707 F.3d 1197 (10th Cir. 2013), 11-1149, Peterson v. Martinez

Docket Nº:11-1149.
Citation:707 F.3d 1197
Opinion Judge:LUCERO, Circuit Judge.
Party Name:Gray PETERSON, Plaintiff-Appellant, v. Alex MARTINEZ, in his official capacity as Manager of Safety for the City and County of Denver; James Davis, in his official capacity as Executive Director of the Colorado Department of Public Safety,[*] Defendants-Appellees. John W. Suthers, Attorney General for the State of Colorado, Intervenor, NRA Civil Ri
Attorney:John R. Monroe, Roswell, GA, for the Plaintiff-Appellant. Matthew D. Grove, Assistant Attorney General (John W. Suthers, Attorney General, with him on the briefs), Office of the Attorney General for the State of Colorado, Denver, CO, for the Defendants-Appellees. Alan Gura, Gura & Possessky, Alex...
Judge Panel:Before LUCERO, BALDOCK, and HARTZ, Circuit Judges. LUCERO, J., concurring separately.
Case Date:February 22, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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707 F.3d 1197 (10th Cir. 2013)

Gray PETERSON, Plaintiff-Appellant,

v.

Alex MARTINEZ, in his official capacity as Manager of Safety for the City and County of Denver; James Davis, in his official capacity as Executive Director of the Colorado Department of Public Safety,[*] Defendants-Appellees.

John W. Suthers, Attorney General for the State of Colorado, Intervenor,

NRA Civil Rights Defense Fund; Second Amendment Foundation, Inc.; Buckeye Firearms Foundation; Citizens Rights Action League; Commonwealth Second Amendment; Connecticut Citizens Defense League; Calguns Foundation, Inc.; Gun Owners Civil Rights Alliance; Hawaii Defense Foundation; Illinois Carry; Illinois State Rifle Association; Maine Open Carry Association; Maryland Shall Issue; Oregon Firearms Educational Foundation; Wisconsin Carry Inc.; Scope Inc.; Stillwater Firearms Association; Virginia Citizens Defense League, Inc.; West Virginia Citizens Defense League Inc.; Brady Center to Prevent Gun Violence, Amici Curiae.

No. 11-1149.

United States Court of Appeals, Tenth Circuit.

February 22, 2013

Page 1198

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John R. Monroe, Roswell, GA, for the Plaintiff-Appellant.

Matthew D. Grove, Assistant Attorney General (John W. Suthers, Attorney General, with him on the briefs), Office of the Attorney General for the State of Colorado, Denver, CO, for the Defendants-Appellees.

Alan Gura, Gura & Possessky, Alexandria, VA (Mikolaj T. Tempski, Second Amendment Foundation, Inc., with him on the briefs), for Amicus Curiae, Second Amendment Foundation, Inc.

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Matthew Bower (Robert Dowlut with him on the briefs), NRA Office of the General Counsel, Fairfax, VA, for Amicus Curiae, NRA Civil Rights Defense Fund.

Jonathan E. Lowy, Brady Center to Prevent Gun Violence (Daniel R. Vice, Brady Center to Prevent Gun Violence, and Jonathan L. Diesenhaus and S. Chartey Quarcoo, Hogan Lovells U.S. LLP, with him on the briefs), Washington, D.C., for Amicus Curiae, Brady Center to Prevent Gun Violence.

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Gray Peterson, a resident of Washington, applied for a concealed handgun license (" CHL" ) from the ex officio sheriff of Denver, Colorado. Pursuant to state law, Colorado sheriffs may issue CHLs only to state residents. Colo.Rev.Stat. § 18-12-203(1)(a). Peterson's application was accordingly denied, prompting Peterson to file suit against the Denver sheriff and Colorado's executive director of the Department of Public Safety. Peterson claims that Colorado's policy with respect to non-resident CHL applicants violates the Second Amendment, the Privileges and Immunities Clause of Article IV, and several other constitutional provisions.

The district court concluded that the executive director of the Department of Public Safety is entitled to Eleventh Amendment immunity because he has no connection to the enforcement of the challenged statute. We agree with that conclusion. Colorado law requires " each sheriff to implement and administer" the CHL licensing scheme. Colo.Rev.Stat. § 18-12-201(3). Because sheriffs are responsible for administering the state's CHL regime— not the executive director of the Department of Public Safety— Peterson's claims against the latter do not fall within the Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), exception to Eleventh Amendment immunity.

With respect to Peterson's claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause. In Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715 (1897), the Supreme Court stated in dicta that " the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons." Id. at 281-82, 17 S.Ct. 326. More recently, in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Court noted that " the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues," and explained that " nothing in our opinion should be taken to cast doubt on longstanding prohibitions." Id. at 626, 128 S.Ct. 2783. In light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections.

We reach the same conclusion with respect to Peterson's claim under the Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1, which is coterminous with his right to travel claim. As the Supreme Court explained in Supreme Court of Virginia v. Friedman, 487 U.S. 59, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988), " it is only with respect to those ‘ privileges' and ‘ immunities' bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment." Id. at 64-65, 108 S.Ct. 2260 (quotations and citations omitted). Because the concealed carrying of firearms has been prohibited for much of our history,

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we conclude that this activity fails the Friedman test.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

In February 2010, Peterson filed suit in federal district court against the ex officio sheriff of the City and County of Denver and the executive director of the Colorado Department of Public Safety, alleging that Colorado's licensing regime for concealed handguns violates the Privileges and Immunities Clause, the Second Amendment, and the Fourteenth Amendment.1 According to his complaint, Peterson is a resident of the State of Washington. At the time he filed his complaint, Peterson held a CHL issued by the State of Washington and a second CHL issued by the State of Florida.2 Peterson is a frequent visitor to Denver, and seeks to carry a firearm when he visits the city. Towards that end, Peterson applied for a CHL with the Denver sheriff, a post now held by Martinez. Peterson's application was denied because he does not meet the criteria set forth in Colo.Rev.Stat. § 18-12-203. Peterson alleges that the only statutory criterion he does not satisfy is Colorado residency.

Colorado provides for reciprocity and recognition of CHLs issued by other states, but only for states that provide reciprocity to Colorado CHLs. See Colo.Rev.Stat. § 18-12-213(1). Washington State does not provide reciprocity to Colorado CHLs, and thus Peterson's Washington-issued CHL is not recognized by Colorado. Nor does Colorado recognize Peterson's Florida or Utah CHLs because reciprocity is offered only with respect to CHLs issued by an individual's state of residence. See Colo.Rev.Stat. § 18-12-213(1)(b)(I). Peterson alleges that Davis is " primarily responsible for administering the recognition and reciprocity of CHLs issued by other states."

As a result of this statutory scheme, Peterson claims he is barred from carrying a concealed firearm outside of his home, place of business, or private automobile in Colorado. See Colo.Rev.Stat. § 18-12-105. Peterson further notes that the Denver Revised Municipal Code prohibits individuals from carrying firearms— concealed or not— unless the individual holds a valid CHL or " is carrying the weapon concealed within a private automobile or other private means of conveyance, for hunting or for lawful protection of such person's or another person's person or property, while travelling." Denver Rev. Mun.Code § 38-117(a), (b), & (f). Because Peterson does not own or otherwise control property in Denver, and generally uses public transit while visiting, he claims that he is " completely disarmed" when in Denver.

In his complaint, Peterson asserted six claims: (1) Martinez violated the Privileges and Immunities Clause by denying Peterson a CHL on the basis of non-residency; (2) Davis violated the Privileges and Immunities Clause by refusing reciprocity to Peterson's Florida CHL while granting reciprocity to Florida CHLs held by Florida residents; (3) Martinez violated the Equal Protection Clause by denying Peterson a CHL on the basis of non-residency; (4) Davis violated the Equal Protection Clause by refusing reciprocity to Peterson's Florida CHL; (5) Both defendants

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violated the Second Amendment by " prohibiting any meaningful opportunity for [Peterson] to bear arms in the City and County of Denver through a licensing scheme that precludes [Peterson] from obtaining a necessary license" ; and (6) Both defendants violated the Due Process Clause and the Privileges and Immunities Clause by prohibiting Peterson from bearing arms through the licensing scheme. Peterson requested a declaration that Colo.Rev.Stat. §§ 18-12-203(1)(a) and 213(1)(b)(I) are unconstitutional, and an injunction barring enforcement of those statutes.

Colorado Attorney General John Suthers filed a motion to dismiss on behalf of Davis, along with a " request to be heard." Suthers argued that Davis had no role in enforcing Colorado's CHL reciprocity system, and thus was shielded from suit by the Eleventh Amendment. He also cited a Colorado statute and a District of Colorado local rule requiring notice to the state attorney general of any suit challenging the constitutionality of a state statute. See Colo.Rev.Stat. § 13-51-115; D. Colo. L. Civ. R. 24.1. On that basis, Suthers requested an opportunity to be heard as to the constitutionality of the two challenged statutes.

Peterson argued in response that the court was required to accept as true his allegation that Davis is " primarily responsible for administering the recognition...

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