October 2, 2011

Colorado Court of Appeals 9-15-11 Criminal Law Decisions

People v. DeWitt            Right To Bear Arms / Affirmative Defenses / Possession of a Weapon by a Previous Offender
Facts: The prosecution charged Mr. DeWitt with possession of a weapon by a previous offender. The trial court in gun toting, military loving, red-neck hugging Colorado Springs denied Mr. Dewitt an instruction on the Right to Bear Arms as an affirmative defense. Mr. DeWitt testified that he carried the guns for self-defense.
Issue: Whether the trial court erred in denying Mr. DeWitt an instruction on the Right to Bear Arms as an affirmative defense to possession of a weapon by a previous offender?
Held: Yes.
Reasoning: A) The Court of Appeals found that the Right to Bear Arms under the Constitution is indeed a defense; B) Mr. DeWitt’s testimony provided more than the scintilla of evidence needed to justify instructing the jury on the Constitutional affirmative defense of Right to Bear Arms; C) This holding is completely consistent with People v. Barger, 732 P.2d 1225, 1226 (Colo.App.1986). In Barger, the Court held the offer of proof insufficient to justify the instruction. Here, Mr. DeWitt testified. Nice work trial attorney, whomever you may be.

1 comment:

  1. Settled law at the federal level from the 10th Circuit's consistent holdings since 1994 holds that the automatic restoration of A-L-L rights of citizenship provision of Article VII, trumps C.R.S. 18-12-108 /POWPO in DeWitt's instance.

    The 10th Circuit has held in U.S. v Hall, U.S. v Norman, and other Colorado federal POWPO prosecutions that the 18 USC 921/922 is not applicable because CRS 18-12-108 as amended in 1994 does not negate, or invalidate the prior restoration of the right to keep & bear arms following subsequent to DeWitt's 1985/1988 Colorado convictions.

    Also Article II, Section 3 of the Colorado Constitution declares that all persons have "natural, essential, inalienable rights ....defending their lives....protecting their property....seeking and obtaining their safety"

    C.R.S. 18-12-108 conflicts with 3 protective provisions of the Colorado Constitution regarding the right to keep and bear arms - Article II Sec. 3 enumerates the natural, essential, inalienable right to self defense, Article II Sec 13, reserves that right to all persons(excluding concealed carry) from infringement by the State government, and Article VII Sec 10 provides for automatic restoration of that right without further action upon completion of sentence. The 10th Circuit considered the "totality of the State law" and allowed for a n additional 10 year period of impairment of the right under CRS 18-12-108.
    Even Colorado judges can not agree when interpreting and applying CRS 18-12-108.

    Action by the Colorado General Assembly is needed to correct this constitutional conflict. Amending CRS 18-12-108 to the pre-1994 provision only affecting violend previous offenders would be a good approach.


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