DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO Civil Action No. 90CV603 Courtroom 14 -------------------------------------------------------------- ORDER -------------------------------------------------------------- LAWRENCE M. ROBERTSON, JR., M.D.; SHARON DEATHERAGE; JEFFREY HECHT; and DAVID JEWELL, d/b/a Scotties Guns & Militaria, Plaintiffs, STATE OF COLORADO ex rel. Gale A. Norton Plaintiff-Intervenor, V. THE CITY AND COUNTY OF DENVER; ARI ZAVARAS, Chief of Police of the City and County of Denver; and MANUEL MARTINEZ, Manager of Safety and Ex-Officio Sheriff of the City and County of Denver, Defendants. ------------------------------------------------------------------ THIS MATTER is before the Court on Defendants' Motion for Summary Judgement and Plaintiffs and Plaintiff-Intervenor's (hereinafter collectively referred to as "Plaintiffs") Cross Motion for Summary Judgement. THE COURT having reviewed the Motions, the Response, the Reply, relevant authorities, the court file, and otherwise being sufficiently advised in the premises, finds, rules and orders as follows: Summary judgment is a drastic remedy that is warranted only on a clear showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P 56. Although the party opposing summary judgment is entitled to the benefit of all favorable inferences that may be drawn from the facts contained in the record, the movant's motion must be granted where the facts are undisputed and the opposing party cannot prevail as a matter law. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo. 1987). In this matter, many of the facts referred to are not disputed. However, where disputed fact exist, the Court has resolved conflicts of facts and made all inferences that may be drawn from the fact in favor of the parties opposing an issue. I. STANDING A party seeking declaratory relief must demonstrate that the challenged statute or ordinance will likely cause tangible detriment to conduct or activities that are presently occurring or are likely to occur in the near future. However, a party need not risk the imposition of fines or imprisonment or the loss of property to secure the adjudication of uncertain legal rights. Mt. Emmons Min. Co. v. Town of Crested Butte, 690 P.2d 231 (Colo. 1984). Plaintiffs are citizens of the City and County of Denver (hereinafter referred to as "the city"). The ordinance at issue, Ordinance No. 669, Series 1989, codified as Section 38-130, (hereinafter referred to as "the ordinance"), involves criminal penalties for possessing, carrying, storing, keeping, manufacturing, or selling an "assault weapon" in the City and County of Denver. Plaintiffs' conduct and activities are subject to the restrictions concerning assault weapons proscribed by the ordinance and are subject to criminal penalties for failure to comply with the same; therefore, the Court finds that the Plaintiffs do have standing to challenge the constitutionality of the ordinance. II. OVERBREADTH: ARTICLE II, SECTION 13, RIGHT TO BARE ARKS On November 6, 1989, the City Council of the City and County of Denver (hereinafter referred to as "the Council") enacted the ordinance at issue relating to the possession, use, and sale of certain semi-automatic assault weapons in the City and County of Denver. Section 38-130(a) states the legislative intent of the Council in enacting the ordinance. It reads: "The city council hereby finds and declares that the use of assault weapons poses a threat to the health, safety and security of all citizens of the City and County of Denver. Further, the council finds that assault weapons are capable both of a rapid rate of fire as well as a capacity to fire an inordinately large number of rounds without reloading and are designed primarily for military or antipersonnel use. The city council finds that law enforcement agencies report increased use of assault weapons for criminal activities. This has resulted in a record number of related homicides and injuries to citizens and law enforcement officers. It is, therefore, the intent of the city council to place reasonable and necessary restrictions on the sale and possession of assault weapons while placing no restrictions on the right of citizens to use weapons which are primarily designed and intended for hunting, target practice and other legitimate sports or recreational activities and the protection of home, person and property." Plaintiffs have asserted, inter alia, that the ordinance is in derivation of the constitutional guarantee of the rights to keep and bear arms pursuant to Article II, Section 13 of the Colorado Constitution, which states: "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 in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Legislation designed to protect the public's health and safety is entitled to a presumption of constitutionality. People v. Unruh, 713 P.2d 370, 373 (Colo.), cert. denied, 476 U.S. 1176 (1986); People v. Riley, 708 P.2d 1359, 1362 (Colo. 1985) A party challenging a public safety law must prove the unconstitutionality of a legislative ordinance beyond a reasonable doubt. Riley, 708 P.2d at 1362; High Gear & Toke Shop v. Beacom, 689 P.2d at 630. When the constitutionality of an ordinance is challenged, the court must make a threshold analysis to determine the appropriate standard to be applied to an ordinance to determine its constitutionality. Zavala v. City and County of Denver, 759 P.2d 664, (Colo. 1988); Lujan v. Colorado State Bd. of Ed., 649 P.2d 1005 (Colo. 1982). The first step in this analysis is to determine the nature of the right involved. Courts have recognized three categories of constitutional rights. They are fundamental rights, important rights but not fundamental, and standard rights. The standard of review depends on the nature of the constitutional right involved in the specific case. Defendants argue that no case has recognized the right to bear arms as fundamental and that People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975) and People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977) stand for the proposition that the Supreme Court has determined that the right to bare [sic] arms pursuant to Article II, Section 13, is not "fundamental." However, in Blue and Ford, because their possession was not for protection of home, person, or property or civil defense, the defendants were clearly outside the scope of the right to keep and bear arms guaranteed by the Colorado Constitution. Under the circumstances enumerated in Blue and Ford, the possession of arms is not a fundamental right. This Court's interpretation of Article II, Section 13, is consistent with the Colorado Supreme Court's interpretation in Blue, wherein it is stated that: "We do not read the Colorado Constitution as granting an absolute right to bear arms under all situations. It has limiting language dealing with defense of home, person, and property. These limitations have been recognized by the General Assembly in the enactment of section 18-12-105, C.R.S. 1973, which restricts the right to bear arms in certain circumstances, while permitting in other circumstances the carrying of a concealed weapon in defense of home, person, and property, and also when specifically authorized by written permit. * * * * * . . .[T]he state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protection. 544 P.2d at 391. Further, in People v. Ford, the Colorado Supreme Court held: "In People v. Blue, [cite omitted], we recognized that the right to bear arms is not absolute; the Colorado Constitution limits that right to the defense of one's home, person, and property. Thus, statutes enacted pursuant to the state's police power may validly restrict or regulate the right to possess arms where the purpose of such possession is not a constitutionally protected one." 568 P.2d at 28[.] The Colorado Constitution explicitly guarantees the right to keep and bear arms. Further, the guarantee has been specifically declared to be "fundamental" by the Colorado Supreme Court. Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972). In Lakewood, supra, the Supreme Court struck down a law against the carrying and sale of firearms because the law served to "broadly stifle fundamental personal liberties," (emphasis added) Id. at 745. Here, the ordinance bans the possession and sale of assault weapons to all citizens of the City; hence, consistent with Lakewood, the Court finds that the ordinance restricts a person's fundamental right to keep and bear arms in defense of his home, person and property. Once the nature of the right has been ascertained, the second step in the analysis is to determine which standard applies to that right. If a fundamental right is affected, as in this case, the ordinance will survive a constitutional challenge upon a showing that the regulation is narrowly tailored to serve a compelling governmental interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); San Antonio School District v. Rodriguez, 411 U.S. 1 (1973; Zavala v. City and County of Denver, supra; Tassian v. People, 731 P.2d 672 (Colo. 1987); Heninger v. Charnes, 613 P.2d 884 (Colo. 1980). Thus, the third step in this constitutional analysis is to determine what governmental interest is involved and whether that interest is compelling. Plaintiffs argue in their analysis of the legislative intent, as stated in Section 38-130(a), that the legislative intent of the ordinance is based on insupportable factual conclusions. In contrast, The Council, as a basis for the ban, states that the assault weapons are designed primarily for "military or antipersonnel use." Both the Plaintiffs and Defendants argue extensively about the various features of the weapons listed in Section 38-130(h). Plaintiffs argue that certain features of the weapons justify the ban, and Defendants argue conversely that they do not. Pursuant to Section 38-130(a)(1), an "assault weapon" may contain certain features. Whether those features are present on a particular weapon is not determinative that the weapon is an "assault weapon." The determining characteristics are set forth in Sections 38-130(a)(1)a through f of the ordinance. Having reviewed these sections, the Court finds that the original design use of an assault weapon is insufficient ground for restricting the possession and sell of assault weapons. Further, concerning "antipersonnel use", Article II, Section 13, of the Colorado Constitution specifically provides for antipersonnel use of arms for the protection of home, person or property. The fact that these weapon were originally designed for "antipersonnel and military use", in and of itself, does not make them more susceptible to restriction than any other weapon. Continuing, the ordinance states that the assault weapons are capable of "a rapid rate of fire." The Court finds that all semiautomatics fire one and only one shot per trigger pull and that all semiautomatics can fire no more rapidly than the shooter can repeatedly squeeze the trigger. Therefore, the ban on semiautomatics based on "rate of fire", without more, is not supportable. However, the stated legislative intent does not limit its basis for the ban to "rate of fire." In conjunction with the rate of fire typical of semiautomatics is the capability of the assault weapon "to fire an inordinately large number of rounds without reloading." These capabilities of the assault weapons are well suited for use in drive by shootings, where a perpetrator-can direct a large amount of projectiles at a target in a relative short period of time in a moving vehicle and increase the chances of hitting the target. This is a concern of the City. As expressed in his affidavit, Artistedes W. Zavaras, former Chief of Police for the City states that gang activity, "including drive by shootings, began to be a significant problem about four years ago and . . . [that] it remains a significant problem." Plaintiffs assert that data from the "FBI and other law enforcement agencies demonstrates that 'assault weapons' are only a very small percentage of the firearms involved in injuries or homicides to civilians or police officers nationally." Plaintiffs further argue that the guns which Defendants define as assault weapons constitute only a tiny percentage of guns used in crime, including those in the cities with the most intense drug violence. However, the mere fact that assault weapons are used in a small percentage of crime does not negate a need for the legislation. Rather, the determination of a "compelling governmental interest" is not limited to a statistical analysis. A governmental legislative body need not wait until the use of assault weapons become common place in the commission of crimes before it can restrict the possession or sale of assault weapons. Thus, because there exist both a capability of rapid rate of fire and the capacity to fire an inordinately large number of rounds without reloading, the Court determines that assault weapons are intrinsically harmful to citizen of the City. Having, made this determination, the Court finds that there is a compelling governmental interest to protect citizens from injuries resulting from the use of assault weapons. Lastly, the fourth and final step in this analysis is to determine if the ordinance is narrowly tailored to serve the compelling governmental interest. Both the Plaintiffs and the Defendants have interpreted the ordinance as a ban on the weapon itself, particularly those listed in Section 38-130(h), without regard to magazine size. Section 38-130(b)(1) of the ordinance defines "assault weapons" as follows, in pertinent part: "The general characteristics of an assault weapon . . . shall include all firearms with any of the following characteristics: a. All semiautomatic action, centerfire rifles with a detachable magazine with a capacity of twenty-one (211 or more rounds. b. All semiautomatic shotguns with . . . a magazine capacity of more than six (6) rounds or both. c. All semiautomatic pistols that are modifications of rifles . . . originally designed to accept magazines with a capacity of twenty-one (21) or more rounds. e. Any part or combination of parts designed or intended to convert a firearm into an assault weapon, including a detachable magazine with a capacity of twenty-one (21) or more rounds, f. Any weapon listed in subsection (h)." Section 38-130(e) [footnote 1] regulates assault weapon as defined by Section 38-130(b)(1) with detachable magazines or fixed magazines [footnote 2], which have a capacity beyond that allowed by the ordinance. Thus, it follows that Section 38-130(e) does not regulate semiautomatic weapons, which have a magazine capacity less than that allowed by the ordinance. Plaintiffs and Defendants argue that Section 38-130(h), which list specific weapon manufactured by certain manufacturer, regulate the weapon without regards to magazine size. If Plaintiffs and Defendants interpretation of Section 38-130(h) is correct, the ordinance sets up a scheme where Section 38-130(e) regulates assault weapons based on magazine size and Section 38130(h) regulates the specific weapon without regards to magazine size. Assuming the Plaintiffs and the Defendants are correct in their interpretation of Section 38-130(h), a ban of the weapon itself would accomplish the City's desired results. However, a governmental purpose "cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Lakewood, 501 P.2d at 745. Based on the findings of this Court, the compelling governmental interest is to regulate the capability of the weapon to "fire an inordinately large number of rounds without reloading." The firing capacity is dictated by the magazine size and not the weapon. Therefore, the ordinance's ban on assault weapons, without regards to the magazine size, would not be narrowly tailored to serve the compelling governmental interest found by this Court. However, the Court does not agree with the Plaintiffs' and Defendants' interpretation of Section 38-130(h). Section 38- 130(b)(l)a through f of the ordinance defines an assault weapon, among other things, based on the capacity of the magazine. Section 38-130(h) of the ordinance is a declaration by the City that the weapons contained on the list "[are] assault weapons", and are banned by the ordinance. Section 38-130(h) of the ordinance does not make reference to magazine size. If separate provisions within an ordinance scheme may be harmonized by one construction, but would be antagonistic under a different construction, the court should adopt that construction which results in harmony rather than that which produces inconsistency. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978). Consistent with Mooney, this Court adopts the construction where Section 38-130(h) is a legislative determination that the weapons contained in the list are assault weapons as defined by Sections 38-130(b), which regulates the magazine size. The weapons specifically listed in Section 38-130(h) are illegal only if they have magazines, which exceed the capacity allowed pursuant to Section 38-130(b)(1). Based on the foregoing interpretation of the Court, the ordinance is narrowly tailored to serve the previously determined compelling governmental interest. Thus, the ordinance does not violate Article II, Section 13, and is not constitutionaly [sic] overbroad as it relates to the ban on "assault weapons." III. OVERBREADTH BAN ON SHOTGUNS WITH FOLDING STOCK Section 38-130(b)(l)c describes a semiautomatic shotgun with a folding stock as an "assault weapon". The Court finds that there is no compelling governmental interest, to justify the ban on shot guns with folding stocks. Defendants argue that the folding stock make a gun smaller; and thus, more easily concealable, which increases the danger to citizens and police officers. Even though the ordinance does not specify a determinable length where the Court can determine if a folding stock would make the shotgun more easily concealable, the Court will assume for the purpose of this issue that it will. The Court finds that the mere assertion that the weapon is easily concealable is insufficient to support a finding of a compelling state interest. If the ability to conceal was the only factor, then a complete ban on all handguns would be justifiable. This is not reasonable. Accordingly, the Court finds that Section 38-130(b)(l)c is unconstitutionally overbroad as it pertains to banning semiautomatic shotguns with folding stocks. BAN ON USE OF LEGALLY POSSESSED ASSAULT WEAPONS FOR THE PURPOSE OF SELF-DEFENSE Section 38-130(e) makes unlawful the carrying, storing, keeping, manufacturing, selling or otherwise possessing an assault weapon in the City, except the following: "(3) The transportation of any assault weapon through the city by a nonresident who is in legal possession of an assault weapon or a person carrying a permit issued under subsection (f) for the purposes and under the conditions set forth in subsections (b)(2) through (b)(5). [Section 38-118] Revised Municipal Code." (emphasis added) The ordinance allows registered firearms to be used for the purposes set forth in "(b)(2) through (b)(5)" of Section 38-118. specifically, omitted by the ordinance is Section 38-118(b)(1), which provides that a legitimate use of a firearm is in "defense of home, person or property." Plaintiffs argue that the ban on use for self-defense violates Article II, Section 3 of the Colorado Constitution, which declares, "All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of . . . protecting property; and of seeking and obtaining their safety. . ." Plaintiffs further argue that the deliberate omission of authorization to use a registered firearm for self-defense interfere with the right of bearing arms for the purposes guaranteed by Article II, Section 13, of the Colorado Constitution. The Court finds that limiting the use of the weapons in such a manner that the weapons can not legally be used for the purpose of defense of person, property or home is in direct conflict with Article II, Sections 3 and 13, of the Colorado Constitution. The ordinance makes unlawful the possession of an assault weapon, notwithstanding that the possessor is otherwise in legal possession, when the possessor uses the weapon for defense of home,.person or property. Therefore, Section 38-130(e)(3) of the ordinance is unconstitutionally overbroad as it pertains to persons in legal possession of an assault weapon. It precludes constitutionally protected conduct. OVERBREADTH: ARTICLE XVII, MILITIA Plaintiffs argue that the State of Colorado has been granted by the Colorado Constitution the authority to maintain a militia, which includes able-bodied adult males such as Plaintiffs Robertson, Hecht, and Jewell. Plaintiffs assert that the ordinance prohibits some militia members from providing their own arms, and thereby violates the State of Colorado's constitutional authority to maintain a militia pursuant to Colorado Constitution, Article XVII. Article XVII of the Colorado Constitution creates the militia of the State of Colorado. The Constitution defines the membership of the militia, and its type of equipment. Plaintiffs argue that because the ordinance bans arms that are similar to those used by the United States Army [footnote 3], the ordinance prohibits the possession of arms appropriate for use in the militia, and is for that reason unconstitutional. Plaintiffs in support of their position assert that the State of Colorado's traditional and current policy requires most militia members to arm themselves at their own expense, to buy their own ammunition at retail prices, and to train themselves on their own time. However, the Plaintiffs admit that the Colorado Constitution does not mandate that all or any militia members be armed through their own private efforts. To the contrary, Defendants assert that Article XVII of the Colorado Constitution does not create an individual right to bare arms and that the State of Colorado pursuant to the constitution and statutory provisions supply arm to the militia. Municipal law may not hinder or undercut state laws or the policies underlying them. Phillips v. City of Denver, 19 Colo. 179, 34 P. 902 (1893). Section 28-3-704, C.R.S., provides that arms and equipment for the national guard shall be procured and issued by the proper officers as the needs of the service may require. Section 28-4- 107, C.R.S., provides that the governor is authorized to requisition arms and equipment for the state defense force. Article XVII, Section 4, concerning the militia, requires the general assembly to provide for the safekeeping of the public arms. These statutes and constitutional provision do not make reference to, or provide support for any inference that the militia statues incorporate any assumption that persons called-up to serve in the militia would supply their own arms. Certainly, if a citizen, armed with his own weapon, is summoned to aid the state pursuant to state law, it would be of benefit to the State. However, whether or not it might benefit the state is not the issue. The question is whether there is a state policy that citizens use their private arms when summoned by the state? Where a genuine material issue of fact exist, the Court can not enter summary judgement. C.R.C.P 56. Conversely, where no material issue of genuine fact exist, summary judgment is appropriate. Again, Defendants deny there is a "state policy." Because Plaintiffs assert that there is a "state policy", C.R.C.P. 56 requires Plaintiffs to adequately demonstrate by relevant and specific facts that a controversy exist concerning such existence. Plaintiffs have not provided any affidavits or other competent evidence in support of their assertion of a "state policy". Thus, Plaintiffs have failed to demonstrate that a controversy exist. An affirmative showing of specific facts probative of right to judgment, uncontradicted by any counter affidavits submitted, leaves a trial court with no alternative but to conclude that no genuine issue of material fact exists. Terrell v. Walter E. Heller & Co., 165 Colo. 463, 439 P.2d 989 (1968). Accordingly, this Court, therefore concludes that there is not a "state policy" requiring militia members to arm themselves at their own expense, to buy their own ammunition at retail prices, and to train themselves on their own time. The state's militia power under Article XVII is congruent with Article II, Section 13, which guarantees to citizen of the State of Colorado not only the right to keep and bear arms for personal defense, but also "in aid of the civil power." In conjunction with the foregoing issue concerning the militia power of the state pursuant to Article XVII, the Court has considered whether the ordinance violates Article II, Section 13, pertaining to the right to bear arms "in aid of the civil power when thereto legally summoned." (emphasis added). Section 38- 130(e)(1) of the ordinance provides that the ban on assault weapons does not apply to "any federal, state or local government agency or to any sworn members of said agencies acting within their official capacities." Therefore, the Court finds that the ban does not apply to those persons legally summoned in aid of the civil power. Accordingly, this Court concludes, as a matter of law, the ordinance in question does not violate Articles XVII and II of the Colorado Constitution pertaining to the militia power of the state and to a citizens right to bare [sic] arms in aid of the civil power. IV. VAGUENESS In analyzing a vagueness question, the courts employ a two part test. First, an ordinance is void for vagueness if its prohibitions are not sufficiently defined so as to give warning of the type of conduct that is prohibited. Thus, if persons of common intelligence must guess at the law's meaning and differ as to its application, the law must fail. Second, a statute or regulation is void for vagueness if it contains no explicit standards for application such that a danger of arbitrary and capricious enforcement exists. If one is deprived of liberty or property for violating a statutory prohibition, due process requires that the prohibition be explicit enough to allow for meaningful judicial review. LDS, Inc. v. Healey, 197 Colo. 19, 21, 589 P.2d 490, 491 (1979). "When criminal or quasi-criminal sanctions are to be imposed," the Constitution is especially demanding that the law be specific and comprehensible. Trail Ridge Ford v. Colorado Dealer Licensing Board, 190 Colo. 82, 543 P.2d 1245, 1246 (1946). While a court should always, if possible, construe an ordinance so as to find it constitutional, a court may not cure a vagueness defect by rewriting the law, such a rewriting being within the exclusive province of the legislature or, as in this case, the Council. Lee v. Smith, 772 P.2d 82 (Colo. 1989). SECTION 38-130(b)(1) Section 38-130(b)(1) defines "assault weapon." Initially, the definition gives general characteristics of an assault, [sic] which is not exhaustive. An assault weapon may include the following features, according to the ordinance: 1. A shorter length than recreational fire arms; 2. A folding stock; 3. A modification of an automatic firearm originally designed for military use; and 4. A greater rate of fire or firing capacity than reasonably necessary for legitimate sports, recreational or protection activities. The ordinance refers to weapons which may have "a shorter length than recreational firearms." Citizens must therefore guess what length a "recreational firearm" possesses. Although a statute or ordinance is not necessarily required to provide a yardstick definition, where a citizen can measure the length and determine if the weapon is illegal, the statute or ordinance must give some standard whereby a citizen or persons of common intelligence would not have to guess as to its meaning. No where in the ordinance is there a definition of the length of "recreational firearms." As to vagueness, Plaintiffs argue that the manner the ordinance uses the phrases "legitimate sports" and "reasonably necessary for legitimate sports" or recreational activities renders the ordinance impermissibly vague. The Court disagrees. The Court's interpretation of the ordinance concerning the definition of "assault weapons", as it pertains to "legitimate sports" or weapons with greater "firing capacity than reasonably necessary for legitimate sports, recreational or protection activities," includes all weapons, as determined by the Council, which have the characteristic described in Sections 38-130(b)(1)a through f. Sections 38-130(b)(1)a through f specifically address the issue of "firing capacity" by limiting magazine size. Thus, if a weapon exceeds these characteristics, then the weapon is not reasonably necessary for legitimate sports or recreational activities, as determined by the Council. However, the Court finds that the phrase "a greater rate of fire" has no meaningful definition, since all semiautomatics have the same rate of fire. Therefore, the phrase "a greater rate of fire" in the context of semiautomatic weapons, is unconstitutionally vague. SECTION 38-130(b)(1)c Plaintiffs also challenge Section 38-130(b)(1)c, which provides the definition of a semiautomatic pistols as: "All semiautomatic pistols that are modifications of rifles having the same make, caliber and action design but a shorter barrel and no rear stock or modifications of automatic weapons originally designed to accept magazines with a capacity of twenty-one (21) or more rounds." Plaintiffs argue that the ordinance classifies pistols as "assault weapons" based on their design history. Plaintiffs further argue that a person of common intelligence has no reasonable basis for determining if a particular pistol was originally based on a rifle design or based on the design of an automatic weapon. The Court agrees. Persons attempting to comply with this section must also learn not only what guns their pistol was designed from, but also learn the design history of the ancestor guns to determine if it was automatic weapon "originally designed to accept magazines with a capacity of twenty-one (21) or more rounds" [footnote 4] or if it has "the same" action design. These characteristics can not be readily obtained by a person of common intelligence. Defendants counter the Plaintiffs argument by incorporating in their argument references to resource materials for examples of assault pistol meeting the description in section 38130(b)(1)c for support that the section is not unconstitutionally vague. In Colorado Dog Fanciers, Inc. v. City and County of Denver, 820 P.2d 644 (Colo. 1991) the Court rejected an argument that an ordinance restricting the possession of a "pit bull" was unconstitutionally vague because the ordinance failed to list the majority of physical traits that are to be used to determine whether a dog is a pit bull. The Court held: "Admittedly, the ordinance does not list the specific physical traits of the American Pit Bull, American Staffordshire, or the Staffordshire Bull terriers. These characteristics, however, may readily be ascertained by referring to the official standards of the American Kennel Club (AKC) and the United Kennel Club (UKC) [footnote 5]." 820 P.2d at 651, 652 Unlike the ordinance in Colorado Dog Fanciers, Inc., supra, Section 38-130(b)(1)c does not incorporate a source where a person can readily ascertain those pistols which are legal and those pistols which are illegal. Therefore, Section 38-130(b)(l)c is unconstitutionally vague. SECTION 38-130(c) Plaintiffs argue that Section 38-130(c), which, inter alia, exempts certain firearms from the ban, including both "all weapons that were in production prior to 1898" and "all semiautomatic weapons in production prior to 1954," is virtually impossible to construe because the ordinance makes the year of the exemption both 1898 and 1954. Since the ordinance applies only to semiautomatic weapons, the Court finds that the exemption applies to all semiautomatics produced prior to 1954. The exemption for weapons produced prior to 1898 has no effect since such weapons would be exempt as being produced prior to 1954. SECTION 38-130(f)(2) Section 38-130(f)(2) provides: "The place of storage . . . shall not be changed without notification to the department of the proposed change in location and when such weapon will be transported." Plaintiffs argue that Section-130(f)(2) is vague and could be interpreted to require notification to the department of any movement of the weapon, i.e. transporting an assault weapon to a shooting range, and is not limited to change of location of "permanent storage." Defendants argue that this section is specifically limited to movement of the weapon from one location to another for "permanent storage" and does not require notification for uses authorized by Section 38-130(e)(3). This Court agrees with the Defendants' argument. When construing an ordinance or statute, a court is obligated to give consistent and sensible effect to all its parts. People v. Beyer, 768 P.2d 746 (Colo. App. 1988). The court in People v. One 1967 Ford Mustang, 781 P.2d 186 (Colo. App.) held: "'Storage' denotes that an item is left at a location for some period of time. It is not synonymous with possession. [cites omitted] Generally, the term 'storage' indicates duration and not a transient situation." 781 P.2d at 187. "Storage" as used in the ordinance before this Court means the location where the weapon is generally located, when not in use, and shall not include temporary locations. Accordingly, this Court finds that Section 38-130(f)(2) is not vague regarding transportation of an assault weapon to a new place of storage. SECTION 38-130(h) Plaintiffs argue that Section 38-130(h), which contains a list of firearms banned by trade name and trademark, is void for vagueness because it includes many guns that are not semiautomatics or that do not exist. Without reference to the specific weapons referred to by Plaintiffs in support of their argument, the Court finds that weapons listed in Section 38-130(h), which do not meet the description set forth in Section 38- 130(b)(1), are not unlawful. However, since this Court has determined that Section 38- 130(b)(l)c pertaining to "semiautomatic pistols" is unconstitutionally vague, those weapons included in the list under Section 38-130(h) described as pistols are lawful. SECTIONS 38-130(e) AND (g) Sections 38-130(e) and (g) make it illegal to sell banned weapons in the City and County of Denver. Plaintiffs argue that the ordinance does not create a special definition for "sell," and the ordinance could be construed to forbid purely verbal or written acts, such as placing a classified advertisement in a Denver newspaper, even if the actual transfer would take place outside of the city limits. A statute or ordinance that fails to give precise definitions may be made constitutional through a limiting interpretation that accomplishes the purposes for which the statute was enacted. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed.2d 1031 (1942); Hansen v. People, 190 Colo. 457, 541 P.2d 1278 (1976). The purpose of the ordinance is to eliminate assault weapons, as defined by Section 38-130(b)(1), in the City and County of Denver, except those in legal possession of citizens of the City pursuant to the ordinance. Certainly, a ban on the sale of assault weapons in the City and county will accomplish this purpose. However, concerning those citizens in legal possession of assault weapons, they have a right to sell them, as long as the ordinance is not violated. Defendants concede that the ordinance is not intended to cover a person, who is in legal possession of an assault weapon and who sells the assault weapon to person outside the city limit. Although an attempted sell of an assault weapon to a person while located in the city limits of the City may violate the law, an attempt to sell by means such as advertisement in a Denver newspaper is not in conflict with the ordinance. Publications, such as newspapers and magazines can potentially reach persons beyond the city limits who can legally purchase the weapon. long as no part of the sell transaction, including transfer of money for the purchase or the transfer of the weapon, or the attempted sell [sic] transaction does not occur within the city limits, such conduct is not violative of the ordinances of the City a County of Denver. In sum, the Court finds that Sections 38-130(e) and (g) are not unconstitutionally vague regarding the "sell" of assault weapons. SECTION 38-130(h)(5) Section 38-130(h)(5) requires a person to have knowledge beyond that normally possessed by persons of common intelligence concerning the design history and licensing agreements between companies. Section 31-130(h)(5) provides: "Firearms which have been redesigned from, renamed, renumbered or patterned after one of the listed firearms in subdivisions (1), (2), (3) [of Section 38130(h)] or those described in subdivision (4) [of Section 38-130(h)] regardless of the company of production or distribution or the country of origin or any firearm which has been manufactured or sold by another company under a licensing agreement to manufacture or sell the identical or nearly identical firearms as those listed in subdivision (1), (2), (3) (of Section 38-130(h)] or those described in subdivision (4) (of Section 38-130(h)] regardless of the company of production or distribution or the country of origin. No person with less knowledge than an expert in firearms can make a determination that they are carrying, storing or otherwise possessing [footnote 6] a weapon which is covered by Section 38- 130(h)(5). Therefore, Section 38-130(h)(5) of the ordinance is unconstitutionally vague. SECTION 38-130(h)(4) Plaintiffs also challenge Section 38-130(h)(4) as being void for vagueness. Specifically, Plaintiffs argue that the phrase "slight modifications or enhancements" is vague. Section 38- 130(h)(4) provides: "Other models by the same manufacturer that are identical to firearms listed in subdivision (1), (2) or (3) except for slight modifications or enhancements, including, but not limited to, a folding or retractable stock; adjustable sight; case deflector for left-handed shooters; shorter barrel; wooden, plastic or metal stock; larger clip size; different caliber provided the caliber exceeds .22 rimfire; or bayonet mount." The Colorado Supreme Court, in People v. Garcia, 595 P.2d 228, 231, stated: "Few words possess the precise precision of mathematical symbols, most statutes must deal with untold and unforeseen.variations in factual situations, and the practical necessities of government inevitability limit the specificity with which legislation can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." (Quoting from Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct 329, 96 L.Ed.2d 367 (1952)). The term "slight modifications or enhancements" used in Section 38-130(h)(4) is a phrase that should be given its common sense meaning. The Court finds that the phrase "slight modifications or enhancements" means an alteration, adjustment, limitation, or improvement in function or use in a small degree or amount. See People v. Vigil, 758 P.2d 670 (Colo. 1988) (A case concerning deadly weapons, where the Court considered "slight repair, replacement; or adjustment" of a weapon to make it operational.) Based on the above stated interpretation, the Court finds that Section 38-130(h)(4) is not unconstitutionally vague. SECTION 38-130(i) Section 38-130(i) provides: "It shall be unlawful to carry, store or otherwise possess a magazine which will hold or may be modified to hold twenty-one or more rounds." Plaintiffs argue that the phrase "may be modified" is vague and a person of common intelligence can not determine the extent of modification needed to be made to the magazine, which would make it illegal. Certainly, the intent of the ordinance is not to cover magazines, which require major or extensive modification to increase the capacity beyond that allowed by the ordinance. Again, a statute or ordinance that fails to give precise definitions may be made constitutional through a limiting interpretation that accomplishes the purposes for which the statute was enacted. See Chaplinsky v. New Hampshire, supra; Hansen v. People, supra. Clearly, the purpose of the phrase, "to be modified", is to prevent expansion of the capacity of magazine beyond that allowed by the ordinance using "slight modifications." The Court finds that the phrase "may be modified" means modifications ["]that require adjustment or improvement in function or use in a small degree or amount." See People v. Vigil, supra, and People v. Garcia, supra. As interpreted by this Court, Section 38-130(i) is not unconstitutionally vague. IV. EQUAL PROTECTION "The Fourteenth Amendment to the United States Constitution declares that no state shall deny a person equal protection of the law. Although the Colorado Constitution does not contain an identical provision, it is well-established that a like guarantee exists within the constitution's due process clause, Colo Const. Art. II, Sec. 25, and that its substantive application is the same insofar as equal protection analysis is concerned." Lujan v. Colorado State Bd. of Educ. 649 P.2d 1005, 1014. If a law impinges on a fundamental right or disadvantages a suspect class, it is subject to strict scrutiny. specifically, "Where a fundamental right is affected or a suspect classification is created . . . the state has the burden of establishing that the act is necessarily related to a compelling governmental interest . . . While the party asserting this challenge must first demonstrate that a fundamental interest or suspect class is involved, . . . once successful, the state then has the burden of showing that the act is necessarily related to a compelling governmental interest, and, when applicable, of showing that the classification is specifically fashioned and narrowly tailored to further its legitimate objective." Lujan, 649 P.2d at 1015-16. The right to equal protection of laws guarantees that "all parties who are similarly situated receive like treatment by law." People in the Interest of D.G., 733 P.2d 1199, 1202 (Colo. 1987). This Court has previously held in this decision that the ordinance restricts a fundamental right guaranteed by Article II, Section 13, and that the city has established a compelling governmental interest. However, Plaintiffs also argue that a ban on specific guns by trade name and trademark pursuant to Section 38-130(h) violates equal protection. Specifically, Plaintiffs challenge the City's basis for the ordinance's discrimination in favor of some gun companies and against other companies. The Court finds that Section 38-130(h) does not violate equal protection afforded by the Colorado Constitution. As earlier set forth, Section 38-130(e) is a general ban on assault weapons as defined by Section 38-130(b)(1). Section 38-130(h) is a specific list of "assault weapons", which the Council has determined, as this Court has interpreted the ordinance, satisfies the definition of assault weapons as defined in Section 38-130(b)(1). Therefore, the combination of Sections 38-130(e) and (h) and other sections ban all "assault weapons", whether specifically listed in Section 38-130(h) or not. The ordinance does not violate the equal protection of the laws provisions of the U.S. and Colorado Constitutions. V. ARTICLE XX, PRE-EXEMPTION Plaintiffs assert that the Denver ordinance is pre-exempted by state law. Under the Colorado Constitution, Article XX, home rule municipalities have "every power theretofore possessed by the legislature to authorize municipalities to function in their local and municipal affairs". Four County Metro Improvement District v. Board of Commissioners, 369 P.2d 67, 72 (Colo. 1962). When analyzing whether an ordinance is pre-exempted by state law a court must first determine if the ordinance subject matter falls into one of three categories including: 1. Matters of local concerns; 2. Matters of statewide concern; or 3. Matters of mixed state and local concern. In matters of local concern, both the city and the state may legislate; however, when a home-rule ordinance or charter provision and a statute conflict, the home-rule provision supersedes the conflicting state legislation. City and County of Denver v. State, supra. In matters, which are of statewide concern, the state legislation leaves a home rule municipality without authority to act. Finally, in matters which are of mixed local and state concern, both the home rule municipal legislation and state legislation may coexist as long as there is no conflict. In City and County of Denver v. Waits, 197 Colo. 563, 595 P.2d 248 (1979) a defendant was convicted of flourishing a dangerous weapon under a Denver ordinance. On appeal, he argued that the City Council lacked authority to define an unloaded revolver as a dangerous weapon. The Court held: "Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971) sets out the following test for preemption: '[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 coexist and be effective.' We note first that Waits does not cite any statute which permits or 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 250. It is clear to this Court that the regulation of weapons is a matter of mixed local and state concern. In such matters the court must determine whether the State intended to occupy the field and whether there is a conflict between the state and local legislation. The determination of whether the state has intended to occupy a particular area of legislation depends upon an analysis of the statutory language used, the purpose and scope of the legislative scheme, and the factual circumstances controlled by the legislation. Dempsey v. City and County of Denver, 649 P.2d 726 (1982). Plaintiffs claim is that there is a comprehensive statutory scheme, which has preempted the field, and that the ordinance is in conflict with existing state law. In response to Plaintiff's claim, this Court must look at existing statutes of the State to determine whether the Colorado General Assembly intended to occupy the field of weapon regulation and whether there is conflicting state law. This Court has examined the state law cited by the Plaintiffs and finds that the ordinance is not in conflict with any state statute. Further, the Court find that a review of state law does not show an intent by the General Assembly to preempt the field of weapon regulation. Plaintiffs argue that it is clear that the state did not intend to regulate assault weapons. They assert that when the General Assembly had an opportunity to regulate assault weapons, they chose to do so in a limited fashion. [footnote 7] Although the legislative trend is to prohibit the use of weapons in criminal activities, the language of state law in this area does not express an intent by the General Assembly to preempt the field of weapon regulation. In this instance, the ordinance is more restricting than state law, but does not conflict with state law. This case is consistent with the Waits decision. Hence, the court finds that Section 38-130, is not preempted by state law. VI. ARTICLE II, SECTION 11, EX POST FACTO LAWS Plaintiffs claim that the ordinance, as it relates to magazines, is an ex post facto law in violation of Article II, Section 11, of the Colorado Constitution because the ordinance's date of publication and effective date were the same. Because the dates were the same, Plaintiffs argue that magazine owners were, without notice, immediately in violation, and had no opportunity to get rid of the magazines. Article II, Section 11, provides: "No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly." "The ex post facto clauses of the United States and Colorado Constitutions operate primarily to bar the retroactive application of legislative changes which make previously lawful behavior a criminal offense or which enhance criminal penalties." People v. Benney, 757 P.2d 1078, 1081 (Colo. App.). In order to not violate the proscription on ex post facto laws, an ordinance must "apply only to acts committed after the statutory proscription becomes effective." People v. Billips, 652 P.2d 1060, 1064 (Colo. 1982). The ordinance at issue was passed by the City Council on November 6, 1989, and was signed by the Mayor on November 7, 1989. It was then published in the Rocky Mountain News on November 14, 1989, and became effective on that same date. Section 38-103(i) provides: "It shall be unlawful to carry, store or otherwise possess a magazine which will hold or may be modified to hold twenty-one (21) or more rounds." However, section 38-103(f) provides: "any person over the age of twenty-one (21) years who obtained an assault weapon legally prior to the effective date of this section may obtain a permit to keep, store and possess said assault weapon, if: . . ." Since an assault rifle, for instance, is defined as a semiautomatic rifle with a detachable magazine with a capacity of twenty-one (21) or more rounds, pursuant to Section 38-103(f), a person can legally possess a magazine with a capacity of twenty-one (21) or more rounds, if he or she obtains a permit. In sum, there is a conflict betweens these two sections of the ordinance. It is the duty of the Court to harmonize provisions of legislation, if it can be done by a reasonable interpretation. Rowland v. Theobald, 159 Colo. 1, 409 P.2d 272 (1965). If separate clauses in same legislation may be harmonized by one construction, but would be antagonistic under a different construction, a court should adopt that construction which results in harmony rather than that which produces inconsistency. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978). The obvious interpretation of these two sections is that any assault weapon owner who has a permit pursuant to the ordinance is not subject to Section 38-130(i). However, it is less obvious in the situation where a person owns only a magazine, which has a capacity or modifiable to have a capacity of twenty-one or more rounds. The Court finds, pursuant to Section 38-130(f), that an owner of a magazine is entitled to apply for a permit. It would be unreasonable to interpret the ordinance to say that one person could obtain a permit for the weapon, including the detachable magazine on one hand, and a person who possesses a magazine only could not. since section 38-130(f)(2) provides for a sixty (day) grace period to apply for a permit, the Court finds that Section 38130(i) is not an ex post facto law and is not a due process violation for failure to give adequate notice. VII. SEVERANCE Plaintiffs argue that even if the ordinance is not totally unconstitutional, the provisions of the ordinance are not severable. In City of Lakewood v. Colfax Unlimited Ass'n, Inc., 634 P.2d 52 (Colo.), the Court found several provisions of an ordinance to be overbroad under the First Amendment. The Court formulated the following test for severability: "Whether unconstitutional provisions are excised from an otherwise sound law depends on two factors: (1) the autonomy of the portions remaining after the defective provisions have been deleted and (2) the intent of the enacting legislative body." 634 P.2d at 70. The legislative intent to allow severability is clearly set forth in Section 1-12, R.M.C., which provides in part that "the council hereby declared that in these regards the provisions of this Code and all rules and regulations promulgated hereunder are severable." Thus, the only consideration for this Court is whether those portions found unconstitutional can be severed without destroying the effectiveness of the Ordinance. The ordinance as drafted has posed many interpretation problems to this Court. The Court, as required by case law, has interpreted the ordinance, without legislating, to avoid interpretation which causes the provisions of the ordinance from being declared unconstitutional. However, because the Court has found many sections of this ordinance unconstitutional, severance would result in an incoherent ordinance and will destroy the effectiveness of it. Thus, the unconstitutional provisions, as stated in this decision, are not severable and the entire ordinance is invalidated. IT IS ORDERED that Summary Judgement is hereby entered in favor of the Plaintiffs and against the Defendants declaring Section 38-130, R.M.C. unconstitutional. Dated this 26 day of February, 1993. BY THE COURT R. Michael Mullins District Court Judge cc: All Counsel FOOTNOTES 1. Section 38-130(e) states: "It shall be unlawful to carry, store, keep, manufacture, sell or otherwise possess within,the City and County of Denver a weapon or weapons defined herein as assault weapons, except . . . " 2. Section 38-130(c)(1) states: "As used in this section, assault weapon does not include any of the following: . . . . all semiautomatic weapons for which there is no fixed magazine with capacity of twenty-one (21) or more rounds available, . . . " Therefore, pursuant to this provision of the ordinance, a person can possess an assault weapon which has a fixed magazine with twenty (20) or less rounds available. 3. The Colorado Constitution provides that "[t]he organization equipment and discipline of the militia shall conform as nearly as practicable, to the regulations for the government of the armies of the United States." Art. XVII, Section 2. 4. This section of the ordinance is void of any language concerning the capacity of the magazine after modification. 5. The ordinance explicitly states that the AKC and UKC standards are available in the office of the city and county clerk and recorder. Section 8-55(b)(2). Also, the ordinance has a hearing procedure, which provides a sufficient safeguard to avoid arbitrary application of the law. 6. Section 38-130(h) does not include the "sell" of the weapons listed. However, since this Court has interpreted the ordinance in a manner where Section 38-130(h) is a banned of specific weapon which falls within the definition as stated in Section 38- 130(b)(1), the "sell" of the weapons listed in Section 38-130(h) is banned under Section 38-130(e). 7. Section 16-11-103(6)(f.5), which defines aggravating factors for purposes of sentencing enhancement, states: "The defendant committed the offense by use of an assault weapon. For the purpose of this paragraph (f.5), "assault weapon" means any machine gun as defined in section 18-12- 101(1)(g), C.R.S., or semiautomatic center fire firearm that is equipped with a detachable magazine with a capacity of twenty or more rounds of ammunition."