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Petition And Brief Outlining Errors For This Appeal
THORNTON MUNICIPAL COURT, COUNTY OF ADAMS, STATE OF COLORADO
Case No. CR-2002-006386-MS
(ticket no. 6006970)
PETITION AND BRIEF OUTLINING ERRORS FOR THIS APPEAL
Aggrieved Defendant, Richard Stanley, hereinafter known
as Rick Stanley, without assistance of counsel, submits this Petition
and Brief Outlining Errors for This Appeal to the pleading standard
described in Haines v. Kerner, 404 U.S. 519-421 (See Hall v Bellmon 935
F.2d 1106 (10th Cir. 06/03/1991) and relies on the Court to explain any
deficiency concerning Defendant's pleadings as outlined in Platsky v.
C.I.A. 953 F.2d. 25. Additionally, pro se litigants are to be given
reasonable opportunity to remedy the defects in their pleadings.
Reynoldson v Shillinger 907F .2d 124, 126 (10th Cir. 1990); See also
Jaxon v Circle K. Corp. 773 F.2d 1138, 1140 (10th Cir. 1985) (1).
Issues Presented for Review
I. Whether the defendant, Rick Stanley, was denied
his constitutionally protected and guaranteed right in contravention to
the protected and guaranteed right to bear arms in defense of person and
property, in the Colorado Constitution Article 2, Section 13. Rick
Stanley is not charged with carrying a weapon for any illegal purpose,
simply with carrying a weapon. The arrest subsequent charge of openly
carrying a deadly weapon violating Thornton ordinance (TRMC38-237)
prohibiting persons from possessing or carrying a deadly weapon of their
own property, and conviction, all violate Rick Stanley's constitutional
rights with false arrest, falsely charged, and falsely convicted under
the color of law.
II. Whether the arrest, charge and conviction against
Rick Stanley, also violate his rights under Colorado Constitution Art.
2, Sec. 3, by interfering with his natural, essential, and inalienable
right to self defense, under the color of law.
Opinion & Jurisdiction
A copy of the Thornton Municipal decision/order in case No.
CR-2002-0006386-MS from the City of Thornton, Colorado is contained in
the Appendix as Exhibit 1.
Statement of the Case
On September 7, 2002, the City Attorney's office of City of Thornton
charged Rick Stanley with unlawful carrying of a dangerous weapon, a
misdemeanor, in violation of Thornton ordinance (TRMC 38-237)
prohibiting persons from possessing or carrying a deadly weapon off of
their own property. Mr. Stanley was found guilty after a January 29,
2003, trial, Case. No. CR-2002-0006386-MS.
Mr. Stanley never disputed that he was openly carrying the weapon at the
Thornton Harvest Festival, nor did Mr. Stanley use the weapon for any
criminal purpose. Mr. Stanley was cooperative throughout the arrest,
but told the arresting officers that he was exercising his
constitutional right to carry a weapon openly in Thornton for purposes
of self protection. The court sentenced Mr. Stanley to 3 months in
county jail, and $520.00 fine. The court imposed a $1,500.00 appeal
bond upon Mr. Stanley.
Summary of Argument
Colorado's Constitution guarantees the right of all persons to keep and
bear arms in defense of home, person, or property. Thornton's municipal
ordinance purportedly bans the bearing of arms off of one's own
property, except under very narrow - not here applicable - exceptions.
The Colorado Constitution provides that the right of any person to keep
and bear arms for defensive purposes shall not be called in question.
That is an original provision of the Constitution and the meaning of
shall not be called in question controls the proper disposition of this
case. Although the Colorado Court of Appeals recently looked at this
ordinance in conjunction with a civil declaratory judgment action, that
Court did not hear or consider Mr. Stanley's arguments or the facts of
his case, so that decision is not directly on point regarding concealed
carry, but the decision is directly on point regarding open carry, and
in fact, says "the ordinance is overbroad and therefore
unconstitutional."
The Colorado Constitution also provides that the right to self defense
is natural, essential, and inalienable. The right to bear arms in self
defense is nothing more than the extension of the right to self defense
to a practical means of exercising the right. Thornton cannot deny, or
call in question, either right.
Pursuant to the United States Constitution, Amendment II, Thornton is
prohibited from infringing the individual right to keep and bear arms.
Mr. Stanley challenges (i.e. calls in question) TRMC 38-237 as being
unconstitutional on its face and as applied to him, insofar as the
ordinance purports to criminalize the open carrying of a weapon in
Thornton, even when carried for self - defense purposes.
Section H of the Home Rule section of the Colorado Constitution
prohibits the Denver ordinance TRMC 38-237 by preventing a
constitutional right of a Colorado citizen, before the Home Rule
addition was put in place.
ARGUMENT
I. Thornton Revised Municipal Code 38-237 violates Colorado
Constitution, Art. sec. 3.
Colorado's Constitution recognizes certain individual rights, including:
"All persons have certain natural, essential and inalienable rights,
among which may be reckoned the rights of enjoying and defending their
lives and liberties; of acquiring and protecting property; and of
seeking and obtaining their safety and happiness." Colorado
Constitution, Art. II, sec. 3. Any law - or municipal ordinance -
which violates that provision is null and void. TRMC 38-237 does
violate that provision by denying the meaningful exercise of the right
of Rick Stanley and any other person to defend their life and liberty by
carrying a weapon for general defensive purposes. Mr. Stanley cannot
know in advance when he might need a weapon to defend himself in
Thornton, He can't go home to Denver to get his gun if threatened by a
carjacker or mugger in Thornton. He can't call time out when faced with
a life-threatening situation. Thornton can offer no justification for
depriving Mr. Stanley of his right to self defense. Thornton cannot
avoid or evade the limitations of the state constitution.
II. The ordinance violates Colorado Constitution, Art.
II, sec 13.
The right to keep and bear arms [unconcealed] arms for defensive
purposes throughout Colorado is constitutionally protected and cannot be
denied or disparaged or prohibited or called in question, and any law
which contradicts this principle is in conflict. See Colo. Const. Art.
II, sec. 13.
Thornton prohibits any person from openly possessing or carrying any
firearm anywhere in Thornton if they are outside their home, car, or
business, no matter what the purpose of the weapon, whether for defense
or not (unless they can show a direct and immediate threat to their
safety) TRMC 38-237.
Conclusion: TRMC 38-237 conflicts with the Colorado Constitution
because it categorically denies the constitutional right to keep and
bear arms for self defense of any person not in his car or business or
on his property.
A constitutional provision overrides and invalidates any statutory
provision with which it is in conflict. TRMC 38-237 conflicts with Colo.
Const. Art. II, sec. 13.
Conclusion: Colorado Constitution Art. II, sec. 13, overrides TRMC
38-237, rendering it invalid.
The Colorado Constitution provides:
The right of no person to keep and bear arms in defense of his home,
person, and property, or in the aid of civil power when thereto legally
summoned, shall be called in question; but nothing herein contained
shall be construed to justify the practice of carrying concealed
weapons. Colo. Const. Art. 11, Sect 13 (2000).
The Meaning of Call In Question
The phrase called in question carried a very plain meaning in the
Nineteenth Century, at the time (1876) when the Colorado Constitution
was drafted and ratified. This was phrase heavily used in court
decisions of the period, typically referring to a challenge to the
validity or authenticity of a legal proceeding or a legal right or
result.
For instance, a person would challenge a land patent by calling in
question the validity of proceedings upon which a land patent was
founded. See Smelting Co. v. Kemp, 104 U.S. 636, 648 (1881); McCreery
v. Haskell, 119 U.S. 327, 332 (1886). One could not call in question
the validity of a title resulting from a deed one granted. Moore v.
Crawford, 130 U.S. 122, 133 (1889). The government might call in
question the validity of an entry (upon a homestead). Lane v. Hoglund,
244 U.S. 174, 181 (1917).
A habeas corpus proceeding calls in question the jurisdiction of the
court whose judgment is challenged. Knewel v. Egan, 268 U.S. 442, 445
(1925). A party challenging the constitutionality of a statute calls in
question the validity of the statute. Chemung Canal Bank v. Lowery, 93
U.S. 72, 76 (1876).
A tribunal which acts under the law of Congress, and derives all of its
authority from it, cannot call in question the validity of its
provisions. United States v. Ferreira, 54 U.S. 40, 48 (1851). After
the United States accepted land from the state, neither North Carolina
nor one taking land under its authority could call in question a
property location previously determined by the state. John Doe v.
Mahana, 62 U.S. 276 (1858).
One may not call in question the decision in a case, where the case has
been relied upon for more than seventeen years, where wills have been
made and estates settled, relying on the principles of the case.
Jackson against Chew, 25 U.S. 153, 166-167 (1827). Only the government
itself can (has standing to) call in question its own prior survey.
Edwards' Lessee against Darby, 25 U.S. 206, 211 (1827).
The Supreme Court cannot call in question a sovereign power. La
Nereyda, 21 U.S. 108 (1823). The Supreme Court should not call in
question the jurisdiction of a court where it has previously recognized
that jurisdiction. Penhallow v. Doane's Administrators, 3 U.S. 54, 113
(1795). Appellants have called in question the jurisdiction of the
territorial courts. City of Panama, 101 U.S. 453 (1879). Plaintiff in
his assignments of error call(s) in question the rulings of the Circuit
Court in admitting evidence. Howard v. Railway Co., 101 U.S. 837
(1879).
Under these circumstances, an individual cannot (lacks standing to) call
in question the validity of the proceedings (effecting an immediate
transfer of title). Schulenberg v. Harriman, 88 U.S. 44, 62 (1874).
Colorado undoubtedly borrowed its constitutional language from
traditional usage in other states. For instance Pennsylvania's
Constitution provided, at the time the Bill of Rights was being
ratified: "The right of the citizens to bear arms in defense of
themselves and the state shall not be questioned." PA. CONST. Art. 121
(1790). Kentucky had a similar provision: "That the right of the
citizens to bear arms in defense of themselves and the state, shall not
be questioned." Ky. Const. Art. 10, P23 (1792). Thirty years later,
Missouri used similar language: "That the people have the right
peaceable to assemble for their common good, and to apply to those
vested with the powers of government for redress of grievances by
petition or remonstrance; and that their right to bear arms in defense
of themselves and of the state cannot be questioned. MO. CONST. Art
XIII, 3 (1820).
The Colorado Court of Appeals has recently looked at various provisions
of Denver's gun regulating ordinance, in response to a civil declaratory
judgment action. See Trinen v. Denver, 2002 Colo. App. Lexis 164 (Case
No. 00CA2126). Under the facts and arguments presented in that case,
that Court held that DRMC 38-117(b) was not constitutionally overbroad.
Mr. Stanley presents different facts and different arguments in the
context of his criminal prosecution.
The Court of Appeals did not analyze the language "call in question."
No reported Colorado case does analyze that language. The majority in
Trinen did not address the case of People v. Nakamura. The majority
opinion in Trinen did not address the problem raised by Stanley - that
the constitutional right to [carry a weapon] self defense is negated if
one encounters a deadly threat while unarmed. The majority opinion in
Trinen did not look at what the Colorado Supreme Court has said makes a
regulation of the right to bear arms constitutional - that it does not
in some significant way negate the right. The majority ignored the
specific problem discussed by Judge Roy in his dissent - what use is the
right to carry a weapon if it can only be carried when perceiving an
immediate and direct threat? Trinen v. Denver, 2002 Colo. App. Lexis
164 (Case no. 0CA2126) (Roy, J., dissenting). Violent criminals don't
often give their victims advance warning and allow them to go home and
get their weapons. That issue was directly addressed by the Colorado
Supreme Court in Nakamura, but ignored by the majority in Trinen. See
the discussion of Nakamura, below.
The plain meaning of call in question is clear: it implies a challenge
of authority or right or a question or a denial of validity. Thornton's
municipal ordinance, TRMC 38-237 effectively denies the right to keep
and bear arms in Thornton for defensive purposes, unless a person is on
their own property. TRMC 38-237 calls in question a constitutional
right, and is, therefore, invalid.
TRMC 38-237 Is Not Within Legitimate Police Power
The Colorado Supreme Court has held that some regulation of weapons is
constitutionally permitted, but some is not. Robertson v. City and
County of Denver, 874 P.2d 325 (Colo. 1994) (some regulation or
limitation of assault weapons is permitted under the police powers of
the state); and city of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972)
(Lakewood ban on weapons outside the home was unconstitutional because
it did not provide for the possession of a weapon outside the home for
purposes of self -defense).
The ordinance called in question in this case categorically, on its
face, prohibits the carrying of firearms outside the home by persons
other than law enforcement officers in the performance of their duties.
Section 38-237. As such, Mr. Stanley is prohibited from carrying a
weapon even for self - protection anywhere in Thornton - unless he can
show it was for defense of home, person, or property and in his car,
home, or business - when there is a direct and immediate threat thereto.
Sec. 38-237. There are no exceptions for self-defense of one's own
property. And there is no allowance for the fact that a person with a
gun can't instantly get a gun for self defense purposes when there is a
direct and immediate threat perceived, or for the situation where a
person is threatened but not in his car, home or business.
Thus, this ordinance does not allow Mr. Stanley to carry or possess a
weapon for self-defense outside of his car, home or business. That was
the very problem the Supreme Court found with Lakewood's ordinance in
the Pillow case, even though Lakewood's ordinance in some ways went a
little further than Thornton's. Thorntons' ordinance conflicts with the
constitutional protection for bearing arms outside the home [or business
or car].
It is of no avail to argue that TRMC 38-237 is valid because it allows
for weapons to be used for self-defense when a direct and immediate
threat is perceived, if they are not in their automobile. See
generally, TRMC 38-237 (Affirmative Defenses). The ordinance "does not
and of course cannot, fix the day and hour when such occasion might
arise." People v. Nakamura, 99 Colo. 262, 265 (1936). And the threat
may not occur when one is in one's automobile. Thus, the ordinance
prevents practical employment of "the means of the enjoyment of the
constitutional right and guaranty." ld.
In Passing appropriate laws [to regulate the taking of game], the
legislature may not deprive persons of their constitutional right to
bear arms in defense of home, person or property. ld., at 264. Thornton
has done just that. The right to bear arms is meaningless if any person
is denied the right to possess arms for such protection. ld. The police
power of the state [or Thornton] cannot transcend the fundamental law
[the Constitution] and cannot be exercised in such manner as to
practically abrogate its provisions. ld., at 265. The police power
cannot be used to broadly stifle fundamental personal liberties.
Pillow, 501 P.2d at 745 (Colo. 1972). The right to keep and bear arms
is a fundamental personal liberty (deriving from the fundamental right
to life and the corollary right to self defense).
Mr. Stanley is not accused of carrying an illegal weapon; a weapon such
as those that the Supreme Court recognized in Robertson could be
regulated under the police power - but of carrying a weapon. He is not
a convicted felon, deprived of certain rights, and he is not charged as
being intoxicated while in possession of a weapon. The ordinance under
which Mr. Stanley is charged thus prohibits constitutionally protected
activity. The police power cannot be used to prohibit activities which
are constitutionally protected activity. The police power cannot be
used to prohibit activities which are constitutionally protected and
which cannot reasonably be classified as unlawful. City of Lakewood v.
Pillow 180 Colo. 20; 501 P.2d 744, 745 (1972).
TRMC 38-327 completely bans the open and unconcealed bearing of arms
even for self-protection for any person in Thornton if they are not on
or in their own property and not currently perceiving a direct and
immediate threat. That is incompatible with the broad constitutional
protections of Colorado Constitution Art. II, sec. 13, which obviously
reaches throughout the entire state of Colorado, including throughout
the City of Thornton. Until and unless the Constitution is changed, a
person may reasonably and lawfully exercise his right to carry a weapon
for self defense, even if not on his own property or in his own car.
There is an important distinction made in cases where courts have held
weapons regulations to be reasonable, versus cases where regulations
were struck down, and that is the distinguishing character of
permissible regulations: permissible regulations do not negate the
constitutional guarantee. Thornton's ordinance does.
Thornton's ordinance doesn't just reach persons carrying weapons for
criminal purposes. The ordinance also reaches persons like Richard
Stanley, who is not accused of being drunk, or of being a convicted
felon, or of using a gun for any illegal purpose. The ordinance on its
face prohibits Richard Stanley or anyone else from exercising their
right to keep and bear arms in defense of their person - unless they are
in their car or business or on their own property, and the threat to
them is direct and imminent. The ordinance allows Thornton to punish
Richard Stanley and the police to take off the streets unconcealed
weapons carried for the completely legitimate,
constitutionally-protected, purpose of self-protection.
Obviously, Thornton can be a dangerous place. Given that danger,
depriving law-abiding citizens of the means of self defense is hardly a
reasonable or legitimate exercise of the police power. The framers of
Colorado's Constitution undoubtedly recognized that Colorado could be a
dangerous place. That's why they guaranteed the unquestionable right to
bear arms.
This Court Must Determine The Constitutionality of TRMC 38-237, as
applied to Mr. Stanley.
An unconstitutional statute is null and void from its inception, and
confers no authority and no jurisdiction. Marbury v. Madison, 5 U.S.
137, 177-178 (1803). The ordinance does not exist.
Legal questions are for judges to decide. While it is true that courts
often say that statutes are presumed to be constitutional and the burden
is on a challenger to prove otherwise (proof beyond a reasonable doubt
if the right is not fundamental; if a fundamental right is shown to be
implicated, the state must show a compelling interest and a narrowly
tailored regulation) -- what does that really mean? Is a challenger
supposed to bring in witnesses to testify to meet an evidentiary burden
of proof - or is this a legal question for the court to decide?
Colorado judges are sworn to uphold the Constitutions of Colorado and
the United States. Can a judge ignore her responsibility when she
perceived the unconstitutionality of a statute, and allow it to be
enforced, even if a party were inadequate to point out its defects?
Violation of an oath to uphold the Constitution is perjury. Since this
court has taken an oath to uphold the United States and Colorado
Constitutions, this Court cannot ignore its responsibility or blindly
defer to the opinion of any other Court, but must decide for itself if
the ordinance is unconstitutional. As Chief Justice Marshall stated
some two centuries ago, "in a proper case, it is the duty of the court
to examine the constitutionality of a law:
It is emphatically the province and duty of the judicial department to
say what the law is.if two laws conflict with each other, the courts
must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and
constitution apply to a particular case, so that the court must either
decide the case conformably to the law, disregarding the constitution;
or conformable to the constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of
the very essence of judicial duty..
Those, then who controvert the principle that the constitution is to be
considered, in court, as a paramount law, are reduced to the necessity
of maintaining that courts must close their eyes on the constitution,
and see only the law.
From these, and many other selections which might be made, it is
apparent, that the framers of the constitution contemplated that
instrument, as a rule for the government of courts, as well as of
legislature.
Why otherwise does it direct judges to take an oath to support it?...How
immoral to impose it on them, if there were to be used as the
instruments, and the knowing instruments, for violating what they swear
to support?...
If such be the real state of things, this is worse than solemn mockery.
To prescribe, or to take this oath, becomes equally a crime.
Marbury v. Madison, 5 U.S. 137, 177-180 (1803) (emphasis added).
This Colorado Supreme Court of Appeals issued the following decision in
Trinen v. City and County of Denver, on September 9, 2002 at (cite as:
53P.3d 754, *760, *761, *762) which states as follows:
"These circumstances and others arise in the lives of law-abiding
citizens, and, in my view, form a constitutionally protected basis for
openly carrying a firearm on ones person or in a motor vehicle. Because
I conclude these circumstances cannot be made subject to criminal
sanctions and the ordinance does do, the ordinance is overbroad and
therefore unconstitutional. I would reverse the trial court's holding
to the contrary."
The same Colorado constitution that gives cities such as Thornton, the
authority for Home Rule also creates a safeguard in the Home Rule
section of the Colorado Constitution, Article XX, Section 6, under
Section H which states: ".and the enumeration herein of certain powers
[that home rule towns get] shall not be construed to deny such cities
and towns, and to the people thereof, any right or power essential or
proper to the full exercise of such right."
That means that any personal individual right that Colorado's citizens
had BEFORE the home-rule addition was put in place, CANOT BE STRIPPED
OUT VIA HOME RULE.
Conclusion
Wherefore, Richard Stanley requests this Court to grant this Petition
and Brief Outlining Errors for This Appeal.
Respectfully submitted,
____________________________________
Richard Stanley
6280 E. 39th Avenue
Denver, Colorado
303-329-0481
Service
I, the undersigned, do hereby certify that a true and correct copy of
the foregoing was delivered in person to the following respective
addresses as indicated below this 26th day of February, 2003.
____________________________________
Rick Stanley
Thornton Muncipal Court
County of Adams
State of Colorado
9500 Civic Center Drive
Thornton, Colorado 80229-4326
Office of the City Attorney
City of Thornton
Gary G. Jacobson No. 14787
9500 Civic Center Drive
Thornton, CO 80229-4326
APPENDIX
Exhibit 1 Municipal Court Order and all items from Designation of
Record of Appeal - to be added at a later date (must be prepared by the
clerk).
Exhibit 2 Trinen V. City and County of Denver cite as: (53 P.3d 754,
*760, *761, *762).
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Email Rick Stanley at rick@stanley2002.org |