Reproduction of Motion to Dismiss
Reproduction of
Motion to Dismiss
| Denver County and
Municipal Court, Colorado 1437 Bannock Street, Room 140 Denver CO 80202 |
|
Planitiff: The
City and County of Denver,
Defendant: Richard Stanley |
Court Use Only |
| Paul Grant 6426 S Quebec Street Englewood CO 80111 303-771-1908 Reg. # 26073 Counsel for Mr. Stanley |
Case Number:
01GS606306 Division General Sessions Courtroom 151P |
MOTION TO DISMISS DUE TO LACK OF JURISDICTION |
The Defendant, Richard Stanley, acting by
and through undersigned counsel, respectfully
Stanley was contacted by officers at a Bill of Rights Day rally in Denver on December 15, 2001. He was arrested for unlawful carrying of a deadly weapon. Stanley was cooperative throughout, but told arresting officers that he was exercising his constitutional right to carry a weapon in Denver, for purposes of self-protection. There was no suggestion that Stanley intended to use the weapon for any criminal purpose. SUMMARY OF ARGUMENT Colorado's Constitution guarantees the right of all persons to keep and bear arms in defense of home, person, or property. Denver'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 and is not binding on this court. 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. Denver cannot deny, or call in question, either right. Pursuant to the United States Constitution, Amendment II, Denver is prohibited from infringing the individual right to keep and bear arms. Mr. Stanley challenges (i.e.,calls in question) DRMC 38-117(b) 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 Denver, even when carried for self-defense purposes. ARGUMENT I. Denver Revised Municipal Code 38-117(b) violates Colorado Constitution, Art. II, 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, sec3. Any law - or municipal ordinance - which violates that provision is null and void. DRMC 38-117(b) does violated 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 Denver. He can't go home to Arvada to get his gun if threatened by a carjacker or mugger in Denver. He can't call time out when faced with a life-threatening situation. Denver can offer no justification for depriving Mr. Stanley of his right to self defense. Denver cannot avoid or evade the limitations of the state constitutiion. II. The ordinance violates Colorado Constitution, Art. II, sec 13. The right to keep and bear [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. Denver prohibits any person from openly possessing or carrying any firearm anywhere in Denver 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). DRMS 38-117(b). Conclusion: DRMC 38-117(b) 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. DRMC 38-117(b) conflicts with Colo. Const. Art. II, sec. 13. Conclusion: Colorado Constitution Art. II, sec. 13, overrides DRMC 38-117(b), rendering it invalid. The Colorado Constitution provides:
Colo. Const. Art. II, Section 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 a 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. I 21 (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, P 23 (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 for] 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 regulatiion 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 discussiion 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. Denver's municipal ordinance, DRMC 38-117(b), effectively denies the right to keep and bear arms in Denver for defensive purposes, unless a person is on their own property. DRMC 38-117(b) calls in question a constitutional right and is, therefore, invalid. DRMC 38-117(b) 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 that law enforcement officers in the performance of their duties. Sec.38-117(b). As such, Mr. Stanley is prohibited from carrying a weapon even for self-protection anywhere in Denver - 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. 38-118(a)(1); Sec. 38-118(b)(1). There are no exceptions for self-defense off of one's own property. And there is no allowance for the fact that a person without 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 Denver's. Denver's ordinance conflicts with the constitutional protection for bearing arms outside the home [or business or car]. It is of no avail to argue that DRMC 38-117(b) is valid because it allows for weapons to be used for self-defense when a direct and immediate threat is perceived, if they are in their automobile. See generally, DRMC 38-118 (Affirmative Defenses). The ordinance "does not, and of course cannot, fix the day and hour when suchoccasion might arise." People v. Nakamura, 99 Color. 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." Id. 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. Id., at 264. Denver has done just that. The right to bear arms is meaningless if any person is denied the right to possess arms for such protection. Id. The police power of the state [or Denver] cannot transcend the fundamental law [the Constitution] and cannot be exercised in such manner as to practically abrogate its provisions. Id., 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 reasonable be classified as unlawful. City of Lakewood v. Pillow, 180 Colo. 20; 501 P.2d 744, 745 (1972). DRMC 38-117(b) completely bans the open and unconcealed bearing or arms even for self-protection for any person in Denver 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 reach throughout the entire state of Colorado, including throughout the City and County of Denver. 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 of 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 to not negate the constitutional guarantee. Denver's ordinance does. Denver'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 Denver 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, Denver 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 DRMC 38-117(b), 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 perceives the unconstitutionality of a statute, and allow it to be enforced, even if a party were inadequate to point out its defects? Viloation 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 Just Marshall stated some two centuries ago, in a proper case, it is the duty of the court to examine the constitutionality of a law:
Marbury v. Madison, 5 U.S. 137, 177-180 (1803)(emphasis added). The Court of Appeals did not look at the facts of Mr. Stanley's case. This Court must. The ordinance is unconstitutional as applied to Richard Stanley, is therefore null and void in this case, and this Court is without any jurisdiction to subject him to trial in this matter. III. Denver Revised Municipal Code 38-117(b) violates United States Constitution, Amendment II. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." United States Constitutiion, Amendment II. The Second Amendment is applicable to Colorado through the Fourteeth Amendment. See Justice Black's concurring opinion, quoting with approval a portion of the remarks of Senator Howard on introducing the Fourteenth Amendment for passage in the Senate, stating that its privileges and immunities clause should include:
Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 1456, (1968) (emphasis added). The right to bears arms means an individual right to carry a weapon in case of conflict with another person. See the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911, 1921, 141 L. Ed. 2d 111 (1998):
The Fifth Circuit has recently explicitly determined that the Second Amendment protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, that are suitable as personal, individual weapons and are not of the general kind or type excluded by [United States v] Miller. United States v. Emerson, 2001 U.S. App. LEXIS 22386 (5th Cir. 2001). That court also found clear authority that felons, infants and those of unsound mind may be prohibited from possessing firearms. Id. The Second Amendment does protect individual rights, but that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Id. (The Court found that Emerson was reasonably denied the right to bear arms because he was subject to a restraining order after he was determined under Texas law to pose a threat to his wife). The Supreme Court has stated that the right to keep and bears arms is, like other rights protected by the Bill of Rights, "subject to certain well-recognized exceptions, arising from the necessities of the case" and hence "is not infringed by laws prohibiting the carrying of concealed weapons," Robertson v. Baldwin, 17 S. Ct. 326, 329 (1897), or by laws "which only forbid bodies of men to associate together as military organizations...to drill or parade in cities and towns unless authorized by law." Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 584 (1886). The Second Amendment, like Colorado's Constitution, does not allow regulation which generally denies law-abiding citizens the right to bear arms needed for personal defense. DRMC 38-117(b) categorically denies the right to carry a weapon needed for self defense (unless a person perceives an immediate and direct threat), hence it infringes the right. Richard Stanley is not a felon, he has not been found to pose a threat to anyone or charged with attempting any criminal act. The ordinance is unconstitutional. CONCLUSION Mr. Stanley respectfully requests that this Court dismiss the charge against him, the charge of unlawful carrying of a deadly weapon, because the ordinance is unconstitutional, both on it face and as applied to Mr. Stanley. The case against Mr. Stanley must then be dismissed. Respectfully submitted _____________________ (Signed) Paul Grant
CERTIFICATE OF SERVICE I hereby certify that I have mailed a true and correct copy of the above document this 25th day of February, 2002, addressed to the following: John D. Poley ______________________(Signed) |
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