Powpo and Gun Rights After Carbajal

Publication year2015
CitationVol. 44 No. 9 Pg. 31
44 Colo.Law. 31
POWPO and Gun Rights After Carbajal
Vol. 44, No. 9 [Page 31]
The Colorado Lawyer
September, 2015


Criminal Law

POWPO and Gun Rights After Carbajal

By Adam Frank, Faisal Salahuddin.

Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.

Coordinating Editor

Morris Hoffman, Judge for the Second Judicial District Court, Denver

This article addresses how People v. Carbajal changed the status quo in POWPO cases, provides a guide for practitioners with pending POWPO cases, and highlights the Carbajal decision's implications for gun rights in Colorado.

Article II, § 13 of the Colorado Constitution mandates that "The right of no person to keep and bear arms in defense of his home, person and property . . . shall be called in question." However, since 1971, Colorado has prohibited convicted felons from possessing firearms.[1] In the 1970s, the Colorado Supreme Court issued a series of decisions addressing this tension between the right to bear arms enshrined in the Colorado Constitution and the legislature's new statute barring possession of a weapon by a previous (felony) offender (POWPO).

Through decisions including People v. Blue[2] and People v. Ford,[3] the Supreme Court established that the Colorado Constitution's right to bear arms for specific purposes established an affirmative defense for a felon accused of possessing a firearm in violation of the POWPO statute. Following these rulings, the Court's Committee on Criminal Jury Instructions authored a model jury instruction for this affirmative defense.[4] For the next thirty-seven years, trial courts across the state followed the apparent holdings of Blue and Ford, and generally instructed juries on the affirmative defense of the right to bear arms for a specific purpose, pursuant to the stock instruction.

On June 30, 2014, the Colorado Supreme Court upended the status quo. In People v. Carbajal,[5] it held that trial courts across the state had been misinterpreting Blue and Ford, and had been wrong to use the model jury instruction. According to the Carbajal Court, the Colorado Constitution's right to bear arms does not create a standalone affirmative defense to POWPO; instead the affirmative defense the Court had described in Ford was a form of the pre-existing statutory affirmative defense of choice of evils.[6]

Carbajal has wide-ranging implications, both for legal practitioners and Coloradans generally. For criminal law practitioners, Carbajal creates uncertainty. Though the Carbajal Court unambiguously held that the proper constitutional affirmative defense to POWPO is the statutory choice of evils defense, it also endorsed the trial court's jury instruction, which did not exactly comport with choice of evils. For Coloradans who believe in strong gun rights, Carbajal is alarming. By holding that the choice of evils defense is sufficient to secure the Colorado Constitution's right to bear arms, the Supreme Court has opened the door to far broader gun restrictions, at least through the criminal law.

Firearm Restrictions and the Colorado Constitution Before Carbajal

Throughout our state's history, the Colorado Supreme Court had held that the state constitution's right to bear arms created a robust, substantive right to possess firearms for the purpose of defending one's home, person, or property. This right was first tested in 1921, when the Colorado Legislature passed a law prohibiting any un-naturalized, foreign-born resident from possessing a firearm.[7] In 1936, in People v. Nakamura, the Colorado Supreme Court struck down this statute as unconstitutional, recognizing that "the act wholly disarms aliens for all purposes."[8] The Court reasoned that under the Colorado Constitution, the state legislature "cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article II of the Constitution, to bear arms in defense of home, person and property."[9]

When the state legislature passed the first iteration of the POWPO statute in 1971, the Colorado Supreme Court again responded with a vigorous interpretation of Colorado's right to bear arms. In People v. Blue, the Court recognized that "the state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protections."[10] The Court held that the POWPO statute was a constitutional exercise of the state's police power only as long as it was read in conjunction with the right to bear arms. Specifically, the Blue Court held that for the POWPO statute to be constitutional, it had to be subject to that portion of the choice of evils defense immunizing conduct "when it is necessary as an emergency measure to avoid an imminent public or private injury."[11] Because the defendant in Blue did not assert any form of a necessity defense,[12] the Court did not address how a necessity defense would play out in practice.

Two years later, the Court faced the issue again in People v. Ford,[13] but this time delved more deeply into the practicalities of the constitutional defense. The Court noted that "[t]he General Assembly's power to regulate in this area ... is subject to the clear constitutional guarantee of the right to bear arms."[14] Thus, "[i]n spite of the flat prohibition contained in [the POWPO statute], the specific limitations of [the Colorado Constitution's gun rights provision] must be superimposed on the statute's otherwise valid language."[15] Based on this, "statutes enacted pursuant to the state's police power may validly restrict or regulate the right to possess arms [only] where the purpose of such possession is not a constitutionally protected one."[16]The Court then held that the proper mechanism for a criminal defendant to assert the constitutional right was the following described affirmative defense:

A defendant charged under section 18-12-108 who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property thereby raises an affirmative defense.[17]

Significantly, this version of the defense tracks the constitution's language. In doing so, it does not require a defendant to show that his gun possession was necessary to avoid an imminent injury, only that the purpose of the possession was to defend home, person, or property.

From 1977 through 2014, the Supreme Court's holding in Ford was the law. The Supreme Court's Committee on Criminal Jury Instructions promulgated a widely used jury instruction for POWPO cases where the constitutional defense was stated exactly as the Ford Court described it:

It is an affirmative defense to the crime of possession of weapons by a previous offender that the defendant possessed the weapon for the purpose of defending his [home] [person] [property].[18]

Like many POWPO defendants before him, Carbajal sought to use this stock jury instruction at his trial.[19] Carbajal had a previous felony conviction; when police searched his house, they found three firearms.[20] Carbajal asserted that he possessed those weapons for "the purpose of defending his home, person, and property."[21] Very much unlike other POWPO defendants, however, Carbajal ultimately discovered his gun defense substantially weakened by the Colorado Supreme Court.

The Choice of Evils Defense

The Carbajal Court began by disavowing the stock jury instruction in favor of the statutory defense o f choice of evils. Under the choice of evils defense:

Conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.[22]

As the statutory language makes clear, the choice of evils defense is a far narrower defense to POWPO than the affirmative defense the Supreme Court set out in Ford.

To be allowed to raise a choice of evils defense, the defendant must first persuade the trial judge that his actions would meet the exacting prongs of the defense.[23] The defendant's offer of proof must establish: (1) all other potentially viable and reasonable alternative actions were pursued or shown to be futile; (2) the action taken had a direct causal connection with the harm sought to be prevented, and the action taken would bring about the abatement of the harm; and (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur.[24]

Summarizing these prongs, the Court has stated:

The choice of evils defense thus does not arise from a "choice" of several courses of action, but rather is based on a real emergency involving specific and imminent grave injury that presents the defendant with no alternatives other than the one taken.[25]

To succeed in asserting choice of evils, a defendant must assert (among other facts) that there was literally no other protective course of action he could have taken other than breaking the law.

Carbajal: Choice of Evils or Choice of Evils-Lite?

In Carbajal, though the majority went to great lengths to claim otherwise,[26]it seems the dissent was correct in characterizing the opinion as abandoning the holding of Ford for the dicta of Blue.[27] In any event, the Carbajal majority definitely found more to like in Blue's...

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