Robertson v. City and County of Denver

Decision Date02 May 1994
Docket NumberNo. 93SA91,93SA91
Citation874 P.2d 325
PartiesLawrence M. ROBERTSON, Jr., M.D.; Sharon Deatherage; Jeffrey Hecht; and David Jewell, d/b/a Scotties Guns & Militaria, Plaintiffs-Appellees, State of Colorado, ex rel. Duane Woodard, Plaintiff/Intervenor-Appellee, 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-Appellants.
CourtColorado Supreme Court

Ralph B. Rhodes, Denver, Stephen P. Halbrook, Fairfax, VA, for plaintiffs-appellees.

Gale Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Shawn Mitchell, Sp. Counsel, Denver, for plaintiff, intervenor-appellee.

David B. Kopel, Golden, for plaintiffs.

Daniel Muse, City Atty., John L. Stoffel, Jr., Karen A. Aviles, Asst. City Attys., Denver, for defendants-appellants.

Felix L. Sparks, Lakewood, Chambers, Dansky and Hansen, David J. Dansky, Denver, for amici curiae Center to Prevent Handgun Violence, People United--No Children's Handguns, CO Chapter of American College of Emergency Physicians, CO Chapter of American College of Surgeons, Denver Medical Soc., CO Chapter of American Public Health Ass'n, CO Nurses Ass'n, CO Chapter of American Academy of Pediatrics, and Soc. of Critical Care Medicine.

A. William Ritter, Jr., Dist. Atty., Everett Engstrom, Deputy Dist. Atty., Denver, for amicus curiae Dist. Atty.

Robert Dowlut, Washington, DC, for amicus curiae Firearms Civil Rights Legal Defense Fund, Law Enforcement Alliance of America, CO State Shooting Ass'n, and Firearms Coalition of CO.

Wade H. Eldridge, P.C., Wade Eldridge, Denver, for amici curiae Intern. Wound Ballistics Ass'n, Doctors for Integrity in Research and Public Policy, CO Ass'n of Law Enforcement Firearms Instructors, Nat. Ass'n of Chiefs of Police, Congress of Racial Equality, American Federation of Police, Independence Institute, Second Amendment Foundation, and Veterans of Foreign Wars.

Chief Justice ROVIRA delivered the Opinion of the Court.

This case presents questions of whether an ordinance banning the manufacture, sale, or possession of "assault weapons" within the City and County of Denver violates article II, section 13 of the Colorado Constitution, and the constitutional proscription against laws that are impermissibly vague or overbroad. 1


In October 1989, the Denver City Council (City Council) enacted Ordinance No. 669 which became effective on November 14 1989, and was codified as section 38-130 of the Denver Revised Municipal Code. See Appendix, Denver, Colo., Rev.Mun.Code art. IV, § 38-130 (1989) (the ordinance).

The individual plaintiffs challenged the constitutionality of the ordinance on numerous grounds. 2 The attorney general intervened as a plaintiff-intervenor on behalf of the State of Colorado. 3 Subsequently, the trial court held a hearing to consider the plaintiffs' and defendants' motions for summary judgment.

The trial court granted plaintiffs' motion. 4 It concluded that article II, section 13 of the Colorado Constitution guarantees the people of Colorado the fundamental right to bear arms. It found that defendants had established a compelling governmental interest in regulating assault weapons, but that this interest was served only by banning those weapons capable of both a rapid rate of fire and having the capacity to fire an inordinately large number of rounds without reloading. Thus, the court gave the ordinance a limiting construction so that it would serve the compelling interest defined by the court. The court additionally determined that certain provisions of the ordinance were vague or overbroad, and that those provisions were not severable from those which passed constitutional muster. Thus, the trial court invalidated the entire ordinance. 5

Defendants appealed to this court pursuant to section 13-4-102(1)(b), 6A C.R.S. (1992 Supp.). We affirm in part, reverse in part, and remand the case for further proceedings.


The right to bear arms is guaranteed under article II, section 13 of the Colorado Constitution. 6 That section provides 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.

Defendants argue that the trial court erred in concluding that this provision establishes a fundamental right to bear arms in self-defense. 7 See Bowers v. Hardwick, 478 U.S. 186, 191-92, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986) (identifying fundamental constitutional rights as those "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history or tradition"). Conversely, plaintiffs argue that the trial court correctly reached this conclusion.

While it is clear that this right is an important constitutional right, it is equally clear that this case does not require us to determine whether that right is fundamental. On several occasions, we have considered article II, section 13, yet we have never found it necessary to decide the status accorded that right. Rather, we have consistently concluded that the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable.

The earliest decision of this court applying article II, section 13, is People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1936). In Nakamura, we struck down a statute prohibiting unnaturalized foreign-born residents from owning or possessing a firearm of any kind, stating that while the state may preserve wild game and prevent the killing of the same by aliens, "it 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." Id. at 264, 62 P.2d at 247. Thus, we concluded that insofar as the statute "denies the right of the unnaturalized foreign-born resident to keep and bear arms that may be used in defense of person or property, it contravenes the constitutional guaranty and therefore is void." Id. at 265, 62 P.2d at 247. 8 In reaching its holding, the Nakamura court was not required to determine what the status of the right to bear arms in self-defense was and, accordingly, that decision contains no analysis regarding whether that right is fundamental.

The next occasion in which this court applied article II, section 13, was Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972). In Lakewood, we reviewed the constitutionality of a municipal ordinance proscribing the possession or use of any deadly weapon except in one's home. In voiding the ordinance as overbroad, we observed "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 power be reasonably classified as unlawful and thus, subject to criminal sanctions." Id. at 23, 501 P.2d at 745. 9 Thus, we held that "[d]epending 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." Id. Again, in reaching this conclusion, we were neither required to determine the status of the right to bear arms nor was there any analysis of whether that right is fundamental.

Similarly, in People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975), we upheld the constitutionality of a statute which prohibited the possession of any firearm by persons convicted of certain crimes. In so holding, we first recognized that the Colorado Constitution does not guarantee an absolute right to bear arms under all circumstances, id. at 103, 544 P.2d at 391, and concluded that "[i]n our view, the statute here is a legitimate exercise of the police power." Id. Once again, we were not required to determine the status of the right to bear arms in self-defense but rather, we resolved only the question of whether the law at issue constituted a legitimate exercise of the state's police power.

Likewise, in People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977), we concluded that a "flat prohibition" on the right of certain felons to possess firearms was subject to the guarantee of article II, section 13. Id. at 462, 568 P.2d at 28. In concluding that the constitution required recognition of an affirmative defense to this statute if a defendant shows that his purpose in possessing weapons was the defense of his home, person, and property, the court never determined the status of the right to bear arms in self-defense.

Finally, in People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979), we upheld, against a vagueness and overbreadth challenge, the constitutionality of a statute which prohibited the possession of any firearm by a person under the influence of intoxicating liquor or of a narcotic or dangerous drug. Doing so, we recognized that "[t]he right to bear arms is not absolute, and it can be restricted by the state's valid exercise of its police power." Id. at 552, 595 P.2d at 230 (citing Blue, 190 Colo. 95, 544 P.2d 385). In light of this fact we held:

It is clearly reasonable for the legislature to regulate the possession of firearms by those who are under the influence of alcohol or drugs. Unlike City of Lakewood, the statute here proscribes only that behavior which can rationally be considered illegitimate, and thus properly prohibited by the state's exercise of its police power. Accordingly, the statute does not restrict the exercise of any fundamental right and is not overbroad.

Id., at 553, 595 P.2d at 230.

As in every other case of this court construing article II, section 13, the Garcia court did not find it necessary to determine...

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