Colorado Gun Law Challengers Miss Target on Standing

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By Bernard J. Pazanowski and Patrick Gregory

March 22 — Gun dealers, nonprofit advocates and law enforcement officials can't challenge Colorado laws generally banning large-capacity magazines and requiring detailed background checks for private firearms transfers, the Tenth Circuit held March 22 (Colo. Outfitters Ass'n v. Hickenlooper, 2016 BL 87128, 10th Cir., No. 14-1290, 3/22/16).

None of the several dozen plaintiffs could establish standing to sue under Article III of the U.S. Constitution, the court said.

However, the court didn't answer the question whether economic injury, such as that asserted by the dealers, “standing alone, can constitute an injury-in-fact for purposes of a pre-enforcement challenge to a criminal statute.”

The plaintiffs alleged the laws violate the Second Amendment, 14th Amendment and Americans with Disabilities Act, Judge Nancy Moritz's opinion for the U.S. Court of Appeals for the Tenth Circuit said.

One law, Colo. Rev. Stat. §18-12-112, requires background checks for private firearm transfers if the transfer lasts more than 72 hours.

The other, Colo. Rev. Stat. §18-12-302, generally prohibits the possession, sale and transfer of large-capacity magazines, but exempts federal employees who carry them for work and individuals who owned LCMs as of July 1, 2013.

Aurora, Self-Defense

The Law Center to Prevent Gun Violence argued that in “the wake of the horrific 2012 Aurora movie theater shooting,” Colorado enacted “constitutional policies that will help prevent such tragedies from occurring again,” in an amicus brief.

Amici including The Congress of Racial Equality, Pink Pistols and Women Against Gun Control argued in a brief supporting the plaintiffs that the laws wrongfully impair the ability of citizens to defend themselves.

That effect is “of particular interest” to the amici, “who belong to demographic groups who are disproportionately the victims of armed criminal violence,” the brief said.

Brian S. Koukoutchos, who represented those amici, downplayed the importance of the decision. Because the claims were rejected on standing grounds without consideration of the merits, “the case means nothing,” he told Bloomberg BNA by e-mail March 23.

Can't Assume Standing

Standing was an issue from the time the suit was filed.

In an effort to provide a complete ruling, however, the district court assumed that certain plaintiffs had standing. But the appeals court scolded the lower court, saying “a federal court can't ‘assume' a plaintiff has demonstrated Article III standing.”

Focusing on the plaintiffs that benefitted from the assumption, the Tenth Circuit said the district court erred.

Two-Part Test

The appeals court applied a two-part test for standing, which requires plaintiffs to show an intention to engage in protected conduct and that there exists a credible threat of prosecution if they do.

Looking at the plaintiffs the lower court assumed had standing to challenge the background check requirement, the appeals court noted that the evidence showed that they will be burdened if they comply with the law.

It said, however, “the plaintiffs can't satisfy the credible-threat-of-prosecution test by relying on evidence of their compliance with the challenged statute.” Without evidence that the plaintiffs intended to violate the law, they failed to show that they had standing.

As for the LCM law, the court said that the plaintiffs only presented evidence that it's possible that one day they will violate the law.

Because they didn't show “concrete plans” to violate the LCM law, they “failed to demonstrate an imminent injury for purposes of mounting a pre-enforcement challenge to that statute,” it said.

‘Purely Speculative.'

As to the ADA claims, the court again looked at the record and said that the “mere possibility” that “ ‘some day' ” a plaintiff “might” violate the laws “is insufficient to establish an imminent injury for purposes of Article III standing.”

The sheriffs fared no better. The court said that “any threat of prosecution based on the sheriffs' performance of their official job duties” is “purely speculative.”

Laws' Passage Got Senator Ousted

After getting the laws passed, then-president of the Colorado Senate John Morse (D) was ousted from office in a special recall election.

They “have my head on the wall to show around the country to ensure that Democrats all have their heads buried very firmly in six inches of sand,” Morse said in 2013.

Other bans on firearms and large-capacity magazines have been challenged recently in Maryland and Illinois (84 U.S.L.W. 1093, 2/11/16).

Judges Jerome A. Holmes and Carolyn B. McHugh joined the opinion.

Richard A. Westfall, Hale Westfall LLP, Denver, represented the plaintiffs. David B. Kopel, Independence Institute, Denver, represented the sheriffs.

By Bernard J. Pazanowski and Patrick Gregory

To contact the reporters on this story: Bernard J. Pazanowski in Washington at; Patrick Gregory in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at

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