Colorado Courts Continue to Protect Felons’ Rights to Keep and Bear Arms

As I noted last Fall, Colorado courts have treated the Colorado Constitution’s right to keep and bear arms provision as substantially protecting felons’ rights to keep guns for self-defense — an approach quite different from that used by the U.S. Supreme Court in interpreting the Second Amendment, or by other states’ courts interpreting those states’ constitutions. Today’s State v. Carbajal (Colo. Ct. App. Mar. 1, 2012) reaffirms that. An excerpt:

In 1876, the new State of Colorado adopted a constitution that included a provision in its bill of rights establishing a right to keep and bear arms in defense of one’s home, person, and property:

The 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 into question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Colo. Const. art. II, § 13 (section 13) (emphasis added). This provision has never been amended.

During the twentieth century, the Colorado General Assembly enacted a statute making possession of a weapon by a previous offender (POWPO) unlawful. § 18-12-108(1), (2)(a), C.R.S. 2011. Although the POWPO statute does not refer to section 13, in People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977), the supreme court held that a defendant may raise an affirmative defense to a POWPO charge under section 13 by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property.

Beginning in 1983, the stock jury instructions utilized by trial courts in Colorado have included an instruction following Ford:

It is an affirmative defense to the crime of [POWPO] that the defendant possessed the weapon for the purpose of defending his [home] [property] [person].

See COLJI-Crim. H:51 (2008). In recent years, however, some prosecutors have asked trial courts to alter the stock instruction by adding a requirement that the defendant’s purpose in possessing the weapons arises from a reasonable belief in a threat of imminent harm….

In this case, defendant, Joddy Leon Carbajal, appeals the judgment of conviction entered on jury verdicts finding him guilty of two POWPO counts. He argues that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead utilized a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. We agree, reverse the judgment of conviction, and remand for a new trial….

By virtue of section 13, a defendant presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property raises an affirmative defense to a POWPO charge. Ford, 193 Colo. at 462, 568 P.2d at 28; People v. DeWitt, ___ P.3d ___, ___, 2011 WL 4089974, *4 (Colo. App. No. 10CA1271, Sept. 15, 2011). As long as the defendant presents some credible evidence, or a “scintilla” of evidence, in support of the affirmative defense, the jury decides whether the defendant possessed a weapon for a constitutionally protected purpose. If the defendant presents such evidence, the prosecution then has the burden of disproving the affirmative defense beyond a reasonable doubt….

The People argue that, without an “imminent threat” requirement, the POWPO statute would be unenforceable, in effect a “dead letter” allowing previous offenders to carry firearms. We are unconvinced for three reasons.

First, the verdict form asked only whether defendant possessed a weapon. There was no contention at trial that he used or carried the guns in his home.

Second, while a defendant need only present some credible evidence that his or her purpose in possessing weapons was for the defense of person, home, and property, the prosecution is not limited in the arguments it can make to disprove the affirmative defense. The arguments the prosecution made in this case could have been made under the stock jury instruction, as the jury ultimately chooses whether to believe a defendant’s assertion of purpose. Compare DeWitt, ___ P.3d at ___, 2011 WL 4089974, *6 (the defendant was entitled to the stock jury instruction where he presented some credible evidence of a constitutionally protected purpose for weapon possession), with People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986) (the defendant was not entitled to affirmative defense instruction where he presented no evidence that public possession of weapon in a bar was based on any threat to his person, home, or property).

Third, the supreme court’s decision in Ford has been on the books for over thirty-four years. Our supreme court is the final arbiter of our state constitution, and we are bound by its precedent….

In District of Columbia v. Heller, 554 U.S. 570, 630, 635 (2008), the United States Supreme Court held that the Second Amendment to the United States Constitution protects a personal right to keep and bear arms for self-defense and “defense of hearth and home.” The Court concluded that “nothing in our opinion should be taken to cast doubt on the longstanding prohibitions of the possession of firearms by felons.” Heller, 554 U.S. at 626. Numerous federal courts have followed Heller in upholding the constitutionality of the federal counterpart to POWPO, 18 U.S.C. § 922(g)(1). See, e.g., United States v. Torres-Rosario, 658 F.3d 110, 113 n.1 (1st Cir. 2011) (collecting cases); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009). [Footnote: Judge Tymkovich stated in his concurring opinion in McCane that the language in Heller regarding the constitutionality of felon in possession statutes was dictum, but also observed that “Supreme Court dicta bind[] us ‘almost as firmly as … the Court’s outright holdings.’” 573 F.3d at 1047 (quoting Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008)). Other courts have concluded that the language was not dictum. See, e.g., United States v. Barton, 633 F.3d 168, 171 (3d Cir. 2011) (collecting cases).]