Posted on 03/02/2012 5:22:04 AM PST by marktwain
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).]
So you admit that we really can restrict these guys lives, tell them what kind of work they can’t do, which businesses they can’t run, perhaps where they cannot live, who they can associate with, I would say that the MS-13 gang enforcer who we suspect of countless crimes but only convict for a 2nd degree murder, could be released from prison with some restrictions, like not being caught carrying weapons again.
I don’t want them voting either.
I agree. If we need to take someone’s rights away longer, then we ought to keep them in prison longer. And yes, I believe a former felon has the right to self-defense.
“So you admit that we really can restrict these guys lives, tell them what kind of work they can’t do, which businesses they can’t run, perhaps where they cannot live, who they can associate with”
It’s done all the time, whether you are a convicted ex-felon or not.
People are stopped from opening businesses all the time, either by town ‘restrictions’ or city ordnances.
Job restrictions are done all the time by either not ‘qualifying’ or ‘choice’ of the employer.
So, we either restrict the rights of everyone or of none...
“I would say that the MS-13 gang enforcer who we suspect of countless crimes but only convict for a 2nd degree murder, could be released from prison with some restrictions, like not being caught carrying weapons again.”
I never said the law was ‘fair’, I merely pointed out the possibilities ‘within’ the law.
If you want the law to be ‘fair’ then you have to apply them consistently across the board.
If you wouldn’t want your rights taken away, then why would you want others rights taken?
You may not like it, but if you’ve paid your ‘debt to society’ then all or your rights should be restored.
“I don’t want them voting either”.
Then lobby your Senator or Congressman to change the law because an EX-cons voting rights are restored once their sentence is completed.
>>“It’s always been my belief that once you’ve done your time, ALL of your rights should be restored. Not just ‘some’ of them.”
>
>I agree with you.
>In fact, I was kicked out of a jury box for stating your exact point. Left the poor couple facing gun possesion charges with a jury of gun grabbers and second amendment infringers.
Wait, kicked off after already having been selected as a juror? Or during the selection process?
I have always wondered why the justification of “all but one” restored rights.
civil rights are civil rights period. no some more equal than others.
I don’t know what you were calling fair or unfair, why should an MS-13 gang enforcer be allowed to pack on release, and when did this 1960s liberal agenda become part of conservatism, is this the corroding effect of the so called libertarianism?
The left (and libertarians) has been busy since I was a kid, the left has managed to make being a felon more respectable and mainstream, I’m pretty sure that felons couldn’t vote in most states when I was a kid. Personally I want voting more restricted, and more difficult.
From wiki-”As of July 2007, fourteen states, eleven of them in the South, ban anyone with a felony conviction from voting for life, even after the person has served the sentence”
“I think in that situation you’re supposed to keep your mouth shut till deliberating with the other jurors after the trial.”
I agee. FYI - We were in voir dire and I was young.
It would be easy enough to create categories of felonies, and a system for restoring rights after a certain period.
That would still leave the current crowd with too much say-so, and it has to be presumed they’d use it wrongly. Therefore the only trustworthy solution is one they physically CANNOT overturn, because it’s based on things in the past.
>I have always wondered why the justification of “all but one” restored rights.
If you’ll indulge in a little bit of “conspiracy theory” mentality, consider this: when Obamacare comes into effect it will be a felony not to have ‘qualifying’ coverage; with the economy in the slumps, the number of those who can afford insurance must needs decrease (as unemployment and time to employment go increase); add to this that the government defines what ‘qualifying’ is for terms of insurance... and you have the perfect conditions in-place for making large portions of the population into ‘felons.’
Now, you might think that people would be outraged (risking the spark of rebellion) but consider what would happen if they went the “administrative” route and, for all intents and purposes, made you a felon conditioned upon your compliance (which would stay on-file ready to be reinstated if/when you step out of line)... they could strip you of freedom and rights and make you thank them for “giving” them back.
>Child molester should be able to go back to running his day care? The Drug Pharmacist back to his Pharmacy, the corrupt cop back to the force after he is ‘purified’ from prison?
The short answer is: Yes.
The longer answer is that if there is no way the person can “pay their debt to society” then the only humane thing to do is execute them, as to do otherwise is to degrade their humanity either by locking them in a cage for [most of] their life OR make them second-class citizens whose freedoms are utterly at the whim of the government.
Great, that goofy nonsense that some people dream up in their heads, when the drugs wear off try again.
Great point.
I am very concerned about “government power creep”, which we have experienced in spades of late.
>Great, that goofy nonsense that some people dream up in their heads, when the drugs wear off try again.
What are you talking about?
If one cannot “pay one’s debt to society” by serving their sentence, and required to submit their rights to the government’s approval, how is that different from forcing them into a second-class of citizenship? (And how can such be considered just?)
And “life in prison” is utterly dehumanizing (read humiliating, stripping them of dignity) because it forces people to spend their life, or a significant portion thereof, in a cage.
I’m of the opinion that it would be more just to have no term of imprisonment greater than 10 years. (If the average lifespan is 80-years that’s an eighth of their life.)
In the stead of lengthy sentences we should have capital- (for rapists, murderers, etc) and corporal- (for the non-violent) punishments.
Good luck with your everyone is to be considered 100% rehabilitated and released after short sentences, or execute them, reform.
>Good luck with your everyone is to be considered 100% rehabilitated and released after short sentences, or execute them, reform.
First off, you are failing to realize that many of our laws are based not on legitimate powers, but on RESPECT MY AUTHORITY.
This is exactly what the “War on Drugs” is, especially when you consider that in order to regulate a substance the Constitution has to be amended to allow it (this WAS done with respect to alcohol, the 18th Amendment to be precise) of which no such amendment exists to legitimize the use of authority in those areas. So, even using the fundamentally flawed system of “precedence” — which fundamentally assumes that all (judicial) decisions are correct — the war on drugs is ULTIMATELY illegitimate.
Consider gun laws as well, the GCA is wholly illegitimate as it is an ex post facto law — it is by virtue of imposing the “prohibited person” status on felons who had already served their sentence — which is prohibited to both the States individually and the United States (federally). Yet there are thousands who consider it to be a good law, and base laws/court-decisions on it.
Or that the BATF’s authority comes from TAXATION, and their removal from the Treasury Department and placement under the Department of Justice is the removal of their legitimate authority.
(See: http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm )
Also, consider this point which illustrates the whole. New Mexico’s Constitution says, in Art II, Sec 6: “[...] No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.” And no state law exists prohibiting firearms in courthouses, yet every municipal and county courthouse I’ve seen posts “no weapons.” This prohibition extends even to people who have not been so much as accused of a crime, and who may be arrested for not showing up: the jurors. Furthermore, the US Supreme Court has repeatedly ruled that the police have no affirmative obligation to ensure the safety of a private citizen: meaning that the presence of a police officer (or security guard) cannot be held as an assurance/guarantee of safety.
Last, a person need not be “reformed” to be released, only to have served their sentence. In terms of commerce it would be the equivalent of having paid one’s debt. (And, like commerce, these illegitimate “laws” are the equivalent of the government’s fiscal/regulatory policies: applying more and more cumbersome burdens to the people.)
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