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Brown v. Shoe

United States District Court, D. Colorado

April 15, 2016

WESLEY R. WOLF BROWN, Plaintiff,
v.
BECKY SHOE, Supervisor, InstaCheck Unit, Colorado Bureau of Investigation, Defendant.

ORDER

MICHAEL E. HEGARTY, Magistrate Judge.

Before the Court is Defendant's Motion to Dismiss [filed February 29, 2016; docket #11]. The Motion is briefed and oral argument would not materially assist the Court in its adjudication. For the reasons that follow, the Court grants the Motion.[1]

BACKGROUND

I. Procedural History

Plaintiff, proceeding pro se, initiated this action on December 16, 2015, filing a Complaint against Defendant, a supervisor for the InstaCheck Unit with the Colorado Bureau of Investigation ("CBI"), for her role in handling the denial of his purchase of a handgun because of his previous felony convictions. Docket #1. U.S. Magistrate Judge Gordon P. Gallagher first reviewed the case on December 22, 2015, denying Plaintiff's request for leave to proceed in forma pauperis. Docket #4. Plaintiff then paid his filing fees and filed his operative Amended Complaint on February 3, 2016 [ see dockets ##7, 8], bringing claims that involve his rights to due process and equal protection and, more broadly, violation of his civil liberties by being denied a firearm. See generally Amended Complaint, docket #8. Defendant filed the current Motion on February 29, 2016, (docket #11), and briefing was completed on April 4, 2016. Dockets ## 19, 27.

II. Facts

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff against the Defendant in the operative Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff attempted to purchase a firearm from the Shootest Pistol Range in Englewood, Colorado, on November 9, 2015. Amended Complaint, docket #8 at 15. He was denied the purchase of a firearm on November 20, 2015, without a reason for the denial [ id. at 4] and appealed the decision on November 21, 2015 [ id. at17-18]. With that appeal, he included a handwritten letter expressing his belief that Colo. Rev. Stat. § 18-12-108 allows those who are felons to possess firearms, so long as it has been 10 years since their release from supervision. Amended Complaint, docket #8 at 19. Plaintiff's letter also indicated his concern that he was not immediately told the reason for the denial "so that [he] could properly appeal the denial." Id. His letter included a recitation of his criminal history, showing he had not been supervised for the previous 10 years. Id. at 19-24.

On December 1, 2015, Plaintiff was notified by letter from Michael S. Rankin, director of the CBI, and signed by Defendant on behalf of the the InstaCheck Unit of the CBI, that the attempt to purchase a firearm remained denied. Id at 25. The letter stated as follows:

In response to your "Appeal of Denial of Firearm Transfer[, ]" please be advised that your attempted purchase was denied for the following reason(s):
Your state and/or federal criminal history record shows an arrest made by Long Beach Police Department in Long Beach, California[, ] on July 24, 1985[, ] that resulted in a conviction for Felony Possession of Marijuana for Sale.
Your state and/or federal criminal history record shows an arrest made by Long Beach Police Department in Long Beach, California[, ] on December 19, 2000[, ] that resulted in a conviction for Felony Grand Theft.
According to federal law (18 U.S.C. § 922(d)(1)) and/or state law (CRS [§]XX-XX-XXX), the transfer of a firearm to a person who has been convicted of a crime punishable by imprisonment/probation for a term exceeding one year is prohibited, regardless of whether the crime was a felony or a misdemeanor.
CRS 18-12-108 states that possession of a weapon by a previous offender is always illegal. However, if you are found to be in possession of a weapon within 10 years of your original conviction, there is a more serious penalty.
This information is being furnished to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.
Your appeal is denied.

Amended Complaint, docket #8 at 25 (emphasis in original). The same day - December 1, 2015 - Defendant and Mr. Rankin sent another ...


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