Caldara v. City of Boulder

• Decision Date: 10 April 2020
• Docket Number: No. 18-1421,18-1421
• Citation: 955 F.3d 1175
• Parties: Jon C. CALDARA; Boulder Rifle Club, Inc. ; General Commerce, LLC; Tyler Faye; Mark Ringer, Plaintiffs - Appellants, v. CITY OF BOULDER; Jane S. Brautigam, in her official capacity as City Manager of the City of Boulder; Gregory Testa, in his official capacity as Chief of Police of the City of Boulder; and John Does 1-10, Defendants - Appellees, Aaron Brockett, in his official capacity as Mayor Pro Tem of the City of Boulder; Cynthia A. Carlisle, in her official capacity as Boulder City Council Member; Jill Adler Grano, in her official capacity as Boulder City Council Member; and John Does 1-10; Suzanne Jones, in her official capacity of Mayor of the City of Boulder; Lisa Morzel, in her official capacity of Boulder City Council Member; Mirabai Kuk Nagle, in her official capacity as Boulder City Council Member; Samuel P. Weaver, in his official capacity as Boulder City Council Member; Robert Yates, in his official capacity as Boulder City Council Member; Mary D. Young, in her official capacity as Boulder City Council Member, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

955 F.3d 1175

Jon C. CALDARA; Boulder Rifle Club, Inc. ; General Commerce, LLC; Tyler Faye; Mark Ringer, Plaintiffs - Appellants,

v.CITY OF BOULDER; Jane S. Brautigam, in her official capacity as City Manager of the City of Boulder; Gregory Testa, in his official capacity as Chief of Police of the City of Boulder; and John Does 1-10, Defendants - Appellees,Aaron Brockett, in his official capacity as Mayor Pro Tem of the City of Boulder; Cynthia A. Carlisle, in her official capacity as Boulder City Council Member; Jill Adler Grano, in her official capacity as Boulder City Council Member; and John Does 1-10; Suzanne Jones, in her official capacity of Mayor of the City of Boulder; Lisa Morzel, in her official capacity of Boulder City Council Member; Mirabai Kuk Nagle, in her official capacity as Boulder City Council Member; Samuel P. Weaver, in his official capacity as Boulder City Council Member; Robert Yates, in his official capacity as Boulder City Council Member; Mary D. Young, in her official capacity as Boulder City Council Member, Defendants.

No. 18-1421

United States Court of Appeals, Tenth Circuit.

FILED April 10, 2020

Cody J. Wisniewski, Mountain States Legal Foundation (Zhonette M. Brown, Mountain States Legal Foundation, with him on the briefs), Lakewood, Colorado, for Plaintiffs-Appellants.

Robert Reeves Anderson, Arnold & Porter Kaye Scholer, Denver, Colorado (Timothy R. MacDonald, Evan M. Rothstein, and Patrick B. Hall, Arnold & Porter Kaye Scholer, Denver, Colorado; and Thomas A. Carr and Luis A. Toro, Boulder City Attorney's Office, Boulder, Colorado, with him on the brief), for Defendants-Appellees.

Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiffs are citizens of the City of Boulder and entities with various interests in the sale or possession of firearms within the city. They filed suit against the City of Boulder and several of its officials, alleging that Boulder City Ordinances 8245 and 8259 violate the U.S. Constitution, the Colorado State Constitution, and Colorado state statutes, Colo. Rev. Stat. §§ 29-11.7-102 & 103. The district court abstained and stayed the proceedings pending resolution of the state law preemption question in state court. Caldera v. City of Boulder , 341 F. Supp. 3d 1241 (D. Colo. 2018). Plaintiffs appeal, and we affirm.

I.

On May 15, 2018, the Boulder City Council unanimously passed Ordinance 8245 ("the ordinance"),¹ which amended the Boulder Revised Code to prohibit the sale or possession of "assault weapons"² and large-capacity ammunition magazines within the City of Boulder. The ordinance also raises the legal age for possession of firearms from eighteen to twenty-one. The City of Boulder is a home-rule municipality under the Colorado Constitution, which grants Boulder the authority to pass ordinances in "local and municipal matters" that supersede "any law of the state in conflict therewith." Colo. Const. art. XX, § 6. Boulder passed the ordinance pursuant to its home-rule authority under the Colorado Constitution.

Plaintiffs filed this law suit challenging the ordinance under Colorado state law and the U.S. Constitution. They contend the ordinance is preempted by Colo. Rev. Stat. §§ 29-11.7-102 & 103. Section 29-11.7-102 limits the information that local governments may retain about guns and gun owners. Section 29-11.7-103 provides that "[a] local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law." Plaintiffs also contend the ordinance violates the First, Second, Fifth, and Fourteen Amendments to the U.S. Constitution, as well as provisions of the Colorado Constitution.

Shortly after plaintiffs filed this action, other individuals and entities filed suit in state court in Boulder County challenging this same ordinance. Chambers v. City of Boulder , No. 2018-CV-30581 (Colo. D. Ct., Boulder Cty. filed June 14, 2018) (Complaint at 1). Because of the uncertain state law issue in this case, the district court here decided to abstain under the Supreme Court's precedent in Railroad Commission of Texas v. Pullman Co. , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The district court stayed federal proceedings pending a determination by the Colorado state court as to whether the ordinance is preempted by Colorado statutes §§ 29-11.7-102 & 103. Plaintiffs appeal the district court's determination.

II.

Plaintiffs argue that the district court erred in abstaining under Pullman . The Pullman doctrine is a "narrow exception" to the federal courts' general duty to decide cases and "is used only in exceptional circumstances." Kan. Judicial Review v. Stout , 519 F.3d 1107, 1119 (10th Cir. 2008) (citation omitted). The policy underlying Pullman abstention is that federal courts should avoid "premature constitutional adjudication," Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 306, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citation omitted), and the risk of rendering advisory opinions, Moore v. Sims , 442 U.S. 415, 428, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) ("[T]he Pullman concern [is] that a federal court will be forced to interpret state law without the benefit of state-court consideration and ... render[ ] the federal-court decision advisory and the litigation underlying it meaningless.") (citation omitted). Pullman avoids "federal-court error in deciding state-law questions antecedent to federal constitutional issues," by allowing for parties to adjudicate disputes involving "unsettled state-law issues" in state courts. Arizonans for Official English v. Arizona , 520 U.S. 43, 76, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

In reviewing the district court's decision to abstain under Pullman , we first "review de novo whether the requirements for Pullman abstention have been met." Kan. Judicial Review , 519 F.3d at 1114–15 (citation omitted). This is so because "[t]he question of the clarity of state law is essentially legal in nature." Vinyard v. King , 655 F.2d 1016, 1019 (10th Cir. 1981) (citation omitted).

If we determine that the requirements for abstention under Pullman are met, we then review for abuse of discretion the district court's decision to abstain. See Harman v. Forssenius , 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965) ("In applying the doctrine of abstention, a federal district court is vested with discretion to decline to exercise or to postpone the exercise of its jurisdiction in deference to state court resolution of underlying issues of state law.") (citation omitted); see also Vinyard , 655 F.2d at 1018 ("[If] the particular case falls within the ambit of Pullman ..., [the court] must then make a discretionary determination ... as to whether abstention is in fact appropriate.") (citation omitted). Abuse of discretion occurs "only when [the district court] makes a clear error of judgment, exceeds the bounds of permissible choice, or when its decision is arbitrary, capricious or whimsical, or results in a manifestly unreasonable judgment." Liberty Mut. Fire Ins. Co. v. Woolman , 913 F.3d 977, 990 (10th Cir. 2019) (internal quotation marks and citation omitted). We apply these principles to plaintiffs' claims on appeal.

A.

Plaintiffs contend the requirements for Pullman abstention are not satisfied. We have recognized three requirements that must be met to justify abstention under Pullman :

(1) an uncertain issue of state law underlies the federal constitutional claim; (2) the state issues are amenable to interpretation and such an interpretation obviates the need for or substantially narrows the scope of the constitutional claim; and (3) an incorrect decision of state law by the district court would hinder important state law policies.

Lehman v. City of Louisville , 967 F.2d 1474, 1478 (10th Cir. 1992) (citation omitted).

A complex issue of state law underlies the federal constitutional claims in this case. Both sides agree that the Boulder City Ordinance conflicts with Colorado statutes §§ 29-11.7-102 & 103. As the district court recognized, however, the statutes "rub[ ] up against Art. XX, Section 6 of the Colorado constitution," which grants municipalities regulatory authority over the General Assembly in matters of local and municipal concern (referred to as the "home rule" provision). Caldera , 341 F. Supp. 3d at 1244. In a home-rule jurisdiction where "a home rule ordinance ... and a state statute conflict with respect to a local matter, the home rule provision supersedes the conflicting state provision." City & Cty. of Denver v. State , 788 P.2d 764, 767 (Colo. 1990) (citation omitted). On the other hand, municipal ordinances that deal with matters of statewide concern and conflict with state law are preempted, unless otherwise authorized by the constitution or state statute. Id. Finally, in "matters of mixed local and state concern, a charter or ordinance provision of a home rule municipality may coexist with a state statute as long as there is no conflict, but in the event of a conflict the state statute supersedes the conflicting [ordinance] provision." Id.

The determinative issue therefore is whether the challenged provisions of the Boulder City Ordinance regulate matters of purely local or statewide concern, or a mix of both. That issue implicates state, not federal law, and is uncertain under Colorado law. The question, as far as we are aware, has been addressed only one time by Colorado state courts, see City & Cty. of Denver v. State , No. 03-CV-3809, 2004 WL 5212983 (Colo. D. Ct., Denver Cty. Nov. 5, 2004). There, the City of Denver had in place several ordinances restricting the sale and use of firearms in Denver city limits. Id. at *1. The City sought a declaratory judgment that the ordinances were not preempted by recently passed state statutes that "identif[ied] control of firearms as a state interest,"³ or alternatively that the...