Cite as City of Lakewood v. Pillow, 501 P.2d 744, 180 Colo. 20
(Colo. 1972)

The CITY OF LAKEWOOD, a municipal corporation of the State of
Colorado, Petitioner,
                                  v.

                  Charles Edward PILLOW, Respondent.

                              No. C--164.

                  Supreme Court of Colorado, En Banc.

                            Oct. 10, 1972.

      Raymond C. Johnson, Lakewood, for petitioner.

      Theodore P. Koeberle, Boulder, for respondent.

      HODGES, Justice.

      On petition of the City of Lakewood, we granted certiorari to
review the district court's declaration that a Lakewood ordinance
is invalid.

      The respondent Pillow was convicted in municipal court of a
violation of this ordinance which makes it unlawful to possess a
dangerous or deadly weapon.  He appealed to the district court
which reversed the conviction on the basis of a finding that there
was a failure of proof before the municipal court and on the
further ground that the ordinance was invalid.  The district
court's declaration of invalidity was premised on its finding that
the subject matter of the ordinance is a matter of statewide
concern and is therefore preempted by a state statute pertaining to
the carrying of a concealed weapon.  This state statute is 1965
Perm.Supp., C.R.S.1963, 40-11-1.

      We affirm the district court's reversal of the respondent's
conviction but do so on the ground that the Lakewood ordinance is 
unconstitutionally overbroad.  It is therefore unnecessary to
discuss the failure of proof issue; moreover, this case is not a
suitable vehicle for a consideration of the preemption issue.  Our
decision to resolve this case in this manner was prompted to some
degree by statements made by counsel for the City of Lakewood
during oral argument.  He conceded that the ordinance lacked
specificity in certain respects and that a replacing ordinance was
in the process of preparation.

      The subject Lakewood ordinance is numbered 0-70-47, Sec. 3-9
and is set forth in full as follows:

      "Unlawful to Possess, Carry or Use Dangerous or Deadly
      Weapons.  (a) It shall be unlawful for any person to have in
      his possession, except within his own domicile, or to carry or
      use, a revolver or pistol, shotgun or rifle of any
      description, which may be used for the explosion of
      cartridges, or any air gun, gas operated gun or spring gun, or
      any bow made for the purpose of throwing or projecting
      missiles of any kind by any means whatsoever; provided that
      nothing in this section shall prevent use of any such
      instruments in shooting galleries or ranges under
      circumstances when such instruments can be fired, discharged
      or operated in such manner as not to endanger persons or
      property and also in such manner as to prevent the projectile
      from traversing any grounds or space outside the limits of
      such gallery or range; and provided further, that nothing
      herein contained shall be construed to prevent the carrying of
      any type of gun, when unloaded, or any bow, to or from any
      range, gallery or hunting areas.  (b) Nothing in this section
      shall prevent the possession or use of any of said instruments
      by persons duly licensed for such purpose by the City of
      Lakewood.  (c) Nothing in this section shall prevent the use
      of or possession of any said instrument by law enforcement
      personnel."

      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 under 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, section 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.  Shuttlesworth v.
Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965);
Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840
(1948); People of the City of Detroit v. Sanchez, 18 Mich.App. 399,
171 N.W.2d 452 (1969).

      A governmental purpose to control or prevent certain
activities, which may be constitutionally subject to state or
municipal regulation under the police power, may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms.  Zwickler v. Koota,389 U.S. 241, 88 S.Ct.
391, 19 L.Ed.2d 444 (1967); Aptheker v. Secretary of State,  378
U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1963); NAACP v. Alabama,
377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964).  Even though
the governmental purpose may be legitimate and substantial, that
purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. 
Aptheker v. Secretary of State, Supra, and Shelton v. Tucker, 364
U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).  See also Colorado
Racing Commission v. Smaldone, Colo.,492 P.2d 619; Arnold v.
Denver, 171 Colo. 1, 464 P.2d 515 (1970); and Goldman v. Knecht,
295 F.Supp. 897 (D.C.Colo.1969).

      Judgment affirmed.