July 26, 2014

Colorado Supreme Court: In POWPO Case, No Error to Give Jury Choice of Evils Instruction Requiring Reasonableness and Imminence

The Colorado Supreme Court issued its opinion in People v. Carbajal on Monday, June 30, 2014.

Colo. Const. art. II, § 13—Right to Bear Arms—Possession of a Weapon by a Previous Offender—Choice of Evils—Jury Instructions—Affirmative Defense.

Reversing the court of appeals, the Supreme Court held that the trial court did not err in instructing the jury that, to raise an affirmative defense to possession of a weapon by a previous offender (POWPO), defendant must show that he possessed the weapon for the purpose of defending himself, his home, or his property from what he reasonably believed to be a threat of imminent harm. This instruction properly reflects the Court’s precedent in People v. Blue, 544 P.2d 385, 391 (1975), which upheld the POWPO statute against a claim that it unconstitutionally infringed on the right to bear arms under Colo. Const. art. II, § 13, based on the legislature’s provision of a choice of evils affirmative defense. Because the choice of evils defense includes both a reasonableness and imminence requirement, the trial court did not err in including these requirements in its instruction.

Summary and full case available here.

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