55 (updated) Colorado Sheriffs File Against The State

[Glenn E. Meyer]

I had an opportunity to talk to a chief and then the rank and file.

The chief thought that armed self-defense by citizens was the silliest thing ever. The officers thought it was just fine and the AWB was stupid.

Of course, the chief's boss hated guns.

[Dr Big Bird PhD]

Out of curiosity, is the Chief appointed or elected?

I feel like politically motivated persons are more likely to feel anti-gun in LE

[csmsss]

Chiefs are almost always appointed by the mayor/city manager. Sheriffs are almost always elected.

[speedrrracer]

Originally Posted by Southwest Chuck

Here is a link to Kopel's Blog entry on the Volokh Conspiracy websitehttp://www.volokh.com/2013/05/18/col...nti-gun-bills/

What I find most interesting is the inclusion of the bolded quote below. Is this a First? I think it will open up a whole new avenue of attack on the 2nd A. front if successful.
Quote:
The Complaint alleges violations of the Second Amendment, Fourteenth Amendment (vagueness), and Title II of the Americans with Disabilities Act.

Finally got around to reading the complaint, and I agree with you. Very interesting choice. Kopel is all kinds of smart, and I think he made a great call here.

If you've had a stroke or whatever, and certain movements are very slow or difficult, reloading becomes a real issue.

Reducing the capacity of magazines thus becomes a clear burden on the disabled, who can least afford to be burdened, negatively impacting their ability to defend themselves in a disproportionate way to the rest of us, who have the potential to reload very quickly.

[maestro pistolero]

If successful on the ADA issue, I would be concerned that is could result only in a narrow waiver for the infirmed. While that would obviously be a good thing, it could be addressed with a narrow exception.

[Southwest Chuck]

But then you'd have an equal protection question, no? Turn it around. What if a person that has an auditory sensitivity disability was allowed the legal use of a suppressor (without a tax stamp or allowed use within a State (CA) that bans them) , while at the same time, denying it's use by a deaf person (no need) Maybe a bad example, but you get the point. If they go down that road, shall we say slippery slope?

[speedrrracer]

Originally Posted by maestro pistolero

If successful on the ADA issue, I would be concerned that is could result only in a narrow waiver for the infirmed. While that would obviously be a good thing, it could be addressed with a narrow exception.

Well, the Court can't create a waiver, right? So they would have to either allow this law or strike it down, wouldn't they?

So if they strike it down, the legislature will have to get all the political capital together to create / pass a new law, featuring the waiver (assuming the ADA issue is the only problem with the bill). That might not be so easy, esp given the recall and this suit...I could see plenty of unsteady seats not wanting to sign back on...

Originally Posted by Southwest Chuck

But then you'd have an equal protection question, no? Turn it around. What if a person that has an auditory sensitivity disability was allowed the legal use of a suppressor (without a tax stamp or allowed use within a State (CA) that bans them) , while at the same time, denying it's use by a deaf person (no need) Maybe a bad example, but you get the point. If they go down that road, shall we say slippery slope?

Chuck, you are on a roll today. That's very interesting. I didn't even know there was an auditory sensitivity disability!

[nemo2econ]

After the lawsuit was filed, the plaintiff's attorney (for the Sheriffs) applied for preliminary injunction to stop enforcement of a couple of narrow aspects of the new laws, laws which only took effect on 1 July 2013.

The requested preliminary injunction was to halt the overreach of the magazine language “designed to be readily converted” to hold more than 15 rounds (per House Bill 1224, the magazine ban), and the language on “continuous possession” of firearms/magazines (per House Bill 1229, background checks and paperwork on temporary loans and private sales of firearms)

Sheriff's attorney, Dave Kopel, argued that both were unconstitutionally vague, and that what meaning it did have (according to the Attorney General) violated the Second Amendment.

Well, on July 10th, the attorney general backed down, and issued formal legal guidance to Colorado law enforcement folks that accepted the argument of the Sheriffs on those two narrow issues.

An important, even if only partial, victory.

Now the case will move forward on the other issues, but these two have been resolved in favor of reasonableness and the Second Amendment. Two cheers for that!

Here is more detail: http://www.volokh.com/2013/07/15/suc...mendment-case/

[iraiam]

Right after those magazine laws passed, I read that numerous sheriffs claimed they wouldn't even attempt to enforce the laws regarding "high capacity" magazines due to the fact that the law stated you can't purchase them after a date in July, but those that were purchased before the July date were legal to own/keep. Law enforcement stated that it would be nearly impossible to determine if magazines were bought before the July date, purchased out of state and brought in before or after the July date, etc. and that they weren't even going to bother trying to figure it out. Fortunately if the gun laws are repealed at least Colorado citizens will be able to purchase new 15+ rounders in the future. I plan on moving to Denver and hope the 30 rounders I currently own won't be an issue.

The City and County of Denver has a long standing AWB in place, I'd have to look up the details but an AR-15 is banned within Denver, and I believe they also had a 20 round magazine limit in place since about 1994. It's much like the Clinton era federal AWB.

[Wreck-n-Crew]

I have been aware of the new Colorado gun laws and several suits but I was not aware of the sheriffs lawsuit until I read an article on the judges ruling.

From what I gather several sheriffs across Colorado got together to file a law suit against the state of Colorado and its new laws calling them unconstitutional.

Sheriffs in most of Colorado's 64 counties filed the lawsuit in May, saying the new regulations violate the Second Amendment. The sheriffs are elected and represent rural, gun-friendly parts of the state.

Reference:http://www.foxnews.com/politics/2013...tate-gun-laws/ and here: http://www.coloradoan.com/viewart/20...-over-gun-laws

Apparently the judge ruled against them as a group but said they could file individually.

In her ruling, Krieger said sheriffs still can choose to join the suit in an individual capacity, and they’ll have 14 days to make that decision. But they cannot, as a group, sue the state in their official capacities.

The reasoning here:

"If individual sheriffs wish to protect individual rights or interests they may do so ... however, the sheriffs have confused their individual rights and interests with those of the county sheriff's office," Krieger said.

In what way was the Sheriffs law suit based on the interests of the County Sheriffs office from which they served? Just to add, filing a lawsuit on personal time with a group of people is completely legal such as a gun group.

So to sum this up, a citizen group can, or individuals, or sheriffs as individuals but not as a group. So long as the group is not made up of all sheriffs they are allowed to file because they would be:

"in their official capacities"

Where does the service end and rights begin? Guess that is bugging me about this whole ruling.

I understand that there are several twist on similar laws from state to state. So what is in Colorado law that prevents Sheriffs from joining in a law suit made up of all sheriffs? Providing the suit is personal in nature and not job related it would seem they would have the same rights as any citizen group would it not? Guess that depends on what is in Colorado law.


The complaint in the suit against the state filed by Sheriffs :

On June 12, we filed a motion for a preliminary injunction on two narrow issues in the magazine ban.

1. The magazine ban outlaws magazines which accept more than 15 rounds of ammunition. The ban also applies to magazines which are “designed to be readily converted” to hold more than 15. We argued that the “designed” language was unconstitutionally vague, in violation of the 14th Amendment, and to the extent that the language had any clear meaning, it violated the Second Amendment.

2. To qualify for grandfathering, a person must fulfill two requirements. First: own the magazine on July 1. Second: maintain “continuous possession” thereafter. We argued that “continuous possession” was unconstitutionally vague, and that what meaning it did have (according to the Attorney General) violated the Second Amendment.

No where in their argument did the Sheriffs state that the reasoning for the suit was job related or that it affected their ability to do their job and uphold the law.

I need a different perspective here I guess because from where I am standing this whole ruling seems silly.

[Chaz88]

It is a bit of a guess but the problem might be because this is probably the same group of sheriffs that banded together to say that they would not enforce the new gun laws, in part because they felt they are unenforceable.

One of the sheriffs is an old friend of mine. I will be going home for Christmas and will ask him about it. Maybe I can get a clearer picture of the whole thing. If I talk to him sooner I will let you know what he has to say.

[Al Norris]

New Thread merged with the original thread.

In the case, Parker v. California (case #22 in the list), the CA court of appeals recently ruled for the plaintiffs, in its entirety. This is now a citable case, inasmuch as Sheriff Clay Parker sued the State in his official capacity. The CA courts held that he had standing, in his professional capacity, in enforcement of vague laws.

The Judge here, says the Sheriffs have suffered no harm, in their official capacity, other than not knowing how to enforce a vague law (the Judge accepts the CO AG's "Technical Guidance," even though this can be changed at a whim). This decision is appeallable.

Whether or not this is appealed, is up to the Sheriffs and their attorney (David Kopel). If it is, by the Courts own timeline, it must be done within 14 days, or the lawsuit proceeds without them. If appealed, all action at the District Court stops, until the CA10 renders its opinion (technically, the Sheriffs have the same 90 days to appeal the decision as any other case would. Practicality deems 14 days).

The docket has been updated and the decision (doc #96) has been recapped.

[Wreck-n-Crew]

Thanks Al , Search terms did not give me a hit.

Whether or not this is appealed, is up to the Sheriffs and their attorney (David Kopel).

From what I read in the report on one of the two previous citing's they plan to file individually.

The Judge here, says the Sheriffs have suffered no harm, in their official capacity, other than not knowing how to enforce a vague law (the Judge accepts the CO AG's "Technical Guidance," even though this can be changed at a whim). This decision is appeallable.

It was in my first thought that was the case. Then I read a little more and still have yet to see where their complaint was about the laws effects on LE rather the unjust impact on the Citizens of Colorado.

That was the reasoning behind my questioning then. Not now, or yet should I say until I read a little more on the contents of the suit.

One of the sheriffs is an old friend of mine. I will be going home for Christmas and will ask him about it. Maybe I can get a clearer picture of the whole thing. If I talk to him sooner I will let you know what he has to say.

Great! Thanks. I would really like to know what the intentions of their suit is.

Even if the wording of the suit was surrounding LE, the vagueness of it as written, as well as it's affect on ability to implement it fairly, the judges decision to not change the law does nothing more to help LE do it's job with confidence. In a since it kicked the can down the road. I say that with the understanding it may not necessarily be the judges duty to change it because of the circumstances of the suit. But that is the problem with the legislature. It is just an arm of government with a function to do what an arm does. Frustrating.

[Al Norris]

Search terms within vBulletin are iffy, at best.

I know it's probably asking a lot, but all these cases are in the stickied Current 2A Cases thread, at the top of the index. Tucked into posts 2 through 6 are all the cases being tracked (20 cases per post), their entry points into the legal system (for those that have PACER accounts), their docket entries and any thread that is on topic for that case. These are all links and are highly useful for anyone concerned about the status of a specific case.

[leadcounsel]

It's become a sad state of affairs in America....

Government screw ups and oppression require citizens to file lawsuits, often spending millions of tax payer dollars on one or both sides of the lawsuit...

I'd like the losers of these suits to be fired and jailed and have personal responsibility for the debts incurred. That would slow down these government encroachments and screw-ups.

[Wreck-n-Crew]

92. HB 1224 and 1229 violate the Constitution of the United States. The Sheriffs cannot enforce a statute that violates the fundamental constitutional rights of the citizens of Colorado.
93. For reasons detailed supra and infra, HB 1224 and 1229 are utterly unenforceable, even if the Sheriffs wished to violate the U.S. Constitution.

Actually the complaint spans from 90-104 of the complaint here:http://www.i2i.org/files/file/54-sheriffs-complaint.pdf However I wanted to drop the first two in the complaint as an example of the intent and reasoning for the suit filed by the Colorado Sheriffs.

It seems from reading the complaint that it was their intent to complain about the effects of the law and how it inhibits them to do their job/duty (answering my previous question). The judges ruling

"If individual sheriffs wish to protect individual rights or interests they may do so ... however, the sheriffs have confused their individual rights and interests with those of the county sheriff's office," Krieger said.

So the Sheriffs rights are deemed different than their individual rights! Though legal for the judge to do so, no justice has been served on the part of the sheriffs in any way by the ruling. A motion to dismiss the sheriffs complaint filed by the Governor Hickenlooper, coincides with the previous stated quote by the judge on the reason for the ruling.

Seems to me that the only option left for the sheriffs is to file individually if they wish to have the state hear a complaint. Also if they file individually, they need to change their original complaint to avoid a similar ruling on an individual level would they not?

The Question remains, if the sheriffs complaint had not been job related and filed as a group would they still have been denied and forced to file as individuals in order to have their suit heard?

Given the likelihood that the most reasonable course of action would have been the original complaint, what real option is left to them?

Again being LE what legal recourse do they have to satisfy their complaint on the vagueness of the new law and it's effect on the ability to due their job fairly and without prejudice if the state in essence shut the door?

When a law is this defunct the only outcome is this kind of calamity.

[Cnon]

Why couldn't they form their own groups like "Colorado Sheriffs For Gun Rights" and file that way; this was suggested to me on another forum.



Cnon

[kkb]

The case (Civil Action No. 13-Cv-1300-MSK-MJW) went to court Monday. Let's hope for the best.

The Independence Institute put up a tracking page at http://coloradoguncase.org/ - is there a better place to follow what happens?

[Al Norris]

That's probably as good a place as any.

This one has fallen between the cracks in my cases list. Sorry for that.