Appeals Brief

THE PEOPLE OF THE STATE OF COLORADO,

RESPONDENT(S),

vs.

RICHARD STANLEY,

Petitioner(s)

_____________________________________________

Party without Attorney
Richard (Rick) Stanley
6280 E. 39th Ave.
Denver, Colorado 80207
Phone number: (303) 329-0481
Fax number: (303) 329-0498

Case No. 02CV6187

APPEALS BRIEF

Aggrieved Petitioner, Richard Stanley, hereinafter known as Rick Stanley, without assistance of counsel, submits this Petition for Writ of Certiorari 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 Petitioner?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 Petitioner, 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 Denver ordinance (DRMC 38-117(b)) 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 Below
A copy of the District Court of Appeals decision/order in case No. 02CV6187, from the City and County of Denver, Colorado is contained in the Appendix as Exhibit 1.
Jurisdiction
The District Court of Appeals opinion issued on January 13, 2003. A Writ of Certiorari was submitted to the Colorado Supreme Court on February 12, 2003. The Colorado Supreme Court denied the Writ of Certiorari on May 19, 2003, by refusing to hear the case. This court is the next, best possible court to hear this issue.
Statement of the Case
On December 15, 2001, the City Attorney?s office of City and County of Denver charged Rick Stanley with unlawful carrying of a deadly weapon, a misdemeanor, in violation of Denver ordinance (DRMC 38-117(b)) prohibiting persons from possessing or carrying a deadly weapon off of their own property. Mr. Stanley was found guilty after a May 15, 2002, jury trial, Case No. 01G5606306.
Mr. Stanley never disputed that he was openly carrying the weapon at a Bill of Rights Day Rally, 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 Denver for purposes of self protection.
The court sentenced Mr. Stanley to 6 months in county jail, $629.00 fine, 75 hours of community services and one year of probation. The court imposed a $2500.00 appeal bond upon Mr. Stanley.
The Court of Appeals, ignored Mr. Stanley?s Petition to Show Cause Why Judgment is Not Void with Affidavit, filed on October 11, 2002, per the ROA, and mailed to the City Attorney and the District Attorney at 303 W. Colfax, Denver, Colorado. The Post Office did not return the letter to Mr. Stanley; he rightly assumed the Post Office delivered the letter to both the City Attorney and District Attorney. At the time of the mailing, both City and District Attorney Offices were moving to a new building at 201 West Colfax.
City Attorneys for the City and County of Denver submitted a MOTION TO STRIKE NOTICE OF APPEAL AND TO DISMISS CASE FOR FAILURE TO PROSECUTE, and even though Mr. Stanley answered with the explanation above, which clearly showed the City Attorney and District Attorney failed to prosecute, not through any fault of Mr. Stanley, but through their own negligence, the District Court Judge still dismissed without prejudice for failure to proceed on January 13, 2003.
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 defensives 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. 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.
Section H of the Home Rule section of the Colorado Constitution prohibits the Denver ordinance DRMC 38-117 (b) by preventing a constitutional right of a Colorado citizen, before the Home Rule addition was put in place.
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, sec. 3.
Any law ? or municipal ordinance ? which violates that provision is null and void. DRMC 38-117 (b) 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 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 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.
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:
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 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. 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 of 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. 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 than law enforcement officers in the performance of their duties. Section 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); Sect. 38-118 (b) (1). 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 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 not in their automobile. See generally, DRMC 38-118 (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. 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. ld. 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. 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).
DRMC 38-117(b) completely bans the open and unconcealed bearing of 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 reaches 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 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. 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 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 Denver, 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 respectfully submits this APPEALS BRIEF.

__________________________________________
Richard Stanley
6280 E. 39th Avenue
Denver, Colorado
303-329-0481

Certificate of Mailing

I, the undersigned, do hereby certify that a true and correct copy of the foregoing was placed in

the United States mail, sufficient postage pre-paid, to the following at the respective addresses as

indicated below this 12th day of June, 2003.

________________________________________________
Richard (Rick) Stanley

City and County of Denver Court
Clerk of the County Court
1437 Bannock Street
Denver, Colorado 80202

Office of the City Attorney
James C. Thomas No. 13583
Paul W. Puckett No. 5885
Assistant City Attorneys
201 W. Colfax Ave. Dept. 1207
Denver, Colorado 80202

Judge Robert S. Hyatt
Denver County District Court
1437 Bannock Street
Denver, Colorado 80202

Colorado State Supreme Court
Mac V. Danford, Clerk
2 East Fourteenth Street Suite 401
Denver, Colorado 80203

APPENDIX

Exhibit 1 District Court Order of January 13, 2003

Exhibit 2 Trinen V. City and County of Denver cite as: (53 P.3d 754, *760, *761, *762)