The Colorado Supreme Court on Tuesday decided that a sheriff’s deputy did not embezzle public property by purchasing seized firearms in the department’s possession, but that he did commit official misconduct.

William Steven Berry was a Lake County sheriff’s deputy in 2013 when he responded to a domestic violence incident in a home. The department confiscated four firearms and stored them in an evidence locker at the sheriff’s office. After the case reached a resolution, the district attorney instructed the department to “release or destroy” the weapons.

The owner of the firearms was an undocumented immigrant who was deported after the domestic violence case. Therefore, returning the weapons to him was not possible. The other party to the case was also undocumented, and departmental policy forbade the release of firearms in that circumstance.

When Berry saw the victim, he asked her if he could buy the four guns for $500 in lieu of the department destroying them. When she inquired if it was legal, Berry responded, “I am a representative of the law. If I come to you with this offer, it is because I can do it, because it is legal.” They completed the transaction and, while it is unclear how Berry got ahold of the guns, he gained possession. Berry gave one gun away, tried to sell a second, and kept two.

For his actions, a jury convicted him of embezzlement of public property and first-degree official misconduct.

“We conclude that because the firearms were not public property, Berry’s actions did not violate the statutory prohibition against embezzlement of public property,” wrote Justice Melissa Hart in the opinion.

Pointing out that there is no definition of “public property” in the statute relating to embezzlement, Hart concluded that it constitutes “something owned by the city, town, or state.” She wrote that the sheriff’s office possessed, but did not own the property. Because its owner was a private individual, Berry did not embezzle public property.

To the question of whether Berry committed misconduct by using his official position to arrange for sale of the firearms, the court decided that he could only obtain the weapons by virtue of his public office.

“We conclude,” wrote Hart, “that the prohibition on official misconduct should be broadly construed to include circumstances, like those here, in which an official uses the opportunities presented by his or her office to engage in improper conduct.”

Justice Carlos A. Samour Jr. dissented in part, believing that the court’s majority had defined public property too narrowly. Consequently, he asked how a government entity was supposed to prove that it “owns” property.

“Must the state have title or some other form of official ownership paperwork? What if it’s property the state owns, but as to which no title or ownership paperwork exists or can be obtained?” he asked. “What if it’s something leased by the state? What if it’s something for which the state is currently making payments? … Does the state actually own any money when it holds such money in trust for taxpayers or when it has been directed by the legislature to spend that money in a particular fashion or for the benefit of specific entities or individuals?”

Samour mentioned the hypothetical example of two public employees, one of whom uses a city-owned truck to run personal errands while the other uses a city-leased vehicle for the same purpose.

“Under the majority’s rationale, the former employee can be charged with embezzlement, but the latter employee cannot,” he said.

The case is The People of the State of Colorado v. William Steven Berry.