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Caldara v. City of Boulder

United States District Court, D. Colorado

September 17, 2018

CITY OF BOULDER, and John Does 1-10, Defendants.


          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court pursuant to the Court's discussion with the parties during a hearing on August 15, 2018 (# 46), and the parties' supplemental briefing on the issue of Pullman abstention (# 48, 49).


         For purposes of this Order, the pertinent facts of this case are straightforward and undisputed. On May 15, 2018, the City of Boulder adopted Ordinance 8245. That Ordinance amended the Boulder Revised Code to prohibit, within the City of Boulder, the sale or possession of “assault weapons” (defined generally as semi-automatic rifles, pistols, and shotguns having certain specific characteristics) and large-capacity ammunition magazines (defined generally as magazines with a capacity of more than 10 rounds, 15 for pistols), among other things. The Ordinance provided that individuals in possession of such weapons or magazines as of the passage of the Ordinance could choose to retain those items by providing certain information about the items to the Boulder Police Department, undergoing a background check, and obtaining a “certificate” to be kept with the weapon or magazine.[1]

         The Plaintiffs - citizens of the City of Boulder and entities with various interests in the sale or possession of weapons within Boulder - commenced this action challenging the Ordinances. Their Amended Complaint (# 41) asserts a total of 39 claims, although the bulk of those claims are a core group of seven distinct claims, asserted by each of the five Plaintiffs: (i) a claim that the Ordinances violate the Second Amendment to the United States Constitution; (ii) a claim that the Ordinances violate the Due Process Clause of the Constitution (apparently a substantive due process claim, as it contends that the Ordinance lacks “any legitimate government objective”); (iii) a claim that the Ordinances violate the Takings Clause of the 5thAmendment to the U.S. Constitution, in that the Ordinances “force [the Plaintiffs] to surrender [their] lawfully acquired and lawfully owned property . . . without any government compensation”; (iv) a claim that the Ordinances violate the First Amendment to the Constitution, in that they compel the Plaintiffs “to speak to the Boulder Police Department and provide information about banned, but currently exempted, firearms”; (v) a claim asserting a violation of the Privileges and Immunities Clause of the 14th Amendment to the Constitution, in that the Ordinance deprives them of the rights secured by the Second Amendment; (vi) a claim that the Ordinances violate Article 2, § 13 of the Colorado Constitution, which guarantees citizens the right to keep and bear arms; and (vii) a claim that the Ordinances violate Article 2, § 3 of the Colorado Constitution, which guarantees citizens the right “of enjoying and defending their lives and liberties, ” in that the Ordinance deprives them of their right of self-defense. In addition, to these core claims (and certain additional claims asserted by certain specific Plaintiffs), two claims by unspecified Plaintiffs seek a declaratory judgment that the Ordinance violates home rule provisions found in C.R.S. § 29-11.7-102 and -103.[2]

         The Plaintiffs sought a preliminary injunction (# 4) against enforcement of the Ordinance, and on August 15, 2018, this Court conducted a non-evidentiary hearing to address that request. Among the issues raised by the Court at that hearing was the question of whether it was appropriate for the Court to abstain, on Pullman grounds, from hearing the constitutional challenges to the Ordinances until the Plaintiffs' claims under C.R.S. § 29-11.7-103 were resolved. The Court invited the parties to brief the issue of the appropriateness of Pullman abstention, and the parties did so (# 48, 49).


         The doctrine of abstention that has become known as the Pullman abstention has its origins in the U.S. Supreme Court's decision in Railroad Comm'n. of Texas v. Pullman Co., 312 U.S. 496 (1941). There, a Texas regulation prohibited passenger railroads from operating trains without a conductor, a regulation that implicated the railroads' ability to employ black persons as sleeper car attendants. The railroads and certain black employees sued the state railroad commission, arguing that the regulation violated both Texas state law and the Equal Protection and Due Process clauses of the U.S. Constitution. A trial court enjoined enforcement of the regulation, and the state appealed to the U.S. Supreme Court. The Court conceded that the plaintiffs “tendered a substantial constitutional issue, ” but noted that it “touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” 312 U.S. at 498. It observed that “[s]uch constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy, ” and explained that, in addressing the question of whether the regulation violated Texas state law, the federal courts could offer only “a forecast rather than a determination” of how state law might apply. The last word, it explained, “belongs neither to us nor the district court, but to the supreme court of Texas.” The Court observed that “[t]he reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court, ” and suggested that federal courts should endeavor to “avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication.” Noting that the state courts provided “easy and ample means for determining” the state law issue, the Court declared that the federal court “should exercise its wise discretion by staying its hands” as to the constitutional question and remanded the action back to the district court to “retain the bill” - essentially stay the case - “pending a determination of proceedings, to be brought with reasonable promptness, in the state court.” Id. at 498-502.

         Pullman abstention is founded on the notion that federal courts should avoid “premature constitutional adjudication.” Babbit v. United Farm Workers Natl. Union, 442 U.S. 289, 306 (1979). The danger is that a federal court may render “a constitutional adjudication [ ] predicated on a reading of the [state] statute that is not binding on state courts and may be discredited at any time, thus essentially rendering the federal court decision advisory and the litigation underlying it meaningless.” Moore v. Sims, 442 U.S. 415, 428 (1979). Thus, Pullman abstention is appropriate when three elements are present: (i) an uncertain issue of state law underlies the federal constitutional claim; (ii) the state issues are amenable to interpretation and such an interpretation would obviate the need for or substantially narrow the scope of the constitutional claim; and (iii) an incorrect decision of state law by the federal court would hinder important state law policies. Kansas Judicial Review v. Stout, 519 F.3d 1107, 1118-19 (10th Cir. 2008).

         A. Are the predicate elements for abstention are present?

         Turning first to the existence of “an uncertain issue of state law, ” the issue is framed by the Plaintiffs' Thirty Ninth Cause of Action. It seeks a declaration that the Boulder Ordinances violate a Colorado State Statute - C.R.S. § 29-11.7-103. Such statute provides that “a local government may not enact an ordinance. . . that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law.”[3] It would appear that the Ordinances violate the statute because at least some firearms covered by the Ordinances can be legally-possessed under Colorado and/or federal law.

         But C.R.S. § 29-11.7-103 does not exist in a vacuum. It rubs up against Art. XX, Section 6 of the Colorado constitution, which provides generally that municipalities are given the authority to pass laws affecting “local and municipal matters” which “supersede . . . any law of the state in conflict therewith” (sometimes referred to as a “home rule” provision). If the regulation of firearms is a “local and municipal matter, ” then Art. XX, Section 6 would require that C.R.S. § 29-11.7-103 yield to that local interest. Thus, the question of whether the Ordinances are barred by C.R.S. § 29-11.7-103, or whether that statute yields to Boulder's home rule authority turns significantly on the question of whether the regulation of firearms within the city is a “local and municipal matter” or a matter of statewide concern.

         The answer to that question is decidedly uncertain and certainly an issue of state, not federal law. As far as this Court is aware, the state courts have squarely considered that question only once. In City and County of Denver v. State of Colorado, 2004 WL 5212983 (Colo. Dist. Ct., Denver County Nov. 5, 2004), the City of Denver had passed several municipal ordinances governing the sale or use of firearm within the city limits. Citing the recently-enacted C.R.S. § 29-11.7-103 (sometimes referred to by the courts as “Senate Bill 25”), the State sued, seeking a declaration that Denver's ordinances were preempted; in response, Denver argued that the ordinances addressed local matters within the scope of Denver's home rule rights. Ultimately, the Denver District Court found that several of Denver's ordinances (including a prohibition on the sale of “assault weapons”) were properly considered matters of uniquely local concern, trumping C.R.S. § 29-11.7-103's prohibition. The state appealed that ruling to the Colorado Supreme Court, but the Supreme Court split evenly on the issue, with three justices voting to affirm the Denver District Court, three justices voting to reverse, and one justice not participating. State of Colorado v. City and County of Denver, 139 P.3d 635 (Colo. 2006). By operation of Colorado Appellate Rule 35(e), the even split by the Supreme Court resulted in the affirmance of the Denver District Court's ruling.

         There can be little argument that, where the state's highest court splits evenly on a question of law, that legal question is “uncertain”; indeed, it is hard to conceive of a more potent way of demonstrating such uncertainty. The Plaintiffs here argue that the application of C.R.S. § 29-11.7-103 is not uncertain because “the plain language of” that statute “is clear and unambiguous, ” as are the principles for determining whether matters fall within the Colorado constitution's “home rule” provisions, such this Court “need only look to the state statutes in question . . . and apply them to the case at hand.” But City and County of Denver clearly belies the Plaintiffs' contention that the state law determinations to be made here are straightforward and obvious. Surely, they were not straightforward and obvious to the Colorado Supreme Court in 2006, and although the Colorado state courts have spoken generally on the subject of home rule in the interim, the Plaintiffs point to no subsequent ...

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