Bennion v. City and County of Denver, C--207
| Decision Date | 18 December 1972 |
| Docket Number | No. C--207,C--207 |
| Citation | 504 P.2d 350,180 Colo. 213 |
| Parties | Joel BENNION, Petitioner, v. The CITY AND COUNTY OF DENVER, Respondent. |
| Court | Colorado Supreme Court |
Donald P. MacDonald, Denver, for petitioner.
Max P. Zall, City Atty., Lloyd K. Shinsato, Sidney Biderman, Asst. City Attys., Denver, for respondent.
Defendant below, Joel C. Bennion (referred to herein as petitioner) was arrested by three police officers in a lounge at Stapleton Airport on June 16, 1970. He was originally charged in the County Court in Denver with disturbing the peace, as well as interference with and resistance to police officers, in violation of various sections of Denver's Municipal Code.
At trial to the court the disturbance charge was dismissed, and petitioner was found not guilty of interference. The county court then proceeded to find petitioner guilty of violating Section .1--1 of Ordinance 847, Series of 1969, of the Revised Denver Municipal Code, which prohibits resistance to a police officer in the apparent discharge of his duty. Under this ordinance it makes no difference whether the arrest was lawful or unlwful. The trial court's judgments was affimed on appeal by the Superior Court of the City and County of Denver, and we granted certiorari.
Petitioner contests his conviction on the grounds that the resistance ordinance was unenforceable and of no effect because it conflicted with 1967 Perm.Supp., C.R.S.1963, 40--7--57, which permitted resistance to an unlawful arrest.
We agree and reversed the judgments below.
Some general principles of Colorado decisional and constitutional law are in order here to place the issue in proper perspective. Home rule cities may pass viable ordinances which superseded state statutes upon the same subject matter where the matters contained therein are matters of exclusively local concern. Vela v. People, 174 Colo. 465, 484 P.2d 1204. But where the subject matter of the ordinance is of state wide concern and the terms of the ordinance authorize what the legislature has forbidden, or forbid what the legislature has expressly authorized, the ordinance must fail. Ray v. City and County of Denver, 109 Colo. 74, 121 P.2d 886.
We now look at the legislation in question here in the light of the general propositions laid down above.
1967 Perm.Supp., C.R.S.1963, 40--7--57 reads as follows:
'Unlawful arrest--Nothing in sections 40--7--54 to 40--7--57 shall be deemed to prohibit any person from resisting an unlawful arrest.'
Section .1--1 of Ordinance 847, Series of 1969, of the Revised Denver Municipal Code reads as follows:
'It shall be unlawful for any person to resist any police officer, any memer of the Police Department, or any person duly empowered with police authority while in the discharge Or apparent discharge of his duty, or in any way to interfere with or hinder him in the discharge or apparent discharge of his duty.' (Emphasis supplied).
The existence of a conflict under the Ray test is evident. The ordinance prohibits resistance of an unlawful arrest, while the statute expressly permits it. The conflict having been established, it now becomes necessary to...
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