Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtMarcia S. Krieger
Citation24 F.Supp.3d 1050
PartiesColorado Outfitters Association; Colorado Farm Bureau; National Shooting Sports Foundation; Magpul Industries; Colorado Youth Outdoors; USA Liberty Arms; Outdoor Buddies, Inc.; Women for Concealed Carry; Colorado State Shooting Association; Hamilton Family Enterprises, Inc., d/b/a Family Shooting Center at Cherry Creek Colorado Park; David Strumillo; David Bayne; Dylan Harrell; Rocky Mountain Shooters Supply; 2nd Amendment Gunsmith & Shooter Supply, LLC; Burrud Arms Inc. d/b/a Jensen Arms; Green Mountain Guns; Jerry's Outdoor Sports; Specialty Sports & Supply; Goods for the Woods; John B. Cooke; Ken Putnam; James Faull; Larry Kuntz; Fred Jobe; Donald Krueger; Dave Strong; Peter Gonzalez; Sue Kurtz; and Douglas N. Darr, Plaintiffs, v. John W. Hickenlooper, Governor of the State of Colorado, Defendant.
Decision Date26 June 2014
Docket NumberCivil Action No. 13–cv–01300–MSK–MJW

24 F.Supp.3d 1050

Colorado Outfitters Association; Colorado Farm Bureau; National Shooting Sports Foundation; Magpul Industries; Colorado Youth Outdoors; USA Liberty Arms; Outdoor Buddies, Inc.; Women for Concealed Carry; Colorado State Shooting Association; Hamilton Family Enterprises, Inc., d/b/a Family Shooting Center at Cherry Creek Colorado Park; David Strumillo; David Bayne; Dylan Harrell; Rocky Mountain Shooters Supply; 2nd Amendment Gunsmith & Shooter Supply, LLC; Burrud Arms Inc. d/b/a Jensen Arms; Green Mountain Guns; Jerry's Outdoor Sports; Specialty Sports & Supply; Goods for the Woods; John B. Cooke; Ken Putnam; James Faull; Larry Kuntz; Fred Jobe; Donald Krueger; Dave Strong; Peter Gonzalez; Sue Kurtz; and Douglas N. Darr, Plaintiffs,
v.
John W. Hickenlooper, Governor of the State of Colorado, Defendant.

Civil Action No. 13–cv–01300–MSK–MJW

United States District Court, D. Colorado.

Signed June 26, 2014


Judgment for defendant.

[24 F.Supp.3d 1054]

Peter J. Krumholz, Richard A. Westfall, Hale Westfall, LLP, Jonathan Michael Anderson, Douglas L. Abbott, Holland & Hart, LLP, Jonathon Michael Watson, Sherman & Howard, L.L.C., Marc F. Colin, Bruno Colin & Lowe, P.C., David Benjamin Kopel, Denver, CO, Anthony John Fabian, Anthony J. Fabian, P.C., Castle Rock, CO, for Plaintiffs.

Daniel D. Domenico, David Christopher Blake, John Tien Yau Lee, Jonathan Patrick Fero, Kathleen L. Spalding, Leeann Morrill, Matthew David Grove, Molly Allen Moats, Stephanie Lindquist Scoville, Colorado Attorney General's Office, Denver, CO, for Defendant.


FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Marcia S. Krieger, Chief United States District Judge

THIS MATTER comes before the Court following a bench trial on the Plaintiffs' claims under the Second and Fourteenth Amendments to the United States Constitution, and under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq. Having considered the evidence presented and the parties' arguments, the Court finds and concludes as follows.

I. Factual Background

In 2013, in the wake of a mass shooting at a movie theater in Aurora, Colorado, the Colorado General Assembly enacted gun control legislation that included two new criminal statutes: (1) C.R.S. § 18–12–302, banning the sale, possession, and transfer of “large-capacity magazines,” as that term is statutorily-defined; and (2) C.R.S. § 18–12–112, expanding mandatory background checks to recipients of firearms in some private transfers.

This action was initiated before the statutes became effective. The Plaintiffs—individuals who own guns, associations and organizations of gun owners and advocates, and businesses that manufacture or sell magazines and/or firearms—challenge these statutes and seek to permanently enjoin their enforcement. Many of the Plaintiffs opposed the legislation before the General Assembly, and iterate the arguments they made during the legislative process here. The named Defendant is the Governor of the State of Colorado, sued in his official capacity.1 Thus, all future references to the Defendant will be to Colorado.2

[24 F.Supp.3d 1055]

A number of claims were dismissed prior to trial. The issues at trial were: (1) whether § 18–12–302 and § 18–12–112 violate the Second Amendment 3 of the United States Constitution, which guarantees the people's right to “keep and bear arms;” (2) whether the phrase “continuous possession” in the grandfather clause of § 18–12–302 is so vague as to violate the people's right to Due Process under the Fourteenth Amendment of the United States Constitution; and (3) whether the statutes violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.4

II. The Scope of this Decision

The issue of gun control is controversial. It is the subject of vigorous and passionate debate in legislatures, the media, and innumerable public and private discussions across the country. The subject triggers both fear 5 and deeply-held societal values that conflict in varying degrees: the desire for physical safety, concerns about government intrusion into matters of individual liberty, the availability of mental health treatment for those disposed to violence, the effectiveness of existing law enforcement protection, and so on. In crafting gun control laws, it is the role of the legislature to carefully examine each of these concerns, to weigh them against each other, and to create social policy in the form of legislation (or, indeed, to elect not to do so).

When the constitutionality of a state law is challenged, however, a court does not engage in the same process. Judicial review of laws for constitutional compliance focuses on only a small sliver of the issues that the legislature considers. A court does not act as a super-legislature to determine the wisdom or workability of legislation. Instead, it determines only whether legislation is constitutionally permissible. A law may be constitutional, but nevertheless foolish, ineffective, or cumbersome to enforce.

The limited role of the court grows out of the separation of powers among the executive, legislative, and judicial branches of government. A legislature, being a body directly elected by the citizenry, is granted the broadest power to act for and by the people. The judiciary acts only as a check on the exercise of that collective power, not by substitution of the personal opinion of a judge as to what he or she believes public policy should be. The judge must only compare the public policy adopted by the legislature against the constitutional minimums that protect individual rights.

Constitutionality is a binary determination: either a law is constitutional, or it is not. This Court will not express a qualitative opinion as to whether a law is “good” or “bad,” “wise” or “unwise,” “sound policy” or a “hastily-considered overreaction.”

[24 F.Supp.3d 1056]

Similarly, this Court will not assess what alternatives the legislature could have chosen, nor determine whether the enacted laws were the best alternative. Such decisions belong to the people acting through their legislature. Put another way, in determining whether a law is constitutional, this decision does not determine whether either law is “good,” only whether it is constitutionally permissible.

III. The Laws at Issue
A. Prohibition of Large–Capacity Magazines

Colorado Revised Statute § 18–12–302(1) makes it a crime for a person to possess or transfer a large-capacity magazine after July 1, 2013. The statute defines a “large-capacity magazine” as including, “a fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to be readily converted to accept, more than fifteen rounds of ammunition.” C.R.S. § 18–12–301(2)(a)(I). Persons who possessed such magazines on July 1, 2013 may be protected by a so-called “grandfather clause,” which states that a person can possess large-capacity magazines if: (1) the magazines were acquired before July 1, 2013, and (2) if the person has maintained (and continues to maintain) “continuous possession” of the magazines. C.R.S. § 18–12–302(2)(a). The statute also contains a handful of specifically-defined exceptions permitting the possession of large-capacity magazines by, among others, certain narrow classes of firearm manufacturers, firearm dealers, and government officials who carry weapons as part of their official duties.

B. Mandatory Background Checks for Private Firearm Transfers

Colorado has long required background checks for those acquiring firearms at gun shows or from firearm dealers.6 Such background checks must be performed by a licensed gun dealer as defined in C.R.S. § 12–26.1–106(6). Prior to transfer of the firearm, a search must be performed by, and approval obtained from, the Colorado Bureau of Investigation in accordance with C.R.S. § 24–33.5–424.

The 2013 law, Colorado Revised Statute § 18–12–112, expands the background check requirement to certain private transfers of firearms. It makes it a crime for both the person transferring possession (the transferor) and person taking possession of a firearm (the transferee) to transfer possession of the firearm in a private transfer without first obtaining a background check for the transferee. In addition, the statute makes the transferor liable for any injury caused by the transferee's use of the firearm if no background check was obtained. C.R.S. § 18–12–112(5). The process for obtaining the background check is the same as that required for retail sales, but the fee that can be charged by the gun dealer performing the check is limited to ten dollars. C.R.S. § 18–12–112(2)(d). If the firearm is transferred to an entity rather than a living person, then a background check is required for each living person who will possess it. C.R.S. § 18–12–112(1)(b).

The statute specifies certain types of private transfers for which no background check is required, including, among others: (1) gifts or loans between certain specifically-identified family members; (2) temporary transfers, made in the transferee's home, when the transferee reasonably believes that possession is necessary to prevent his or her imminent death or serious bodily injury; (3) temporary transfers of possession at shooting ranges, during target

[24 F.Supp.3d 1057]

firearm shooting competitions, or while legally hunting, fishing, target shooting, or trapping; and (4) temporary transfers for no longer than seventy-two hours. C.R.S. § 18–12–112(6).

IV. Jurisdiction

The Plaintiffs invoke the Court's jurisdiction under 28 U.S.C. § 1331. Colorado, however, contends that the Court lacks jurisdiction to determine the constitutionality of either statute because no Plaintiff has shown standing to assert such claim.

The Plaintiffs' standing has been a persistent and problematic issue in this case. Colorado filed two motions seeking to dismiss claims on that basis. In ruling on Colorado's first Motion to Dismiss (# 96),...

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