Recently, I was asked to comment on the interplay between the Affirmative Defense of Self Defense, the constitutional provisions permitting possession of firearms for defense of one’s home, person and property, and C.R.S. 18-12-108, Possession of a Weapon by Previous Offender “POWPO”. Possession of a Weapon by Previous Offender, or POWPO, involves a convicted felon (either from a juvenile adjudication or an adult felony conviction), who possesses a firearm in Adams, Arapahoe or Broomfield County. It is a felony for the felon to possess firearms.
In 1977, in People v. Ford, the Colorado Supreme Court ruled that a person with a POWPO charge can raise the affirmative defense of protection of home, person and property as a valid defense in Montezuma County, Archuleta County, La Plata County, and all over Colorado. If the person charged can convince the jury that he truly possessed the firearms / gun for defense, it is a valid defense to Possession of a Weapon by Previous Offender charges. This is possible because the state constitution is more powerful than a state statute. That is always the case. If a statute conflicts with the Colorado Constitution, the statute is ruled unenforceable and unconstitutional as applied. Constitutional provisions are more difficult to add and amend, and are the supreme law of the land.
While this defense is the law, we still see police officers charging felony Possession of a Weapon by a Previous Offender, when a felon has guns / firearms in their possession at home for defense. This is not an isolated case, either. We regularly see an arrest for Concealed Weapon’s Charges under C.R.S. 18-12-105, when police find a gun in a car in places like Denver, Jefferson and Douglas County. This occurs despite language in the statute which says it is not a crime to conceal a weapon in your car if you are doing so for “protection” while traveling.
Police should learn the law and not be afraid to exercise discretion in following the law. The problem today is that everyone in the court system is afraid of their own shadow. Particularly in firearms, sex and domestic violence cases, they are afraid they will do the right thing and then get blamed when someone later offends. So, they require high bond, strict supervision and charge everyone hoping to never have to worry about someone saying they could have done more.
If you are a felon and charged with Possession of a Weapon by Previous Offender, you have solid defenses. So, be smart, exercise your right to remain silent, and call the experienced criminal defense lawyers at the O’Malley Law Office, P.C., today. Together, we can protect your future.