Rocky Mountain Gun Owners v. Polis

685 F.Supp.3d 1033

ROCKY MOUNTAIN GUN OWNERS,Tate Mosgrove, and Adrian S. Pineda, Plaintiffs, v. Jared S. POLIS, in his official capacityas Governor of the State of Colorado, Defendant.

Civil Action No. 23-cv-01077-PAB

1:23-cv-01077-PAB

United States District Court, D. Colorado

Signed August 7, 2023

Barry Kevin Arrington, Arrington Law Firm, Wheat Ridge, CO, for Plaintiffs.

Grant T. Sullivan, Matthew John Worthington, Michael T. Kotlarczyk, Colorado Attorney General's Office, Denver, CO, for Defendant.

ORDER

Philip A. Brimmer, Chief United States District Judge

This matter comes before the Court on the Motion for Preliminary Injunction [Docket No. 12] of plaintiffs Rocky Mountain Gun Owners ("RMGO"), Tate Mosgrove, and Adrian S. Pineda. Defendant Jared S. Polis, in his capacity as the Governor of the State of Colorado (the "Governor"), filed a response opposing plaintiffs' motion. Docket No. 28. Plaintiffs filed a reply. Docket No. 30.

I. BACKGROUND

A. Findings of Fact

Plaintiffs challenge the constitutionality of Senate Bill 23-169 ("SB23-169"), which was passed by the Colorado General Assembly and which amends Sections 18-12-112 and 18-12-112.5 of the Colorado Revised Statutes, a provision in the Colorado Criminal Code regulating private firearm transfers. Docket No. 9 at 1, ¶ 1; Colo. Rev. Stat. § 18-12-112. The Governor signed the bill on April 27, 2023. Docket No. 9 at 1, ¶ 1. SB23-169 becomes effective¹ "at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly." SB23-169, 74th Gen. Assemb., 1st Reg. Sess. (Colo. 2023). Colorado's General Assembly adjourned on May 8, 2023.²

Section 18-12-112, as amended by SB23-169, provides:

(2)(e) A person who is not a licensed gun dealer shall not make or facilitate the sale of a firearm to a person who is less than twenty-one years of age.

(f) It is unlawful for a person who is less than twenty-one years of age to purchase a firearm.

Colo. Rev. Stat. § 18-12-112. "A person who violates a provision of [Section 18-12-112] commits a class 2 misdemeanor." Id. at § 18-12-112(9)(a). Relevant provisions of Section 18-12-112.5 as amended provide:

(a.3) A person who is a licensed gun dealer shall not make or facilitate the sale of a firearm to a person who is less than twenty-one years of age.

(a.5) It is unlawful for a person who is less than twenty-one years of age to purchase a firearm

. . . .

(b) Transferring or selling a firearm in violation of this subsection (1) is a class 1 misdemeanor.

(c) Purchasing a firearm in violation of this subsection (1) is a class 2 misdemeanor.

Id. at § 18-12-112.5. Sections 18-12-112 and 18-12-112.5 make exceptions for sales to persons under twenty-one years old if the purchaser is an active-duty member of the United States Armed Forces, a peace officer who is "on duty," or a person "certified by the P.O.S.T. Board."³ Id. at §§ 18-12-112, 18-12-112.5. As noted by the Governor, 18-to-20 year olds may still possess and use firearms. Docket No. 28 at 3. And they may acquire, inherit, or receive as gifts firearms from family members. Id.

RMGO is a nonprofit organization that "seeks to defend the right of all law-abiding individuals to keep and bear arms." Docket No. 12-1 at 1, ¶ 3. RMGO has members between 18 and 20 years old who desire and intend to purchase firearms for lawful purposes, including self-defense in their homes. Id. at 1-2, ¶¶ 3-4.

Mr. Mosgrove is a citizen of Colorado and is older than 18, but younger than 21. Docket No. 12-2 at 1, ¶ 2. It is his "present intention and desire to lawfully purchase a firearm for lawful purposes, including self-defense in [his] home." Id.

Mr. Pineda is a citizen of Colorado and is older than 18, but younger than 21. Docket No. 12-3 at 1, ¶ 2. It is his "present intention and desire to lawfully purchase a firearm for lawful purposes, including self-defense in [his] home." Id.

B. Procedural History

Plaintiffs filed this action on April 28, 2023. Docket No. 1. Plaintiffs amended their complaint on May 26, 2023. Docket No. 9. The amended complaint adds Mr. Pineda as a plaintiff and brings one claim on behalf of all plaintiffs alleging that the restrictions in SB23-169 "infringe on the right of the people of the State, including Plaintiffs, to keep and bear arms as guaranteed by the Second Amendment and made applicable to Colorado and its political subdivisions by the Fourteenth Amendment." Id. at 6, ¶ 20. Plaintiffs seek a declaratory judgment, injunctive relief, and damages for the individual plaintiffs. Id. at 6-7, ¶¶ 23-26. On June 7, 2023, plaintiffs filed a motion for preliminary injunction requesting that the Court preliminarily enjoin the enforcement of SB23-169 arguing that the bill is unconstitutional under the Second Amendment.⁴ Docket No. 12 at 1, 17. On August 3, 2023, plaintiffs filed a motion for a temporary restraining order seeking the same relief. Docket No. 34.

II. LEGAL STANDARD

A preliminary injunction is not meant to "remedy past harm but to protect plaintiffs from irreparable injury that will surely result without [its] issuance" and "preserve the relative positions of the parties until a trial on the merits can be held." Schrier v. Univ. of Colo., 427 F.3d 1253, 1258, 1267 (10th Cir. 2005); see also Hale v. Ashcroft, 683 F. Supp. 2d 1189, 1197 (D. Colo. 2009) ("injunctive relief can only be obtained for current or prospective injury and cannot be conditioned on a past injury that has already been remedied"). "[C]ourts generally will refuse to grant injunctive relief unless plaintiff demonstrates that there is no adequate legal remedy." 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2944 (3d ed. 2023).

To obtain a preliminary injunction, "the moving party must demonstrate four factors: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest." RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). "[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009).

III. ANALYSIS

A. Standing

"[A] court must raise the standing issue sua sponte, if necessary, in order to determine if it has jurisdiction." Russell v. Fin. Cap. Equities, 158 F. App'x 953, 955 (10th Cir. 2005) (unpublished) (quoting United States v. Colorado Supreme Court, 87 F.3d 1161, 1166 (10th Cir. 1996)). Moreover, if a court believes there is a standing issue, it "is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing." Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (citation omitted); see also Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)) ("a federal court can't 'assume' a plaintiff has demonstrated Article III standing in order to proceed to the merits of the underlying claim, regardless of the claim's significance"). Each plaintiff must have standing to seek each form of relief in each claim. Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). Therefore, the Court will begin by examining each plaintiffs' standing to seek injunctive relief.

1. Pre-Enforcement Challenge

Plaintiffs seek to enjoin enforcement of SB23-169 as unconstitutional. Docket No. 12 at 17. Because SB23-169 had not taken effect at the time of filing, plaintiffs are bringing a pre-enforcement challenge. The Governor argues that plaintiffs' declarations "simply repeat a legal conclusion that they 'desire to purchase a firearm . . . and [they are] or soon will be precluded from purchasing a firearm by SB23-169.' This is not enough to preliminarily enjoin the law or even establish standing." Docket No. 28 at 8 (citations omitted). Plaintiffs do not respond directly to the Governor's standing argument. See Docket No. 30 at 14. Instead, plaintiffs state:

The State argues that because the law is not effective until August 8, 2023, the Plaintiffs are not at this moment entitled to a preliminary injunction. Plaintiffs do not disagree, as they explained in their motion [ ]. Plaintiffs filed their motion prior to the effective date of the statute so that the issues would be fully briefed prior to that date so that the Court would be able to proceed in a more deliberate fashion rather than all at once on August 8. Obviously, Plaintiffs will require an injunction to vindicate their constitutional rights when the statute does become effective. The point of the State's argument is thus unclear.

Id. (citation omitted). The Court understands plaintiffs' argument to be that, although plaintiffs filed their preliminary injunction motion well in advance of the statute's effective date, plaintiffs are not seeking to enjoin the statute before that date, but rather plaintiffs challenge the statute as of the date it goes into effect. See id. at 13-14.

The Supreme Court has stated that, "standing is to be determined as of the commencement of the suit." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Nova Health Sys., 416 F.3d at 1154-55. "Where, as here, the original complaint has been super[s]eded by an amended complaint, we examine 'the amended complaint in assessing a plaintiff's claims, including the allegations in support of standing.' Nevertheless, 'standing is determined at the time the action is brought . . . and we generally look to when the complaint was first filed, not to subsequent events' to determine if a plaintiff has standing." S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1152-53 (10th Cir. 2013) (quoting Mink v. Suthers, 482 F.3d 1244, 1253-54 (10th Cir....