Debias v. Zeman

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 15, 1999
• Docket: 98-1441
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 15 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

In re:

ALFRED SAMUEL DEBIAS,

Debtor. No. 98-1441 (D.C. No. 98-K-1607) (D. Colo.) ALFRED SAMUEL DEBIAS,

Appellant,

v.

SALLY J. ZEMAN,

Appellee.

ORDER AND JUDGMENT *

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Debtor filed for relief under Chapter 13 of the Bankruptcy Code. In his

Chapter 13 plan, debtor claimed an exemption for his handgun. The trustee

objected to the exemption, arguing that the handgun was not an exempt household

good. The bankruptcy court agreed and denied the exemption. The bankruptcy

court approved the Chapter 13 plan after debtor amended the plan to include the

handgun as a non-exempt item in the event his appeal of the bankruptcy court’s

denial of the exemption failed.

Debtor appealed the bankruptcy court ruling to the district court. The

district court adopted the bankruptcy court’s decision as its own and denied the

appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 158(d). 1 “In reviewing

a district court’s decision affirming the decision of a bankruptcy court, this court

applies the same standards of review which governed the district court. We thus

1 Although debtor appealed from the bankruptcy court order denying confirmation of his plan, which is not a final appealable order, see Simons v. FDIC (In re Simons) , 908 F.2d 643, 645 (10th Cir. 1990), the bankruptcy court subsequently confirmed the plan, and, consequently, the notice of appeal became effective as to the final order confirming the plan. See Spears v. United States Trustee , 26 F.3d 1023, 1024-25 (10th Cir. 1994).

-2- review the bankruptcy court’s legal conclusions de novo, without deferring to the

district court.” Foster v. Hill (In re Foster), 188 F.3d 1259, 1264 (10th Cir.

1999) (quotation and citation omitted).

Colorado has “opted-out” of the exemption provisions contained in

11 U.S.C. § 522(d), and exemptions are determined according to state law.

See Colo. Rev. Stat. § 13-54-107 (1999). Colorado law exempts “household

goods owned and used by the debtor and used by his dependents to the extent of

fifteen hundred dollars in value.” Colo. Rev. Stat. § 13-54-102(e) (1999).

Household goods are defined by way of illustration as “household furniture,

furnishings, dishes, utensils, cutlery, tableware, napery, pictures, prints,

appliances, stoves, beds and bedding, freezers, refrigerators, washing machines,

television sets, radio sets, musical instruments, bicycles, sewing machines, and

toys.” Id. §13-54-101(4).

Debtor maintains that his handgun is exempt under Colorado law as

a household good because he uses it in his home to protect himself. In support

of this position, he cites Colorado laws authorizing the use of firearms for

protection in homes, and the Colorado constitutional right to bear arms. The fact

that Colorado statutory and constitutional law may establish the right to own and

possess a handgun for personal protection is not, however, instructive on the

question of whether a handgun is necessary for a fresh start in bankruptcy and,

-3- therefore, should be exempt from the bankruptcy estate. Debtor presents novel

arguments, but they fail for lack of support in Colorado law.

The purpose of the Bankruptcy Code, and, therefore, the Colorado

exemption statutes, is to provide the debtor with necessities for a fresh start,

including discharge of his debts, “the tools of his trade or profession, some

minimal food and clothing, the means to provide shelter for he and his family, and

some household goods.” In re Keyworth, 47 B.R. 966, 974-75 (D. Colo. 1985)

(quotation omitted). A handgun, even one used for protection in the home, is

simply not akin to any of the items listed as illustrations in the exemption statutes.

Further, debtor has offered no authority, and we have found none, indicating that

a handgun fits within the illustrative list of § 13-54-101(4) as a household good

necessary for a fresh start. In fact, the previous version of the statute did include

firearms in the illustrative list of exempt household goods. See Colo. Rev. Stat.

Ann. § 13-54-101 (West 1997), Historical and Statutory Notes. The fact that the

Colorado Legislature repealed and reenacted the statute in 1981, specifically

omitting firearms from the illustrative list of household goods, indicates the

state’s intent that they not be exempt under § 13-54-102(1)(e). Exempting

debtor’s handgun as a household good under Colorado law is something the

Colorado Legislature must do, just as it removed firearms from the illustrative list

-4- of exempt goods in 1981. It is the legislature, not the courts, that must amend the

statute to, once again, include firearms as exempt household goods.

The one instance in which a court has considered whether a firearm was

exempt is not instructive on the facts of this case. In In re Greenlee, 61 B.R. 257,

258 (Bankr. D. Colo. 1986), the bankruptcy court found that the debtor’s guns

were not exempt under Colorado law because the guns were primarily recreational

items. Although the debtor used the guns for hunting game and providing food

for his family, there was no evidence that hunting was essential to support and

feed the debtor and his family. The case before us does not involve recreational

use of a firearm, and In re Greenlee did not speak to firearms used for protection

in the home.

We hold that a firearm does not fall within the ambit of intended exempt

items under § 13-54-102(e). The relief that debtor seeks, to have firearms used

by a debtor in his home for protection exempted from attachment or execution

under Colorado law, must be had in the legislature. We AFFIRM the district

court’s denial of the appeal from the bankruptcy court’s decision.

Entered for the Court

Bobby R. Baldock Circuit Judge

-5-