The Legality of Suppressors in Colorado

The Legal Status of Suppressors under Colorado Law

Possession and ownership of firearms suppressors are not prohibited by Colorado law. While possession of suppressors is the same as possessing other firearms under Colorado law, the sale and manufacture of suppressors falls under both state and federal supervision. Thus, conspiracies to unlawfully manufacture, sell, and possess firearms suppressors are covered by both state criminal law and federal criminal law, such as 18 U.S.C. § 922(a)(6) related to false statements and concerning firearms, 18 U.S.C. § 923(a) related to licenses for dealing in firearms, 18 U.S.C. § 924(a)(1)(A) related to false statements with respect to firearms, 18 U.S.C. § 924(c)(2) related to penalties for use of firearms destructive devices or explosives, 18 U.S.C.S. § 924(d)(1) related to forfeiture , 18 U.S.C.S. § 924(e) related to penalties for repeat violent felony offenders, firearms crimes, or drug crimes, cf. 26 U.S.C. § 5861(d) related to manufacture of firearms, 26 U.S.C.S. § 5861(h) related to transfer of firearms, 26 U.S.C.S. § 5861(i) related to possession of firearms, and 18 U.S.C.S. § 5861(m) related to affixing of serial number to firearms. However, Colorado does have two relevant statutes on the subject when interpreting the law. While a violation of section 1391 is a misdemeanor, a violation of section 18-12-102 is a felony. The context of this crime is that possession of a firearm suppressor is not prohibited, but manufacturing one or possession in such a way that it can be easily modified to a fully automatic is illegal.

How to Acquire a Suppressor Legally

With the passage of SB 13-196, Silencers are legal in Colorado, What do you need to do to acquire one legally?
First, you need a federal Firearms Owner’s Identification card (FOID). Assuming you own firearms and purchase them legally, you have a Federal FOID card. Second, you need to find out what kind of firearm you want to use a suppressor on. Third, you need to know whether the firearm is covered by the National Firearms Act of 1934 (NFA). Around 1934, Congress passed the NFA which required those maintaining certain items to pay a tax or register the item with the Government. The NFA piles all sorts of things into the same barrel (pun intended).
The list included machine guns, short barreled rifles/shotguns and other miscellaneous items. This collection is contained in 26 USC § 5845. The items are defined as follows:

(1) The term "firearm" means (A) any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive. . . .
(3) Convertible machine gun. The term "convertible machine gun" means a weapon which is not a machine gun but which may readily be restored to shooting capability by the attachment of a ***suppressor ***.

So there you have it. You cannot have a suppressor unless the suppressor itself is attached to a firearm (like a rifle or shotgun). However, if you already have the suppressor, it can easily be attached to a firearm not covered by the NFA. Therein lies the trick for those wishing to have a free-standing suppressor about the house – you must have a convertible firearm to go with the suppressor. (We’re looking at you Thompson Center Contender users!)
Now, what do you have to do to get a NFA firearm or a suppressor?
Here’s the Process:

Find a federally licensed dealer that sells or can order NFA firearms and suppressors.
Make sure you will be eligible for a federal FOID card and be free of any restrictions to possess a firearm such as a restraining order or felony conviction.
Ask your dealer for the appropriate paperwork.
Fill out ATF Form 4 (Engraving requirement) and contact a certified engraver to comply with the new law. Have the manufacturer engrave a serial number onto the suppressor with your name, city, state and country.
Fingerprints – you will need to be fingerprinted and have at least two witnesses that are over the age of 18.
Submit the fingerprints, two passport photos and appropriate paperwork to either the BATFE or the local sheriff for signing.
Wait for the NFA tax stamp – likely takes anywhere from 4-6 months.
When you receive the NFA tax stamp back, you will be given possession of the suppressor to take home.

Now, you have to go back to your dealer to take physical possess of the suppressor, but before you do – make sure you knock the dust off that old .22 rifle your grandmother gave you for Christmas. You know that thing will be sweet with the new suppressor!

Prohibitions/Limitations

Suppressors are legal to own in Colorado, but restrictions do apply. The first are your run of the mill gun laws that apply to suppressors, such as prohibition on felons using them, or people using them with the intent to commit a crime. Additionally, these restrictions and limitations on suppressors and the penalties for unlawful use of a suppressor are as follows:

A suppressor cannot be used to commit a crime (class 6 felony).
A suppressor cannot be used to aid in the escape of a felon (class 6 felony).
A suppressor cannot be used against a law enforcement officer (class 4 felony, unless deadly force is used in which case it is a class 1 felony).
A suppressor cannot be used on a public street or highway. Violation is a class 1 misdemeanor.
A suppressor cannot be possessed in any building or facility used by the public, such as a school, daycare, government building, etc. Violations are considered a class 1 misdemeanor.
Possession of a machine gun is a class 4 felony, or if the defendant was prohibited from possessing firearms, a class 3 felony. A machine gun is defined as a weapon that automatically fires more than one shot by a single function of the trigger. It does not matter if the gun was manufactured to fire automatic or semi-automatic; the mere possession of the device is a crime.
A suppressor cannot be removed from the weapon without the use of specific tools (Screw-On Suppressor). A violation is a class 6 felony.

Legitimate Advantages of Possessing a Suppressor

First and foremost, it’s the law. While this may seem like an obvious point, it’s important to bear in mind no other reason is more important than the simple fact that using a suppressor is the law. It’s a law that allows a person to own a firearm whose report has been reduced to a level that is suitable for hearing safe use without the need for hearing protection. Firearms are not toys; it’s not a gadget that one obtains for the novelty of doing something cool or displaying it to others; it’s a firearm. With this in mind, there has not been one law-abiding citizen stopped from acquiring a suppressor for their firearm for any other reason than having the capacity to do so legally.
Up to this point in time, there has not been a single reported instance of a suppressor being used to commit a crime in the State of Colorado, including 2012.
There is a great deal of misinformation floating around regarding the use of suppressors and the lawfulness of your position should you be using one outside of your home when stopped. Respectfully stated, this is a product of pure fiction with a hint of cinema. It’s not customary for a police officer, let alone a supervisor, to arrest someone for using a suppressor as the reason for arrest, generally. It is nothing short of a prayer that someone who finds themselves in this situation would have good sense enough not to engage in a debate with a person who occupies a position of authority over them but this does not reflect the reality in which we live. As we know; you have a constitutional right to remain silent.
It is fortunate, however, that not only do the overwhelming majority of the men and women who serve within a law enforcement capacity in Colorado have such a phenomenal working knowledge of Colorado Law but additionally, they have also been through the extensive training involved with using a suppressor on their own weapons . This should not be forgotten when you find yourself in this situation. This most often results in the immediate withholding of arrest and the citation of the lawful use of the suppressor on your weapon.
A suppressor helps those in the field, not just those on the range. Those in law enforcement know where the ground is being traveled at all times. Anyone who has ever been called upon to make difficult decisions under enormous pressure understands this better than anyone. A suppressor keeps the ground noise to a minimum allowing you to maintain that edge. This can be lifesaving.
Discretion is the better part of valor. As mentioned above, virtually everyone in law enforcement is knowledgeable of the suppressors’ lawful function. Quite simply, put it on the weapon, call it good and move on. The idea that one could "make a name" for them merely by enforcing the rule is beyond naïve; it is idiotic. This would be no less the case should you fail to call it in and it was found later. There is no "scoreboard." Unless the officer is specifically requested by the courts, there is very little he can document about his activities unless there is some type of report that reverses the responsibility solely on his or her shoulders. They usually don’t take this from the standpoint of heroism or notoriety. They have a job to do and they know it and they do it well.
The use of a suppressor reduces the amount of noise generated on a shooting range or while hunting. It also reduces the ambient noise resulting in a more pleasant experience for your fellow shooters or hunters. And since the reduction of noise is significant, it enables one with limited hearing to still enjoy the activity, safely. Primarily, however, the legal reasons for purchasing and using a suppressor far outweigh anything else that we can imagine.

Comparison to Other States

When it comes to our sneaky "mini-mufflers," Colorado’s suppressor laws fall into the sweet spot. Residents are free to possess, purchase and even manufacture suppressors. But the question now comes: what about the neighbor states? Can you cross state lines with a suppressor in hopes of shooting somewhere else just for fun? And what about out-of-state residents – how would they be able to shoot here? It’s time to compare, contrast and complicate!
The following states are "clean" when it comes to laws on the books regarding suppressors and carry requirements: I put "clean" in quotes because this doesn’t mean that the state does not have laws concerning suppressors or require permits. It just means that these states have already taken action, one way or another, to bring about a positive and profoundly beneficial regulation of suppressors. Texas and New Mexico are enjoying the accessory status of suppressors and do not require either a permit or registration. Utah, who also enjoyed this cleaning, just couldn’t keep their opinions out of the recent Utah Wildlife Resources Committee (UWRC) meeting, where they blocked an effort that would have enabled the legal use of suppressors in Big Game hunting. Interestingly, Utah has permissively allowed the use of suppressors in hunting since 2012.
Arizona is unique in that it has required gun permits since 1933 for the possession of a firearm with a suppressor attached. Arizona requires a permit only for the suppressor and provides constitutional protections of the Second Amendment, which was recently bolstered when its Supreme Court ruled out-of-state tariffs on suppressors were unconstitutional.
Arkansas also requires a permit, but only for machine guns, short-barrel rifles and sub-machine guns. Delaware, Georgia, Louisiana and North Dakota don’t require permits for suppressors, but they do for automatic and short-barreled firearms. Oklahoma requires permits for anything other than shot-guns, rifles, muzzle-loaders and pistols. Wyoming prohibits, in fact, the sale of suppressors in the states. The six states do not share in the "clean" classification, because there are regulations in place for automatic weapons, short-barrel weapons or machine guns and also short barreled shotguns.
Finally, South Dakota restricts the use of suppressors only if the purpose is to avoid detection.

Current Legislative Trends

Recently, as of June 2018, there has been a slight shift in Colorado law concerning the legality of "machine guns" and silencers. There are provisions in the Colorado Code of Criminal Procedure concerning what is now referred to as a "volatile" weapon. Under C.R.S. 18-12-103(4), it is illegal in Colorado to possess a "machine gun," "sawed-off" shotgun, "silencer," "zip gun," or weapon easily concealed as a firearm.
However, unlike similar provisions under federal law, Colorado Case law and statute have differentiated between "silencers" and "firearm silencers." See, e.g., the "firearm silencer" statute under C.R.S. 18-12-107.5. This differentiation has resulted in an allowance, albeit a small one, for persons to legally possess a "firearm silencer" with a valid tax stamp or permit. For clarification, "firearm" and "firearm silencer" are defined under 26 U.S.C.A. § 5845. 18-12-107.5(1) defines 18-12-107.5(2)-(3) as a "[firearm] capable of being suppressed or silenced."
Notwithstanding this narrow allowance in Colorado statutes, the greatest disagreement between Colorado law on "silencers" and federal regulations may be in the scope. Where the National Firearms Act (NFA) prevails and requires registration and tax stamps for "suppressors," Colorado law takes a far more punitive stance. Under C.R.S. 18-12-107.5(5), possession of an NFA-controlled weapon, or "firearm silencer," is a Class 4 Felony.
Because this distinction has been controversial in Colorado courts, it is worth noting the following opinions. In People v. Hodge, Denver Co. Dist. Ct. No. 2006CR1344, 2007 WL 1366864, *1, the defendant possessed a marijuana grow operation hidden behind a wall in his basement where he was raised. People v. Hodge at *1. In the same basement area, the police found a .22 caliber rifle and a . 22 caliber pistol with no apparent markings or serial numbers, both of which qualified as "firearm silencers" under Colorado law. Id. The court, however, determined that the legislative scope of "firearm silencer," qualified only on firearms whose primary purpose is to "suppress or silence." Id.; See also 18-12-107.5(3).
Lastly, there was an interesting opinion issued by the Colorado Supreme Court, People v. Dumler. See 31 P.3d 187 (Colo. 2001). There, the police apprehended the defendant for driving with the window down and a rifle resting against the passenger-side window. Id. at 190. In arresting the defendant and searching his vehicle, the police discovered a .45 caliber rifle fitted with a "silencer." Id. The state charged the defendant with, among other things, possession of an "unregistered firearm silencer." Id. After a writ of certiorari, the Court determined that "silencer" mentioned under C.R.S. 18-12-103(4), encompassed, at the time, only weapons designed to muffle the report of a firearm. Id. at 193. In holding so, the Court expanded the scope of the Colorado definition of silencer beyond that under the National Firearms Act (NFA) where the latter only pertains to firearms. Id. at 195.
While the Colorado General Assembly’s intent appears well-formed, that intent has had some trouble realizing itself in the state’s case law. This is testimony to an issue with nugatory legislation. However, assuming that the legislature meant to restrict the possession of silencers to only those that qualify under the NFA, it lacks the munitions to do so effectively. This has resulted in Colorado case law expanding the definition of "firearm silencer" beyond that intended by the General Assembly, and placing in jeopardy potentially thousands of "firearm silencers" that are mere suppressors.