Stanley Convicted on Gun Charge
by Ari Armstrong, June 19, 2002
"Do not raise the issue of the Second Amendment or the U.S. Constitution," or the Colorado Constitution, Judge Robert L. Patterson told Paul Grant, Rick Stanley's lawyer. Patterson said raising Constitutional issues is "totally improper," and "I'm not going to permit it."
"Are you clear on that, sir," Patterson said declaratively.
"Not entirely, sir," Grant responded.
"You have been warned. If you tread on that, you will be sanctioned," Patterson finally threatened.
Rick Stanley, center, meets with his wife Pam at the Denver court house. Joe Johnson is to the right of Pam, and David Bryant is to the left of Rick. Kent McNaughton is on the far left, beside Alan Glenski.
Stanley was arrested December 15, 2001, when he carried a gun openly on his hip at a Bill of Rights rally across the street from the Capitol. He expected to be arrested and notified the police about his plan. Stanley was charged with "unlawfully carrying a weapon" under Denver ordinance and tried May 15-16. The jury found Stanley guilty. He and Grant plan to appeal.
Proceedings were set to start at 8:00 am, Wednesday morning. At 8:35, the city's attorney, Paul Puckett, was still calling roll. "It's really about wearing you down," grumbled one Libertarian. By 8:45, Puckett announced, "The city is ready to proceed," but the court heard other cases for the next two hours. Most of the cases were pled out or dismissed. "We only do one jury trial a day here," the judge noted.
Grant and Patterson started wrangling from the first exchange. "Mr. Stanley has requested a jury of 12," Grant said. "That's denied," Patterson responded. Indeed, there are only six chairs in the jury box, and by state law municipalities need only grant a jury of six.
Then, once the trial got going later in the morning, Patterson said he wanted to excuse the audience, as the jury needed the benches. Previously, Puckett told the judge Stanley's web page had encouraged people to "pack the court." Grant replied that the Sixth Amendment guarantees the right to a public trial. Patterson said "to the extent we can accommodate" the audience, he would do so. Grant requested a larger courtroom, but his request was turned down. Grant asked the judge to note his objection. At one point, after recess had been called, the court door was locked, but then Grant and the judge continued to formally discuss the case. Grant objected to the door being locked, and it was soon opened.
Around 20 people witnessed parts of the trial. Nobody was excluded from the court room, though the benches were packed during the selection of the jury.
Jury selection began late in the morning. Twelve people were called into the pool, and more were on hand. Out of those twelve, two were dismissed by the judge and replaced, then six of the twelve were dismissed by the lawyers.
Potential jurors were asked to respond to a series of written questions. The final question was, "What do you like to read, listen to on radio and watch on television?" Puckett asked jurors if they could "apply the law the judge gives you."
One woman in the jury pool works for the Denver Police Department. Grant asked her if she was against citizens carrying guns. "I would have to be," she replied. Grant asked her if she was trained in the law, and if she took an oath to uphold the constitutions of the U.S. and Colorado. She said yes. Grant asked her if she was familiar with the Colorado constitution.
That's the point at which the judge called a sidebar, recessed, and threatened Grant with sanctions.
Thus, the jury never heard Article II, Section 13 of Colorado's Constitution, which states, "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."
At 2:30, the jurors were sworn in. The judge instructed them to "decide what the facts are," and to defer to the judge to decide the "rules of law."
Puckett and Grant agreed about the basic facts during their opening arguments. But Grant said Stanley was "expressing his political views" at a "celebration of Bill of Rights day." He said Stanley had no "criminal intent."
The first witness called was Captain Vincent J. DiManna. He said he has worked for the Denver police for over 29 years and he now works in intelligence. He said he was notified about the December 15 demonstration. He said Stanley invited him and other officers to "come join the rally." Stanley entered a circle of people, DiManna "lost sight" of Stanley, and Stanley emerged with the gun on his hip. Puckett asked if Stanley had a permit for the weapon or if DiManna perceived any direct threat to Stanley. He said no.
Grant asked DiManna if Stanley used the weapon for any criminal activity, beyond the mere infraction of the disarmament ordinance. The officer said no. Grant asked DiManna if police officers usually show up at crime scenes after the fact. DiManna said yes. So most people are "on their own until after the crime has been committed," Grant asked. "Yes, often," DiManna replied.
Do you have a "problem with self-defense?" "No, sir." "A gun can have lawful purposes." "Yes, sir." DiManna affirmed that Stanley was arrested for carrying a weapon, not for giving his speech. DiManna described Stanley's behavior as "polite and business-like," and he said Stanley cooperated fully with police.
"If Stanley was perceiving a threat, you wouldn't know that, would you?" "No." "Denver streets can be dangerous." "Yes." Do the police always arrive on time? "No, sir." Grant asked DiManna if he was on duty at Columbine high school during the shooting there. "Yes, sir."
The next witness was Steven W. Panck, who has served with the police for 25 years. He provided technical information about the gun. He said he "inscribed my initials" on the gun. He said the ammunition was stored in the magazine of the semi-automatic gun, but there was no round in the chamber.
Grant asked Panck if he was on duty at Columbine high school. "Yes." Sometimes, "police don't get there soon enough." "Yes."
At this point, Puckett objected to Grant's invocation of Columbine, and the judge sustained the objection. After the jury was sent from the room, around 3:45 pm, the judge argued that Columbine wasn't relevant. He told Grant not to "insight this jury." He said there were no allegations of the use of a weapon or of homicide (though this point seemed irrelevant).
Grant said it's "reasonable to want a weapon for self-defense." He said Columbine is an example that "people in Denver know." The "victims of Columbine were disarmed," he noted. He said the case is relevant to self-defense. The judge said the example was "inappropriate" and "totally unrelated."
The city rested. The judge told Stanley that he had a "right not to testify," and that if he testified he could be cross-examined by the city's attorney. Stanley said he didn't understand. I have a "Constitutional right" not to testify, he asked the judge? Patterson was clearly referring to the Fifth Amendment's provision that nobody can be "compelled in any criminal case to be a witness against himself." Why may the Fifth Amendment be invoked in city court, whereas the Second Amendment may not be? But the judge quickly changed the subject.
In his testimony, Stanley referred to Denver's ordinance as "illegal and unlawful." Stanley affirmed he carried the gun as part of the rally to celebrate the 210th anniversary of the Bill of Rights. "I'm running for the U.S. Senate; I'm the Libertarian candidate," Stanley said. We were "there to discuss gun rights, Second Amendment rights."
Did you have a "reason to believe you might be in danger?" Grant asked Stanley. Stanley said he had been threatened and one individual said he would meet him at the rally. "It's always on your mind when somebody threatens you." He added, "Our rights were being violated by the City and County of Denver." Another reference to the Second Amendment earned an objection.
Grant asked Stanley if he understood the difference between the defensive use and offensive use of a weapon. "Absolutely. I was in the military for 3.5 years," Stanley said. Using a gun for offense in civilian life is "inconceivable," Stanley said. Grant asked, "What is it you hoped to accomplish?" "Bring attention to a bad law" and attain standing in court. "I wanted Americans to have their God-given right, and their Second Amendment right."
After a few questions from Puckett, Grant asked Stanley if he believed his actions were unlawful. No, he was just breaking the ordinance. "You believe the ordinance is not lawful?" The judge would not allow Stanley to answer that question. The defense rested and the court adjourned around 4:45 pm.
The next morning, Grant argued with Patterson and Puckett about the jury instructions. Puckett objected to Grant's reference to an "affirmative defense" and the "right to bear arms." That's "not an enumerated affirmative defense, and I would object to those," Puckett said.
Grant argued the instructions should refer to a regulatory offense, not a "crime." He also said language stating jurors "will" do such and so should be replaced with the term, "should." "The court doesn't direct verdicts," Grant said. Grant also wanted to include language that said if any part of the charge was based on expression, it should be dismissed.
Grant argued for the affirmative defense based on self-defense from an August 15, 1977 case decided by the Colorado Supreme Court. In this case, Colorado v. Robert Glen Ford, the defendant was charged under Colorado statute pertaining to previous offenders. In that case, the trial court dismissed the felony charge because of the language of Colorado's constitution. The Supreme Court reversed the lower court's decision; however, the Supreme Court also argued forcefully for the inclusion of Constitutional matters at trial.
The Colorado Supreme Court said, "It is axiomatic that if a statute can reasonably be construed so as to harmonize it with the Constitution, that construction should be preferred." The Court said, "[T]he right to bear arms is not absolute; the Colorado Constitution limits that right to the defense of one's home, person, and property." So if Stanley was, in part, defending his person, that should fit with the language of the Constitution.
The Court continued:
The General Assembly's power to regulate in this area, however, is subject to the clear constitutional guarantee of the right to bear arms. A defendant charged under section 18-12-108 who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property thereby raises an affirmative defense.
Two arguments might be made for the judge to exclude the Colorado Constitution from the jurors' instructions. First, perhaps "home-rule" cities aren't subject to the provisions of the Constitution. Clearly that argument would be bogus, because that would mean the Assembly was able to pass statutes regarding home rule not "subject to the clear constitutional guarantee of the right to bear arms." Second, perhaps the sole task of city courts is to decide the facts of the case, whereas it is the task of higher courts to decide the constitutionality of the ordinances. I have heard no justification whatsoever to support that argument. And the claim seems to contradict the ruling of the Supreme Court:
We do not agree with the defendant's assertion, however, that the trial court's disposition of this issue at a pre-trial evidentiary hearing was proper. The question of the defendant's purpose in keeping the weapons is one for the fact finder to determine at trial. If the trial is to a jury, the issue is to be tried to the jury under appropriate instructions informing them of the constitutional provision... [T]he ultimate issue whether an affirmative defense applies turns solely on the fact issue of the defendant's purpose in keeping the guns. If the prosecution is entitled to a jury trial, it is entitled to have this ultimate issue submitted to a jury. We do not, however, accept the prosecution's contention that the burden is upon the defendant to prove the constitutional protection beyond a reasonable doubt. Due process requires that the burden to prove guilt beyond a reasonable doubt remain with the prosecution throughout the trial.
Thus, the constitution provides an "affirmative defense" even if it is not explicitly referenced in the statute (or ordinance). Neither Puckett nor the judge provided any reason why the case of an ordinance should be handled any differently than the case of a statute. The Supreme Court said clearly that the jury is to decide matters of constitutionality.
Patterson rejected Grant's arguments and said the ordinance is constitutional.
At this point, David Bryant, who was in the room to witness the trial, told Puckett he didn't appreciate Denver's disdain for the Colorado Constitution. Bryant referred to Denver as "a little fiefdom."
At about 10:00 am, the judge told the jury, it is "my job to decide what rules of law are applied to the case," and "you must follow all the rules" given by the judge.
Puckett gave his closing speech. Stanley "violated the law" by willfully violating Denver's disarmament ordinance. Stanley wasn't really interested in self-defense, and anyway that is irrelevant to the ordinance.
Grant reminded the jury of how important their responsibility was. They "uphold the Constitutional right" to a jury trial. He said, "The verdict is yours." Jurors have the chance of "standing up for freedom, for liberty." He said Stanley was engaging in an activity that "he believed to be one of those rights." Stanley had neither a culpable mental state nor criminal intent. He broke a municipal ordinance, not a state law. And he carried his gun, in part, as a matter of self-defense. Grant reminded the jury that Stanley was speaking on the 210th anniversary of the Bill of Rights. "He thought he was expressing those rights." "You have a chance to do something for freedom," Grant concluded.
At about 10:40 am, the jury came back and convicted Stanley.