United States District Court, D. Colorado
JON C. CALDERA, BOULDER RIFLE CLUB, INC., GENERAL COMMERCE, LLC, TYLER FAYE, and MARK RINGER, Plaintiffs,
v.
CITY OF BOULDER, and John Does 1-10, Defendants.
OPINION AND ORDER OF ABSTENTION PURSUANT TO
PULLMAN
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).
FACTS
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).
ANALYSIS
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 ...