Colorado Supreme Court: Writ of Certiorari

SUPREME COURT, STATE OF COLORADO
2 East Fourteenth Street, Suite 401
Denver, Colorado 80203
Certiorari to the Colorado Court of Appeals
District Court, City and County of Denver, Colorado

Case No. 02CV6187 Courtroom and Division 9
Robert S. Hyatt, District Court Judge
Appeal for the Denver County and Municipal Court
Case No. 01GS606306 Judge Robert L. Patterson
Denver County Court Room 151

______________________________________________________

Richard Stanley

Petitioner

V.

THE PEOPLE OF THE STATE OF COLORADO

Respondent

_____________________________________________

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

PETITION FOR WRIT OF CERTIORARI

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 907 F.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.

III.

Whether the arrest, charge and conviction violate Rick Stanley's rights under
the United States Constitution, Amendment II , which is made applicable against
Colorado by the Due Process Clause and by the Privileges and Immunities Clause
of the Fourteenth Amendment, under 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.
This petition is due on February 12, 2003, and is so presented.

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. Stanly 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. Unbeknownst to Mr.
Stanley at the time, the receptionist for the District Attorney accepted the
Stanley's Petition To Show Cause Why Judgment is Not Void With Affidavit
pleading identified as trial court case number 01GS606306, district court number
02CV6187. Stanley has no explanation as to why the receptionist did not return
the Petition To Show Cause Why Judgment is Not Void With Affidavit to him after
discovering that the District Attorney's Office had no case assigned to him
identified as trial court number 01GS606306, district court number 02CV6187.
It is unknown at this time whether the acceptor of service forwarded the
Petition To Show Cause Why Judgment Is Not Void With Affidavit to the City
Attorney's Office by inter-office mail, after discovering that the District
Attorney had no case assignment identified trial court number 01GS606306,
district court number 02CV6187. 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 oat 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: The Denver ordinance prohibits the possession of "dangerous
or deadly weapons," a defined term considerably broader than the possession of
"arms," which apparently is limited to firearms. "Dangerous or deadly weapons"
include, but are not limited to, any pistol, revolver, rifle, shot gun, machine
gun, air gun, gas operated gun, spring gun, sling shots, blackjacks, nunchaku,
switchblade knives, gravity knives and other implements. Here we are concerned
with "arms," which is limited to pistols, revolvers, rifles, and shotguns the
keeping and bearing of which is explicitly protected when carried on the person
in an open and clearly visible manner, or in an automobile or other private
means of conveyance for the purpose of protecting home, person or property.

In City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972), the city
adopted an ordinance that criminalized the possession, carrying, or use of
specified implements, including firearms, except in one's domicile. The supreme
court invalidated the ordinance as unconstitutional because it prohibited
protected activities. The court stated, in part: An analysis of the
foregoing ordinance reveals that it is so general in its scope that it includes
within its prohibitions the right to carry on certain businesses and to engage
in certain activities which cannot undertake the police powers be reasonably
classified as unlawful and thus, subject to criminal sanctions. As an example,
we note that this ordinance would prohibit gunsmiths, pawnbrokers and sporting
goods stores from carrying on a substantial part of their business. Also, the
ordinance appears to prohibit individuals from transporting guns to and from
such places of business. Furthermore, it makes it unlawful for a person to
possess a firearm in a vehicle or in a place of business for the purpose of
self-defense. Several of these activities are constitutionally protected. Colo.
Const. art. II, & 13. Depending upon the circumstances, all of these activities
and others may be entirely free of any criminal culpability yet the ordinance in
question effectively includes them within its prohibitions and is therefore
invalid. City of Lakewood v. Pillow, supra, 180 Colo. at 23, 501 P.2d at 745.

The Denver ordinance prohibits or criminalizes the mere carrying of firearms.
It then accommodates those lawful purposes recognized by the supreme court in
City of Lakewood v. Pillow, supra, and the additional restriction recently
imposed by & 18-12-105, C.R.S. 2001, relating to transporting a weapon in a
private automobile, by means of affirmative defenses. That is, it is an
affirmative defense to the criminal offense that defendant was: (1) in his or
her domicile; (2) in his or her place of business; (3) carrying the weapon in
defense of home, person, or property when there is a direct and immediate threat
thereto; (4) hunting wild game or *762 engaging in legitimate sporting use and
transportation for those purposes; (5) a licensed dealer or collector
transporting the weapon for sale or repair; (6) a member of the armed forces in
performance of their duty; and (7) moving the weapon from one residence, but
not business location to another. Denver thus perceives the list of protected
conduct contained in City of Lakewood v. Pillow, supra, as exhaustive,
notwithstanding the phrase "among others," used by the court. While the list
of protected conduct includes possession of a weapon in a vehicle and place of
business for self-defense, it does not expressly include the right to keep and
bear arms in defense of home, person and property, which the supreme court in
Pillow otherwise recognized and is explicit in the constitution. At the outset
it should be observed that the requirement that carrying a firearm be in
response "to a direct and immediate threat" to home, person, or property has no
counterpart in the constitution in either section 3 or section 13 of article II.
The word "direct" connotes that the threat be "immediate; proximate; by the
shortest course; without circuity; operating by an immediate connection or
relation, instead of operating through a medium; the opposite of indirect."
Black's Law Dictionary 459 (6th ed. 1990). The world "immediate" means "[p]
resent; at once; without delay; not deferred by ay interval of time" and
"denotes that action must be taken either instantly or without any considerable
loss of time." Black's Law Dictionary, supra, at 749.

The affirmative defense is, therefore, limited to those threats that are
imminent, identified, and presumably communicated to the citizen, and are of the
type and nature that might normally be reported to the authorities and with
respect to which other precautions might be taken. The affirmative defense is
not available to persons with a heightened, but generalized, concern for their
own or other's safety as might be occasioned by being engaged in a controversial
profession, activity, or event;; holding controversial views, speaking out on
controversial issues; transporting valuable property; having celebrity status or
otherwise attracting excessive unwanted attention; entering a known high-crime
area,; making deliveries at night or in high crime areas; or being placed on a
high alert of a possible terrorist attack. The affirmative defense is also not
available to persons who must confront a person, or group of persons, with
respect to whom they have a good faith and justified fear of harm for which
they cannot articulate any "direct and immediate threat." In addition, the
structure of the ordinance precludes law-abiding and peaceful citizens from
having a firearm available in the event they are suddenly and unexpectedly
confronted with a life-threatening situation requiring the lawful use of deadly
force in self-defense. See & 18-1-704, C.R.S. 2001 (authorizing deadly physical
force in self-defense, or in the defense of another, without retreat when there
is a reasonable belief that a less degree of force would be adequate). 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
Constitution 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.

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 Constitution, Amendment II.
The Second Amendment is applicable to Colorado through the Fourteenth 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:
.the personal rights guarantied and secured by the first eight amendments of the
Constitution; such as the freedom of speech and of the press; the right of the
people peaceably to assemble and petition the Government for a redress of
grievances, a right appertaining to each and all the people; the right to keep
and to bear arms; the right to be exempted from the quartering of soldiers in a
house without the consent of the owner; the right to be exempt from
unreasonable searches and seizures, and from any search or seizure except by
virtue of a warrant issued upon a formal oath of affidavit, the right of an
accused person to be informed of the nature of the accusation against him, and
his right to be tried by an impartial jury of the vicinage; and also the right
to be secure against excessive bail and against cruel and unusual punishments.
Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 1456, (1968) (emphasis
added). The right to bear arms means an individual right to carry a weapon in
case of conflict with another person. See the dissention 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).

Surely a most familial meaning [of carrying a firearm] is, as the Constitution's
Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law
Dictionary, at 214, indicate: "wear, bear, or carry.upon the person or in the
clothing or in a picket, for the purpose.of being armed and ready for offensive
or defensive action in a case of conflict with another person. The Fifth
Circuit has recently explicitly determined that he 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. ld.

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. ld. (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 bear 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

Wherefore, Richard Stanley requests this
Court to grant Petition For Writ of Certiorari.

Respectfully Submitted,

___________________________________

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 February, 2003.

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

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)