It’s easy to assume that HB24-1270 is only about insurance law. To the contrary, HB24-1270 allows the police to demand that anyone, anywhere, anytime hand over a copy of his or her homeowner’s insurance.
Even more alarming, under HB24-1270, a gun owner must have a homeowner’s, renter’s, or other insurance policy.[1] The proof of having such a policy is the “declarations page” provided by the insurance company.[2] At any time, a peace officer may request that the owner present his insurance papers. If the owner does not have his papers with him, that is “prime facie” evidence that the owner is breaking the law.
From the bill: “(3) Testimony of the failure of a firearm owner to present evidence of a complying policy in full force and effect when requested to do so by a peace officer is prima facie evidence that the firearm owner has violated subsection (1) of this section.
HB24-1270 puts no limits on when peace officers may demand papers. There is no requirement that the individual be in possession of a firearm at the moment.
The bill allows peace officers to go to a shooting range and walk down the line, demanding every person produce his or her insurance papers. The bill allows peace officers to do the same to any hunter.
Most homeowner’s and renter’s policies already cover firearm accidents
In 2013, the District of Columbia Council was considering a bill like HB24-1270. The deputy commissioner of the D.C. Department of Insurance, Securities and Banking explained why the Mayor Vincent Gray opposed the bill as unnecessary:
“However, most homeowners’ policies cover injuries sustained as a result of negligence or the accidental discharge of a firearm.”[3]
A homeowner’s insurance policy does not necessarily include the word “firearm.” An accident insurance policy covers accidents in general. Insurance policies do not attempt to list every item that might cause injury, such as toasters, blenders, laundry detergent, furniture, drills, saws, nail guns, or toys.
Justice Thurgood Marshall
Half a century ago, in United States v. Kras, the U.S. Supreme Court ruled 5-4 that the Fourteenth Amendment does not require the waiver of a bankruptcy filing fee for poor people.[4] At the time, the fee was $50, equivalent to $364.23 today.[5]
Three hundred dollars is far less than the fees for the several hours of attorney time that are necessary to bring even a basic civil case today, plus whatever filing fees are involved.[6] For poor persons victimized by HB24-1270, the costs of seeking judicial redress will be hundreds of dollars or more for even the simplest cases.
For middle class families, such an unexpected expenditure may be a harsh burden. For poorer families, such an expenditure may be impossible.
Dissenting in Kras , Justice Thurgood Marshall wrote:
“It may be easy for some people to think that weekly savings of less than $2 [about $15 today] are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A sudden illness, for example, may destroy whatever savings they may have accumulated, and by eliminating a sense of security may destroy the incentive to save in the future. A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have—like attempting to provide some comforts for a gravely ill child, as Kras must do.
It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.”[7]
Poor people come in all colors. People of color are disproportionately poor. Although the terms “systemic racism” or “structural racism” are used in diverse ways, the definition can include the creation of structures or systems by people who personally are not racially prejudiced. Sometimes, the systems or structures created without specific racial intent end up being particularly harmful to people of some races.
Because HB24-1270 falls so heavily on poor people, it can be said to be structurally racist.
In Colorado, fatal firearms accidents are very rare compared to other fatal accidents.
So, what’s the impedance of this legislation? Are firearms accidents common in Colorado?
Simply put, no.
In Colorado from 2000 through 2022, there were 57,339 accidental deaths. Of those, 155 were firearms accidents. Firearms are 1 in 370 of fatal accidents.
And nationally, fatal firearms accidents are lower than ever. The highest rate of fatal gun accidents per 100,000 population was 1.47, in 1967. The rate has now fallen to 0.14 — a decline of over 90 percent.
In 1967, there were 2,896 fatal gun accidents in America. Today, the U.S population is much larger, and the number of fatal gun accidents has fallen to 458.
The same trends are true for fatal gun accidents involving children, ages 0-14. The peak number was 598 in 1967. Since then, the number of fatal accidents has fallen to 54. The fatal accidents per 100,000 population rate was 1.09. The rate has fallen to 0.09. Again, declines of over 90 percent.
Meanwhile, the number of guns per capita in 1967 was about 1 gun per 2 persons. Today, the figure has risen to over 1 gun per person.[8]
Constitutional law and statutory precedents
HB12-1270 compares itself to a certain type of historic law.
SECTION 1. Legislative declaration. (1) The general assembly finds and declares that:
(a) Beginning in the 1830s, U.S. jurisdictions enacted surety laws that required certain firearm owners to post a surety bond that would be forfeited if the firearm owner failed to keep the peace;
(b) Historical surety laws did not prohibit anyone from possessing or carrying arms but incentivized responsible firearm possession by requiring a surety that the owner would forfeit in the event that the owner breached the peace;
(c) At least ten U.S. jurisdictions enacted similar, if not identical, surety laws during the nineteenth century; and
(d) The historical surety laws are analogous to modern liability insurance that does not prohibit firearm ownership or use.
The historic Surety-of-the-Peace statutes from the nineteenth century required a firearms carrier to post a bond for good behavior only after a court found that he had been threatening to breach the peace.
As the U.S. Supreme Court explained, the statutes “typically targeted only those threatening to do harm.” “[T]he surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of ‘reasonable cause to fear an injury, or breach of the peace.’”[9]
In contrast, HB12-1270 imposes its burdens on every gun owner. This is the opposite of the fault-based surety system.
My father, Jerry Kopel, a liberal by any definition of the word who served 11 terms in the House, supported the Fourth Amendment. He and others like him opposed Fourth Amendment infringements far milder than HB24-1270, which allows the police to demand “Show me your papers” to anyone, anytime, anywhere, even though normal people do not carry around their homeowner’s/renter’s insurance policies.
He and others like him also strongly favored consumer protection. For example, he was the prime sponsor of the Uniform Consumer Credit Code, having made the issue the key theme of his 1970 campaign. They certainly did not support weaponizing the Insurance Code against consumers, especially not weaponizing the Insurance Code against poor people, nor Insurance Code weaponization that does nothing to improve insurance.
Even more so when the leading victims will be people of color and poor people.
Neither liberal nor progressive, HB24-1270 is reminiscent of Jim Crow’s illiberalism.
[1] “A resident of Colorado who owns a firearm shall obtain and continuously maintain in full force and effect homeowners, renters, or other liability insurance policy.” proposed c.rs. § 18-12-116(1)(a).
[2] “(b) For the purposes of this section, an insurance policy declarations page provided to a firearm owner by an insurer that describes coverage that complies with the requirements of this section is evidence of a policy.”
[3] D.C. Council Holds Hearing on Gun Owner Insurance Proposal, Insurance Journal, May 17, 2013, https://www.insurancejournal.com/news/east/2013/05/17/292505.htm; Hearing on B. 20-170, The Firearm Insurance Amendment Act of 2013 Before the Comm. on Business, Consumer, and Regulatory Affairs, 2013 Council 3 (D.C. 2013) (testimony of Chester A. McPherson, Deputy Comm’r of the Department of Insurance, Securities, and Banking).
[4] United States v. Kras, 409 U.S. 434 (1973).
[5] https://data.bls.gov/cgi-bin/cpicalc.pl?cost1=50&year1=197301&year2=202402. Calculated from Jan. 1973, when Kras was decided, through Feb. 2024.
[6] The standard filing fee in county court for matters involving under $1,000 is $85. C.R.S. § 13-32-101(1)(c)(lII.5)(A).
[7] Kras , at 645-46 (Marshall, J., dissenting) (emphasis added).
[8] Sources for the national table data: Gun supply figures through 1994 are from Gary Kleck, Targeting Guns 96-97 (1997) (providing citations for all the data). Additions to the gun supply from 1995 through 2018 are from the 2020 edition of ATF’s Firearms Commerce in the United States ex. 1-3, plus the 2018 ATF Annual Firearms Manufacturing and Export Report. National population from 2010-19 from Census Bureau, Annual Estimates of the Resident Population for the United States, States, and Puerto Rico: April 1, 2010 to July 1, 2019 (2019). Fatal gun accident data are from Centers for Disease Control, Compressed Mortality File, http://wonder.cdc.gov/mortSQL.html (run query), CDC National Vital Statistics Reports, Vol. 69, No. 13, tbl. 6 at 38, (Jan. 12, 2021), CDC National Vital Statistics Reports, Vol. 68, No. 9, tbl. 6 at 35, (June 24, 2019), and Kleck, Targeting Guns 323-24. Population age 0-14 for 2000-09 from Census Bureau, Annual Estimates of the Resident Population by Sex and Five-Year Age Groups, 2010 version, and for 2010-19 from Census Bureau, Annual Estimates of the Resident Population for Selected Age Groups by Sex for the United States: April 1, 2010 to July 1, 2019.
[9] New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 55-56 (2022).