DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO, Case No. 94CR4013 Ctrm. 13 (County Court Case No. GS94-533160, Courtroom 151P) PLAINTIFF'S OPENING BRIEF THE PEOPLE OF THE CITY AND COUNTY OF DENVER AND STATE OF COLORADO, Plaintiff, vs. DARRELL ALLEN, Defendant. Plaintiff, City and County of Denver, (hereinafter referred to as the "City"), by and through its undersigned attorneys, hereby submits its Opening Brief in the above entitled matter, as follows: STATEMENT OF THE CASE On October 24, 1993, Denver police officer Randall Mark Chastain observed a vehicle with wheels extending beyond its fender wells [footnote 1]. Officer Chastain pulled the vehicle over and proceeded to pat down the occupants. [footnote 2] At this time, officer Chastain saw a black leather bag lying between the front seats. [footnote 2] Officer Chastain picked it up and when he asked the defendant what was in the bag, the defendant stated that there was a gun in the bag. [footnote 4] (Defendant's counsel --------------- 1. P. 6, Ins. 10-12, Transcriber's Transcript, ("TT"), describing a violation of D.R.M. C. section 54-78, requiring that wheels be completely covered. 2. P. 6, Ins. 15-16, TT. 3. P. 6, Ins. 4-6, TT. 4. P.6, Ins. 21-22, TT. [new page] did not challenge the search, conceding probable cause for the stop and the "plain view" doctrine.) [footnote 5] Officer Chastain then wrote the defendant two traffic citations for having "uncovered wheels" and for having no front license plate in violation of C.R.S. section 54-62, "License Plate Violation," [footnote 6] in addition to the charges of carrying a concealed weapon and unlawful carrying of a weapon, D.R.M.C. sections 38- 117(a) and 38-117(b), respectively. Officer Chastain recovered a 45 caliber Glock, Model 12, semi- automatic pistol together with two magazines and 21 rounds of ammunition. [footnote 7] The magazines were loaded with ammunition and were located in the glove box of the vehicle. [footnote 8] Officer Chastain estimated that it would take less than five seconds to load the pistol with the magazines from the glove box. [footnote 9] The defendant admitted to Officer Chastain that the pistol belonged to him (defendant). [footnote 10] Officer Chastain further stated that, at the time of the stop, he perceived no circumstances which might have constituted a direct or immediate threat of any kind. [footnote 11] At trial the defendant testified that he drove a nice car, perhaps a "show car. [footnote 12] He also established that the neighborhood in which he had lived and where he was stopped was known as --------------------- 5. P. 21, In. 13 through p. 22, In. 4, as supplemented by para. 4, Plaintiff s Corrections to Transcriber's Transcript. 6. P. 7, Ins. 10-13, TT. 7. P. 10, Ins. 6-10, TT. 8. P. 10. Ins. 15-17, TT. 9. P. 10, Ins. 18-21, TT. 10. P. 11, In. 22 through P. 12, In. 3, TT. 11. P. 13, Ins. 6-7, TT. 12. P. 14, Ins. 19-20, TT. 2 an area where gang activities and shootings took place. [footnote 13] Ella Mae Green Falls, the mother of the defendant, was called and testified that she lived at 455 Inca St., Denver, Colorado, and that her house had been shot at a number of times over the past five years. [footnote 14] She also testified that certain buildings in the immediate neighborhood were defaced by graffiti, some of it may have been gang oriented. [footnote 15] She testified that the defendant would occasionally stay overnight, [footnote 16] but that he had not resided at 455 Inca St. since 1990 or 1991. [footnote 17] Don'l Washington, a passenger in defendant's car at the time of the stop, testified that he was with the defendant during another incident which occurred approximately August of 1993 in which Mr. Washington thought there was an attempt to steal the defendant's wheels. [footnote 18] Mr. Washington testified that the 1993 event made him feel threatened. [footnote 19] The defendant then testified that on the date of the subject incident he was leaving his mother's house to go home. [footnote 20] He was driving his 1991 Hyundai, which has a custom paint job, gold trim and wire wheels. [footnote 21] Mr. Allen went on to describe a 1993 incident in which he believed ----------------- 13. P. 14, Ins. 4-24, TT. 14. P. 35, Ins. 15-25, TT. 15. P. 36 In. 18 through P. 37, In. 17, TT. 16. P. 40, Ins. 13-23, TT. 17. P. 33, In. 4, TT. 18. P.44, In. 25 through P. 45, In. 13, TT. 19. P. 45, Ins. 14-16, TT. 20. P.49, Ins. 11-14, TT. 21. P. 51, Ins. 2-9, TT, 3 that a "carload of guys" attempted to steal his car, ostensibly for its wheels. [footnote 22] He also testified that he has operated a mobile window tinting business out of a van since 1993. [footnote 23] Mr. Allen also complained of continuing problems with gang members and that he carries a gun because of the rough nature of his mother's neighborhood and due to his fear of being robbed. [footnote 24] Mr. Allen admitted that he had carried guns in his car since he first purchased it in 1991. [footnote 25] After argument by counsel, Judge Fine ruled that the affirmative defense to carrying a concealed weapon found in C.R.S. section 18-12-105 superseded the affirmative defense described in D.R.M.C. section 38-118(a)(1). He further ruled that the evidence produced by the defense sustained the statutory affirmative defense and dismissed the charge of having carried a concealed weapon. In addition, Judge Fine dismissed the charge of 38-117(b), unlawful carrying of a weapon, based on his decision that it would be "illogical" to find the defendant not guilty of carrying a concealed weapon, yet guilty of the unlawful carrying charge. [footnote 26] STATEMENT OF ISSUES [footnote 27] 22. P. 51, Ins. 13 -25, TT. 23. P. 54, Ins. 9-17, TT. 24. P. 55, In. 22 through P. 5 6, In. 4, TT. 25. P. 59, Ins. 6-14, TT. 26. P. 83, Ins. 20-23, TT. 27.The City's Notice of Appeal designates two issues, the first which is restated herein, and a second which questioned the trial court's invalidation of D.R.M.C. section 38-117(b). Upon closer scrutiny of the Transcript, it appears that the trial court did not invalidate section 38-117(b) of the City's ordinances, but merely applied the state affirmative defense statute to apply equally to that section by logical extension. Due to this understanding of the trial court's ruling, the City will not brief the second issue mentioned in its Notice of Appeal. 4 I. THE TRIAL COURT ERRED IN DETERMINING THAT D.R.M.C. section 38- 118(a)(1) IS PRE-EMPTED BY C.R.S. section 18-12-105 (2)(b), AND THEREBY IS UNENFORCEABLE. ARGUMENT 1. D.R.M.C. section 38-118(a)(1) is not preempted by C.R.S. section 18-12-105(2)(b). A. Authority of Home Rule Cities in Colorado. The Supreme Court of Colorado has recognized three broad categories in delineating the extent of the authority to enact certain kinds of legislation as between the state legislature and home rule municipalities: 1) matters of purely local concern; 2) matters of mixed local and statewide concern, and; 3) matters of statewide concern. See, City and County of Denver v. State, 788 P.2d 764 (Colo. 1990); City and County of Denver v. Board of County Commissioners, 782 P.2d 753 (Colo. 1989); National Advertising Company v. Department of Highways, 751 P.2d 632 (Colo. 1988); City and Count of Denver v. Colorado River Water Conservancy District, 696 P.2d 730 (Colo. 1985); Denver Rio Grande & Western R. Co, v. Denver, 673 P.2d 353 (Colo. 1983); Woolverton v. City and County of Denver, 361 P.2d 982 (Colo. 1961). i) Matters of Exclusively Local and Municipal Affairs. The Home Rule Amendment to the Colorado Constitution grants home rule municipalities the authority to enact and enforce ordinances involving local affairs. Colorado Constitution, Article XX, Sec. 6. See, R.E.N. v. City of Colorado Springs, 823 P.2d 1359 (Colo. 1992); City and County of Denver v. State, 788 P.2d 764 (Colo. 1990). In matters of local concern, both home rule cities and the state may legislate. City and County of Denver v. State, 788 P.2d at p. 767 (Colo. 1990), citing Conrad v. City and Count of Thornton, 191 Colo. 444, 448, 553 P.2d 5 822, 825 (Colo. 1976). However, when a home rule ordinance or charter provision and a state statute conflict with respect to an exclusively local matter, the home rule provision supercedes the conflicting state interest. R.E.N. v. City of Colorado Springs, 823 P.2d 1359 (Colo. 1992); City and County of Denver v. State, 788 P.2d 764 (Colo. 1990); City and County of Denver v. State, 788 P.2d 764 (Colo. 1990); City of Greenwood Village v. Fleming, 643 P.2d 511 (Colo. 1982); DeLong v. Denver, 195 Colo. 27, 576 P.2d 537 (Colo. 1978); People v. Hizhniak, 195 Colo. 427, 579 P.2d 1131 (Colo. 1978); Bennion v. City and County of Denver, 504 P.2d 350 (Colo. 1972). ii) Matters of Exclusively Statewide Concern. In matters of statewide concern, the General Assembly may adopt legislation and home rule municipalities are without power to act unless authorized by the constitution or by state statute. City and County of Denver v. State, 788 P.2d 764 (Colo. 1990); City and Count of Denver v. Colorado River Water Conservancy District, 696 P.2d 730, 740 (Colo. 1985); Century Electric v. Stone, 193 Colo. 181, 564 P.2d 953 (Colo. 1977); Pierce v. Denver, 193 Colo. 347, 565 P.2d 1337 (Colo. 1977). iii) Matters of Mixed Local and Statewide Concern. A charter or ordinance provision of a home rule municipality may coexist with a state statute as long as there is no conflict. Where there is conflict, the state statute supersedes the conflicting provision of the charter or ordinance. City and County of Denver v. State, 788 P.2d 764, 767 (Colo. 1990); City and County of Denver v. Colorado River Water Conservancy District, 696 P.2d 730 (Colo. 1985); National Advertising Company v. Department of Highways, 751 P.2d 632, 635 (Colo. 1988); Denver Rio Grande & Western R. Co. v. Denver, 673 P.2d 353, 358 (Colo. 1983). 6 The trial court did not clearly specify whether the regulation of firearms is only local, only state or a matter of mixed local and statewide concern. Assuming that, inasmuch as the state legislature has passed legislation in the area of firearms regulation, firearms regulation is not a matter of purely local concern, it must be determined whether it is one of exclusively state concern or one of mixed local and state concern. Case law suggests that regulation of weapons is a matter of mixed local and state concern. In Robertson v. City & County of Denver, No. 90CV603, slip op. (Denver Dist. Ct., Feb. 26, 1993), rev'd on other grounds, No. 93SA91, slip op. (Colo., May 2, 1994), Denver District Court Judge Mullins found it to be an area of mixed local and state concern when examining Denver's municipal ordinance on assault weapons. [footnote 28] Id. at p. 25. In R.E.N. v. City of Colorado Springs, 823 P.2d 1359, 1362 (Colo. 1992), the Colorado Supreme Court agreed that both the municipalities and the state have a strong interest in prosecuting and deterring unlawful concealment of weapons. 2. There is no conflict between the City's ordinance and the state statute in this case. In the instant case, the issue before the court was whether the local ordinance providing for an affirmative defense to the charge of carrying a concealed weapon, D.R.M.C. section38-118 (a)(1), was in direct conflict with C.R. S. section 18-12- 105(2)(b), thus rendering the city ordinance provision void. The trial court determined that there was a conflict and acquitted the defendant based on the state statutory affirmative defense. The two provisions read as follows: D.R.M.C. section38-118(a)(1): "(a) It shall be an affirmative defense to charges brought under section 38-117(a) or 38-117(b) that the weapon is or was carried by a person: -------------- 28. A copy of Judge Mullins slip opinion is attached hereto as appendix A. 7 (1) In a private automobile or other private means of conveyance for lawful protection of their or another's person or property, when there is a direct and immediate threat thereto, while travelling away from the area of their residence or business," [emphasis added] C.R.S. section18-12-105(2)(b): "(2) It shall be an affirmative defense [to carrying a concealed firearm] that the defendant was: * * * (b) A person in a private automobile or other private means of conveyance who carries a weapon for lawful protection of such person's or another's person or property while travelling;" A comparison of the two affirmative defense provisions reveals that the only substantial differences between them involve the wording emphasized in bold print in the city ordinance dealing with "direct and immediate threat" and travelling "away from the area of their residence or business." The test for determining whether a conflict exists is if the ordinance authorizes that which the statute expressly forbids, or prohibits that which the statute expressly authorizes. R.E.N. v. City of Colorado Springs, 823 P.2d 1359, 1362 (Colo. 1992); City of Aurora v. Martin, 507 P.2d 868, 869-870 (Colo. 1973); City and County of Denver v. Waits, 197 Colo. 563, 595 P.2d 248 (Colo. 1979), citing Vela v. People, 174 Colo. 465, 484 P.2d 1204 (Colo. 1971): [footnote 29] "'[W]here both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden, or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot co-exist and be effective. We note first that Waits does not cite any statute which permits or ------------------------ 29. Waits involved a challenge to a definition which included an unloaded revolver as a "dangerous weapon" under a Denver ordinance prohibiting the flourishing of a dangerous weapon. 8 prohibits certain activities which the municipal ordinance here would contravene. Rather, he maintains that the statutory definition itself precludes any ordinance which does not incorporate the definition. Since the statutory definition alone does not preclude or permit certain activities, thus conflicting with the ordinance, the argument regarding preemption is without merit." [595 P.2d at p. 250]. It is clear that the ordinance provision is more restrictive than the statute, and therefore, it does not authorize anything that is forbidden by the statute. More important, that ordinance does not forbid that which the statute expressly authorizes. The ordinance merely defines the specific requirement of "lawful protection" as articulated in the statute. The ordinance sets forth the requirements of the defendant to establish a foundation in both time and direction of danger to himself, another person, or their property, before being entitled to an instruction for an affirmative defense based on self-defense. This showing of imminent danger has always been a prerequisite to being entitled to a self-defense instruction. See, Baccate v. People, 800 P.2d 74 (Colo. 1990). While the ordinance requires a showing of both a "direct and immediate threat" together with a travelling "away from the area of their residence or business," the statute does not expressly permit the carrying of a weapon under the specific circumstances prohibited by the ordinance, e.g., in the absence of a "direct and immediate threat" at any and all times while in a private vehicle. CONCLUSION The state's affirmative defense statute authorizes the carrying of a concealed weapon in a private vehicle for purposes of "lawful protection," as does the City ordinance affirmative defense. The difference between the two is that, due to the needs of the urban environment, the City's affirmative defense refines the concept of lawful protection by further specifying the circum- 9 stances that define the term "lawful protection." This refinement is necessarily a consequence of urban gang culture and the general proliferation of handguns in urban life. People simply don't carry weapons in the City for control of vermin and coyotes; people carry weapons primarily for use upon other people. Consequently, additional restrictions on the use of weapons are desirable, so long as such restrictions do not prohibit a use which is expressly permitted by state law. The City's affirmative defense does permit the carrying of a weapon, whether concealed or not, for lawful protection. What the City's ordinance does restrict is the ability to carry weapons for protection based on subjective and/or speculative fear of unspecified dangers. Nothing in the state statute expressly states that a person is authorized to carry a concealed weapon for unspecified and/or speculative danger. To interpret the application of the affirmative defenses otherwise effectively bestows upon every individual in this state the power to issue themselves a concealed weapons permit if they feel any threat whatsoever, rational or not. It is, therefore, submitted, that the affirmative defense set forth in D.R.M.C. section 38-118(a)(1) does not conflict with C.R.S. section 18-12-105(2)(b) and that the ordinance continues to set forth an affirmative defense which may be relied upon by the City in prosecution of City weapons violations under section 38- 117(a) and (b). Accordingly, the City requests that this Court issue an Order of disapproval to the trial court regarding its invalidation of the City's affirmative defense ordinance. Respectfully submitted, DANIEL E. MUSE, No. 6229 City Attorney JAMES C. THOMAS, No. 13583 PAUL W. PUCKETT, No. 5885 10 Assistant City Attorneys Paul W. Puckett 303 W. Colfax Ave., Suite 500 Denver, CO 80202 (303)640-2489 CERTIFICATE OF MAILING The undersigned hereby certifies that a true copy of the foregoing APPELLANT'S OPENING BRIEF was deposited in the U.S. Mail, postage prepaid, this, 23rd day of June, 1995, addressed to the following: Neil S. Silver 1536 Ogden St. Denver, CO Denver, CO 80218