Colorado is starting to give felons what they deserve

[MDJschool]

http://www.cobar.org/opinions/opinio...8215&courtid=1

. . .

On the morning of September 18, 2009, defendant walked from his apartment to a nearby King Soopers to buy groceries. He paid at a self-checkout cash register, and when he did not receive discounts on certain items, he went to the customer service counter to demand a refund. Defendant yelled at the employees on duty, used profanities, and paced in such a manner that his handgun, worn under his jacket in a holster, was visible. He continued this aggressive behavior for several minutes, prompting one employee to call 911 to report the disturbance.

When the police arrived, they checked defendant’s criminal record. They arrested him for POWPO when they learned that he was a twice convicted felon — in 1985, he pleaded guilty to giving false information to a pawnbroker, and in 1988, he pleaded guilty to attempted distribution of a controlled substance.

. . .

Defendant contends the trial court erred by refusing to give his tendered jury instructions regarding the affirmative defense of the right to bear arms. We agree.

Under the Colorado Constitution, a person has the right “to keep and bear arms in defense of his [or her] home, person and property.” Colo. Const. art. II, § 13; see People v. Blue, 190 Colo. 95, 103, 544 P.2d 385, 391 (1975).1Thus, a defendant charged with POWPO may raise as an affirmative defense that he or she possessed a weapon for the constitutionally protected purpose of defending his or her home, person, or property. People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977); see also CJI-Crim. 7:63 (1993). As long as there is competent evidence in the record of a constitutionally protected purpose, a defendant is entitled to such an affirmative defense, and it will be for the jury to decide the issue of the defendant’s purpose in possessing the weapon. See Ford, 193 Colo. at 462, 568 P.2d at 28.

. . .

This case is distinguishable from People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986), relied on by the People and by the trial court in its ruling. In Barger, the defendant chose to carry a gun into a bar, but there was no evidence in the record that he reasonably feared for his safety on his way to the bar or in the bar itself.

Accordingly, we conclude defendant carried his burden to present “some credible evidence” of the affirmative defense to a POWPO charge, and, therefore, the trial court erred when it refused to give his tendered jury instructions. Defendant was entitled to have the jury decide if he carried his gun into the King Soopers for a protected purpose. See Ford, 193 Colo. at 462, 568 P.2d at 28.

Because the court’s error cannot be deemed harmless, we reverse defendant’s POWPO convictions and remand for a new trial. See Taylor, 230 P.3d at 1230.

. . .

[customloaded]

Awesome. Good for Colorado. Glad to see some case law in this subject area. I know Alaska has pushed some legislation restoring 2A to some felons but man, case law, awesome.

I know we're in the minority with the ideal of felons getting their rights restored to include 2A but it is the history of our system and paying the debt to society and all is forgiven.

Great Find!

CL

[Ivan]

Defendant is not exactly a poster child for Rights Restoration.Guy sounds like a first class asshole.
We should be careful who we hitch our wagons to.

Restoration of 2A right to felons should be on a case by case basis.Some reform is needed,but blanket restoration,NO.

[MDJschool]

Restoration of 2A right to felons should be on a case by case basis.Some reform is needed,but blanket restoration,NO.

Blanket bans are ok but blanket restorations are not? Ivan, what is a 'felon'? Could you define the term for us?

The case I excerpted is actually an example of a case by case application of the preservation of the right to bear arms, although the 2A was specifically not involved, said the court (it was the Co. state constitutional provision that was implicated.) The court has done what all courts should be doing: holding the constitution as the supreme law of the land instead of excusing its violations every time we can find an excuse. It did not summarily dismiss the charges against the defendant, it simply let a cognizable RKBA defense go to a jury. If felons aren't people or citizens such that should have rights, why can't we shoot them on sight without consequence? Should I be checking the Game Code for seasons and bag limits to explain this?

[TXDMERC73]

You can throw criminals in a pool filled with starving pirahnas, they still wont learn- u cant fix stupid