State Supreme Court: Felons Possessing Guns Must Show Imminent Threat

It is commonly known that it is a crime for convicted felons to possess firearms in Colorado, with the offense officially labeled "Possession of a Weapon by a Previous Offender" or POWPO.  However, for nearly forty years, the courts have operated under the common-law rule that a person charged with POWPO could assert an affirmative defense pursuant to his right under the Colorado Constitution to possess a firearm for defense of self/family and property.  In People v. Carbajal, announced today, the Colorado Supreme Court held that it was not error for a trial court to instruct a jury that, in order to avail himself of this affirmative defense, a defendant must show that any danger/threat necessitating the firearms possession must be imminent.  At trial, defendant introduced evidence that he had purchased three firearms 5-6 years prior to his POWPO charge, and that two of those purchased were directly following victimization for violent crimes.  Nonetheless, the Court found no error in the trial court's instruction that the threat for which the firearms were needed must be imminent, or immediate.  The Court went on to essentially establish a new rule on the subject, holding that the "Constitutional Right" affirmative defense to POWPO must be asserted as a "choice of evils" defense, whereby a defendant asserts lack of criminal liability because he was forced to break the law in order to prevent a greater harm, i.e. imminent danger to himself/others.

In a short but articulate dissent, Justice Hood (joined by Justice Hobbs), the newest member of the Court, pointed out that there is no imminency requirement in the Colorado Constitution, which merely states "The right of no person to keep and bear arms in defense of his home, person or property ...shall be called in question."  Neither was the imminency requirement in the form of a "choice of evils" format for the affirmative defense previously established in any Colorado case.  Once again, the majority of the Colorado Supreme Court seems to place punishment ahead of the U.S. and Colorado Constitutions.  It is important to have experienced, knowledgeable legal representation to ensure that the proper issues are raised and preserved should the need for appeal arise.