Trinen v. City and County of Denver, No. 00CA2126.

• Decision Date: 14 February 2002
• Docket Number: No. 00CA2126.
• Citation: 53 P.3d 754
• Parties: Donald T. TRINEN, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, Defendant-Appellee.
• Court: Colorado Court of Appeals

53 P.3d 754

Donald T. TRINEN, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, Defendant-Appellee.

No. 00CA2126.

Colorado Court of Appeals, Div. II.

February 14, 2002.

Certiorari Denied September 9, 2002.

Hart & Trinen, LLP, Donald T. Trinen, Denver, Colorado, for Plaintiff-Appellant.

J. Wallace Wortham, Jr., City Attorney, Kurt G. Stiegelmeir, Assistant City Attorney, James C. Thomas, Assistant City Attorney, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge PLANK.

In this declaratory judgment action challenging the validity of certain Denver weapons ordinances, plaintiff, Donald Trinen, appeals the summary judgment in favor of defendant, the City and County of Denver. We affirm.

The challenged ordinances are Denver Revised Municipal Code §§ 38-117 and 38-118. Trinen operates a place of business in Denver. It is undisputed that Trinen wishes to carry an unconcealed firearm on his person in Denver and to carry a concealed firearm in a motor vehicle in Denver, and that these activities, subject to certain exceptions, are prohibited by the ordinances. The City does not dispute that Trinen has standing to bring this action. See DiLeo v. Board of Regents of University of Colorado, 196 Colo. 216, 590 P.2d 486 (1978).

Section 38-117 provides in pertinent part:

(a) It shall be unlawful for any person, except a law enforcement officer in the performance of duty, to wear under their clothes, or concealed about their person any dangerous or deadly weapon ....

(b) It shall be unlawful for any person, except a law enforcement officer in the performance of duty, to carry, use or wear any dangerous or deadly weapon ....

Section 38-118 provides the following affirmative defenses to the offenses described in § 38-117:

(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:

(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 traveling away from the area of their residence or business;

(2) In their own dwelling, or place of business, or on property owned or under their control at the time of the act of carrying such weapon; or

(3) After they were issued a written permit to carry a weapon by the chief of police of any city, mayor of a town or sheriff of a county; and the carrying of such weapon is within the terms of such permit.

(b) It shall be an affirmative defense to charges brought under section 38-117(b) that the weapon is or was carried by such person:

(1) In defense of home, person or property, when in such home when there is a direct and immediate threat thereto;

(2) In aid of the civil power when thereto legally summoned;

(3) For use in the course of a bona fide hunting trip for wild game, or for transportation in the legitimate sporting use of such weapons, including shooting matches or other target shooting, or trap or skeet shooting; all such weapons being so used shall be unloaded when carried or transported to or from such hunting trip or place of sporting use;

(4) When such person is a collector or licensed dealer displaying or transporting such weapon for display or sale, or a citizen transporting such weapon for purpose of sale or repair to or from a place of sale or repair; all firearms so displayed or transported shall be unloaded at all times;

(5) When such person is a member of the armed forces of a state or of the federal government when engaged in the lawful performance of duty; or

(6) While moving personal property, including such weapon, from an old residence to a new residence.

Ruling on cross-motions for summary judgment in which the parties agreed there was no dispute of material fact, the trial court upheld the validity of the ordinances. This appeal followed.

I.

Trinen first contends that § 38-117(b) is so broad as to abrogate the state constitutional right to bear arms. We disagree.

We review de novo the constitutionality of a municipal enactment. See General Motors Corp. v. City & County of Denver, 990 P.2d 59 (Colo.1999).

Article II, § 13 of the Colorado Constitution 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.

An ordinance is presumed to be constitutional, and the party attacking it must establish its unconstitutionality beyond a reasonable doubt. People ex rel. City of Arvada v. Nissen, 650 P.2d 547 (Colo.1982). If an enactment can reasonably be construed so as to harmonize it with the constitution, that construction should be preferred. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

When a legislative enactment infringes on a fundamental right, the enactment, in order to be constitutional, must be necessary to promote some compelling governmental interest. However, when no fundamental right is implicated, the legislation is evaluated under the rational basis test, which requires that the enactment bear some reasonable relationship to a legitimate governmental interest. People v. Young, 859 P.2d 814 (Colo.1993).

A governmental purpose to control or prevent certain activities that may be constitutionally subject to regulation under the police power may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. Even though legitimate and substantial, the governmental purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).

A city or state may not, in the name of police power, enact legislation that renders constitutional provisions nugatory. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975). However, the right to bear arms is not absolute, and a city or state may regulate the exercise of the right under its police power so long as the exercise of that power is reasonable. Robertson v. City & County of Denver, 874 P.2d 325 (Colo.1994).

In Robertson, supra, the supreme court did not expressly state whether the right to bear arms is a fundamental right. However, by requiring that restrictions on the right be only reasonable, rather than necessary, the court essentially applied the rational basis test in evaluating the constitutionality of a city ordinance that implicated the right to bear arms. Therefore, we conclude that the court implicitly found that the right to bear arms is not a fundamental right. See People v. Young, supra.

Trinen does not contest the right of Denver, a home rule city, to regulate firearms in the interest of public safety. He asserts, however, that the reasoning in Lakewood v. Pillow, supra, compels the conclusion that § 38-117(b) is unconstitutionally overbroad. We conclude otherwise.

In Pillow, the supreme court found unconstitutional an ordinance that prohibited the possession of weapons outside the home, reasoning that the ordinance was overbroad because it effectively prohibited certain businesses and activities that could not reasonably be made unlawful under the police power. Specifically, the court noted that the ordinance would prohibit gunsmiths, pawnbrokers, and sporting goods stores from carrying on a substantial part of their business, prohibit the transportation of guns to and from such businesses, and prohibit the possession for self-defense of a firearm in a vehicle or place of business.

Here, in contrast, the affirmative defenses provided by § 38-118 expressly allow the activities the Pillow court stated could not be made unlawful. Accordingly, we do not find that case dispositive.

A.

Trinen argues that a constitutional right should not be relegated to the status of an affirmative defense because then the right can be exercised only at the cost of a criminal trial. We are not persuaded.

In People v. Ford, supra, the supreme court upheld a statute prohibiting the possession of weapons by convicted felons, stating that a defendant could raise as an affirmative defense that the purpose of the possession was the defense of home, person, and property. Thus, the constitutional right to bear arms has been accorded the status of an affirmative defense.

Further, a number of statutes and ordinances have been held to be constitutional, such as those relating to obscenity, picketing and leafleting, and have required that raising First Amendment protections as a defense in criminal proceedings. Consequently, there is nothing unusual about having to raise a constitutional argument in defense of a criminal proceeding. See People v. Vaughan, 183 Colo. 40, 514 P.2d 1318 (1973).

Our conclusion is further supported by the minimal burden required to establish an affirmative defense. A defendant is merely required to present some credible evidence supporting applicability of the defense. Once the defense is raised, the prosecution must prove the guilt of the defendant as to the issue of the affirmative defense, as well as all other elements of the offense beyond a reasonable doubt. Section 18-1-407, C.R.S. 2001.

Additionally, the presence of affirmative defenses in § 38-118 militates against unreasonable application of § 38-117.

Therefore, we conclude that relegating the assertion of a constitutional right to an affirmative defense does not render a statute or ordinance per se invalid.

B.

Trinen also argues that the language in § 38-118(a)(1) requiring a "direct and immediate threat" is too restrictive. We disagree.

When liberally construed, the language "direct and immediate threat" requires some real identifiable and substantial justification for carrying a gun away from one's home. Absent such a qualifier, anyone could carry a gun about Denver and claim that it was for self-protection....