Boulder's gun ban challenged by Second Amendment advocates; Federal case on hold while state lawsuit sorted out

By William Sassani | Oct 17, 2018

DENVER (Legal Newsline) – A federal judge will take a step back from the lawsuit filed against the city of Boulder, Colorado, by gun owners and an organization over the city’s assault weapons ban.

On Sept. 17, Judge Marcia Krieger of the U.S. District Court for the District of Colorado rejected Boulder's arguments to dismiss the lawsuit and instead stayed the case while a similar state court action is decided.

"(T)he court finds that it is appropriate to exercise Pullman abstention in this action, deferring the consideration of the Plaintiffs' federal constitutional claims until the state court can conclusively resolve the question of whether the ordinances are preempted by (state law)," Krieger wrote.

Administratively, the case was closed because it is hard to know how long the state court action, pending in Boulder, will take to be resolved. Once that occurs, the case will be subject to being reopened by any moving party.

In its 27-page motion to dismiss filed in July in the U.S. District Court for the District of Colorado, the city argues complaints made by the plaintiffs don't meet the state standard for stating a claim for relief. It also asked that the suit be dismissed against the members of the Boulder City Council on the basis of legislative immunity. 

The 59-page lawsuit against the city was submitted to the U.S. District Court for Colorado in May. The plaintiffs include Jon C. Caldara, a gun owner; the Boulder Rifle Club; General Commerce LLC, which owns Bison Tactica; and Tyler Faye, who is a gun owner younger than 21.

Mountain States Legal Foundation is the group representing the plaintiffs in this case. Their lawyer, Cody Wisniewski, told Legal Newsline the firm became involved in the case to “defend the constitutionally protected rights of the residents of Boulder.” 

Wisniewski said that the city’s ordinance was unconstitutional and that it has infringed on the rights of residents to “bear arms for the purpose of self-defense as articulated by the framers 227 years ago.”  

“It is unfortunate that the council passed the firearms regulations at issue in the case," he said. "The regulations make criminals out of law-abiding citizens who simply want to be able to defend themselves, their families and their homes.”

In their suit, the plaintiffs list 13 defendants, including the city of Boulder and government officials. Among these are Jane S. Brautigam, the city manager; Gregory Testa, the chief of police; Suzanne Jones, Boulder's mayor; and Aaron Brockett, mayor pro-tem. Also named in the suit is Boulder City Council. 

The plaintiffs note that the city passed an ordinance on May 15 listing certain firearms considered to be assault weapons and magazines within the Boulder city limits. 

The ordinance specifically defines an assault weapon as having certain features such as a telescoping stock, a pistol grip, or “any protruding grip or other device to allow the weapon to be stabilized with the non-trigger hand,” the suit states. 

Also included in the definition is whether or not the gun can, “accept a magazine other than in the pistol grip of the gun,” the suit states. The ordinance also considers a large capacity magazine as having the capacity to hold more than 10 rounds of ammunition.  

The city’s ordinance covers both rifles and shotguns, as well as for making modifications to the guns. Additionally, it raises the age for owning a gun within the city from 18 to 21. However, it makes exempt certain groups of people, which include law enforcement, members of the military and persons who can carry concealed weapons as per the Federal Law Enforcement Officers Safety Act. Neither Caldara or Faye, the individuals listed in the suit, fall within the exemption.  

The plaintiffs made several arguments that the ordinance violates both federal and state law and allege that it is unconstitutional. They allege violations of the Second and Fifth amendments. Their case also cites the Equal Protection Clause in the 14th Amendment, which says that the government cannot “deny any person within its jurisdiction the equal protection of the laws.”

The plaintiffs use this specifically in reference to Boulder’s raising the minimum age of owning a gun from 18 to 21. The plaintiffs allege that “treating one class of persons differently than another similar class constitutes a violation” of the clause, the suit states. 

The city of Boulder argues that the plaintiffs must prove that their Second Amendment rights have been infringed upon. Also, the city states the plaintiffs' complaint does not allege that owing weapons that are regulated by the city ordinance “fall within the scope of the Second Amendment protection,” and that they do not provide sufficient information to show that these weapons are "widely used.” 

The city argued that there is nothing written in the constitution that says individuals ages 18 to 20 have a right to own a firearm, and that the plaintiffs do not provide proof that their due process rights have been violated.  

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Mountain States Legal Foundation U.S. District Court for the District of Colorado

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