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Peterson v. LaCabe (Denver, CO) MSJ Filed

Gray Peterson

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Defendant's Cross Motion for Summary Judgement has been denied.

Highlights:

I am not entirely persuaded by LaCabe’s contention that he is not a proper defendant in this action. I note that a basic element of standing for Article III purposes is an injury “fairly traceable to the challenged action of the defendant” and a likelihood that the injury will be redressed by a favorable decision. Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). Here, it is undisputed that LaCabe is the responsible official in enforcing the statutory scheme in Denver. Moreover, LaCabe’s action in denying Plaintiff’s application is the cause of Plaintiff’s alleged injury (inability to obtain a concealed handgun permit) and a favorable decision will redress the injury. Therefore, for the purposes of Article III standing, it appears that LaCabe is an appropriate defendant.

Moreover, that LaCabe could not exercise discretion does not necessarily bar an action against him. See, e.g., Finberg v. Sullivan, 634 F.2d 50, 54 (3d Cir. 1980) (examining whether, under Ex Parte Young, local officials enforcing statutory scheme were proper defendants and concluding that the fact that their duties were entirely ministerial was not a defense to liability; “Under Ex Parte Young the inquiry is not the nature of an official’s duties but into the effect of the official’s perform nce of his duties on the plaintiff’s rights”). The court in Finberg similarly rejected any notion that the defendants did not have a sufficient interest in the constitutionality of the rules to be adverse to the plaintiff, similar to what LaCabe argues here. Id. (“Once the [local officials] have relied on the authority conferred by the [state] procedures to work an injury to the plaintiff, they may not disclaim interest in the constitutionality of these procedures.”). Accordingly, I disagree that the motion for summary judgment should be denied on this basis.

LaCabe has provided no legal authority to show why he cannot address the constitutional arguments presented by Plaintiff regarding the statute. Nonetheless, given that the Attorney General is now a party and will presumably respond to these issues, I will also reserve ruling on Defendant LaCabe’s liability.

.......

Accordingly, it is ordered:
1. The Motion to Dismiss Executive Director Peter Weir and Colorado Attorney General’s Request to Be Heard (ECF No. 6) is granted.
2. All claims against Defendant Peter Weir shall be dismissed.
3. John W. Suthers, Attorney General for the State of Colorado, is a party to this action as an intervenor.
4. The Attorney General may file a response to Plaintiff’s Motion for Summary Judgment against Defendant LaCabe (ECF No. 17) within 30 days of the date of this order and Plaintiff may file a reply brief in accordance with D.C.COLO.LCivR 56.1.A..
5. Defendant LaCabe’s Cross Motion for Summary Judgment Against Plaintiff (ECF No. 19) is denied.
 

Anubis

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...4. The Attorney General may file a response to Plaintiff’s Motion for Summary Judgment against Defendant LaCabe (ECF No. 17) within 30 days of the date of this order and Plaintiff may file a reply brief in accordance with D.C.COLO.LCivR 56.1.A..

The judge's ruling was issued Oct 20, so the 30 days lapsed on Nov 19. I see that the 30-day interval was extended (according to http://wiki.calgunsfoundation.org/index.php/Peterson_v._LaCabe ) to Dec 10 and the response was filed Dec 9.
 
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cscitney87

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Nonetheless this core right, while fundamental, remains narrow. Governments may still enact licensing requirements and may still restrict those who are “disqualified from the exercise of Second Amendment rights” from possessing a firearm at all. See Heller, 128 S.Ct. at 2816, 2821-22. Just as importantly, nothing in Heller or McDonald credibly suggests that the core Second Amendment right extends beyond the home’s four walls.
Given the narrow scope of Heller’s holding, it is at least arguable that state and local governments may still prohibit non-residents – who by definition have no “home” in a foreign state – from bringing their firearms with them when they visit. Indeed, the New York law upheld in the pre-Heller case of Bach v. Pataki, supra, did precisely that. In this case, however, the combined effect of Denver ordinance and Colorado statute is nowhere near so restrictive. Peterson may keep and bear a pistol for self-defense in his dwelling while he is visiting Denver. The Second Amendment demands nothing more.







That's the money right there. An official legal opinion on McDonald 2010 is that the 2nd Amendment applied to the defense of the home. Chicago and DC Gun Ban both struck down so citizens can protect their home only. not otherwise.

Well personally I don't agree.
 

Gray Peterson

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That's the money right there. An official legal opinion on McDonald 2010 is that the 2nd Amendment applied to the defense of the home. Chicago and DC Gun Ban both struck down so citizens can protect their home only. not otherwise.

Well personally I don't agree.

Funny thing is, the Attorney General argued otherwise in his brief to the US Supreme Court in McDonald:

McDonald 38 State SCOTUS BRIEF


BRIEF OF THE STATES OF TEXAS, OHIO, ARKANSAS, GEORGIA, ALABAMA, ALASKA,
ARIZONA, COLORADO, FLORIDA, IDAHO, INDIANA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA, NEVADA, NEW HAMPSHIRE, NEW MEXICO, NORTH CAROLINA,
NORTH DAKOTA, OKLAHOMA, PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, VIRGINIA, WASHINGTON, WEST VIRGINIA, WISCONSIN, AND WYOMING AS AMICI CURIAE

INTEREST OF AMICI CURIAE IN SUPPORT OF PETITIONERS

Accordingly, the States have an interest in ensuring that citizens who must travel
in the course of their personal or professional lives remain free from unconstitutional arrest and prosecution for engaging in their right to self-defense
by carrying properly-licensed weapons
. If local governments may completely ban possession of handguns—“the most popular weapon chosen by Americans for self-defense,” Heller, 128 S. Ct. at2818—citizens of all the States may find that they are unable to travel to certain jurisdictions unless they are
willing to forego their Second Amendment rights.


Certain jurisdictions include Denver Colorado.

Oops......
 

Anubis

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http://wiki.calgunsfoundation.org/index.php/Peterson_v._LaCabe indicates that the Attorney General's reply to plaintiff's MSJ was filed Dec 9, and the court announced that plaintiff's reply was due within 14 days, which would have been Dec 23. Did your team file a reply?

If you win, as we hope you do, the logical result would be either (a) Colorado CC permits would be available to non-residents, or (b) the statute recognizing reciprocal states' permits only for residents of those states would be overturned, or (c) Denver's open carry ban would be overturned. Of course, I may have erred or missed another possibility you are anticipating.
 
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Mike

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Gray Peterson

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This case may well do more to foment the growth of nationwide reciprocity than any other court case or legislative act.

This on top of being the "10th Circuit Carry case". You all notice that every Circuit Court of Appeals jurisdiction, save the 6th and the 8th, has a carry case in it....
 

Gray Peterson

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How would Constitutional Carry (HB 1205) affect your case? Would you modify it to just be about OC in Denver?

The case isn't about OC per se. There are numerous things that could happen.

First is whether or not constitution carry will actually become law. The House will likely pass it, but will the Senate pass it? And will former Denver Mayor and now Governor John Hickenlooper sign it? I doubt it.

Second is will Denver sue the state again? If you look at the Meyer decision from 2004, it seems to suggest that the reason why Denver can regulate open carry under the state's home rule powers (regardless of Article II Section XIII) is because the state doesn't license OC, but Denver couldn't touch carry because the state made it a crime and created a licensing system. Does that cease to exist once the crime is eliminated? We don't know, but then there's the SCCC case, explained below:

Third is the effect of the Colorado Supreme Court decision in Students for Concealed Carry on Campus v. University of Colorado. Though currently at the moment it is purely a case on the state concealed carry act, they are being encouraged to dispose of constitutional avoidance in this case and being encouraged to rule Article II Section XIII to be a fundamental right, which would overturn the Trinen case (which ruled that Denver can ban all carry because A2S13 is not "fundamental), which would effect Denver's ability file a case in case court against the state as their most fundamental underpinning (Trinen) would essentially be nullified.

There's a lot of steps between here and then. The law does take effect immediately (assuming it passes the Senate and Hickenlooper signs it or his veto is overriden). It'll literally be Denver's reaction that will determine the course of the case.
 

Gunslinger

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If it gets past, and I doubt it will survive the democrap controlled senate, and signed by Hick, Denver's standing is much less secure this time. They won't have the benefit of a SC Justice recusing herself--who would have surely voted against them, this time. Existing state preemption laws will be judged fully precedent to any decision. This isn't home rule v allowing something that isn't disallowed. Denver loses this time. As I said, in the unlikely event it gets passed.
 

Gray Peterson

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If it gets past, and I doubt it will survive the democrap controlled senate, and signed by Hick, Denver's standing is much less secure this time. They won't have the benefit of a SC Justice recusing herself--who would have surely voted against them, this time. Existing state preemption laws will be judged fully precedent to any decision. This isn't home rule v allowing something that isn't disallowed. Denver loses this time. As I said, in the unlikely event it gets passed.

Plus they're boxed in. I won't go into legal strategy, but if Denver is smart, they shouldn't make any noises of suing at all. Can't very well have a case dismissed if you're making representations that the law is unconstitutional.

This is a rarity (RMGO leader and I have our issues), but I'm actually hoping that HB1205 becomes law thanks to RMGO and the hard work of the people on this forum.
 
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M-Taliesin

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Howdy Pard!
What is the current situation on this case? Does a timeline exist for continued efforts? I saw that the response made would have been some time ago, but don't see any indication of what that response was.

What is the next step in the legal arena?

Blessings,
M-Taliesin
 

Gray Peterson

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The case was lost in District Court as of about 6 weeks ago (been busy with personal life stuff). The judge used Peruta repeatedly against my case. We have filed an appeal with the United States Court of Appeals for the Tenth Circuit. Our appellant brief is due on June 6th, with amicus due 7 days later. The case will be called, after our filing, Peterson v. Garcia et al (new Denver manager of safety).

Latest information here:
Peterson v. LaCabe
 
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Pace

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Not true at all, since federal law prohibits possession of a firearm by anyone convicted of a domestic violence situation.

Grey:
There are several reasons why Colorado elected to not recognize non-resident license. 1) Florida does not have a Domestic Violence limitation, which Colorado does.
 
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