Senate Republicans during Tuesday’s nearly five-hour debate.

Sen. Jim Smallwood, R-Parker, noted that Article 5, Section 16 of the Colorado Constitution addresses legislators’ privileges…

And here’s where it gets interesting:

Members of the General Assembly are privileged from arrest from their attendance at the Capitol in either chamber or in committees, including travel to and from the Capitol premises, he said.

The only exception is when a lawmaker commits treason or a felony.

The question of legislative immunity as defined in the Colorado Constitution has never been fully tested in court, but it has surfaced in the past. In 2012, then-Rep. Laura Bradford (R) was pulled over by Denver Police after a “legislative happy hour” at a local bar. Although Bradford claimed she never directly invoked legislative immunity, she described the event she was attending as official and also stated she needed to be at the Capitol the next day–statements that persuaded police to not arrest Bradford for DUI. But the point of the legislative immunity clause in the Colorado Constitution is to prevent interference with lawmakers in attending the legislative session and committee hearing, not to make them totally immune from legal scrutiny:

Section 16. Privileges of members. The members of the general assembly shall, in all cases except treason or felony, be privileged from arrest during their attendance at the sessions of their respective houses, or any committees thereof, and in going to and returning from the same; and for any speech or debate in either house, or any committees thereof, they shall not be questioned in any other place.

But arguing against disarming lawmakers, Sen. Jim Smallwood interpreted this clause…extremely broadly:

“They shall not be questioned in any other place,” Smallwood read. That means legislators can’t be arrested, “we can’t even be stopped or detained to be questioned,” he said. [Pols emphasis]

The bill contemplates a misdemeanor crime, Smallwood said. So, he asked, how could a police officer stop him for carrying a firearm in the Capitol, or even from the state Capitol parking garage given the constitutional protections?

So first of all, Smallwood appears to be grossly misreading the language of this provision by suggesting that “shall not be questioned in any other place” applies to more than “speech or debate in either House,” which in our reading it does not. If Smallwood’s reading of the Constitution were to be upheld, it would indeed render lawmakers immune to prosecution for any misdemeanor crime committed on the way to or from the Capitol during the session.

And that would be completely insane.

Lawmakers do not need to be arrested in order to be charged with a crime, which means they can still be prosecuted for crimes committed during the legislative session without this immunity being a factor. At most, it may be necessary to schedule court dates to not coincide with days the legislature is in session. Either way, legislative immunity was never intended to allow lawmakers to commit petty crimes with impunity. But impunity is exactly what Sen. Smallwood claims lawmakers enjoy–not just with respect to guns, but in theory any crime short of treason or a felony.

All we can say is, if the courts ever interpret the Constitution to let lawmakers do crime with impunity, the Constitution needs amending.