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Rocky Mountain Gun Owners v. Hickenlooper

Court of Appeals of Colorado, Second Division

March 24, 2016

Rocky Mountain Gun Owners, a Colorado nonprofit corporation; National Association for Gun Rights, Inc., a Virginia nonprofit corporation; John A. Sternberg; and DV-S, LLC, a Colorado limited liability company, d/b/a Alpine Arms, Plaintiffs-Appellants,
v.
John W. Hickenlooper, in his official capacity as Governor of the State of Colorado, Defendant-Appellee

          City and County of Denver District Court No. 13CV33879. Honorable John W. Madden, IV, Judge.

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

         Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Matthew D. Grove, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee.

         Tierney Paul Lawrence, LLP, Martha M. Tierney, Denver, Colorado; Katten Muchin Rosenman, LLP, Jonathan K. Baum, Mark T. Ciani, Chicago, Illinois, for Amicus Curiae Law Center to Prevent Gun Violence.

          OPINION

         DAILEY, JUDGE.

         Opinion Modified On the Court's Own Motion

          [¶1] Plaintiffs, Rocky Mountain Gun Owners; National Association for Gun Rights, Inc.; John A. Sternberg; and DV-S, LLC (collectively, plaintiffs), appeal the district court's judgment dismissing their complaint for failure to state a claim against defendant, John W. Hickenlooper, in his official capacity as the Governor of Colorado (the Governor). We affirm in part, reverse in part, and remand the case for further proceedings.

         I. Background and Procedural History

          [¶2] In 2013, the Colorado General Assembly enacted gun control legislation when it passed House Bills 13-1224 and 13-1229. House Bill 13-1224 added three criminal statutes, sections 18-12-301, 18-12-302, 18-12-303, C.R.S. 2015 (collectively, H.B. 13-1224), which banned the sale, possession, and transfer of " large-capacity ammunition magazines." House Bill 13-1229 added or amended sections 13-5-142, 13-5-142.5, 13-9-123, 13-9-124, 18-12-101, 18-12-103.5, 18-12-112, and 18-12-202, C.R.S. 2015 (collectively referred to as H.B. 13-1229), which expanded mandatory background checks to recipients of firearms in some private transfers.

          [¶3] Plaintiffs filed a complaint challenging the constitutionality of the two bills. Specifically, plaintiffs alleged that (1) H.B. 13-1224 and H.B. 13-1229 violate the Colorado Constitution, article II, section 13, which affords individuals the right to bear arms; (2) H.B. 13-1229 is an unconstitutional delegation of executive and legislative authority; and (3) H.B. 13-1229 violates the due process and equal protection provisions of the Colorado Constitution.

          [¶4] The district court concluded that most of the plaintiffs had standing to challenge the laws, but that they had failed to state a claim for relief, and therefore granted the Governor's C.R.C.P. 12(b)(5) motion to dismiss. In reaching its conclusion, the district court analyzed the House Bills under a " reasonable exercise of police powers" test rather than a higher standard of review such as intermediate or strict scrutiny.

         II. Standard of Review

          [¶5] We review a trial court's order granting a motion to dismiss de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). A motion to dismiss for failure to state a claim tests the complaint's sufficiency. C.R.C.P. 12(b)(5); Lobato v. State, 218 P.3d 358, 367 (Colo. 2009). In reviewing a motion to dismiss, we accept all assertions of material fact in the complaint as true and view the allegations in the light most favorable to the plaintiff. BRW, Inc., 99 P.3d at 71. A court cannot grant a motion to dismiss for failure to state a claim unless no set of facts can prove that the plaintiff is entitled to relief. Lobato, 218 P.3d at 367.

          [¶6] In reviewing a trial court's judgment on the constitutionality of a statute or ordinance, we review the court's legal conclusions de novo. Town of Dillon v. Yacht Club Condos. Ass'n, 325 P.3d 1032, 2014 CO 37, ¶ 22.

         III. Plaintiffs' Challenge to H.B. 13-1224

          [¶7] Plaintiffs contend that the district court erred in dismissing under C.R.C.P. 12(b)(5) their claim that H.B. 13-1224 violated the Colorado Constitution's right to bear arms clause. We agree.

         A. H.B. 13-1224

          [¶8] H.B. 13-1224 provides that " on and after July 1, 2013, a person who sells, transfers, or possesses a large-capacity magazine commits a class 2 misdemeanor." § 18-12-302(1)(a). " Large-capacity magazine" is defined 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." § 18-12-301(2)(a)(I).

          [¶9] The statute also has a " grandfather provision" which allows an individual to possess a large-capacity magazine if that individual (1) owned the large-capacity magazine on July 1, 2013; and (2) maintained continuous possession of it. § 18-12-302(2)(a)(I)(II).

          [¶10] The statute does not apply to a variety of individuals working in their official capacity, including large-capacity magazine manufacturers or dealers, as well as certain specified individuals, government agencies, and armed forces personnel. See § 18-12-302(3)(a)-(c).

         B. The Standard Under Which a Claimed Violation of Colorado's Constitutional Right to Bear Arms is Assessed

          [¶11] Article II, section 13 of the Colorado Constitution provides in pertinent part: " The 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 in question . . . ."

          [¶12] In Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994), the supreme court upheld a city ordinance banning assault weapons against the claim that the ordinance violated article II, section 13's right to bear arms. In doing so, the supreme court noted that the district court had needlessly determined that article II, section 13 established a " fundamental" right:

While it is clear that this right is an important constitutional right, it is equally clear that this case does not require us to determine whether that right is fundamental. On several occasions, we have considered article II, section 13, yet we have never found it necessary to decide the status accorded that right. Rather, we have consistently concluded that the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable.
. . . .
As [prior] cases make clear, when confronted with a challenge to the validity of a statute or ordinance regulating the exercise of the right to bear arms guaranteed under article II, section 13 of the Colorado Constitution, a reviewing court need not determine the status of that right. Rather, the question in each case is whether the law at issue constitutes a reasonable exercise of the state's police power.
This approach is in accordance with the vast majority of cases construing state constitutional provisions which guarantee an individual's right to bear arms in self-defense.

Id. at 328-29.

          [¶13] The district court in the present case used the Robertson " reasonable exercise of police power" standard to evaluate plaintiffs' challenge to H.B. 13-1224.[1] Plaintiffs assert, however, that that standard has been effectively overruled by two recent United States Supreme Court cases addressing the right to bear arms protected by the Second Amendment to the United States Constitution: District of Columbia v. Heller, 554 U.S. 570, 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).

          [¶14] In Heller, the Supreme Court struck down as unconstitutional a ban on the possession of handguns, reasoning that " [u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning [handguns] from the home . . . would fail constitutional muster." Id. at 628-29 (footnote omitted). The Court concluded that the Second Amendment " confer[s] an individual right to keep and bear arms," [2] which, while not absolute, should be afforded no lesser protection than other fundamental rights. Id. at 595.

          [¶15] In McDonald, the Court considered similar laws to the District of Columbia's ban in Heller. McDonald, 561 U.S. at 750. But the city of Chicago argued that its laws were constitutional because the Second Amendment did not apply to the States. Id. In reversing the United States Court of Appeals for the Seventh Circuit, the Court held " that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." Id. at 791. " [I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." Id. at 778. Thus, the Court rejected the city's invitation to treat the right recognized in Heller " as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause." Id. at 780.

          [¶16] Plaintiffs assert that (1) Heller and McDonald established something that the supreme court in Robertson rejected, that is, that the right to bear arms is " fundamental" in nature; and, consequently, (2) the validity of a restriction on that right cannot be analyzed under Robertson 's " reasonable exercise of police power" test -- instead, it must be analyzed under the highly exacting " strict scrutiny" standard of review. See Evans v. Romer, 882 P.2d 1335, 1341 n.3 (Colo. 1994), aff'd, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Under the strict scrutiny standard, " [a] legislative enactment which infringes on a fundamental right . . . is constitutionally permissible only if it is ' necessary to promote a compelling state interest' and does so in the least restrictive manner possible." Id. at 1341 (quoting Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)).

          [¶17] We are not persuaded.

          [¶18] In the first instance, we do not read the part of Robertson quoted at length above as rejecting the idea that the right provided by article II, section 13 is fundamental; rather, we read that part as saying that, whether the right is fundamental or not, a restriction on the right is nonetheless subject to review under a " reasonable exercise of police power" test. 874 P.2d at 329.[3]

          [¶19] In the second instance, we would note:

o Not all restrictions on fundamental rights are analyzed under a strict scrutiny standard of review. See, e.g., Heller v. District of Columbia, 670 F.3d 1244, 1256, 399 U.S.App.D.C. 314 (D.C. Cir. 2011) (" The [Supreme] Court has not said, however, and it does not logically follow, that strict scrutiny is called for whenever a fundamental right is at stake." ); State v. Cole, 2003 WI 112, 264 Wis.2d 520, 665 N.W.2d 328, 336 (Wis. 2003) (" This court has previously recognized that it need not apply strict scrutiny every time a governmental burden upon fundamental rights is implicated." ); see also Denver Publ'g Co. v. City of Aurora, 896 P.2d 306, 311 (Colo. 1992) (holding that " regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny" (quoting Turner Broad. Sys., Inc. v. Fed. Commc'n Comm'n, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (plurality opinion))); Watso v. Colo. Dep't of Social Servs., 841 P.2d 299, 307 (Colo. 1992) (noting that the right to parent is " fundamental" but applying a balancing test).
o In neither Heller nor McDonald did a majority of the United States Supreme Court identify a particular standard under which the validity of restrictions on the Second Amendment's right to bear arms would be assessed.[4]
o Other states in which the right to bear arms is recognized as a " fundamental" right under their state constitutions analyze restrictions on that right under the Robertson " reasonable exercise of police power" test. See Mosby v. Devine, 851 A.2d 1031, 1044-45 (R.I. 2004)

          [¶20] Ultimately, we are mindful that the instant case does not present us with a challenge to H.B. 13-1224 under the Second Amendment to the United States Constitution. Instead, it presents us with a challenge based on the Colorado Constitution, the construction and application of which are matters peculiarly within the province of the Colorado Supreme Court to determine. See People v. Schwartz, No. 291313, 2010 WL 4137453, at *3 (Mich. Ct.App. Oct. 21, 2010) (unpublished opinion) (" The recent decisions by the Supreme Court of the United States do not implicate the proper interpretation and scope of this state's guarantee of the right to bear arms; the courts of this state are free to interpret our own constitution without regard to the interpretation of analogous provisions of the United States Constitution." ).[5]

          [¶21] The supreme court has determined that, under the state constitution, a restriction on the right to bear arms will be upheld if it is shown to be a " reasonable exercise of the state's police power." Robertson, 874 P.2d at 329. We are bound by the supreme court's precedent in this regard. There may be good reason for the supreme court to alter that precedent in the future, but we are not at liberty to do so. See People v. Novotny, 320 P.3d 1194, 2014 CO 18, ¶ 26 (The supreme court " alone can overrule [its] prior precedents concerning matters of state law." ); see also Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (" If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." ).[6]

          [¶22] Consequently, we cannot conclude that the district court erred in using the Robertson " reasonable exercise of police power" test to assess the validity of H.B. 13-1224. Cf. People v. Sandoval, 2016 COA 14, ¶ 25 (holding that " article II, section 13 [of the state constitution] does not protect an individual's right to possess a short shotgun for self-defense because the state's prohibition of short shotguns is a reasonable exercise of its police power" ).

         C. The Application of the Standard

          [¶23] We can -- and do -- conclude, however, that the district court erred in the manner in which it applied the Robertson test in this case. When viewed in the light most favorable to plaintiffs, their allegations stated a claim for relief attacking the constitutionality of ...


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