DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO
Case No. 94 CR 4013, Courtroom 2
(County Court Case No. GS 94-533160, Courtroom 151P)
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 ORDER
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THE PEOPLE OF THE CITY AND COUNTY OF DENVER AND STATE OF COLORADO,

     Plaintiffs,

vs.

DARRELL ALLEN,

     Defendant.

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     THIS MATTER comes before the Court on Plaintiff's request for
an order of disapproval of the trial court ruling in Case No. GS
94-533160.  The Court has reviewed and considered the entire record
and enters an order of disapproval.

     The Defendant was charged in County Court with carrying a
concealed weapon and unlawfully carrying a weapon, in violation of
D.R.M.C. sections 38-117(a) and 38-117(b), respectively.  The
Defendant raised the affirmative defense provided in both the state
statute, C.R.S. section 18-12-105(2)(b), and the municipal
ordinance,  D.R.M.C. sections 38-117(a)(1), to the charge of
carrying a concealed weapon.  C.R.S. section 18-12-105(2)(b)
provides:
     (2) It shall be an affirmative defense that the defendant was:
     (b) A person in a private automobile or other private means of
     conveyance who carries a weapon for lawful protection of such
     person's or another's person or property while traveling.
D.R.M.C. section 38-117(a)(1) provides:
     (a) It shall be an affirmative defense to charges brought
     under section 38-117(a) and 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 residence
     or business.

     The County Court ruled that the affirmative defense provided
in the municipal ordinance was in conflict with and superseded by
the affirmative defense provided in the state statute.  The court
found that the Defendant provided sufficient evidence to sustain
the statutory affirmative defense and therefore found the Defendant
not guilty of carrying a concealed weapon.  The County Court also
found the Defendant not guilty of unlawful carrying of a weapon.

     The Plaintiff filed an appeal from the County Court's holding
that the affirmative defense provided in the state statute
supersedes the affirmative defense provided in the municipal
ordinance.

     Regulation of concealed weapons is a matter of mixed local and
state concern.  In determining whether the regulation of concealed
weapons is a matter of local, statewide, or mixed local and
statewide concern, the Court considered the following factors: (1)
the need for statewide uniformity; (2) the extra-territorial
impact; and (3) other state interests.  City & County of Denver v.
State, 788 P.2d 764, 767-68 (Colo. 1990).  Moreover, the Supreme
Court of Colorado has indicated that the regulation of concealed
weapons is a matter of mixed local and statewide concern.  R.E.N.
v. City of Colorado Springs, 823 P.2d 1359, 1362 (Colo. 1992).

     In matter of mixed local and statewide concern, a municipal
ordinance and a state statute may coexist, so long as there is no
conflict between the two.  City & County of Denver v. State, 788
P.2d 764, 767 (Colo. 1990); National Advertising Co. v. Department
of Highways, 751 P.2d 632, 635 (Colo. 1988).  In the event there is
a conflict between the municipal ordinance and the state statute,
the state statute supersedes the municipal ordinance.  City &
County of Denver v. State, 788 P.2d 764, 767 (Colo. 1990); National
Advertising Co. v. Department of Highways, 751 P.2d 632, 635 (Colo.
1988).  The test for determining whether a conflict exists is set
forth in Ray v. City & County of Denver, 109 Colo. 74, 77, 121 P.2d
886, 888 (1942), and is as follows:
     Where both an ordinance and a statute are prohibitory and the
     only difference between them is that the ordinance goes
     further in its prohibition, but not counter to the prohibition
     under the statute, and the municipality does not attempt to
     authorize by the ordinance what the legislature has forbidden
     or forbid what the legislature has expressly licensed,
     authorized or required, there is nothing contradictory between
     the provisions of the statute and ordinance because of which
     they cannot coexist and be effective.
See also City & County of Denver v. Waits, 191 Colo. 563, 565, 595
P.2d 248, 250 (Colo. 1979); Vela v. People, 174 Colo. 465, 467, 484
P.2d 1204, 1205-06 (1971).

     Application of the test set forth in Ray, clearly suggests
that the affirmative defense of D.R.M.C. section 38-117(a)(1) is
not in conflict with the affirmative defense of C.R.S. section 18-
12-105(2)(b).  The affirmative defense provided in the municipal
ordinance goes further in its prohibition of carrying concealed
weapons, by defining "lawful presence" and "traveling" more
restrictively, than the affirmative defense provided for in the
state statute.  The definitions of "lawful presence" and
"traveling" provided in the municipal ordinance are not counter to
state statute, because the state statute did not provide definition
so "lawful presence" and "traveling."  In defining the term "lawful
presence," the municipal ordinance does not forbid what the state
statute expressly license, authorizes or requires.  The state
statute does not expressly license, authorize or require carrying
a concealed weapon for protection that is direct and immediate.  In
defining the term "traveling," the municipal ordinance does not
forbid what the state statute expressly license, authorizes or
requires.  The state statute does not expressly license, authorize
or require carrying a concealed weapon for travel that is not
related to the area of a person's residence or business.

     For all these reasons, the affirmative defense provided by the
statute,  C.R.S. section 18-12-105(2)(b), is not in conflict with
the affirmative defense provided by the municipal ordinance,
D.R.M.C. section 38-117(a)(1), under the test set forth in Ray v.
City & County of Denver, 109 Colo. 74, 77, 121 P.2d 886, 888
(1942), and therefore both affirmative defenses may coexist.  See
City & County of Denver v. State, 788 P.2d 764, 767 (Colo. 1990).

     This Court therefore determines that the County Court erred in
finding that the affirmative defense provided in the state statute,
C.R.S. section 18-12-105(2)(b), supersedes the affirmative defense
provided by the municipal ordinance, D.R.M.C. section 38-117(a)(1)
and disapproves of that ruling.

DONE AND SIGNED this 10 day of February, 1996.

BY THE COURT:


[signed]
Robert S. Hyatt
District Court Judge