Rocky Mountain Gun Owners v. Hickenlooper, Court of Appeals No. 17CA1502

Docket NºCourt of Appeals No. 17CA1502
Citation472 P.3d 10
Case DateOctober 18, 2018
CourtCourt of Appeals of Colorado

472 P.3d 10

ROCKY MOUNTAIN GUN OWNERS, a Colorado nonprofit corporation; National Association for Gun Rights, Inc., a Virginia nonprofit corporation; and John A. Sternberg, Plaintiffs-Appellants,
John A. HICKENLOOPER, in his official capacity as Governor of the State of Colorado, Defendant-Appellee.

Court of Appeals No. 17CA1502

Colorado Court of Appeals, Division V.

Announced October 18, 2018

Arrington Law Office, Barry K. Arrington, Denver, Colorado, for Plaintiffs-Appellants

Cynthia H. Coffman, Attorney General, Matthew D. Grove, Assistant Solicitor General, Kathleen Spalding, Senior Assistant Attorney General, Stephanie Lindquist Scoville, Senior Assistant Attorney General Denver, Colorado, for Defendant-Appellee

Joseph Greenlee, Denver, Colorado, for Amici Curiae Second Amendment Foundation and Millennial Policy Center

David B. Kopel, Denver, Colorado, for Amici Curiae Colorado Law Enforcement Firearms Instructors Association; Sheriffs Chad Day, Shannon K. Byerly, Steve Reams, and Sam Zordel; and the Independence Institute


¶ 1 Plaintiffs, Rocky Mountain Gun Owners and National Association for Gun Rights (Colorado and foreign nonprofit corporations, respectively) and John A. Sternberg, appeal a district court judgment upholding the constitutionality, under the right to bear arms clause of the Colorado Constitution, of statutes prospectively prohibiting the sale, transfer, or possession of large-capacity magazines (LCM). See §§ 18-12-301, - 302, and - 303, C.R.S. 2018. Because we conclude that the LCM restrictions are a reasonable exercise of the state's police power, we affirm.

I. Background

¶ 2 In 1999, two shooters shot and killed thirteen people and wounded twenty-one others at Columbine High School. See Harris v. Denver Post Corp. , 123 P.3d 1166, 1168 (Colo. 2005). The shooters used LCMs with capacities of twenty-eight or more rounds.

¶ 3 In 2012, a single shooter entered a movie theater in Aurora with, among other weapons, an AR-15 assault rifle with an LCM. With the rifle, he was able to shoot approximately 1.6 bullets per second, and he fired sixty-five rounds in forty seconds before the gun jammed. Ultimately, the shooter killed twelve people and injured dozens more.

¶ 4 In the wake of that shooting, the Colorado General Assembly passed House Bills 13-1224 (HB 1224), limiting LCMs for firearms, and 13-1229 (HB 1229), expanding mandatory background checks for firearm sales and transfers. HB 1224 added three criminal statutes, sections 18-12-301, 18-12-302, and 18-12-303 (collectively, the statutes), which generally define an LCM as a magazine able to hold more than fifteen rounds of ammunition and provide, with exceptions, criminal penalties for their sale, possession, and transfer after July 1, 2013.

¶ 5 Plaintiffs challenged the facial constitutionality of both bills. As relevant here, plaintiffs alleged that the statutes violate the Colorado Constitution, article II, section 13, which affords individuals the right to keep and bear arms. They did not contend that the statutes violated their rights under the Second Amendment to the United States Constitution.1 The district court granted the Governor's C.R.C.P. 12(b)(5) motion to dismiss the complaint for failure to state a claim upon which relief could be granted, and plaintiffs appealed.

472 P.3d 13

¶ 6 A division of this court affirmed the dismissal with respect to HB 1229. But the division concluded that the district court had erred in dismissing the plaintiffs’ claim that HB 1224 violated the Colorado Constitution. Rocky Mountain Gun Owners v. Hickenlooper , 2016 COA 45M, 371 P.3d 768 ( Rocky Mountain Gun I ). The division concluded that a restriction on the right to bear arms is constitutional, under the Colorado Constitution, if it is shown to be a "reasonable exercise of the state's police power." Id. at ¶ 21. Because whether challenged legislation is a reasonable exercise of the state's police power is a mixed question of fact and law, the division remanded the claim with instructions that it should be allowed to go forward for "a factual inquiry into the reasonableness of the limits" prescribed by the bill. Id. at ¶¶ 30-31.

¶ 7 On remand, the district court held a weeklong bench trial. After consideration of the evidence, arguments presented, and the relevant legislative history, the court issued a lengthy order. It ruled, in part, as follows:

[P]rohibitions on the possession, sale, or transfer of LCMs are found to be a reasonable exercise of the police power designed to address a specific and valid governmental concern regarding the health, safety, and welfare of people in Colorado, and the 15 round limit was not only based on a valid, reasonable safety concern, the limit is, itself, reasonable and does not impose on the constitutionally protected right to keep and bear arms for self-defense or defense of home or property.


[The statutes do] not inhibit the use of a firearm for self-defense or defense of home or property but serve[ ] to reduce the number of victims in mass shootings by limiting the number of rounds that can be fired before the shooter has to reload. As such, the statute is a reasonable exercise of the police power and is constitutional.

¶ 8 As relevant here, the district court further found that plaintiffs’ assertion that the statutes make "almost all magazines and semiautomatic weapons illegal" turned on an unreasonable reading of the statutory definition of LCMs. And it rejected plaintiffs’ argument that the statutes were unreasonable under a historic interpretation of the Colorado Constitution because "such history and traditions are not pertinent to determining whether [the statutes] comport[ ] with the rights guaranteed" by article II, section 13.

¶ 9 Plaintiffs contend that the district court erred when it found that the statutes are constitutional. They disagree with numerous aspects of the court's analysis but advance two primary contentions. First, they argue that the prospective LCM ban should be subject to a heightened standard of review. And second, they argue that the statutes should be interpreted as unconstitutionally broad because they ban "an overwhelming majority of magazines."

¶ 10 We first address the standard of review, and we apply the "reasonable exercise test" to conclude that the statutes are constitutional and not overbroad. In doing so, we review the district court's judgment as a mixed question of law and fact, deferring to the court's findings of fact unless they are clearly erroneous, and reviewing the court's legal conclusions about constitutionality de novo. Town of Dillon v. Yacht Club Condos. Home Owners Ass'n , 2014 CO 37, ¶ 22, 325 P.3d 1032. We also respond to plaintiffs’ additional arguments and their challenges to various factual findings by the district court.

II. Constitutional and Statutory Law

¶ 11 Article II, section 13 of the Colorado Constitution provides, both as originally written in 1876 and today, that "[t]he right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called into question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons."

¶ 12 As relevant here, section 18-12-301(2)(a)(I) defines an LCM as "[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."

472 P.3d 14

(Emphasis added.)2

¶ 13 Section 18-12-302(1)(a) prescribes the criminal charges, varying between a class 2 misdemeanor and a class 6 felony, for "a person who sells, transfers, or possesses" an LCM after July 1, 2013. The statute also contains exceptions. Section 18-12-302(2) (the grandfather exception) expressly permits possession by a person who (1) owns the LCM on July 1, 2013; and (2) maintains continuous possession of the LCM.3 And section 18-12-302(3) permits possession by manufacturers, employees, and sellers meeting specified criteria.

III. Standard of Review

¶ 14 We presume a statute to be constitutional; "[t]he party challenging the facial constitutionality of a statute has the burden of showing the statute is unconstitutional beyond a reasonable doubt." Hinojos-Mendoza v. People , 169 P.3d 662, 668 (Colo. 2007) ; see People v. Cisneros , 2014 COA 49, ¶ 23, 356 P.3d 877.

¶ 15 In Rocky Mountain Gun I , a division of this court evaluated the standard under which a claimed violation of Colorado's constitutional right to bear arms is to be assessed after the Supreme Court rulings in District of Columbia v. Heller , 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). See Rocky Mountain Gun I , ¶¶ 11-22. The division, "mindful that the instant case [did] not present [it] with a challenge ... under the Second Amendment to the United States Constitution," made clear that issues of constitutionality under the Colorado Constitution "are matters peculiarly within the province of the Colorado Supreme Court." Id. at ¶ 20.

¶ 16 In Robertson v. City and County of Denver , 874 P.2d 325 (Colo. 1994), our supreme court...

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