"If I have a gun illegally, such as in a prohibited place or I possess the gun unlawfully, and I use it to defend myself, am I automatically going to be unjustified in my self-defense claim?"
This column cannot provide legal advice; for obvious reasons we can only deal with the hypothetical situation, but some issues are very clear. Here is how the situation is typically analyzed:
A. The first answer requires we pose the question with more detail. You can possess a gun when you lack the legal authorization to do so, or you can possess a weapon that is not legal for you to have.
The first situation can result in a common charge known as Possession of a Weapon by a Previous Offender. The text is below with highlights:
(1) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as defined in section 18-1-901 (3)(h) or any other weapon that is subject to the provisions of this article 12 subsequent to the person’s conviction for a felony crime as defined in section 24-4.1-302 (1) or listed in subsection (7) of this section, or subsequent to the person’s conviction for attempt or conspiracy to commit a crime as defined in section 24-4.1-302 (1) that is a felony, pursuant to Colorado or any other state’s law or pursuant to federal law.
This means for any felony conviction, under Colorado law, you cannot possess a firearm of any kind. This is true even of adjudications as a juvenile; if you were convicted of a qualifying crime as a juvenile, the adjudication of some felonies will also bar your rights to own and possess a firearm under Colorado law.
Case law however gives us this: "A defendant charged under this section who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property as recognized by § 13 of art. II, Colo. Const., thereby raises an affirmative defense. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977); People v. DeWitt, 275 P.3d 728 (Colo. App. 2011)."
But, in a curious opinion, there is a case that says you can fail to establish this affirmative defense and possess a weapon for a purpose other than defense of home, person, or property. In People v. Barger, the defendant offered that he was threatened by motorcycle gangs in the past and carried to defend himself. The court indicated only this: "He had made an offer of proof that he had had several encounters with a motorcycle gang and carried a gun because he feared for his personal safety." The court decided that offer was proof as insufficient since he drove to a biker bar and provided no other evidence that he need to protect his home, or his property. "Defendant chose to go to the bar, and there was no showing indicating a threat to defendant or his property. " This is the one sentence in the opinion that justifies throwing out the affirmative defense, and seems to be directly contradicted by the prior sentence about bikers.
In a recent, watershed case of New York State Rifle and Pistol Assoc. v. Bruen we now have this language:
Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home.
and this paragraph:
The constitutional right to bear arms in public for self-defense isnot “a second-class right, subject to an entirely different body of rulesthan the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need.
The current status of the right to carry a firearm is, under Bruen, entirely dependent on historical analysis of that right – which according to the Court, were limited initially to prohibitions against "bearing arms in a way that spread “fear” or “terror” among the people, including by carrying of “dangerous and unusual weapons.”
The answer then is that under the current state of the law, you cannot be denied the right to carry firearms in your own defense of home, person, or property; and likely cannot be required to support the affirmative defense with even minimal evidence, since that right historically belonged to each citizen, and remains an absolute right today.
B. The next situation is the possession of an illegal weapon, in a self-defense situation.
Here we analyze the situation much like any other self-defense scenario, beginning with:
1. How is the attack being carried out?
A lethal defense against a deadly weapon is justified in most instances, when that deadly weapon is employed against you. This is limited however to true deadly weapons like guns and knives, as well as simulated guns, for example. You would have a reasonable belief that even a simulated gun is a deadly weapon, and could respond with a similar level of force. A club or stick with a nail can be a deadly weapon, depending on how it's used. There is no absolute defense, however; you could still be arrested, investigated, put on trial, and forced to defend against a criminal case.
In our hypothetical, if we are in possession of a 'dangerous weapon' it is no different in scope to the possession of a deadly weapon by another – the two types of weapons are mutually destructive and dangerous, and its seems like a logical ballet to talk about any difference in degree.
A dangerous weapon (CRS 18-12-102) is:
(1) a firearm silencer, machine gun, short shotgun, short rifle, or ballistic knife.
(2) As used in this section, the term “illegal weapon” means a blackjack, a gas gun, or metallic knuckles.
A dangerous weapon can be possessed if one has a permit and license; but such permit is only an affirmative defense to the charge of Possessing a dangerous or illegal weapon.
You are then put in a situation where you have to decide whether you can argue a reasonable fear of another deadly weapon, and how it was employed. You must be able to argue that no lesser degree of force was adequate. You can argue it was in response to what you believe to be a robbery, under the self-defense statute for deadly physical force.
If instead you have someone attacking you without a deadly weapon, then we are down to fists and feet, usually. Certainly a foot, or a fist, can become a deadly weapon; and the courts have held this is so, repeatedly, but again, depending on how they are used. You cannot respond to a punch in the nose, with a gun, or with a particularly dangerous weapon. We have a scale of uses of force by an attacker, and you can't 'up the ante' on that scale without risking consequences. The same thing applies to kicking someone on the ground; you cannot over react to the use of force by turning the tables on your attacker and potentially killing them. Your use of force must be proportional, or match, the attacker. There is also some language in one case that allows you to argue a stronger response to multiple attackers. Bottom line however is no guns in a fistfight.
Obviously this assumes you are not being beaten to death; or kicked when you're down. In a fight like that, there is no way to tell in advance that the attacker is going that far. This is a primary problem with the expression of self-defense in current law, and there is no way around it; you can't shoot in a fist fight, then argue how severe the beating could have been, without some prior basis to believe the attack was deadly.
This leads to my next point:
2. Is there any clear imminent threat to anyone else, or a direct threat to your life or a threat of imminent serious bodily injury? How much can you justify based on what you know?
You may be able to react to even an ordinary use of force if there is a deadly VERBAL threat in combination with a manual use of force, like fist or feet. This requires some expression of intent by the attacker, or some way to corroborate your belief. You could also use deadly force if, for example the baby is in the back seat. You would not allow a carjacker to pose a threat to a third party, particularly a child or vulnerable adult, without a response. The attack would constitute a kidnapping, and would allow you to argue defense of others in a situation that was inherently risky to the third party. The same doesn't apply to the family dog, who is on his or her own.