February 18, 2019

Colorado Court of Appeals: Constitutional Claim Requires Inquiry into Reasonableness of Statutory Ammunition Limits

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, March 24, 2016.

HB 12-1224—HB 13-1229—Firearms—Colorado Constitution—Right to Bear Arms—Police Power—Legislative Powers—Executive Powers—Due Process Clause.

In 2013, the Colorado General Assembly passed House Bills 13-1224 and 13-1229, which banned the sale, possession, and transfer of “large capacity ammunition magazines,” and expanded mandatory background checks to recipients of firearms in some private transfers. Plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S, LLC (collectively, plaintiffs) filed a complaint challenging the constitutionality of both bills. The district court analyzed the bills under a “reasonable exercise of police powers” test rather than an intermediate or strict scrutiny test and dismissed the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, plaintiffs contended that the district court erred in dismissing their claim that HB 13-1224 violated the Colorado Constitution’s right to bear arms clause. Because this case presented a challenge based on the Colorado Constitution, the district court did not err in using the “reasonable exercise of police power” test to assess the validity of HB 13-1224. However, the district court erred in its application of that test to this case. At a minimum, the claim asserts that the magazine limits violate the constitutional right to bear arms, which requires a factual inquiry into the reasonableness of the limits. When viewed in the light most favorable to plaintiffs, the allegations state a claim for relief, and plaintiffs are entitled to present evidence of the basis for their claim.

Plaintiffs contended that HB 13-1229 is unconstitutional because it (1) infringes on individuals’ rights to keep and bear arms; (2) delegates legislative and executive licensure powers to nongovernmental agents; and (3) violates the Due Process Clause, because licensed gun dealers will refuse to facilitate background checks, and they have discretion to impose criminal liability and punishments.

As to the first argument, HB 13-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties as those required for retail sales and sales at gun shows. Thus it does not prevent the sale of firearms but merely creates an additional step for those sales not taking place through a licensed gun dealer. Furthermore, HB 13-1229 does not implicate a fundamental right and does not infringe on individuals’ rights to keep and bear arms for a lawful purpose; both Colorado and federal law bar certain individuals from possessing firearms.

Second, HB 13-1229 does not unconstitutionally delegate legislative or executive powers. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; they are required to follow the same procedures in place for retail firearm transactions. The fact that they are not legally obligated to facilitate sales between private parties is not a delegation of legislative authority. Similarly, HB 13-1229 does not unconstitutionally delegate executive powers. Again, the process for these transfers is no different than that for retail firearm transactions and gun show sales. Licensed gun dealers are not agents of state law enforcement charged with keeping firearms away from criminals; they are only required to initiate a background check.

Third, plaintiffs presented no facts that licensed firearm dealers will refuse to facilitate background checks, thus depriving parties of a right to firearms sales. Additionally, licensed firearms dealers merely collect information; they do not have the discretion to impose criminal liability and punishments. Thus HB 13-1229 does not violate the Due Process Clause.

Therefore, the district court correctly concluded that plaintiffs failed to state a claim for relief on HB 13-1229.

As to HB 13-1224, the case was reversed and remanded. Other aspects of the court’s decision were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Short Shotguns Not Protected by Constitutional Right to Bear Arms

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, February 11, 2016.

Police executing a search warrant on Miguel Sandoval’s property after a shooting found a short shotgun in the shed in his backyard. Sandoval was convicted after a bench trial of possessing a dangerous weapon and appealed, arguing the district court erred in denying his motion to suppress evidence of the gun in the trial court, contending the shed was outside the scope of the warrant, and in precluding him from asserting the affirmative defenses of the right to bear arms and self-defense. He also argued the evidence was insufficient to support his conviction.

The court of appeals first evaluated the scope of the search warrant at issue. The warrant authorized the police to enter and search “the person, premises, location and any appurtenances thereto” of Sandoval’s residence. Because the shed in question was in Sandoval’s backyard and very close to the residence, the court found that search of the shed was within the scope of the warrant. The court of appeals affirmed the district court’s denial of Sandoval’s suppression motion based on the search of the shed.

Next, the court evaluated the right to bear arms as enunciated in the Second Amendment of the United States Constitution and Article II, section 13 of the Colorado Constitution. The court noted that the Supreme Court declined to hold that the Second Amendment provided a constitutional right to possess dangerous weapons, and short shotguns were typically used solely by criminals. The court found that there was no constitutional right for Sandoval to possess the short shotgun and therefore it was not available as an affirmative defense.

Finally, the court evaluated Sandoval’s sufficiency claim and found the evidence was sufficient to support his conviction. Although Sandoval never identified the particular short shotgun at issue as his, he admitted there was a short shotgun at his residence, the short shotgun at issue was found at Sandoval’s residence in the shed in the backyard, a key to the shed was found at Sandoval’s residence, and a spent shotgun round that had been fired from the short shotgun at issue was found in Sandoval’s bedroom. The court concluded that the evidence was sufficient to support Sandoval’s conviction.

The court of appeals affirmed the district court.

Tenth Circuit: Qualified Immunity Appropriate for Officers who Reasonably Believed Probable Cause Existed for Search

The Tenth Circuit Court of Appeals issued its opinion in Stonecipher v. Special Agents on Tuesday, July 1, 2014.

Anthony and Melissa Stonecipher were targets of an investigation into their purchases and sales of firearms and explosives. Mrs. Stonecipher had purchased 14 handguns over a period of 10 months, including 12 on a single day, and the federal Bureau of Alcohol, Tobacco, and Firearms began investigating her. The ATF also learned that Mr. Stonecipher was attempting to sell firearms and explosives out of his home. Two special agents went undercover to the Stoneciphers’ home and purchased a firearm and two explosives from Mr. Stonecipher. The ATF determined that Mr. Stonecipher’s sale of the explosives violated 18 U.S.C. § 842(a)(1) because he did not have a federal firearms or explosives license and investigated further into his activity.

In the course of their investigation into Mr. Stonecipher’s activity, Officer Carlos Valles obtained a certified court document showing that Mr. Stonecipher had been convicted of misdemeanor domestic violence in 2007 in Missouri. Valles also obtained a report from the National Instant Criminal Background Check System (NICS) that indicated Mr. Stonecipher had been denied the right to purchase a handgun because of the conviction, and a report from the National Criminal Information Center (NCIC) noting Mr. Stonecipher’s domestic violence charge. Valles sought legal advice from Assistant U.S. Attorney Ron Jennings regarding whether Mr. Stonecipher was prohibited from possessing firearms due to his domestic violence conviction. After reviewing all the documents, Jennings advised Valles that Mr. Stonecipher was prohibited from possessing firearms. Valles prepared an application and supporting affidavit for a search warrant to search the Stoneciphers’ house. The warrant was signed by a magistrate judge, and the search was executed. Mr. Stonecipher was placed under arrest during the search, after which he repeatedly proclaimed that his First and Second Amendment rights were being violated. Mr. Stonecipher requested to retrieve some papers from his house, one of which was a letter from his Missouri criminal defense attorney that advised Stonecipher that his conviction would not count after he completed his probation. The agents continued their search, and the next day Valles informed Jennings of the letter produced by Mr. Stonecipher. Jennings advised Valles to proceed with the case. Valles prepared a criminal complaint, which Jennings approved, and Valles filed the complaint in federal district court. Five days later, the prosecuting U.S. Attorney moved to dismiss the case upon discovering that the domestic violence charge was not a qualifying conviction.

The Stoneciphers brought a civil rights action against Valles and five other ATF agents involved in the search. The defendants moved to dismiss on qualified immunity grounds, and the district court granted the motion, finding that the agents reasonably concluded on facts available that they had probable cause to search the house and arrest Mr. Stonecipher. The Stoneciphers contended that the officers were not entitled to qualified immunity because they lacked probable cause. The Stoneciphers also alleged that Valles’ warrant application was a reckless disregard of the truth, contending that he knew or should have known that the Missouri suspended sentence was not a conviction for purposes of 18 U.S.C. § 922(g). The Tenth Circuit disagreed, noting that the documents on which Officer Valles relied were confusing and could be interpreted by an objectively reasonable officer as supportive of the warrant and complaint. The Tenth Circuit also examined the conduct of Officer Valles, particularly that he independently consulted AUSA Jennings, and determined that Officer Valles’ conduct was reasonable and supported dismissal on qualified immunity grounds.

The Stoneciphers also alleged that once they produced the letter from the Missouri criminal defense attorney, the officers should have stopped their search. However, the Tenth Circuit noted that the officers had no duty to credit the suspect’s explanation if they independently believed they still had reasonable probable cause to conduct the search. There was no way for the officers to verify the authenticity of the letter in the middle of the search, and Valles informed Jennings of the letter and its contents the next day. Upon evaluation of the Stoneciphers’ malicious prosecution claims, the Tenth Circuit similarly upheld the actions of Officer Valles, noting that nothing supported that his behavior was malicious. The Tenth Circuit affirmed the district court’s dismissal because the defendants were entitled to qualified immunity.

Colorado Court of Appeals: Defendant Not Entitled to Second Amendment Instruction for Firearm Used In Conjunction with Illegal Drug Transactions

The Colorado Court of Appeals issued its opinion in People v. Cisneros on Thursday, April 24, 2014.

Jury Instructions—Challenge for Cause—Deadly Weapon—Evidence—Right to Bear Arms—Controlled Substance—Miranda Rights—Motion to Suppress Statements—Res Gestae Evidence.

Defendant was at home with his wife, four children, brother, and mother when intruders who apparently intended to rob defendant fired shots into the apartment. Defendant grabbed a handgun and fired shots toward the intruders. Defendant’s 10-year-old daughter was caught in the crossfire. She was shot in the head and died at the scene.

The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana–eight ounces or more, and one special offender count under the special offender statute’s deadly weapon provision. The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her health. The People also alleged that defendant possessed the handgun in connection with his drug dealing business.

Regarding defendant’s contention on appeal for an elemental jury instruction concerning possession of a deadly weapon under CRS § 18-18-407(1)(f), the Court of Appeals ruled that the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The Court also ruled that there was sufficient evidence to support the jury’s findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon.

The Court determined that because the U.S. and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in furtherance of a drug offense, the Second Amendment right to bear arms in self-defense does not infringe on the constitutionally protected right to bear arms. Defendant was not entitled to the statute’s instruction. Further, because the jury found that defendant’s possession of the handgun was related to his drug offense, the statute was not unconstitutional as applied to him, nor was it unconstitutionally vague.

The Court did not agree with defendant’s argument that his statements to law enforcement officers should have been suppressed. Defendant was not in custody and was not being interrogated when he provided his statement to the officer at the scene or in the waiting room at the police station, and defendant voluntarily made statements to police after they advised him of his Miranda rights. Therefore, the trial court did not err in denying defendant’s motion to suppress.

The Court ruled that the trial court did not err in denying defendant’s causal challenge to a juror who worked as a reporter for The Denver Post. The record supported the court’s finding that this juror could “do what the law requires” and could handle any consequences of his relationship with law enforcement agencies.

Defendant contended that the trial court erred when it admitted, as res gestae, evidence concerning his prior acts of buying, selling, and receiving marijuana. This evidence, however, was relevant as to defendant’s knowledge and intent to distribute the marijuana, his possession of a deadly weapon in connection with that offense, and the dangerous circumstances in which defendant allowed his daughter to live. Therefore, the court did not err in admitting it. The judgment and sentence were affirmed.

Summary and full case available here.

Tenth Circuit: Colorado Sheriff’s Denial of Concealed Handgun License to Washington Resident Affirmed

The Tenth Circuit published its opinion in Peterson v. Martinez on Friday, February 22, 2013.

Gray Peterson, a resident of Washington, applied for a concealed handgun license (“CHL”) from the ex officio sheriff of Denver, Colorado. Pursuant to state law, Colorado sheriffs may issue CHLs only to state residents. Colo. Rev. Stat. § 18-12-203(1)(a). Peterson’s application was accordingly denied, prompting Peterson to file suit against the Denver sheriff and Colorado’s executive director of the Department of Public Safety. Peterson claimed that Colorado’s policy with respect to non-resident CHL applicants violated the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution.

The district court concluded that the executive director of the Department of Public Safety was entitled to Eleventh Amendment immunity because he had no connection to the enforcement of the challenged statute. The Tenth Circuit agreed with that conclusion. Colorado  law requires “each sheriff to implement and administer” the CHL licensing scheme. Colo. Rev. Stat. § 18-12-201(3). Because sheriffs are responsible for administering the state’s CHL regime—not the executive director of the Department of Public Safety—Peterson’s claims against the latter do not fall within the Ex parte Young, 209 U.S. 123 (1908), exception to Eleventh Amendment immunity.

With respect to Peterson’s claims against the Denver sheriff, the Tenth Circuit concluded that the carrying of concealed firearms is not protected by the Second Amendment after applying intermediate scrutiny. The majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, the Tenth Circuit held that this prohibition did not fall within the scope of the Second Amendment’s protections. In other words, the Second Amendment does not provide the right to carry a concealed firearm. Additionally, it is virtually impossible to evaluate a non-resident CHL applicant’s background thoroughly enough to determine that the applicant, if granted a CHL, will not be a danger to himself or the community.

The Tenth Circuit reached the same conclusion with respect to Peterson’s claim that the residency requirement violated his right to travel and violated his rights under the Privileges and Immunities Clause of the U.S. Constitution. As the Supreme Court explained in Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988), “it is only with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment.” Id. at 64-65 . Because the concealed carrying of firearms has been prohibited for much of our history, the Tenth Circuit concluded that this activity failed the Friedman test. In sum, the Tenth Circuit held that carrying a concealed weapon is not a privilege or immunity protected under Article IV.

AFFIRMED.