Felons’ Right to Keep and Bear Arms in Colorado

Yesterday’s People v. Dewitt (Colo. Ct. App.) illustrates a very different approach to the right to keep and bear arms under the Colorado Constitution than has been used under the U.S. Constitution (and other state constitutions):

On the morning of September 18, 2009, defendant walked from his apartment to a nearby King Soopers to buy groceries. He paid at a self-checkout cash register, and when he did not receive discounts on certain items, he went to the customer service counter to demand a refund. Defendant yelled at the employees on duty, used profanities, and paced in such a manner that his handgun, worn under his jacket in a holster, was visible. He continued this aggressive behavior for several minutes, prompting one employee to call 911 to report the disturbance.

When the police arrived, they checked defendant’s criminal record. They arrested him for POWPO when they learned that he was a twice convicted felon — in 1985, he pleaded guilty to giving false information to a pawnbroker, and in 1988, he pleaded guilty to attempted distribution of a controlled substance.

Defendant was ultimately charged with two POWPO [possession of a weapon by a previous offender] counts and one menacing count based on the King Soopers incident. The menacing count was dismissed on the morning of trial, and defendant was convicted by a jury of the POWPO counts. The trial court sentenced him to a six-month prison term for each count, to run concurrently, and this appeal followed….

[T]he trial court erred by refusing to give [defendant’s] tendered jury instructions regarding the affirmative defense of the right to bear arms. We agree.

Under the Colorado Constitution, a person has the right “to keep and bear arms in defense of his [or her] home, person and property.” Colo. Const. art. II, § 13; see People v. Blue, 190 Colo. 95, 103, 544 P.2d 385, 391 (1975). [Footnote: Defendant expressly bases his contention solely on article II, section 13 of the Colorado Constitution. Accordingly, we need not address any issues regarding the Second Amendment to the United States Constitution.] Thus, a defendant charged with POWPO may raise as an affirmative defense that he or she possessed a weapon for the constitutionally protected purpose of defending his or her home, person, or property. People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977); see also CJI-Crim. 7:63 (1993). As long as there is competent evidence in the record of a constitutionally protected purpose, a defendant is entitled to such an affirmative defense, and it will be for the jury to decide the issue of the defendant’s purpose in possessing the weapon.

A defendant need only present “some credible evidence” in support of the affirmative defense, which is another way of stating the “scintilla of evidence” standard. The evidence necessary to justify an affirmative defense instruction may come solely from the defendant’s testimony, however improbable. If the defendant meets this standard, the prosecution then has the burden to disprove the affirmative defense beyond a reasonable doubt….

Based on our de novo review of the record in this case, we conclude defendant’s testimony was sufficient to support the tendered affirmative defense instructions on his constitutional right to bear arms. Defendant testified that he regularly walked from his apartment to the King Soopers in question armed with his handgun. When asked for his reason for purchasing and carrying the gun, including on the morning of his arrest, defendant testified several times that it was for “self-defense.” He also stated that he had “concerns for [his] personal safety” and for his “property,” both in his home and in his neighborhood. According to defendant’s testimony, he was aware of reports of recent muggings at the King Soopers, and he had “seen some things in [his] own neighborhood that just … put the alert on, put [him] in a code yellow … more of an alert status, where [he] used to be more relaxed and never worried about anything.” In addition, defendant testified that someone had attempted to break into his apartment twice in 2009. Thus, defendant not only testified to a general fear for his personal safety, but also tied his fear to specific trends of violence and incidents in the areas where he regularly walked and in the stores that he regularly visited, including the King Soopers store.

Viewing this testimony in the light most favorable to defendant, we conclude it constitutes some credible evidence that he carried his handgun for the constitutionally protected purposes of defending his person and his property.

This case is distinguishable from People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986), relied on by the People and by the trial court in its ruling. In Barger, the defendant chose to carry a gun into a bar, but there was no evidence in the record that he reasonably feared for his safety on his way to the bar or in the bar itself….

As the citation to the 1977 Colorado Supreme Court case People v. Ford shows, this doctrine isn’t new in Colorado; but I hadn’t seen the Ford doctrine much referred to recently. This case makes clear, though, that this interpretation of the state constitutional right to keep and bear arms is still being followed in Colorado. For the one other recent state appellate case recognizing some felons’ right to keep and bear arms, see this discussion of Britt v. State (N.C. 2009), though the right secured there seems much narrower than the one secured by DeWitt (and Ford) in Colorado.

Of course, felons in Colorado get only limited benefit from this ruling, because they are still generally barred by federal law from possessing a gun, and the Colorado Constitution doesn’t affect the application of that federal law. But in practice, a defense against a state prosecution remains useful even if it won’t work against a federal prosecution, because many such felon-in-possession cases are brought only under state law by state prosecutors (since there are many more such prosecutors in Colorado than federal prosecutors).