The following is a video transcript.
What do you do when you inadvertently carry into a place you’re not supposed to and you need to use your gun in self-defense? How does the “Doctrine of Necessity” come into play? Do you lose your presumptions? Do you lose “stand your ground?” Is there any difference between the prohibited places like a school, and just a business with a “no gun” sign?
DOCTRINE OF NECESSITY
The common-law “Doctrine of Necessity” has been codified in Colorado as the “choice of evils” defense. Under that defense, conduct which would otherwise constitute an offense is not criminal when it is reasonably necessary as an emergency measure to avoid an imminent public or private injury that is about to occur, and is not the actor’s fault. Because the “choice of evils” defense excuses only offenses that can arise in an emergency, it would generally not provide a defense to carrying a weapon in a prohibited place, unless the person brought the weapon into the prohibited place to confront the emergency.
PROTECTIONS OF THE SELF-DEFENSE STATUTE
Nevertheless, the courts do not appear to have held that one forfeits the protections of the self-defense statute simply because they are unlawfully carrying a weapon in a prohibited space. To the contrary, in fact, the Colorado Supreme Court has noted that the only exceptions to the right to self-defense are those contained in the self-defense statute itself. It therefore raises the curious possibility that were a person justifiably used a firearm in self-defense in a place where they were not allowed to be carrying a
weapon, the person could rely on self-defense as an affirmative defense to any charges related to the use of the weapon. But, they also remain subject to possible charges for carrying the weapon in a prohibited place.
If the possession in a prohibited place was truly inadvertent, in that the person did not know they were carrying, such that lack of knowledge might negate the elements of some the offenses (such as Colorado revised statutes § 18-12-105.5, which make it a crime to knowingly carry a firearm into a school property). But certain lesser municipal charges do not include the “knowingly” element requirement.
CARRYING IN PROHIBITED PLACES
There could also be a difference in the potential charges based on where the incident occurred. Unlawfully carrying in a prohibited public place is generally a crime. For example, carrying in a school is a class six felony pursuant to Colorado statutes. The statutes do not appear to explicitly make it a crime to carry a weapon contrary to the rules of a private business. But, because the statutes authorize private businesses to prohibit firearms on their premises, a person who carries into such a business in violation of the policy could be charged with criminal trespass under our laws, which is applicable to one who unlawfully enters or remains upon a premises of another person. If you have any questions, feel free to call me in my office. I’m always happy to talk to U.S. LawShield members.
If you have any questions, feel free to call me at my office. I’m always happy to talk to U.S. LawShield members.