author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Matthew Wayne WRIGHT, Defendant-Appellant.
    No. 99CA0287.
    Colorado Court of Appeals, Div. III.
    Jan. 3, 2002.
    Rehearing Denied Feb. 21, 2002.
    Certiorari Denied Sept. 16, 2002.

      Ken Salazar, Attorney General, Linda K. Baker, Special Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Matthew Wayne Wright, appeals the trial court's order denying his post-conviction motion challenging the length of his sentence to prison and mandatory parole. We affirm.

Defendant pleaded guilty, in two separate cases, to first degree criminal trespass and second degree burglary. Defendant was sentenced to probation in both cases.

A complaint was subsequently filed alleging that defendant had violated the conditions of his probation. At the hearing on that complaint, defense counsel informed the court that the parties had reached an agreement whereby defendant would admit the allegations of the probation complaint in exchange for the prosecution's stipulation to a "cap of ten years" as the "maximum sentence [that the court] could impose." The trial court accepted defendant's admission to the complaint without orally advising him of the possible penalties Defendant did not execute a written advisement, and the parties did not reduce their sentence agreement to writing.

The trial court sentenced defendant and issued a mittimus in the burglary case indicating that defendant was sentenced to ten years in the custody of the DOC "plus parole as authorized by CRS. § 18-1-105(1)(a)(V)(A)." Under that provision, the class three felony for which defendant was convicted carries a five-year period of mandatory parole. The trial court also sentenced defendant and issued an amended mittimus in the trespass case indicating that defendant was to serve a concurrent sentence of three years in the custody of the DOC "plus" a two-year period of mandatory parole as required by § 18-1-105(1)(a)(V)(A).

Defendant then filed a Crim. P. 35(a) motion alleging, among other allegations, that his sentence was illegal because the trial court failed to advise him concerning mandatory parole at the time he admitted the probation violation. The trial court denied the motion, and this appeal followed.

At defendant's request, this court ordered a limited remand to the trial court so that it could consider defendant's request for specific enforcement of the plea agreement.

Upon remand, defendant filed a motion for specific enforcement of the plea agreement in which he argued that, at the time he pleaded guilty to the probation complaint, he believed that the ten-year "cap" included the five-year period of mandatory parole. In support of this motion, defendant filed an affidavit verifying that, when he originally pleaded guilty to the charges, he was "informed that the charges carried five years of mandatory parole." The transcripts of those providency hearings are not part of the record on appeal.

The trial court again denied relief, concluding that the record established that the parties had intended that the ten-year "cap" set the maximum length for the DOC component of defendant's sentence.

I.

Defendant contends that his guilty plea to the probation complaint was invalid because the trial court neglected to readvise him that he would be required to serve a five-year period of mandatory parole. We are not persuaded.

Initially we note that defendant's motion, while entitled a motion pursuant to Crim. P. 35(a), makes claims that are properly brought under Crim. P. 35(c), and we treat it accordingly. See People v. Green, 36 P.3d 125 (Colo.App.2001).

In People v. Jones, 997 P.2d 1286, 1288 (Colo.App.1999), the defendant pleaded guilty pursuant to a deferred judgment and sentence agreement, at which time he was advised of the term of mandatory parole, its length, and the fact that it was mandatory. However, when the defendant subsequently entered a guilty plea to a revocation complaint pursuant to a stipulation for "2 years DOC," the trial court did not readvise him of the mandatory parole period. On appeal, a division of this court rejected the defendant's challenge to the validity of his second plea. Relying on Craig v. People, 986 P.2d 951 (Colo.1999), and Benavidez v. People, 986 P.2d 943 (Colo.1999), the division held that determination of the adequacy of the mandatory parole advisement required consideration of the record as a whole, including the initial advisement at the time defendant pleaded guilty to the charges.

We find the analysis of Jones to be persuasive. Because we perceive no distinction between the procedures governing revocation of a deferred judgment and those pertaining to revocation of probation, we elect to follow Jones here. Compare § 16-11-206, C.R.S. 2001, with § 16-7-403, C.R.S.2001. In so doing, we note that Jones specifically rejected the argument, put forth by defendant in this case, that consideration of the original mandatory parole advisement is foreclosed by the supreme court's decision in Benavidez v. People, supra.

Therefore, we conclude that the ree-ord as a whole, including the advisement given at the time a defendant pleaded guilty to the charge, must be considered in determining whether the defendant was adequately advised concerning mandatory parole at the time he pleaded guilty to a complaint alleging a violation of probation.

Here, as set forth above, defendant filed an affidavit in which he admitted that he was advised of the mandatory parole period when he initially pleaded guilty to the charges. Defendant has failed to provide a record of the providency hearings at the time he pleaded guilty to the charges, and therefore we must assume he was properly advised. See People v. Lawrence, 55 P.3d 155 (Colo.App. 2001). The record as a whole demonstrates that defendant was properly advised and thus was not entitled to the relief requested in his postconviction motion.

Accordingly, we conclude the trial court did not err in denying the motion without a hearing. See People v. Jones, supra.

IL.

Defendant also contends that the stipulation for a ten-year "cap" was an agreement for a five-year period of mandatory parole and a maximum DOC sentence of five years. We disagree.

The proper interpretation of a plea agreement is "strictly a question of law." St. James v. People, 948 P.2d 1028, 1030 (Colo. 1997).

In Craig v. People, supra, the defendant argued that a sentence of "5 years D.0.C." specified in the plea documents denoted only two years of imprisonment plus three years of mandatory parole. The supreme court rejected this argument, reasoning that the defendant's interpretation of the plea agreement was unreasonable and unsupported by the cireumstances surrounding its execution. The court held that, "Iblecause the parties would not ordinarily negotiate and include mandatory parole in their agreement, their silence on this topic simply does not render the agreement ambiguous." Craig v. People, supra, 986 P.2d at 962. In concluding that the stipulation for a five-year sentence pertained only to the imprisonment component of the defendant's sentence, the court in Craig also relied on the fact that the plea agreement in that case specifically stated that the five-year sentence was to the "D.0.C."

Here, the parties' plea agreement for a ten-year "cap" did not make specific reference to the DOC, and, in accepting defendant's admission to the probation complaint, the trial court did not make any statement to that effect. Nevertheless, we conclude that, under Craig, the absence of any reference to mandatory parole in defense counsel's de-seription of the plea agreement is sufficient support for the trial court's finding that the parties' agreement to a ten-year cap did not include the five-year mandatory parole period. As stated in Craig, it would be unusual for the parties to include mandatory parole in their plea agreement. Thus, defendant's admitted understanding of the mandatory parole requirement and the lack of any indication in the record that the parties' negotiations included the issue of mandatory parole support the trial court's conclusion.

Therefore, we conclude that the trial court did not err in finding that the mandatory parole period was not included in the sentence "cap."

The order is affirmed.

Judge JONES and Judge ROTHENBERG concur.


source: Caselaw Access Project

author: Judge VOGT.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel HUEHN, Defendant-Appellant.
    No. 00CA0505.
    Colorado Court of Appeals, Div. V.
    Jan. 17, 2002.
    Rehearing Denied April 4, 2002.
    Certiorari Denied Sept. 16, 2002.

      Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Peter B. Albani, Greenwood Village, CO, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2001.

   Opinion by

Judge VOGT.

Defendant, Daniel Huehn, appeals the judgment of conviction entered on a jury verdict finding him guilty of theft. We affirm.

On December 24, 1998, technicians responding to a call to service a Key Bank automated teller machine (ATM) discovered that the safe at the bottom of the machine was unlocked and the money cassettes normally found there were missing. The cassettes had been in the safe when the ATM was serviced on the morning of December 23, and customers had withdrawn money from the machine throughout that day. Computer records showed that the safe had been opened at approximately 9:80 p.m. on December 28, although there had been no call for service at that hour.

Defendant, one of the ATM technicians who had access to this machine, admitted in a written statement to his employer that he had opened the safe sometime between 8:30 and 9:30 p.m. on December 23 while at the site on a call regarding another ATM. He claimed, however, that the cassettes were still in the safe at that time.

I.

Defendant first contends that the trial court abused its discretion in admitting into evidence certain computer-generated records that were not sufficiently authenticated. We disagree.

The exhibits at issue are computer records reflecting customer transactions and techni-clan servicing at the ATM on December 23 and 24, 1998. Four of the exhibits were records generated for Key Bank by Money Access Services (MAC), with whom Key Bank had contracted to process its ATM transactions. Defendant objected to admission of these records on the grounds that there was an insufficient foundation for their admission as business records under CRE 803(6) and the records were not authenticated in accordance with CRE 901(b)(9). The trial court overruled the objections and admitted the exhibits.

Although he did not object on this basis at trial, defendant also contends on appeal that Exhibit 14, a portion of a status tape that recorded the openings and closings of the ATM vault on a hard drive inside the machine, should have been excluded for lack of authentication.

A.

As an initial matter, we reject defendant's contention that, because computer-generated evidence is "a species of scientific evidence," the prosecution had to make the showing required under Frye v United States, 293 F. 1013 (D.C.Cir.1928), or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), before the evidence could be admitted. See People v. Shreck, 22 P.3d 68 (Colo. 2001)(CRE 702, rather than Frye, governs admissibility of scientific evidence).

In support of his contention, defendant cites R. Bailin et al., Colorado Evidentiary Foundations (Miche 1997). However, that authority itself recognizes that, while presentation of scientific evidence usually requires proof of the validity of the underlying theory and the reliability of the instrument, "computers are so widely accepted and used that the proponent of computer evidence need not prove those two elements of the foundation." Colorado Evidentiary Foundations, supra, ch. 4(C)(2), at 52; see also Brooks v. People, 975 P.2d 1105, 1112 n. 7 (Colo.1999)(rejecting view that "whenever one can find 'science' by scratching beneath the surface of expert testimony, the validation rules governing scientific evidence would have to apply").

The trial court in this case properly focused its inquiry on whether a sufficient foundation had been laid to warrant admission of the proffered records under the applicable rules of evidence.

B.

The admissibility of a computer printout is governed by the rules of relevancy, authentication, and hearsay. Benham v. Pryke, 703 P.2d 644 (Colo.App.1985), rev'd on other grounds, 744 P.2d 67 (Colo.1987). The relevancy of the computer records in this case is not disputed.

The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. CRE 901(a). Whether a proper foundation has been established is a matter within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion. People v. Slusher, 844 P.2d 1222 (Colo. App.1992).

The hearsay objection to the admissibility of computer-generated records may be overcome by, among other methods, showing that such records are admissible under CRE 808(6), the business records exception to the hearsay rule. Material and relevant computer records are admissible under this exception if; (1) the computer entries are made in the regular course of business; (2) those participating in the record making were acting in the routine course of business; (3) the input procedures were accurate; (4) the entries were made within a reasonable time after the transaction involved; and (5) the information was transmitted by a reliable person with knowledge of the event reported. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984); Benham v. Pryke, supra.

C.

Here, Key Bank's ATM accounting supervisor testified that transactions at the bank's ATMs are electronically communicated to, and recorded by, MAC, which handles the processing of the transactions. MAC's computer-generated reports for each ATM are transmitted daily to Key Bank, stored for three months in Key Bank's computer, then transferred to fiche. The witness testified that Key Bank received and stored the records in the ordinary course of its business, and he identified the exhibits at issue as accurate copies of Key Bank's fiche record of activity at the ATM on the relevant dates.

A representative of the company that serviced Key Bank's ATMs testified similarly that the status tapes for the ATMs are kept inside the ATMs on the hard drive and automatically record each opening and closing of the safe.

It was undisputed that the entries on all the exhibits were made within a reasonable time of the transactions involved.

Defendant contends that this testimony was insufficient to satisfy the requirements for admitting computer records under CRE 808(6) because (1) the first four exhibits were MAC records but were not introduced by anyone from MAC, and (2) the prosecution did not show that the computer input procedures were accurate by complying with the authentication procedure in CRE 901(b)(9). We reject both contentions.

1.

The fact that the records created by MAC were introduced through the Key Bank officer, whose department received and kept the records, did not preclude their admission under CRE 8083(6). See Hauser v. Rose Health Care Systems, 857 P.2d 524 (Colo. created by one business but regularly received, maintained, and relied upon by another may be admitted as business records of the latter); Teac Corp. v. Bauer, 678 P.2d 3 (Colo.App.1984)(records prepared by another source that are adopted and integrated in regular course of established business procedures into records sought to be introduced are admissible under CRE 803(6), even if identity of person whose first-hand knowledge was the basis of a particular entry is not established).

2.

Defendant also argues that, to establish the accuracy of the input procedures, the prosecution was required to proceed in accordance with CRE 901(b)(9), which permits authentication by "[elvidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." This showing was not made, he contends, because the Key Bank foundation witness admitted on cross-examination that he did not know how or when the MAC computer had been programmed, whether it had been repaired, or whether procedures were used to ensure the accuracy of the program. Nor did the authentication witness for Exhibit 14, the status list, testify that the system that generated the list produced an accurate result.

Defendant acknowledges that Colorado cases have not previously required compliance with CRE 901(b)(9) as a condition of admitting computer-generated business ree-ords. However, he cites Colorado Evidentiary Foundations, supra, for the proposition that Colorado courts have been "lax" in applying the authentication requirement to computer records, admitting them with "minimal analysis of authenticity issues," and he argues that we should require such further authentication in this case. 'We decline to do so.

First, although CRE 901(b)(9) may be used to authenticate computer records, there is no requirement, either in the rule itself or in Colorado case law construing the rule, that computer records be authenticated only in this way.

Second, computer business records have a greater level of trustworthiness than an individually generated computer document such as that at issue in People v. Slusher, supra, relied on by defendant, in which a division of this court upheld the exclusion of a purported lease agreement that was apparently created by the defendant on his computer.

Finally, courts have generally declined to require testimony regarding the functioning and accuracy of the computer process where, as here, the records at issue are bank records reflecting data entered automatically rather than manually. See United States v. Moore, 923 F.2d 910 (1st Cir.1991)(testimony by bank's loan officer was sufficient to authenticate computer-generated loan histories); State v. Veres, 7 Ariz.App. 117, 436 P.2d 629 (1968)(fact that bank's foundation witness was unfamiliar with operation of encoding machine that generated bank records did not preclude their admission as business records), overruled by State v. Osborn, 107 Ariz. 295, 486 P2d 777 (1971); People v. Lugashi, 205 Cal.App.3d 632, 252 Cal.Rptr. 434 (1988)(where computer record consists of retrieval of automatic inputs rather than computations based on manual entries, testimony on acceptability, accuracy, maintenance, and reliability of computer hardware and software need not be produced for purposes of admitting record into evidence).

In People v. Lugashi, microfiche copies of computer tapes containing credit card account information were introduced in a prosecution for grand theft. In rejecting an authentication argument similar to that made here, the Lugashi court observed that bank statements prepared in the regular course of banking business, in accordance with banking regulations, are in a different category than ordinary business and financial records of a private enterprise. The court also noted that the "bulk of other jurisdictions" had similarly declined to require more extensive authentication of such records. People v. Lugashi, supra, 252 Cal.Rptr. at 442 (collecting cases).

We agree with the rationale of those decisions upholding the admission of computer-generated bank records without the additional authentication urged by defendant, and accordingly conclude that the trial court did not abuse its discretion in declining to exclude the computer records in this case based on lack of authentication.

IL.

Defendant next contends that admission of an incomplete copy of the status tape that recorded openings and closings of the ATM safe violated the best evidence rule. We disagree.

Under CRE 1002 and 1003, the so-called "best evidence rules," an original is generally required to prove the contents of a writing, but a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity 'of the original, or (2) under the cireumstances, it would be unfair to admit the duplicate in lieu of the original. CRE 1004(1) further provides that an original is not required if it has been lost or destroyed, unless it was lost or destroyed in bad faith. ~

Determining the admissibility of evidence offered in lieu of an original writing under these rules is within the trial court's discretion, and that court's determination -will not be disturbed absent clear evidence of mistake amounting to an error of law. United Cable Television of Jeffeo, Inc. v. Montgomery LC, Inc., 942 P.2d 1230 (Colo.App. 1996).

Mere speculation or supposition that an original document may have contained information that the duplicate did not, or vice versa, does not amount to a showing that it would be unfair to admit the duplicate and thus does not preclude admission of the duplicate under CRE 1008, Equico Lessors, Inc. v. Tak's Automotive Service, 680 P.2d 854 (Colo.App.1984)

The prosecution's foundation witness for Exhibit 14 identified it as a copy of a portion of the status tape that was kept inside the ATM on the hard drive. The tape was retrieved by a technician who took it off the machine in the presence of the witness. The witness then took the original tape roll and photocopied the portions offered into evidence. At the time of trial, he did not know where the original tape was.

Defendant objected to admission of the copy on the basis that it was incomplete and portions of some entries were cut off at the bottom of the page. He argued that the original tape was required. The trial court disagreed, noting that the critical portion, showing entry into the safe at 9:80 pm. on December 23, was not cut off.

Admission of the duplicate was not an abuse of discretion. The foundation witness testified that the location of the original tape was unknown, and there was nothing to indicate that the original had been lost or destroyed in bad faith. For the reasons set forth in Part I, above, there is no genuine question as to the authenticity of the original tape. Finally, defendant has not. shown that it was unfair to admit the duplicate in lien of the original. He argues that a cut-off entry at the bottom of the first page of the exhibit might have shown a door opening at 6:56 pm. on December 28, thereby establishing that the theft could have occurred then. This argument is not only speculative, see Equico Lessors, Inc. v. Tak's Automotive Service, supra, but also contradicts defendant's own written statement that the cassettes were in the safe when he opened it between 8:30 and 9:30 p.m. on December 283.

IIL

Defendant contends that the trial court unduly restricted his cross-examination of a witness, thereby violating his constitutional right to confront witnesses against him. We are unpersuaded.

The trial court has discretion to determine the scope and limits of cross-examination. Absent an abuse of discretion, the court's rulings will not be disturbed on appeal. People v. Rodrigues, 914 P.2d 230 (Colo.1996).

In general, cross-examination should be limited to the subject matter of the direct examination and matters affecting credibility of the witness. CRE 611(b).

Although the constitutional right of an accused to confront witnesses includes the right of eross-examination, the latter right is not absolute. Rather, it is tempered by the trial court's authority to prohibit cross-examination on irrelevant and immaterial issues and to protect witnesses from questions that go beyond the bounds of proper cross-examination. See People v. Thurman, 787 P.2d 646 (Colo.1990); see also People v. Collins, 730 P.2d 298 (Colo.1986).

In this case, the prosecutor called defendant's employer's corporate security director to testify regarding his interviews with defendant after the theft. Defense counsel thoroughly cross-examined the witness, including challenging his account of when defendant claimed to have been at the ATM. During a brief redirect examination, the prosecutor elicited testimony from the witness that defendant himself had written the times when he was at the ATM on his statements, without being told by the witness what he should write. On recross-examination, defense counsel asked the witness to agree that defendant had told him a number of times during the interview that he had met with another individual at the ATM at earlier times. The prosecutor objected to the question as beyond the scope of the redirect examination, and the trial court sustained the objection.

Given the extensive cross-examination of this witness, there was no violation of defendant's confrontation rights. While the question on recross was arguably not beyond the seope of the redirect examination, we are not persuaded that defendant's inability to elicit a response to this single question affected his substantial rights. Therefore, any error in the trial court's ruling does not afford a basis for reversal. See CAR. 85(e) (appellate court shall disregard any error not affecting substantial rights of parties).

IV.

Finally, we do not agree with defendant's contention that the prosecution failed to present sufficient evidence to prove the amount of money stolen from the ATM.

Where the sufficiency of the evidence is challenged on appeal, our task is to determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. In applying this standard, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence, and must leave to the factfinder the resolution of conflicts, inconsistencies, and disputes in the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988).

To convict defendant of the charged offense in this case, the prosecution had to prove that the value of what was stolen was $15,000 or more. See § 18-4-40102)(d), C.R.S.2001; Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968).

The supervisor of Key Bank's accounting department testified that his department kept track of how much money was in the bank's ATMs. The witness was asked whether, based on the department's records, he knew how much money should have been in the ATM from which the cassettes were taken. He consulted a notebook and responded that the amount was $45,780. The witness further testified that Key Bank was reimbursed in that amount by the ATM security company.

This evidence was sufficient to establish the value of what was taken.

We reject defendant's contention that the evidence was insufficient because the witness was testifying without personal knowledge and was relying on a notebook that was not introduced into evidence. It was a reasonable inference from his testimony that he was familiar with the records of the department he supervised. Further, it was not improper for the witness to consult the notebook after testifying that it would help refresh his memory as to the amount. See CRE 612.

Finally, although defendant cites evidence suggesting the amount to which the witness testified was incorrect, that establishes only that the evidence of the amount stolen was conflicting. Weighing that conflicting evidence was for the jury. See Kogan v. People, supra.

The judgment is affirmed.

Judge KAPELKE and Judge ERICKSON concur.


author: Judge JONES.

text:
    PROGRESSIVE CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. FARM BUREAU MUTUAL INSURANCE COMPANY, INC., and American Family Mutual Insurance Company, Defendants-Appellants.
    No. 01CA0272.
    Colorado Court of Appeals, Div. II.
    Jan. 31, 2002.
    Certiorari Denied Aug. 26, 2002.

      White and Steele, P.C., Keith R. Olivera, Denver, CO, for Plaintiff-Appellee.
    Richard W. Laugesen, Denver, CO, for Defendant-Appellant Farm Bureau Mutual Insurance Company, Inc.
    Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Heather A. Salg, Englewood, CO, for Defendant-Appellant American Family Mutual Insurance Company.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge JONES.

In this declaratory judgment action, this appeal arises from the summary judgment entered in favor of plaintiff, Progressive Casualty Insurance Company, and against defendants, Farm Burear Mutual Insurance Company, Inc., and American Family Insurance Company, obligating the three insurance companies, respectively, to pay one-third of the personal injury protection (PIP) benefits accruing to Suzette Sacco, claimant. We affirm.

In December 1995, claimant, an insured of American Family, stopped and exited her pickup truck on the icy shoulder of eastbound I-70 near Airport Boulevard to help the occupant of another vehicle that had flipped in the grassy area south of the interstate. The occupant of the distressed vehicle was an insured of Farm Bureau. The driver of a third vehicle, an insured of Progressive, saw the other vehicles and attempted to stop, but skidded into the right guardrail, ricocheted off it, and then struck claimant, causing her severe injuries.

Progressive initially disputed whether claimant was a pedestrian at the time of the accident and refused to pay any of the PIP benefits, but subsequently confessed its coverage and reimbursed American Family $60,195, or approximately one-half of the $122,150 in PIP benefits that American Family had already paid.

Following its payment of reimbursement to American Family, Progressive commenced suit against American Family, seeking a declaration that American Family was liable for the full amount or a proportionate share of claimant's PIP benefits, and asserting other claims not under review here.

American Family countercelaimed against Progressive, seeking a determination that Progressive was totally responsible for the PIP benefits, and made other claims also not under review here.

Thereafter, Progressive amended its complaint to join Farm Bureau as a defendant, seeking a determination that Farm Bureau and American Family were jointly liable for all or proportionate shares of claimant's PIP benefits.

All parties conceded that claimant was a pedestrian at the time relevant to the issues here. See Rose v. Allstate Ins. Co., 782 P.2d 19 (Colo.1989)(defining "pedestrian" for purposes of no-fault statute as all persons not riding in or upon a vehicle, or not in the immediate act of entering or alighting from a vehicle, and whose injuries have a causal connection to use of a vehicle).

On eross-motions for summary judgment, the trial court held that Progressive, American Family, and Farm Bureau were each responsible for a one-third pro rata share of claimant's PIP benefits pursuant to $ 10-4-707(1)(c), C.R.S.2001. This appeal followed.

I.

Defendants contend that the trial court erred when it held that the respective vehicles they insured were indeed vehicles "out of the use of which" a pedestrian's injuries arose, thus obligating each to pay a one-third share of claimant's PIP benefits under the Colorado No Fault Act. We perceive no error.

Section 10-4-707(1)(c), states that PIP coverage applies to accidental bodily injury "sustained [by a person] while occupying the described motor vehicle with the consent of the insured or while a pedestrian if [that person is] injured in an accident involving the described motor vehicle." See Rose v. Allstate Ins. Co., supra.

A division of this court has interpreted this statute in Bredemeier v. Farmers Insurance Exchange, 950 P2d 616, 617 (Colo.App.1997), determining that to prove the causal connection between the use of the vehicle and the injury, a party need only show that the injury "originated in, grew out of, or flowed from a use of a vehicle." The vehicle itself need not be the source of the actual injury. See Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d 92 (Colo.1995); see also Government Employees Ins. Co. v. MFA Mut. Ins. Co., 802 P.2d 1122 (Colo.App.1990) (concluding that injury incurred in unloading spare tire from trunk of insured vehicle flowed from insured's operation of that vehicle). Nonetheless, the claim must arise from a "conceivable use" of the insured vehicle, that is, a use not foreign to the vehicle's inherent purpose. Bredemeier v. Farmers Ins. Exch., supra, 950 P.2d at 617.

Another division of this court determined that a pedestrian was entitled to PIP benefits from a vehicle's insurer for injuries he sustained when he attempted to help the occupants of the vehicle, which had collided with a concrete post after its driver had been shot by an unknown assailant. The occupants of the vehicle assaulted and injured the pedestrian, having mistaken him for someone involved in the shooting. Metropolitan Prop. & Cas. Ins. Co. v. Newbert, 969 P.2d 733 (Colo. App.1998).

The Newbert panel concluded that one of the "consequences of automobile use is the occurrence of injury-causing accidents that result in the vehicle's occupants being in need of assistance from persons nearby" and that the rendering of assistance to the victims of a car accident is a "foreseeable event arising out of the use of the vehicle." The panel reasoned that therefore, but for the accident, the pedestrian would not have been injured when the occupants of the car assaulted him. Metropolitan Prop. & Cas. Ins. Co. v. Neubert, supra, 969 P.2d at 734-35. However, the occupants of the insured vehicle must be engaged in a conceivable use of the vehicle and not one foreign to the vehicle's inherent purpose. See Bredemeier v. Farmers Ins. Exch., supra.

Here, when the Farm Bureau insured vehicle slid off the highway and rolled onto its side, the action flowed from the use of the Farm Bureau insured vehicle, causing claimant to exit her vehicle on the shoulder of an icy highway in order to render aid. In this instance, it was reasonable for claimant to exit her vehicle to render aid. See Metropolitan Prop. & Cas. Ins. Co. v. Neubert, supra; see also § 10-4-707(1)(c).

Furthermore, the cireumstances confront ed by the driver of the vehicle insured by Progressive caused that vehicle to brake on the slippery roadway, resulting in its skidding and striking claimant's car and then hitting claimant, resulting in her injuries. See §§ 104-705, 10-4-707(1)(e), C.R.8.2001.

As American Family's insured, claimant would have been entitled to PIP benefits had she been injured in an accident involving a covered motor vehicle. See § 10-4-707(1)(a), C.R.S.2001. However, we conclude that, as a pedestrian, claimant is also entitled to PIP benefits under the Farm Bureau and the Progressive policies because her actions as a pedestrian and her injuries were integrally related to her conceivable use of her vehicle . in arriving and stopping to render aid at the location of the accident. See § 10-4-TOT(l)(c);, Metropolitan Prop. & Cas. Ins. Co. v. Neubert, supra.

Had the accident involved only the vehicles insured by Farm Bureau and Progressive, then, under the first clause of § 10-4-707(8), C.R.9.2001, those two insurers would be solely responsible for payment of the PIP benefits. However, because the accident, for statutory purposes, involved all three vehicles, all insurers are responsible for payment of the PIP benefits See § 10-4-707(8); GEICO, supra.

Therefore, we conclude that the trial court did not err when it declared that each vehicle that Farm Bureau and American Family insured was indeed a vehicle "out of the use of which" claimant's injuries arose, obligating them respectivelyJ to pay a share of claimant's PIP benefits.

IL

American Family and Farm Bureau further contend that, even if each was obligated to pay a share of the PIP benefits pursuant to section 10-4-707(8), the trial court erred in its determination that each owed one third of the benefits. We perceive no error.

Section 10-4-707(8) provides, in pertinent part: "In the event two or more insurers are liable to pay benefits on the same basis, any insurer paying benefits shall 'be entitled to an equitable pro rata contribution from such other insurer."

As discussed above, all three insurers are liable to pay benefits arising from this accident, pursuant to section 10-4-707(1)(a) and (8). As such, each is entitled to an equitable pro rata contribution from the other two insurers, resulting in a one-third contribution from each insurer to cover the PIP benefits due claimant.

The judgment is affirmed.

Judge PLANK and Judge PIERCE concur.


author: Judge ROY. |

text:
    Ignacio JAIMES, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Ilinois corporation, Defendant-Appellee.
    No. 00CA0042.
    Colorado Court of Appeals, Div. V.
    Jan. 31, 2002.
    Certiorari Denied Aug. 19, 2002.

      Thomas D. MeFarland, Golden, CO, for Plaintiff-Appellant.
    Bayer, Carey & McGee, P.C., Gary L. Palumbo, Peter M. Spiessbach, Terry L. Lutts, Denver, CO, for Defendant-Appellee.
    Patterson, Nuss & Seymour, P.C., Franklin D. Patterson, Englewood, CO, for Amicus Curiae Colorado Defense Lawyers Association.
    Richard W. Laugesen, Denver, CO, for Amicus Curiae Richard W. Laugesen.
   Opinion by

Judge ROY. |

Plaintiff, Ignacio Jaimes (insured), appeals the trial court's judgment in favor of defendant, State Farm Mutual Automobile Insurance Company (insurer). We reverse and remand.

In Jaimes v. State Farm Mutual Automobile Insurance Co., (Colo.App. No. 00CA0042, Mar. 29, 2001)(not selected for official publication), we addressed the validity of the exclusion in a motor vehicle insurance policy limiting coverages, including uninsured/un-derinsured (UM/UIM) coverage, to insured's injuries while occupying a vehicle insured under that policy. We concluded that the exclusion was valid, enforceable, and applied to the cireumstances presented.

Thereafter, the supreme court granted the insured's petition for a writ of certiorari, vacated our judgment, and remanded with directions that the matter be reconsidered in light of DeHerrera v. Sentry Insurance Co., 30 P.3d 167 (Colo.2001). Upon reconsideration we now conclude that the exclusion is void.

Insured owned a Nissan and his wife owned a Subaru, both of which were insured under separate policies by insurer. The Nissan policy had a UM/UIM limit of $25,000 per person, and the Subaru policy had a UM/UIM limit of $100,000 per person.

While he was driving the Nissan, insured was involved in an accident with an underin-sured motorist. Insured settled with the underinsured motorist for $25,000, that motorist's liability policy limit, with the consent of insurer. Because the settlement amount equaled the UM/UIM policy limit for the policy insuring the Nissan and was subject to setoff, no UM/UIM benefits were payable under the Nissan policy.

Insured then sought UM/UIM benefits under the policy insuring the Subaru. Insurer admitted that the insured was "an insured" under the Subaru policy, because he is married to and resides with the named insured at the same residence. However, insurer denied coverage on the grounds that the "owned but not insured under this policy" exclusion in the Subaru policy exeluded coverage because insured was injured while driving a vehicle owned by a person who was an insured under the Subaru policy but the vehicle was not insured under the Subaru policy.

Insured then commenced this declaratory judgment proceeding, asserting that the exclusion in the Subaru policy violates § 10-4-609, C.R.S.2001. Alternatively, insured asserted that the exclusion is inconsistent with the "other coverage" clause contained in the Subaru policy and, therefore, must be interpreted in his favor.

The exclusion of the UM/UIM coverage in the Subaru policy states:

THERE IS NO COVERAGE
2. FOR BODILY INJURY TO AN INSURED:
a. WHILE OCCUPYING, OR
b. THROUGH BEING STRUCK BY
A MOTOR VEHICLE OWNED BY YOU, YOUR SPOUSE OR ANY RELATIVE IF IT IS NOT INSURED FOR THIS COVERAGE UNDER THIS POLICY. (emphasis in original)

Section 10-4-609(1)(a), C.R.S.2001, quires for UM/UIM coverage as follows: re-

No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle licensed for highway use in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 42-7-108(2), C.R.S., under provisions approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; except that the named insured may reject such coverage in writing.

The insurer filed a motion for summary judgment. The trial court, relying on Arguello v. State Farm Mutual Automobile Insurance Co., 42 Colo.App. 372, 599 P.2d 266 (1979), and Williams-Dichl v. State Farm Fire & Casualty Co., 793 P.2d 587 (Colo.App.1989), granted the motion. The court concluded that there was no ambiguity or conflict in the Subaru policy and that the exclusion does not violate § 10-4-609 or public policy. This appeal followed.

I.

We first address the "owned but not insured under this policy" exclusion as applied to UM/UIM coverage and conclude that the exclusion is contrary to the public policy of Colorado and thus void.

The ability of an insurer to exclude UM/ UIM benefits under certain cireumstances historically has been recognized as valid and enforceable in Colorado and not repugnant to public policy. See § 10-4-609; Terranova v. State Farm Mutual Automobile Insurance Co., 800 P.2d 58 (Colo.1990)(exelusion of UM/ UIM coverage for the owner-occupant injured in a one-vehicle accident is enforceable); Cruz v. Farmers Insurance Exchange, 12 P.3d 307 (Colo.App.2000)("regular use" exclusion applicable to UM/UIM coverage is not contrary to public policy); Williams-Dichl v. State Farm Fire & Casualty Co., supra ("owned but not insured" exelusgion is not contrary to public policy); Arguello v. State Farm Mutual Automobile Inswrance Co., supra (same).

However, in DeHerrera, the supreme court indicated its disapproval of Williams-Dichl and implicitly disapproved of Arguello, to the extent they conflicted with DeHerrera. De-Herrera v. Sentry Insurance Co., supra, 30 P.3d at 176 n. 8. Thus, the supreme court, in obiter dictum, has announced its limited disapproval of the exclusion in the UM/UIM context.

In DeHerrera, the insured's child was injured while riding an unlicensed, off-the-road motor bike owned by the child, upon being struck by an uninsured or underin-sured motor vehicle. The insured then sought Personal Injury Protection and UM/ UIM benefits provided by a policy insuring her automobile. The applicable policy provided UM/UIM coverage only if an insured person was occupying a car or was a pedestrian, and coverage was denied on the basis that the child was not occupying a car and was not a pedestrian.

As pertinent here, in DeHerrera, the supreme court held that UM/UIM coverage extended to the child, an insured party, even when operating the motor bike, because UM/ UIM coverage is personal, rather than vehicle specific, under § 10-4-609. The coverage thus travels with the insured, there a resident family member driving an uninsured vehicle. The court, therefore, voided the limitation on the UM/UIM coverage to insureds who are in a car or are pedestrians as being contrary to § 10-4-609 and the public policy of Colorado:

[Wle hold that the language and purpose of the UM/UIM statute require an insurer to provide UM/UIM benefits to a person insured under the policy when injured in an accident caused by an uninsured or underinsured motorist without regard to the vehicle occupied by the insured at the time of injury.

DeHerrera v. Sentry Inswrance Co., supra, 30 P.3d at 169 (emphasis added). The court also noted the policy and purpose of UM/ UIM coverage: . '

Because of the important policy behind UM/UIM insurance to protect persons from the often-devastating consequences of motor vehicle accidents, we have concluded that great weight must be accorded this legislative intent. [wle are also mindful of the nature of UM/UIM insurance coverage, the limits of which function, in effect, as a replacement for an uninsured or un-derinsured tortfeasor's automobile liability limits.

DeHerrera v. Sentry Insurance Co., supra, 30 P.3d at 174. Further, the court considered the precise language of § 10-4-609(1):

The UM/UIM statute contains no provisions excluding protection for an insured based on the kind of vehicle an insured occupies at the time of injury. Rather, it simply states that UM/UIM coverage, if not waived by the named insured, must protect "persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles." This phrase, " 'persons insured thereunder means that insurers must provide UM/UIM coverage for the protection of persons insured under the liability policy that the insurer is issuing." Thus, the statute provides coverage for person; it does not place geographical limits on coverage and does not purport to tie protection against uninsured motorists to occupancy in any kind of vehicle.

DeHerrera v. Sentry Insurance Co., supra, 30 P.3d at 175 (citations omitted). The court also considered an example similar to the facts in this case:

We note that the argument can be made that requiring UM/UIM insurance irrespective of the vehicle occupied by an insured at the time of injury may encourage unjust results in particular circumstances. For instance, a family owning more than one vehicle may purchase insurance for only one vehicle, under the rule of this case, and yet recover UM/UIM benefits when struck by an uninsured motorist while occupying any of its owned but uninsured vehicles.... However, the UM/UIM statute, unlike the No Famlt Act, does not exclude UM/UIM coverage based on occu-paney of an owned but uninsured vehicle .._ Therefore, we decline to adopt these exclusions because no such exclusions have been enacted by the General Assembly in the UM/UIM statute.

DeHerrera v. Sentry Insurance Co., supra, 30 P.3d at 176 (footnote omitted; emphasis added).

The supreme court's analysis relied heavily on the legislative intent behind § 10-4-609(1), but its conclusions are also supported by the unambiguous language of the statute itself. Section 10-4-609(1)(a) plainly states that UM/UIM coverage is "for the protection of persons insured [under the policy] who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom" (emphasis added). The operative event for coverage under the statute is an injury to an insured arising from an accident involving an at-fault, uninsured or underin-sured motor vehicle. Under the statute, the status of the insured at the time of the accident, whether the occupant of the insured motor vehicle as operator or passenger, the occupant of a nonowned motor vehicle as operator or passenger, a pedestrian, or the operator of an owned but not insured vehicle, is not germane to the insurer's obligation to provide UM/UIM benefits.

Therefore, in our view, the "owned but not insured" exclusion is void as against the pub-lie policy of Colorado.

IL

The second issue we must address is whether DeHerrera applies retroactively. We conclude that it does.

Generally, statutes operate prospectively, while judicial decisions are applied retroactively. United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 285 (1982). However, judicial decisions may be limited to prospective effect under certain conditions. The threshold requirement for prospective application of a civil judicial decision is that it establish a new rule of law. Loffland Bros. Co. v. Industrial Claim Appeals Panel, 770 P.2d 1221 (Colo. 1989). To establish a new rule of law, a judicial decision must either overrule clear prior precedent on which the litigants have relied or must resolve an issue of first impression not clearly foreshadowed by prior precedent. Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992).

In a case of first impression before it, the supreme court in DeHerrera interpreted § 10-4-609(1), an unambiguous statute of long standing without substantive amendment, to mean that UM/UIM coverage is provided to insured persons without regard to occupancy in any specific vehicle. The court did not overrule any of its prior precedent, nor did it resolve an issue of first impression not clearly foreshadowed by prior precedent with respect to this type of exclusion. Therefore, although insurer and amici argue that the DeHerrera decision is a significant departure from the preexisting common understanding of the law by the insurance industry, it did not change the law and should be applied retroactively.

Accordingly, the judgment is reversed, and the case is remanded for entry of judgment in favor of insured.

Judge ROTHENBERG and Judge TAUBMAN concur.


text:
    Marian L. OLSON, Plaintiff-Appellant, v. CITY OF GOLDEN, City Council of the City of Golden, Golden Urban Renewal Authority, Defendants-Appellees.
    No. 01CA0470.
    Colorado Court of Appeals, Div. V.
    Feb. 14, 2002.
    Certiorari Denied Sept. 3, 2002.

      Victor F. Boog & Associates, P.C., Victor F. Boog, Linda A. Battalora, Lakewood, Colorado, for Plaintiff-Appellant.
    Windholz & Associates, James A. Win-dholz, Boulder, Colorado; Hall & Evans L.L.C,, Josh A. Marks, Denver, Colorado, for Defendants-Appellees City of Golden and City Counsel of the City of Golden.
    Paul C. Benedetti, Boulder, Colorado, for Defendant-Appellee Golden Urban Renewal Authority.
   Opinion by

Judge NIETO.

Plaintiff, Marian L. Olson, appeals a judgment dismissing her claims against defendants, City of Golden, City Council of Golden, Golden Urban Renewal Authority (GURA), and Clear Creek Square, LLC (Clear Creek). We affirm.

In 1989, the city approved the Golden Urban Renewal Plan (the plan). In 1995, as part of the plan, GURA purchased property in Golden within the plan area. GURA also entered into an agreement with the city. According to an amended version of this agreement, the city was to provide support to GURA, and GURA was to repay the city from future tax increments derived from the property and improvements on the property. In 1998, GURA entered into an agreement with a developer, under which the developer acquired the property and was to redevelop it according to GURA's development plan. The developer later assigned its interest under the agreement to Clear Creek.

In 2000, plaintiff brought an action against defendants seeking an injunction and a declaratory judgment that the agreements between the city and GURA and between GURA and Clear Creek violated the Urban Renewal Law, § 81-25-101, et seq., C.R.S. 2001, and article X, section 20 of the Colorado Constitution (TABOR).

Plaintiff also alleged in her amended complaint that defendants' agreements violated article XI, section 2 of the Colorado Constitution. However, plaintiff made no argument to the trial court based on this constitutional provision, and she has made none here. Arguments not presented to the trial court in connection with a summary judgment motion will not be considered on appeal. Mohr v. Kelley, 8 P.3d 548 (Colo.App. 2000). Therefore, we will not consider that aspect of the complaint.

Defendants filed motions for summary judgment. After a hearing, the trial court concluded that plaintiff lacked standing to bring an action pursuant to the Urban Renewal Law and that GURA is not subject to the provisions of TABOR. The court granted the motions for summary judgment and dismissed all of plaintiff's claims. Plaintiff now appeals that judgment.

L.

Plaintiff contends that the trial court erred in concluding that she lacked standing to bring an action based on the Urban Renewal Law. Specifically, plaintiff argues that her status as a taxpayer provides her with standing to bring an action alleging that defendants failed to comply with § 31-25-106(1), C.R.S.2001, which provides that real property transferred as part of an urban renewal project "shall be sold, leased, or otherwise transferred at not less than its fair value (as determined by the authority)." We disagree.

An order granting summary judgment is reviewed de novo. Summary judgment is a drastic remedy and should be granted only when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Hyden v. Farmers Insurance Exchange, 20 P.3d 1222 (Colo.App.2000).

"A plaintiff has standing if he or she (1) incurred an injury-in-fact (2) to a legally protected interest, as contemplated by statutory or constitutional provisions." Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886, 890 (Colo.2001); see also Wimberly v. Ettenberg, 194 Colo. 168, 570 P.2d 535 (1977). When considering standing, a court determines whether the plaintiff has asserted a legal basis upon which a claim for relief may be predicated. In doing so, a court must accept as true all allegations of material fact as presented in the complaint. Board of Commissioners v. City of Broomfield, 7 P.3d 1083 (Colo.App.1999).

In this action, plaintiff attempted to vindicate rights shared equally by all citizens and taxpayers in Golden. No injury or cognizable legal interest personal to plaintiff is apparent from the allegations challenging the actions of GURA. Here, plaintiff claims standing based solely on her status as a taxpayer. However, such standing is problematic.

Suits such as these highlight the tension between the judiciary's limited powers and its role as a check on the co-ordinate branches of government. They tempt the courts to overlook prudential limitations on standing, rooted in the separation of powers, in order to redress otherwise nonjusti-ciable wrongs.

Dodge v. Department of Social Services, 198 Colo. 379, 384, 600 P.2d 70, 73 (1979)(Dubofsky, J., specially concurring).

The judicial branch of government is prohibited from assuming the powers of another branch. Thus, the standing doctrine has constitutional significance. See Colo. Const. art. III; Wimberly v. Ettenberg, supra.

"[This power of judicial determination is delicate in character, one to be exercised with caution and care, for it may result in disapproval of acts of the legislative department or of actions of the executive department, both co-ordinate branches of government. This care, this caution has been proverbially observed by the courts, lest in their zeal to prevent what they deem unjust, they exceed their judicial authority, assert an unwarranted superiority over their co-ordinate governmental branches and invade the fields of policy preserved to the legislative arm or the realm of administrative discretion lodged in the executive branch. Obviously such determination may not be had at the suit of any and all members of the public or in an ex parte proceeding. It can be secured only at the suit of one directly and not remotely interested."

Wimberly v. Ettenberg, supra, 194 Colo. at 167, 570 P.2d at 538 (quoting Ex-Cell-O Corp. v. City of Chicago, 115 F.2d 627, 629 (7th Cir.1940)).

A.

Plaintiff argues that GURA has conveyed the property to Clear Creek for less than fair value, resulting in a reduction of GURA's revenue in connection with the renewal project. As a result of such reduced revenue, plaintiff argues that GURA will spend a greater amount of tax revenue to pay its obligations, which amount would otherwise go to various public bodies. She argues that this reduction in GURA's revenue causes her an injury in fact because she and other taxpayers will be deprived of such tax revenue. We are not persuaded.

Plaintiff's argument is based on the allocation of tax revenues generated in the plan area. The allocation was authorized by § 31-25-107(9), C.R.S.2001. The plan established a base year for property and city sales taxes. Such taxes collected in the plan area after the base year, subject to certain adjustments not at issue here, would be divided into two funds.

The first fund would receive the amount of property tax collected on the base year valuation and the city sales taxes equal to the tax collected in the base year. This fund would be paid to the public entities levying th taxes. f

The second fund would receive the property tax collected on valuations above the base year valuations and city sales tax revenues in excess of the base year amounts. This tax increment revenue fund would be used by GURA to pay certain expenses, including the debt owed to the city. Any amounts remaining in the tax increment revenue fund after the debts of GURA are paid and the plan is completed will be returned to public entities levying the taxes. See § 81-25-107(9).

This tax allocation plan does not result in the creation of any new taxes. Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374 (Colo.1980). In compliance with § 31-25-118, C.R.98.2001, the plan did not authorize GURA to levy, assess, or collect any form of tax. Therefore, the amount received from the sale of the property had no direct impact on tax revenues.

Under the statutorily authorized allocation of tax revenues, the flow of revenue at pre-plan levels is not affected by the proceeds GURA received from the sale of the property to Clear Creek. The sale of the property can only affect the tax revenues flowing to the tax levying public entities at some future time when the plan is completed and excess revenues in the tax increment revenue fund, if any, are paid to these entities.

To determine whether the sale price of the property will have the adverse affect on future tax revenues claimed by plaintiff, we must examine how the sale of the property interacts with the urban renewal plan. We must also examine how the plan may affect the generation of tax revenues.

GURA was authorized to sell real property acquired by it.

Such real property or interest shall be sold, leased, or otherwise transferred at not less than its fair value (as determined by the authority) for uses in accordance with the urban renewal plan. In determining the fair value of real property for uses in accordance with the urban renewal plan, an authority shall take into account and give consideration to the uses provided in such plan; the restrictions upon and the covenants, conditions, and obligations assumed by the purchaser or lessee; and the objectives of such plan for the prevention of the recurrence of slum or blighted areas.

Section 31-25-106(1).

The agreement between Clear Creek and GURA was not a simple buy and sell agreement. It contained a detailed plan for development of the property. It specified what development could occur on the property and set a timetable for that development. Thus, the determination of "fair value" must take into account these restrictions on the use of the property. It must also be "fair" in the sense that it does not maximize price at the expense of a successful redevelopment project. See § 31-25-106(1)("An authority may sell, lease, or otherwise transfer real property ... as it deems to be in the public interest or necessary to carry out the purposes of [the Urban Renewal Law].").

Because the tax revenue paid into the tax increment revenue fund is limited to revenue generated above the base year taxes, the amount paid into that fund is substantially dependent on how successful the plan is in redeveloping the urban renewal area. The success of the plan depends to some degree on the ability of Clear Creek to devote the property to the uses required by the plan and to develop it in the manner required by GURA. Clear Creek's success will be influenced to some degree by the value GURA placed on the property because Clear Creek's cost of development will affect the success of its project. |

Thus, on the one hand, if the redevelopment is successful, it may enhance tax revenues so that the tax loss plaintiff claims GURA caused by the transaction with Clear Creek will not occur. On the other hand, if the redevelopment is unsuccessful, the alleged tax loss may occur and may never be recovered. But the outcome in either event will not be known until a remote time in the future, and therefore, plaintiffs claim of damage from lost tax revenues is mere speculation at this time.

To satisfy the injury in fact prong of the Wimberly standing test, the injury must be direct and palpable. Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980); Hughey v. Jefferson County Board of Commissioners, 921 P.2d 76 (Colo.App.1996). A claimed injury that, as here, is presently speculative and that cannot be determined until a remote time in the future, is not sufficiently direct and palpable to support a finding of injury in fact. see People v. McBurney, 750 P.2d 916 (Colo.1988)(refusing standing to challenge constitutionality of statute based on speculation about its application to conduct not attributed to defendant); See also Miccosukee Tribe v. Florida State Athletic Commission, 226 F.3d 1226, 1229-80 (11th Cir.2000)("we should not speculate concerning the existence of standing, nor should we imagine or piece together an injury sufficient to give plaintiff standing when it has demonstrated none").

B.

Plaintiff also contends that the Urban Renewal Law grants her a legally protected interest such that she may enforce § 31-25-106(1). We disagree.

To determine whether plaintiff has a legal interest that entitles her to judicial redress, we must determine whether the Urban Renewal Law reflects a legislative purpose to confer such an interest. See O'Bryant v. Public Utilities Commission, 778 P.2d 648 (Colo.1989). There are three factors to consider in making that determination: (1) whether the statute specifically creates such a right in the plaintiff; (2) whether there is any indication of legislative intent to create or deny such a right; and (8) whether it is consistent with the statutory scheme to imply such a right. Cloverleaf Kennel Club, Inc. v. Colorado Racing Commussion, supra.

Our review of the Urban Renewal Law reveals no specific grant of authority to plaintiff to enforce § 81-25-106(1). Plaintiff argues that §§ 81-25-105(1)(a), 81-25-104(1)(d), and 31-25-109(12), C.R.S.2001, grant her such a right. However, these statutes only give urban renewal authorities the right to sue and be sued. They do not by specific language or by implication confer standing on any taxpayer who wishes to sue to enforce the Urban Renewal Law.

We also discern no legislative intent to grant taxpayers the right to enforce § 31-25-106(1) as claimed by plaintiff. The relevant statutes contain no mention of enforcement of the various provisions, nor do they provide direction as to the status of the renewal project while an enforcement action is pending.

Section 31-25-106(1) requires that transfer of the property occur "as rapidly as feasible" consistent with carrying out the renewal plan. In light of this provision, it is likely that if the General Assembly had intended that taxpayers have a right of enforcement, it would have provided directions, such as staying the project during litigation or requiring bonds to protect the taxpayers' interest if the project continued during litigation. Finding no such direction in the Urban Renewal Law, we conclude that the General Assembly did not intend to create a right in taxpayers to enforce the statute.

We also conclude that implying such a right in taxpayers is not consistent with the statutory scheme. Section 31-25-106(1) authorizes an urban renewal authority to determine the "fair value" of property it is selling. The statute also provides factors for the authority to consider in determining fair value. Application of these factors, which are set forth in part A above, requires the exercise of discretion and judgment by the authority, rather than a computation resulting in an exact value. The authority must consider the objectives of the plan, the permitted uses for and the restrictions on use of the property, and the obligations placed on the purchaser. These are factors that involve public policy and political considerations about which reasonable people could disagree. They do not lead to a precise calculation of fair value. The statute does not indicate the weight to be given to each factor, so the authority may, if it chooses, place greater weight on any one of the factors. Under these cireumstances, the right of a taxpayer to litigate the question of "fair value" is not consistent with the statutory scheme.

Thus, we conclude that plaintiff has not alleged an injury to a legally protected interest sufficient for standing here.

C.

Plaintiff also cites Dodge v. Department of Social Services, supra, in support of her argument that taxpayers generally have standing to sue as interested parties. In Dodge, the supreme court concluded that injury in fact may be found in the absence of direct economic injury and that a claim that an expenditure of state funds violated a provision of the Colorado Constitution was sufficient to establish standing.

However, the court in Dodge concluded that the plaintiffs had sustained injury in fact to their interest that the government comply with the Colorado Constitution. Likewise, the cases relied on by the court in Dodge also involved such injury in fact. Here, plaintiff contends that defendants have violated the Urban Renewal Law. She does not claim that the Urban Renewal Law violates the state constitution. The only constitutional violation claimed by plaintiff is resolved against her in part II. Thus, the holding in Dodge does not support plaintiff's contention that a statutory violation alone confers standing. Plaintiff has cited no authority, and we are aware of none, that holds that a taxpayer's allegation of a statutory violation, without a sufficient allegation of actual injury, is sufficient to establish standing.

Accordingly, we conclude that plaintiff has not suffered an injury to a legally protected interest and has not suffered an injury in fact with respect to defendants' alleged violation of the Urban Renewal Law. Therefore, the trial court correctly held that plaintiff lacked standing to pursue her claims.

IL

Plaintiff also contends that the trial court erred in concluding that GURA is not subject to the provisions of TABOR. Plaintiff argues that GURA is a local government and thus a "district" for purposes of TABOR. We are not persuaded.

TABOR defines a "district" as "the state or any local government, excluding enterprises." Colo. Const. art. X, § 20(2)(b). It requires that "districts" hold elections to obtain voter approval in advance for increases in taxes, spending, and direct or indirect debt. Colo. Const. art. X, § 20.

Because the parties agree that TABOR applies here only if GURA is a local government, the determination of whether GURA is a local government is dispositive of this issue.

The term "local government" is not defined by TABOR. As a result, we must rely on general rules of statutory construction in interpreting its meaning. In construing this term, we must give effect to the electorate's intent in enacting TABOR. The objective of TABOR is to prevent state and local government from enacting taxing and spending increases above TABOR's limits without voter approval. Campbell v. Orchard Mesa Irrigation District, 972 P.2d 1037 (Colo.1998).

The question whether an urban renewal authority is a "district" for purposes of TABOR is a matter of first impression. However, the supreme court addressed a similar issue in Campbell v. Orchard Mesa Irrigation District, supra. There, the supreme court determined that an irrigation district is not a "district" for purposes of TABOR because it is not a local government entity thereunder. While Campbell is not disposi-tive here, its analysis of what constitutes a local government entity under TABOR is instructive.

The irrigation district was found not to be a local government entity because (1) it did not levy taxes on the public at large for general governmental purposes, and (2) voting rights in the irrigation district elections were not based on the traditional "one person, one vote" concept. The supreme court reasoned that because the district's assessments did not increase the burden on the taxpaying public that TABOR sought to regulate, and because the district's election process departed from the election process required by TABOR, irrigation districts are not local government entities for purposes of TABOR.

Here, GURA has no authority to levy taxes or assessments of any kind, § 31-25-1183, and there is no provision for GURA to conduct elections of any kind. Thus, GURA shares, to some extent, the distinguishing characteristics of the irrigation district.

In Nicholl v. E-470 Public Highway Authority, 896 P.2d 859 (Colo.1995), the supreme court found the highway authority to be a district rather than an enterprise for purposes of TABOR because it had the power unilaterally to impose taxes. The converse of this, the inability to impose taxes, militates against a finding that GURA is a district for purpose of TABOR.

An urban renewal authority is defined in the Urban Renewal Law as a "corporate body." Section 81-25-103(1), C.R.S.2001. It is also referred to as a "body corporate and politic." Section 81-25-104(1)(b) C.R.S.2001. Using the "body corporate and politic" definition, the supreme court has held that the Denver Urban Renewal Authority is not a state ageney or authority. James v. Board of Commissioners, 200 Colo. 28, 611 P.2d 976 (1980).

Accordingly, we conclude that GURA is not a local government and therefore not a district under TABOR. Thus, the trial court correctly concluded that GURA is not subject to the provisions of TABOR.

Because of our disposition of these issues, we need not address the remaining issues raised in this appeal, including the motion to dismiss the appeal filed by GURA and the city.

The judgment is affirmed.

Judge DAVIDSON and Judge CASEBOLT concur.


author: Judge PLANK. Judge ROY

text:
    Donald T. TRINEN, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, Defendant-Appellee.
    No. 00CA2126.
    Colorado Court of Appeals, Div. II.
    Feb. 14, 2002.
    Certiorari Denied Sept. 9, 2002.

      Hart & Trinen, LLP, Donald T. Trinen, Denver, Colorado, for Plaintiff-Appellant.
    J. Wallace Wortham, Jr., City Attorney, Kurt G. Stiegelmeir, Assistant City Attorney, James C. Thomas, Assistant City Attorney, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge PLANK.

In this declaratory judgment action challenging the validity of certain Denver weapons ordinances, plaintiff, Donald Trinen, appeals the summary judgment in favor of defendant, the City and County of Denver. We affirm.

The challenged ordinances are Denver Revised Municipal Code §§ 38-117 and 38-118. Trinen operates a place of business in Denver. It is undisputed that Trinen wishes to carry an unconcealed firearm on his person in Denver and to carry a concealed firearm in a motor vehicle in Denver, and that these activities, subject to certain exceptions, are prohibited by the ordinances. The City does not dispute that Trinen has standing to bring this action. See DiLeo v. Board of Regents of University of Colorado, 196 Colo. 216, 590 P.2d 486 (1978).

Section 88-117 provides in pertinent part:

(a) It shall be unlawful for any person, except a law enforcement officer in the performance of duty, to wear under their clothes, or concealed about their person any dangerous or deadly weapon....
(b) It shall be unlawful for any person, except a law enforcement officer in the performance of duty, to carry, use or wear any dangerous or deadly weapon....

Section 38-118 provides the following affirmative defenses to the offenses described in § 38-117:

(a) It shall be an affirmative defense to charges brought under section 38-117(a) or 38-117(b) that the weapon is or was carried by a person:
(1) In a private automobile or other private means of conveyance for lawful protection of their or another's person or property, when there is a direct and immediate threat thereto, while traveling away from the area of their resi-denee or business;
(2) In their own dwelling, or place of business, or on property owned or under their control at the time of the act of carrying such weapon; or
(3) After they were issued a written permit to carry a weapon by the chief of police of any city, mayor of a town or sheriff of a county; and the carrying of such weapon is within the terms of such permit.
(b) It shall be an affirmative defense to charges brought under section 88-117(b) that the weapon is or was carried by such person:
(1) In defense of home, person or property, when in such home when there is a direct and immediate threat thereto;
(2) In aid of the civil power when thereto legally summoned;
(3) For use in the course of a bona fide hunting trip for wild game, or for transportation in the legitimate sporting use of such weapons, including shooting matches or other target shooting, or trap or skeet shooting; all such weapons being so used shall be unloaded when carried or transported to or from such hunting trip or place of sporting use; (4) When such person is a collector or licensed dealer displaying or transporting such weapon for display or sale, or a citizen transporting such weapon for purpose of sale or repair to or from a place of sale or repair; all firearms so displayed or transported shall be unloaded at all times;
(5) When such person is a member of the armed forces of a state or of the federal government when engaged in the lawful performance of duty; or
(6) While moving personal property, including such weapon, from an old residence to a new residence.

Ruling on cross-motions for summary judgment in which the parties agreed there was no dispute of material fact, the trial court upheld the validity of the ordinances. This appeal followed.

I.

Trinen first contends that § 88-117(b) is so broad as to abrogate the state constitutional right to bear arms. We disagree.

We review de novo the constitutionality of a municipal enactment. See General Motors Corp. v. City & County of Denver, 990 P.2d 59 (Colo.1999).

Article II, § 18 of the Colorado Constitution provides:

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.

An ordinance is presumed to be constitutional, and the party attacking it must establish its unconstitutionality beyond a reasonable doubt. People ex rel. City of Arvada v. Nissen, 650 P.2d 547 (Colo.1982). If an enactment can reasonably be construed so as to harmonize it with the constitution, that construction should be preferred. People v. Ford, 198 Colo. 459, 568 P.2d 26 (1977).

When a legislative enactment infringes on a fundamental right, the enactment, in order to be constitutional, must be necessary to promote some compelling governmental interest. However, when no fundamental right is implicated, the legislation is evaluated under the rational basis test, which requires that the enactment bear some reasonable relationship to a legitimate governmental interest. People v. Young, 859 P.2d 814 (Colo.1993).

A governmental purpose to control or prevent certain activities that may be constitutionally subject to regulation under the police power may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. Even though legitimate and substantial, the governmental purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).

A city or state may not, in the name of police power, enact legislation that renders constitutional provisions nugatory. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975). However, the right to bear arms is not absolute, and a city or state may regulate the exercise of the right under its police power so long as the exercise of that power is reasonable. Robertson v. City & County of Denver, 874 P.2d 825 (Colo.1994).

In Robertson, supra, the supreme court did not expressly state whether the right to bear arms is a fundamental right. However, by requiring that restrictions on the right be only reasonable, rather than necessary, the court essentially applied the rational basis test in evaluating the constitutionality of a city ordinance that implicated the right to bear arms. Therefore, we conclude that the court implicitly found that the right to bear arms is not a fundamental right. See People v. Young, supra.

Trinen does not contest the right of Denver, a home rule city, to regulate firearms in the interest of public safety. He asserts, however, that the reasoning in Lakewood v. Pillow, supra, compels the conclusion that § 38-117(b) is unconstitutionally overbroad. We conclude otherwise.

In Pillow, the supreme court found unconstitutional an ordinance that prohibited the possession of weapons outside the home, reasoning that the ordinance was overbroad because it effectively prohibited certain businesses and activities that could not reasonably be made unlawful under the police power. Specifically, the court noted that the ordinance would prohibit gunsmiths, pawnbrokers, and sporting goods stores from carrying on a substantial part of their business, prohibit the transportation of guns to and from such businesses, and prohibit the possession for self-defense of a firearm in a vehicle or place of business.

Here, in contrast, the affirmative defenses provided by § 88-118 expressly allow the activities the Pillow court stated could not be made unlawful. Accordingly, we do not find that case dispositive.

A.

Trinen argues that a constitutional right should not be relegated to the status of an affirmative defense because then the right can be exercised only at the cost of a criminal trial. We are not persuaded.

In People v. Ford, supra, the supreme court upheld a statute prohibiting the possession of weapons by convicted felons, stating that a defendant could raise as an affirmative defense that the purpose of the possession was the defense of home, person, and property. Thus, the constitutional right to bear arms has been accorded the status of an affirmative defense.

Further, a number of statutes and ordinances have been held to be constitutional, such as those relating to obscenity, picketing and leafleting, and have required that raising First Amendment protections as a defense in criminal proceedings. Consequently, there is nothing unusual about having to raise a constitutional argument in defense of a criminal proceeding. See People v. Vaughan, 183 Colo. 40, 514 P.2d 1318 (1973).

Our conclusion is further supported by the minimal burden required to establish an affirmative defense. A defendant is merely required to present some credible evidence supporting applicability of the defense. Once the defense is raised, the prosecution must prove the guilt of the defendant as to the issue of the affirmative defense, as well as all other elements of the offense beyond a reasonable doubt. Section 18-1407, C.R.S. 2001.

Additionally, the presence of affirmative defenses in § 38-118 militates against unreasonable application of § 38-117.

Therefore, we conclude that relegating the assertion of a constitutional right to an affirmative defense does not render a statute or ordinance per se invalid.

B.

Trinen also argues that the language in § 88-118(a)(1) requiring a "direct and immediate threat" is too restrictive. We disagree.

When liberally construed, the language "direct and immediate threat" requires some real identifiable and substantial justification for carrying a gun away from one's home. Absent such a qualifier, anyone could carry a gun about Denver and claim that it was for self-protection. Section 88-117 reflects the Denver City Council's determination that such practices endanger public safety and that it is reasonable to allow citizens to exercise their right to bear arms by obtaining a permit. Thus, the constitutional right has not been rendered nugatory. See People v. Blue, supra.

Section 38-117(b) indubitably places restrictions on the constitutional right to bear arms. However, in our view, the ordinance is a reasonable exercise of the police power, and Trinen has not met his burden of establishing beyond a reasonable doubt that the restrictions are so severe as to render the ordinance unconstitutional.

IL

Trinen next contends that § 38-117(a), at least as it applies to carrying a concealed weapon in a motor vehicle, is void because it is preempted by state statute. Again, we disagree.

The Home Rule Amendment to the Colorado Constitution grants home rule municipalities, such as Denver, plenary authority to regulate issues of local concern. Colo. Const. art. XX, § 6; Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo.2000). If, on a matter of local concern, a home rule city enacts an ordinance that conflicts with a state statute, the ordinance takes precedence over the statute. If instead the matter is one of statewide concern, a home rule city may legislate in that area only if the constitution or a statute authorizes the legislation. If the matter is one of mixed local and statewide concern, a home rule provision and a state statute may coexist if the measures can be harmonized. If the home rule provision conflicts with the state statute, however, the statute supersedes the home rule provision. Town of Telluride v. Lot Thirty-Four Venture, L.L.C,, supra.

Here, the parties agree that the subject matter of § 38-117 is a matter of mixed local and statewide concern. Thus, the question is whether the ordinance can be harmonized with the state statute at issue.

As pertinent here, § 18-12-105, C.R.S. 2001, which makes carrying concealed weapons an offense, provides:

(2) It shall not be an offense if the defendant was ...
(b) A person in a private automobile or other private means for conveyance who carries a weapon for lawful protection of such person's or another's person or property while traveling....

In 2000, the General Assembly enacted a statute entitled "Limitation on local ordinances regarding firearms in private vehicles," which provides:

(1) The general assembly hereby finds that:
(a) A person carrying a weapon in a private automobile or other private means of conveyance for lawful protection of such person's or another's person or property, as permitted in sections 18-12-105(2)(b) and 18-12-105.5(8)(c), may tend to travel in or through different county, city and county, and municipal jurisdictions en route to the person's destination;
(b) Inconsistent laws exist in local jurisdictions with regard to the cireumstances under which weapons may be carried in automobiles and other private means . of conveyance;
(c) This inconsistency creates a confusing patchwork of laws that unfairly subjects a person who lawfully travels with a weapon in or through one jurisdiction to eriminal penalties because he or she travels into or through another jurisdiction;
(d) This inconsistency places citizens in the position of not knowing when they may be violating local laws while traveling in, through, or between different jurisdictions, and therefore being unable to avoid committing a crime.
(2)(a) Based on the findings specified in subsection (1) of this section, the general assembly concludes that the carrying of weapons in private automobiles or other private means of conveyance for lawful protection of a person's or another's person or property while traveling into or through a municipal, county, or city and county jurisdiction, regardless of the number of times the person stops in a jurisdiction, is a matter of statewide concern and is not an offense.
(b) Notwithstanding any other provision of law, no municipality, county, or city and county shall have the authority to enact or enforce any ordinance or resolution that would restrict a person's ability to travel with a weapon in a private automobile or other private means of conveyance for lawful protection of a person's or another's person or property while traveling into or through a municipal, county, or city and county jurisdiction, regardless of the number of times the person stops in a jurisdiction.

Section 18-12-105.6, C.R.S.2001.

Thereafter, in order to comport with § 18-12-105.6, Denver amended § 38-117 by adding the following subsection:

(£) It shall not be an offense under 38-117(a) or 38-117(b) if the person is carrying the weapon concealed within a private automobile or other private means of conveyance, for lawful protection of such person's or another person's person or property, while travelling into or through the city to or from another jurisdiction, regardless of the number of times the person stops in the city or the other jurisdiction ....

Nonetheless, Trinen argues that § 38-117(a) is preempted by § 18-12-105(2)(b) because § allows one to carry a concealed weapon in a private vehicle only when traveling into or through Denver, not when traveling wholly within city limits. We are not persuaded.

A statute should be given a construction that will render it effective in accomplishing the purpose for which it was enacted. In determining the scope and ef-feet of a statute, a court must seek out the intent of the General Assembly. People v. Gross, 830 P.2d 933 (Colo.1992).

In § 18-12-105.6, the General Assembly referred to § 18-12-105(2)(b) and made clear it wanted only to limit, not eliminate, local ordinances regulating the carrying of weapons in private vehicles. This intent is reflected in both the title of and the statement of legislative purpose in $ 18-12-105.6. Additionally, the use of the limiting language "into or through" in § 18-12-105.6(2)(a) and (2)(b) reflects the General Assembly's intent not to restrict local weapons ordinances insofar as they apply to travel wholly within local jurisdictions. Finally, in § 18-12-105.6(@2)(a) the General Assembly restricted its statement of statewide concern to situations in which a person is traveling "into or through" local jurisdictions.

Taken together, these considerations convince us that $ 18-12-105.6 clarifies the seope of § 18-12-105(2)(b) and indicates the General Assembly's intent that local ordinances on carrying weapons in private vehicles be preempted only insofar as they conflict with the provisions of $ 18-12-105.6.

Section 38-117(f) incorporates the language of § 18-12-105.6 and ensures that behavior protected by the latter is not prohibit, ed by § 38-117(a). Accordingly, we find that § 38-117(f) harmonizes § 88-117(a) and § 18-12-105(@2)(b). Thus, contrary to Trinen's contention, § 38-117(a) is not preempted, and the trial court did not err in upholding its validity.

The judgment is affirmed.

Judge MARQUEZ concurs.

Judge ROY concurs in part and dissents in part.

Judge ROY

concurring in part and dissenting in part.

I concur that the Denver ordinance complies with § 18-12-105, C.R.8.2001, relating to transporting a weapon in a private automobile, but I conclude that the ordinance is unconstitutional because it is overbroad and infringes on a constitutionally protected right. Therefore, I dissent.

I have concluded that the ordinance is overbroad as it prohibits conduct that, in my view, is clearly protected by article II, seetion 18, of the Colorado Constitution. The primary enumerated affirmative defense to carrying a firearm openly on the person or in a vehicle is narrower than the constitutional ly protected purposes of protecting home, person, or property. That is, the firearm can be carried only to protect home, person, or property from "a direct and immediate threat thereto." Denver Rev. Mun.Code 38-118(a)(1) and (b)(1).

The Colorado Constitution recognizes certain natural and inalienable rights. Article II, section 8, of the Constitution provides:

All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of aequir-ing, possessing and protecting property; and of seeking and obtaining their safety and happiness.

These rights include the right to defend and protect lives, liberties, and property. They are recognized, not granted, by the Constitution and have their origin in nature independent of any express provision of law. Colorado Anti-Discrimination Commission v. Case 151 Colo. 235, 380 P.2d 34 (1962)(right to purchase a home unfettered by discrimination is an unenumerated inalienable right). These "natural, essential and inalienable rights," are not absolute and are subject to the reasonable exercise of the police power. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971)(there is no constitutionally guaranteed right to drive on highways which cannot be limited).

Article II, section 18, of the Colorado Constitution 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.

While the provision speaks in absolute terms, the right to keep and bear arms is not Robertson v. City & a fundamental one. County of Denver, 874 P.2d 325 (Colo.1994)(tracing the history of Colorado cases discussing the nature of the right to bear arms). The right to keep and bear arms is also subject to reasonable regulation under the police power so long as the purpose of the possession is not constitutionally protected. People v. Ford, 198 Colo. 459, 568 P.2d 26 (1977); People v. Pflugbeil, 834 P.2d 848 (Colo.App.1992).

Thus, a statute criminalizing the possession of a firearm by persons convicted of certain felonies was upheld based on the demonstrated unfitness of such persons to be entrusted with dangerous instrumentalities, People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975)(constitutionally protected purposes for possession were not asserted); an ordinance prohibiting the possession of assault weapons is constitutional, Robertson v. City & County of Denver, supra; a statute prohibiting possession of firearms by intoxicated persons is a valid exercise of the police power and is constitutional, People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1986); and a statute making the possession, use, or availability of a deadly weapon a sentence enhancer is constitutional, People v. Atencio, 878 P.2d 147 (Colo.App.1994). However, a statute prohibiting alien residents from owning or possessing firearms has been held unconstitutional because it denies them the constitutional right to keep and bear arms in defense of home, person, or property. People v. Nakamura, supra.

The Denver ordinance prohibits the possession of "dangerous or deadly weapons," a defined term considerably broader than the possession of "arms," which apparently is limited to firearms. "Dangerous or deadly weapons" include, but are not limited to, any pistol, revolver, rifle, shotgun, machine gun, air gun, gas operated gun, spring gun, sling shots, blackjacks, nunchaku, switchblade knives, gravity knives, and other implements.

Here, we are concerned with "arms," which is limited to pistols, revolvers, rifles, and shotguns the keeping and bearing of which is explicitly protected when carried on the person in an open and clearly visible manner, or in an automobile or other private means of conveyance for the purpose of protecting home, person or property.

In City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972), the city adopted an ordinance that criminalized the possession, carrying, or use of specified implements, including firearms, except in one's domicile. The supreme court invalidated the ordinance as unconstitutional because it prohibited protected activities. The court stated, in part:

An analysis of the foregoing ordinance reveals that it is so general in its scope that it includes within its prohibitions the right to carry on certain businesses and to engage in certain activities which cannot under the police powers be reasonably classified as unlawful and thus, subject to criminal sanctions. As an example, we note that this ordinance would prohibit gunsmiths, pawnbrokers and sporting goods stores from carrying on a substantial part of their business. Also, the ordinance appears to prohibit individuals from transporting guns to and from such places of business. Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense. Several of these activities are constitutionally protected. Colo. Const. art. II, § 18. Depending upon the cireumstances, all of these activities and others may be entirely free of any criminal culpability yet the ordinance in question effectively includes them within its prohibitions and is therefore invalid.

City of Lakewood v. Pillow, supra, 180 Colo. at 28, 501 P.2d at 745.

The Denver ordinance prohibits or criminalizes the mere carrying of firearms. It then accommodates those lawful purposes recognized by the supreme court in City of Lakewood v. Pillow, supra, and the additional restriction recently imposed by § 18-12-105, C.R.S.2001, relating to transporting a weapon in a private automobile, by means of affirmative defenses. That is, it is an affirmative defense to the criminal offense that defendant was: (1) in his or her domicile; (2) in his or her place of business; (8) carrying the weapon in defense of home, person, or property when there is a direct and immediate threat thereto; (4) hunting wild game or engaging in legitimate sporting use and transportation for those purposes; (5) a licensed dealer or collector transporting the weapon for sale or repair; (6) a member of the armed forces in performance of their duty; and (7) moving the weapon from one residence, but not business location, to another.

Denver thus perceives the list of protected conduct contained in City of Lakewood v. Pillow, supra, as exhaustive, notwithstanding the phrase "among others," used by the court. While the list of protected conduct includes possession of a weapon in a vehicle and place of business for self-defense, it does not expressly include the right to keep and bear arms in defense of home, person and property, which the supreme court in Pillow otherwise recognized and is explicit in the constitution.

At the outset it should be observed that the requirement that carrying a firearm be in response "to a direct and immediate threat" to home, person, or property has no counterpart in the constitution in either section 8 or section 13 of article II. The word "direct" connotes that the threat be "immediate; proximate; by the shortest course; without cireuity; operating by an immediate connection or relation, instead of operating through a medium; the opposite of indirect." Black's Low Dictionary 459 (6th ed. 1990). The word "immediate" means "[plresent; at once; without delay; not deferred by any interval of time" and "denotes that action must be taken either instantly or without any considerable loss of time." Black's Law Dictionary, supra, at 749.

The affirmative defense is, therefore, limited to those threats that are imminent, identified, and presumably communicated to the citizen, and are of the type and nature that might normally be reported to the authorities and with respect to which other precautions might be taken. The affirmative defense is not available to persons with a heightened, but generalized, concern for their own or other's safety as might be occasioned by being engaged in a controversial profession, activity, or event; holding controversial views, speaking out on controversial issues; transporting valuable property; having celebrity status or otherwise attracting excessive unwanted attention; entering a known high-crime area; making deliveries at night or in high crime areas; or being placed on high alert of a possible terrorist attack. The affirmative defense is also not available to persons who must confront a person, or group of persons, with respect to whom they have a good faith and justified fear of harm for which they cannot articulate any "direct and immediate threat."

In addition, the structure of the ordinance precludes law-abiding and peaceful citizens from having a firearm available in the event they are suddenly and unexpectedly confronted with a life-threatening situation requiring the lawful use of deadly force in self-defense. See § 18-1704, C.R.S.2001 (authorizing deadly physical force in self-defense, or in the defense of another, without retreat when there is a reasonable belief that a lesser degree of force would be inadequate).

These circumstances and others arise in the lives of law-abiding citizens, and, in my view, form a constitutionally protected basis for openly carrying a firearm on ones person or in a motor vehicle. Because I conclude these circumstances cannot be made subject to criminal sanctions and the ordinance does so, the ordinance is overbroad and therefore unconstitutional. I would reverse the trial court's holding to the contrary.

Some, perhaps many, believe that it is not appropriate for persons to bear arms in a highly urbanized environment or that our society has advanced to a stage where the right to bear arms is obsolete. Some believe that the possession of a firearm may precipitate crime or, at a minimum, may elevate an otherwise minor episode or circumstance into a catastrophic event. These beliefs may have statistical support or basis in fact. If that be the case, the solution, in my view, may be limited to amending or repealing article 2, section 18 of the Colorado Constitution.