Order
District Court, Adams County, State of Colorado
Court Address: Adams County Justice Center
1100 Judicial Center Drive
Brighton, Colorado 80601
Phone Number (303) 659-1161
______________________________________________________
Richard E. Stanley
Defendant/Appellant,
v.
PEOPLE OF THE STATE OF COLORADO, EX REL,
CITY OF THORNTON
Defendant/Appellee
Filed in Adams County Combined Court
August 26 2003
Case Number:
03CV0533
Div.C Ctrm: 505
ORDER
This is an appeal of defendant's conviction in the Municipal Court in and for
the City of Thornton, Colorado.
Defendant, Richard Stanley, was arrested while attending the City of
Thornton's Harvest Festival, held at the Thornton Community Center,
after Thornton Police found him openly carrying a loaded .357 magnum
caliber handgun. The defendant was subsequently convicted under Thornton
Municipal Code ("T.M.C.") 38-237(b) (1), for possessing a dangerous
weapon. At no time has the defendant asserted any of the recognized
affirmative defenses or exceptions available to him, but asserts a broad
constitutional right to bear arms under Colorado Constitution. On
appeal, the defendant challenges the constitutionality of T.M.C. 38-237
on the basis that it violates his constitutional right to defend his
life and liberty guaranteed by Article II, Section 3 of the Colorado
Constitution, and on the basis that it violates his constitutional right
to keep and bear arms guaranteed by Article II, Section 13 of the
Colorado Constitution. This court concludes that T.M.C. 38-237, as a
reasonable exercise of city's police power, is constitutional, and
affirms. Constitutional challenges to a local ordinance will be reviewed
de novo by this court. Trinen v. City and County of Denver, 53 P.3d 754,
757 (Colo.App.2002). It is a fundamental principle of Colorado law that
the challenged statute is "presumed to be constitutional, and the party
challenging its validity has the burden of proving unconstitutionality
beyond a reasonable doubt." People v. Janousek, 871 P.2d 1189 at 1195
(Colo.1994). T.M.C. 38-237(b) (1) makes it unlawful for an individual
"to knowingly possess on or about the person or within such person's
immediate reach any dangerous weapon." T.M.C. 38-237(c) provides for
several affirmative defenses, including for the transportation of a
dangerous weapon by motor vehicle for lawful business purposes, lawful
hunting or sporting purposes, or for repair. It is also an affirmative
defense if the person is acting within the scope of a bona fide business
activity, or if the person, while in a private automobile, is protecting
person or property when there is "a direct or immediate threat thereto."
T.M.C. 38-237(d) provides for exceptions for those persons possessing a
dangerous weapon on their own property, those employed as mobile guards,
those issued written permits, and those traveling by private automobile
through the jurisdiction. The parties agree that no affirmative defense
or exception applies here. The Colorado Constitution does not provide an
absolute right to bear arms. People v. Blue, 190 Colo. 95, 103, 544 P.2d
385, 291 (1975). This right, while important, has not been accorded
status as a fundamental right. See Robertson v. City and County of
Denver, 874 P.2d 325 (Colo.1994); Trinen, 53 P.3d 754, 757
(Colo.App.2002). The city, under its appropriate police powers, may
reasonably restrict the individual's right to bear arms, Robertson, 874
P.2d 325, 328, but may not go so far as to "enact legislation that
renders constitutional provisions nugatory." Trinen, 53 P.3d at 757.
Accordingly, the court will hold invalid overly broad local ordinances
that infringe upon fundamental rights. City of Lakewood v. Pillow, 180
Colo. 20, 23, 501 P.2d 744, 745 (1972). A reviewing court must interpret
the statue under the presumption that the legislature acted to achieve a
"just and reasonable result and must seek to avoid an interpretation
that leads to an absurd result." People v. Pflugbeil, 834 P.2d 843 at
848 (Colo.App.1992). The question in each case is whether the law at
issue constitutes a reasonable exercise of the state's police power is
one reasonably related to ensuring the public's welfare or safety.
People v. Garcia, 197 Colo. 550, 553, 393 P.2d 228, 230 (1979).
I
Defendant first asserts that T.M.C 38-237 violates Article II, section 3
of the Colorado Constitution, in that it deprives him of his natural
right to defend his life and liberty. This court disagrees.
Article II, 3 of the Colorado Constitution provides, "[a]ll persons have
certain natural, essential and inalienable rights, among which may be
reckoned the right of enjoying and defending their lives and liberties;
of acquiring, possessing and protecting property; and of seeking and
obtaining their safety and happiness."
The T.M.C. 38-237 (b) (1) prohibition against person possession of
dangerous weapons does not render void the defendant's inalienable
rights to defend his life and liberty. Numerous decisions support the
state's right to limit an individual's right to possess a firearm. See
Robertson, 874 P.2d 325 (upholding the constitutionality of a city
ordinance banning assault weapons); Trinen, 53 P.3d 754 (upholding the
constitutionality of a city ordinance banning concealed weapons without
a permit); Garcia, 197 Colo. 550, 595 P.2d 228 (upholding the
constitutionality of a state statute prohibiting possession of firearms
by those under the influence of drugs or alcohol). Not all activity may
be cloaked within the protections afforded under Article II, Section 3
of the Colorado Constitution. Simply by the fact that an individual may
in certain circumstances use a firearm to defend his or her life does
not mean that Thornton's Dangerous Weapons Ordinance deprives the
defendant of any meaningful exercise of his right to defend his life and
liberty, and the defendant's speculations as to when a dangerous weapon
may be useful for defensive purposes leave the court unconvinced.
The defendant has not established beyond a reasonable doubt that T.M.C.
38-237 violates his constitutional protections under Article II, Section
3 of the Colorado Constitution. II
Defendant next asserts that T.M.C 38-237 stands in direct conflict with
Article II, Section 13 of the Colorado Constitution since it prohibits a
person from carrying a firearm if that person is not on property either
owned by such person or under such person's control. Again this court
disagrees.
Article II, Section 13 of the Colorado Constitution provides,"[t]he
right of no person to keep and bear arms in defense of his home, person
and property, or in aid of the 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."
Defendant places heavy reliance on the phrase, "called in question," and
asserts a comprehensive right to carry a loaded firearm in public
places. Contrary to such an assertion, individuals do not possess an
absolute and unfettered right to bear arms, as this right may be
restricted through a reasonable exercise of the state's police power.
Garcia, 197 Colo. 500, 553, 595 P.2d 228, 230; Trinen, 53 P.3d 754;
Robertson, 874 P.2d 325; People v. Ford, 193 Colo. 459, 568 P.2d 26
(1977); Blue, 190 Colo. 95, 544 P.2d 385.
The City of Thornton passed T.M.C. 38-237 under its police power. T.M.C
38-237(c) and (d) provide for numerous affirmative defenses and
exceptions, respectively. These affirmative defenses and exceptions
reflect a scope of gun possession deemed appropriate by the City Council
in light of the constitution and guiding court precedent. Beyond such
affirmative defenses and exceptions, T.M.C. 38-237 limits an
individual's ability to carry a firearm at his or her discretion.
The defendant's desire to bear arms under a generalized claim of self
defense was rejected by the court in Trinen ("absent such a qualifier
[requiring "some real identifiable and substantial justification for
carrying a gun away from one's home"], anyone could carry a gun about [a
city] and claim it was for self-protection."), 53 P.3d at 758, and is
again rejected here. T.M.C 38-237 imposes limitations that reflect the
city's reasonable belief that an unrestricted right to carry firearms in
public places would endanger the public's welfare and safety.
Importantly, the defendant's constitutional right to bear arms has not
been rendered nugatory; T.M.C. 38-237 (d) (4) exempts a person who
obtains a written permit to carry a firearm away from that person's home
or business. Should the defendant wish to carry a firearm from his
property, he may obtain such a permit.
Defendant directs the court's attention to language in People v.
Nakamura, 99 Colo. 262, 62 P.2d 246 (1936), to argue that an ordinance
which cannot specify the hour of an attack whereby a firearm may be used
for self-defense is unconstitutional. That case is inapposite. The
ordinance struck down in Nakamura concerned a legislative attempt to
prevent non-residents from capturing or killing wild animals, unless the
killing was done "in defense of persons or property." 99 Colo. At 265,
62 P.2d at 247. More significantly, the ordinance ordered a complete and
total ban on all firearm ownership or possession by all aliens. Id. That
ordinance thus distinguished those rights afforded aliens and those
rights afforded naturalized citizens, in clear contravention of Article
II, Section 27 of the Colorado Constitution (affording aliens equal
property rights as native born citizens). Id. T.M.C. 38-237 neither
represents a total ban on firearm ownership nor does it make any such
distinction between classes of persons.
T.M.C. 38-237 represents to the City's concerns regarding public welfare and
safety. Defendant has failed to demonstrate beyond a reasonable doubt that the
statue unconstitutionally limits his rights to bear arms as provided in Article
II, Section 13 of the Colorado Constitution.
Accordingly, the judgment is affirmed.
Dated as Brighton, Colorado this 26th day of August, 2003.
By the court:
Duly signed original in court file
_________________________
Donald W. Marshall, Jr.
District Court Judge
CERTIFICATE OF MAILING
I hereby certify that the foregoing document was sent via JusticeLink
(e-file) to all counsel of record and all pro se parties this 26 day
of August, 2003.
Duly Signed original in court file
__________________________
Division Clerk
